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JONES

ፖ.

THE CONSOLIDATED INVESTMENT ASSURANCE

COMPANY.

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or not? *I entertain no doubt that this letter constitutes an assignment in equity, where alone, as it is a chose in action, it could be assigned. That being so, it is clear, that in the terms of the condition endorsed on the policy, it "has been assigned to other parties," and that this assignment was made, not six months, but four years, "before the death of the assured."

I dissent from the doctrine, that, according to the terms of this letter, the assignment must be considered as constantly recurring, and that a fresh assignment would be required as each liability was incurred. It was given to a person with whom the assured intended to have dealings, as a security for the balance on the transactions.

As to the consideration, I think that the moment a sum became due from Edward Woolcott to the plaintiff, it constituted a good and valuable consideration for the purpose of supporting the assignment so made. It is true that if nothing had been due on it at the time, or if the balance had been on the other side, there would be no beneficial interest in the plaintiff or anything which this Court could give effect to. But the assignment would be perfectly good, though the beneficial interest in the thing assigned, viz. the policy, might sometimes be very small and sometimes very considerable.

I do not therefore doubt that there was here a perfectly good and valid assignment, within the terms of the policy, and that it was made "six months before the death of the assured."

The next question is, what is the construction of the letter, because, if it is only a security for money then *actually due, it will not cover subsequent advances. Though this is obscure, I do not think that such is the construction of the letter; but the parties themselves, in their subsequent dealings, seem to have put a construction on it of which it is susceptible, and which is favourable to the plaintiff's claim. The policy is to be held as a security, in case of death, "for any notes of hand or bills of exchange you may have cashed for me." This means. not "now," but "then," that is, at any time when the event may occur. The policy was not taken back when the sum actually due at the date of the letter was paid off, but it continued for more than three years in the hands of the plaintiff, and the parties continued to deal with each other on the same. footing and in the same manner as if the policy were a security for the floating balance; and on the death of Woolcott there were bills and notes which the plaintiff had cashed and iscounted for Woolcott.

am therefore of opinion, first, that there is a good assign

JONES

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THE CON

ment of the policy, and secondly, that it covers all notes of hand and bills which the plaintiff may have cashed for Woolcott at his death, and consequently, that in respect of these, the plaintiff SOLIDATED is entitled to recover.

Take a decree for what is due on that footing.

INVESTMENT
ASSURANCE
COMPANY.

POWELL v. HELLICAR.

1858.

Dec. 14.

(26 Beav. 261-262; S. C. 28 L. J. Ch. 355; 5 Jur. N. S. 232; 7 W. R. 171.) Immediately before her death, the deceased told A. to take the keys Rolls Court. of a dressing-case and box, containing a watch and trinkets, and immediately on her death to deliver the watch and trinkets to the plaintiff. A. did so: Held, that this did not constitute a valid donatio mortis causâ.

ELIZABETH FUIDGE died on the 13th of July, 1858. She was possessed of a watch and various trinkets and other articles which were in her dressing-case, and of certain other trinkets which were kept locked up in a box. The keys of the dressing-case and box were on the same ring, and were always kept by Elizabeth Fuidge. In the week immediately preceding her death, Elizabeth Fuidge, while suffering under the illness of which she died, and in the immediate expectation of death, who was then staying at Weston-super-Mare for her health, told Mary Fisher to take the keys of the dressing-case and box, and to keep the same, and immediately after her (Elizabeth Fuidge's) death, to deliver the watch and trinkets which were in the dressing-case and box to the plaintiffs. In accordance with such direction, Mary Fisher immediately took the keys and kept them in her sole. custody until the death of Elizabeth Fuidge, and, after her death, Mary Fisher delivered to the plaintiff Catherine Elizabeth Powell the dressing-case and box, with the watch and trinkets therein contained, and the same remained in her possession.

At the time when the keys were delivered to Mary Fisher, the dressing-case was in Elizabeth Fuidge's room at Weston, but the box was at her residence at Clifton.

The plaintiffs insisted, that the gift of the watch and *trinkets by Elizabeth Fuidge was a good, valid and effectual gift, as a donatio mortis causâ.

