Imágenes de páginas

Master of the Rolls. Leak v. MacDowall.

for appearance was fourteen days from the service of ex parte on the usual undertaking by the plaintiffs, the bill, and the time allowed for “pleading, answer the Anglo-Danubian Steam Navigation and Colliery ing, or demurring,” was six weeks from the service of Company (Limited), to be answerable in damages. the interrogatories.

Southgate, Q.C., and Locock Webb, for the plaintiffs, The defendants were served with the bill and interrogatories on the 3rd of October, and the six weeks said, that the motion must stand over to enable them

to answer affidavits filed by the defendant the day from that day expired on the 14th of November. The before, and asked that the interim order might be defendants, however, did not enter any appearance

continued. until the 20th of November, on which day they also filed a demurrer to the whole bill.

A. G. Marten, for the defendant Rogerson, objected

that an undertaking for damages by a limited company Baggallay, Q.C., and E. K. Karslake, for the plain

was not sufficient. tiffs, contended that the order which had been made fixed the time for demurring alone, as well as the time

THE MASTER OF The Rolls said, that he had over. for pleading or answering. Consolidated Order X., looked the point when he granted the interim order, rale 7, provided that the order should fix the time for and he could not continue the order unless some pleading, answering, or demurring, and that had been responsible person gave an undertaking as to damages. done in this case.

The case was analogous to that of a plaintiff residing Cotton (Hobhouse, Q.C., with him), for the defen- abroad ; when he always required an undertaking from ants, said that it had been decided that Consolidated some person in this country. In some instances the Order X., rule 7, did not apply to demurring alone, undertaking had been given by the agent of the the time for which was regulated by Consolidated plaintiff. Order XXXVII., rule 3,

The plaintiffs did not procure the undertaking reBlenkinsopp v. Blenkinsopp, 8 Beav. 612;

quired, and the interim order was accordingly not conBrown v. Stanton, 7 Beav. 582.

tinued. The plaintiffs' counsel saved the motion until A defendant could not obtain further time for the next seal. demurring alone.

E. K. Karslake, in reply, argued that Consolidated Order XXXVII., rule 3, only applied to cases where

5 Dec. 1863. the defendant was within the jurisdiction.

Loss suffered by Partnership-Legacy in ComTHE MASTER OF THE ROLLS said, that the third

pensation—" Representatives.” rule of the 37th Consolidated Order distinctly provided that a defendant might demur within twelve days from A testator, in 1811, after stating that, in 1793, his appearance. This order applied whether an answer Messrs. P. & H., bankers, had lost a certain sum by was required or not, and whether the defendant was him, directed his executors to pay this sum, with interest within the jurisdiction or not, and in cases where an from 1793, to such of the representatives of Messrs. answer was required, and the defendant was out of the P. & H., then both dead, as might be alive at his jurisdiction, it so far overruled the other general order death :above referred to as to limit its provisions to pleading,

Held, that this legacy belonged, not to the present answering, or demurring, not demurring alone. Other- representative of the banking firm, but to the executors wise the time allowed to a defendant would depend of P. d H., the partners in 1793, as part of their upon the accident whether the plaintiff required him respective personal estates, and was divisible equally to answer or not. In the latter case he would have between the estates of the two partners, notwithstanding only twelve days, in the former six weeks. This was that their shares in the business had been unequal. the sense in which Lord Langdale understood those

This was a petition for the payment to the petitioner orders. The motion must be refused with costs.

of a sum of 7111. 178., which had been carried to a

separate account, to answer the legacy of 200 guineas

ANGLO-DANUBIAN, &c., mentioned below. Master of the Rolls.

COMPANY (Limited) v. The will of John Merritt, dated the 10th of October, 3 DEC. 1863.


1841, contained the following bequest :Undertaking as to Damages-- Limited Company.

“At the beginning of the year 1793, when I had

some business with Messrs. Pease & Harrison, bankers, An injunction ought, not to be granted ex parte on the of Hull, a transaction took place by which those application of a limited liability company without an

gentlemen were losers to the amount of about 200 undertaking as to damages from some responsible guineas. It is my will and bequest that my executors person.

should, as soon as conveniently may be after my deThis was a motion for an injuction against the decease, pay unto such of the representatives of the said fendant Rogerson. An interim order had been made Messrs. Pease & Harrison, now both dead, as may then be alive, the said sum of 200 guineas, with interest two persons (Pease and Harrison) who had been kind for the same at the rate of 41. per cent. from the 1st of to him. As they were dead he wished to make the loss January, 1793, to the time when the money is paid.” good to their representatives.

