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Digest of English Law REPORTS.
form, he may file a concise statement of specific matters of which he seeks discovery with interrogatories; and it will be no answer for the plaintiff to say, that some of such matters were comprised in or that they were all referred to in the answer, and that the first affidavit was sufficient; but a summons, taken out by the defendant for an affidavit of documents in the same form in which he has interrogated, will be dismissed as unnecessary. — Newall v. Telegraph Construction Co., Law Rep. 2 Eq. 756.
3. To entitle to discovery under the Common Law Procedure Act, 1854, sec. 50, a party must show by affidavit that his adversary has some one document to the production of which he is entitled. Evans v. Louis, Law Rep. 1
C. P. 666. PROMISSORY NOTE.---See BILLS AND Notes. Railway. — See Dog, 2; MORTGAGE, 4; ULTRA
VIRES; VENDOR AND PURCHASER, 3. RELEASE.
If a release given by A. to B. extends in terms to money which B. has openly, but without justification, taken from A., A. cannot file a bill to compel B. to pay this money, though, when the release was given, A. was ignorant of B.'s fraud. A.'s remedy is to have the release set aside, and if, in consequence of deal. ings subsequent to the release, that cannot be done, A. is without relief in equity.--Skilbeck
v. Hilton, Law Rep. 2 Eq. 587. RES ADJUDICATA.-See JUDGMENT. SALE.— See CONTRACT, 3; VENDOR AND PURCHASER, SEPARATE ESTATE.
Testator gave real and personal estate to trustees in trust for his wife for life, and after her death for his daughter absolutely, and directed that the principal moneys, rents, issues, profits, interest, dividends, and proceeds which his wife and daughter, or either, should be entitled to, should be paid into their own hands as the same became due, and not by way of anticipation, and should be for their separate use and benefit; and for which moneys, rents, issues, profits, interest, dividends, or proceeds, the receipt alone of his wife and daughter, whether covert or sole, should be a discharge. Held, that the corpus of the real estate was not given to the separate use of the daughter.
Troutbeck v. Boughey, Law Rep. 2 Eq. 534.
Four persons, entitled each to a fifth of a fund, became entitled in individual shares to
the estate on which the fund was charged; the entire estate being subject to a mortgage. Held, that no one of the four could claim the right of having the whole fund divided, and thrown in fourths on the respective shares; 20 that, by paying the difference between what was chargeable on his share of the estate and what was due him in respect of his portion, his share might be cleared; but held, that such a proposal was a proper subject for arrangement in Chambers.— Otway-Cave v.. Olway, Law Rep.
2 Eq. 725. SHELLEY'S CASF, RULE IN. - See WILL, 14. Sup.
1. The charterers put a cargo, consisting of casks of oil, wool, and rags, on board the ves. sel, and personally superintended the stowage of the cargo. The bill of lading of the oil contained this memorandum, “not accountable for leakage.” On the voyage, the oil casks became heated by the action and contiguity of the wool and rags, and a very large portion of the oil was lost. In a suit by persons to whom the bill of lading had been transferred, held, that the memorandum covered not only ordinary leakage, but all leakage, in the absence of neg. ligence, Held, further, that the ignorance of the shipowners as to the latent effect of heat in storing the oil with wool and rags, did not, in the circumstances of the shippers superin tending the stowage, amount to such negligence as to make them liable-Ohrloff v. Briscall, Law Rep. 1 C. P. 231,
2. Goods were shipped under a bill of lading describing them as of certain weight, and making them deliverable to the consignees on payment of freight at a certain rate on the net weight delivered. On arrival, the agent appointed by the managing owner refused to deliver the goods, unless the consignees would pay according to the weight mentioned in the bill of lading, or (under an alleged custom) incur the expense of weighing at the ship's side or at a legal quay. The consignees paid under protest, and sued the defendant, a part owner, to recover back the excess. The jury having negatived the custom, held, that the defendant was liable, though he had neither interfered with nor assented to the appointment of the agent, and though none of the money had come to his hands.- Coulthurst v. Sweet, Law Rep. 1 C. P. 649. See AWARD, 3; BILL OF LADING ; CHARTER
PARTY; FeEight. SOLICITOR.
