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Bequest of "All" in a Will.


THE word "all" is prima facie an adjective, or adverb, but it is occasionally used as a noun, as, for instance, in the familiar expression "I have lost my all." Judging from the number of columns devoted to it in the Oxford Dictionary, it is a word with many significations. The meaning of it in a will was considered in the old case of Bowman v. Milbanke (2 Lev. 130), where the words were: I give all to my mother, all to my mother," and the court said "All' is altogether uncertain and not sufficient to disinherit an heir," and it was decided that lands did not pass. But at that day testamentary gifts were more frequently held to be void for uncertainty than at the present day, which (according to Jarman on Wills, vol. 1, p. 454, 6th edit., by Mr. Charles Sweet, the eminent conveyancer, assisted by Mr. C. P. Sanger), "is owing probably in part to the more matured state of the doctrines regulating the construction of wills which have now assigned a determinate meaning to many words and phrases once considered vague and insensible, and in part to the more practised skill of the courts in applying those doctrines." Vice Chancellor Malins, in referring to Bowman v. Milbanke in the case of Smyth v. Smyth (38 L. T. Rep. 633; 8 Ch. Div. 561), said: "If those words did not pass all the testator had, I cannot conceive what they did pass However, such a decision as that cannot be considered an authority now." A similar question came before Mr. Justice Eve in the comparatively recent case of Re Shepherd; Mitchell v. Loram (1914) W. N. 65). There a testator, who was an illiterate man, and who died in 1911, by a will, partly printed and partly written, after appointing executors and directing payment of his debts and funeral and testamentary expenses, proceeded as follows: "I give and bequeath unto all the under-mentioned names all to be divided in equal parts (then a number of beneficiaries were indicated) with a direction in one case to pay to trustees. There was also a direction that the rent of a cottage should be paid to a certain person, but the testator had no interest in such cottage. The question was whether there was an intestacy as to the real estate, and the learned judge held that there was not. He pointed out that in Bowman v. Milbanke the court seemed to have proceeded on the footing that the word "all" was used in that will as an adjective, and therefore was inoperative to disinherit the heir; but that in the will before him the word "all" was used as a noun, and accordingly that the real estate passed.

Legacy-Whether General or Specfic.

THE question whether a legacy is general or specific is often a difficult one. As is well known, a general legacy is a legacy not of any specific thing, but of something which is to be provided out of the testator's general estate. On the other hand, a specific legacy is a gift of a particular part of the testator's property. It differs in three respects from a general legacy-namely, (1) it does not abate with pecuniary legacies; (2) if income-producing, it carries the income from the testator's death; and (3) it is liable to ademption—that is, to failure by reason of the subject-matter of the gift not being found among the testator's property at his death: (Hawkins on Wills, 2nd edit., p. 352). A legacy of stock in round numbers is not primâ facie specific, but is a general legacy, even though the testator may possess the exact amount of stock. Thus in Purse v. Snaplin (1 Atk. 415) a testator gave to his niece A.S." £5000 in the Old Annuity Stock of the South Sea Company," and then, after several intervening legacies of stocks of different kinds, the testator gave to his cousin R. P. "£5000 in the Old Annuity Stock of the South Sea Company." At the date of his will, and at his death, the testator had only £5000 in the Old South Sea Annuity Stock. Held, by Lord Hardwicke, that the legacies were not specific, and that so much of them as the Old South Sea Annuity Stock was not sufficient to satisfy ought to be made good out of the testator's general personal estate (and see Bothamley v. Sherson, 33 L. T. Rep. 150; L. Rep. 20 Eq. 308). And in Robison v. Addison (2 Beav. 515), where the testator, having fifteen and a half canal shares, bequeathed five and a half shares in the Leeds and Liverpool Canal to A., five to B., and five to C., the bequests were held not to be specific. In that, as in other cases, the judgment turned, in part, on the omission of the word " my." In Jeffreys v. Jeffreys (3 Atk. 120)

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a gift of £2702 3s. bank stock, the testator having that particular sum and no more, was held specific. But the late Mr. Vaughan Hawkins and other learned writers have doubted if that case was correctly decided. As observed by Mr. Hawkins, "the possession of the particular sum may be the motive for fixing the amount of the bequest, but yet the testator may intend to give it in the form of a general legacy." The foregoing decisions show the importance of making it clear whether a legacy is intended to be general or specific. A curious case came before Mr. Justice Sargant in Re Compton; Vaughan v. Smith (111 L. T. Rep. 215). There a testator gave to B. a specific legacy of a number of stocks and shares " as general and not as specific legacies." He gave other shares in trust for B. for life and after her death to transfer such shares to P. "as a general and not as a specific legacy." He gave other shares to other persons, omitting the words "as a general and not as a specific legacy." Held, that the legacies to B, and in trust for B. and P., although specific, must abate with the general legacies. That certainly was a difficult case, but, unless the words in inverted commas were to be rejected altogether, it is difficult to see what effect could be given to them other than that decided by the judge.

Duties on Bequests and Appointments.

