« EelmineJätka »
THE LAW TIMES.
Dec. 23, 1871.]
Lord Ellenborough, C.J. disposed of the case by this short opinion : landlord. The tenant could always by a replevin test the act of distraint
The writer adds :
variance with two reported decisions of the Supreme Court of Penndelivered the judgment of the Supreme Court in Quinn v. Wallace.
sylvania, and the decision of the Supreme Court of the United States, but, language of the statute of Will. & M.,” says Bayley,“ is, that the person in express language, denies the authority of the English decisions : Lear v. distraining may sell the goods, not that he must sell. If so, then does he not Elmunds, Lingham v. Warren, and Hudd v. Ravener. In this last case, stand as he did at common law, before the statutes, for it is not averred the very matter of a second distress is presented in the pleadings, and that the goods were sold ? It was the duty of the defendant in his plea to Hutchings v. Chambers referred to in its support. It was sustained and set out the whole of his case. The facts were within his knowledge, and
affirmed. they may fairly be presumed not to have existed, inasmuch as they are not The defendant's counsel quoted Lingham v. Warren (1 Brod. & Bing. 36)
THE RESERVATION OF RIGHTS AGAINST SURETIES. and Hudd v. Ravener (Ib. 682.)
We last week discussed the question of time as an element in Lear v. Edmonds, as the point was the same, was relied upon in both these cases as conclusive of the question, and so the court unanimously
suretyship, with reference to the recent case of Petty v. Cooke. held. The first case was in the King's Bench, and the second and third in
Another case of some interest on the same subject is Bateson v. the Common Pleas, and of course before different Judges.
Gosling (25 L. T. Rep. N. S. 570), in which a debtor executed a Upon this array of consentaneous authority, may it not be confidently composition deed, to which the plaintiff had assented. By that affirmed that under the only issue found in this case the avowant was deed the debtor assigned all his property to trustees upon trust to entitled to a verdict, unless the tenant had shown that the whole rent had pay the creditors rateably so far as the property realised might been satisfied ? And this was the sum of the charge to the jury. And on this ground, no doubt, they rendered the verdict for the avowant.
extend. The creditors gave the debtor what was in terms an The judgment upon this verdict was, however, reversed. It is necessary,
absolute release, followed, however, by a proviso in these words : therefore, to state the grounds of this reversal.
“ Provided always that any creditor who has any specific lien or The opinion of the court was given by Judge Kennedy, and, like most of security for his demand, or any part thereof, or to the payment his writings, very long, abounding in references, and confident in conclusions. It requires a close and patient scrutiny.
whereof any person or persons is or are liable as surety or sureties The opinion assumes, not to say asserts, that there were two sales of the
from said assignor, may execute these presents without prejudice goods distrained. There was nothing in the evidence to authorise such a
to the same security, or to the claim against any surety or suggestion. But as there is no force, in my apprehension, in the assump
sureties, and with the consent of the said trustees or trustee for tion detrimental to the rights claimed for the avowant, I see no reason for the time being of these presents, may convert the same into any further remark on this topic.
money, or make any allowance out of his demand for the same to The English decisions upon demurrers are all disposed of by Judge Kennedy in a breath, as made without careful investigation; indeed, it is
the satisfaction of the trustees.” It was held that the effect of the added, from a misconception of the statute of 3 Will. & M., sess. 1, c. 502,
deed was not to extinguish the debt, and that the reservation of from which it is said, “Our Act of Assembly is a mere copy."
remedies against the sureties was valid. That there is a substantial, and almost a verbal agreement, between the The first
principle of suretyship derived from the Roman law is British statute and our Act of Assembly, cannot be disputed. The words that a surety is answerable for the whole debt-whether there is of the British statute are," where any goods or chattels shall be distrained for any rent reserved and due upon any demise, lease, or contract whatso
one surety or several, each is individually liable for the whole ever, and the tenant or owner of the goods so distrained shall not, after
debt, and co-cautioners were given a remedy one against the five days next after such distress taken and notice thereof (with the cause of other by means, first, of a compulsory contribution, and, secondly, such taking), left at the chief-mansion, house, or other most notorious place by a subrogation of rights. The modes of relief which the law on the premises, charged with the rent distrained for, replevy the same, allows to a surety are, first, by payment of the debt by the principal with sufficient security to be given to the sheriff according to law, that then in such case, after such distress and notice as aforesaid, and expira
debtor; secondly, by time being given to the prinoipal debtor to tion of the said five days, the person distraining shall and may, with the
the prejudice of the surety; and thirdly, by the release or dissheriff or under sheriff of the county, or with the constable of the hundred, charge of the principal debtor equivalent to payment. This third parish or place where such distress shall be taken (who are hereby required method was the one contended for in Bateson v. Gosling, and to be aiding and assisting therein), cause the goods and chattels so dis- it was boldly argued in the words of a question pat by Mr. trained to be appraised by two sworn appraisers; and after such appraise. ment shall and may lawfully sell the goods and chattels so distrained for
Justice Brett, that supposing the deed to expressly and clearly the best price that can be gotten for the same, towards satisfaction of the
give an absolute release to the assignor, but at the same time rent for which the said goods and chattels shali be distrained,” &c.
expressly reserve rights against sureties, that reservation is null Our Act of Assembly of March 21, 1772, is manifestly taken from this
and void. statute of 3 Will. & M. e. 1, c. 5.
