490 Analytical Digest of Cases: House of Lords' Appeals. [LEGAL OBSERVER, ALTERATION OF JUDGMENT. By Act of Parliament.-Where erroneous principle.-A decision of this House when once. pronounced in a particular case is conclusive in that case, and cannot be reversed except by Act of Parliament; but if the House should be afterwards of opinion that an erroneous principle had been adopted in the first case, the House would not be bound in any other to adhere to such a principle. Wilson v. Wilson, 5 H. of L. Cas. 41. Case cited in judgment: Tommey v. White, 3 H. of L. Cas. 68. CHARITY. Charge on Estate. Negligence of donees.Parties. If a charity is entitled to a particular sum as a first charge on an estate given to certain persons, and the estate is amply sufficient to secure payment of that sum, the fact that a portion of the estate has been lost by the alleged negligence of the donees of the estate, will not of itself justify an information on behalf of the charity against such donees. Where a portion of an estate held under such circumstances was charged to have been improperly sold, the purchasers must be included as parties in any such information. terms of the contract, and claim remuneration for the work as. upon a quantum meruit, nor could he ask in Equity for accounts to be taken independently of the contract. Ranger v. Great Western Railway Company, 5 H. of L. Cas. 73. And see Railway Company; Unliquidated Damages. CORPORATION. Fraud.-Fraudulent acts of agents.-A corporation of itself cannot be guilty of fraud, but where it can only accomplish the object for which it was formed through the agency of individuals, who act fraudulently, the corporation stands in the same situation with respect to the conduct of its agents as a private person would have stood had his agent so misconducted himself. Ranger v. Great Western Railway Company, 5 H. of L. Cas. 72. COSTS. tion against the donees of a fund on which 1. On charity information.-In an informathere was a charge for the benefit of a charity, the prayer of the information was granted, and inquiries were directed. This House reversed the decree of the Court below, and ordered the information to be dismissed, but only with costs up to the hearing, directed the inquiries, the relator was entitled upon the ground that the Court below having to proceed upon that direction. Mayor, &c., of Southmolton v. Attorney-General, 5 H. of L. Cas. 2. Where such portion consisted of land held upon a renewable lease, and the lessors were part of a decree was held to be sufficiently 2. Of appeal.-Where not justified.—One entitled to refuse a renewal, and the bargain doubtful to justify an appeal against it; but was in fact made with them before the period as to another part of the same decree, the apfor renewal arrived, such bargain, made under the circumstances, does not afford matter of complaint against the donees of the estate. Mayor, &c., of Southmolton v. Attorney-General, 5 H. of L. Cas. 1.. And see Costs, 1. CONTRACT. Under seal with incorporated company.Verbal instructions varying.-Quantum meruit. -A contractor agreed with an incorporated company to do certain works, the contract being under seal. In this contract there was a stipulation, that if the company should think proper at any time to make any addition to the original works, the company should be at liberty to do so on giving him written instructions for that purpose, signed by the principal or assistant engineer. A verbal arrangement was afterwards made by the principal engineer for the execution of certain extension works, allowing for a variance in the prices, but stipulating that, with the exception of that variance, all the provisions of the contract should be considered as applicable to the extension work. This work was executed by the contractor under this arrangement. Held, that he could not afterwards reject the pellant having sought to obtain a construction of articles of agreement, which he knew not to be justified by circumstances, the appeal, being dismissed, was dismissed with costs. v. Wilson, 5 H. of L. Cas. 41. CREDITORS. Wilson Trust for.-A. and B., father and son, executed in 1818 an indenture of settlement, on occasion of the son's intended marriage. The father and son, the lady and her father, and other persons, trustees, were parties to the indenture. Certain freehold estates were conveyed to the trustees for A. for life, remainder to B., and these estates were exonerated from debts due by A., which debts were made charges on certain leasehold premises expressly named. These premises were vested in trustees, on trust (among other things) to keep down the interest of 4.'s debts affecting any of the estates comprised in the deed, and they were empowered "with the desire and consent" of A. and B., notwithstanding any of the trusts therein contained, to sell the leasehold premises so put in settlement for the payment of the debts and incumbrances. Another deed was executed by A. and B. in 1824, which recited the former, appointed new trustees, added new ост. 20, 1855.] Analytical Digest of Cases: House of Lords' Appeals. 