Mr. R. Palmer and Mr. Freeling for the plaintiff, argued that there had been a good symbolical delivery, to the common agent of both parties, by the deceased, while in the expectation of approaching death, and that this constituted a good, valid and effectual gift of the watch and trinkets as a donatio mortis causâ. They cited Duffield v. Elwes (1), Bouts v. Ellis (2), Snellgrove v. Baily (3).

(1) 30 R. R. 69 (1 Bligh, N. S. 497; 1 Sim. & St. 239).

(2) 99 R. R. 66 (17 Beav. 121).
(3) 3 Atk. 214.

ROMILLY,

M.R.

[261]

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POWELL

Mr. Selwyn and Mr. Lindley, for the respondents, were HELLICAR stopped by the COURT.

V.

1858.

Dec. 21.

Rolls Court.
ROMILLY,
M.R.
[263]

[ 264 ]

The MASTER OF THE ROLLS, after referring to Bunn v. Markham (1), Farquharson v. Cave (2), and Reddel v. Dobree (3), said, that he could not hold this to be a good donatio mortis causâ, for there had been no delivery.

IN RE FAULDING'S TRUST.

(26 Beav. 263–266; S. C. 28 L. J. Ch. 217; 4 Jur. N. S. 1289.) Bequest to my niece and such of my nephews and nieces as shall be then living, and the children of such of them as shall be then dead, such children to be entitled only to the part of their parents: Held, that the children of a nephew who died in the life of the testatrix participated.

THE testatrix made her will in December, 1825, and died in January, 1826, and the question arose upon the construction of her will.

She gave her real and personal estate to trustees, in trust to sell, convert and invest the produce, and after payment of annuities to her brother, upon trust to pay and divide the remainder "unto my niece Elizabeth Chapman, and such of my nephews and nieces as shall be then living, and the child and children of such of them as shall be then dead, in equal shares and proportions and amounts, in common, and not as joint tenants, such child or children to be entitled only to the part, share and proportion of his or their parent or respective parents,' and to be paid "as and when" they shall severally attain twentyone years, with interest for the same in the meantime, towards his, her or their education and support."

The state of her family was this: She had three nephews and one niece, of whom Henry died in her lifetime, leaving six children.

Mr. Jessel contended that the children of Henry were excluded; for that they took by substitution for their father, who being dead at the testatrix's death, could not himself have taken: Christopherson v. Naylor (4), Butter v. Ommaney (5), Peel v. Catlow (6), Gray v. Garman (7), Tytherleigh v. Harbin (8),

(The MASTER OF THE ROLLS referred to Ive v. King (9).)
Mr. Horsay, in the same interest.

Mr. Keene and Mr. Yool, contrà, were not heard.

1) 17 R. R. 497 (7 Taunt. 224).
70 R. R. 258 (2 Coll. 356).
(3) 51 R. R. 233 (10 Sim. 244).
15 R. R. 120 (1 Mer. 320).
28 R. R. 6 (4 Russ. 70).

(6) 47 R. R. 263 (9 Sim. 372).
62 R. R. 107 (2 Hare, 268).
(8) 38 R. R. 121 (6 Sim. 329).
(9) 96 R. R. 23 (16 Beav. 46).

THE MASTER OF THE ROLLS:

In the view I

I think that Henry's children take a share. take of this case, I do not think that Butter v. Ommaney and Tytherleigh v. Harbin are irreconcilable, or that it necessarily follows that if one stands the other must fall. The view I took of the point in Ive v. King (1), I am still disposed to adopt. It is thus stated in page 53 of the report of that case, "The distinction which is to be found in cases of this description is to this effect: If a testator give a legacy to a class of persons, such as the children of A., and goes on to provide, that in case of the death of any one of the children of A. before the period of distribution, the issue of such child shall take their parent's share; such issue cannot take unless the parent might have taken, and consequently, if a child of A. be dead at the date of the will, or at the death of the testator, the issue of that child cannot take anything. This is the principle I have already stated in Coulthurst v. Carter (2) to be established by Peel v. Catlow (3), Waugh v. Waugh (4), Christopherson v. Naylor (5), and many other cases."

