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To Readers and Correspondents.
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reference to pecuniary matters. The honoraria upon which a EPORTS.
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of £ s. d, and the defendant certainly shewed himself anything but THE BALLACORKISK SILVER, LEAD, AND COPPER MIXING COMPANY LIMITED) v.
a consummate actor. The incident is altogether shocking to pro
fessional feelings and to our sense of decorum, but we do not see W111--Unexecuted testamentary paper 699 --Right of owner of surface to sub.
our way to suggesting any plan for preventing the recurrence of
Testamentary suit-Married woman's COURT OF APPEAL IN CHANCERY.
JUDICIAL COMMITTEE OF THE PRIVY
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LEADING ARTICLES, &o.
An important practical question was decided in Elmer v. Creasy (29 L. T. Rep. N. S. 632), in which it was held that a mortgagee in possession, defendant in a redemption suit, who admits himself to be redeemable, cannot decline answering interrogatories as to the state and particulars of the account. The Lord CHANCELLOR pointed out that the rule as settled by Lord Elpos was that a defendant, submitting to answer (even when he altogether denied the plaintiff's title) must answer fully even as to consequential matters of account. In Elmer v. Creasy one of the objects of the suit was to obtain accounts before the decree. Lord SELBORNE reviewed the authorities which seem to have thrown some haze over the practice, and said finally, “We are not now called upon to determine whether the defendant must, in answer to these interrogatories, set forth as full and detailed a statement of all the items of the account as he might be obliged to give under a decree of redemption. The court may be trusted to exercise a proper control over any attempt on the plaintiff's part to press for any such minuteness of account as would be either vexatious or unreasonable, as indeed, it can do in any case in which it is satisfied that any kind of discovery is required vexatiously or oppressively: (Reade v. Woodrooffe, 24 Beav. 425). But the present question is whether the defendant is entitled to refuse to answer at all, before decree, as to these matters. The Vice-CHANCELLOR has decided that he is not, and with that decision we agree."
SELBY P. NETTLEFOLD
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TO READERS AND CORRESPONDENTS 191
147 Court of Queen's Bench
198 Procedure in Foreign Courts-Commis. sions and Letters Rogatory
198 Supreme Court of Judicature Act, ss, 64, 65 199 Correspondence
199 Appointments under the Joint-Stock Winding up Acts
202 Manchester County Court
The Law and the Lawyers.
There are unconscionable people who think that magistrates have already as large a jurisdiction as it is advisable to confer upon them, and indeed a certain section of the public is so wanting in appreciation of the gratuitous services of these judges that to a certain extent justices' justice has become a proverb. We can easily understand therefore that the proposition of a Somersetshire magistrate that magistrates should preside over Courts of Conciliation in aid of the County Courts will be regarded with a certain amount of consternation. One half of the business entered in a Somersetshire County Court is, it appears, settled out of court. For some incomprehensible reason, the Somersetshire magistrate considers that this is a serious evil. The proposal to deal with disputes by means of a paternal Court of Conciliation is thus put forward by the magistrate in a local paper : “ People take their little disputes to the County Court, and, after having spent much hard-earned money and wasted much valuable time, after having publicly exposed their secret affairs, and given provocation to the gossip of friends, and the malice of the ill-natured, they learn to their mortification that there was really nothing to fight about. A few questions by an intelligent, patient, and sympathising magistrate, would, at the outset, before the difference had been deepened by long delays, and by exasperating formalities into a bitter quarrel, have thrown much needed light upon the difficulty, and perhaps facilitated a reconciliation on the spot.” We thought from the first portion of the letter that the grievance was that so many cases were settled out of court. But it appears from the above that it is the public contention affording gossip to the neighbourhood which is the evil to be got rid of. In short, the proposal is to substitute Courts of Conciliation for the County
Rumours affecting the law have been unusually prevalent during the week, and the most important turns out to have been unfounded. It was stated confidently that Mr. AMPHLETT, Q.C., of the Chancery Bar, had been appointed to the vacancy in the Court of Exchequer. Whether this may ultimately be the case it is impossible to conjecture, but we can say positively that the appointment had not been made when we went to press. Some surprise, and a little consternation was produced in Westminster Hall when this rumour spread, for, the Judicature Act notwithstanding, it is considered that Judgeships in the Common Law
VOL. LVI.-No. 1607.
Courts. Such a proposition cannot be listened to. We venture fee to the barrister, and thus it will be seen that Sir CHARLES to think that “little disputes ” in County Courts do not involve DILKE's quibble is based upon a mistaken hypothesis. The the expenditure of “much hard-earned money” or “much valuable hon. baronet is altogether wrong in supposing that Judges' time." The tribunals are cheap and speedy, and we should be clerks have nothing to do, and the excuse for any outcry is com. very sorry to see the great unpaid substituted for our County pletely taken away by the Judicature Act, which has revised the Court Judges. Magistrates would do wisely in attending to the remuneration to be given to officials connected with the Judges. work given them by the Legislature, without endeavouring to find The leading journal has described Sir CHARLES Dilke as rannew fields of labour.