Mr. Justice Willes delivered a lucid judgment, which exhausts The important words in each are these : “ Then and in such case, after
the subject, and in the course of it he referred to the note to Lewis such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may, with the sheriff, under-sheriff, or any
v. Jones (4 B. & C. 515), where the principles are fully stated. That constable, &c., cause the goods and chattels so distrained, to be appraised, note is supposed to have been written by Mr. Justice Holroyd, but &c. And after such appraisement, shall or may, after six days' public in a marginal note to a copy in our hands it is stated that it was Dotice, lawfully sell the goods and chattels so distrained, for the best price written by Mr. Cresswell. The learned writer divides the cases that can be gotten for the same," &c.
where the creditor cannot retain a remedy against the surety, into Now it will at once be perceived that the controlling words, in each of
two classes, first, where the agreement with the principal may be these statutes are all but identical, to wit, by the statute of Will. & M., " after the expiration of the said five days, the person distraining, shall
considered as a fraud upon the surety, by altering his situation or and may, with the sheriff, &c., where such distress shall be taken, &c., increasing his risk; and, secondly, where, allowing the creditor to muse the goods and chattels, so distrained to be appraised, &c."
recover against the surety would operate as a fraud upon the * And after such appraisement, shall or may, after six days' public notice, principal, or anyone joining with him in paying or securing the lawfully sell the goods and chattels so distrained,” is the language of the Act of Assembly of 1772. The critical words differ in this only, the
composition money, inasmuch as it would give the surety a right English statute providing first for appraisement of goods distrained says,
to proceed against the principal for that debt from which the the person distraining "shall and may,” with the sheriff, &c., cause the creditor had agreed to discharge him. Here we seem to get at the goods and chattels so distrained, to be appraised. The Act of As. kernel of the whole matter as to the reservation of rights against sembly uses the same language as to the appraisement, i.e., “shall and sureties. If a principal debtor obtains a release of his debts it may. But when speaking of the sale, the English statute says, “after such ap.
would be plainly inequitable for a surety to remain liable, inasmuch praisement, shall and may lawfully sell.” Our Act of Assembly reads,
as the surety might then sue the principal debtor, who, conseshall or may lawfully sell."
quently, would not have been released from his debt, but would The variation is in the copulative and disjunctive conjunctions. If, simply have had the direction of his liability shifted. In order, theretherefore, there is any difference in the enacting force of these two
fore, to make reservations against sureties valid, it was laid down in provisions-i.e., may and shall sell, and may or shall sell, the degree of intensity must be claimed for the phraseology of the English statute. But
Ex parte Glendinning (Buck, 517), that a creditor entering in my apprehension, there is no difference in real meaning between the
into a composition with a debtor and wishing to retain his two.
remedy against a surety, must cause the reservation to appear But taken in connection with the word lawfully, which occurs in each, upon the face of the agreement. And it was early recognised and qualifies each, the provision as to selling the distrained goods is simply that where the remedy against the surety is reserved in the agreepermissive and not mandatory.
ment for composition, a recovery against the surety cannot And this was the opinion expressed by the Judges of the King's Bench, as is pointedly declared by Bayley, J., in Lear v. Edmunds (1 B. & Ald.
operate as fraud upon the principal; for that if a demand out of 158-9).
that recovery arises against him, it is with his own consent: It will be observed that Judge Kennedy, in censuring the construc, (E.c parte Giffard, 6 Ves. jun. 809.). The principles established tion of the English statute by the English Judges, leaves out the word thus early have been carefully sustained. Å suggestion that the “ lawfully," which, I have already observed, seems to me to render the
surety must assent to the transaction was disposed of by meaning simply permissive, and not mandatory. The statute of William and Mary is a remedial law, and obviously
Baron Parke in Kearsley v. Cole (16 M. & W. 628), and his designed to subserve the interest of the landlord in particolar. By the old
view, after some doubt, was followed in Price v. Parker (24 L. J. law of distresses the goods distrained were simply a pledge. They could 130, Q. B.). Dot be sold by the landlord. The new law authorised the pledge to be sold We then come to those cases in which a deed operates so comby the landlord. He might lawfully sell. Giving the privilege of selling was all that he could desire. And as the overplus, if any, was to be
pletely to extinguish the debt that there can be no reservation handed over to the tenant, he had no right to complain. But whatever
against sureties. Mr. Justice Willes cites Cowper v. Green may be the rationale of the change, the use of the word " lawfully," I do (7 M. & W. 633), as happily illustrating the effect of a release. not doubt, was intended to allow, and not to compel the sale by the There the creditors released a debtor, and the debtor afterwards
insisted on recovering from one of his creditors a security which was in his hands, and he even promised the creditor to pay the residue of his demand if he would give up the security. The creditor accordingly gave up the security, and as the debtor failed vo perform his promise, the creditor sued him on it; but it was held that the promise was without consideration, as the debt having been extinguished by the release, the debtor was entitled to a return of his security. If then (remarked Mr. Justice Willes) in any case the release absolutely destroys the debt, there can be no reservation of remedies against the sureties. Whether a creditor is paid his delt or releases it is all one to the surety; the debt is gɔne. That was clearly laid down by the present Lord Chancellor in Webb v. Hewitt (3 K. & J.), when, at page 444, he said: “ The debt is gone in equity, and it is impossible to reserve a right against the surety in such a transaction as that."
To take an illustration on the other side, in Green v. Wynn (L. Rep. 7 Eq. 28), a third party joined as surety to a mortgage deed, for the due payment of interest only, and the principal and surety entered into a joint and several covenant with his creditor to pay the interest. Subsequently the debtor executed a deed under the Bankruptcy Act 1861, and was released by the creditors, there being a proviso that nothing contained in the deed should affect any mortgage held by any creditor, or any right or remedy which any creditor might have against any other person in respect of any debt due by the debtor either alone or jointly with any other person. It was held by Vice-Chancellor Giffard that the effect of the deed was to give a qualified release, and not to extinguish the debt; and that the remedy of the creditor against the surety in interest was not barred. Dismissing Webb v. Hewitt as not applicable to the case before him, the Vice-Chancellor shortly stated the principle. He said, “ From Solly v. Forbes (2 Brod. & B. 38), down to the more recent cases, the rule has always been this: that you may suspend your right to proceed against the principal debtor, and yet proceed against the surety; and that even if you put into your deed words which, standing alone, amount to a release, the court will not give effect to them, but will take the whole of the deed together, and effectuate that which was the real intention of the parties.” That decision was affirmed on appeal (L. Rep. 4 Ch. App. 204).
We apprehend that there can no longer be any doubt about this head of law. An absolute extinguishment of the debt alone releases the surety, and where a deed contains a proviso with reservation of rights, the court will look at the whole of it, and construe it so as to retain the creditor's rights against the surety, unless such a construction would operate as a fraud upon the principal.
disbursements.” The cargo is not intended to find a market at an intermediate port. (Benecke, Pr. of Indem. 314.)