"But if the original legacy be not to a class, but to a named individual legatee, with a direction that in case of death of the legatee before payment, the legacy is to go to another person, although the death of the *legatee occurs before the death of the testator, the gift over takes effect upon the presumption that such ulterior legatee was substituted in order to prevent a lapse of the legacy. This is decided in Miller v. Warren (6), Darrel v. Molesworth (7), in Houghton v. Harrison (8), in Mackinnon v. Peach (9), and in several other cases."

In Butter v. Ommaney (10) the case was of this description: The residue was given to be equally divided between the children. of his brother Joseph and his late sister Betty, and late brother Jacob, "who should be then living." These were the class of persons to take. "And as to such of them as should be then dead, leaving a child or children, such child or children were to be and stand in the place or places of his, her or their parent or parents." The VICE-CHANCELLOR held, that the children of such children of the brothers and sisters of the testator as died in the testator's lifetime were not entitled. But this will appears to be quite distinct from that. The words here are: "to my niece Elizabeth Chapman, and such of my nephews and nieces as shall be then living, and the child and children of such of

(1) 96 R. R. 23 (16 Beav. 46).
(2) 92 R. R. 489 (15 Beav. 421).
(3) 47 R. R. 263 (9 Sim. 372).
(4) 39 R. R. 129 (2 My. & K. 41).
15 R. R. 120 (1 Mer. 320).

(6) 2 Vern. 207.

(7) 2 Vern. 378.
(8) 2 Atk. 329.

(9) 44 R. R. 283 (2 Keen, 555).
(10) 28 R. R. 6 (4 Russ. 70).

In re FAULDING'S

TRUST.

[ *265 ]

In re FAULDING'S

TRUST.

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1858. Dec. 15.

1858. Nov. 20.

them as shall be then dead." This is the class of persons to take; it is not as if she had said "to Elizabeth Chapman and my nephews and nieces who shall be then living, and as to such of them as shall be then dead leaving children, such children are to stand in the place of the parent." But the testatrix puts amongst the class of persons who are to take the children of deceased nephews and nieces; and she puts them, in this respect, exactly in the same situation as she had Elizabeth Chapman and her nephews and nieces then living. He then goes on to direct what shares the various members of the class are *to take as between themselves, and he directs that such children are not to take equal shares with the nephews and nieces, but the children of a nephew and niece are only to take amongst them such share as the parent would have taken. That appears to me to distinguish this case from Butter v. Ommaney, and to make it clear that the testator intended that the children of a deceased nephew should take.

Declaration that the children of Henry take one-fourth.

CANHAM v. NEALE.

COBBOLD v. NEALE.

(26 Beav. 266–267.)

In the case of two creditors' suits, when one is stayed after a decree in the other, the costs of the plaintiff in the suit thus stayed are added to his debt unless the executor has assets available to pay those costs.

DURANTY'S CASE (1).

IN RE THE LIVERPOOL BOROUGH BANK.

Rolls Court. (26 Beav. 268-275; S. C. 28 L. J. Ch. 37; 4 Jur. N. S. 1068; 7 W. R. 70; 32

ROMILLY,

M.R.

[268]

L. T. O. S. 114.)

Where, by false representations of the directors of a Company, a stranger is induced to take shares directly from the Company, the transaction is voidable by him, but where he has only been thus induced to purchase shares from third persons, he cannot repudiate the shares thus acquired.

THE above Bank was established in 1836, and on the 17th of October, 1857, it stopped payment. It was registered on the 11th of November, 1857, under the Joint-stock Banking Companies Act, 1857, and on the 12th of November, 1857, resolutions were passed dissolving the Company (except for the purposes of winding up), and determining that the Company should be wound up voluntarily, under the Joint-stock Banking Companies Act, 1857. A petition was subsequently presented for the continuance of the voluntary winding-up, and on the 21st of December, 1857, an order was made accordingly, "with liberty for the creditors, (1) Peek v. Gurney (1871) L. R. 13 Eq. 79; affirmed L. R. 6 H. L. 377, 43 L. J. Ch. 19.

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