« EelmineJätka »
Analytical Digest of Cases: Chancery Appeals.
according to the 18 Eliz. c. 3, and the income or the property had greatly increased: Held, that an administration of the charity, which made no increase in the number of wayfarers relieved, or in the amount of the viaticum, was not a proper one, and that a scheme ought to be directed upon an information being filed, although it did not pray relief in respect of the administration of this part of the charity.
Quare, whether the payment (after making provision for poor travellers) of the residue of the income to the parish officers in ease of the rates was a proper administration of the charity.
Where a charitable gift is ambiguous, it may be interpreted by the aid of contemporaneous usage, but no length of usage will warrant a deviation from the terms of a trust which the court regards as plain, and the court did not hold itself bound as to such deviation by proceedings in former suits, in which the question did not directly arise. - Attorney-General v. Corporation of Rochester, 5 De G. M'N. and G. 797.
And see Costs.
See Winding-up Act, 1.
CONSTRUCTION OF WILL.
See Will, 2, 3, 4, 5.
Public Company― Director— Confirmation.—The 7 & 8 Vict. c. 110, s. 29, requiring that a contract or dealing between a company and any director shall be submitted for confirmation "to the next general or special meeting of the shareholders, to be summoned for that purpose." Held, to mean that the contract or dealing shall be submitted either to the next general meeting of the shareholders, or to a special meeting of the shareholders, or to a special meeting of the shareholders summoned for that particular purpose.
Where a report was read and adopted at a general meeting, and contained a notice of a resolution respecting an advance of money by directors of the company: Held, that it was a sufficient submission to the shareholders of the terms of the advance, supposing it to be a contract or dealing within the meaning of the above section, as to which quære.
The case of Teversham v. Cameron's Coalbrook &c. Railway Company (3 De G. and S. 296) observed upon. Murray's Executors' case, 5 De G. M'N. and
And see Railway Company.
See Winding-up Act.
Appeal for, on charitable information.-There must be a substantial ground for an appeal on the part of defendants to a charity information to exempt them from payment of costs, and the intimation of the opinion of the court below upon the substance of the case in pronouncing a decreee which contained no declaration, and merely directed a scheme, was not held to constitute such a ground.
Attorney-General v. the Corporation of Rochester, 5 De G. M'N. and G. 797.
And see Mortgagees.
Interlocutory application Acquiescence—Breach of covenant.-Acquiescence in the violation of a covenant to a certain extent held a sufficient objection to an interlocutory application for an injunction against a greater violation of it.
Where, on a motion for an injunction to restrain an alleged breach of covenant, the question in dispute appeared doubtful: Held, that the burden of proof was on the plaintiff to show that the balance of convenience was in favour of granting the injunction.-Child v. Douglas, 5 De G. M'N. & G. 739.
See Principal and surety.
Payment of rent into court-Specific performance.— A railway company having agreed to let its line to another, which had taken possession under the agreement, filed a specific performance bill against the other, which thereupon gave notice that it would pay the rent into court. The plaintiffs then gave the defendants notice, that unless the rent was paid to the plaintiffs, interest would be claimed on it under 3 & 4 Will. 4, c. 42, s. 28. The defendants obtained exparte an order that they might be at liberty to pay the rent into court, and paid it in accordingly : Held, that they thereby obstructed the recovery of interest at law, and that the court had jurisdiction to order payment of interest.-The Hull and Selby Railway Co. v. The North Eastern Railway Co. and others, 5 De G. M'N. and G. 872.
And see Vendor and purchaser.
See Will, 3.
See Will, 5.
Analytical Digest of Cases: Chancery Appeals.
Widow-Interested motives.-In making a settlement of property belonging to a wife, the court looks not only to the portions of her fortune which the husband may have already received, but to all the circumstances of the case, and particularly to the husband's conduct.
Where, therefore, a widow about to marry again assigned all her property, except a life interest in the income of £10,000 Consols, to which she was entitled under a former settlement, in trust for her separate use during the coverture, and afterwards in trust for herself, if she survived, or, if not, for the second husband, and it appeared that he had married her from interested motives only, and there had been a divorce à mensa et thoro for adultery on his part, the court settled the whole income of £10,000 Consols on the wife, irrespectively of the question whether it had been by mistake or otherwise left out of the settlement.-Barrow v. Barrow, 5 De G. M'N. and
Promissory note-Insurance-Indemnity.-One of the makers of a joint and several promissory note, who was a surety for the other, effected an insurance on the life of the latter, with his privity and concurrence, for an amount equal to that secured by the note. The principal died, having appointed the surety his executor, and the surety received the insurance money: Held, that to the extent to which it was not required for indemnifying the surety, it ought to be applied in payment of the debt.-Lea v. Hinton, 5 De G. M'N. and G. 823.