THE two recent cases of Re Scott (post, p. 359) and Re Grant (post, p. 360) suggest that the draftsman of a will or an appointment should be careful to make it clear if the legatee or appointee is to have his legacy or appointed share free of every duty which may be charged on it. It is probably the intention of the testator that it should be so, so that, in default of any direction to the contrary, the legacy should be given "free of all duties of every kind," and a note placed in the margin, inquiring if this is desired. If the legacy is merely "free of legacy duty," and there is a provision for payment of the pecuniary legacies out of a mixed fund of personalty and the proceeds of sale of realty. a question at once arises, are they to bear their share of estate and succession duties chargeable on the realty? In Re Scott the bequest was "free of legacy duty," but the specific chattels bequeathed were in Paris, and the legatee by French law became liable to pay "mutation" duties. The Court of Appeal bave affirmed the decision of Mr Justice Warrington that Lady Sackville, the legatee, must bear the mutation duty, which amounted to more than £37,000, as well as the penalties payable where the duty is not paid within eight months after the testator's death. In Re Grant, a will had created a power exercisable by Mrs. Henshaw of appointing fixed sums by deed or will, such appointments to take effect from her death. Mrs. Henshaw appointed certain net sums clear of all expenses of raising the same and also appointed the residue of the funds. Apart from any special directions, appointed sums must bear their proportionate parts of the estate duty payable on the whole fund, the residue only contributing its proportion: (Austen-Cartmell on the Finance Acts, 5th edit., p. 159). Mr. Justice Sargant held that the use of the word "net" showed that it was intended that the appointee was to receive a sum of a specified amount, and that the residue must bear the duty.

Delivery of Chattels Bequeathed.

INCIDENTALLY in Re Scott an interesting question which must often arise was debated: Is it the duty of the executor to hand over the chattels to the specific legatee free from the cost of carrying them to their destination For instance, a testator dies in one place and the legatee lives in another: how is the cost of sending the chattels to their new owner to be borne? In most cases the cost is so small that it is paid out of the residue without any discussion, but, if the chattels are bulky and have to be sent to the other side of the world, the question becomes more important. It was suggested in Re Scott that it was the duty of the executor, where the chattels specifically bequeathed are abroad, to go to the place where they are, pay whatever has to be paid, and bring them back to England. The Master of the Rolls said that there was no authority for such a proposition and that the principle was exactly contrary, as, when the executor had assented to the bequests, the legacies vested in the legatees, who had the right to recover them. It would appear from this that

the executor need only assent to the bequest and that the legatee must pay for the transit of the articles or come and fetch them. Perhaps there may grow up a custom of leaving specific chattels "free of all duties and of the costs of delivering the 99 same to the legatee. The Inland Revenue authorities might regard these costs as in the nature of a legacy and charge duty on them, but that must necessarily be less than the costs, so that the specific legatee would gain by these provisions.

Interest on Appointed Sums.

Re Grant is also an authority on the interest payable on appointed sums. The donee of the power appointed most of the sums, together with interest at 4 per cent. per annum from her death. It is difficult to say if the fact that she provided for the interest at a certain rate in particular cases was in favour or against the contention that the other appointed sums should bear interest at that rate. In Key and Elphinstone's Precedents (10th edit., vol. 1, p. 90) interest at 4 per cent. is included in the appointment, but there is a note stating that interest at this rate, if not directed, will be implied. Mr. Justice Sargant held that all the appointed sums carried interest at that rate. Appointments are somewhat analogous to bequests, and it is well that the former as well as the latter should bear this rate of interest, unless the contrary is expressed or implied.




Alien Enemy-Appeal by, as one of two Co-plaintiffs in ActionSuspension of Appeal during the War.

In 1912 an action was commenced by two co-plaintiffs consisting of a German company and an English company against the defendants. The plaintiffs alleged the infringement of certain patents, which had been vested in the German company and had afterwards by assignment become vested in the English company. The decision of the court was against the plaintiffs and the action was accordingly dismissed with costs. Before the declaration of war both the German company and the English company gave notice of appeal, and the appeal came into the paper for hearing. But, having regard to the recent decision of the full Court of Appeal, the question arose as to whether it was possible for the appeal to proceed in its present form. The contention was that, the plaintiffs being actors in the court below and actors in the Court of Appeal, the action could not be brought on for hearing in its present form, but must be suspended during the war. It was, however, suggested on behalf of the defendants that there were really two causes of action; that the German company had a claim for damages during the period when the patents were vested in them and the English company had a claim for damages during the subsequent period; that the English company were trustees for the German company, and that, there being separate causes of action, the actions might have been brought separately. It was further suggested on behalf of the defendants that the German company might be struck out as plaintiffs and the action be treated as one brought by the English company for damages since they became entitled to the patents.

Held, that the appeal must be suspended during the war; that, it having been regarded as a convenient course that both claims should be combined in the same action and brought at the same time, they could not now be treated as having been brought separately; and that it was not practicable for defendants to ask that one of two co-plaintiffs should be struck out, the co-plaintiffs themselves not having made any application to that effect.