When general average expenses are incurred, and the ship and cargo are afterwards totally lost, they should be apportioned on the net values actually at risk when the expenses were incurred.
If part of the property is saved from the wreck, it should be applied in the first place towards payment of the general average expenses, nd, if insufficient to pay them, the excess should be apportioned on the net values at risk when they were incurred.
An adjustment of general average ought not to be made at an “intermediate port,” at any foreign port into which the ship may put in distress, unless the voyage and adventure are necessarily terminated there : (Stevens on Average, 49.)
If in any case the contributory value of the cargo, arriving in sound condition, exceeds its insured value, the assured bears the proportion of general average attaching to the excess; and the proportion attaching to the insured value of the cargo is divided among the insurers upon that insured value, according to the several amounts covered by them.
When the contributory value is less than the insured value, the proportion of general average attaching to the cargo is in like manner divided among the underwriters in the proportions which the several amounts insured bear to the insured value.
If the policies of insurance on cargo are open, that is not valued, it is divided on the amount of the insurable interest in cargo in proportion to the different amounts underwritten.
It was formerly the practice that the freight should contribute upon its net amount after deducting the wages and port charges for the whole voyage (Stevens on Average, 57); but the contributory interest in freight towards general average, in respect of the deduction of wages and port charges, is now, so far as practicable, regulated by principles similar to those which govern the Admiralty Court with reference to these deductions in fixing the value of freight in awards for salvage.
In the case of a ship being chartered to proceed either in ballast or with cargo to a port where she is to load a cargo for the homeward voyage, the net chartered freight home contributes to general average incurred on the outward voyage, it being an interest at risk on that voyage : (Stevens on Average, 56; Moran v. Jones, 1 El. & Bl. 779.)
If salvage services be rendered to a chartered ship, when in ballast, the freight, not being yet earned, is not included in the value on which salvage is awarded; but this chartered freight, when earned by the ship being subsequently enabled to prosecute her voyage with the intended cargo, should contribute with the ship at the port of destination to the amount paid for the services rendered.
Salvage awarded and settled with the salvors at an intermediate port for services rendered to a ship having cargo on board, would not be assessed on the freight in course of being earned; but in like manner the freight when afterwards earned ought to contribute.
When the whole freight has been paid in advance at the commencement of the voyage, and is at the risk of the proprietor of the cargo or his underwriters on the freight advanced, it contributes, either separately or collectively, as increased value of the cargo realised at the port of destination (Trayes v. Worms, 34 L. J. 274, C. P.), without being subjected to any deduction for wages and port charges which are payable by the owner of the ship and not of the cargo; and it bears the particular charges attaching to freight.
When part of the freight has been paid in advance, and is not at the risk of the shipowner, a corresponding proportion of the general average and particular charges on freight attaches to the freight advanced, and from the contributory value of that part of the freight which is made payable at the port of discharge, and is at the risk of the shipowner, only a proportionate amount of the wages and port charges, &c., is deducted.
FOREIGN GENERAL AVERAGE ADJUSTMENTS. In foreign countries certain items are allowed as general average, which in this country are not so treated, and other differences in the practice of adjustment exist ; a stipulation, therefore, is often introduced ‘into policies of marine insur, ance to the effect that when any general average is settled at a foreign port of discharge, the assured may recover upon the foreign statement. The clause (termed "the “ Foreign General Average Clause ") is usually in these terms: “General average payable according to foreign statement if so quired by the assured.” Where no such stipulation has been made in the policies, the claim is readjusted in conformity with the practice of this country, for recovery from the insurers, unless they agree to settle on the foreign statement. On this subject reference may be made to Stevens on Average, 65; Benecke Pr. of Indem. 329.
in readjusting the claim according to English usage, care has to be taken that the shipowner recovers on both statements no more than an indemnity for his actual disbursements.
The shipowner and merchant are liable to pay their proportions of general average adjusted according to the law of the port of destination : (Benecke Pr. of Indem. 326.)
(To be continued.)
THE ELEMENTS OF THE LAW OF AVERAGE.
(Continued from page 113.)
GENERAL AVERAGE-continued. APPORTIONMENT OF GENERAL AVERAGE_CONTRIBUTORY INTERESTS
AND VALUES. The contribution of general average has reference to the actual values of the property saved by the step whereby the loss sought to be made good by general average contribution has arisen, without regard to the existence of any policies of insurance which may have been effected on the ship, freight, or cargo: (Stevens on Average, 4.)
The values of the different interests for contribution are the actual net values ultimately saved.
If the ship or goods have sustained damage, they contribute on their value in the damaged condition, including any amount made good by contribution for general average losses.
When the claim is adjusted, as usual, on the ship's arrival at her port of destination, the cargo contributes upon its net value at that port, after deducting freight, duty, if any be payable on it, landing charges, and brokerage, if the goods are usually sold by a broker.
If, by consent of all parties interested, the claim is adjusted at the loading port, when the ship has put back to that port, the cargo contributes upon its first cost on board the ship.
Cargo jettisoned is made good in general average, and contributes on a similar footing.
The loss of freight on goods jettisoned is likewise recovered in general average, and this freight bears its share of the contribution.
In the apportionment of general average, particular or special charges at a port of refuge are deducted from the values to contribute.
Although general average expenses are recorerable in case of the ship and cargo being afterwards totally lost, the value of the property to contribute towards them in the event of the arrival of ship and cargo at the port of destination, is not the value at the time when the expenses were incurred, but at the time of arrival at that port," at the time and place of the contribution becoming absolutely due.” The shippers may decline to contribute towards the disbursements at the time when they are incurred, and leave the master to raise funds for liquidating them, on the security of a bottomry bond on ship, freight, and cargo; or by a sale of part of
“ It is the possibility only of the cargo ultimately arriving at its destination which is bought at the expense of the
THE LAW TIMES.
Dec. 23, 1871.)
ROMAN LAW AS AN ENGLISH STUDY.