sacking the contents of a forgotten chest discovered in a neglected
hay loft. Not only so, but it would seem that he has no leisure The administration of the law has lost a very faithful and most
to discover that the abuses which he embellishes and holds up to able servant in Mr. George C. Oke, the Chief Clerk to the LORD
our eyes, are either in course of abolition or of no public moment Mayor. The office which he filled is one of considerable respon
or interest whatever. sibility and difficulty, because every year the chief clerk at the Mansion House has to guide a new chief magistrate. Mr. ORE When the Judicature Act was, as a Bill, passing through the was in effect, the legal assessor of the Mansion House, and was House of Commons, we predicted determined opposition to sects. probably as powerful on matters of law as Her MAJESTY's Judges 64 and 65. They are what we termed the “district registry' sitting with aldermen at the Old Bailey. Probably also he was clauses of the measure, and they transfer to offices scattered over not surpassed by any living lawyer in his knowledge of criminal the face of the country a large amount of business which has hitherto law and the practice of magistrates courts. He long since made been done in London in connection more particularly with common a literary reputation by his "Magisterial Synopsis," the eleventh law actions. Why action was not taken to amend or expunge these edition of which was published in 1872. His“ Magisterial sections when they were only clauses in a Bill we do not underFormulist” has reached a fourth edition, and in addition to these stand-we urged it strenuously enough. We thought it more works, he published treatises on the Laws of Turnpike Roads, particularly to the interest of London agents that the transfer of the Game and Fishery Laws—both of which are in their second preliminary steps in common law actions to the country should edition—and on the Licensing of Inns, &. Mr. Oke must have not take place, but it will appear by a circular, which we reproled a life of severe labour, and he died at a comparatively early duce elsewhere, that country solicitors see that the operation of age. We estimate his works so highly that we considered we the Act will be very inconvenient. The signitaries of that circular owed to his memory something more than the ordinary tribute dislike the prospect of being compelled to employ casual agents in of our obituary column. The office vacated by Mr. Oke will cases where their clients are defendants. They would much prefer doubtless be the object of severe competition. Among the first to to employ their well-known London agents, and if the work is to be announce his candidature is Mr. Thomas Cousins, at present done at a distance they would prefer that it should be done in magistrates' clerk at Portsmouth, a gentleman admitted in 1854, London. The proposal made is that the operation of sect. 64 and who, judging from contributions which he has furnished to should be so modified that a defendant residing three miles from these columns, has a very extensive knowledge of criminal law and the district registry, who swears that he has a good defence, may, practice.
as of course, transfer the proceedings to the principal registry.
Under the Act such transfer can only be made upon the order of a Lord Romilly held another sitting in the European Assurance
Judge. There is a rumour that the operation of the Judicature Arbitration last week. One of the cases heard belonged to a class
Act will be postponed for twelve months. Defects are showing in which there has been some conflict of authority-namely, the
themselves which seem to render this desirable, apart from the
probability that the rules could not be prepared with thoroughness validity of the transfer of shares to a pauper transferee. The
in the limited time now at the disposal of the draftsmen. transferee was found by a share-broker, and due notice was given of the intention to transfer to “GEORGE GILBERT, gentleman,” and the consideration was stated as £29 108. paid to the transferee. A SOMEWHAT important question with reference to the operation of The transferee was approved of by the directors, and the the bankruptcy of a prisoner upon an order of a criminal court transfer registered. It turned but that GILBERT was a pauper for the payment out of the prisoner's moneys of the costs of the coach-driver, and that he had received £7 only, the remainder of prosecution, was raised in Reg v. Roberts before the Queen's the £29 10s. going partly to a transfer clerk of the company and Bench last Michaelmas Term, and reported by us to-day. A fraupartly to the sharebroker. Lord Rouilly indicated his intention dulent stockbroker having become bankrupt, all his property, of of placing the transferor on the list of contributories in the course, became vested in his trustee. The bankruptcy took place winding-up, on the ground, it would seem, that the directors were between the date of his apprehension and conviction. Sect. 3 of not aware that the whole of the consideration was not actually the Act to abolish forfeitures for treason and felony (33 & 34 Vict. received by the transferee. In the Anglo-Australian Company's c. 23), provides that it shall be lawful for any court by which case his Lordship has decided that the covenant to indemnify | judgment shall be pronounced or recorded upon the conviction of given by the British Provident Life and Fire Assurance Society any person for treason or felony in addition to such sentence as to the Anglo-Australian and Universal Family Life Assurance may otherwise by law be passed to condemn such person to the Company, on the amalgamation of the two companies, is not payment of the whole or any part of the costs or expenses limited to the subscribed capital of the society. The grounds of incurred in or about the prosecution and conviction for the offence two previous decisions were relied on-viz,, one of Lord Cairns in of which he shall be convicted. The order was rightly made, and the Albert Arbitration (Re Indemnity Claims, Reilly's Alb. Rep. the question was whether the trustee under the bankruptcy p. 17) and one of Lord WESTBURY in the European Arbitration was entitled to the money in the possession of the prisonor at the (Re British Nation Indemnity Claims, L. T. European Rep: p. 4), time of his arrest. The court intimated that if the bankruptcy but a different result was arrived at. The sitting is now had taken place before the apprehension, there might be some adjourned until the end of this term.
