Southern Law Review and Chart of the Southern Law and Collection Union, Volumen1
Digest of English Law Reports for September and October, 1871.
EQUITY SERIES.
DEED. Construction.— Younger Son.— Vesting. A FATHER's estate was limited after his death to the eldest son in tail, and the mother's estates were limited after her death to the song and daughters (other than an eldest son) as tenants in common in tail: Held, (affirming the judgment of the Master of the Rolls,) that the rule of construction was the same as to realty and personalty, and that the son of a younger son who had succeeded to the father's estate was excluded from all interest in the mother's estate: In Re Bayley's Settlement, 589, vol. 6.
GIFT. Charitable Gift. Insufficient Description.- Cypres.-Evidence of Sur
rounding Circumstances. Where in a gift to a charity the object of the gift is imperfectly described, and uncertainty as to it in consequence arises, evidence of the donor having been interested in or a subscriber to any particular society is admissible to show what was in her mind when making the gift. A testatrix gave a legacy to "the treasurer, for the time being, of the fund for the relief of the widows and orphans of the clergy in the diocese of Worcester." At the date of the will there was no society so named, but there was a society which bad formerly fulfilled that office for the diocese, but had lately been restricted, both in name and in its operation, to the archdeaconry of Worcester. The testatrix and her family had subscribed to this society in both its conditions. There was also a similar society-with which the testatrix had not been connected—in the archdeaconry of Coventry, which formed the rest of the diocese. Held, that the testatrix must be presumed to have given the legacy to the Worcester Society in the belief that it extended to the whole diocese, and it must be considered as a gift to an object, not to a society, and the legacy must be divided between the societies: In re Kilvert's Trusts, vol. 12, p. 183.
MARRIAGE.
Marriage Articles— Marriage Contract—Default by one Party
Condition Precedent. By articles made previously to a marriage, the wife's father covenanted to make certain payments during his life, and to settle three-tenths of his real and personal estate at his death upon the husband and wife during their respective lives, and after their death on their issue; and the husband covenanted to insure his life and to settle the policy, and also other property, in like manner. In default of issue, the property settled by the husband was to revert to him. The marriage took place, and the wife died without issue, and afterwards the father died. The husband did not insure his life or settle his property as agreed, and refused to execute the settlement which had been drawn in pursuance of the articles. A suit having been instituted for the administration of the father's estate, the husband claimed to prove for the value of his life interest in three-tenths of the father's real and personal estate. Held, (affirming the decision of the Master of the Rolls,) that it was no answer to the husband's claim that he had refused to perform his part of the agreement, inasmuch as the contract between the parties had been partly performed by the marriage, and the performance by the husband was not a condition precedent to the performance by the father. The claim was therefore allowed : Jeston vs. Key, 608, vol. 6.
POSSESSION. Possession of the Agent - Adverse Possession- Wrongful Claimant
Statute of Limitations—3 & 4 Will., 4, c. 27, s. 9. Possession of an agent is possession of the principal; and the principal may acquire a possessory title to real estate by receiving rents for twenty years through an agent, although that agent is the person really entitled to the estate.
A person claiming, without any real title, to be entitled to land is a person "wrongfully" claiming within the ineaning of 3 & 4 Will., 4, c. 27, s. 9; and that section applies, although the clain may be put forward under a mistake, and without any improper intention to deprive others of their property: Williams vs. Pott, vol. 12, p. 149.
PUBLIC BODY.
Riparian Proprietors— Evidence. Where a public body is, under an Act of Parliament, entrusted with powers and duties for a public purpose, the Court will give credit to them as being the best judges of what they want for that purpose.
A railway company was restrained from taking a large quantity of water for the use of their station from a river under the control of conservators, credit being given to the evidence on their part that taking such water would impede the navigation, against the evidence on the part of the company that taking such water would produce no appreciable effect: Atto'-General vs. Great Eastern Ruilway Co., 571, vol. 6.