Contract-Specific performance.-An agreement between a railway company and railway contractors (who were also land owners) for the construction of a branch railway, provided that the company should find the land within a reasonable time and build the stations; that the contractors should give a bond to the amount of £50,000 to secure the performance of the contract, and undertake to execute the works for a double line of railway, and the ballasting and permanent way for
a single line, according to the terms of a specification to be prepared by the engineer for the time being of the company; that the company shoulp work the branch in a reasonable and proper manner as compared to the remainder of the main railway; and that in case of difference as to working, the same should be settled by arbitration; and that any of the details of the arrangement, in case of difference, should be determined by a referee to be appointed by the Solicitor-General for the time being: Held, on demurrer, that this agreement was too vague, obscure, and uncertain, to be enforced in a specific performance suit, and that the stipulation as to the execution of a bond could not be enforced apart from the rest, being merely an incidental and subsidiary part of the agreement, and not within the principle of Lumley v, Wagner, where the negative stipulation was a distinct and substantive part of the contract.-South Wales Railway Company v. Wythes, 5 De G. M'N. and G.
Partner Assignment of shares-Indemnity.-The rule that he who seeks equity must do equity, is restricted to an equity in respect of the subjectmatter of the suit.
Where, therefore, in a deed of dissolution of partnership, one partner assigned certain foreign shares (which were recited to be transferable, as it was believed, by delivery), and covenanted for further assurance; and the other partner covenanted to indemnify the former against certain liabilities; and it afterwards appeared that the shares were not transferable by delivery, but required a formal act to complete the assignment: Held, in a specific perormance suit instituted by the assignee of the shares, that he was entitled to have the assignment completed, although there might in the meantime have been on his part a failure to perform the covenant of indemnity.-Gibson v. Goldsmid, 5 De G. M'N. and G. 757.
And see Agreement; Interest; Railway Company.
STATUTE OF LIMITATIONS.
See Vendor and purchaser.
VENDOR AND PURCHASER.
Interest on purchase money-Statute of Limitations -Acknowledgment by agent.-A contract for the sale of an estate, made iu March, 1811, stipulated that the purchase money should be paid on the 13th of May following.
The purchase money was not paid, but the purchaser entered into possession, and he and persons claiming under him, continued in such possession. In 1834, their agent signed a written acknowledgment of the vendor's title sufficient to take his lien for the principal of the purchase-money out of the Statute of Limitations 3 & 4 Will. 4, c. 27. s. 40. In 1849, the assignees of the vendor filed a bill
Analytical Digest of Cases: Chancery Appeals.
seeking to enforce the vendor's lien on the estate for the purchase-money: Held, that the 42nd section of the statute did not apply to the arrears of interest, but that the whole was recoverable from the 13th of May, 1811.-Toft v. Stevenson, 5 De G. M N. and G. 735..
See Marriage settlement.
1. Subsequent revocation-Real estate. The expression, “This is my last will and testament," does not operate as a revocation of a former will, without words to that effect, as regards real estate.-Freeman v. Freeman, 5 De G. M'N. and G. 704.
2. Construction-Limitation for life-RerocutionAccelerating remainders.-The words "from and immediately after his decease " following a limitation for life, in general point out the order of limitation merely. Where, therefore, a testator revoked a limitation for life, which was followed by these words, introducing subsequent limitations: Held, that the remainders were accelerated.-Lainson v. Lainson, 5 De G. MN. and G. 754.
3. Construction-" Cousins" - First cousins only entitled.—Where a bequest is to "cousins," simpliciter first cousins only will, in the absence of anything to explain the meaning of the testator, be entitled.Stoddart v. Nelson, 6 De G. M'N. and G. 68.
4. Construction-Estate for life.-A testatrix devised her real estates to trustees in trust as to the rents, issues, and profits thereof for all and every the children now or hereafter to be born of my niece, M. C., "who shall be living at my decease, during their lives, in equal shares, and for the survivors and survivor of them for life, &c., and after the decease of the survivor, in trust for all the lawful issue, male and female, of such of the children of my niece now or hereafter to be born as shall be living at my decease, in equal shares and proportions as tenants in common, and not as joint tenants, and the heirs of the body and respective bodies of all and every the issue of the said children, and on the death and failure of heirs of the body of any one or more of the issues of the said children," &c., in trust for the survivors, &c. At the testatrix's death, her niece had two daughters, one of whom was married, and had issue five children: Held, that the daughters of the niece took estates for life, with remainder to their issue as purchasers.—Parker v. Clarke, 6 De G. M1N. and G. 104.
