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Roper v. Johnson, L. R. 8 C. P. 167 ; Chitty on Contracts, 10th ed., 817.)
56. A. contracts for the purchase of a quantity of rice to be delivered at Birmingham so soon as vessels can be obtained for the carriage thereof. During the transit of the rice the market falls, and the buyer gives notice to the seller that he will refuse acceptance. On arrival of the rice it is tendered to the buyer who refuses it, whereupon the seller brings his action against the buyer for nonacceptance. What will be the measure of damages to which the seller is entitled, and at what period should they be calculated ?
The measure of damages will be the difference between the contract price and the market price on the day when the buyer had the rice tendered to him.
The seller should, within a reasonable time after the buyer's refusal to accept the rice when so tendered to him, re-sell the rice at the best price that can be obtained, and the proof of the price obtained for the rice at such re-sale will afford the best evidence of the market value. (See Chitty on Contracts, 10th ed., 817.)
57. A. and B. commit a trespass in pursuit of one common design. In an action by C. against them for such trespass, in which he obtains a verdict, hou are the damages assessed, jointly or severally, against the defendants, and why? If C. levies the whole damages on one of the defendants, has such defendant any right of action against his co-defendant for a moiety of the damages ? Give reasons for your answer, and refer, if you can, to any leading case on the subject.
The damages are assessed jointly, so that the plaintiff may at his option enforce his judgment against all or only one of the defendants by levying execution, and so the more readily obtain payment. If C. levies the whole damages on one of the defendants, such defendant has no legal right of action against his co-defendant for contribution of a moiety of the damages, because the damages are given in respect of a tort and not for breach of a contract. This is owing to an arbitrary rule of law that there is no contribution allowed between tort feasors, as enunciated by the leading case of Merryweather v. Nixan, 2 Sm. L. C. 527; Haynes's Student's Leading Cases, 72.
58. What is a discontinuance, as applied to an estate ? and what change in the law as to discontinuances has been effected by modern statutes ?
If a tenant in tail prior to 1833 conveyed to another a larger estate in his lands than he was by law enabled to convey, except under the doctrine of tortious operation, such conveyance operated as a discontinuance of the entail. The issue in tail and those entitled in remainder or reversion lost their right of entry, which upon the death of the tenant in tail would have otherwise accrued to them respectively. The reversioners and remaindermen had a remedy in a particular form of action called a formedon. So had the issue in tail, unless, in the case of a firm, it was levied with proclamations. The learning on this subject has now become obsolete, owing to 3 & 4 Will. IV. c. 27, providing (sect. 39) that no discontinuance shall thereafter avail to take away the right of entry, and to 3 & 4 Will. IV. c. 74, having abolished fines and recoveries, and lastly, owing to 8 & 9 Vict. c. 106, s. 4, providing “ that a feoffment made after the 1st October, 1845, shall not have any tortious operation.”
A similar conveyance by a tenant for life of a greater estate than the law entitled him to convey operated as a forfeiture to the person in immediate remainder or reversion, who was entitled to enter immediately. (1 Stephen's Com., 249 n, 461 n, 508 n.)
DISTRIBUTION (STATUTES OF).
59. A man dies intestate, leaving the following relatives : -A widow, mother, uncle, brother of the half Wood, nephew (child of deceased sister), two nieces (children of deceased brother), and grandnephew (grandchild of another deceased brother). How will the personal estate of the intestate be distributed under the statute ?
The widow will take one moiety, and the other moiety will be divided into five parts, and one part will go to the mother, uncle, brother of the half blood, and nephew respectively, and the remaining part will be divisible between the two nieces in equal shares. The grand-nephew will take nothing, as there is no right of representation beyond the brother's and sister's children of a deceased intestate. (22 & 23 Car. II. c. 10, as amended by 1 Jac. II. c. 17, s. 7; 2 Prideaux, 11th ed., 442; Williams' Personal Property, 10th ed., 404.)
60. Illustrate by example the difference, if any, between a limitation to "the next-of-kin," and "the next-of-kin according to the statute” of a deceased person. Would the widow of the deceased take an interest under either of the limitations ?