but as it took place afterwards, the order of the court, operated upon the money in the prisoner's possession at the time
of his arrest. Mr. Justice BLACKBURN, however, was careful to SIR CHARLES DILKE has mounted a hobby which, for the sake of guard himself against saying that money not the prisoner's own his reputation, he must ride to death. The reduction of the Civil found in his possession would be affected by such an order. He Service estimates is a subject to which he appears to have devoted said, “I wish to guard against being supposed to say that simply an amount of attention which ought to quality him to inaugurate because money is found on the person of a prisoner at the time of reforms. He began with the Royal Family, and he has at length his apprehension, the Criminal Court may make an order for the reached-sublime consummation !-judges' clerks. Referring to payment of the costs of the prosecution out of it. I am inclined the evidence given before the Select Committee, Sir CHARLES said, to think that if moneys belonging to someone else are found in “In the course of the examination it was shown that the higher his possession, e.g., if the person arrested is a banker's clerk clerks of the judges are paid at so extravagant a rate for duties carrying a bag of gold to the bank, the banker who is the owner almost non-existent, that the practical effect was to enable men of the money would have a right to interfere in such a case high up at the Bar to have their work done for them in the against any order being made. I also wish to guard myself anticipation of those sinecures at a lower rate than they would against being supposed to decide that if the prisoner was adjudi. otherwise have it done for, on the assumption that the leading cated bankrupt by reason of an act of bankruptcy committed men at the Bar would subsequently be Judges, and that there- before his arrest, the trustee might not have a right to intervene. fore those clerks would be paid fout of the public pocket.” Nothing appears in the present case to raise this point. So far as Has Sir CHARLES Dilke any notion of the manner in which appears the prisoner at the time of his arrest was in possession of barristers' clerks are paid ? When we inform him that before moneys which he might have disposed of in any way he pleased." their employers are made Judges, clerks are paid out of the public pocket quite as much, and sometimes more than they get from their “sinecures” as Judges' clerks, he may possibly be surprised.
SALES BY TRUSTEES. A barrister “high up in his profession” does not pay his clerk The question what protection trustees are entitled to claim from anything, and certainly no bargain is made between them with a their character as such in acting as vendors of property, is one of view to the possibility-remote in all cases save those of the general importance, which is usefully illustrated by a recent case law officers of the Crown--of the barrister being promoted to in which Vice-Chancellor Malins and the Lords Justices differed the Bench. The suitor pays the clerk's fee independently of the in their views-as unfortunately too frequently happens. In the
court below the case of Dance v. Goldingham is reported 28 L. T. TRUSTEES AND THE COMMUTATION OF EAST INDIA Rep. N. S. 391, and in the Lords Justices Court, 29 L. T. Rep.
STOCK. N. S. 166. We may mention that the case is additionally in- HALF or nearly half of the City article of the Times of the 14th teresting by reason of some observations of Lord Justice James inst. consists of criticisms and correspondence in relation to the on the costs incurred in consequence of reckless allegations conditions offered by the India Office to the proprietors of East of fraud which were made but abandoned.
India Stock for the commutation of their holdings. This stock, There was a sale of land by tr ees, and amongst the condi- amounting to £6,000,000, bears, under the 3 & 4 Will. 4, c. 85, a tions of sale were the following: “(4.) All recitals and statements ten and a half per cent. dividend, and is made liable to redemption in abstracted instruments, and in the particulars of sale shall be at the rate of £200 sterling for £100 stock on or after the 30th accepted as conclusive evidence of the matters recited, stated, or April 1874, on twelve months' notice in writing signified by the referred to. (5.) The title to the several lots shall commence with Speaker of the House of Commons by the order of the House an indenture dated the 12th March 1858, under which the pre- given to the East India Company. Šuch notice having, as we mises became vested in the vendors as trustees for sale, and no presume, been duly given for the 30th April next, the Secretary earlier or other title shall be called for or required except at the of State for India, acting, or assuming to act, under the powers purchaser's expense in all things, and as the vendors are trustees conferred by the 36 Vict. c. 17, by a circular or advertisement of for sale, they shall not be called upon to enter into any other the 3rd inst. offered in lieu of £2,350,000 of the said stock covenant than that they have done no act to encumber.”
£3,000,000 Reduced £3 per cent. Annuities at the rate of £220 In the indenture of 1858 a settlement of 1819 was recited which Reduced £3 per cent. Annuities for £100 East India Stock, and conveyed a certain estate to trustees for the term of 500 years £2,000,000 India Four per Cent. Stock redeemable in 1888 at par, upon trust in the events which happened to raise the sum of being at the rate of £200 of such stock for £100 East India Stock. 30001. for the portions of the children of the marriage as therein It was announced in the same circular that the applications of mentioned and subject thereto the estate stood limited to the use proprietors for either of the above stocks would receive attention of the husband and wife for their respective lives, with remainder in the order in which such applications should be received at the to their first and other sons in tail. The trustees were unable to India Office; and that so much of the East India Stock as exceeded discover this settlement of 1819, and therefore inserted the fifth the £2,350,000, and so much of that amount as did not come in for condition in the conditions of sale. By the deed of 1858, in the commutation under the circular, would be paid off in cash on the events which happened, the plaintiff in the suit became entitled 30th April. The 31st of the present month was fixed as the last to one thirty-fifth share of a residue of the proceeds of the day for receiving assents. estate, which was a very small amount. A person became the East India Stock being one of the stocks in which trustees have purchaser of the estate who knew of the existence of the deed been by law empowered to invest, the issuing of the circular would of 1819.
