the clause, "The land is sold subject to the conditions of the Jenkins, K.C., and Gatey, for the purchaser, took the objection that there was not a sufficient memorandum of the contract to satisfy the Statute of Frauds. They argued that while it is quite possible to incorporate, by reference, a given second document with a written memorandum in such a manner as to satisfy the statute, the reference must be to a definite document; here there was merely a vague reference to agreed conditions which might vary from time to time, and might not be in existence as a printed or written document. There was no direct reference to a document in existence and produced to the parties. BUCKLEY J. said that the Forfeiture Act, 1870, abolished forfeiture for felony, and gave power to appoint an administrator of a convict's property. Under sect. 12 the administrator had absolute power to sell this property as to him should seem fit, whether the money was wanted for payment of debts or not. Sect. 17 did not restrict that power to sales for the purposes of the Act. A sale must be made bonâ fide, and that involved the exercise of care; but if made bona fide, it was binding on the convict irrespective of the reasons for which it was made. The jewellery was sold because it was the practice of Scotland Yard to sell such articles; that sale was made bona fide on the part of the administrator, and could not be questioned. The fact that the money was not wanted for payment of costs was immaterial. FARWELL J. said that there was no substance in the objec- The sale of the Louisville and Nashville Railway Company shares tion. Obviously, unless something was said to the contrary, had been ordered bonâ fide and after personal consideration by the conditions referred to were the conditions sanctioned by the administrator, although owing to the conduct of a subordithe Law Society at the time of making the contract. It would nate it had not been carried out through the proper channel. of course be necessary for the plaintiff to prove what those Therefore the plaintiff was not entitled to damages in respect conditions were. The judge could not take judicial cognizance, of that sale. The plaintiff was, however, justified in commencing without further evidence, of a mere printed copy of rules pro-and in proceeding with the action; and the remainder of his duced in court. When, however, that copy was once identified property in its present state of investment must be restored to by evidence, it became an illustration of the maxim, Id certum him. Even if sect. 20 of the Forfeiture Act, 1870, applied to est, quod certum reddi potest. actions by a convict against his administrator-which was doubtful-the Court had a discretion under that section as to costs, and under all the circumstances justice would be done by giving no costs to either side. Solicitors for the plaintiff: Burn & Berridge, for John Riley Solicitors for the defendant: Walker & Rowe, for Lewis Irving Solicitors: Emanuel Round & Nathan; Wontner & Sons. H. C. R. Nov. 8. Buckley J. In 1895 the plaintiff, John Carr, was convicted of felony and 8-ntenced to six years' penal servitude. Sir Robert Anderson, the Assistant Commissioner of Police, was thereupon appointed administrator of the plaintiff's property under the Forfeiture Act, 1870. He realized practically the whole of the property, paid the costs for which the plaintiff was liable, and invested the remainder of the proceeds. On obtaining his discharge the plaintiff applied for an account, and particulars and delivery up of his property; but the authorities at Scotland Yard refused to give any information, and called upon him to give particulars of the property he claimed. The plaintiff commenced an action against Sir Robert Anderson and his successor to enforce his claim; and in obedience to an order of the Appeal Court the defendants delivered an account and particulars. The action now came on for trial, and the plaintiff complained chiefly of two points, namely, that his jewellery had been sold at an undervalue, and that shares in the Louisville and Nashville Railway Company had been wrongfully converted. He contended that these shares ought not to have been sold at all, inasmuch as the proceeds were not required for payment of the costs of his prosecution, that they had not been sold in the nsual way, and that he was entitled to damages in respect of their sale. Astbury, K.C., and Montague R. Emanuel, for the plaintiff. Buckley J. The disused burial ground of St. Mary's, Paddington, was an open space within