NELSON. WILKINSON Originally subject to the trusts of such settlement to which she would have been entitled at her mother's death if no appointment had been made. Drafts of the proposed appointment and settlement were on the same day prepared in the office of Mr. Nelson; but, in consequence of the great expedition required in the preparation of the same, there was no time for a careful consideration of the effect of the provisions contained in the settlement of 1829 and the will of Mr. Malcolm, and the fact that there was no hotchpot clause in such settlement or will escaped observation. By an indenture of appointment dated the 17th July, 1854, Mrs. Malcolm, in exercise of the power given to her by the settlement of 1829, irrevocably appointed that, after her decease, one-seventh part of the trust funds comprised in the settlement of 1829, bequeathed by the will of her father, should be in trust for her daughter Adelaide absolutely. This indenture of appointment did not contain any hotchpot clause. By an indenture of settlment dated the 19th July, 1854, all the seventh part, share, and interest of Miss Adelaide Wilkinson of and in the trust funds comprised in the said settlement and will, and appointed by the said indenture of the 17th July, and all other her part, share, and interest in the said trust funds, were settled in the manner therein expressed. The marriage was solemnised on the following day. There was issue of the marriage. [ *482] On the marriage of Mr. Montague Wilkinson in 1856, Mrs. Malcolm, by a deed dated the 3rd January in that year, made an irrevocable appointment (subject to her life interest) in his favour of so much of the trust funds subject to the trusts of the settlement of 1829 and her father's will as, with the sum previously appointed to him, should be equal to one-seventh part of the trust funds subject to the trusts of the settlement of 1829 and of the trust funds bequeathed by the will of Mrs. Malcolm's father. This indenture of appointment did not contain any hotchpot clause. Mr. Park Nelson prepared the deed, but the fact that in the settlement of 1829, or the will of Mrs. Malcolm's father, there was no hotchpot clause, again escaped observation. By an indenture of settlement dated the same day Mr. Montague Wilkinson's interest under such appointment was settled in the manner therein expressed. There was issue of the marriage of Mr. Montague Wilkinson. Mrs. Malcolm died in 1857, having by her will, dated in 1856, given all the residue of her property to her executors, to be divided, after payment of her debts, in seven equal parts, among her seven children. After Mrs. Malcolm's death, and when the trust funds came v. NELSON. to be divided, it was observed by Mr. Nelson, for the first time, WILKINSON that the settlement of 1829 did not contain a hotchpot clause. All the parties interested in the trust funds, who were competent to admit, admitted that in executing such appointments it was the object and intention of Mrs. Malcolm that each of her children to whom any share in the trust funds was appointed should take no other part than he or she would have been entitled to in default of any appointment, and that the omission of the hotchpot clauses in the two appointments of July, 1854, and January, 1856, was a mistake, which was probably owing to the extreme haste with which it was necessary that the first of such appointments should be prepared. The bill prayed that it might be declared that the two appointments of the 19th July, 1854, and the 3rd January, 1856, were executed by Mrs. Malcolm under a mistake as to the effect of the same, and that, having regard to the instructions given by her, each of the settlements ought to be rectified by the insertion in each of a clause similar to the usual hotchpot clause. The material allegations and statements contained in the bill were verified by the evidence of Mr. Nelson. R. Palmer, Q.C., and E. F. Smith, for the plaintiffs, cited The Duke of Bedford v. The Marquis of Abercorn (1), Baker v. Paine (2), Ramsbottom v. Gosden (3), Ball v. Storie (4), and The Marquis v. The Marchioness of Exeter (5). Follett, Q.C., and Martindale, for some of the family, took no part in the discussion. Hardy, who appeared for Mr. and Mrs. Harvey and their infant children, cited Barrow v. Barrow (6). Sir J. ROMILLY, M. R., said he had read the evidence in this case, and he considered that the question of intention was established by it. It had been urged powerfully and accurately by Mr. Hardy, that the question was as to the intention of the donee at the time of exercising the power, and not what would have been her intention if the result of what she did had been present to her mind. It was impossible to read Mr. Nelson's affidavit without coming to the conclusion that the intention was to produce equality, and that it was not thought necessary to provide expresssly for that intention, because it was believed that the earlier deed effected that object. The real intention was to produce equality, and his Honour, therefore, would make a decree in the terms of the prayer of the bill. (1) 43 R. R. 200 (1 My. & Cr. 312, 322). (2) 1 Ves. Sen. 457. (3) 12 R. R. 207 (1 V. & B. 165). (4) 24 R. R. 170 (1 Sim. & St. 210). Jan. 28. 