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of a company with limited liability, and a member of a company with unlimited liability.-In re Overend, Gurney g Co. (Lim.), Ex parte Grissell, 35 L. J., Ch. 752.
LEGACY (vesting):--A testator gave his residuary estate to trustees upon trusts for his widow for life, and after her deccase for distribution among such of his five nephews as should be living at the time of her death, in equal shares ; but if any of them should then be dead leaving issue, such issue to be entitled to their father's share. One of the nephews predeceased the widow, leaving one daughter, who died before the widow, and therefore before the period of distribution :- Held, that the gift to the issue of the deceased nephews was an original and not a substitutional gift; that the condition annexed to the contingent gift to the parents was not to be extended by implication to the gift to the issue, and that the daughter of the deceased nephew, though dying before the period of distribution, took a vested immediate interest in the share which her father would have taken if alive at the period of distribution, although the amount could not be ascertained until the death of the tenant for life. The words “such issue to be entitled to their father's share” to be read as “such child or children to be entitled to their father's share.”—Martin v. Holgate (House of Lords), 35 L. J., Ch. 789.
BOUNDARIES (Evidence, Parole).-A grant of a mine was made to L. by deed, with map indorsed; the southern boundary being “a straight line drawn from J. V.'s house" to a certain boundstone; and the description of parcels concluded " which said premises are particularly delineated by the map on the back hereof." On this map the line was drawn from the north-east corner of J. V.'s house. L. brought trespass against R. for working through this southern boundary and taking plaintiff's ore. At the trial, parole evidence was admitted to shew that J. V.'s house was wrongly placed on map, and that if corrected the line would run to the south of J. V.'s house, and the whole question was left to the jury :Held (Lord Westbury diss.), that, though it was properly a question of evidence for the jury to identify and determine the position of J. V.'s house, it was a question of construction for the Judge to decide what was the true meaning of the deed ; that in so doing the Judge was bound to look at the map, and that he ought to have directed the jury that the true boundary line was that drawn from the north-east corner of J. V.'s house when identified and correctly placed.—Lyle v. Richards (House of Lords), 35 L. J., Q. B. 214.
SHIPPING (Barratry and Perils of the Sea, Negligence).—Plaintiff shipped goods on board the Black Prince, under a bill of lading, which contained the exceptions of "barratry” and “perils of the sea." The Black Prince was lost in a collision with the Araxes. In an action on the bill of lading, there was evidence at the trial that the collision arose from the Black Prince starboarding instead of porting her helm, as required by the rules laid down by the Merchant Shipping Act, 1854; and a collision occasioned by non-observance of such rules is, by section 299 of that act, to be deemed to have been occasioned by the wilful default of the person in charge” of the offending ship. The Judge told the jury that if the collision was brought about by negligence of those on the Black Prince, the loss would not be a peril of the sea, and that for that purpose he could not distinguish between gross negligence and negligence; and he left it to the jury to say whether there was want of due care on the part of the Araxes, by which care the collision would have been avoided :-Held, that the contravention of the rules of the Merchant Shipping Act, 1854, by those in charge of the Black Prince, in starbɔarding instead of porting the helm, did not amount to barratry within the exception in the bill of lading. Held, also, that, the direction of the Judge was right, and that he did right in not directing the jury that the loss of the Black Prince was caused by perils of the sea, within the exception in the bill of lading. Grill v. the General İron Screw Collier Co. (Lim.), 35 L. J., C. P. 321 ; 1 Law Rep., C. P. 600.
Will.—B. G. devised freeholds, upon trust for the use of E. G., his nephew, for life, with remainders to the use of his first and other sons in tail male, with successive remainders over for life, and remainders to the first and other sons of
the successive tenants for life in tail male; and he bequeathed his residuary personal estate, upon such trusts, &c., as were thereby declared concerning the devised freehold hereditaments, or as near thereto as the rules of law and equity would permit; provided, nevertheless, that such residuary personal estate should not vest absolutely in any tenant in tail, unless such person should attain the age of twenty-one years:"—Held, aff. the decision of Westbury C., (Lord St. Leonards diss.), that the proviso merely narrowed the class who would have taken under the previous words of gift, and did not extend such class to tenants in tail by descent; and therefore the personality vested only in tenants in tail by purchase, and the gift was not void for remoteness. Held, also, that the words * near as the rules of law and equity will permit," would not by their own force have controlled the construction. Christie v. Gosling (H. of L.), 35 L. J. Ch. 667.