the Metropolitan Open Spaces Acts, 1877, 1881, and 1887, and the Disused Burial Grounds Act, 1884 (47 & 48 Vict. c. 72), and by the Acts any building on the space except an extension of the church was forbidden. The plaintiff was the owner of land circumjacent to and abutting on the burial ground, and on his land he had erected flats with windows overlooking the burial ground. The action was brought to restrain the erection of a screen to be put up in order to prevent the plaintiff gaining a prescriptive right to the access of light over the burial ground to his windows. Astbury, K.C., and Mark Romer, for the plaintiff. C. A. Montague Barlow, for the vicar of Paddington, who was also a defendant. BUCKLEY J., in a considered judgment, held that the defendants were wrong in their objection that the action could not be maintained without joining the Attorney-General as a plaintiff; because the present plaintiff was suing either in respect of an alleged private right, or for special damage for an interference with an alleged public right. But the plaintiff had no cause of action. The space was devoted to the public in an open condition, free from buildings, for exercise and recreation. (See Act of 1877, s. 1; Act of 1881, s. 5.) But the Acts did not The cases of In re light which did not previously exist in adjoining owners. The to exist after the death of Jane Eden. contention that as a member of the public the plaintiff could Cotton's Trustees and the School Board for London, (1882) 19 object to the erection of a screen or hoarding also failed. It was based upon the assumption that the hoarding was a "building" within the Acts. In sect. 5 of the Act of 1881 "buildings" meant such buildings as would preclude or diminish the enjoyment of the space for exercise and recreation. In sect. 3 of the Act of 1884" buildings " meant erections which would cover some part of the ground-not something in the nature of a fence or barrier to prevent the acquisition of prescriptive rights to light. The action must be dismissed with costs. Ch. D. 624, and In re Lord Sudeley and Baines & Co., [1894] 1 Ch. 334, shewed that where parties who had become absolutely entitled had not put an end to the power, it was a question of the testator's intention whether it should continue. In this case the testator plainly intended the trust for maintenance of Robert Eden to continue during his life, and the power of sale to continue for the same time. The power was therefore well exercised, and the proceeds belonged to the estate of Robert Eden as personal estate. Solicitors for the trustees: Collins, Robinson & Driffield, Liverpool. Solicitor for the other parties: Stanley J. Attenborough. J. R. B. Swinfen Eady J. In re JUMP. Nov. 1. Swinfen Eady J. In re STEEL. Nov. 5. Will-Mistake-Misdescription of gift-" My freehold land and hereditaments at M."-Customary freeholds. Originating summons. Will-Power of sale-Duration-Intention of testator. The testator in this action gave all his real and personal estate to trustees upon trust, after the death of his daughter, in their discretion, and of their uncontrollable authority, to manage and administer his said estate and effects, and to pay, By her will, dated the 22nd of September, 1899, the testatrix apply, and expend the same, or so much thereof as they should devised "my freehold land and hereditaments at Morland think expedient, to or for the clothing, board, lodging, main-Field, in the said parish of Morland," to the defendant, and her tenance, and support, or otherwise for the personal and peculiar residuary real and personal estate to the plaintiffs. benefit, of his grandchildren during their lives and the life of The testatrix died on the 29th of January, 1902. the survivor, whether infant or adult, and whether competent It appeared that in 1886 she inherited four fields adjoining or incompetent to give an acquittance or discharge for the one another at Morland Field, in Morland, Westmorland, same, in such proportions and manner as his trustees should from her brother, who died intestate. Two of these fields were think fit, and on the decease of the survivor of his said grand- of freehold tenure, but the other two, though commonly called children, upon certain trusts for their issue, which were held to customary freeholds or simply freeholds in the locality, were in be void for remoteness. And he empowered his trustees, when fact privileged copy holds held of the lords of the manor of they in their own discretion should consider necessary, to sell Morland at fixed