in many cases put trustees on an inquiry whether they would be The principal ground relied upon by the bill was that the fifth safe in accepting it. There can be no question that both the condition of sale was unnecessarily depreciatory, as a good market- stocks offered by way of commutation are stocks which trustees able title could be deduced by the vendors from a date anterior to (unless expressly forbidden by the language of their trusts) the year 1858, and that the conditions had materially prejudiced might have purchased in the open market with funds under their the sale, and prevented various persons from bidding, and that in control. In the case of the India £4 per Cent. Stock the point is consequence the property had been sold at less than its market expressly provided for by 36 Vict. c. 32, s. 16. Purchase, however, value. The sale was also impugned on the ground of fraud, and differs from commutation, and the 36 Vict. c. 17, s. 12, expressly also on the ground of insufficient advertisements, but neither of requires a trustee, executor, or administrator to obtain the directhese grounds was sustained.
tion of a Judge of the Court of Chancery in England or Ireland, or The Vice-Chancellor came to the conclusion that by the exercise of the Court of Session in Scotland, before assenting to a commuof ordinary diligence the deed of 1819 might have been found, tation in cases where all persons beneficially interested, do not and disapproved of the condition inserted in the conditions of consent in writing, or are under legal disability, or if the trust be sale. But going thus far he hesitated to decide that the sale was such that persons yet unborn may become interested. As has to be set aside as against an innocent purchaser. “With regard been pointed out in the money article of the Times, this section to the duties of trustees,” his Honour said, “there is very con- will operate as a trap for unwary trustees; and as to cautious siderable difficulty in this case; because, although there may be trustees desirous of commuting, but unwilling to do so without a remedy against the trustees, a man who attends a public auction the sanction of the court, the delay incident to an application to bids for property under certain conditions to which he is not party the court, even if an order should be obtainable before the or privy, the motive for introducing which he knows nothing of, end of the present month, will so far prejudice them in the race and it is very difficult to say, that if the conditions are unduly for priority that the sanction of the court after all the trouble restrictive, the purchaser who attends the auction must neces- and cost of obtaining it, will probably be altogether nugatory. sarily lose the advantage of his purchase. I do not think the To what extent however is a trustee who disregards the requiredoctrines of this court go to that extent.”
ments of the 12th section and commutes without the direction of a The Vice-Chancellor fully recognised that where the purchaser Judge liable as for a breach of trust? The answer to this had been mixed up with the irregularity of the trustees he could question we apprehend must depend on the price of the stock not receive the benefit of his purchase; but he held that the fact accepted in commutation on the 30th April next. If the stock so of his knowledge of the existence of the deed of 1819—knowledge accepted be then less in amount than the redemption value of the which others might have acquired by due diligence--did not affect East India Stock (£200 per centum) would suffice to purchase in his purchase. The right of the cestui que trust to file a bill in such the market, for the difference in value a trustee would, we think, a case was clearly upheld by the Judges in both courts; and the be clearly accountable. If, however, at that date the difference in Lords Justices were particularly emphatic in saying that, however value were in favour of the stock accepted in commutation, but small the interest of the cestui que trust, the right would still the price of the stock afterwards fell, and the difference were the exist. Consequently, the point was reduced to this-was the sale other way, the question of the liability of the trustee would, it so conducted as to bind the cestui que
might fairly be argued, depend on whether the fact of the stock As we have said already, the Vice-Chancellor recognised the accepted in commutation being a stock which a trustee would negligence of the trustees in not discovering the deed of 1819, but be justified in purchasing and holding would exonerate him from he considered that the condition of sale objected to was not so pre- a fall in price occurring subsequent to the 30th April. Unless judicial to the property as to call for the exercise of the power of on the ground that the original breach of trust had not been the court to deprive an innocent purchaser of his purchase. Some purged, we think a trustee would not be liable for a fall in price; cardinal doctrines were laid down in the judgment of Lord Justice and we think also that the doctrine of non-purgation of a breach James which should be carefully considered-(1) The cestuis que of trust would be carried to an extreme and unreasonable extent, trust have a right to have their property sold without anything if applied to such a case. being done which is calculated to depreciate it. (2) The purchaser Since writing the above we observe that it has been notified by under a mere contract of purchase is not entitled to insist upon a the India Office that applications for the full amount of £2,000,000 transaction being completed which, as between the cestui que trust India Four per Cent. Stock have already been received. and the trustees, is a breach of trust. If, the Lord Justice reasoned, the contract of purchase was one which could not be enforced against the purchaser as having its origin in a breach of
DUTIES PAYABLE BY REASON OF DEATH. trust, neither could he claim the performance of it.
(Continued from p. 158.) The Lords Justices were most particular in the protection which The fifth case to which we shall refer, viz., The Executors of Perry they threw around the plaintiff, holding that it would be pessimi v. The Queen, relates to probate duty, and the facts of which wers exempli to say that where a breach of trust has been committed as follows :--R. P., by his will made in 1857, in effect gave all his against a cestui que trust interested in a very small share of the real and personal property to his son, C. P., and appointed him trust property, the loss sustained by him by reason of the breach sole executor. C. P., by his will made in 1864, gave all his real of trust is so small that it is not sufficient to justify a Chancery and personal estates to the suppliants and another upon certain suit. Upon this point there can hardly fail to be general concur- trusts for the benefit of his children and others, and the suppliants rence; but the position of a purchaser under such circumstances were appointed executors. C. P. died in 1864 and R. P. in January seems to be one of considerable hardship. True, he was reminded 1865, and at the death of the latter the children of C. P. were all that he had a remedy against the trustees, but what remedy the living. The suppliants proved the will of C. P. in March 1805, court did not proceed to say.