1. One of a firm of solicitors received from a client money, for which a receipt was given
DIGEST OF ENGLISH LAW REPORTS.
in the firm's name, stating that part was in payment of costs due the firm, and the rest to make arrangements with the client's creditors. The solicitor misappropriated the money. Held, that the transaction with the client was within the scope of the partnership business; and that the partners were jointly and severally liable to make good the amount, but that all the partners were necessary parties to a suit in equity for that purpose. — Atkinson v. Mackreth, Law Rep. 2 Eq. 570.
2. If the defendant does not plead no signed bill delivered, an attorney may rely on a contract for a specific sum for business to be done, without producing a bill, or showing charges amounting to the sum.-Scarth v. Rutland, Law Rep. 1 C. P. 642.
3. The attorney of a married woman retained in a divorce suit has a lien for his costs on her alimony in his hands.-Ex parte Bremner, Law Rep. 1 P. & D. 254.
See PRODUCTION OF DOCUMENTS, 1; TRUSTEE, 2. SPECIFIC PERFORMANCE. See DISCOVERY; EASE
A French firm, M. & D., sold goods through their agent in England to S. & T., payable by bill at three months, and shipped the same. A bill of lading was delivered to S. & T., in exchange for their acceptance at three months. Afterwards, the bill of lading was redelivered to v. & D.'s agent to hold as security against the acceptance. T., a member of the firm of S. & T., subsequently obtained the bill of lading from M. & D.'s agent by a fraudulent misrepresentation, and indorsed and delivered it to P. for value, without notice of the fraud. Held, that M. & D.'s right of stoppage in transitu was gone.—Pease v. Gloahec, Law Rep. 1
P. C. 219. THREAT.
At the trial, before justices, of an information against A. & B., under 6 Geo. IV., c. 129, sec. 3, for unlawfully, by threats, endeavoring to force C. to limit the number of his apprentices, it appeared that C. was a master-builder, and A. and B. president and secretary of a bricklayers' association. C.'s men having left him, he wrote, three weeks after, to B., as secretary, asking why the men were taken from him, and what they required him to do. At a meeting of the association, at which A.. & B. were present, a reply was sent stating a resotion, passed some time before, that po society bricklayer would work for B. till he parted with some of his apprentices. The justices convicted A. & B. Held, on a case stated, that as the
justices had not stated that they had drawn the inference that sending the resolution was a threat, the court ought not to draw such inference from the evidence, and that the convic. tion ought not to stand. Quære, whether the combination of the men was illegal.— Wood v.
Bowron, Law Rep. 2 Q. B. 21. TRUSTEE
1. A trustee cannot exact any bonus in respect of great advantages accrued to the cestuis que trustent from services incident to the per formance of duties imposed by the trust deed, and a settled account by a cestui que trust, allowing such bonus was set aside.-Barrett v. Hartley, Law Rep. 2 Eq. 789.
2. A solicitor, holding the deeds of an estate mortgaged to his client, deposited them with a banker, as security for money with which he bought an estate for himself. When the mortgage was paid, he used the mortgage money in repaying the banker's loan, but told his client that he had re-invested it in other good security. His client thereupon executed a reassignment of the mortgage; but the solicitor never re-invested the money, though he paid interest thereon till his death. Held, that the client had a lien on the estate bought by the solicitor. -Hopper v. Conyers, Law Rep. 2 Eq. 549.
3. A marriage settlement declared that money, then in the hands of the wife's brother, should be held by three trustees (one being the brother) on trust, to pay her, at her written request, the whole or any part absolutely, and, till such request, on trust, when and as the same should come into the trustees' hands, to invest the same, and pay the interest to the wife for life, for her separate use, and, after her death, as she should by will appoint; and, in default of appointment, to the husband. The money was allowed to remain thirteen years in the hands of the brother, who paid the husband the interest and part of the principal, with the wife's knowledge. On bill by the wife, after death of the husband and insolvency of the brother, against the three trustees, held, that the trustees were guilty of a breach of trust, but that the wife was debarred by acquiescence from claiming as against the two trustees who had neglected to call in the money.-
Higgins, Law Rep. 2 Eq. 538. See WILL, 4, 6; MORTGAGE, 3. ULTRA VIRES.