(Continved from page 114.) The work is at once crude and defective, for of the many important theories and speculations that have been put forward on various points in connection with the history and development of the Roman legal system, some Mr. Poste discreetly omits to notice, others he touches upon only to mystify himself and his readers. He somehow finds a comparison between “Mancipatio ” and “ Conveyance by Deed,” and between “Traditio” and “Feoffment," comparisons which totally fail, though, on the other hand there was the closest analogy between “ Mancipatio” and “Feoffment.”. Both were essentially public and formal, both were the methods of conveying what was property par excellence, i.e., res mancipi and realty respectively. As to the sentence on page 143, “ Mancipation, as conveying property without possession, may be compared to a deed in English law," we confess we cannot under. stand it. In the first place movable things could not be mancipated unless present (Ulpian 19, 6), that is, the property in them could not be conveyed without possession. Secondly, immovables might be mancipated, although the parties were not upon them; but in old English law a deed was of no avail for the conveyance of such estates, i. e., those which were in possession, but only such as were in futuro. Mr. Poste then goes on to say that the transfer of res nec mancipi was the more difficult, implying that this could be done by in jure cessio only. This, however, is an assertion in support of which he offers no proof, and which seems utterly without foundation. Res nec mancipi were the commonest and least valuable articles-is it at all likely that for the conveyance of them, even in earliest times, any ceremony beyond mere tradition was requisite? The whole account of “Titles” is, however, crude and illogical to a degree, and would seem to have been penned by a youth at college unable to collect his thoughts, and not by a barrister long experienced at examinations. Take the definition of “Titles: “the events to which real rights are annexed by the legislator; in other words, the modes prescribed by the Legislator by which such rights may be acquired; in other words, the legislative definitions of the classes of persons in whom such rights are declared to be vested.” In other words-event=mode of acquisition=legislative definition of a class of persons, which is rather an extraordinary result. Take next that most interesting title “Usucapio." Here Mr. Poste is especially poor. He mixes up “Usucapio" with “Dominium, and both with “Possessio pro hærede," while he says not a word upon “Præscriptio,” as it was in the time of Gaius ; indeed, he appears to be unacquainted with it. In connection with titles, we have the question, “per quas personas nobis acquiratur,” which explained clearly enough in the text, Mr. Poste obscures by his commentary (pages 177-8). He first says that “ Justinian invented peculium adventitium,” but it was Constantine who did SO: (Code 6, 59); next speaks of an incomprehensible estate a “fee, or reversion in remainder;" and then goes on to jumble possessio and property, utterly ignoring the wide differences between them, and that the former required both the fact of detention and the intention to keep the object, and therefore failing to point out that though a Roman could always have acquired property by those in his power, “enim hoc vobis ignorantibus et invitis obvenit” (Inst. II. 9, 83) : yet he could acquire possessio by them only when he became aware of the physical acquisition, and contributed the necessary animus.
No attempt whatever is made to explain the origin of Testaments, and yet this is a subject which must have attracted the attention of anyone who has read the theory propounded in “ Ancient Law.” Sir H. S. Maine there lays down-having first assumed that children were emancipated from special favour and affection-first, that the power of making wills was granted in order to countervail the harshness of the strict common law which divided the property of a person among his children in potestate at the time of his death, and took no note of those who had left the family; and secondly, that the Romans never abused this power. Now to the correctness of the above assumption one may fairly demur-a man is just as likely to kick his son out of his family for being a scamp'as to emancipate him for being a saintwhile the second proposition is simply contrary to the facts. Were
it true, whence had been the need of the Leges Furia, Voconia and Falcidia, providing that something at least should be left the heir ? Whence the need of the querela inofficiosi testamenti enabling near relations who had been disinherited sine justa causa to set aside the will as unnatural?
The commentary on the fourth book, Actions, is throughout obscure and bewildering. None of the various cross classifications of actions are mentioned-no example of a formula is set out at length-and as to an historical notice of the three systems, the legis actiones, the formulary system, the extraordinary system, or a comparison of the law of procedure at different epochs, this is what Mr. Poste carefully eschews.
If any portion of the Corpus Juris merits the attention of an English jurist it is that which relates to equity. A scientific treatise on either English or Roman law must in great measure be a narrative of the growth of equity, and of its expansion till it dwarfed the jus civile. Yet it will scarcely be credited that Mr. Poste has contrived to compress all he knows upon this matter into half a dozen lines on pp. 385 and 386, in connection with torts under the Lex Aquilia.
Upon the faults of the book we have said almost sufficient, and we have scant space left to point out its utter want of method. The commentary is, in a word, not a commentary upon Gaius -- it is rather a series of essays more or less, generally less, connected with the text. “ Restitutio in integrum, a branch of the Prætor's equitable jurisdiction, and one of the most remarkable cases of his cognitio extraordinaria,” should have been described — not at the end of “ Tutors," as it is, but-in connection with the account either of equity generally, which Mr. Poste has passed over, or of the cognitio extraordinaria which is to be found four hundred pages later. Why does an outline of the “scholae jurisprudentium” follow the subject “ quibus modis tutela finiatur ?" And what possible connection could even Mr. Poste discover between Title and Verbal Contracts, between Greek or any other psychology, and “de injuriis (p. 389) ? between the formulary procedure and the rules found in the rhetoric of Aristotle (page 480) ? how can the comprehension of “the logic of justice as administered in the courts," be aided by regarding it as syllogism of which the major premise is "the substantive law annexing a certain remedy to certain conditions, the minor premise is," &c., these again being represented by certain letters (page 427), &c. ? Moreover not only is the commentary usually irrelevant to the text, but the matters of which it treats are frequently dealt with piecemeal-the beginning here the conclusion elsewhere. Thus for “ Title” the index refers us to pages 3 and 307, but the chief account is to be found on page 141 and following. So “Possession " is met with on pages 157-9, 398, and 500-516.
The translation would be more fitly styled a paraphrase. Thus the sentence—“Alia causa est eorum nominum quæ arcaria vocantur," is rendered,“ transcriptive entries differ from mere entries of a person as debtor to cash,” (page 327) which is certainly too free. So (page 453) nam si filius tuus servus ve noxam commiserit, quamdiu in tua potestate est, tecum est actio; si in alterius potestatem pervenerit, cum illo incipit actio esse; si sui juris incipit esse, directa actio cum ipso est et noxæ deditio extinguitur," is rendered, “ If your son or slave has done a wrong while he is in your power, an action lies against you; if he becomes his own master, a direct action lies against the offender himself, and the noxal action is extinguished,” which is perhaps scarcely correct.