swearing the value of the personal estate under 60,0001., and they
paid a stamp duty of 7501. The suppliants also obtained a grant
The sixth case to which we shall refer, viz., Attorney-General v. of letters of administration with the will annexed to the estate of Lemas, has also reference to probate duty. We have not yet R. P., swearing his estate under 70,0001., and they paid a stamp
received our report of this case, but we gather from that given by duty of 9001. It was subsequently, however, ascertained that the the Times of the 21st Nov. last that the facts were as follows: B. estate of R. P. was under the value of 60,0001. The personal estate
by will devised and bequeathed his real and personal estates upon proper of C. P. was of the value of 9001. only, and his debts ex- trust for conversion and investment of the proceeds to be held ceeded that sum. The suppliants had, however, treated the resi- upon trust, after payment of certain legacies and annuities, for B.'s duary personal estate of R. P. as part of the estate of C. P., but children on their attaining the age of twenty-one years with a gift afterwards considering they had improperly included it in their orer in case of their all dying under that age. B. left an only estimate for probate as it was not the property of C. P. at the time child, a daughter, C., who died, unmarried, under twenty-one, and of his death, they presented a petition for a return of the duty.
the gift over failed to take effect as, we presume, at the death of B., The case turned upon the construction of the 33rd section of the so that at B.'s death C was, as his heiress-at-law and next of kin, Wills Act (1 Vict. c. 26), which enacts that where any person,
absolutely entitled to his real and personal estate, subject to the being a child or other issue of the testator, to whom any real or payment of debts, and the legacies and annuities. At the death personal estate shall be devised or bequeathed for any estate or
of C. the real estate had not been sold, but the Crown claimed interest not determinable at or before the death of such person, probate duty upon its value upon the ground that the direction for shall die in the lifetime of the testator, leaving issue, and any
sale had caused an absolute conversion in equity for all purposes, such issue of such person shall be living at the time of the death and that view was entirely adopted by the court. of the testator, such devise and bequest shall not lapse, but shall
As we before remarked, there is at least one instance in which take effect as if the death of the such person had happened im
a direction to sell real estate does not effect an out and out conmediately after the death of the testator, unless a contrary inten- version even as regards the beneficiaries themselves. The instance tion appear by the will.
to which we refer is in case one of such beneficiaries is a married The court considered that the bequest to C. P. was to take
It is perfectly well known that where a married woman effect as if he had survived his father, and that if he had is entitled, under wills and other instruments, dated previously to actually survived probate duty would have been payable, and 1857, to a reversionary interest in personal property, she cannot in therefore it was payable.
any manner (except by fraud: Lush's Trusts, L. Rep. 4 Ch. App. 591) Although perhaps the decision of the court is legally and techni- dispose of such interest so as to deprive herself of her equity to a cally correct, it cannot for a moment be assumed that the framers of settlement out of the fund upon its falling into possession, or of the Act contemplated such a liability when they framed the section. her right to the fund in case she survive her husband. If, how. Previously to the passing of the Wills Act if a legatee or devisee ever, the reversionary property consist of realty directed to be died in the testator's lifetime, the gift to such legatee or deviseo
sold, a married woman can, with her husband's concurrence, and .absolutely lapsed. It was, however, considered hard that grand- by deed acknowledged by her, effectually dispose of her interest children should not take the interest given to their parents by their in the money to arise by the sale: (Briggs v. Chamberlaine, 23 grandfather's will, and the clause in question was inserted in the L. J., N. S., 635, Ch., decided by Lord Hatherley, then Wood, V.C.; Wills Act. Upon its face it bears evidence that it was drawn and Tuer v. Turner, 24 L. J., N. S., 663, Ch., decided by Lord with a view of benefiting the children of the deceased child, and Romilly.) the children alone, for the legaoy is only to take effect in the The true principle of conversion seems to us to have been stated double event of the children surviving the testator as well as their
by Lord Cranworth in Taylor v. Taylor (22 L. J., N. S., 743, Ch.), parent. We presume at the time it was considered best to leave where, after dissenting from the decision in Phillips v. Phillips, he the mode of distribution to the child, but whether wisely or not is
said: “The result of the authorites is, that where there is a doubtful. The effect of the section is to give a deceased child, direction to sell real estate, and that the proceeds shall form part who leaves a child who survives his grandfather, absolute power of the personal estate, the true construction is that the conversion of disposition over the property, so that it not only becomes liable takes effect so far as is necessary to carry out the objects and to the payment of his debts, but may be left by his will so that his intentions of the testator, but when the object fails the direction child may never obtain any part of it, and it appears from the case does not take effect. In case of lapse the personal estate goes to under consideration that others besides the children were benefi- the next of kin, not because the testator intended it, but because cially interested under the will. It appears to us that it would the law carries it to them. So as to the real estate, the law gives have been better to have provided that the issue who survived the it to the heir, and the law would do the same if the testator said child should take the benefits intended for him.
