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CONSTRUCTION OF WILL. BEQUEST TO A

546

Superior Courts : Rolls.- Vice-Chancellor, existed; but there were, at the time of the exe- | all the contingencies of the trust, and could cution of the settlement, three sums of stock, not say they would not do so because in a amounting altogether to 4,9641., part of the re-certain case the trust might not arise. The siduary estate of Mr. Henry Cuthbertson, case of Maitland v. Bateman was not so strong standing in the name of Miss Cuthbertson. as the present one; for there a time was fixed, The trusts of the settlement were for the wife until the termination of which the fund could if she survived, but if she died in the life of not be secured; whereas, here, there being no her husband, for her children as she should limitation as to time, it might have been seappoint, and if no children, then as she should cured immediately. Then, as to the three appoint, and in default of appointment, for the sums of stock, what was there to lead to the husband. The settlement contained a cove- supposition that they were not Mrs. Fenwick's ? nant on the part of Mr. Fenwick to join in the They had been transferred into her name some transfer, if it was made after the marriage, but time before the inarriage. They remained no time was fixed at which the transfer should standing in her name for many years afterbe made. It contained, also, the usual clause wards : no demand was made upon them. of indemnity to the trustees. No transfer was Ultimately they were sold out at several times. made of the stock in question, but it remained It was the duty of the court to take care that standing in the name of Miss Cuthbertson till trustees were not charged with omissions which the year 1816, and was then sold out at various could not be supplied, but it would not direct times between that year and the year 1823, and inquiries where no case of suspicion arose. It applied for the benefit of Mr. Fenwick. Mr. was alleged that there were some unsatisfied Fenwick became bankrupt in 1833, and surclaims under a will of Mr. H. Cuthbertson, vived his wife, who died in July, 1837. The but no proof of this was adduced. He came, present plaintiff attained the age of 21 in 1841. though with reluctance, to the conclusion that,

Mr. Spence and Mr. Elderton, for the plain- to the extent of the 4,946l., the trustees were
tiff, relied upon Booth v. Booth, 1 Bea. 125; liable to make good the fund,
Maitland v. Bateman, 13 Law Journal, 273; 8
Jur. 926; Caffray v. Darby, 6 Ves. 488; and
Broadhurst v. Balguy, 1 Y. & C. 76.

Vice-Chancellor of England.
Mr. Roupell and Mr. Humfrey, for the repre- Flint v. Warren. July 19th, 1847.
sentatives of the deceased trustee, and Mr.
Kindersley and Mr. Faber, for the surviving

CHARITY VOID FOR UNCERTAINTY, trustee, argued, that in the cases cited, either the trustees had done some further act respect- Where a testatrix, by her will, gave a certain ing the trust fund beyond merely executing annual sum for the use and benefit of the the deed, or, by the terms of the settlement, in-brothers and in-sisters for the time being they were bound to take steps to get in the actually and bonâ fide resident in the fund at some defined period; neither of which several hospitals of or in the vicinity of circumstances existed in the present case. Canterbury. Held, that the bequest was Here, also, until the death of the wife, it was void for uncertainty. uncertain who was entitled; therefore the The question in this case was raised on the trustees were protected by the indemnity construction of a clause in the will of Mary clause. They also relied on certain statements Braddon, dated March, 1834 ; it was in the in the answer of one of the defendants which words following :-“And I also give and be. tended to show that the sums of stock in ques- queath unto, and for the use and benefit of, tion were subject to some unsatisfied claims the several in-brothers and in-sisters for the under Mr. Cuthbertson's will, as, at all events, time being actually and boná fide resident in making a case for inquiry,