5. Construction-Gift-Loan-Chief clerk's certificate Practice.- The will of J. A. contained the following passage:-"I forgive to my said nephew, Jacob Appleford, the debt of £2,000, which I advanced to him on loan;" the testator had, on occasion of his nephew going into partnership, advanced to him £2,000 for his own use, and had also, at the same time, lent to the partnership different sums, the nephew's proportion of which would have amounted to about £2,000: Held, that whether the £2,000 was to be treated as having been a gift to the nephew or not, the testator intended in the above passage to refer to it, and not to the proportion of the partnership debt due from the nephew.
On an inquiry directed at the hearing, the chief clerk certified that the advance of the £2,000 was a gift, and not a loan: Held, that whatever effect this certificate might have on the hearing on further consideration, it could not be disputed by a party who had neither taken out a summons nor moved to have
it varied. Smith v. Armstrong, 6 De G. M°N, and G. 150,
And see Appointment.
1. Contributory—Removal of name on motion—Appeal-Laches-Call for costs-List of contributories— Compromise.-In 1851, a managing director of a provisionally registered projected railway company submitted to be placed on the list of contributories, under the Winding-up Acts, on the authority of Upfill's case. On a call being made, in 1854, on him and other contributories for the costs of winding up the company, he appealed, and at the same time moved that his name might be removed from the list of contributories, on the ground of the law being changed by Bright's case. The Vice-Chancellor (having directed the notice of motion to be served on the other contributories and the creditors who had proved) made an order staying all proceedings under the winding-up order: Held—
1. That such an order could not properly be made on the motions before the Vice-Chancellor, some of the persons served not having appeared.
2. That Bright's case having been decided in 1852, the application of the contributory in 1854 to be relieved from his submission to be placed on the list was made too late.
3. That the call for costs would have been properly made if there had been a proper list of contributories; but
4. That there being no list properly settled, but merely one having in many instances informal abbreviations placed opposite to the names in the list, and in others marks importing that the case of the person named was adjourned, without showing that it could not have been disposed of, no call could in that state of the proceedings be properly made.
5. That persons who have notice of a compromise between the official manager and any contributories must, if they wish to disturb it, taks proceedings at once for that purpose.
Underwood's case, 5 De G. M'N. and G. 677.
2. Mining company on cost-book principle-Transfer of shares-Contributory-Partner-Antecedent liabilities.-The rules of a mining company carried on upon the cost-book principle provided that no shareholder should dispose of his shares without giving notice in writing to the purser of the intended transfer, and that every transfer should be according to a particular form provided for that purpose. The form was printed, and contained a notice that no transfer was valid or complete unless entered in the cost-book and acknowledged by the purser. A shareholder agreed to transfer his shares, and the proposed transferrce stipulated that the transferror should pay the calls then due. They went together to the office of the company, and deposited with the purser a transfer of the shares executed by them both, and in the required form, and the transferror paid the calls, but no notice in writing was given of the transfer, nor was there any formal acknowledgment on the part of the purser.
Held, that the transferree was properly placed upon the list of contributories.
Held, also, that he was liable to the debts of the company incurred before the transfer.
Semble, by the Lord Chancellor, that where partnership articles provide that a partner may transfer his shares, they mean that he may so transfer them as to put the transferree in his place as to antecedent liability. Mayhew's case, 5 De G. M'N. and G. 837.
The Legal Observer,
SATURDAY, DECEMBER 27, 1856.
THE SOLICITORS' JOURNAL AND
THE editorial columns, the legal news, and the correspondence of the Law Times have been turned into machines for propagating misrepresentation as to the origin and objects of the SOLICITORS' JOURNAL. The authors of the scheme for a new law newspaper are stated to be "seven agency houses," and their motive is declared to be, to bring about a "centralization" of legal business, which shall benefit themselves at the expense of their provincial brethren. Now, upon the simple question of fact-Who are the originators of the new journal ?-a very brief statement will suffice. There are sixteen Provisional Directors of the Company, of whom nine are Metropolitan and seven are Provincial solicitors. It is no
doubt true, as stated in the Law Times, that the seven names entered at the Registrar's Office as promoters of the new Company are all names of solicitors practising in London. They are simply the seven signatures which could be most expeditiously obtained to the necessary documents; and the fact that they all belong to London proves nothing as to the share which London men have taken, or will hereafter take, in the affairs of the projected newspaper. As, however, the new journal is to be published in London, it is undoubtedly true that the London Directors are likely to be most active in its management; but there is no pretence for saying that any one of the Provincial solicitors named in the prospectus is not as much interested in the success of the undertaking as his London colleagues. The fact is that the scheme first assumed a practical shape at Liverpool in October last. Provincial solicitors were among its most active and earnest advocates at the outset, and they continue to be its most zealous friends. It is true that their own more immediate duties prevent their attending regularly the meetings of the Directors in London, but their time and thoughts are nevertheless employed in promoting a scheme of which they thoroughly approve.