customary rents of 1s. and 1s. 2d., with fixed and convert his estate and effects into money. fines on death or alienation. They were conveyed by grant surrender and admittance, but were not held at the will of the lords. The testatrix had never been admitted or paid the customary rents, and it did not appear that she was aware of any distinction in the tenure of the four fields, which had for many years been let to the defendant at an entire rent of 127. The testator died in 1842, and his daughter died in 1846. There were only two grandchildren, namely, Robert Eden, a person of unsound mind, who was the testator's heir-at-law, and Jane Eden. The said Jane Eden died on the 12th of December, 1882, leaving Robert Eden her surviving. Robert Eden died on the 20th of January, 1902, a bachelor and intestate. The trustees had sold part of the testator's real estate during the life of Jane Eden, and other part after her death but during the life of Robert Eden. This summons was taken out in the Liverpool District Registry for the determination, among other questions, to whom the proceeds of sale of the real property sold after the death of Jane Eden belonged; which depended on the question whether the power of sale created by the testator's will was then in existence. It was admitted that on the death of Jane Eden, the ultimate trusts having failed for remoteness, the reversion in the property vested absolutely in Robert Eden as the testator's heir-at-law, and he could, if of sound mind, have called upon the trustees to convey the property to him. H. Mather, for the trustees. Micklem, K.C., and Cann, for the legal personal representative of Robert Eden. Eve, K.C., and Methold, for his heir-at-law. SWINFEN EADY J. said that he thought the power continue This summons was issued to determine whether the defendant was entitled to these customary freeholds. Alfred Whitaker, for the plaintiffs. As there are fields to which the word "freehold" accurately applies, it cannot le extended to include these privileged copyholds, although they are known as customary freeholds. In re Bright-Smith, (1886) 31 Ch. D. 314, is distinguishable, as, first, there was no residuary devise, and, secondly, the words "my freehold farm" could ret be accurately applied to part of a farm. Gatey, for the defendant. Although the customary freeholds are not of freehold tenure, they may be described as freehold land, the word "freehold" referring, not to the tenure, but to the estate of the tenant, as distinguished from a copyhold estate which is held at the will of the lord. SWINFEN EADY J. held that, as the fields in dispute were known as customary freeholds, or freeholds, in the locality and the testatrix was unaware of any difference in the tenure she had not used the word "freehold" in the technical sens of tenure, but with reference to the quality of the estate. The will I hold that great nephews and nieces, the daughter of the customary freeholds had, therefore, passed to the defendant. Solicitors: Christopher Johnson Brayshaw, for John Richardson, Appleby; Harrison & Powell, for Bell & Moordaff, Appleby. G. R. A. illegitimate nephew, and the husband's nephews and nieces, are Solicitors: Burton, Yeates & Hart, for Beloe & Beloe, King's Will-Class-"My own nephews and nieces"-Half-bloodHusband's nephew described as "my nephew"-Great-niece described as niece. Originating summons. Testatrix bequeathed one moiety of the proceeds of sale of her residuary real and personal estate upon trust for Alexander Duncan for life, and after his decease upon trust for "my own nephews and nieces with the exception of Mary Ann, the sister of William Moore." In an earlier part of her will the testatrix had given the proceeds of sale of twenty-two cottages to "Mary Jane Cozens, Ellen Cozens, James Cozens, Louisa Howes, and Catherine Norriss, the nieces and nephews of my late husband George Cozens, and my nieces Emma Moore and Sarah Metcalf, the wife of Henry Metcalf, in equal shares." Emma Moore was a great-niece, and was elsewhere described as the daughter of "my nephew William Moore." Sarah Metcalf was the daughter of an illegitimate nephew. Alexander Duncan, the nephew of the testatrix's husband, was described as 66 my nephew." The testatrix died on the 6th of July, 1889, and Alexander Duncan died on the 4th of May, 1900. Besides nephews and nieces of the whole-blood, the following persons claimed to share in the bequest to "my own nephews and nieces." First, nephews and nieces of the whole-blood. Secondly, Emma Moore and Sarah Metcalf, on the