the several hospitals of or in the vicinity of the Lord Langdale said, it was undoubtedly, a city of Canterbury, whose present yearly. incase of great hardship that trustees should be come to each such in-brother and in-sister charged, after the lapse of so long a period, does not exceed the sum of 25l., an augmentawith funds which they had never received. tion or yearly income of the sum of 51. to the But upon the execution of the settlement, the use of every in-brother and in-sister for ever." duties of the trustees arose, and it became a And she directed her executors “to pay to, or question only whether they could perform the invest in the names of, the governors, masters, trusts; for though trustees were bound by trustees, or acting patrons of the several the trusts declared, they were not bound by the hospitals a sum of lawful money equal to meet recitals of the instrument declaring them. Per- such yearly augmentation; and the non. sons might represent themselves to be entitled resident in-brothers and in-sisters during such when in fact they were not, so that the per- non-residence should forfeit their, his, and her formance of the trust might be impracticable. proportion of such augmentation; and such It was said, that here, as no time was fixed for forfeitures and forseiture should from time to geting in the fund, as it might have happened time be paid over to the then resident in. that there were no children and no appoint- brothers and in-sisters in equal shares.” The ment by the wife, the trustees were not bound Master in his report had found that there were • to provide for these contingencies. But he twelve hospitals at and in the immediate neighthought this argument could not be sustained : bourhood of Canterbury, taking in a circuit of he thought trustees were bound to provide for four miles.

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547

ANCE.

107.

Superior Courts : Vice-Chancellor.-V.C, Knight Bruce.--Exchequer. Mr. H. Twiss, for the Attorney-General, now Mr. Miller, for the plaintiff, objected that contended that effect ought to be given to the the present application was unnecessary. As devise in favour of these hospitals, and that the the exceptions were not referred in time, they court should put a construction on the rest of should have been treated as abandoned, or any the clause; citing Masters v. Masters, i Pere objection to them might have been heard beWms. 425.

fore the Master. Dalton v. Hayter, 1 Phill. Mr. Bethell and Mr. Chandless, on behalf of 551. some of the next of kin, argued that the whole The Vice-Chancellor. I never heard of exclause was void for uncertainty. There must ceptions being taken off a file because they were be both a certainty in the persons to take and abandoned. Upon the authority of Dalton v. in the thing to be taken, in order for the court Hayter, I am of opinion that this order cannot to come to a decision. The persons to take be discharged, and that I cannot take the exwere here to be residents in the hospitals in ceptions off the file. The co-ts occasioned by Canterbury or in the vicinity, and the disjunc- the exceptions after the service on the 15th of tive character of the gift deprived it of certainty. March, must be paid by the plaintiff. I give How could the court conclude what was meant no costs on this motion. by actual and boná fine residents ? or how could it determine what was meant by the vicinity of Canterbury? There was nothing

Erchoquer. like certainty as to the objects to take, nor was Semple v. Pink. Trin. Term, June 3, 1847. there the means of attaining certainty. They cited Fillingham v. Bromley, 1 Turn. & Rus.

GUARANTEE CONSIDERATION.-FORBEAR530; Ridgway r. Woodhouse, 7 Beav. 437 ; Attorney-General v. Sipthorpe, 2 Rus. & Myl. A declaration on a guarantee stated, that L.

made his promissory note payable to the Mr. Cooper and Mr. A. Levis, for another of plaintiff : that the note being in the plainthe next of kin, cited Chapman v. Brown, 6 tiff's hands dishonoured, in consideration Ves. 404.

that the plaintiff would forbear and give The Vice-Chancellor said, he was unable to time to L. for payment of the note for a make any sense of the will; the very founda- reasonable time, the defendant guaranteed tion of the gift was to be found in the words payment. At the time the note was made “ Hospitals of or in the vicinity of Canterbury;" the defendant wrote on the back of it,-I and he could not understand what the testatrix guarantee the payment of the within note meant by the vicinity of Canterbury, neither by J. Leigh, the maker, on the 2nd Nov. was there anything whatever in the will to show next.After the note was dishonoured, the how the vicinity was to be measured. It was defendant gave the plaintiff the following impossible for him to sit there and frame and memorandum :-"I request yon will hold conjecture a meaning for the testatrix. From over the promissory note in your favour of the will, as it stood, no human being was ca- J. Leigh, and in consideration of your so pable of fixing so as to state in numbers what doing, I undertake to continue in all rewas the sum to be appropriated. How then spects my guarantee of the same.” Held, could there be a valid gift ? He should there. no evidence to support the declaration, and fore hold the bequest void for uncertainty.

that the plaintiff was properly nonsuited.