There is but one other point to be noticed. In the preface an apology is made for the amount of English law introduced. This apology is totally unnecessary; and fortunately so, for the writer's reputation. On page 200 Mr. Poste says: By English law, if a man dies intestate, and without kindred, the devolution of his property follows different rules, according as it is real or personal.” Does it not follow different rules if he die intestate with kindred ? Had, however, this apology been necessary, had the striking analogies of the two systems been shown, we might have had a work which would have been of value to the mature thinker. As it is, we have a production which will not at all times guide without misleading the beginner, and which is certain, not une seldom, to bewilder the more advanced student.
NOTES OF THE WEEK. rigging the market. There was evidence that two her father and mother had been subscribers to
of the directors of the Marseilles Company were the first-named society, but there was no evidence COURT OF APPEAL IN CHANCERY, also directors of the Credit Foncier, and that the that she knew anything about the other society. (Before the LORDS JUSTICES.)
same solicitors acted for both companies, and The Vice-Chancellor held that as the description
these facts were relied upon as fixing the Credit in the will was equally applicable to both societies, Thursday, Dec. 14.
Foncier with notice of the illegal purpose for the legacy must be divided between them : (See Ex parte DEWHURST; Re VanLOHE. which the money was borrowed. The Vice-Chan. 24 L. T. Rep. N. S. 823.). The first-named society Bankruptcy-Money acquired during bankruptcy cellor having refused their claim, the liquidators appealed from this decision. -Payment out of ajter acquired money-Right of the Credit Foncier appealed.
Cotton, Q.C. and C. Walker, for the appellants of trustee to recover.
Glasse, Q. C., Cotton, Q. C., and H. M. Jackson, Glasse, Q. C. and Vaughan Hawkins, for the This was an appeal from a decision of the Chief for the appellants.
respondents. Judge, reversing a decision of the Judge of the
Napier Higgins and Gill for the respondents. Warmington, for the residuary legatees.
Lord Justice MELLISH said that he could not Lord Justice JAMES said that he had no doubt County Court of Manchester. Vanlohe, who was a clerk with a salary of 5001, a year, was adjudi. director everything known to him in his character clearly indicated a particular charity, and as there
think that because two companies had a common wbatever about the case. The words of the gift cated a bankrupt on the 14th Sept. 1870. Subse- of director of one company must be taken to be quently, his employer, hearing that he was bank known by the other company:
were two charities answering the description, rupt, wished to get rid of him, and in Jan. 1871, appointed to act as member of a board, and had she had any connection with either of them. The
A director was parol evidence was admissible to show whether he dismissed him, giving him 2001, as a compen. sation for the loss of his situation. At this time acting. Then as to the solicitor who acted for to the first-named charity, and to it she clearly
no power to bind the company except when so evidence showed that she had been a subscriber Vanlohe was still an uncertifioited bankrupt. Out of the money so received he paid his landlord both companies there was no evidence of what he intended to give the legacy.
Lord Justice MELLISH was of the same opinion. 1301., being a half year's rent of a furnished house actually knew. The Marseilles Company, having
Order of the Vice-Chancellor accordingly diswhich he occupied under an agreement to pay the power to borrow, borrowed money from the Credit rent in advance. The trustee under the bank. Foncier, and his Lordship could see nothing to charged, in so far as it directed half to be ruptcy hearing of this payment made an applica- affect the latter company with notice of any im. paid to the other charity. tion in the County Court of Manchester that the proper intention. The real question was which of Solicitors for the appellants, Meredith and Co. landlord might be ordered to refund the 1301. on
two innocent sets of shareholders was to bear the Solicitors for the respondents, Duncan and the ground that it belonged to the estate and was loss, and if the directors of the Marseilles Com Murton. divisible amongst the creditors. The Judge of the pany had really done anything wrong, it was more
Dec. 16 and 18. County Court ordered the landlord to refund the just that their shareholders should suffer than the money, but on appeal the Chief Judge reversed shareholders of the Credit Foncier. The claim
(Before Lord Justice JAMES.) this order, and the trustee now appealed from the must, therefore, be allowed.
Re OGILVIE. Chief Judge's decision.
Lord Justice JAMES was of the same opinion.
Judgment creditor-27 & 28 Vict. c. 112—Elegit, De Ger, Q.C. (Reed with him) appeared in supSolicitor for the Credit Foncier, Heritage.
Seizure of surplus lands of railway company, port of the appeal.
Solicitors for the Marseilles Company, Hatha
Extension line-Distinct undertaking-Rights of Without calling upon way and Andrews.
judgment creditor. Bagley, who appeared for the landlord, Lord Justice JAMES said that he thought the
Dec. 14 and 16.
an appeal petition from an order of order of the Chief Judge was quite right. If the
Wickens, V.C. The petitioner, who was the con: Ex parte MEYER; Re STEPHANY.
tractor employed to construct the original line of trustee had given notice to the bankrupt's emBankruptcy Act 1869, s. 6, sub-sect. 3–“ Otherwise the Tendring Hundred Railway Company, neployer, he could have intercepted the money and prevented it from being paid to the bankrupt.
absenting himself”—Intent-Act of bankruptcy. covered judgment against the company for 57341., But where the bankrupt received the money and This was an appeal from an order of Mr. Registrar due to him under the contract. The company was paid it away bona fide and without collusion, in Pepys annulling an order of adjudication of bank. incorporated in 1859, and by an Act passed in the ordinary course of business, it would be most ruptcy made against Stephany, on the petition of 1863 it was authorised to extend its railway. On mischievous to follow it in the hands of the person
three persons holding bills of exchange for small the 12th July 1870, Ogilvie issued a writ of elegit to whom it was so paid.
amounts. On the 6th Nov. 1871 a bill of exchange upon his judgment, under which the sheriff seized Lord Justice MELLISH concurred. due to Meyer, one of the petitioning creditors, was
some surplus lands acquired by the company Appeal accordingly dismissed, with costs. dishonoured, and on the same day Meyer called on
under its Extension Act. Recently Ogilvie preSolicitors for the appellant, Horne and Hunter. Stephany, who promised to bring the money to sented a petition under 27 & 28 Vict. c. 112, pray. Solicitors for the respondent, Priterard and Meyer's residence before three o'clock that day. ing for the sale of the company's interest in the Englefield.