ground that they were described as nieces. Thirdly, great nephews and nieces generally, on the ground that one of their class was described as a niece. This summons was issued to determine who were the persons entitled to share. The husband's nephews and nieces were not made parties owing to the difficulty of tracing them. A. M. Begg, for the trustees. Clare, for the nephews and nieces of the half-blood. T. T. Methold, for Emma Moore and Sarah Metcalf. Harry Greenwood, for other great nephews and nieces. Henry Johnston, for nephews and nieces of the whole-blood. SWINFEN EADY J. As there is no context to the contrary, the nephews and nieces of the half-blood are entitled to share: Grieves v. Rawley, (1852) 10 Hare, 63. As to the claims of Emma Moore, Sarah Metcalf, and other great nephews and nieces, Smith v. Lidiard, (1857) 3 K. & J. 252; Wells v. Wells, (1874) L. R. 18 Eq. 504, and Merrill v. Morton, (1881) 17 Ch. D. 382, do not lay down any hard and fast rule that a gift to nieces does not include a great-niece, although in another part of the will a great-niece is described as a niece; nor, on the other hand, does In re Jodrell, (1890) 44 Ch. 1). 590; [1891] A. C. 304, lay down any hard and fast rule that whenever a great-niece has once been referred to in a will as a niece, the expression "nieces" must in all other parts of the will be CORPORATION OF SHEFFIELD v. BARCLAY AND OTHERS. Indemnity-Forged transfer of stock-Innocent presentment of, for registration-Implied contract to indemnify. Trial of action before Lord Alverstone C.J. without a jury. Two persons named Timbrell and Honnywill were the holders of certain stock of the plaintiff corporation. Timbrell instructed a firm of stockbrokers to sell the stock, which they did. Before any transfer had been executed the purchasers pledged the stock with the defendants as security for an advance. A transfer purporting to be executed by both Timbrell and Honny will in favour of the defendants was then handed to the defendants, who sent it to the plaintiffs for registration, and procured themselves to be registered as the holders. The defendants at the request of the pledgers transferred the stock to third parties, who in their turn were duly registered. Subsequently it was discovered that the signature of Honnywill to the first-named transfer was a forgery, and upon an action being brought by him against the plaintiff corporation the latter were compelled to purchase stock to replace that which he had lost. The corporation then brought the present action against the defendants for an indemnity. Danckwerts, K.C., Bankes, K.C., and Waddy, for the plaintiffs. Haldane, K.C., and F. R. Radcliffe, for the defendants. LORD ALVERSTONE C.J. held that, there being no negligence on either side, the loss must fall upon the defendants who requested the plaintiffs to do the act, namely, the registration of the transfer, which caused the damage. . Nov. 3. Local government—" Drain "-Semi-detached houses-" One building only"-Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 4. Case stated by justices of Reigate. The respondent was summoned under sect. 4 of the Public Heath Act, 1875, for neglecting to comply with a notice requiring him to amend a drain which was in bad condition. The respondent was the owner of a pair of semi-detached houses did not go up through the roof. They were let to different tenants. The drain in question was used for the drainage of both houses. The justices held that the drain was not used for the drainage of "one building only" within the meaning of sect. 4 of the Act, that it was consequently a sewer and not a drain, and was not repairable by the respondent. Bray, K.C., and G. Humphreys, for the appellant. Mucmorran, K.C., and Naldrett, for the respondent. Adm. PROBATE, DIVORCE, AND ADMIRALTY DIVISION. notice. THE COURT (Lord Alverstone C.J., Wills and Channell JJ.) Admiralty-Collision-Tug and tow-Tow in collision with third held that whether a pair of semi-detached houses are "6 one vessel by fault of tug-Contract of indemnity-Third-party building only" within the meaning of sect. 4 or not is in each case a question of fact, as to which no general rule could be laid down, and that consequently the finding of the justices must be supported. Appeal dismissed. Solicitors for the appellant: Nicol, Son & Jones, Redhill. Solicitors for the respondent: Pettiver & Pearkes. TROMANS v. HODKINSON. J. F. C. Nov. 3 K. B. D. Case stated by justices of Staffordshire. The appellant was summoned under sect. 3 of the Betting Act, 1853, for