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ESTATE AND EFFECTS OF WHAT KIND SOEVER. REAL ESTATE.
Superior Courts: V. C. Wood.- Queen's Bench. tors and trustees on the same trusts as declared authority: Held, that the defendants' right by the will as to the real estate therein com- of stoppage in transitu was gone. prised, and the estate was afterwards conveyed In this case it appeared that the defendants to the testator to the usual uses to bar dower. had stopped in transitu a cargo of corn pur, On the death of the testator in September, chased of them, and which had not been paid 1832, the eldest son entered into possession of for, and that the bill of lading had been transthe property at Stockwell, in accordance with ferred to the plaintiffs with the defendants' the opinion of the late Mr. Preston that the authority before such stoppage, for a valuable subsequent conveyance revoked the codicil. consideration. The youngest child attained the age of 21 in
Cur. ad. vult. September, 1851, and this special case was The Court said, that as the defendants being stated, the eldest son being defendant, and the unpaid vendors had prima facie a right of stopother children plaintiffs. W. H. Terrell for the plaintiffs ; Rolt and such right was gone. A bill of lading would
page in transitu, it laid on the plaintiffs to show A. Smith for the defendant.
not pass by delivery for a valuable consideraThe Vice-Chancellor said, it was the intention, like a bill of exchange, without regard to tion of the testator, by his codicil
, to confirm who made the transfer, but it was necessary to the arrangements of his will. The subsequent show it came into the plaintiffs' hands before conveyance, however, had taken the estate at the stoppage, with the defendants' authority. Stockwell out of the codicil, and was an estate As it appeared from the evidence, therefore, of which the testator died seised. There must, that the defendants had so authorised the therefore, be a declaration for the heir to elect transfer, the plaintiffs were entitled to judg. whether he would take it and abandon his in- ment. terest under the will, or convey the estate and accept under the will.
Regina v. Jervis. May 4, 1854.
WEIGHTS AND MEASURES' ACT.-APPOINTCourt of Queen's Bench.
MENT OF POLICE SUPERINTENDENTS AS O'Toole v. Brown and others. May 3, 1854. INSPECTORS.–CERTIORARI. WILL. CONSTRUCTION.
Quære, whether the appointment as inspectors
of weights and measures in certain districts
of a company under the 5 8 6 Wm. 4, c. A testator gave and bequeathed all his “
63, of two superintendents of police is valid, tate and effects of what kind soever upon
although without salary, under the 2 & 3 the trusts contained in the will: Held,
Vict. c. 93, s. 10. sufficient to pass real estate.
But a rule was made absolute, with costs, to THE testator, by his will, gave and be.
quash a certiorari to bring up such order queathed all his “estate and effects of what
of appointment, a certiorari being taken kind soever upon certain trusts as therein.
away by the 36th section of the 5 8 6 Wm. mentioned, and a question now arose in this
4, c. 63. case, whether such words were sufficient to
This was a rule nisi to quash a certiorari pass real estate.
which had been granted to bring up two orders Cur. ad. vult.
by the sessions for the county of Suffolk under The Court said, that the word “estate” was the 5 & 6 Wm. 4, c. 63, appointing two supersufficient to pass real estate unless there was
intendents of police as inspectors of weights something in the will to show that it was used and measures in certain districts of the county, in a less extensive sense. Here, however, the but without salary, and directing the days on trusts were applicable to real as well as to per
which they should attend with the standards. sonal estate, and indicated no preference for
By the Rural Police Act, 2 & 3 Vict. c. 93, the eldest son, but that all the children should s. 10, it is enacted, that " all chief and other be placed on an equal footing. It was con constables appointed under this Act shall be tended that the absence of the word "devise” restrained from employing themselves in any showed the testator's intention to die intestate office or employment for hire or gain other as to his real estate, but the words used, "give than in the execution of their duties under thi and bequeath,” were quite sufficient, and the
Act." presumed intention was rebutted by the addi.