This, and other promises made on the following lands seized under the writ, and for payment of
days, Stephany failed to keep; and on the 9th his debt out of the proceeds of sale, and Wickens, Friday, Dec. 15.
Nov. his father-in-law obtained judgment against V.C., made an order directing inquiries as to the Re THE CONTRACT CORPORATION (LIMITED) Meyer and two other creditors filed their petition the company's interest in the lands. The company
him on an overdue bill of exchange. Thereupon amount of the petitioner's debt and the nature of (Gooch's CASE.) Practice-Notice of appeal—Extension of time.
alleging that Stephany, by failing to bring the appealed from this order.
money to Meyer, had committed an act of bank. Greene, Q. C., and Millar, for the appellants. This was an application by the official liquidator ruptcy within the words of the 3rd sub-section Dickenson, Q.C. and W. P. Beale, fo: the peti. of the above company for an extension of time of the 6th section of the Bankruptcy Act 1869, tioner, within which to give notice of motion of appeal viz., that the debtor had, “with intent to defeat
Lord Justice JAMES said that under 27 & 28 from an order made by the Master of the Rolls or delay his creditors
being a trader, Vict. c. 112 the judgment creditor was entitled er directing the liquidator to make an affidavit as to departed from his dwelling-house, or otherwise debito justitiæ to come to the court for an order documents in his possession relating to the ques- absented himself.” Meyer appealed.
of sale. Of course, only the debtor's interest in tion at issue between him and Gooch: (See 25
De Gex, Q. C. and Finlay Knight, for the appel. the land could be sold, and no one else who had L. T. Rep. N. S. 526.) The order was made on the lant.
an interest in the land could be prejudiced by the 17th Nov. 1871, and the twenty-one days expired on Kay, Q. C. and Bagley, for Stephany.
order. It was no defence to say that the lands the 8th Dec., on which day the liquidator intimated Robertson Griffiths, for the execution creditor. in question belonged to a distinct undertaking his intention to appeal, but he did not serve formal Lord Justice James said that, to constitute an
from that in respect of which the company had notice of motion till the 12th Dec. The present act of bankruptcy the debtor's absenting himself incurred the debt. There might be rights as application was made on the ground that the order must have been with intent to defeat or delay his between the two sets of shareholders, but that had not been drawn up within the twenty-one creditors, and there was no such intent in the could not affect the creditor. The appeal must days. Sir Richard Baggallay, Q.C. and J. W. Chit'y case of the debtor absenting himself, but of present case. This, however, was not really a therefore be dismissed with costs.
Solicitor for the appellants, Batten. in support of the application.
breaking his promise to pay, which was not an act Solicitors for the petitioner, F. and T. Smith Osborne Morgan, Q.C. and Bagshawe, for Gooch, of bankruptcy, His failing to call with the and Sons. contended that the application should be refused, money was not an act calculated to delay his as notice of motion might have been given without creditor, but, on the contrary, to accelerate his
ROLLS COURT. the order being drawn up, and as it was compe-movements. The registrar's order was, there
Monday, Dec. 18. tent for the official liquidator to have the order fore, perfectly right.
LONGLEY V. LONGLEY. drawn up himself.
Lord Justice MELLISH was of the same opinion. Will-Construction-Words passing real estateTheir LORDSHIPS granted the application, and Appeal accordingly dismissed with costs. refused Gooch his costs of opposing the applica
Resulting trust. Solicitor for the appellant, Salaman. tion.
ARTHUR LONGLEY, by his will, dated the 17th Solicitors for the official liquidator, Linklater
Solicitor for the respondents, E. A. Marsden.
March 1856, gave, devised, and bequeathed all his and Co.
stock-in-trade, household furniture, plate, linen, Solicitor for Gooch, H. Wellington Vallance.
Saturday, Dec. 16.
china, books, moneys standing in his name in the Re KILVERT'S TRUSTS.
funds, book debts, securities for money, policies Re THE MARSEILLES EXTENSION RAILWAY AND
of insurance, and all other the estate and effects Will—Construction-Charitable gift— Description of which he should be possessed, entitled to, or LAND COMPANY; Ex parto THE CREDIT Fon. of object applicable to two societies—Parol evi. interested in, at the time of his decease, and of CIER AND MOBILIER OF ENGLAND.
whatever nature or kind or wheresoever the same Company-Winding-up-Loan for illegal object- This was an appeal from a decision of Malins, might be, to trustees, their heirs, executors, and
Rigging the market-Knowledge of illegality- V.C. By her will, dated July in 1868, Frances administrators, according to the nature and
Solicitor—Notice-Directors-Right of proof. M. Kilvert gave à legacy of 10,0001. to “the quality thereof respectively, upon the trusts This was an appeal petition from an order of treasurer for the time being of the fund for the thereinafter declared, which were to sell his busiMalins, V. C. refusing to admit the Credit Foncier relief of the widows and orphans of the clergy of ness, get in his outstanding debts, and also con. to prove in the winding-up of the Marseilles Com the diocese of Worcester, to be applied by him vert into money all such of his personal estate as pany for a sum of 10,0001 advanced by the former for the benefit of that charity.” Previously to should not consist of money; and he further di; to the latter company under the following cir. 1837, the diocese of Worcester comprised only one rected his trustees and the survivor of them, and cumstances. The money was advanced at various archdeaconry, but in that year the archdeaconry the executors and administrators of such survivor times in 1864 and 1865. The Marseilles Company of Coventry was added to it. There were two to stand possessed of and interested in the money to did not deny the loan, but contended that, with societies in the diocese answering the description arise by such sale or sales,and also of and in the rest the knowledge of the directors of the Credit Fon in the will, one called “The Society for the and residue of his estate and effects, upon trust to cier, the money had been applied in payment of Relief of Clergymen's Widows and Orphans, and invest the same as therein declared. The testator sums dne to various sharebrokers by one Bowles, Necessitous Clergymen in the Archdeaconry of died on the 13th Jan. 1871, having become pos, contractor to the company and concessionaire of Worcester," and the other called “The Charity sessed of real estate since the date of his will, and a line of railway intended to be made by the Mar. for the Relief of Necessitous Clergymen, their the question arose whether it passed to the trusseilles Compa for buying shares in the com. Widows and Orphans, within the Archdeaconry | tees at all, and, if so, whether or not any trusts pany on behalf of the directors for the purpose of' of Coventry.” It appeared that the testatrix and were declared thereof.