[Actien Gesellschaft für Anilin Fabrikation and Mersey Chemical Works Limited v. Levinstein Limited. Ct. of App.: Lord Cozens-Hardy, M.R, Phillimore, L,J., and Joyce, J. Feb. 10.-Counsel Colefax, K.C. and Vaughan Williams, K.C.; Thomas Terrell, K.C. and J. Hunter Gray; Austen-Cartmell. Solicitors: J. H. and J. Y. Johnson; Grundy, Kershaw, Samson, and Co.; Solicitors to the Board of Trade.] Contract-Arbitration Clause-Dispute-Alleged Misrepresentation by Defendants-Claim by Plaintiff to rescind Contract-Application to stay Action-Reference to Arbitration-Arbitration Act 1889 (52 & 53 Vict. c. 49, s. 4.

By an agreement made the 16th Feb. 1914 between the plaintiff and the defendants, the plaintiff undertook to con

struct a sewer outfall and certain sewerage works for £7922 11s. in accordance with the specification and the general conditions thereunto annexed, and by clause 129 of the specification it was provided: "If at any time any question, dispute, or difference shall arise between the council or their engineer and the contractor upon or in relation to or in connection with the contract the matter shail be referred to and determined by the engineer or failing him by a person

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to be mutually agreed upon, or, failing agreement, to some person appointed by the president for the time being of the Institution of Civil Engineers. Work under the contract shall continue during the arbitration proceedings. The award of the arbitrator shall be final and binding upon the parties. . Disputes having arisen between the part es in the progress of the work, the plaintiff on the 10th July wrote a letter repudiating the contract in view of the serious misrepresentations whereby he alleged that he was induced to enter into the contract, and on the 18th July 1914 he issued a writ claiming damages for fraudulent misrepresentation and an injunction to restrain the defendants from using or in any way dealing with the plaintiff's plant and material, and by a subsequent amendment he claimed a declaration that the contract was void and that it be rescinded. On the 27th July 1914 the defendants took out summons to stay all further proceedings in the action, pursuant to sect. 4 of the Arbitration Act 1889, on the ground that it had been agreed to refer to arbitration the matter in respect of which the action was commenced. On the 15th Dec. 1914 the master made an order in terms of the summons, the defendants consenting that the dispute sh uld be referred to a referee to be agreed, or in default nominated by the president of the Institution of Civil Engineers. On the 15th Jan. 1915 Coleridge, J. made an order dismissing the plaintiff's appeal The plaintiff now appealed by leave to the Court of Appeal.


Held, that, the plaintiff claiming that he was induced to enter into the contract by fraud and that the contract was not binding upon him, the action was not referable to arbitration at all within the scope of clause 129 of the specification. Appeal allowed.

[Monro v. Bognor Urban District Council. Ct. of App.: Pickford and Bankes, L.JJ. Feb. 12.-Counsel: for the appellant, Holman Gregory, K C. and Hinde; for the respondents, Schiller, K.C. and Richardson. Solicitors: for the appellant, Walters and Co.; for the respondents, Haslam and Sanders, agents for Joseph Jubb, Bognor.]

Employer and Workman-Injury by Accident-CompensationAgreement to pay - Redemption of weekly Payment by lump Sum-Agreement for-Death of Workman before Registration of Right of legal personal Representative to levy Execution-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), s. 1; sched. 2, s. 9.

Personal injury was caused to a workman by accident arising out of and in the course of his employment, in respect of which compensation under the Workmen's Compensation Act 1906 was admittedly payalle to him by his employers. In July 1913 the workman was employed by the respondents, when he was injured by the accident referred to, and ultimately lost his right eye. He was paid compensation from the date of the accident at the rate of 12s. 4d. a week up to May 1914, when it was reduced to 5s. 3d. a week. On the 6th June 1914 an agreement in writing was duly entered into between the workman and the respondents whereby the workman agreed to accept and the respondents agreed to pay in settlement of all claims under the Act a lump sum of £85. On the 12th June the respondents' agents sent a memorandum of that agreement to the registrar of the County Court to be recorded. The registrar sent out the usual notices to the parties as provided by the Act, and on the 22nd June, no notice of objection having been received, the memorandum of the agreement was duly recorded. Meanwhile, on the 18th June, the workman died intestate. Admittedly the cause of death was altogether outside the accident. At the date of the recording of the memorandum of the agreement neither the registrar nor the respondents knew of the workman's death. On the 3rd July letters of administration of the estate of the workman were granted to a married daughter. On the 7th Aug., on an ex parte application to the registrar, supported by affidavit, leave was granted to substitute the name of the daughter as applicant for that of the workman. 25th Aug. an application was made to the registrar for leave to issue execution. The matter was referred to the County Court judge, who gave leave to issue execution. The respondents appealed. The question argued on the appeal was as to the right of the legal personal representative of the deceased workman to levy execution for the sum mentioned as payable to him by virtue of a duly recorded agreement for redemption. Held, that if the workman had died on the 23rd June 1914, the day after the memorandum of the agreement was recorded,

On the

the order made by the County Court judge would undoubtedly have been perfectly right; that the only difficulty was due to the fact that the death occurred after the 12th June, on which day the memorandum was sent to the registrar, but before the seven days specified in sect. 9 (a) of the first schedule to the Workmen's Compensation Act 1906 had expired; but that the workman had under the agreement a right which passed to and vested in his administratrix just as much as if his death had occurred on the 23rd June. Appeal dismissed

[Price v. Westminster Brymbo Coal and Coke Company.
Ct. of App.: Lord Cozens-Hardy, M.R, Swinfen Eady and
Phillimore, L.JJ. Jan. 28 and Feb. 9.-Counsel: Holman
Gregory, K.C. and Adshead Elliott; Ellis Griffith, K C. and
G. C. Rees. Solicitors: Rawle, Johnstone, and Co., agents for
Peice and Ellis, Wigan; Nowell, Evans, and Turner, agents for
W. Wynn Evans, Wrexham.]

