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purchase-money to the purchaser, who allows the execution debtor to remain in possession of the goods.
Do the inventory and receipt in the above cases, or either, and which of them, amount to an “assurance" requiring registration under the Bills of Sale Acts? Give reasons.
In the first case the inventory and receipt do amount to an assurance by the express terms of the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31, s. 4), and such an inventory and receipt do also amount to an assurance within the Bills of Sale Act, 1854, sect. 7 (Re Baum, Ex parte Cooper (1), 48 L. J. Bcy. 40). The reason is because such inventory and receipt together form B.'s document of title to the goods.
In the second case, if the intention of the parties to the sale is to sell and purchase the goods without any writing, and the purchaser has not insisted upon having an inventory and receipt as his document of title to the goods, then the inventory and receipt will not be an assurance within the Bills of Sale Act, 1878, sect. 4, so as to require registration (Marsden v. Meadows Salmon Claimant, 51 L. J. Q. B. (App.) 536 ; L. R. 7 Q. B. D. 80). In this latter case the inventory did not require registration under the Bills of Sale Act, 1854 (Woodgate v. Godfrey, 48 L. J. Ex. 271; L. R. 4 Ex. D. 59). If, in the second case, from the nature or position of the goods the receipt and inventory were requisite to enable him to assert his title to the goods, or the purchaser absolutely refused to pay and delayed paying his purchase-money until the receipt and inventory were handed to him, thereby showing an intention to treat them as his documents of title, they would then require registration. (See Indermaur's Law of Bills of Sale, Appendix (2), p. 147.)
24. B., a common carrier by sea, receives from D. a horse to be carried from London to Glasgow. During the voyage the ship encounters bad, weather ; the horse, in consequence of fright and struggling caused by such bad weather, dies. 18 B. liable to D. for its loss? Give reasons for your answer, referring, if you can, to any case on the subject.
A common carrier of goods is in the nature of an insurer at common law that he will receive and deliver the goods entrusted to his care within a reasonable time, saving only losses and injuries sustained thereto by either
(1) An act of God; or
(4) The negligence of the owner of the goods occasioning such loss or injury.
The question in the above case is : Is B. liable, or is he excused because the loss was brought about by the act of God without any negligence on his own part. The answer is that he is not liable, for in order to bring himself within the exception of loss by the act of God the loss need not have been caused directly and exclusively by such a direct and violent and sudden and irresistible act of nature as the carrier could not by any amount of ability forcsee, or (if he could foresee it) could not by any amount of care and skill resist so as to prevent its effect. A loss is a loss by the act of God if it is occasioned by the elementary forces of naturo unconnected with the agency of man or other cause; and a common carrier is entitled to immunity in respect of loss so occasioned if he can show that it could not have been prevented by any amount of foresight, pains and care reasonably to be required of him.
If the loss is occasioned partly by the act of God as above defined, and partly by some other cause, which, if it had been the sole cause of the loss, would have furnished a defence, the carrier will be entitled to immunity in respect of such loss if he can show that it could not have been prevented by any amount of foresight, pains and care reasonably to be required of him. (Nugent v. Smith, 45 L. J. C. P. (App.) 697; L. R. 1 C. P. D. 437.)
25. A. sells to B. a quantity of goods, and delivers the same to a railway company to be delivered at their station, C., "to be left there till called for." On their arrival the goods are placed in the station warehouse. Before the goods are called for by the consignee, the warehouse is burned down by an accidental fire and the goods consumed. Has the consignee any, and if any, what, , right of action against the railway company as common carriers or otherwise for the loss of the goods ? Give full reasons for your ansuer.
The remedy (if any) of the consignee against the railway company will be either for breach of contract or a tort committed by them either as common carriers or as warehousemen. To render them liable as common carriers the goods must be shown not to have been delivered to the consignee either actually or constructively at the time they were destroyed by fire. The proof of this will depend upon the question whether, under the circumstances, they were in the warehouse a reasonable time. If they were there an unreasonable time, they will be deemed to have been delivered to the consignee, so far as the company are concerned as carriers. If the company are not liable as carriers, the only question remaining will be, was the destruction of the goods brought about by any default on the part of the company, for that and that only will create any liability on their part as involuntary bailees or warehousemen of the goods in question. The answer here is in the negative, for the fire was in this case accidental. Two days, in a similar case, was held to be an unreasonable time for the consignee not to call for the goods. (Chapman v. G. W. Ry. Co., 49 L. J. Q. B. 420; and see Lilley v. Doubleday, 51 L. J. Q. B. 310.)