Dec. 23, 1871.)
Southgate, Q. C. and B. Swan, for plaintiffs, the same, and to hold the proceeds upon the trusts payment of the arrears for her past, and of the
therein declared. The testator also declared that future dividends for her future, maintenance, to the Ramıdge for the defendants, who, if the real upon the appointment of any new trustees "all master in lunacy. estate passed by the will, upon the trusts therein the estates, moneys, and premises,” subject to the Solicitors, Roy and Cartwright; Satchell and declared, would be entitled thereto in remainder. trusts of his will, were to be “conveyed, trans. Chapple. Oswald for the trustees.
ferred, and assigned” to the new trustees“ their Lord ROMILLY held that the real estate passed executors, administrators, and assigns.' In the Re POLTESCO MARBLE COMPANY (LIMITED). to the trustees, but that the trusts were entirely devise of the real estates which he held as trustee,
Company-Winding-up-Right to damagesconfined to personal estate, and there was, there the testator gave and bequeathed them to trustees
Substantive application. fore, a resulting trust of the real estate in favour their heirs and assigns.” At the time of making This was a petition by two persons-one of whom of the heirs at law.
his will, and also at the time of his death, the claimed to be entitled to a gum due for salary, as Solicitors, Wm. Sturt; Wilkinson and Howlett. testator was possessed of certain real estate. The secretary of the company, and the other as his
question now was whether or not the testator's assignee for value-praying that the company V. C. MALINS' COURT. real estate passed under the will.
might be wound-up compulsorily. The company Thursday, Dec. 7. Kay, Q. Č. and Chapman Baroer were for the
was being wound-up voluntarily. In the vacation plaintiffs.
a provisional liquidator had been appointed at the G. Lawrence for the testator's widow, the tenant instance of the petitioners, who then gave an STEWART v. EARL VANE. Settement-Tenant for life - Improvements on for life under the will.
undertaking to be answerable in damages. settled estates-Charge on inheritance. Amphlett, Q. C. and J. T. Pierce (of the Common
Hemming and Randolph for the petitioners. This was an application by a tenant for life that Law Bar) for the heir-at-law.
Hadley, for the company, was not called upon. the expenses of certain necessary improvements, Speed for the trustees of the will.
The VICE-CHANCELLOR said it was quite clear effected on a settled estate, might be declared to
The VICE-CHANCELLOR was of opinion that it that no case has been made out for the order asked be a charge upon the inheritance. Under a settle- was the testator's intention, by using the word by the petitioners, and that therefore the petition ment, dated the 29th Sept. 1842, certain estates “estate,” to pass all his real estate, and that the must be dismissed with costs. were vested in trustees for a term of years, and, omission of the word “heirs ” did not signify. Hadley asked that the order might be so framed subject thereto, stood limited to Earl Vane for That this was the intention was also clear from
as not to prejudice the right to damages under the life, with remainder to his eldest son, Lord Sea- the power given to the trustees to sell the petition. ham, in tail male. The settlement contained the property.
The VICE-CHANCELLOR, after conferring with usual powers of sale and exchange, and also ex
Solicitors for the plaintiff, C. J. and H. Show- the registrar, said it seemed that the practice was tensive provisions for working and getting the bridge.
in such cases to make a substantive application, minerals under the estates, but no provisions for Solicitor for the defendants. J. Henry Bartlett. and therefore the order would be confined simply improving the surface. A considerable sum of
to the dismissal of the petition. money had been expended by Earl Vane, the
Solicitors: P. Woods; E. T. Lewis.
Saturday, Dec. 16. tenant for life, in road making and other im.
Re PARKER's ESTATE. provements, upon the estates, and he now asked that the expenses might be charged upon the in. Lands Clauses Consolidation Act (8 f 9 Vict. c. 18),
Saturday, Dec. 16. heritance. ss. 69 and 80—Reinvestment of purchase money
LEWIS V. ALLENBY. Macnaghten, for Earl Vane, said, that a similar -Costs.
Practice-Administration-Order for preparation order to that now asked for had been made in This was a petition for the reinvestment of money of scheme-Failure of order-Adjourned sumFrith v. Cameron (L. Rep. 12 Eq. 169 ; 24 L. T. paid into court by a railway company for certain mons-Petition in the cause. Rep. N. S. 791.)
seasehold lands which the company had taken, and C. Hall for the trustees.
of which the petitioner was tenant for life. 'Part This was an adjourned summons in the above The VICE-CHANCELLOR thought the case fell of the purchase-money had been previously in
cause. By an order made on further considerawithin the principle of the authorities, and was vested, and the petitioner now asked that the tion it was ordered that certain trustees should similar to Frith v. Cameron, and accordingly made residue might be invested in freehold
property, all prepare and submit to the judge in chambers a
scheme for the distribution of the residuary per. the parties interested in remainder having con- sonal
estate of the testator in the cause, amongst . Solicitors for Earl Vane, Uptons, Johnson, sented thereto, and that the company should pay Charities, in accordance with the discretion given and Co.
the costs of the investment. Solicitors for the trustees, Gregory and Co. Everitt appeared in support of the petition.
to them by the testator. No second further conStevens, on behalf of the company, submitted, sideration was reserved by this order. Before any
scheme had been settled one of the trustees died. Thursday, Dec. 14.
that the company, having paid the costs of one
investment, ought not to be made to pay the costs The surviving trustee, however, settled a scheme THE REPUBLIC OF LIBERIA v. THE IMPERIAL of a second, and that the original property having and took out a summons for its approval by the BANK (LIMITED).
been leasehold, the money ought not now to be judge in chambers. The summons having been Motion to take bill off file-Filing bill without invested in freehold.
adjourned into court, now came on for hearing.