For some years previously to August, 1793, Joseph Mr. Bevir's second contention was only the same Robinson Pease and Thomas Harrison had carried on question transformed. One partner had two-thirds, the business of bankers in co-partnership at Hull, and the other one-third of the business; but the Pease having two-thirds, and Harrison one-third of testator did not give the legacy to their representatives the business.

in proportion to their shares in the business. To hold By a deed, dated the 5th of August, 1793, Harrison that the legacy was to be divided otherwise than in transferred his share in the business, including his moieties would be making a new will for the testator." share in all debts owing to the firm, to Robert Copeland Pease.

Selwyn, Q.C., referred to

Re Henderson, 28 Beav. 656, The whole of the business, and the right to all debts owing to the firm of Pease & Harrison, subse

as settling that representatives meant executors, and quently became vested in Joseph Robinson Pease

, that the executors only took as part of their testator's before his death ; and, under his will and by virtue personal estate. The expression, “such of the repreof an assignment from his executors, in 1812 the peti- sentatives as might then be alive," was very different tioner became absolutely entitled to the business, and from a direction to divide into equal shares, as in

King v. Cleaveland, 26 Beav. 26. to the rest of Joseph Robinson Pease's personal estate.

It was admitted, for the purposes of the present THE MASTER OF THE Rolls concurred in that view. case, that the petitioner now carried on the same

Note. *_See, however, business, and that it had been continuously carried on

Philips v. Philips, 3 Hare, 281. from 1793 until the present time.

Harrison died in 1804, and his estate was repre-
sented by the executors of his surviving executor. Master of the Rolls

. }

SANDWICH. Bevir, for the petitioner, contended, 1st. That the petitioner, as the present representa

Will, Construction—" Residue of Money." tive of the firm of Messrs. Pease & Harrison, and the A testatrix gave "everything of which she died person in whom the right to the assets of that firm was possessed" to her executors for certain specified pur. now vested, was entitled to the whole of the 7111. 178. poscs. She made several specific bequests of jewellery, It was a debt repaid to the firm, and the circumstance and, if any money remained after paying these bequests, that it was repaid from a sense of honour, and not she left the residue of money (if any)to A ; sic ther under any legal obligation, was immaterial.

made a specific bequest to B, and some small pecuniary 2nd. That if the testator must be taken to have in- legacies :tended to benefit the two partners personally, and not Held, that her general residuary personal escale merely to recoup the business ; yet the petitioner, as (including railway stock), passed under the gift of " the the representative of Pease, who had two-thirds of the residue of, was entitled to two-thirds of the 7111, 17s.

The Countess Dowager of Sandwich, by her will It was not so much mere bounty as restoration.

dated in 1861, left everything of which she died posSelwyn, Q.C., and Jenkinson, for Harrison's repre-sessed to the defendants (whom she also appointed sentatives, were not called upon.

executors), in trust for the purposes following. Then

followed a number of pecuniary and specific legacies; and THE MASTER OF THE Rolls said, that there might after several specific bequests of jewellery and other be some question as to the meaning to be given to the things, the will continued thus :-“Should any money word representatives in the present case ; but he had remain after paying these bequests, I leave 501. to eachı no doubt

upon the points contended for by Mr. Bevir. of my two footmen" C and D, “should they be in my If the testator had intended the legacy for the banking service at the time of my death. The residue of money firm he would have mentioned it, as it was at that time if any, I leave to my grandson Oliver Montagu (the in existence. Instead of this he gave the legacy to the plaintiff). ... I leave my cabinet and its contents to representatives of two individuals. It was clearly not my grandson Hinchingbrook, as a souvenir," with his intention to give a legacy to an abstraction, such as certain small gifts of money for the purposes therein the person which happened to be carrying on a par. mentioned. ticular business, merely because, fifty years before, the The present suit was instituted to obtain the opinion firm, which was then carrying on the same business, of the Court on the point (among others), whether had suffered a loss through him. It did not appear money invested on mortgage, stock of the London and that the transaction created a debt from him to the North Western Railway Company, and rents due firm; but, assuming that it did, he repaid it as a to the testatrix at the time of her decease would pass legacy, not as a debt; his motive being gratitude to under the words “the residue of money."