Worlledge showed cause, and referred to th tion of the words “ of what kind soever." The 17th section of the 5 & 6 Wm. 4, c. 63, whicl defendants were therefore entitled to judgment. direct what reasonable remuneration shall b
enacted that the justices of the peace shal Gurney and others v. Behrend and others. paid to such inspectors for the discharged May 3, 1854.
such duties as they shall have been ordered b
such justices or magistrates as aforesaid BILL OF LADING, TRANSFER OF.-RIGHT OF
Power and Couch in support, on the groun A bill of lading of a cargo of corn purchased that the certiorari was taken away by the 36t
of the defendants, but not paid for, had section of the Act. been transferred to the plaintiff's for a va. The Court accordingly made the rule abs luable consideration with the defendants' | lute, with costs.
UNPAID VENDORS TO STOP IN TRANSITU.
Superior Courts : Queen's Bench.-Lxchequer.
71 Whitmore v. Horne. May 5, 1854. the money was necessarily payable, and thereACTION FOR
fore was not prejudiced by the omission of the INSTRUCT APPRENTICE ON
words, and the plaintiff was therefore entitled BUSINESS.
to judgment. The defendant, after having covenanted by a deed of apprenticeship to instruct the plain
Burchfield v. Moore. May 5, 6, 1854. tiff in the business of a chemist, &c., sold BILL OF EXCHANGE.-ACTION BY INDORSEE the business to another person : Held, over- AGAINST ACCEPTOR. - MATERIAL ALTETuling a demurrer to the declaration in an RATION.-DISCHARGE OF ACCEPTOR, action to recover damages for breach of the To an action by the indorsee against the accovenant, that the covenant was a personal ceptor of a bill of exchange, the defendant one and could not be fulfilled by procuring pleaded that the words “payable at the the plaintif to be instructed by the suc- Bull Inn, Aldgate," had been added after cessor in the business.
acceptance, without his knowledge or con. This was an action to recover damages for sent : Held a material alteration, and on the breach of a covenant in a deed of appren
demurrer to the replication that the bill ticeship whereby the defendant covenanted to had been indorsed to the plaintif for value instruct the plaintiff in the business of a before it became due, and without notice of chemist, druzgist, and dentist-the defendant the alteration, judgment for the defendant. having disabled himself by the sale of his To this action by the indorsee against the business.
acceptor of a bill of exchange, the defendant Milward appeared in support of a demurrer pleaded that it had been altered in a material to this declaration on the ground that the co- particular since acceptance. The case now venant was not personal and would be fulfilled came on upon a demurrer to a replication that by his causing the plaintiff to be instructed by the bill had been endorsed to the plaintiff for his successor.
value before it became due and without notice The Court (without calling on Brett for the of the alteration. It appeared that the words plaintiff) said, that the contract was founded on
payable at the Bull İnn, Aldgate," had been the personal confidence in the defendant's added without the defendant's knowledge. skill and character, and that a breach was Holland, for the defendant, in support of the committed by the sale, and the plaintiff was demurrer; Bovill for the plaintiff, contrà. therefore entitled to judgment.
Cur. ad. vult.
The Court said, that if the words added had Mudd v. Fagg. May 5, 1854. been in the defendant's handwriting, there COMMON LAW PROCEDURE ACT.-COUNT IN would still have been a general acceptance, but DECLARATION ON
as they were added without his consent they OMISSION OF WORDS MONEY PAYABLE." constituted a material alteration and varied the -DEMURRER.
contract between the parties to the bill, and A count in a declaration followed the 6th had ceased to be the accepted bill, and the
therefore discharged the acceptor. The bill form in Schedule B. to the 15 8. 16 Vict. c. 76, on an account stated, but omitted the plaintiff as indorsee was in no better position
than the indorser. The defendant was entitled words money payable," directed by form 1, to precede money counts: A demurrer
to judgment. to the count was overruled upon the authority of s. 91 of the Act.
Court of Erchequer. This was a demurrer to a count in the de
Chaplin v. Levy. May 1, 1854. claration following the 6th farm in Schedule
SMALL DEBTS' ACT.B. to the 15 & 16 Vict. c. 76, which is as follows:-“ Money found to be due from the
DICT ABOVE 201. defendant to the plaintiff on accounts stated between them."