491 debts, and made provision for the payment of the trustees of the wife agreed to indemnify all. The trustees never acted in discharge of the husband "against the present and future the trust, and the deeds were not communicated debts of Mary," the wife. Exceptions to this to the creditors, but B., who by an arrange-deed, taken by the husband, were overruled by ment with his father had possession and ma- the Vice-Chancellor, whose decision was afnagement of the estates, paid the interest on firmed by the Lord Chancellor. the debts. After the death of both A. and B., the son of the latter entered into possession of the estates. C., a bond creditor, whose name and claim were set forth in the schedule to the deed of 1818, filed a bill to have the trusts of that deed carried into execution. The Court of Chancery in Ireland held, that this debt " was within the trust contained in the indenture for the payment of the scheduled debts." On appeal, this decision was confirmed, Lord St. Leonard dissentiente. Synnot v. Simpson, 5 H. of L. Cas. 121. Cases cited in the judgment: Garrard v. Lord & F. 772. Held, that, after a previous judgment of this House affirming the order which referred the agreement to the Master as the basis for a deed of separation between these parties, the subsequent order approving of the deed as drawn by the Master must be supported. But quære, whether as a rule of equity the Court could enforce by injunction a stipulation to live separate, or not to bring a suit for restitution of conjugal rights, though undoubt edly it could enforce stipulations as to an arrangement of property, and as to forbearance from personal molestation? Held, also, that the Court was fully at liberty to examine the articles of agreement, and on finding in them a stipulation as to payment of debts, inconsistent with the rest of the articles and insensible or absurd, to authorise the introduction into the deed of a covenant which would carry into effect the real intentions of the parties. Cas. 40. Wilson v. Wilson, 5 H. of L. See Will, 3. See Charity. PARTIES. QUANTUM MERUIT. See Contract. RAILWAY COMPANY. Deed of separation.-Specific performance of agreement.-Withdrawing suit for nullity in Ecclesiastical Court.-A suit for nullity of marriage had been instituted by the wife against her husband; an arrangement for a deed of separation was proposed, in order to stop it. An agreement was entered into by which the property of the parties was regu- 1. And contractor.-Interest of arbitrator.lated, and by which their conduct in relation A contract between a railway company and a to each other would be guided. One of the building contractor, stipulated that payments articles of this agreement stipulated that the should from time to time, during the progress husband should "permit the wife to live sepa- of the works, be made by the company to the rate and apart from him, as if she was unmar- contractor, such payments to be made on cerried, without any molestation, interference, or tificates granted by the "principal engineer of annoyance whatsoever, by, or on the part of, the company or his assistant resident engineer." the husband." By another article, it was In case of dispute between the contractor and declared that if he performed the covenants, the assistant resident engineer, the decision of &c., "he, his heirs, executors, &c., and their "the principal engineer of the company" was to estates and effects, shall be indemnified from be final; but at the completion of the works, all the present debts and liabilities of the said if the contractor and the principal engineer John" (the husband), "by the joint and several covenant of" the trustees for the wife. A deed was to be drawn up in conformity with these articles, and on mutual execution of the deed the suit for nullity was to be withdrawn. On a bill by the wife to compel the husband specifically to perform this agreement the ViceChancellor made an order referring it to the Master to approve of a proper deed to carry its provisions into effect. This order was confirmed on appeal to this House. Pending the appeal, the Master approved of a deed containing