Ship-Dock-Contract for Use of-Unfitness of Dock Provisions—
Negligence-Damage to Ship-Exemption Clause in general
Words-Liability of Dock Owner.

Plaintiffe' appeal from a judgment of Bailhache, J. in the Commercial list (reported 111 L. T. Rep. 41; (1914) 2 K. B. 788). The plaintiffs, the owners of the steamship M., claimed against the defendants, the owners of a graving dock at Hull, damages for the defendants' alleged breach of contract in and about the dry-docking of the M. The M. suffered damage by reason of the unevenness of the block caps on which she rested, which were provided by the defendants for reward, and the unevenness was alleged to be due to the defendants' want of


There were no statutory provisions relating to the defendants' rights and liabilities as dry-dock owners. The M. required painting, and the defendants let the dock for that purpose and did not do the painting themselves. The M. entered the dock under a contract with the defendants, by virtue of which dock dues were charged, and there were also charges for pumping and the use of blocks, shores, &c., which the defendante contracted to supply, the blocks being of the usual kind. Clause 9 of the defendants' regulations were as follows: "The owner of a vessel using the graving dock must do so at his own risk, it being hereby expressly provided that the company are not to be responsible for any accident or damage to a vessel going into or out of or whilst in the graving dock, whatever may be the nature of such accident or damage or howsoever arising." Bailhache, J. held that the prima facie duty of the defendants was only to take care that the block caps were reasonably fit, and that the exemption clause, although expressed in general words, operated to exempt them from liability for the damage resul ing from the unfitness. The plaintiffs appealed. Counsel for the defendants were not called upon to argue on the hearing of the appeal.

Held, that, even assuming that the duty of the defendants was to exercise a very high degree of skill and care, the words of clause 9 were wide enough to protect them from liability. Appeal dismissed.

[Pyman Steamship Company Limited v. Hull and Barnsley Railway Company, Ct. of App.: Lord Reading, C.J., Swinfen Eady, L.J., and Bray, J. Feb. 16.-Counsel for the plaintiffs, Adair Roche, K.C. and Reburn; for the defendants, Maurice Hill, K.C., Moss- Blundell, and Burt. Solicitors: Botterell and Roche, for Botterell, Roche, and Temperley, West Hartlepool; Davenport, Cunliffe, and Blake, for Moss, Lowe, and Co., Hull 1 Will-Bequest of Chattels in France "free of legacy Duty"Meaning of "legacy Duty"-Chattels subject to French mutation Duty-Whether French Duty borne by Legatee or by general Estate.


A testator, domiciled in England, after appointing executors, bequeathed certain chattels situated in Paris to S. W. for her separate use 'free of legacy duty." By the French law a duty called droits de mutation par décès is payable on the transmission of property at death. This duty is imposed by French law upon the legatee, and not on the executors, and the authorities could recover it from the legatee in personam. S. W. contended that the executors ought to pay this duty on two grounds: (1) Because the words "free of legacy duty" ought to be construed as including all duties imposed in respect of the legacy or upon the legatee by whatever authority and in whatever country; and (2) because the executors were bound, as part of their duties in administering the estate, to obtain the chattels specifically bequeathed and deliver them to the legatee and that therefore the payment of the French duty, which was necessary to enable them to do that, was an expense of adminis tration which should be borne by the testator's residuary estate. It was decided by Warrington, J. (110 L. T. Rep. 809) (1) on the question of construction, that the expression "legacy duty was a technical legal term proper for describing the legacy duty imposed by the Legacy Duty Act 1796 and could not be construed as including duties levied abroad; and (2) that as the French duty was by the law of France imposed upon the

legatee, and not upon the executors, it was not their duty to pay it, and its payment would not be an expense of administration, but that the duty must be borne by the legatee. S. W. appealed.

Held, that inasmuch as a gift "free of legacy duty" had in previous cases been decided not to mean free of other duties such as succession duty or estate duty, à fortiori it did not mean free of mutation duty payable according to French law; and that there was nothing in the will to give to the words any other than their ordinary meaning. Appeal dismissed.

[Re Scot; Scott v. Scott. Ct. of App.: Lord Cozens-Hardy, MR., Phillimore, L.J., and Joyce, J. Feb. 10 and 11.Counsel: Younger, K.C., Maugham, K.C., and Dighton Pollock; Sir Robert Finlay, K.C., Jenkins K.C., and MacSwinney; Peterson, K.C. and A. J. Spencer for F. H. L. Errington; Gurdon. Solicitors: Meynell and Pemberton; Capron and Co.]

HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Election-Settlements-Will-Spinsters-Restraint upon Anticipation-Powers of Revocation and Resettlement.

Under the trusts of a settlement made in 1872 on the marriage of H. and C., a joint power of appointment was given to H. and C. among their children and their issue born during the lives of H. and Č., subject to hotchpot, and in default a power of appointment was given to the survivor, and in default of appointment the settled property was given in trust for all the children of the marriage in equal shares. In 1892 a supplementary settlement was made, indorsed on that of 1872, of There were additional funds to be held on the same trusts.

three children of the marriage, all born prior to 1892. The wife, C., died in 1896 without baving joined with H. in any joint power of appointment, and shortly after her death H., the husband, in 1896 made his will app inting the property under his marriage settlement of 1872 over which he had power of disposition among his issue upon the trusts declared of his residuary trust funds, such trusts being as to the income of one-third for each of his daughters for life without power of anticipation, and after their death in trust shortly for persons who were not objects of the power of appointment given to him by the settlement of 1872, with a proviso that if any of his daughters should marry without the consent of his trustees they should have power to discontinue the payment of the income to such daughter and should pay the same to his other daughters, and a fur her proviso that his trustees should have power at their discretion on the marriage of any of his daughters to revoke the trusts of the income of one-third payable to such daughter and resettle the same upon trusts for the daughter, her husband, and children. D., one of the daughters, married in 1912, and H. then made an appointment in her favour which was held to adeem the appointment made to her by his will. H. died in 1914, and his two unmarried daughters took out this summons. It was decided by the court that the appointment purported to be made by H. by his will was applicable, so far as valid, to both the 1872 and 1892 settlements, but, in the case of the funds settled by the 1872 settlement, was invalid so far as he attempted to restrain his daughters from anticipating their income and also as to all interests other than the immediate life interests to the daughters, and, in the case of the funds settled by the 1892 settlement, as to all interests other than the life interests of the daughters whether immediate or contingent. This was an originating summons to determine (inter alia) whether the two unmarried daughters were bound to elect whether they would take under the will or under the settlement of 1892.

Held, that the imposition of the future restraint on anticipation was insufficient to prevent this doctrine of election from applying; and that the two spinster daughters were put to their election.

[Re Hargrove; Hargrove v. Pain. Ch. Div. Astbury, J. Jan. 29 and Feb 3-Counsel J. H. Cunliffe, KC and J. E. Harman; N. Micklem, K.C and A. St. John Clerke; C. P. Sanger; T. H. Attwater; Dighton Pollock. Solicitors: Withers, Bensons, Birkett, and Davies; J. Clement Brown, for R. C. and S. Burrows, Cambridge.]

Practice-Costs-Decision reversed in House of Lords-Interest.

An order was made on the 2nd Dec. 1912 in this action by Joyce, J., who gave judgment in favour of the plaintiff, and directed that the defendants should pay to the plaintiff his costs, such costs to be taxed. The decision of Joyce, J. was reversed in the Court of Appeal on the 14th March 1913 and the action was dismissed, the plaintiff being ordered to pay to the defendants their costs of the appeal and of the action in the court below. On appeal to the House of Lords the decision of Joyce, J. was by an order dated the 11th Dec. 19 4 restored, and the respondents were ordered to pay to the appellant the costs incurred by him in the courts below, and also to repay to him the sum paid by him for the costs of the respondents

in the courts below, and also the costs incurred by him in respect of the appeal to the House of Lords, and it was further ordered that the cause be remitted back to the Chancery Division of the High Court of Justice" to do therein as shall be just and consistent with this judgment." This was a motion by the plaintiff for an order that the judgment of the House of Lord be made an order of the court and for consequential directions, and the plaintiff by his notice of motion asked that the defendants be ordered to pay to him (inter alia) interest upon his costs of the appeal to the Court of Appeal as from the 14th March 1913. In consequence of the appeal by the defendants from the judgment of Joyce, J. to the Court of Appeal and the subsequent reversal thereof by the Court of Appeal, the taxation directed by the judgment of Joyce, J. had not been proceeded with, and no order had been made for taxation of the plaintiff's costs of the appeal. The defendants contended that no interest was payable on the plaintiff's costs of the appeal to the Court of Appeal prior to the judgment of the House of Lords on the 11th Dec. 1914, inasmuch as no order had been made before that date in respect of those particular costs.

Held, that, having regard to the case of Macbeth and Co. Limited v. Maritime Insurance Company Limited (1908, 24 Times L. Rep. 559) referred to in the note on p. 2301 of the Annual Practice 1915, the defendants must (inter alia) pay interest at the rate of 4 per cent. from the date of the judgment of the Court of Appeal on the plaintiff's costs of the appeal to the Court of Appeal (when taxed).