Held, that the certificate for costs under the M. Lloyd in support, on the ground of the 15 & 16 Vict. c. lxxvii., in an action where omission in the declaration of the words the plaintiff recovers a verdict above 201., “money payable,” referring to Form i in need not be given forthwith. Sched. B., which is as follows:-“ Money This was a motion for a rule nisi to set payable by the defendant to the plaintiff for aside a verdict of Erle, J., for the plaintiff's (these words money payable, &c., should pre-costs in an action where he had recovered a cede money counts like i to 14, but need only be verdict above 201. inserted in the first] goods bargained and sold by the plaintiff to the defendant.”
be sufficient, and those and the like forms may Raymond, contrà, was not called on. be used, with such modifications as may be ne
The Court, after referring to s. 91 of the cessary to meet the facts of the case; but noAct,' said, that in this case the defendant knew thing herein contained shall render it errone
ous or irregular to depart from the letter of such Which enacts, that “the forms contained forms, so long as the substance is expressed in the Schedule B. to this Act annexed shall without prolixity.”
CITY OF LONDON
CERTIFICATE FOR COSTS
FI. FA. ON NON-APPEARANCE TO WRIT
Superior Courts : Court of Exchequer. By the City Small Debts' Act, 15 & 16 Vict. employed a contractor to execute the works, c. lxxvii., s. 119, it is enacted, that "if any and had not interfered in the mode of executa action shall be commenced after the com- ing the contract. On the trial before Manning, mencement of this Act in any of her Majesty's S. L., the jury were directed that the defendant Superior Courts of Record, for any cause was liable for the negligent excavation and for “ for which a plaint might have been entered the carrying away the bricks, and the plaintiff in the Court holden under the provisions of obtained a verdict of 201. damages, and 31. for this Act, and a verdict shall be found for the the bricks, whereupon this appeal was preplaintiff for a sum not more than 501., if the sented. said action is founded on contract,” “the plain- Bagley, in support, cited Reedie v. London tiff shall have judgment to recover such sum and North Western Railway Company, 4 Exch. only and no costs," "unless the Judge who R. 244; Knight v. Fox, 5 Exch. R. 721 ; shall try the cause shall certify on the back of Peachey v. Rowland, 13 Com. B. 182; Cuththe record that the action was fit to be brought bertson v. Parsons, 12 Com. B. 304. in such Superior Court;" and by s. 120, that Edgar for the respondent. “if in any action commenced after the passing The Court said, that in accordance with the of this Act in any of her Majesty's Superior decision of Reedie v. London and North Western Courts of Record," &c., “the plaintiff shall re- Railway Company, there must be a new trial, cover a sum less than 201.,” &c.," the plaintiff with costs. shall have judgment to recover such sum only, and no costs,” &c.; “provided always (s. 121), Rowberry v. Morgan. May 10, 1854. that if the plaintiff shall, in any such action as
COMMON LAW PROCEDURE ACT.-ISSUE OF aforesaid, recover a sum less than the sum in that behalf hereinbefore mentioned, by verdict,
SPECIALLY INDORSED. and the Judge or other presiding officer before whom such verdict shall be obtained, shall
The time for pleading in an action commenced forthwith certify on the back of the record that by writ specially indorsed under the 15 &
16 Vict. c. 76, s. 25, expired on Feb. 18,
and it appeared to him at the trial that the cause of action was one for which a plaint could not
the extra eight days under s. 27 on the have been entered in the Sheriff's Court, or
26th, which fell on a Sunday. The plainthat it appeared to him at the trial that there
tif signed judgment and issued execution was a sufficient reason for bringing the said
on the 27th : A rule was discharged, with action in the Court in which the said action
costs, to set aside the execution and all was brought, the plaintiff in such case shall
subsequent proceedings. have the same judgment to recover his costs This was a rule nisi obtained on April 25 that he would have had if this Act had not last, to set aside, with costs, a writ of fi. fa. passed.”
and all subsequent proceedings, on the ground Pulling in support, on the ground that the of irregularity. It appeared that the time certificate should have been given forthwith. within which the defendant was to appear ex
Cur. ad. vult. pired on Feb. 18 last, and the extra eight days The Court said, that as it appeared from the on the 26th, which fell on a Sunday. The Act that, although in cases under 201. the cer- plaintiff signed judgment on the Monday tificate must be given forthwith, in cases above morning, and issued a fi. fa. thereon. that sum the Judge might give it at his leisure, By the 15 & 16 Vict. c. 76, s. 27, it is the rule would be refused.