a covenant by the husband not to institute any suit in the Ecclesiastical Court for restitution of conjugal rights, and another in which differed, the differences between them were to be settled by arbitration. After differences had so arisen between the contractor and the company, it was discovered by the former that the principal engineer was a shareholder in the company. On a bill to have accounts taken, one of the grounds for which was this fact, then first discovered, Held, that (no fraudulent concealment being alleged) it formed no ground for relief; for that by contract the contractor had bound himself to submit to the judgment of a particular individual, whose position as principal engineer made him interested for the company. The case of Dimes v. The Grand Junction Canal 492 Analytical Digest of Cases: House of Lords' Appeals. [LEGAL OBSERVER. Company, 3 H. of L. Cas. 759, held not to apply. Ranger v. Great Western Railway Company, 5 H. of L. Cas. 72. 2. Contract-Power to enter on and complete works-Equity-In a contract with a railway company for the execution of certain works, there was a clause empowering the company, after notice, to take possession of the plant and to finish the works: the company acted on this clause. Held, that this did not furnish ground for a bill in equity as putting an end to the contract, though it might be the subject of an action for damages. Ranger v. Great Western Railway Company, 5 H. of L. Cas. 73. See Will, 1. "RESIDUE." SPECIFIC PERFORMANCE. See Husband and Wife. 66 SURPLUS." See Will, 1. TRUST FOR CREDITORS. See Creditors. UNLIQUIDATED DAMAGES. Or penalties, on non-completion of contract within time specified.-A contractor undertook to do certain works within a given term, or to pay certain fixed sums; whether these were penalties or unliquidated damages, was not necessarily the subject of a bill in equity, but might properly have been decided in an action at law. The fact that a bond with a penalty had been given to secure payment of them, was itself strong evidence to show that they were liquidated damages. Ranger v. Great Western Railway Company, 5 H. of L. Cas. 73. Cases cited in the judgment: Astley v. Weldon, 2 Bro. & P. 546; Kemble v. Farren, 6 Bing. 141. WILL. 1. Construction." Surplus."-"Residue."It is a question to be determined by the particular words of each will, whether a gift of surplus" or "residue" means surplus or residue properly so called, or a mere proportional share of a particular fund. Where after the gift of a fund charged with certain payments, the words were "and the overplus which the said, &c., do produce more than all these disbursements do amount to (which I do find and compute to be about 601. per annum)," they were held to mean surplus, and not proportional share. Mayor, &c., of Southmolton v. Attorney-General, 5 H. of L. Cas. 1. Cases cited in the judgment; Thetford School Case, & Co. Rep. 130; Duke's Ch. Us. 71; Attorney-General v. Arnold, Show, P. C. 22; Attorney-General v. Johnson, Ambl. 190; At torney-General v. Smythies, 2 Russ. & M. 717; Attorney-General v. Brazenose College, 2 Clark & F. 295; Attorney-General v. Corporation of Bristol, 2 Jac. & W. 294; Attorney-General v. Drapers' Company, 4 Beav. 67. 2. Mistake in name of legatee.-A testatrix, who, without professional assistance, made her own will, named Robert John M. (the eldest son of her brother) her executor. She then created two annuities of 507. each, in favour of two persons, and made a gift to a third, but in terms which left it doubtful whether the gift was of that specific sum, or of an annuity to that amount; she then proceeded thus:-"My dear nephew, John Henry M., of H., surgeon, but late of Calcott Hall, the above bequests to fall into his hands, and should he not marry to be divided equally between Samuel M., John M., and Mary D." (formerly Mary Margaret M., but then a married woman), "all of them late of Calcott Hall, must each receive 501., the residue to fall into my above-named executor's hands." There was a son, Thomas, born between Samuel and Mary, but there was no son named only John; the second nephew, John Henry, died unmarried; the others survived him. Held, affirming a decision of the Master of the Rolls, and of Lord Justice Turner (Lord Justice Knight Bruce having dissented), that Thomas was not entitled to any share of the residue. Mostyn v. Mostyn, 5 H. of L. Cas. 155. Cases cited in the judgment: Pitcairne v. Brase, Finch, 403; Dowset v. Sweet, Ambl. 175; Parsons v. Parsons, 1 Ves. J. 266; Camoys v. Blundell, 1 H. of L. Cas. 778; Dent v. Pepys, 6 Madd. 350; Hiscocks v. Hiscocks, 5 M. & W. 363; Beaumont v. Fell, 2 P. Wms. 141; Miller v. Travers, 8 Bing. 244; 1 Moo. & Sc. 342; Doe dem. Gords v. Needs, 2 M. & W. 129. 