[Stickney v. Keeble and others. Ch. Div.: Joyce, J. Feb. 9.Counsel: P. F. Wheeler; W. R. Sheldon. Solicitors: Steavenson and Couldwell, for Stickney and Barton, Hull; Walter Maskell and Nisbet, for Cranfield and Wheeler, St. Ives, Hunts.] Specific Performance-Contract to sell Land-Vendor's Agent selling riparian Rights without Authority from Vendor Auctioneer's Statement not heard by Purchaser-Attempted Rescission of Contract under Sale Conditions-Contract void. Action by a purchaser claiming specific performance of a contract to sell land. The land consisted of meadow lands on which stood a boathouse abutting on a river. The particulare contained parcels describing and identifying the land, but neither the particulars nor the contract, which was signed by the solici tor as agent, referred to riparian rights. The evidence showed that the vendor was uncertain as to whether he possessed certain riparian rights (that is, the right to the soil to the middle of the river), and he had instructed the solicitor to sell the land without these riparian rights. The auctioneer was instructed and did before the sale announce that the land was sold without these rights, but the plaintiff, who was the nominee of the actual purchaser at the sale, had not heard the statement. He first became aware that these rights were excluded when the draft conveyance was drawn. The conditions of sale provided (inter alia) that if the purchaser insisted on any objection as to conveyance which the vendor was unable or unwilling to satisfy, the vendor might annul the sale; and they also provided that any misdescription should not annul the sale, but should be the subject of compensation. Upon the purchaser taking the objection that the draft conveyance did not include the riparian rights, the vendor had returned the deposit and claimed to annul the sale under the first abovementioned condition.

Held, that the contract entered into by the agent was not such as was authorised by the vendor; and hence as there was no contract, and specific performance could not be granted. [Hammond v. Chubb. Ch. Div. Neville, J. Feb. 9.Counsel: Peterson, K.C. and Draper; Jenkins, K.C. and Rashleigh. So'icitors: Taylor, Hoare, and Jelf; Long and Gardiner.]


Will-Devise upon Trust for Tenant for Life with Remainder to Children attaining Twenty one Years or marrying-Trust of " as well the Income as the Capital"-Death of Tenant for LifeInfants in Remainder-Rent till Interests vest-Who entitled.

the income of the property as from the day of the death of the tenant for life, and in the result the eldest child was not entitled to the rents of the whole of the property for any period, but that all six were entitled to one sixth of the rents from the date of the death of the tenant for life as and when they became entitled to their share of the corpus.

[Re Stevens; Stevens v. Stevens. Ch. Div. Sargant, J. Feb. 2 and 11.-Counsel: T. K. Crossfield; J. L. Whitaker; W. H. Salter; J. F. Carr. Solicitors: Frank W. Morris; G. M. Folkard.]

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A testator by his will, dated the 19th Jan. 1904, devised certain real estate to trustees upon trust to permit his daughter to receive the income during her life, and from and after her decease then "as well the income as the capital thereof" upon trust as she might by will appoint, and in default of appointment in trust for her children who being sons attained the age of twenty-one years, or being daughters attained that age or married, in equal shares. The testator died in 1904. His daughter died on the 25th Dec. 1913 leav ng six children, all minors and unmarried, the eldest of whom attained twenty-one years on the 14th Dec. 1914. This summons was taken out raising the question who was entitled to the rents between the death of the tenant for life and the date of the eldest child attaining its majority.

Held, that the words "as well the income as the capital" expressed an intention on the part of the testator to dispose of

By his will Sir L. J., who died in 1852, gave to his daughter L. J. M. J. a power of appointment by will or deed over funds of a limited amount to take effect on her death. She married and had five children, and died in 1913. By many separate deeds she appointed specific sums to L. B. G. and A., and by another deed she appointed a specific sum or other the residue of the funds to L. The first respondents were assignees of the sums appointed to L. other than the specific sum or other the residue of the funds given to him which were assigned to two other respondents T. and D. All the sums appointed to B were subject to a settlement of which the trustees were parties to this summons. There were other assignees of other the specific appointed sums. In all the appointments except one of those to B. and the one giving the residue to L. the appointment was made of "the net sum of" the specified amount "clear of all costs and expenses of raising the same." In all the appointments except those made to L. and one of those made to B. the principal sum was appointed "together with interest thereon at 4 per cent. per annum commencing at the date of the death of " the appointor. The summons raised the following questions: (1) How and in what proportions, as between the several sums appointed and to be raised on her death, the estate duty which became payable in that event was to be borne ; and (2) whether the sums appointed, as to which no express provision was made in the appointment thereof for the same respectively carrying interest, bore interest from the date of the appointor's death, or from some other and what date, and at what rate. It was contended on the one hand, that the who'e of the estate duty was thrown on the residue appointed to L. as the word "net" was equivalent to " clear." "On the other hand, it was contended that although the word "net," if standing alone, might have cleared the appointed funds from duty, the words "clear of all costs and expenses" restricted and explained the word "net," and showed that only the "costs and expenses' were not to be deducted, and that therefore duty should be borne by the funds rateably. Held, that the words "clear of all costs and expenses not cut down or restrict the meaning of the word "net," and that accordingly the residue must bear all the duty.