A gift to the next of kin of A. without more, creates a joint tenancy in the persons who are nearest of kin to A. in equal degree, without reference to the Statutes of Distribution; so that if A. leaves two brothers and a nephew (the child of a deceased brother), or a father and child, the two brothers, to the exclusion of the nephew in the one case and the father and child in the other case, would take the property as joint tenants. But if the gift is to the next of kin according to the Statutes of Distribution, the persons to take will be the relations of A., amongst whom the personal property of an intestate is made distributable by the statute, and such persons will take as tenants in common; but a widow or widower (not being of the kin of A.) cannot take under such a gift (2 Prideaux, 11th ed., 386), though, as is well known, the widow or widower would take, under the Statutes of Distribution, their respective interests.
DONATIONES MORTIS CAUSÂ.
61. A., being in expectation of death, handed to B. a desk containing the articles specified below, with an intention of making them the subject of a donatio mortis causâ. He shortly afterwards died. How far did the gift take effect ? State in detail the reasons for your answer, and the law on the subject. Bonds, promissory notes and cheques, some payable to bearer and some to A.'s order, Bank of England notes, country bank notes, bills of exchange, some indorsed in blank and some to the order of A., and a certificate of railway stock held by A.
All the above-mentioned articles, except the cheques payable to bearer or order (as to which see infra) and the certificate of railway stock, being valid objects for donationes mortis causâ, and the conditions for the gift to take effect having been performed, the abovementioned gift will take effect as to them. The three conditions necessary to complete a perfect donatio mortis causâ are : (1) It must be in expectation of death ; (2) on the condition that the gift is to be absolute only on the donor's death; (3) that the subject matter be as far as possible delivered to the donee or his agent. The subject matter of a donatio mortis causa formerly only extended to moveable articles, but the Courts have since held that a valid donatio mortis causâ may be made of bonds, notes, bills, title deeds mortgaged to the donor, &c. A cheque, whether payable to bearer or order, cannot be made the subject of a valid donatio mortis causâ unless it is cashed or otherwise negotiated in the donor's lifetime. (Snellgrove v. Bailey, 3 Atk. 214; Gardner v. Parker, 3 Mad. 184; Rolls v. Pearce, 46 L. J. Ch. 791; L. R. 5 Ch. 730; Re Mead, 50 L. J. Ch. 30.) There cannot be a valid donatio mortis causâ of railway stock. (Moore v. Moore, L. R. 18 Eq. 474. And see fully on this subject H. A. Smith's Equity, 527–532.
62. What is the distinction between “ dower” and “freebench,” and in what important particulars did they differ prior to 1834 ?
Dower is the right which the wife (not being an alien, unless she be naturalised or made a denizen) has in the third part of the lands and tenements of which her husband dies solely possessed of or entitled to at law or in equity, in fee simple, fee tail general, or as heir in special tail, which, unless her dower has been barred, she of nine years.
holds from and after his decease in severalty by metes and bounds for her life, whether she have issue by her husband or not, and of what age soever she may be at her husband's decease, provided she be past the age
Before dower can attach there must be (1) a legal marriage for ubi nullum matrimonium ibi nulla dos ; (2) that marriage must not have been dissolved (Frampton v. Stephens, 51 L. J. R. Ch. 562); and (3) the husband must be dead.
Freebench is a similar right with respect to copyholds to that which dower is as regards freeholds, except that freebench is only claimable by the special custom of the manor within which the property is situate, and therefore the estate which the widow is to take, both as to its quantity, quality and duration, must be such as the custom prescribes. It is generally a third for her life, like dower at common law, but it is sometimes a fourth part only, and sometimes but a portion of the rent. In many manors the wife takes the whole for her life, in others she takes the inheritance. Frequently the customary right is durante viduitate, and in some cases it is confined to her chaste widowhood. Again, it differs from dower in that free bench, unless by particular custom, does not attach even in right till the actual decease of the husband ; whereas the right to dower at the common law attaches immediately on marriage, and at common law the widow was entitled to dower in lands of which the husband was seised at any time during the coverture. Consequently dower at common law was unaffected by the husband's alienations, whilst freebench, except by particular custom, attaches subject to the husband's alienations. These were the distinctions and differences prior to 1834, when the Dower Act of 1833 (3 & 4 Will. IV. c. 105) came into operation.
As to the differences since the Dower Act, freebench is not affected by it, as the Dower Act only applies to freeholds.
As to freeholds, it has made considerable alterations. They are principally as follows:
(1.) It extends dower to equitable or beneficial estates in land as well as the legal.
(2.) It extends the right to dower to lands in respect of which the husband had a right of entry, as well as the lands of which he was seised.
(3.) The widow's dower, though still as before one third part of