3. Debts of other persons.-Statute of Limitations.-A., who had a life interest in certain estates, gave a bond to a creditor, and a warrant of attorney to confess judgment for its amount. No judgment was entered up. 4. died within three years of the date of the bond, leaving no assets real or personal. B., his son, the first tenant in tail of the estates, entered into possession, and expressed in letters to the creditor a wish to pay his father's debts, but would not give any security for them. B. made a will, in which reciting his own wish and a promise in conformity with it, made by him to his father and mother, he said,-"And in case I should not be able to fulfil my intentions during my lifetime, and that I should not have a sufficient fund for that purpose arising from my personal estate, I hereby charge all my just debts, and also all the debts of my late father, A., which shall remain unpaid at the time of my decease, upon all my real estates wheresoever," &c. He then directed his trustees to stand seised of all his real estates, "subject in manner aforesaid to the payment of all my just debts and to the debts of my father." B. survived his father many years. The obligee of the bond filed a charge thereof against the trustee under the son's will. Held, that the debts of the father, which were not barred by the Statute of Limitations at the death of the father, were charges on the real of L. Cas. 170. estates of the son. O'Connor v. Haslam, 5 H. Cases cited in the judgment: Scott v. Jones, 4 C. & F. 382; Burke v. Jones, 2 V. & B. 275. The Legal Observer, AND SOLICITORS' JOURNAL. "Still attorneyed at your service."-Shakespeare. SATURDAY, OCTOBER 27, 1855. REVIEW OF PROFESSIONAL MEASURES DURING THE LAST HALF-YEAR. 77, 94, where the objections to the Bill are fully stated. The proposed abolition of the testa mentary jurisdiction of the Ecclesiastical Courts, and its transfer to the Court of Chancery or to a new Court of Probate, have often been under consideration. To our readers, who are generally engaged in the affairs of their clients, and rarely attend to their own professional interests, it The rival Bills of Exchange Bills have may be useful at the close of the present also been repeatedly noticed:-the one Volume, to notice the subjects bearing on originating with Lord Brougham in the the practitioners of the Law, which have House of Lords, in imitation of the Scot been mooted before the Legislature or else- tish system of "summary diligence ;"-the where, in the course of the last six months. other introduced by Mr. Keating in the We trust that well-nigh all the important measures of Law Reform have been suffi ciently stated and discussed in these pages, or have formed the subjects of leading articles, observations, or correspondence. We may in the first place advert to the several proposed improvements in the jurisdiction, practice, and course of proceeding in the Court of Chancery, particularly at the Judges' Chambers, the consolidation of the business of the Report Office with that of the Record and Writs, the Administration of Oaths by Solicitors, the Fees of Office and other matters.1 House of Commons, for facilitating the remedies on dishonoured bills and preventing frivolous and fictitious defences :-the latter of which at length received the Royal Assent.3 The alteration in the Law of Partnership and Joint-Stock Companies by limiting the liability of partners, has engaged much of our attention, as will appear by the observations at pp. 193, 254, 273. The result of the Act as finally passed, and its defects have been pointed out at p. 353. The new Statutes of the Session have been printed verbatim in our columns as soon as passed, and have been followed as early as practicable with notes and comments, explaining their effect. A List of the Acts will be found at p. 495. Amongst the special topics of consideration, has been the project (a second time brought forward) for altering the Law relating to Trustees and Executors, and enabling a Joint-Stock Company to become The several other Bills introduced either executors and trustees in family and private into the House of Lords or Commons affairs, and to derive profits from the execu- during the Session, but which were negation of trusts and executorships, contrary tived or withdrawn, have been set forth to the rules of Equity, unless specially pro- fully or briefly according to their degree of vided by the will or settlement. On this importance. Amongst these we may refer important subject, we may refer to pp. 3, to the Leases and Sales of Settled Estates 1 On these topics we refer to pages 4, 55, 94, 154, 255, 373. VOL. L. No. 1,442. Pages 1, 29, 41, 54, 93. 