Semble, that the declaration was bad for Vice-Chancellor Knight Bruce.

stating the consideration to be forbearance Allee v. Gibson. March 17th, 1847.

for a reasonable time. REFERRING EXCEPTIONS.

This was an action on a guarantee. The

declaration stated, that one Leigh made his A plaintiff who had not served the order referring the exceptions within the proper for 2001.: 'that Leigh did not pay the note, and

promissory note payable to the plaintiff or order time, was refused a motion to discharge the the same being in the plaintiff's hands overdue order, or to take the exceptions off the file, and unpaid ; in consideration of the premises, and was ordered to pay the costs of the and that the plaintiff would give time to Leigh irregular service.

for payment, to wit, for a reasonable time, the Mr. Russell and Mr. Heathfield moved to defendant guaranteed the payment of the note discharge an order referring exceptions to an in case Leigh should make default: that alanswer, and that the exceptions might be taken though a reasonable time had elapsed, yet off the file, and that the plaintiff should pay the Leigh had not paid the amount of the note. costs. The answer was filed on 29th of Plea non assumpsit. January, exceptions to it were filed on 23rd of At the trial before Rolfe, B., it appeared that February, and on 13th March the defendant the plaintiff agreed to discount the promissory was served with an order, dated 5th of March, note for Leigh, if the defendant would guarantee referring the exceptions. The plaintiff was too the payment when due. Accordingly the delate in thus referring the exceptions 26th fendant wrote on the back of the note as folArticle of 16th Order of May, 1845, and this lows :-"I do hereby guarantee the payment of was the proper course to be adopted.' Attorney- the written promissory note by G. J. Leigh, the General v. Clack, 1 Myl. & Cr. 367.

maker, on the 2nd Nov. next. John Pink.”

COSTS.

548 Superior Courts : Exchequer.-Court of Bankruptcy. Analytical Digest. The note having been dishonoured, the de- reception of the affidavits made by the fendant gave the plaintiff the follosving memo- country creditors. The 24th of the General randum :-“ November 2, 1844. I request Rules and Orders, made under the 5 & 6 Vict. you will hold over the promissory note in your c. 122, s. 70, was in these words :-“ Every favour of J. Leigh, dated 31st July, 1844, for affidavit under the said act shall be entitled of 2001., at three months, and in consideration of The Court of Bankruptcy in London,' or so doing, I undertake to continue in all respects. The Court of Bankruptcy for the — Dismy guarantee of the same. John Pink.” On trict' [as the case may be)." Here the words the part of the defendant it was objected that “in London” were omitted, and therefore the there was no evidence to support the declara- rule had not been complied with. tion, and the learned judge being of that opinion, It was submitted, on the other side, ihat the nonsuited the plaintiff. A rule nisi having affidavits were sufficiently entitled in the Court been obtained to set aside the nonsuit, and for of Bankruptcy. a new trial,

Mr. Commissioner Evans. As the objectionis Ogle showed cause. The plaintiff was pro- taken, I think I am bound to give it effect. perly nonsuited. The plea of non assumpsit The affidavits are not in compliance with the puts in issue not only the promise, but also the rule and cannot be received. consideration on which it is founded. Here The Solicitor for the country creditors then the consideration alleged is forbearance for a applied to have the choice of assignees adreasonable time, but the guarantee mentions no journed, to afford an opportunity for amending time, and the law will not imply a reasonable and reswearing their affidavits. time. The mere forbearing is not a sufficient Mr. Commissioner Evans. I never adjourn consideration to support a promise to pay, but a choice of assignees. it must be for some certain and specified time. The choice was then proceeded with, and Chitty on Contracts, p. 35; Cole v. Dyer, 1 C. two persons nominated by the town creditors & J. 461. The two documents taken together were appointed assignees. do not support the declaration, and the latter document is only an undertaking by the defendant to continue his guarantee to pay the

ANALYTICAL DIGEST OF CASES, note when due.