" did

[Re Grant; Nevinson v. United Kingdom Temperance and General Provident Institution. Ch. Div.: Sargant, J. Feb. 11. -Counsel: R. H. Hodge; W. N. Spence; R. G. Nicholson Combe; E. F. Buckley; A. M. Latter. Solicitors: Tathams and Pym; Francis Howse and Eve; Nicholl, Manisty, and Co.; Beaumont and Sons; Cameron, Kemm, and Co.]

KING'S BENCH DIVISION. Bill of Sa'e-Assignment-Varying Terms-Defeasance-Registra tion-Bills of Sale Act 1878 (41 & 42 Vict. c. 31), s. 10, sub-s 3. By a bill of sale of the 15th Aug. 1913 household furniture was assigned to M. and Co. for securing the sum of £700 with interest at the rate of £60 per cent. per annum. Subsequently on the 7th March 1914 this security was transferred to P, and by a second indenture of even date with this transfer it was agreed between P. and the grantor of the bill of sale that (inter alia) the interest thereon should in future be at the rate of 27 per cent. per annum, and not 60, as fixed in the original bill of sale. The original bill of sale was, within a day or two of being signed, filed at the Bills of Sales Registry; but the assignment and the deed contemporaneous with it were refused registration on the ground that the original bill of sale was still in existence. On the goods contained in the bill of sale being seized by an execution creditor the goods were claimed by the transferee of the bill of sale. An inter pleader issue was tried in the West London (Brompton County Court. Judgment was given in favour of the execution creditor on the ground that the terms contained in the second deed of the 7th March materially altered the terms of the original bill of sale and constituted a def asance thereof, and that the original bill of sale was void. Against this decision the claimant appealed.

Held (affirming the decision of the County Court judge), that the second deed varying the terms of the original bill of

sale was a defeasance within sect. 10, sub-sect. 3, of the Bills of Sale Act 1878, and should have been contained in the body of the original bill of sale or be written on the same paper or parchment before registration. Semble, that the difficulty of registration arising from the fact that only a defeasance anterior or contemporaneous with a bill of sale can be registered would require subsequent variations to be embodied in a new bill of sale.

[Cornell v. May and another; Pike, Claimant. K. B. Div.: Ridley and Atkin, JJ. Feb. 9.-Counsel: C. W. Lilley; Rigby Swift, K.C. and Horace Fenton. Solicitors: Robert A Kendrick; Ellis, Strange, and Co.]

Contract-Breach of Promise to marry-Action against Executor of Promisor-Renunciation by Promisee of Employment in Contemplation of Marriage not special Damage flowing from treach -Action not maintainable.


A. W. T. promised in June or July 1909 and again on the 6th June 1910 to marry the plaintiff. On the 6th June 1910, in contemplation of marriage with the said A. W. T., the plaintiff gave up the business of milliner, which was considerable one and which had taken several years to build up. No marriage took place, and A. W. T. died on the 12th Jan. 1914. Before his death the plaintiff sued him for damages for breach of promise to marry; the pleadings not being closed at his death, the action was continued against G. T., his executor, but the claim was confined to special damage alleged to have been caused by the alleged breach of promise to marry. The jury found that the promises set out above had been made, and that the plaintiff had suffered special damage amounting to £350. The case was adjourned for further consideration upon the following points (1) Does an action lie against executors to recover special damage caused by the breach during the lifetime of the deceased of a promise to marry the plaintiff; (2) if so, was the damage whi h the plaintiff alleged she suffered special damage for that purpose; (3) was there any evidence of such damage at all? The following authorities were referred to: Chamberlain v. Williamson, 2 M. & S. 408; Finlay v. Chirney, 58 L. T. Rep. 664; 20 Q. B. Div. 494; Phillips v. Homfray, 49 L. T. Rep. 5; 24 Ch. Div. 439; Peek v. Gurney, L. Rep. 6 H. L. 377; Hambley v. Trott Cowp. 371; Re Duncan, (1899) 1 Ch. 387).

Held, that there was sufficient evidence of special damage to justify leaving the question to the jury. That a contract by a man to marry is not a contract of a commercial character; whatever additional term may be added to it, it is not a contract the consideration for which is the giving up of a business or employment by the woman. A contract to marry must be founded on mutual promises. The promise by the plaintiff to marry the deceased was necessarily an essential term of the contract. Notwithstanding the arrangement or agreement under which the plaintiff gave up her millinery business, there was still in reality and in substance one contract and one contract only-namely, a mutual con ract of marriage. It was impossible to treat the parties as having contemplated that they were entering into a commercial or business transaction when they made this arrangement. The marriage contract remained a marriage contract, and the personal obligations were still personal oligations and did not become commercial undertakings. And even if there were two contracts and if the contract to maintain the plaintiff must be regarded as a business transaction affecting the assets in the executors' hands, it is on that con ract alone that they can be responsible, an if any action could be brought to recover damages against the executors it would be upon that contract. A pecuniary loss suffered by a woman through giving up an employment or business in contemplation of marriage or any similar loss sustained in such circumstances cannot be properly treated as special damage flowing from the breach of the promise to marry. The measure of damage must be the loss incurred through the deceased's refusal (excluding all exemplary or punitive damages), which has no relation to the value of the business. The loss of the business was not caused by and did not flow from the breach of the promise to marry at all. Judgment for the defendant.