3 See pages 2, 57, 213, 393. D D 494 Review of Professional Measures during the last Half-Year. [LEGAL OBSERVER, (see pp. 42, 47);-the Estates of Intestates; the Judgment and Execution Bill; -the Public Prosecutors' Bill;-the Assizes and Sessions Bill:-whereon observations will be found at pp. 313-316. Passing from the proceedings in Parliament, we may next advert to the several Reports of Commissioners and Parliamentary Committees which have been made during the last six months, all of which have been forthwith laid before our readers; namely, the Reports on County Courts, pp. 21, 45, 59, 73, 115, 246. Bills of Exchange, p. 57. Statute Law Consolidation, 78, 229, 261, 301, 387. Public Peace, 230. Mercantile Law, 364, 382, 420. The important subject of the Remuneration of Solicitors has been discussed in numerous articles, containing various suggestions, not only for the improvement of the present rules of taxation and the increase of the fees comprised in the fixed scale of allowance; but to several proposed new Rules and Principles of Taxation, such as the allowance of a per centage or an ad valorem rate of charge, proportionate to the amount of skill and labour bestowed and the responsibility incurred.* of Costs have also been particularly noticed; and the constructions put by the Courts on the several recent Statutes have been carefully stated. The new Rules and Orders, and the decisions on points of practice have also been promptly given. The proposal to close the Courts and offices, and the chambers of Attorneys at two o'clock on Saturdays, has on several occasions been brought to the notice of the Profession." The proceedings of the several Law Societies have been fully reported; namelyThe Incorporated Law Society, pp. 114, 133, 202, 223, 286, 308, 483. The Metropolitan and Provincial Law Association, pp. 14, 87, 106, 390, 487. The Juridical Society, 230, 244. The Law Life Assurance Society, 163. The Law Association for the Benefit of Widows, 248. The Attorneys' Benevolent Institution, 473. And the United Law Clerks' Society, pp. 147, 180. The Inns of Court and Chancery, and the relation they bear on the status, position, and interests of the Attorneys and Solicitors, have been urged on the attention of the Profession, and the advantages considered by the adoption of measures for asThe urgent proposals for extending the sociating the Inns of Chancery with the Education and Examination of persons ap- Incorporated Law Society in proper meaplying to be Admitted on the Rolls of At-sures for the education and improvement of torneys and Solicitors, have occupied a the second branch of the Profession. See considerable share of attention; and we pp. 433, 486. have been enabled to give due publicity to the Examiners' Questions and the rules and regulations to be observed by the Candidates, with accurate information of the results of the Examination.5 The progress of the numerous Law Bills in Parliament, in any way affecting the Profession, have week by week been noted; and the returns to Parliament of all professional information have been promptly given. The proposed Removal of the Courts from Palace Yard and their erection and enlarge- Such new and important works on the ment in the vicinity of the Inns of Court, Law and Practice of the Courts as appeared including the location of all the offices of necessary to bring under the notice of our Law and Equity under one roof, was re-readers, have been reviewed as early as peatedly advocated in former years, and the practicable. discussion has been recently revived, and the wretched state of the present Courts, their ill-construction and deficient number, have been constantly brought under notice. See pp. 26, 71, 269, 304. The recent decisions on the Law of Attorneys and Solicitors, have been recorded in almost every Number throughout the Volume; the cases determined on the Law See pages 2, 27, 55, 113, 133, 153, 200, 233, 281, 333, 478. 5 See particularly pages 8, 69, 71, 103, 141, 149, 425. The Professional Lists which have been from time to time published, comprise the Admissions of Attorneys; the Renewal of· Certificates; the Dissolution of Professional Partnerships; Law Appointments, Promotions, &c. Under the general head of "Notes of the Week," we have recorded various passing events with occasional remarks thereon, and to these have been added the usual announcements of the Circuits of the Judges, the Sittings of the Courts, and such other |