REPORTED IN ALL THE COURTS.
Miller, in support of the rule. The guaran-
tee supports the allegations in the declaration.
Where no particular time is mentioned for the

Common Lal Courts. performing of an act, the law implies a reason

PLEADINGS. able time. In agreements for the purchase of land, the vendor has a reasonable time for

ABATEMENT. making out his title. [Alderson, B. In that

1. Affidavit of verification.-Statement of re. case the act itself necessarily requires some sidence of co-contractor.-In an affidavit of time; but in a case like the present, what de verification of a plea in abatement of the nonfinite idea can you attach to a forbearance for a joinder of A. as a defendant, his residence was reasonable time? It would depend upon the declared to be “ 43, Lowndes Street, Belgrave disposition of the party, whether he was litigious Square.” It appeared that he was residing or mild or somnolent. Suppose he brought there at the time of the commencement of the his action the next day, would that be a for- suit; that the house and furniture were his; bearance for a reasonable time ? Rolfe, B. that he was endeavouring to let the house The declaration seems to be bad.] Per curiam. The rule must be discharged. from abroad; and that B. was occupying it as

furnished for a few months, until his return his friend and guest.

Held, that this was a sufficient description of Bankruptcy.

A.'s residence, within the stat. 3 & 4 W. 4, c. Exparte Hyams. Sept. 30, 1847.

42, 8. 8.

The “residence” mentioned in that statute TITLE OF THE means the domicile or home of the party.

Lambe v. Smythe, 15 M. & W. 433. Affidavits by country creditors to support Cases cited in the gment: Newton , Verproofs of debts, must be entitled

In the

becke, 1 Y. & J. 257; Taylor v. Harrison, 4 Court of Bankruptcy in London." If the B. & Ald. 93. words in Londonbe omitted the affidavits will be rejected.

2. Auter action pendant.-In an action of

contract against A., he cannot plead in abateThis was a meeting for the choice of as- ment the pendency of another action for the signees, before Mr. Commissioner Evans. same cause against B. Henry v. Goldaey, 15

Several country creditors of the bankrupt, to M. & W.494. an amount sufficient to determine the choice of

And see Arbitration ; Husband and wife ; assignees, proposed to prove their debts by Joint Contractors. affidavits, which were entitled “ In the Court of Bankruptcy” merely.

ACCORD AND SATISFACTION. The Solicitor to the fiat objected to the 1. Annuity. - In debt for money had and

PRACTICE.-AFFIDAVITS.

COURT

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ACCOUNT STATED.

Analytical Digest of Cases : Common Law Courts.

549 received, &c., the defendant pleaded, that, after thereof, and entitled to sue the defendant on the accruing of the debts and causes of action, the same. the defendant executed a deed, securing to the Replicatii n, that the bill became due before plaintiff a certain annuity, and that the plaintiff the commencement of the suit, and defendant did then accepted and received the same of and not pay it, and that S., before the commencefrom the defendant in full satisfaction and dis- ment of the suit, returned the bill to plaintiff, charge of all the said several debts and causes who then became the holder, and continued so of action.

to the commencement, &c., and still is the The plaintiff replied, that no memorial of the holder : Held, bad, on special demurrer, for annuity deed was enrolled pursuant to the sta- setting up fresh matter, without confessing and tute; that, the annuity being in arrears, plain- avoiding, or expressly traversing the averment tiff had brought an action against defendant; of S. being holder at the commencement of that the defendant pleaded in bar of that action the action. the non-enrolment of the memorial; and that The word “discharge” in the plea imported, thereupon the plaintiff elected and agreed that not payment or satisfaction of the debt, but the indenture should be null and void, as only that the bill was given "for and on acpleaded by the defendant, and discontinued count of” it. the action.