enacted, that “in case of non-appearance by
the defendant where the writ of summons is Nichols v. Gayford. May 3, 1854.
endorsed in the special form hereinbefore pro
vided, it shall and may be lawful for the plainCOUNTY COURT.
at once to sign final judgment," " and AGAINST OWNER OF ADJOINING LAND the plaintiff may upon such judgment issue
execution at the expiration of eight days from
the last day for appearance, and not before ;" The plaintiff obtained a verdict in the County and the 174th rule of Hilary Term, 1853,
Court in an action against the owner of directs that “in all cases in which any partiland adjoining his house for negligently ena cular number of days, not expressed to be cavating his ground so that the plaintiff's clear days, is prescribed by the rules or prac. wall, 8.c., had fallen, although it appeared tice of the Courts, the same shall be reckoned the defendant had employed a contractor to exclusively of the first day, and inclusively of execute the works, and had not interfered the last day, unless the last day shall happen in the mode of executing the contract : On to fall on a Sunday, Christmas Day, Good
appeal, a new trial was ordered with costs. Friday, or a day appointed for a public fast or This was an action in the Whitechapel thanksgiving, in which case the time shall be County Court against the owner of land ad- reckoned exclusively of that day also.” joining the plaintiff's house for negligently ex- Willes showed cause against the rule, which cavating his ground so that the plaintiff's wall, was supported by Huddleston. &c., had fallen down, and also to recover for
The Court said, that the rule must be discertain bricks carried away from the plaintiff's charged, with costs. premises. It appeared that the defendant had
The Legal Observer,
SATURDAY, JUNE 3, 1854.
JOINT-STOCK TRUST COMPANIES. to alter the Bill in any mode, and to any
extent, that their Lordships might deem PROGRESS OF THE SOUTH SEA AND EXECU
proper. TOR AND TRUSTEE COMPANIES' BILLS.
After some formal proofs, three Bank
Directors were called, who stated they had Tas Select Committee of the House of heard of breaches of trust, but as the Bank Lords, to whom these Bills were referred, did not take cognizance of trusts, they were met on Wednesday, the 24th May. The not personally acquainted with the facts. Duke of Buccleuch was in the Chair, and They inferred where two or more persons the following Peers were also present :- held stock, that it was trust property; they the Earl of Lonsdale, Lord Brougham, Lord admitted that where the stock stood in the St. Leonards, and Lord Overstone. The names of three trustees, they knew of no case of the South Sea Company was opened cases of fraud, but there were some inby Mr. Rolt at great length. He contend- stances in which complaints were made of ed that a company for administering private improper dealing with trust stock, where trusts was required for the convenience of two trustees only were the holders of it. the Public, and that the South Sea Com- In 30 years one of the Directors had heard pany was peculiarly adapted to supply the of eight complaints of that kind. want. He alleged that responsible trustees were difficult to procure, and that the ne- We may observe, that the Bank would, of Cessity of procuring new trustees in conse- course prefer that a joint-stock company quence of deaths and retirements was at- should hold large amounts of stock, instead tended by inconvenience, expense, and of numerous individuals with comparatively delay. He urged also that individual trus- small sums. The Directors and their officers tees were liable to failure and often com- and clerks would thus have less trouble and mitted breaches of trust. He combated probably less risk of mistake. The Directors the objections stated in the Petition of the who have their own mercantile affairs to Incorporated Law Society regarding the transact, as well as the Bank business, would unfitness of a board of directors to execute no doubt gladly escape from the gratuitous family and other private trusts. Having duties of private trustees; and they consestated the grounds on which he contended quently spoke in favour of a company which that the preamble of the Bill was proved, would enable them to decline trusteeships and that legislation was necessary to re- and refer the applicants to the company. move the evils complained of-he went They stated some instances in which trusthrough the clauses under which the plan tees, and others in which the cestui que is to be carried into effect, and particularly trusts, had sustained loss, delay, and exthose for the security of the trust funds pense; but on cross-examination, it apand the due keeping of accounts, -on peared that if there were failures of indiwhich many doubts and difficulties were vidual trustees so there were of joint-stock suggested by members of the Committee, companies; and in litigated cases there must and especially by the Law Lords. The be the same course of proceeding, whether learned counsel
, on all these points, pro- the trustees were a body of Directors or a fessed the entire willingness of his clients few private individuals.