that his real estate should not go to his heir but omitted to make So far as regards the question of duty the effect of the section a valid devise of it.” In that case Lord Cranworth decided by appears preposterous, as it causes probate and legacy duties, and reason of the death in the testator's lifetime of one of the probably succession duty to be payable in respect of property to
legatees of a mixed fund, arising from the conversion of the real no interest in which a man was entitled at the time of his death. and personal estate, that the share of such legatee in the proceeds Let us suppose a simple case : A. has two sons, B. and C., equally of the real estate of the testator was to be deemed real estate, and between whom he leaves the whole of his property. B. dies intes
had lapsed for the benefit of the co-heiresses of the testator. tate in his father's lifetime, leaving an only son, D., who survives In the case before us, C. obtained the real estate, because she A. But for the Wills Act, D., as the son of the eldest son of B., was B.'s heiress at law, and as she could not, being an infant, and consequently A.'s heir-at-law, would have taken the share of alter the actual state of the property when it passed to her, and as the realty given to B., and D. would also have taken one-fourth of it was in fact real estate at the time of her death it must, we A.'s personal estate. Probate duty would have been payable should think, pass in its actual condition. The conversion did under A.'s will, and D. would have paid succession and legacy duty
not affect the real nature of C.'s estate, although the trust for at one per cent., upon the real and personal property passing to
sale would, had it been exercised in Ci's lifetime, have changed him. By the operation, however, of the Wills Act, V. takes one- the property coming to her from realty to personalty. As, half of the real and personal estate of A., subject however to the however, no change had taken place at her death, the property payment of the following duties, viz., probate duty under A.'s will, would pass as real estate to the person who would then be the and legacy duty at 1 per cent., under A's will
, and succession heir at law of B. if he were the last purchaser. duty at 1 per cent., calculated upon the basis of the age at which
(To be continued.) B. would then have been, the fiction making B. survive the testator, and sect. 21 of the Succession Duty Act by the aid of the fiction making the duty payable as if B. had been in existence, and
THE LIABILITIES OF HUSBANDS FOR DEBTS if he had then been in existence his death would not have caused
CONTRACTED BY THEIR WIVES. a cesser of the duty so all the instalments must be paid. In addi- The subject of a husband's liability for debts contracted by his tion to which there would be probate duty, and legacy, and suc
wife, having recently attracted much attention, we reproduce a cession duties under the intestacy of B.
portion of a pamphlet published two years ago by Mr. Falconer, Doubtless the proposed effect of sect. 33 was a boon to a portion à Judge of Welsh County Courts. This pamphlet contains his of the public, but why should they pay so dearly for it? Why Honour's exposition of the law applicable to the case then before should the public in doing what was simply an act of natural
him. He said: justice fetter the gift with such heavy conditions ? We think the The law presumes that contracts made by the wife for the supply of matter only requires to be properly stated and an alteration will
articles necessary for the use of the family are made with the authority take place in the law. As the issue of the deceased child are the
of the husband, that is, that they are made by her as his agent. As a
rule, other contracts made by her must be shown to be made by his only objects considered worthy of notice, it seems to us that the express authority; that is, his authority is not implied, and his assent desired end would best be attained by providing that where any
must be distinctly given or obtained. So far back as the year 1703, in the person, being a child or other issue of the testator to whom any case, Etherington v. Parrot (Raymond's Reports, 1006), Lord Chief Justice real or personal estate shall be devised or bequeathed for any
Holt said: “ If a husband turn away his wife (that is, without sufficient estate or interest not determinable at or before the death of such
cause) he gives her credit wherever she goes, and must pay for necessaries
for her ; but if she run away from him he shall not be liable to any of her person shall die in the lifetime of the testator leaving issue, and contracts, for it is the cohabitation that is the evidence of the husband's any such issue of such person shall be living at the death of the assents to contracts made with his wife for necessaries. But if the testator, the lapse of such devise or bequest shall operate in favour
husband has solemnly declared his dissent that she shall not be trusted, of such surviving issue in such and the same manner as it would
any person that has notice of this dissent trusts her at his peril after, have done had such issue been the only lineal issue of the testator,
for the husband is only liable upon account of his own assent to the
contracts of his wife, of which assent, cohabitation causes a presumption unless a contrary intention appear by the will.
-for the wife has no power originally to charge her husband, but is
absolutely under his power and governmont, and must be content with what he provides. Here were sufficient necessaries provided, and also the husband had forbidden anyone trusting her, and the notice to the defendant's servant, usually employed by him in his trade, was a good notice to his master the plaintiff--and he, the plaintiff, cannot charge the defendant.” In that case the wife was described to be an extravagant woman, who used to pawn her clothes to bay drink, and used to be drunk, and the husband gave notice to the defendant's servant to trust her nó more. On that occasion, also, Chief Justioe Holt added, what may show the necessity of giving notice to the husband of the dealings of the wifethat if a wife take up silks and pawn them, before they are made into clothes, the husband shall not be liable for the silks, because they never came to his use. (See Comyn's Dig: Tit : Baron and Feme: [Q]:-If & wife buy necessary apparel for herself, the assent of the husband shall generally be intended, but, in these days, a tradesman is only safe when he informs the husband that the wife proposes to charge his credit. Lord Abinger, in the case of Emmett v. Norton (8 C. & P.510), said, “ Where the wife is living with the husband, and in the ordinary arrangement of her husband's household she gives orders to tradesmen for the benefit of her husband and family, and these orders are proper and not extravagant, it
is presumed she has the authority of the husband for so doing. This rule ! is founded on common sense, for a wife would be of little use to her
husband in domestic arrangements if she could not order such things as are proper for the use of a house, and for her own use, without the inter. ference of the husband.” In another case, Freestone v. Butcher (9 C. & P: 613), that learned Judge said, “The general rule is that the wife cannot bind her husband by her contract, except as his agent. There are, how. ever, cases in which the juries may infer such agency. In the case of orders given by the wife in those departments of her husband's household which she has under her control, the jury may infer that the wife was the agent of her husband until the contrary appear. So for such articles as are necessary for the wife--such as clothes-if the order is given by the wife, and she is living with her husband, and nothing appear to the con. trary, the jury do right to infer agency ; but if the order is excessive in
i point of extent, or, if when the husband has a small income, the wife gives extravagant orders, these are circumstances from which the jury will infer there was no agency on the part of the wife. The tradesman who supplies the goods takes the riek; and, if the bill is of an extravagant nature, such as the husband would never bave authorised, that alone would be sufficient to repel the inference of agency. Where a gentleman of the legal profes. sion had a limited income, and his wife incurred debts for millinery to an extravagant amount, the jury found,
and they were quite right in so finding, there was no authority on the part of the wife to contract the debt.”
