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1853.

DARLEY

MARTIN.

dispositions of the will, cannot constitute a new bequest in opposition to the will : and Skerratt v. Oakley, 7 T. R. 492, was relied on.

But it appears to us that the argument with respect to the effect of the codicil, when rightly considered, is not that the will is at all revoked or varied by the codicil ; but, rather, that, the will and codicil being all one testament, the language of the will may be interpreted by that of the codicil; and that, accordingly, the gift over in the will, “ in default of such issue,” being capable of importing a bequest over on failure of issue living at the death, it ought to be inferred that the testator employed it in that sense, because, in the codicil, he refers to it as if it were a gift over in default of his daughter's leaving no issue, which, as regards personalty, is tantamount to a gift on failure of issue living at her death.

The argument, thus viewed, appears to us to be well founded; and we are therefore of opinion, that, even if the preceding limitation conferred an absolute interest on the daughter, such gift was subject to a good executory bequest over in favour of the plaintiffs,- who are consequently entitled to our judgment.

Judgment for the plaintiffs.

1853.

JAMES REID and JAMES STEWART v. WILLIAM BLACKE

DON FAIRBANKS, JONATHAN CRANE Allison, and

DAVID ALLISON.
June 8.
A. contracted THIS

was an action of trover to recover the value of a with B., a shipbuilder in Nova ship, with her boats, tackle, sails, furniture, stores, and Scotia, for the building of a

appurtenances, and a compensation in damages by reavesse!. B. was son of the loss of the freight on a certain voyage. The already largely indebted to A. defendants pleaded, not guilty, and a traverse of the upon a general

plaintiffs' property. consignment account, and A. from time to time made considerable advances on account of the ship whilst in progress, and also supplied anchors, cables, and other stores for her. On the 20th of June, 1848, B., by a bill of sale, reciting that A. had made advances to B., and had agreed to make such further advances as he might require to build, launch, rig, and fully equip the vessel for sea, “for the security and repayment of all such sum or sums of money as A. had already advanced or might thereafter advance, to aid and assist him to complete and finish the said vessel," bargained, sold, assigned, and transferred to A. “a certain ship or vessel now in course and progress of building” by him, at &c., particularly describing it, together with certain timber in B.'s possession,—“ to have and to hold the said ship or vessel, &c., goods and chattels, &c., to A., his executors, &c., to their absolute use and benefit and behoof for ever, when the said ship or vessel shall be complete and finished, in as full, ample, and per. fect a manner as if the said ship or vessel were ready for sea, and ready to be delivered to the said A. at the time of executing these presents."

On the 30th of January, 1849, B. signed a builder's certificate and declaration of owner. ship stating A. to be the sole owner of the vessel, and thereupon obtained a certificate of registry in A 's name, pursuant to the 8 & 9 Vict. c. 89, s. 11. This certificate B. retained in his own possession.

On the 29th of March, 1849, B. induced the comptroller of the customs at Pictou, in Nora Scotia, to cancel the above certificate, and to grant him a fresh one in his own name as owner,

and on the same day executed an assignment of the ship, then in an unfinished state, to C., who took possession of her, finished her, and sent her to Liverpool with a cargo on his own account:

Held, that the property in the ship passed to A. by the bill of sale of the 20th of June, 1848, and that his right was in no degree limited by the habendum; and, consequently, that C. was liable in trover.

The parties having agreed that the amount of damages should be assessed by an average stater,—the court suggested, and the parties assented, that the proper principle on which to estimate such damages, would be, the value of the ship and all her stores, &c., on the 29th of March, 1849, when C. took possession of her; and that, as a mode of ascertaining such value, the referee should consider what would have been the value of the ship at Pietou, if she had been completed by B. according to his contract with A., and deduct therefrom the money that would necessarily have been laid out by B. after that date, in order to complete her according to the contract.

Quære, as to the effect of the registry of the ship in A.'s name, if there had been no bill of sale ?

REID 0.

The cause came on for trial at the sittings at Guild- 1853. hall after Michaelmas Term, 1852, when a verdict was taken for the plaintiffs, by consent, subject to the opi

FAIRBANKS. nion of the court upon the following case :

The plaintiffs, from the beginning of the year 1845, were, and are, merchants residing and established at Glasgow, using the style or firm of John Stewart & Co. The defendants during the same time were, and are, merchants residing and established at Halifax, in Nova Scotia, using the style and firm of Fairbanks & Allisons. Alexander Russell, hereinafter mentioned, was, and is, a ship-builder, master blacksmith, and store-seller at Pictou, in Nova Scotia. All are British subjects.