[Quirk v. Thomas. K. B. Div.: Lush, J. Feb. 15.Counsel: Waugh, K.C. and Crawford; Lailey, K C. and Watts. Solicitors: Cohen and Cohen; Eland, Nettleship, and Butt.] Contract Building Ship-Delivery within specified TimeExceptions-Delay-Force majeure-Vis major-Coal Strike -Indirect Effect of-Breakdown of Machinery.

By an agreement in writing dated the 21st Feb. 1912 the defendants agreed to build a steamer for the plaintiffs and deliver her on or before the 28th Feb. 19 3. The agreement contained (inter alia) the following clause: "If the said steamer is not delivered entirely ready to purchaser at the above mentioned time, the builders hereby agree to pay to the

purchaser for liquidated damages, and not by way of penalty, the sum of £10 sterling for each day of delay and in reduction of the prices stipulated in this contract, being excepted only the cause of force majeure and (or) strikes of workmen of the building yard where the vessel is being built, or the workshops where the machinery is being made, or at the works where steel is being manufactured for the steamer, or any works of any sub contractor." The steamer was not delivered till the 22nd Aug. 1913, and in order to get delivery the plaintiff paid under protest the full price without any deduction for the delay. Owing to the coal strike of 1912 there was a delay of seventy days and a delay of seven days on account of a breakdown of machinery and a shipwrights' strike. There was also some delay due to bad weather, to the absence of men attending football matches, and attending the funeral of their manager. The plaintiff claimed as damages or money had and received by the defendants to his use £1750, or £10 per day for every day's delay in delivery after the 28th Feb. 1913. It was contended on behalf of the defendants that the delay in delivery was due to causes within the exceptions clause in the contract, and that the words force majeure had a more extensive meaning than "act of God" or vis major.

Held, that the words force majeure covered the delay occasioned by the consequential results of the coal strike and also breakdown of machinery, but not delay caused by bad weather, football matches, and funeral.

[Matsoukis v. Priestman and Co. K. B Div. Com. Ct. : Bailhache, J. Feb. 2 and 3.-Counsel: Hudson, K.C. and Dunlop; Roche, K.C. and Wood. Solicitors: Gibbs, White, and Co., for E. R. Payne, Cardiff; Downing, Handcock, Middleton, and Lewis, for Bolam, Middleton, and Co., Sunderland.]

Minimum Wage-Joint District Board-Application for Variation of minimum Wage-Right of Applicants to have their Application considered by Board-Coal Mines (Minimum Wage) Act 1912, s. 3 (2) (b).

Rule for a mandamus to Judge Amphlett, the chairman of the joint district board for the district of West Yorkshire, directing him to hear and determine an application by the West Yorkshire Thin Seam Owners' Association (the applicants for the rule) under the Coal Mines (Minimum Wage Act 1912, in respect of the subdivision of the district of West Yorkshire formed under the Coal Mines (Minimum Wage) Act 1912, and for the readjustment of the minimum wage for the district as fixed by the joint district board. By sect. 2 (1) of the Act minimum rates of wages and district rules for the purposes of the Act are to be settled for each of the districts named in the schedule (of which West Yorkshire was one) by a body of persons recognised by the Board of Trade as the joint district board for that district By the Act the chairman was to be a person appointed by agreement between the representatives of the workmen and employers, or in default by the Board of Trade, and he had a casting vote in case of equality of votes b.tween the two classes of members. By an award made by the chairman in June 1912 the minimum rates and district rules were settled. The chairman had only to decide if the board did not agree on any matter. An application had been made to the joint district board for the revision of the minimum rate of wage, and in March 1914, when the board were sitting to consider this alteration, the secretary of the West Yorkshire Thin Seam Owners' Association wrote a letter to the chairman of the board, a copy of which was sent to the secretaries of the workmen's and employers' representatives on the board, asking that their representatives might be heard upon the question of the alteration of the minimum wage. The application was made under sect. 3 (2) of the Act. In July, when the board met, with Judge Amphlett in the chair, the letters of the applicants were laid before the board, and the questions involved therein were being discussed by the bard. The board having failed to agree, the matter was left to be determined by the chairman, and the chairman published his award, which did not deal with the matter of the application, and the chairman declined to deal with the application. The above rule was then obtained.

Held (Ridley, J. dissenting), that the applicants were entitled to present their application and have it considered by the board, but they were not entitled to say that they ought to be heard personally or to determine the mode in which the board should consider the application. Rule absolute.

[Rex v Judge Amphlett. K B. Div.: Ridley, Bray, and Atkin, JJ. Feb. 19.-Counsel: Solicitor-General and Branson; Hewart, K.C. and H. T. Waddy; Henn Collins; Mcmorran, K C. and A. M. Latter. Solicitors: Sol citor to the Board of Trade; Corbin, Greener, and Cook, for Raley and Sons, Barnsley; Vincent and Vincent, for Day and Yewdll, Leeds; Simpson, Thomas, and Clark, for Simpson, Thomas, and Curtis, Leeds.]

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