Semble, that the directors of a railway com. pany have no power to make a contract so as to give another railway company an interest in the traffic which may be carried on a line of railway which the directors' company may
DIGEST OF ENGLISH Law Reports.
thereafter be empowered by statute to construct. — Midland Railway Co. v. London & N.
W. Railway Co., Law Rep. 2 Eq. 524. VENDOR AND PURCHASER.
1. An estate being sold by the court at the suit of a mortgagee, with liberty to all parties to bid, the auctioneer stated that the sale was without reserve, but that the parties could bid. The plaintiff bid, and ran the purchaser up from £14,000 to £19,000, without any one else intervening. Held, this was no ground to discharge the purchaser. - Dimmock v. Hallett, Law Rep. 2 Ch. 21.
2. Particulars of sale described a farm, about a third of the estate, as late in the occupation of A., at the rent of £290. A. had occupied the farm at the yearly rent of £290; bat the first quarter he paid only £l rent, and left at the end of the fifth quarter, nearly a year and a half before the sale. Since then, the vendor had agreed to let the farm at £225, but the agreement had been rescinded; and the evidence showed that the farm would not let for nearly £290. Held, that the purchaser should be discharged.-Dimmock v. Hallett, Law Rep. 2 Ch. 21.
3. A railway company took land, made a railway thereon, and leased the railway to another company. Part of the purchase money being unpaid, on bill by the land-owner against both companies, it was ordered, on motion. that the first company should pay the money; and, in default, that both companies should be restrained from using the land (Turner, L. J., dissenting). Cosens v. Bagnor Railway Co., Law Rep. 1 Ch. 594.
See COVENANT ; EASEMENT. VESTED INTEREST.
Gift by will of residue on trust to sell and invest, and pay“the said property and interest arising therefrom to A., on his attaining the age of twenty-four years: but, in case of his not attaining that age, or leaving male issue, I give the said properties” to other persons. Held, that A. took a vested interest, liable to be divested in the events mentioned. - Whitter v. Bremridge, Law Rep. 2 Eq. 736.
See Will, 9. WATERCOURSE.
The plaintiff was lessee of a mill on riparian land, not far from the stream. His lessor's grantor had in 1864, under a written agreement with A., the adjoining higher riparian owner, and subject to an annual payment, made a cut on A.'s land, and brought the water by it to the mill. The flow of water in the cut had ever since been used and enjoyed by the mill
owner, and the annual payment had been made. The defendant, a riparian owner above A., intercepted the water of the stream. In a suit by the plaintiff for damages, Held, that he could recover (per Pollock, C. B., and Channell, B.) on the ground that the stream had been divided into two courses, and that the plaintiff was a riparian proprietor in respect of the cut. Per Bramwell, B., on tho ground that a riparian land-owner can grant to a non riparian land owner the flow of water from the stream to the latter's premises, to be used on the premises, and that the grantee may sue a higher riparian owner for disturbing his enjoyment of it).-Nuttall v. Bracewell, Law Rep.
2 Ex, 1. WILL,
1. A will ended in the middle of a third page, the lower half being blank, and the attestation clause and signatures being on the top of the fourth page. Held, that it was duly executed.—Hunt v. Hunt, Law Rep. 1 P. & D. 209,
2. A testator, by will made Sept. 18, 1865. bequeathed "such articles of plate as are contained in the inventory signed by me, and deposited herewith.” The inventory was dated Sept. 21, 1865, and on that day the will and inventory were both deposited at the banker's. Subsequently, the testator made a codicil. Held, that the inventory was entitled to pro bate by force of the codicil. — Goods of Lady Truro, Law Rep. 1 P. & D. 201.
3. Testator bequeathed the residue of his property, except such articles of "furniture, &c., as shall be ticketed or may be described in a paper in my own handwriting, to show my intention as regards the same.” Held, that as the will did not describe the lists as then existing, parol evidence was inadmissible to prove that fact, and the lists should be ex. cluded from probate. Goods of Sunderland, Law Rep. 1 P. & D. 198.
4. A deceased executed, in the presence of two witnesses, three deeds of gift, conveying his property to trustees for his children's benefit, but directing that the deeds should not take effect till his death. Probate was granted of the deeds, as together containing the will of the deceased, to the trustees, as legatees in trust.- Goods of Morgan, Law Rep. 1 P. & D. 214.