Vol. XLVIII. No. 1,369.
Joint-Stock Trust Companies. Mr. Franks, the Deputy Governor of the should be responsible only to the extent of company, was also examined, and he de- their guarantee fund and other property, but scribed the intended mode of executing the that the directors should incur no personal trusts, the constitution of the board of responsibility whatever. management, the anticipated extent of 3rd. That although Courts of Equity albusiness, and the profit to be derived from lowed a remuneration to trustees where it it. He expected that they would have was expressly provided for in the will or tri to the extent of 10,000,0001. annu- settlement,-in the absence of such express ally, that they would probably require one provision, no allowance could be made to a per cent. on the gross amount of the pro- trustee for the employment of his time, or perty ; that the expense of the establish- for his trouble or exertions in the affairs of ment would be about 5,0001. a year ; and the trust. that the shareholders, in addition to the 4th. That the holding of estates in trust interest derived from the guarantee fund, by corporate bodies had been declared inmight receive one per cent. out of the expedient by the legislature, for by the profits. On cross-examination, it appeared Municipal Corporations' Act property held that the details of the scheme were in a for charitable purposes was directed to be very unsettled and unconsidered state. conveyed from such corporations to indiThe witness saw no difficulty in undertaking vidual trustees. Although the motive for any kind of trusts, whether of large landed this enactment was a political one, in order estates, or any other class of business. to prevent corporations from exercising an
The Select Committee again met on influence over tenants or others employed Monday, the 29th May, when Sir John in the trust affairs, the same objection Patteson was examined in support of both would apply to a joint-stock trust company, Bills, and particularly of the Executor and if they should have the management and Trustee Bill, -stating his opinion to be in control of large estates or other property, favour of such institutions if a competent necessarily carrying with it considerable inboard of directors could be induced to at- fluence in public affairs. tend personally to the duty, but if it were 5th. That if their Lordships should be delegated to paid officers he should not ap- of opinion that the principle of the Bill prove of the plan. He stated the case of a ought in any respect to be adopted, it relative who had lost a very large sum of should be carried into effect by a public money as a trustee, and had heard of dif- and not a private Bill, and there was no ficulties in procuring responsible and com- reason for giving a preference to the South petent trustees.
Sea Company, originally established to Mr. Selwyn appeared as counsel for the carry on trade in the South Sea fisheries. Incorporated Law Society, and addressed If this Bill were passed, all the insurance the Committee at considerable length. He and many other companies would be enurged the following and other objections titled to similar powers. against the Bills :
6th. The main point in support of the Bill 1st. The alteration of the rule of law was, that the company would secure cestui that trustees shall not be placed in a situa- que trusts from the losses they now sustain tion in which their duties and their in- by the malversation of individual trustees. terests conflict; that whilst they would be On the other hand, it was contended that bound to execute the trust at as little ex- those cases were few in number and did not pense as possible in favour of the parties justify a new law, and that the frauds, failbeneficially interested, their interest would ures, neglect, and mismanagement of pubinduce them to obtain as large a profit as lic companies, were quite as numerous as possible out of the trust funds to divide those of individual trustees, and in case of amongst the shareholders by whom they failure, the extent of mischief would be were elected, and the danger was, that if the enormous. Indeed, the winding up of a present board of directors did not make a joint-stock trust company would be attended good dividend, they would be displaced at with incalculable mischief. The accounts the next annual meeting to make room for of all the trusts must be taken before the less scrupulous persons.
parties entitled could be paid, and there 2nd. It was proposed to abrogate another would be the expense of transferring every rule of law, by which trustees were per separate trust to new trustees. sonally responsible for their acts and deeds to an unlimited extent. Here it was proposed that not only the company at large slave trade.
'It appears they were also engaged in the