The plaintiff in such cases has the burden of proof cast on him, and he is bound to prove that the goods were supplied on the credit and by the authority of the husband. If the thing is out of the ordinary course the jury ought to insist on strict proof. In this last case the jury found for the defendant, under the direction of the Judge. The fact of the husband having sold some of the goods supplied to the wife and received money for them, did not in itself, in point of law, make the husband liable for them -it was only a circumstance for consideration in determining the question, whether, in buying the goods the wife were acting by the authority of the husband or not. The question is, whether the goods were supplied on the credit of the husband, and if the wife were acting as the agent of her hus. band in the purchase of such things which were necessary for herself and family, her implied authority as such agent being unchecked by the act of the husband.
The inference of non-agency may be presumed when the circumstances under which the debt was contracted are such as the assent of the husband to the contract cannot be presumed : (Montague v. Bene lict, 3 B. & C. 631 ; Seaton v. Benedict, 5 Bingh. 28.) In Montague v. Espinasse (1 C. & P. 359), Lord Chief Justice Abbot said: "Persons parting with goods ought to take some care-tor if tradesmen are allowed to trust rashly, any man may be ruined. If the tradesman who wishes to run no risk on the question, whether the purchase is made by the authority of the husband or not, it is his duty, in all eases where the order is large, to ask the husband before the goods are supplied-whether the order was given by his authority or not? In short, the question is, were the goods supplied by the authority of the husband or not? If they were, then, and then only, is the plaintiff entitled to a verdict.” In another case (1 6. & P. 505), against the same defendant, that most emineat Judge, Sir J. Holroyd, said: “I am clearly of opinion that a husband can only be liable even for necessaries furnished to his wife when the wife is not supplied by him; and, therefore, if a tradesman supplies her, without first ascertaining that she is not supplied by her husband, or that she has authority from her husband, such trades. man supplies the goods at his own risk. If she is supplied with neces. saries by her husband, a tradesman can only recover for such goods as he supplied to her with her husband's assent; and, that the husband did assent must be proved, on the part of the plaintiff, in every action founded on such supply of goods. And to charge the husband, it is not enough that the wife should have asserted that she had her husband's authority; for, if it were, a wife might go to many tradesmen and pretend she had her husband's authority for the orders she gave, and any man might be utterly ruined in a few days by the imprudence of his wife. And Lord Tenterden added, that their decision in this case would be sometimes bene. ficial to husbands, fathers, and friends; but it would be most beneficial to those who have goods to sell, as it will make them moro cautious of letting their goods go from their hands without knowing who will pay for them; and, he added, that the experience of courts of justice shows us, that persons very frequently indeed have sold their goods without the slightest chance of ever getting paid the price for them. In the
of Atkins v. Curwood (7 C. & P. 756), it was held that if a married lady, who has sufficient clothes, go contrary to her husband's wish to a watering-place, and go to balls, and for that purpose orders dresses, some of them of an expensive kind, and unsuitable to her hus. band's circumstances, the husband is not bound to pay for any of them, and in an action for the price of the dresses it is immaterial whether the plaintiff knew these facts or not, and whether the clothes the lady had before were paid for or not, and the fact that the husband afterwards saw some of the dresses does not vary the case, if it be shown that he disap: proved of the conduct of his wife in ordering them. Lord Abinger told the jury, “ It was the duty of the wife to have lived with the greatest economy, instead of that she ordered expensive dresses to go to balls. If you believe on your oaths these things were necessary for this lady, considering the situation and circumstances of her husband, and that she had no supply from any other place, give your verdict for such amount as you think proper ; but, if I were in your place, I should not hold out such an example-an example, the consequence of which may be that any man may be consigned to å prison by the extravagance of his wife.” Again,
in the case of Spreadman v. Chapman (8 C. & P. 371) Lord Denman said : “The defendant in this case is only liable on an implied contract, and it is not for him to prove having given notice to the plaintiff not to sapply goods to his wife, but for the plaintiff to satisfy you that the defendant's wife contracted this debt by the authority of her husband.” And in the case of Mizen v. Pick (8 C. & P. 373) Alderson, B., said, “The question does not turn on want of notice, but the agency of the wifo. Did the wifo contract the debt by the authority of her husband ?” “If the husband leaves the wife without support, the law says, he gives to her authority within reasonable limits to pledge his credit for things necessary for her support. If he makes her a reasonable allowance, she has no authority to contract debts in his name at all; but that the plaintiff had notice of the reasonable allowance is immaterial. He trusts a married woman at his own risk.” When a husband living with his wife makes her sufficient allowance for dress, he is not liable for dresses which have been supplied to her without necessity, and without his knowledge, and the fact of the wife having, within a particular period, purchased various articles of dress from different tradesmen, is admissible in evidence to rebut the presumption of implied authority which arises from the marriage : (Renaur v. Teakle, 8 Ex. 680.). Tho proper question for the jury, even when the husband is living with his wife, is not merely whether the goods, in respect of which the action was brought, were necessaries suitable to her station, but whether upon the facts proved she had any authority, express or implied, to bind her husband by the contract, and when the former question alone was put, the court granted a new trial : (Reid v. Teakle, 13 C. B. 627 ; 2 Smith's L. C. 422.)