Baggallay, Q.C., and Schomberg, for the plaintiff as auction by order of the Court, and his assignees refused residuary legatee cited,

to complete the purchase :Rogers v. Thomas, 2 Keen, 8;

Held, that the assignees were not entitled to the deposit Douson v. Gaskoin, 2 Keen, 14.

which had been paid by the bankrupt on signing the Selwyn, Q.C., and H. T. Salmon, for the next of agreement, though the conditions of sale did not stipulate

for the forfeiture of the deposit in the event of the purkin, contended that the word “money” was always to

chaser making default. be construed strictly, unless, as in the cases cited for the plaintiff, a charge of debts, or some other ex- Under an order made in this suit, certain houses were pression showed an intention of treating all the put up for sale by auction in lots, and at such sale Mr. personalty as money, when the word “money" would Dion Boucicault became the purchaser of certain of pass the general residuary personal estate.

the lots, and thereupon signed an agreement to comGosdon v. Dotterill, 1 M. & R. 56,

plete the purchase, and paid a deposit of 101. per cent. Lowe v. Thomas, 5 De G. M. & G. 315,

on the purchase-money, in accordance with the condiCowling y. Cowling, 26 Beav. 449,

tions of sale. were authorities to show that a bequest of money, or The 15th condition of sale was as follows:"the rest of the money," did not include stock.

If any purchaser shall not pay his purchase-money

at the time above-mentioned, or at any other time Southgate, Q.C., and T. H. Earle, for other parties, which may be named in any order for that purpose, were not called upon.

and in all other respects perform these conditions, an

order may be made by the said Judge at Chambers for THE MASTER OF THE Rolls said, that ordinarily the resale of the premises purchased by such purchaser, the proper meaning of the word “money.” was not to and for payment by him of the deficiency, if any, in be extended, and that the burden of proof lay on the the price which may be obtained upon such resale, person who wished to extend it. But in the present and of all costs and expenses occasioned by such cise the testatrix professed to dispose of all her pro- default.” perty: she gave "everything of which she died pos

The conditions did not stipulate that in case of sessed” to her executors for certain specified purposes. default being made by the purchaser, the deposit There was no intestacy as to any part of the property. should be forfeited. The Lord Justice Turner had put the case most clearly

After signing the contract, Mr. Boucicault became in Love v. Thomas (loc. cit.), that if a person gave


bankrupt, and his assignees elected not to completehis money to A, and then certain chattels to B, “ all his the purchase, whereupon the auctioneer paid the money” could not mean all the personalty, and must

deposit into Court. therefore be restricted to its proper meaning ; but if

A motion was now made in the suit on behalf of the the order of the bequests were reversed, “all the vendors, that the premises might be resold, and the noney” would mean all the personalty not already deposit forfeited to them. bequeathed. So in the present case, after making several specific bequests of jewellery, the testatrix Bacon, Q.C., and Pemberton, for the vendors, argued proceeded : “Should any money remain after paying that the deposit of a purchaser who refuses to comthese bequests”-i. e. after paying a certain number of plete his purchase is forfeited, and asked for a declaraspecific bequests of jewels which she treated as money tion to that effect. They cited, - "I leave the residue of money (if any) to my Sugd. V. & P. 40, 41 (14th ed.); grandson." It was true that a specific bequest of her Lethbridge v. Kirkman, 25 L. J. (N. S.) 89; cabinet followed, but this could not control the inten- Cleave v. Moors, 3 Jur. (N. S.) 48. tion of giving all her property. The specific legacies of jewellery were treated as money, and the general Malins, Q.C., and Swanston, for the assignees, conintention of the will was to dispose of everything. tended that a vendor was entitled to protect himself His Honour was therefore of opinion that the general against the risk of the purchaser making default in two residuary personal estate passed under the gift of “the ways, by stipulating both for the forfeiture of the deresidue of money."

posit, and for the resale of the property; but that, in the absence of express stipulation, he could not proceed in both ways, and that where either 'stipulation was ex.

pressed, the other could not be implied. In the preStuart, V.-C. } Deprte v. BedborouGu.

sent case the vendors had provided for a resale, but 4 Dec. 1863.

had not provided for the forfeiture of the deposit, and Vendor and Purchaser-Conditions of Sale

they contended that pending a resale the deposit would

stand as a security for any possible loss, and that it Forfeiture of Deposit.

ought to be dealt with according to the result of the Where a purchaser became bankrupt after signing an resale. They distinguished the present case from agreement for the purchase of certain property sold by those cited on the ground that in the latter cases there

was no provision for making good any deficiency upon Secretary of State for India in council, and published a resale, and cited,

in the “Gazette" for the 12th of August, 1857, which Palmer v. Temple, 9 Ad. & E. 508.