5. The following paper: "I wish my sister to have my bank-book for her own use," attested by two witnesses, was held testamentary; the evidence showing that the deceased, at the time of its execution, meant it to take effect
DIGEST OF ENGLISH Law REPORTS GENERAL CORRESPONDENCE.
after his death, and not as a present deed of gist.–Cock v. Cooke, Law Rep. 1 P. & D. 241.
6. Bequest of “my personal estate to my grandson, subject to the payment of debts, legacies, and to the trusts hereinafter contained, on trust to convert and to stand possessed of the said trust moneys," on trusts which did not exhaust the funds. The testator then appointed the grandson, with three other persons, executors. Held, that the grandson took the residue beneficially. – Clarke v. Hilton, Law Rep. 2 Eq. 810.
7. Gift by will to all the testator's nephews and nieces, the sons and daughters of his sister R., including who the illegiti. mate
of the said R., equally. Held, a valid gift to the legitimate sons and daughters of R., exclusive of R.'s illegitimate children.Gill v. Bagshaw, Law Rep. 2 Eq. 746.
8. Gift by will of real and personal estate to A., but if A. should die in B.'s lifetime, without leaving issue, then over. A. died in B.'s lifetime, leaving issue, who all died in B.'s lifetime. Held, that the gift over took effect.Jarman v. Vye, Law Rep. 2 Eq. 784.
9. A. gave his estate to trustees in trust for his wife for life, and, after her decease, to distribute and divide the whole amongst such of my four nephews and two nieces (naming them) as shall be living at the time of her decease; but if any or either of them should then be dead, leaving issue, such issue shall be entitled to their father's or mother's share." A nephew died in the lifetime of A.'s widow, leaving a daughter, who also died before the widow. Held, that this daughter, on her father's death, took a vested interest in the share which, if he had survived, he would have taken, and that her representative was entitled.Martin v. Holgate, Law Rep. 1 H. L. 175.
10. Testator declared that his property should be inherited by his nephews A. and B. during their lives, and, after their death, that their eldest sons should inherit the same during their lives, and so on; the eldest son of each of the two families to inherit the same for
Held, that A. and B. took estates for life, remainder to their eldest son in tail.Forsbrook v. Forsbrook, Law Rep. 2 Eq. 799.
11. A gift of the income of a fund during the life of A. to B., for his maintenance, is an absolute gift to B., his executors and administrators, during the life of A.- Attwood v: Alford, Law Rep. 2 Eq. 479.
12. A gift to the testator's sisters living at a particular time, or the issue of any or either then dead, is not a substitutionary but a sub
stantive gift to the issue.-— Attwood v. Alford, Law Rep. 2 Eq. 479.
13. A testator directed his personal estate to be invested, “and the interest divided half. yearly between his four sons, and, at the decease of either without issue, such share to revert to the remainder then living, or their child or children." Held, that each son took an absolute interest in his share, subject to be divested if he died without leaving issue.Dowling v. Dowling, Law Rep. 1 Ch. 612.
14. Devise of freehold estate to A., B., and C., in equal shares, during only their natural lives, "and, after their decease, I give the said freehold estate to the next lawful heir of A., all the said freehold estate for ever." Held, that the rule in Shelley's case applied, and that · A, took a fee.-Fuller v. Chamier, Law Rep. 2 Eq. 682.
18. Testator purchased an estate called A. farm, in the parish of R., in the county of H. Afterwards, he acquired adjoining land in the parishes of S. and B., in the same county, which was thrown into and occupied with A. farm, and the whole thenceforth called A. farm. Later, by will, he devised his estate, consisting of A. farm, in the parish of R., in the county of H. Held, that the land in the parishes of S. & B. did not pass by the devise.—Pedley v. Dodds, Law Rep. 2 Eq. 819.
16. A testator made a will in 1864, revoking all former wills. This, in 1868, he destroyed, expressing at the time an intention to substitute for it an earlier will, which he held in his hand. The 1 Vic. c. 26, sec. 22, provides that & will once revoked shall not be republished by parol acts or declarations. Held, that the act of destruction was referable solely to the testator's intention to validate the earlier will; and that, the act being conditional and the condition unfulfilled, the destroyed will was not revoked. Powell v. Powell, Law Rep. 1 P. & D. 209.