1861. May 4. [545] BAIL COURT. COKE AND ANOTHER V. JONES. (7 Jurist, N. S. 545 ; S. C. 9 W. R. 618; 4 L. T. N. S. 306.) The Judge of a county court directed a jury that the plaintiffs were entitled to a verdict, but only for nominal damages; they, however, returned a verdict for 107.; the Judge then directed it to be entered for 1s. More than a year afterwards this Court was moved for a rule calling upon the Judge to enter a verdict pursuant to the finding of the jury: Held, that the application was too late. TOMLINSON moved for a rule, under the 19 & 20 Vict. c. 108, s. 43 (1), calling upon the Judge of the County Court of Montgomeryshire, or his deputy, and the Registrar and the defendant, to show cause why a verdict for 10l. should not be entered for the plaintiffs pursuant to the verdict of the jury. On the 20th April, 1860, the cause was heard in the Montgomeryshire County Court before a jury, and the Deputy Judge, in summing up, told them that the plaintiffs were entitled to a verdict, but that it should be for nominal damages only. The jury, however, returned a verdict for 10l.; upon which the Deputy Judge ordered it to be entered for 1s. only. (WIGHTMAN, J.: The act complained of appears to have been done more than twelve months ago. Has nothing been done in the matter since ?) A letter was written to the Judge on the 24th December, 1860, but beyond that nothing appears to have been done. WIGHTMAN, J.: I think the application is too late. Rule refused. (1) Repealed: see now County Courts Act, 1888, s. 131. HOUSE OF LORDS. THE BRITISH LINEN COMPANY v. THE CALE- 1861. March 19. Lord CAMPBELL, L.C. Lord CRANWORTH. Lord WENSLEY DALE. Lord (7 Jurist, N. S. 587-588; S. C. 4 Macq. 107; 9 W. R. 581; 4 L. T. N. S. 162.) A proposal was made to the C. Insurance Society by W. H., one of their local agents, for an insurance on the life of A. K. for 8007., and for a loan of 450l. to the proposed insurer, on the security of the policy. A bond and other documents, purporting to be signed by A. K. and his sureties, were forwarded to the Insurance Company by the agent, who requested the money to be sent to him by letter of credit, for A. K. The Insurance Company then paid to the appellants, the B. L. Company, 4377., receiving a letter of credit to honour the drafts of A. K. at I., which they forwarded to W. H., who forged the CHELMSFORD. signature of A. K. to the order, and received the cash. W. H. absconded it was then discovered that the signatures to all the KINGSDOWN. documents were forged. On action brought by the Insurance Company against the appellants to recover the amount of the letter of credit: Held (affirming the decision of the Court of Session), that W. H. could not be considered the agent of the Insurance Company to receive the amount of the letter of credit; and as the money had been paid on a forgery, the B. L. Company were liable. Per the LORD CHANCELLOR : This is the ordinary case of bankers paying money upon a forged cheque, in which the bankers would have to bear the loss. Per Lord WENSLEYDALE: The money was deposited for a particular purpose, and was to be paid out upon the draft of A. K. No draft of A. K. was ever given; the Company, therefore, had a right to demand the return of the money. Observations upon the case of Orr v. The Union Bank of Scotland (2). THIS was an appeal from a decision of the Second Division of the Court of Session in Scotland, in an action brought by the Caledonian Insurance Company, against the British Linen Company, to recover the sum of 436l. 7s. 5d., being the amount of a letter of credit in favour of one Andrew King, the ground of the action being, that the appellants did not pay the money in the terms of their undertaking, but paid it to another upon a forged signature of King. In 1853 William Harvie, to whom the money was paid on the forged signature, was the local agent of the Insurance Company at Dalry. He devised, and carried out, a fraudulent scheme, whereby he induced the respondents, the Insurance Company, to believe that Andrew King, then residing at Brachenridge, was desirous of effecting with them a policy of insurance on his life for 800l., and, in connexion with the policy, of obtaining a loan from them of 4501. They agreed to both proposals, by having transmitted to William Harvie a bond for the loan, for the purpose of obtaining the signatures of Andrew King and certain others as sureties. He returned it, apparently executed by all parties in regular form. (1) Cited, Conflans Quarry Co. v. Parker (1867) L. R. 3 C. P. 1, 9, 12. R.R.-VOL. CXXIII. (2) 1 Macq. 513. 59 Lord [587] THE BRITISH The respondents then purchased from the appellants, who were the British Linen Company, the letter of credit, in this form: LINEN COMPANY v. THE CALEDONIAN INSURANCE COMPANY. 66 "To the Agent for the British Linen Company at Irvine. 'SIR, Please to honour the drafts of Mr. Andrew King on account of this Company, 4361. 7s. 5d., on advice. 66 "I am, Sir, your most obedient Servant, Entered-B. S. M." And transmitted it to Harvie, who presented it to the appellants' agent at Irvine, with the name of Andrew King forged on the back of it, and thereupon obtained payment of the money. Harvie paid the amount of the premium as it became due on the policy, and also the first instalment payable under the securities. He absconded in July, 1854, when the fraud was discovered. There was evidence that the agent of the bankers at Irvine had, by reason of his knowledge of Harvie, and belief in his honesty, been satisfied with his answers to inquiries, that King was a client of his, and unable to come to Irvine, because he was an old frail man. The British Linen Company pleaded to the action, and alleged that Harvie was the agent of the Insurance Company, and that as the loss was occasioned by his frauds, they were not liable. The Court of Session decided that the British Linen Company were liable; and the present appeal was then brought. The Attorney-General (Sir R. Bethell) and Anderson, Q.C., appeared for the appellants. They referred to Orr v. The Union Bank of Scotland (1) and Young v. Grote (2). Rolt, Q.C., and Pattison, for the respondents. LORD CHANCELLOR: My Lords, I must say that this appears to me to be a very clear case, lying within a very short compass. I do not understand this to be an action, as has been suggested by the Attorney-General, whereby the pursuers seek to be indemnified for a wrong done by the defenders. It is an action brought to recover a sum of money which the pursuers deposited with the defenders for a certain purpose. Now, it is quite clear to me, that if the fraud upon the pursuers, which Harvie concocted, had been discovered at any time before the payment was made by the defenders, the pursuers would have been entitled to recover the money which they had deposited. Then the question is, (1) 1 Macq. 513, (2) 29 R R. 552 (4 Bing. 253). |