But, whatever be the exact share of the London Directors in the management, it is simply untrue to say that the firms to which they belong are all "agencies." Six of the Provisional Directors either have no agencies
whatever, or their business is of such a characters, that no one acquainted with the pro
VOL. LII. No. 1,503.
fession would think of classing them as agents, and it is strange that the self-elected organ of the Solicitors should have fallen into so gross an error. The remaining three Directors have large agency connections.
Now if the Law Times is thus proved it can scarcely be necessary to refute the to be completely wrong in point of fact, injurious imputations it has superadded. The new journal has been set on foot by a combination of town and country solicitors for the general good of the profession. It is not got up by " agency houses" and will not be conducted by "agency houses" exclusively, and it is not designed to promote, and will not be wrested from its legitimate purpose into promoting the petty personal views and interests of any individual or section either in town or country.
And, further, the Law Times supplies a forcible answer to itself. It argues, that" the seven agencies, who have enormous work of their own to occupy their time and thoughts," would not take upon themselves the task of getting up a newspaper "without some overwhelming motive of personal interest," namely, the augmentation of the business of their own offices. But men who have already as much work as they can do are not likely to be moved exclusively by the desire to get more work. Besides, it is probable that any "centralizing" change in the practice of the law would tend to give business to other London houses, rather than to increase the business of the existing "agencies." And, if the country Solicitors were injured by such a change, we cannot doubt that their agents in town would suffer by the same blow.
But, surely, the general body of solicitors is not itself so base and sordid as to believe that base and sordid motives can alone predominate in individuals. Why should not the sixteen Provisional Directors of this new Company be presumed to act upou the motives they have themselves alleged, at least, until the contrary is proved, and not merely asserted by the Law Times? They profess to think-and surely they have a right to their own opinion—
"that their branch of the Profession has never been adequately represented by any organ in the press." The Law Times, no doubt, thinks its own advocacy all-sufficient; but the feeling of dissatisfaction with it is neither new nor partial. It would be easy to justify this feeling by reference to the history of past years; but we believe that if any dispassionate reader will peruse a recent number of the Law Times,
The Solicitors' Journal and Reporter.
he will demand no further proof of the reality
The recent numbers of the Law Times have appealed to its subscribers and the Profession generally for a vote of confidence. The "response of the Profession" to this appeal has been published in the shape of supplements, and about eight hundred solicitors in town and country have returned such answers as it suited the Law Times to publish, either wholly or in part. It is not, however, by any means impossible that many more letters may have been received, which it would be decidedly unsafe to print. And, besides, we apprehend that the witnesses thus produced to the merits of the Law Times, are not, in general, the most influential solicitors of the districts from which they write.
said that the LEGAL OBSERVER was "the only journal promoting the interests of the Solicitors," but that it was "the only journal which distinctively represents the Solicitors." The complaint of the Law Times on this head, therefore, is wholly groundless. Nor is it at all more true, as stated in the same journal, that the Metropolitan and Provincial Law Association was formed "through the medium and by the help of the Law Times." This extravagant assertion must surprise and amuse many members of the Association, who have been hitherto unconscious of its illustrious parentage.
The intentions and acts of the projectors of the SOLICITORS' JOURNAL have throughout been open and undisguised. Their object has always been to establish a legal, and not a general, newspaper. Nevertheless, they desire that their journal should so select its subjects, and so handle them, as to attract the non-professional reader, and gain from the public at large a fair hearing for the reasonable demands of the solicitors. The proprietor of the Law Times is an individual, and may without injustice be supposed to pursue, however he may disclaim it, his own peculiar interest. But the proprietors of the SOLICITORS' JOURNAL are exclusively solicitors in town and country, and it may be confidently affirmed that the newspaper they themselves establish will most efficiently protect their rights, and enforce their claims. It will be especially devoted to the interests of solicitors; but it will not, therefore, as suggested by the Law Times, have any tendency to widen the separation between solicitors and any other class, or to lower the social rank of the body which it is designed to elevate. Nor is it alone the pursuit of individual interests that is objected to the Law Times. The personal aims of the proprietor of that journal, and of his associates, have been habitually prosecuted by methods which must be fatal to the respectability and influence of any newspaper. It has long been a source of grave dissatisfaction to solicitors to see that a journal which chose to constitute itself their patron, was made the ordinary vehicle of what we can only describe as puffing. The character thus gained by the advocate must be fatal to the cause, and besides, it injuriously affects the character of the client.
These feelings, widely spread in town and country, have led to the undertaking of the SOLICITORS' JOURNAL. The majority of the shareholders in the Company are country solicitors, whose voice in the management will be at least as potential as that of their London brethren. The scheme of "centralisation" ascribed by the Law Times to certain of the promoters, never entered into the minds of any of them; and if they had conceived such an idea, they certainly would not have united with the very men who must suffer most The authors of the new scheme have never severely from carrying it out.