The 9th plea resembled the 8th, except in Held, a good answer to the plea, inasmuch averring that whilst S. was holder, defendant as it showed that the accord and satisfaction and K., at his request and on his account, rethereby set up had been rendered nugatory and spectively paid him its amount. unavailing by the act of the defendant himself. Replication, traversing the payment, &c., of Turner v. Browne, 3 C. B. 157.

the bill in the terms of the plea, and generally, 2. Bill of Exchange.Duplicity.-Assumpsit and averring the return of the bill by Sharp to on a bill of exchange for 50l. by drawer against plaintiff, and the holding of it by plaintiff, as in acceptor, with counts for money lent, and on the replication to the 8th plea : Held, bad, on an account stated.

special demurrer, for like reasons as the eighth. Plea to the first count, that before the bill Kemp v. Watt, 15 M. & W. 672. became due, G. had agreed to pay defendant certain sums by monthly instalments of 401. ; that defendant was unable to pay the bill, and In indebitatus assumpsit for money due on thereupon, while plaintiff was holder, and be an account stated, it is not sufficient to plead fore it became due, in corsideration that de- that, after the accruing of the causes of action fendant, with assent of G., and at request of in the declaration mentioned, and before the plaintiff, would permit plaintiff to reeeive from commencement of the suit, defendant and G. so much of the instalments of 401., as plaintiff accounted together of and concerning should amount to the sum in the bill

, plaintiff the said causes of action, and all other claims agreed to accept payment of the bill thereout, and demands then being between plaintiff and and to discharge defendant from performing defendant, amountiog to a large sum, to wit, the promise in the first count.

1,0001., and that on such accounting, a small Averment, that plaintiff received the first in- sum, to wit, 1501., was then found to be due stalment, but neglected of his own wrong to and owing from defendant to plaintiff, which procure payment of the residue from G. out of defendant then promised plaintiff to pay, and the next instalment.

afterwards, before commencement of the suit, Replication, that, in consideration that de- paid to plaintiff, who accepted it in full satisfendant would, with assent of G., at request of faction of the sum due to him from defendant; plaintiff, permit plaintiff to receive from G. so for such a plea does not show that, at the time much of the instalments of 401. as should of the second accounting relied on, any cross amount to the sum in the bill, plaintiff did not demand by defendant against plaintiff existed, agree to accept, &c., (traversing the plea in or, that, if it existed, it had not been agreed to be terms) : Held, bad, on special demurrer, for given up by defendant in consideration of not expressly traversing the agreement, and for plaintiff's giving up some other demand of his leaving it uncertain whether it meant to put in on defendant, so as to make payment of the issue simply the agreement, or the considera- balance a satisfaction of the larger sum. Smith tion, or both, or that G., by plaintiff's consent, v. Page, 15 M. & W. 683. agreed to pay him the bill out of the instal- Case cited in the judgment: Atherley v. Evans, ments, so to substitute themselves as

Sayer's Rep. 269. debtors to plaintiff on the defendant's acceptance.

8th plea, as to 501., parcel of the monies in 1. After judgment and lapse of a year.–The the 2nd and last counts, that before breach of court refused to allow a replication to be the promises in those counts, plaintiff drew his amended after the lapse of a year after judge bill for 501., which defendant accepted and de- ment pronounced on demurrer, the case having livered to plaintiff, who then accepted and re- previously stood over that the parties might ceived the same in discharge of the said sum of mutually agree to amend, and both having de50l., parcel, &c., and then indorsed and declined to do so. Hammond v. Colls, 3 C. B. livered the same to S., who from thence 212. hitherto hath been, and still is, the holder 2. Christian name. ---Where the plaintiff had

as

AMENDMENT.

66

550

Analytical Digest of Cases : Common Lar Courts. issued a writ and declared against the defend- own hand, he did not write thereon with bis ant as

"- Hume," and the defendant had proper hand the formula styled in the French afterwards given a written consent signed tongue a bon," or "approuvé," bearing in “Robert Montagu Hume,” to a judge's order words at length the sum secured, nor was the for judgment, and judgment was accordingly defendant at the time a merchant or tradessigned against him in November, 1844, as man, &c.; concluding, that, “by reason of the

Hume,” the court, on the application of premises, the bond, by the laws of France, the plaintiff, for the purpose of proceeding to never was nor is obligatory or binding on the outlawry against the defendant, made an order defendant, but always was and is of no force, in Trinity Term, 1846, to amend the declaration, effect, or validity." and all subsequent proceedings, by inserting Held, that the plea was bad, as being a mere the defendant's Christian name. Wood v. argumentative and inferential statement of the Hume, 4 D. & L. 136.