directed that annuities at the rates there mentioned

should “be offered on retirement to the lieutenant. Osler appeared for a mortgagee.

colonels and majors as they stand regimentally in the

cavalry and infantry of the three presidencies, in addi. His Honour, in giving judgment, said that the tion to the pensions to which they may be entitled question had arisen through the bankruptcy of the under the regulations of the service.” purchaser, whereby a new party had been introduced,

On the 30th of April, 1862, Colonel Cooper, viz., the bankrupt's assignces, to whom the purchaser’s being indebted to Major Master in the sum of rights had been transferred, who could complete the 2,8561. 88. 5d., a judgnient for which sum had been purchase or not as they liked, and who had elected not obtained, assigned the annual sum of 1001., part of his to complete it.

pension of 4501. a year, and of the annuity of 2001. for 3 His Honour thought that the 15th condition of sale

period of eleven years, and appointed Major Master his was not applicable to the case of a default arising from attorney to receive such annual sum of 1001. to secure the bankruptcy of the purchaser, and that the provi; the payment of quarterly instalments of 251. sions for a resale contained in that condition had

Notice of the assignment was served on the Secretary reference only to default arising from some other cause.

of State for India, to which a reply was sent by the It was clear that default had been made on the part of

Under-Secretary, that assignments of pensions were the purchaser, and it was hard to see how the pur- not recognised by that department, but that these chaser by such default could acquire any right to recover that which had been deposited expressly as a security

pensions were paid either to the officer to whom they

were granted, or to their duly constituted attorneys. against such default. His Honour, after referring to the cases cited, remarked that in the present case the sale instalment of 251. due in February, 1863, the plaintif


Default having been made in the payment of the had been directed by the Court, and that the Court who was the executor of Major Master, not being able which had exacted the payment of the deposit, had, to obtain payment from the Secretary of State of the by the possession of such deposit, a large power of pension or the annuity, filed the bill for the purpose of dealing with the rights of the persons who claimed the Under the circumstances, however, he thought became bankrupt, and his assignee was made å

enforcing his security. Colonel Cooper afterwards the proper course would be to determine only that the

The plaintiff obtained an injuction reassignees had no right to the deposit.

straining Colonel Cooper from receiving his pension Note.—See further, as to forfeiture of deposit,

and annuity, or any part of it. Casson v. Roberts, 1 N. R. 9,

The defendant, Colonel Cooper, now moved to disand cases there cited.

solve this injunction.



Roxburgh, for Colonel Cooper, contended that the Stuart, V.-C.

} Carew v. Cooper. assignment made to the plaintiff came within the pro5, 8 Dec. 1863.

visions of 47 Geo. 3, Sess. 2, c. 25, s. 4, and was therePensions of Indian Officers - Assignment

fore null and void, and that consequently the plaintiff

had no equity to support his claim upon the pension. Ho 47 Geo. 3, Sess. 2, c. 25, s. 4. argued that Colonel Cooper, being her Majesty's officer

, Where an officer, formerly in the service of the East and the pensions in question having been granted by India Company, but since 1858 in Her Majesty's ser

her Majesty, there was no difference between them vice, had retired on his pay, with the addition of a

and the pensions referred to in the Act of 47 Geo. 3. pension granted under an order made by the Secretary

[The Vice-Chancellor asked, whether Colonel Cooper's of State for India in council :

pensions were not payable out of the Indian revenues, Held, that the pay and pension did not come within and not out of any funds appropriated by votes of 47 Geo. 3, Scss. 2, c. 25, s. 4, so that an assignment of

Parliament.] them for the purpose of securing certain payments was

The funds out of which the pensions might have to be valid.

paid, could not affect the question, as it was granted by

the Crown, and all revenues, whether Indian or other. The defendant, Colonel Cooper, was formerly an wise, were the revenues of the Crown. officer in the service of the East India Company, and He cited, in the course of his argument, became, under the Act of 1858 (20 & 21 Vict. c. 106), Gibson v. East India Company, 5 Bing. N. R. 262 ; an officer in Her Majesty's service.

Lloyd v. Cheetham, 3 Giff. 171 ; On the 31st of December, 1861, he retired on the Heald v. Hay, 3 Giff. 467 ; pay of a colonel, (his commission as such being then 46 Geo. 3, c. 69, s. 7; given him) viz., a pension, 450l. per annum, and an 21 & 22 Vict. c. 106, ss. 39, 43, 56, 58 ; annuity of 2001. a year under an order made by the 24 & 25 Vict. c. 134, s. 134.