unlawfully using the Railway Inn, Cradley Heath, for the purpose of betting with persons resorting thereto. The appellant, who was a bookmaker, was in the habit of frequenting the bar of the inn at certain hours for the purpose of carrying on a business of ready-money betting with persons resorting there, the carrying on of which in the bar was known to those persons, and was carried on under some arrangement or understanding come to with the landlord of the inn. There was no evidence that the appellant had any interest in the inn or any control over it, or that he occupied any specific part of the bar for the purposes of the betting business. The justices convicted the appellant subject to a case for the Court. G. W. Stutfield, for the appellant. Shakespeare, for the respondent. THE COURT (Lord Alverstone C.J., Wills and Channell JJ.) held that the fact of the appellant having habitually used the bar for the purposes of his betting business amounted to a "of the premises for that purpose within the meaning of the section; and they accordingly affirmed the conviction. Bolton v. Busby, [1899] 2 Q. B. 380, followed. user Conviction affirmed. Solicitors for the appellant: Philip Baker & Co., Birming ham. Solicitors for the respondent: Wainwright & Co., for Thomas Cooksey, Old Hill, Stafford. J. F. C. The barge John, whilst (with five other barges) in tow of the tug Richmond, came into collision with the brigantine Lenore, lying at anchor in the river Thames. The owners of the Lenore brought an action against the owners of the John, in the City of London Court, which was dismissed by the learned judge, on the ground that the collision was due to the negli gence of those in charge of the Richmond. The owners of the John then brought an action against the Richmond, whose owners served a third-party notice on the owners of the John, relying upon the following condition in their terms of towage as amounting to a contract of indemnity: "We hereby give notice that we will not be answerable for any loss or damage which may happen to or be occasioned by or to any vessel or barge or their or its cargo while in tow, however such loss or damage may arise, and from whosesoever fault or default it may arise, nor will we be responsible for any loss or damage which may happen or be caused by or through any act done or omitted to be done by any person or persons we employ for or on account of or at the request of the owners or charterers of any craft." THE DIVISIONAL COURT (Sir F. H. Jeune P. and Gorell Barnes J.) held (affirming the decision of the county court judge) that though it might be that, under the terms of the condition, the owners of the John could not recover over from the owners of the Richmond any sum they might have to pay for damage caused by collision whilst their barge was in tow of the Richmond, the owners of the Richmond could not call upon the owners of the John to indemnify them in respect of any damages which they might have to pay in consequence of the negligence of their own servants, and, therefore, the claim, by the owners of the Richmond to be recouped by the owners of the John, failed. C. A. Russell, K.C., and the Hon. John Mansfield, for the appellants, the owners of the tug Richmond. J. A. Hamilton, K.C., and A. E. Nelson, for the respondents (third parties), owners of the barge John. Solicitors: C. E. Harvey; J. A. & H. E. Farnfield. T. L. M. NOTICE TO SOLICITORS. SUPERIOR AND VASSAL. Feu contract-Stipulation for additional feu duty for ground “on which buildings shall be erected" VENDOR AND PURCHASER. purchaser that no debts of testator remain unpaid With the view of insuring the greatest possible accuracy and rapidity in the various publications connected with the LAW REPORTS, the Council will be obliged, if the Solicitors to whom application is made by any reporter acting for the Council Sale of leaseholds by executor-Lapse of time-Actual notice to will as soon as possible after application furnish the necessary Papers, together with any information in their power as to the names of the various Solicitors engaged in the case. same time, the Council thankfully acknowledge the assistance they have already received from so many members of the Profession in furnishing the papers required to prepare accurate reports. At the WILL. Legrey-Appropriation of investments-Contingent legacy without interest-Costs PAG & 206 Legacy-Satisfaction-Advancement of child by father-Double portions. 207 208 . 206 Residuary devise-Specific devise-Wills Act, 1837 (1 Vict. c. 26), 8. 25 206 |