TO THE EDITORS OF THE LAW JOURNAL, Sale of interest in Crown Lands under fi. fa. -Tarif' for guardians under Insolvent Act.
GENTLEMEN,—In your number of July, a barrister-Prescott," asks whether "the interest of a person in Crown Lands before patent issues, is saleable under fi. fa. ? By reference to Chancery Reports, vol. xiii. page 302—1867—“Yale v. Tollerton," he will see that the Chancellor has decided that it is.
GENERAL CORRESPONDENCE-CHANCERY AUTUMN CIRCUITS—APPOINTMENTS TO OFFICE.
I wish to call your attention to the want of CHANCERY AUTUMN CIRCUITS-1867. a tariff for guardians under the Insolvent Act; as the law now stands, when an assignee is The Hon. Vice-CHANCELLOR SPRAGGE. appointed it sometimes happens that the guar- Toronto ................
.. Tuesday ..... 3rd September. dian is deprived of all power of collecting from him, not only his equitable claim for his time and trouble, but even the money he has
EASTERN CIRCUIT. been compelled to advance in travelling to and The Hon. VICE-CHANCELLOR Mowat. fro, and having the property taken care of.
Friday . ... ... 13th September. Some such table as the following, would, I Cornwall.... ... TuesJay...... 17th conceive, be equitable:
Tuesday ... ... 24th Taking care of assets—per day
Kingston......... Thursday .... 26th where assets of estate $500
Belleville ... Tuesday.... 1st October. and less....
Peterboro'..... ... Tuesday.. 8th
Lindsay ......... ... ... Thursday .... 10th
WESTERN CIRCUIT. All disbursements to be allowed in addition.
The Hon. VICE-CHANCELLOR SPRAGGE. Taking into consideration the fact that the
Simcoe ......... ...... Tuesday ... ... 24th September. guardian has great responsibility in taking Woodstock .Friday ... 27th charge of the estate, I think the fees are not
. Thursday..... 3rd October. at all beyond what they should be.
Stratford ............ Monday....... 7th
Sarnia...... Thursday.... 10th
Sandwich. . Monday...... 14th
HOME CIRCUIT. in such case ? 2. Before committing ourselves to these
The Hon. THE CHANCELLOR. figures, we should like to hear from others Owen Sound ........, Thursday... 10th October, who are au fait with these matters. - Eds. Barrie ....... ...... Monday ...... 14th L. J.]
St. Catharines ...... Friday ....... 18th
Guelph .... Friday ....... 26th
Hamilton. Lords was on Tuesday last dismissed. The Lord
. Thursday .... 318t Chancellor delivered judgment at considerable Whitby
Friday 8th November. length, Lord Cranworth sigoified bis concurrance
Cobourg .... ... ... ... Thursday....14th with the decision in fewer words, and Lord Colonsay did little more than barely express his
By the Court. acquiescence. Lord Westbury, who was present,
A. GRANT, said he had not intended to give any vote ; he
Registrar. had been absent during the argument in consequence of a domestic affliction. He had, however, heard the appellants address, and would APPOINTMENTS TO OFFICE. have striven to attend during the rest of the argument had be felt any reasonable ground for
COUNTY JUDGES. believing that the appeal could be sustained.
HERBERT STONE MCDONALD, of Osgoode Hall, Esq., Miss Longworth now petitions the House of
Barrister-at-Law, to be Deputy Judge of the County Court, Lords, stating the composition of the Court which in and for the United Counties of Leeds and Grenville. sat on her appeal, and the withdrawal of Lord
(Gazetted 24th August, 1867.) Westbury and proceeds to say that Lord Colonsay,
SHERIFFS. having been one of the judges of the Court which
WILLIAM FERGUSON, Esq., to be Sheriff of the County gave ibe decision appealed from, ought not to
of Frontenac, in the room of Thomas A. Corbett, Esquire, have sat to hear an appeal from his own decision. resigned.-(Gazetted 17th August, 1867.) There being but two other judges left, Miss Longworth submits that the Court was not pro
TO CORRESPONDENTS. perly constituted according to the practice and requirements of Parliament, and prays to have her appral re-argued.
“ST. LAWRENCE.”-Under “General Correspondence."