Alexander Russell was from the year 1845 in cor- Course of deal. respondence with the plaintiffs, and had occasionally,

ing. from time to time, advances from them, and occasionally had received from them shipments of goods suitable to a dry goods store, and to the outfit of vessels, by which he had been enabled, with the aid of his own resources, to build his ships; and he had built at Pictou, and had consigned several ships when built and complete, to the plaintiffs at Glasgow, as his agents, for sale.

Five ships had been thus built, consigned to, and sold in Glasgow by, the plaintiffs, acting as agents and on behalf of Russell, previously to 1847. Some of these ships, when built and completed for sea, had been registered by Alexander Russell in his own name, and powers of attorney had been sent by him to the plaintiffs, under which those ships had been sold by the plaintiffs, on arrival in Scotland, on account of Alexander Russell. One of these ships, called the Mary Ann Stewart, the last that arrived, was sent to Leith, in Scotland, under a licence granted by the collector of customs at Pictou, under a builder's certificate by Russell, which certificate therein stated the plaintiffs to be owners. on her arrival, was by the plaintiffs, as owners, assigned to the purchasers.

This ship,

REID

1853. The net proceeds of each ship, including the Mary

Ann Stewart, as well as the net freight earned by each, FAIRBANKS.

were in due course credited to Alexander Russell by the plaintiffs, in the accounts between them. On the result of these transactions, Alexander Russell was indebted to the plaintiffs at the end of 1846.

In 1847, Russell made known to the plaintiffs his desire to build another vessel ; and the following corres

pondence passed between the parties :Reid to Russell. “I am still of the same opinion, and think that your Jan. 2, 1847.

new vessel of from 500 to 600 tons, substantially got up, and well found, and energetically managed, could be made to pay, although I do not profess to have much knowledge in sea-faring business. It would be a business much more easy to manage, and which one would better understand what they are doing, than in building and

selling." Russell to plain “ If you are still willing, I can, in June, 1848, have tiffs. Feb. 27,

one of the same size and model as the draught sent by you built, which will be plenty in time to make two

trips that season. Plaintiffs to As to the new vessel to be regularly in the timberRussell, April trade, I think a small company could be formed to carry .

on such a business respectably and profitably. I have been in correspondence with a friend, who I think will join us, and will write you particulars again. I here with inclose you drawings and scale of materials which I would recommend for the new ship. A vessel of these dimensions would be well fitted for a regular trader in the timber-trade, and would sell readily, and bring a good price, were we disposed to part with her : and we would be quite willing to take the half of such a vessel. The great fault with the last vessel you sent here, was, the depth of hold : had it been two feet more, the vessel would have brought 2001. to 3001. additional, besides being much more marketable. And, in conclusion, I

1847.

REID

FAIRBANKS.

1817.

will be glad to hear from you soon, how you are pro 1853. ceeding with the new ship, and what prospects you have as to the time she will be ready." "As I am making, and have already made, con

Russell to plainsiderable preparation in the timber line for a ship of tifs. July 15, about 500 tons, formerly spoken of, and which I would wish to be kept as a regular trader between Britain and America, I am fully persuaded, when fairly introduced, it would turn out a profitable business; but find it would be impossible to get such of this season, but, by commencing early, say September or October, could have such early of the ensuing year: if you are desirous to join such, there will be no supplies required but such as will be in your line. As the Sesostris will soon be in Glasgow, and return to Pictou, which will likely be last for this port this season, should like to have supply of iron for Winter supply, and would be glad to have the inclosed list by her.” [Annexed was a list of iron and

stores.]

At the end of the year 1847, Russell was indebted to the plaintiffs, upon balance of account, in the sum of 18851. 10s. The plaintiff's sent him an account shewing this balance, on the 26th of February, 1848, and he received the account in due course of post. “You will doubtless feel surprised at my long silence; Russell to plain

tiffs. Feb. 26, but, in explanation, beg to state to you that such a Win- 1818. ter in Nova Scotia has never been seen by the oldest inhabitant. We have had no snow, which ship-builders mainly depend upon, until this month, when we are now all life and bustle. I went to the woods myself, along with my men, to cut, hew, and mould timbers for the ship ; and am happy to inform you, succeeded well with that I have got made myself, and now buying every day. I shall soon have enough to timber the ship up. I intend commencing the ship about the 1st of April, when the days are a good length, and everything

VOL. XIII.

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