French law; which, being pleadable only as And see Ejectment.

matter of fact, ought to have been distinctly

and affirmatively alleged. ANNUITY.

Quære, whether, supposing it to have been Non-enrolment. - Former action. — Declara- well pleaded, the whole of the allegations theretion for money had and received. Plea, that in might have been put in issue by de injurie. the defendant granted an annuity in satisfac- Benham v. Earl of Mornington, 3 Č. B. 133. tion of the plaintiff's debt. Replication, that 2. Law of France.-To an action of debt on the deed was not duly enrolled; that in an bond, the defendant pleaded, that the bond was action to recover arrears of the annuity, the de- executed at Calais, in the kingdom of France, fendant pleaded the non-enrolment, and that where the defendant was domiciled; that cer. the plaintiff elected to make it null and void, tain forms in the plea mentioned were not and thereupon discontinued : Held, that the adopted on its execution, nor did the defendant replication answered the plea, as it showed that belong to certain classes of persons therein de. the deed had become null by the defendant's scribed; and that “by reason of the premises," act, and consequently, the plaintiff might by the law of France, the bond never was recover the consideration for the annuity. binding on the defendant: Held, that the plea Turner v. Browne, 4 D. & L. 201.

was argumentative and inferential in its mode And see Accord and Satisfaction, 1. of stating the law of France, and therefore bad.

Benham v.

Earl of Mornington, 4 D. & L. 213. ARBITRATION.

And see Bond ; Contract; Uncertainty. Abatement or bar.–To a declaration, Nov. 11th, 1844, for goods sold and delivered, and

ARREST, MALICIOUS, on an account stated, defendant pleaded, Nov.

Defect cured by verdict.-Since the 1 & 2 23rd, 1844, beginning “And, for a further Vict. c. 110, the declaration in an action for a plea, as to the 1st and 2nd counts of the said malicious arrest must allege falsehood or fraud declaration, the defendant saith that,” &c., al, in obtaining the judge's order for the capias, leging that, before action brought, disputes had and must state the circumstances which constiarisen between plaintiff and defendant whether tute such falsehood or fraud. defendant was indebted to plaintiff in any and But where the declaration alleged that the what sum for the causes of action declared defendants, not having reasonable or probable upon, which disputes they submitted them cause for believing that the plaintiff was about selves to refer, and did refer to arbitration, and to quit England, falsely and maliciously, and mutually promised to fulfil the award ; that the without reasonable or probable cause, caused arbitrators, before action brought, took upon and procured a judge to make an order for the them the reference ; that the matters in dispute plaintiff's arrest: Held, that after verdict the are still under their consideration ; and that a declaration must be taken to mean that the reasonable time has not elapsed for making the order was procured by false evidence, or by award. Conclusion : “and this the defendant means of falsehood; the allegations as to the is ready to verify, &c.” On demurrer, Held, defendant's not having reasonable or probable

1. That the plea could not be considered as plea in abatement informally pleaded.

cause for believing that the plaintiff was about

to quit England, being rejected as subterfuge. 2. That, as a plea in bar, it was bad; the Daniels v. Fielding, 4 D. & L. 329. tendency of an arbitration being no answer to

And see Married Woman,
an action for recovery of a debt. Harris v.
Reynolds, 7 Q. B. 71.

ASSUMPSIT.
ARGUMENTATIVE AVERMENT.

See Set-off, 2. 1. Foreign law.-Replication de injuria. To debt on bond the defendant pleaded, that Justification.--In an action of trover, the dethe bond was executed by him in France, where fendant pleaded, that the supposed grievance he was then domiciled; that it was not taken was committed after the passing of the 7 & 8 or passed by any public officer authorised by Vict. c. 19, intituled “An Act for regulating the laws of that kingdom, nor was it written Bailiffs of Inferior Courts :" that the defendthroughout by the hand of the defendant; that, ant had been duly appointed to act as bailiffin though the defendant signed the bond with his execution of the process of the Tolsey Court of

BAILIFF.

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