"A casket of diamonds

Malins, &.C., and Bagshawe, appeared for the plain. tiff, but were not called upon.

Stuart, V.-C.


8, 9 Dec. 1863. H. Stevens, for the other defendants, who were incumbrancers under an assignment similar to that of the

Gift of Chattels-Heirloom. plaintiff and subsequent to it.

A gift of chattels accompanied by a letter containing a

description of them, with the following words added. STUART, V.-C., said, that the question was, whether thereto: N. B. This necklace is to be considered as an the present case was within the enactments of the two heirloom in the family, and is to be left to the eldest son statutes passed in the 46th and 47th years of Geo. 3, and his heirs (after death of his mother), as long as the which entirely annulled all assignment of the pensions family shall continue,” was held to be only a condithere mentioned. Those enactments were founded tional gift, and the executor of the doncc was ordered to apon a principle of public policy, that the grant of deliver up the article in question to the person cntitled pensions was for the purpose of retaining in the service to heirlooms. of the Crown those persons who had previously been in that service, but had ceased to be actively engaged

In 1817, J. Seale sent to his son J. H. Seale

box containing certain therein

. That principle was held in such high estima- (afterwards Sir J. H. Seale) tion, that, at Common Law, assignments of the half articles of plate and jewellery, and at the same time pay of officers were invalid (see Plarty v. Odlum, 3 T. sent a letter in which, after mentioning that the box R. 681, and Lidderdale v. Duke of Montrose, 4 T. R. had been dispatched, he added, 248). If he had found any ground for so construing “It contains the following articles to be approthose enactments, and carrying that principle of public priated as hereinafter-mentioned :policy so far, as to reach the present case, he should “Two handsome embossed

{ "J. H. Seale, Esq.” have hesitated long before granting the injunction bowls, old plate, which he was now asked to dissolve, or sanctioning in any manner an assignment by an officer of his in a necklace, with ornaments, pension. But the pay and pension which Colonel and a medal of the Princess “ Mrs. Seale." Cooper claimed, were of a kind to which, he con. Charlotte, a lock of her hair, sidered, the two statutes of Geo. 3, did not apply. undoubted, They were not granted by the Queen, and were not “N. B. This necklace is to be considered as an heirpaid through the Paymaster-General, nor under the loom in the family, and is to be left to the eldest son control of Parliament, but were granted by the Indian and his heirs (after death of his mother), as long as Government, and were paid out of the Indian reve- the family shall continue.” nues. By the Act for the Better Government of India passed in 1858, all the revenues of the East

Lady Seale continued in possession of the diamonds India Company were taken from the control of that until the time of her death in 1862. defunct company, and vested in the Crown, for the

Sir J. H. Seale died in 1844, leaving the plaintiff,

his eldest son, who succeeded to the family estates. purpose of the Government, not of this country or The plaintiff was also the personal representative of his the empire generally, but specially of India. application of those funds was not regulated by

father and grandfather.

The defendants were the executors appointed by Lady Parliament

, there being only a statement laid before Seale's will, of whom E. T. Heale, had alone proved Parliament of the mode in which the revenues had the will, but Hayne kept possession of the diamonds at Officers in the Indian army held, the request of the other parties

. The object of the indeed, her Majesty's Commissions ; that was for the suit was to obtain possession of the diamonds. Conpurpose of the proper control of the army, but they ficting evidence was given as to the identity of the Frere not paid by the Queen in that sense in which officers of the British army were paid ; viz., out of a in J. Seale's letter, and also as to the interest which

diamonds in Hayne's possession, with those mentioned Parliamentary grant specially appropriated for that purpose. His Honour inferred, from the absence of Lady Seale considered herself to have in the diamonds. any special enactment on the point, that it was not

Bacon, Q.C., and Wickens, for the plaintiff, conconsidered necessary or proper that the principle of tended that the gift was restricted to the use of the public policy referred to should apply to officers diamonds during Lady Seale's life, and that the deriving their pensions from the Government of India.

plaintiff was now entitled to them. The motion, therefore, must be refused, the costs being costs in the cause.

Malins, Q.C., and H. Stevens, for the defendant E. T. Minute.-Motion refused ; costs, costs in the cause.

Heale, contended that the diamonds were assets to pay Lady Seale's debts : adding, that there would not without them be sufficient for such payment. They also contended that the evidence which had been


been applied.

« AnteriorContinuar »