TRADE-MARK. Consignee of Goods bearing spurious Mark— Parties—Costs—Lien on
Goods. A person having in his hands or under his control, goods bearing a forged trade-mark, is bound, upon the fact being brought to his knowledge, at once to submit to do whatever he might be compelled to do upon bill filed; otherwise, however innocently the goods may have come to him, he will be liable for the costs of a suit instituted by the person whose right is infringed for the purpose of obtaining relief.
A firm of forwarding agents, carrying on business in London, received from correspondents abroad a case of cigars bearing a forged brand. Upon the forgery being shown to them, they expressed their willingness to give, and afterwards gave, full information as to the manner in which the cigars came into their custody; and upon a suit being instituted against them, submitted to act as the Court should direct; but they wished to return the cigars to their correspondents, and to some extent defend the suit on their behalf. Held, that they were not entitled to their costs. The plaintiffs, in a suit to restrain infringement of their trade-mark, Held entitled to have a spurious imitation of their mark removed from goods, and to a lien on goods for costs: Upmann vs. Elkan, vol. xii., 140.
WARD OF COURT. Religious Education - Religion of Father. A Roman Catholic died, leaving a widow who was a Protestant, and an infant daughter, then six months old. He left no directions as to his child's religious education. The child was brought up by her mother as a Protestant till she was eight years and a half old. A suit having been instituted for the adıninistration of the father's estate, the Court made an order that the child should be brought up in the Roman Catholic faith. The Court did not think it advisable to have an interview with the child: Stourton vs. Stourton commented on, 8 D. M. & G., 760: Hawksworth vs. Hawksworth, vol.
6, p. 538.
Construction- Absolute Interest. A testator gave his estate to his widow "to be at her disposal in any way she may think best, for the benefit of herself and family." The widow by her will, gave a part of the testator's estate to an illegitimate son of one of the testator's sons. Held, that the gift was valid: Lamb vs. Eames, 601, vol. 6.
WILL. Absolute Gift at Twenty-five-Gift Over— Time of Vesting—Costs
of Appeal. A testator bequeathed all he should die possessed of to be equally divided between his two sisters, to be invested in their names as they should direct; one sister (who was then over twenty-five years of age) to have the immediate control of her share, and the other sister upon attaining twenty-five years, until which time it was to be held in trust for her; and in case of the death of either of his sisters before him, or before marrying and having children, the whole of the property to go to the survivor. The elder sister married and had children. Held, that the gift over to the surviving sister, on the contingency of the death of the other before marrying and having children, was referable to such death occurring before she should attain the age of twenty-five years; and that the younger sister, on attaining twenty-five, though still unmarried, became absolutely entitled to a moiety of the property.
An appeal on the construction of a will, if unsuccessful, will in general be dismissed with costs : Clark vs. Henry, 588, vol. 6.
COMMON LAW SERIES.
ATTORNEY AND CLIENT. Authority of Attorney after Judgment— Agreement to Postpone
Execution. AN ATTORNEY retained for the conduct of an action has no implied authority, after judgment in favor of the client, to enter into an agreement on his behalf to postpone execution : Lovegrove vs. White, 438, vol. 6.
BANKERS. Bill of Exchange-Payment of, by Bankers under a Mistake.
The bankers at N. have accounts at the branch bank there of the defendants, the Bank of England; and it is the practice that each banker, having previously ascertained that the bills, checks, &c., on the other banks will be paid, bands them to the defendants for collection; and they accordingly, at 2 P. M., present the bills, &c., to the drawees, and a check is drawn upon the defendants for the aggregate amount, which is then placed to the debit of the drawee's account with the defendants. If the defendants are themselves the holders of a bill, it is presented earlier in the morning to ascertain whether it will be paid, and if so, it is left with the drawee, and a credit-note is given in exchange, and afterwards, upon the presenting of the checks, &c., this credit-note is taken into the account, and forms part of the sum for which the check on the defendant is given. The banks close to the public at 3 P. M., but the bankers' accounts with the defendants' branch are kept open till 4; and between those hours the bankers attend for the purpose of having the day's accounts between them and the defendants investigated, and of rectifying any mistakes and errors of any kind that may have arisen, and of finding and striking the final balance between them; and all mistakes and errors made in the course of the day, are subject to correction during that investigation.
The plaintiffs had an account with the defendants' branch bank,