26. By what statute is the present law of mortmain governel, and what are its principal provisions ? What is the effect of the statute upon a gift by will of real and personal estate to trustees, upon trust to sell and pay debts and legacies, and to apply the residue for charitable purposes; and how will such estate be administered?
By 9 Geo. II. c. 36, and the subsequent Acts amending it, including 16 & 17 Vict. c. 137; 17 & 18 Vict. c. 112; 18 & 19 Vict. c. 124; 23 & 24 Vict. c. 136; 24 Vict. c. 9; 25 Vict. c. 17; 26 & 27 Vict. c. 106; 27 Vict. c. 13; 29 & 30 Vict. c. 57 ; 31 &
32 Vict. c. 44; 32 & 33 Vict. c. 110; 33 & 31 Vict. c. 34; 34 Vict. c. 13; and 35 & 36 Vict. c. 24. (See Haynes's Student's Statutes, 2nd ed., 17—28.)
The principal provisions of 9 Geo. II. c. 36, are sects. 1 and 2, which enact that any conveyance, settlement, or gift of land or of any interest therein, or of any incumbrance affecting land, or of any moneys to be laid out in or to be raised by the sale of land for any charitable purpose, must be made by deed, sealed and delivered in the presence of two witnesses, and must be enrolled in Chancery (now represented by the Royal Courts of Justice, Central Office) within six months after its execution, and such conveyance, &c., must be made to take effect in possession for the charitable use intended immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, or limitation for the benefit of the donor or grantor. And if the conveyance, &c., is not made for a valuable consideration, the death of the donor within twelve calendar months after the execution of the deed renders it void. The consideration referred to in the 2nd section must be paid by the person for whose benefit the conveyance is made. But the Act makes an exception as to gifts in favour of the two English Universities and the Colleges of Eton, Winchester and Westminster, for the support and maintenance of the scholars only upon the foundation, and it does not extend to Scotland. Other partial exceptions have been made by the above cited amending Acts. (2 Prideaux, 11th ed., 397.)
In the case cited in the question the devise of so much of the residue to charitable purposes as consists of real estate is void under the above-named (Mortmain) Act. The way such an estate will be administered will be as regards the payment of the debts and legacies as if no legal objection existed to such a gift, and then after such debts and legacies have been satisfied so much of the residue as consists of pure personalty will pass to the charitable purposes declared by the will, and so much of the residue as consists of realty and impure personalty will fail and pass to the residuary devisee and legatee under the will, or, if none, to the heir at law and next of kin respectively, for it must be remembered where the will does not expressly or by implication direct it, assets will not be marshalled in favour of a charity. (Snell's Equity, 5th ed., 293—4.)
27. Equity sometimes favour's gifts to charities above those to individuals, and sometimes conversely. Gire instances of each.
A testator gives a share of his residuary personal estate to charities. If it appear that such estate does not consist wholly of pure personalty, how will the Court deal with the bequest ?
Charities are so highly favoured in the law that charitable gifts have received a more liberal construction than gifts to individuals. Thus:
(1.) In regard to the want of proper trustees, if a testator makes a bequest for charity to such persons as he shall afterwards name executors, or to such persons as his executors shall name, and he appoints no executors, or the executors die in the lifetime of the testator, and no others are appointed; or if the trustees of a charitable legacy all die in the testator's lifetime; or if a corporation intrusted with a charity fails; the Court will execute the charity. So if a legacy is given to persons who have no legal corporate capacity to enable them to take as a corporation; as where a legacy is given to the churchwardens for a charitable purpose. And so if a corporation for whose use a charity is designed is not in esse, and cannot come into existence but by some future Act of the Crown.
(2.) The Court will supply all defects in conveyances, where the vendor is capable of conveying, and has a disposable estate, and the mode of conveyance does not contravene any statute.
(3.) In regard to the objects, it matters not how uncertain the persons or objects may be. For if a bequest is made in the most general and indefinite manner, simply for charitable uses or religious and charitable purposes, eo nomine, the Court will treat it as a valid charitable bequest, and will dispose of it for such charitable purposes as it shall think fit. But where the bequest may, in conformity to the express words of the will, be disposed of in charity of a discretionary private nature, or be employed for any general benevolent or useful purposes, or for any general purpose, whether charitable or otherwise, or for charitable or other general purposes, at discretion, the bequest will be void, as being too general and indefinite for the Court to execute, and the property will go to the next of kin. Hence, if a man bequeaths a sum of money to such charitable uses as he shall direct by a codicil annexed to his will,