The logical conclusion from these cases is well expressed in the decision of the well-known case of Jolly v. Rees (33 L. J. 177; 15 C. B. 628) made in the month of February 1864. It was argued in that case, that, unless notice to the contrary were given, the wife, during cohabitation, was the accredited agent of her husband, and had a right to pledge his credit for necessaries, though he ordered her not to do so, and although he had not supplied her with an adequate sum of money in order to purchase neces. saries. The defendant (Rees), prior to the year 1861, had told his wife not to pledge his credit with anyone, and desired her, if she wanted any necessaries, to come to him, and he would give her an order on a tradesman for them, and he would supply her with money. All the household affairs were managed by the defendant, and he gave orders to the tradesmen for things required in the house, but the goods in question were supplied to the wife without his knowledge. The goods supplied consisted of drapery and millinery goods suitable for persons in the position of Mrs. Rees, and the prices were fair and reasonable. The defendant allowed £50 a year to his wife to dress herself and daughters, but this sum was not paid with regularity. The defendant did not know of these goods, some of which had been ordered by letter-others by orders given to the plaintiff's tra. veller-and finally, a large order having been given by the wife, the plaintiff very properly wrote to the defendant and asked " if it had his concur. rence. The defendant replied that it had not, and that he did not intend to be answerable for the goods already supplied. Chief Justice Erle said the plaintiff raised a presumption of the defendant's liability, by showing that the goods were ordered by defendant's wife for the use of herself and children, while living with him. The defendant rebutted this presumption by showing that he had forbidden his wife to take goods on his credit, and had told her if she wanted money to buy goods she was to apply to him for it, and there was no evidence that she had so applied and had been refused. The plaintiff proved in reply that the goods were necessaries suitable to the estate and degree of the defendant; that the wife had £65 a-year, and that the defendant had promised to allow £50 a year in addition, but had not paid it regularly, and had not supplied her with such necessaries, or with money sufficient for the purchase thereof. The plaintiff also showed that he had received no notice of the defendant's prohibition to his wife to take up goods on his credit. Those facts were in effect found by the jury, and the question was raised : Whether the wife had authority to make a contract binding on the husband for necessaries suitable to his estate and degree, against his will, and contrary to his order to her, although without notice of such order to the tradesmen ? My answer, said the Chief Justice, is in the negative. The wife cannot make a contract binding on the husband unless he gives her anthority, as his agent, to do so.
Taking the law, he said, to be that the power of the wife to charge the husband is in the capacity of being his agent, it is a solecism in reasoning to say that she derived her authority from his will, and at the same time to say, that the relation of the wife creates the authority against his will, by a presumptio juris et de jure from marriage ; and, if it be expedient that the wife should have greater rights, it is certainly inexpedient that she should have to exercise them by a process tending to disunion at home and pecuniary distress from without. The husband sustains the liability for all debts; he should, therefore, have the power to regulate the expenditure for which he is to be responsible, by his own discretion, and according to his own means; but if the wife, taking up goods from a tradesman, can make her husband's liability depend on the estimate by a jury of his estate and degree, the law would, practically, regulate his expenses by a standard to be set up by that jury-a standard depending upon appearances-perhaps assumed for a temporary purpose with intention of change. Moreover, if the law is clear, that the husband is protected from the debts incurred by the wife without his authority, not only in the ranks where wealth abounds would speculations on the imprudence of a thoughtless wife be less frequent than they are, because less profitable-but also in the ranks where the support of the household is from the labour of the man, and where the home must be habitually left in the care of the wife during his absence at his work-more painful evils from debts which
the husband never intended to contract, would be avoided. Mr. Justice Byles did not agroe with the majority of the court. “The husband," he said, "seems to me to represent her to tradesmen as being, within certain limits, his domestic manager, and, therefore, responsible for her contracts within the margin of the apparent authority. No private reservation of authority, or private agree. ment between husband and wife, not communicated to a tradesman honestly dealing with the wife by supplying necessaries for the family, in the ordinary course of domestic affairs, can affect the tradesman's right to rely upon the apparent authority of the wife.”
Ruddock v. Marsh (1 H. & N. 601; 28 L. T. Rep. 290) was a case where an action was brought to recover £10 for groceries. The defendant was an engine-fitter, and his business frequently took him away from home for a fortnight or three weeks, and sometimes for a month at a time. By arrangement, his master paid his wife, during his absence, 258. per week. This was paid regularly, but the wife, nevertheless, incurred the debt of £10 for grocery, which was sued for. Chief Baron Pollock delivered the judgment of the Court of Exchoquer (Nov. 1856) and said: “That the wife was the agent of the husband to bind him with respect to those matters