Karslake, Q. C. and W. P. Dickins for the plainThe VICE-CHANCELLOR, being of opinion that authority.
tiffs. This was a motion by Mr. Chinery, the Consul. the investment was a proper one, allowed it, and
Hemming for the Crown. General of the Republic of Liberia, in this country, ordered the company to pay the costs. to have a bill, which had been filed by Mr. Jack Solicitor, C. E. Freeman.
Greene, Q.C., Nalder, Bathurst, and Borthwick
for other parties. son, the consul in London, taken off the file, on
The VICE-CHANCELLOR said that the order the ground that it had been filed without the
BURRELL V. MAXWELL.
made had failed or broken down. The summons authority of the Republic. The bill had been Practice-Trustee Act (13 & 14 Vict. c. 60), s. 49– was merely consequential on the order, and as one filed Bank from parting
of the ,
Absent trustee. with a sum of 17,0001. which had been raised by loan and paid into the bank on behalf of the This was a suit for partition in which the defen- longer carried out. No further consideration had Republic There had been a revolution in dants were the three trustees of the property in been reserved, and the proper course to obtain the Liberia, by which the former president had been question. Two of the trustees had appeared, and sanction of the court to the scheme would be to deposed, and the object of the suit was to prevent there was an affidavit of the plaintiff that the present a petition in the suit. No order would be Chinery, the Consul-General appointed by the third could not be found. Under these circum. made on the summons, except that the costs be
costs in the cause. former government, from dealing with the
Solicitors : Bell and Newman; Hicks, and Son;
Hemings applied under the Trustee Act 1850, until the Legislature of the Republic had met and decided what should be done. The bill was filed s. 49, that the clerk of records and writs might Raven and Bradley ; Miller and Smith. by Mr. Jackson, the consul in London, without, as certify that the cause was fit to be set down notit appeared, the authority of the Republic. withstanding the third trustee had not entered
COURT OF PROBATE. Cotton, Q.C., Higgins, and G. Wood for Chinery, an appearance. He referred to Westhead v. Sale
Wednesday, Nov. 29. moved that the bill might be taken off the file (6 W. R. 52); De Crespigny v. Ketson (cited in and contended that it would be a dangerous prece12 Sim. 163).
(Before Lord PENZANCE.) dent if the conrt sanctioned the conduct of Mr. The VICE-CHANCELLOR made the order as asked.
In the Goods of COLES. Jackson in taking these proceedings without the
Probate granted of a will cominencing "I have consent of his superiors.
given all my property to A.B.," fc. Glasse, Q.C. and Rogers for the bill.
V. C. WICKENS COURT.
W. COLES died May 26, 1871, leaving a will dated Bredd for the bank.
June 18, 1870, in the following terms :-“I have
Friday, Dec. 15. The VICE-CHANCELLOR said that upon general
given all I have to Bertha Chamberlain and her principles he concurred in the argument that it
Re BAKER'S TRUST.
two sons, commonly called and known as Joseph was not competent to a subordinate officer of a Practice-Lunatic wife-Separate property applied Brailey Coles, and Henry John Coles. They are foreign Government to use the name of his Go. for maintenance—13 f 14 Vict. c. 101, s. 5. to pay my sister 38. 6d. a week as long as she vernment against the saperior representative of This was a petition presented by the master in lives, and after her death to pay her son William that Government in this country, but that under lunacy of Victoria, South Australia, for the pur. Gent 3s. 6d. a week so long as he lives; the the circumstances he should order the motion to pose of having the dividends of a sum in court, residue to be equally divided between Bertha stand over instead of directing the bill to be taken being the separate property of a married woman Chamberlain, Joseph Brailey Coles, and Henry off the file, since, by taking the bill off the confined in the pauper lunatic asylum at Mel. John Coles, share and share alike."
Joseph file, the court would lose all control over bourne, applied for the expenses incurred by the Brailey Coles died in the lifetime of the testathe subject matter of the suit. Motion to stand colony for her maintenance.
tor, and Bertha Chamberlain renounced admin. over till Hilary Term, Chinery undertaking not to Alan C. Bruce for the petitioner.
istration. deal with the money in the mean time.
Renshaw for the respondent.
Inderwick moved for a grant of administration Solicitors : Fearon, Clabon, and Fearon ; Til. The VICE-CHANCELLOR said that the difficulty with the will annexed to Mr. Williams as guardian leard, Godden, and Holme.
in the case was, that he was asked to take pro- of Henry John Coles. He read an affidavit from
perty settled to the separate use of the wife, for one of the attesting witnesses, who wrote the will V.C. BACON'S COURT.
the purpose of defraying the expense of her main to the testator's dictation, and who stated that Friday, Dec. 15.
tenance, which was primâ facie the husband's the testator expressly desired him to make use of
debt. On the construction of the Colonial Act, the words “I have given," &c., at the beginning CHARLTON v. CHARLTON.
however, he considered the master in lunacy of of the will. When the document was executed it Will–Construction-Estate and effects. Victoria was intrusted with the powers of com- was handed to him to give to Mr. Williams after THOMAS CHARLTON by his will, dated the 6th mittee of a lunatic's estate, and was pointed out testator's death. As to the testamentary character March 1849, after making certain specific bequests, as the person to receive and collect the property of the words "I have given,” &c., he referred to
gave and bequeathed all the residue of his estate Ho should, therefore, on the authority of Peters In the goods of Daines (3 Hagg. Ecc. 321). and effects whatsoever and wheresoever” to three v. Grote (7 Sim. 238), in which a debt due to the E. Clarke for Wm. Gent, the nephew and sole persons “their executors, administrators, and keeper of a lunatic asylum had been ordered to be next of kin contra.-It is for the person applying assigns," upon trust to "sell and convert the paid out of a lunatic's wife's property, direct the ' for the grant to make out that the deceased was