ILLEGAL CONTRACT (“Stifling a Prosecution").-W. B. discounted bills to which he had forged his father's signature. The holders of the forgeries working on the father's fears for the safety of his son, but without holding out any direct threat, and without any distinct promise not to prosecute, obtained from the father equitable security for the amount of the bills. * Held, that the security was void, as having been obtained by improper pressure ; also, that the arrangement was in. valid, being an agreement to stifle a prosecution. Williams v. Bayley (H. of L.), 36 L. J. C. 717.
Booty.—The enactment as to booty that the Court “shall proceed as in cases of prize of war,” refers only to procedure, and does not assimilate in all respects the distribution of booty to that of prize. Even if the property captured is not strictly booty, or is of unusually large value, the principles applicable to actual and joint capture are, nevertheless, to be followed. In considering claims to booty, the Court will not be influenced by opinions expressed by the civil and military authorities ante litem motam. The decisions in cases of prize and the usage in grants of booty should be regarded, but not implicitly adopted. The principles, though not all the rules applicable to prize, may be followed in the adjudication of booty. The conditions of warfare on land and at sea, are so different, that a wider application of the term “co-operation" must be allowed in matters of booty than in cases of prize ; but some practical limits must be assigned to the term. The rule of sight at sea and the extent of communication on land distinguished. As all the ship's company are considered the actual captors of prize taken by any of its members, so the whole division of an army, if in the field, usually constitutes the actual captors of booty taken by any of its detachments. Association" for purposes of booty must be military, and not political; and there must be some limits even to military association. Troops are not associated as joint captors, because they are carrying out parts of a political plan involving military operations, or because their commanders receive instructions from the same political authority. The association must be under the immediate command of the same commander. "Co-operation” which will give a title to booty must directly tend to produce the capture in question. What tends to produce the capture cannot be exhaustively defined. Generally, strict limits must be observed of time, place, and relation. Services rendered at a great distance from the place of capture, or acts done long before the capture was contemplated, even though they affect the whole scene of operations, do not constitute legal co-operation. The right of a Commander-in-Chief to share in booty taken by his army is, to a certain degree, analogous to the right of a flag-officer to prize taken by a ship on his station. A flag officer on his station, de facto in command there, is entitled to share in every prize taken by a vessel under his command. But no flag.officer commanding in a port of the United Kingdom shares in prize made by any ship sailing thence by order of the Admiralty. And no flag-officer shares in a prize taken by a vessel nominally under his command, but detached by paramount orders upon a special, independent command. To entitle the Commanderin-Chief to share in booty captured by his army, he must himself be in the field,
though not necessarily with the division which makes the capture. Being in the field with any division, he is, as to booty, in the field with all. But if a portion of his troops have been placed under the independent command of another, the Commander-in-Chief, though actually in the field, does not share in booty taken by those troops. To invest a subordinate officer with an independent command within the normal sphere of the Commander-in-Chief is an extraordinary arrangement, and strict proof is necessary to rebut the contrary presumption. The right of the general and personal staff to booty depends on that of the Commander-inChief; but only such members of the personal staff are entitled as are actually in the field. Under the circumstances, costs of rejected claimants allowed, and, to prevent the necessity of taxation, an account of disbursements, and a quantum meruit recommended.—The Banda and Kirwee Booty, 35 L. J. Adin., 17.
JURISDICTION.—The Court of Admiralty has no original jurisdiction in matters of prize. That which it exercises is derived from a royal proclamation issued at the outbreak of each war, and a commission requiring the Lords of the Admiralty to give the necessary powers to the High Court of Admiralty. The Court's jurisdiction with respect to booty commenced with the passing of the 3 & 4 Vict. c. 65. 8. 22.—The Banda and Kirwee Booty, 35 L. J. Adin., 17.
SHIPPING (Bill of Lading—Lien for Freight.)—By charter party the cargo was deliverable " on being paid freight as follows: The ship to have a lien on cargo for freight ; £3 10s. per ton of 50 cubic feet to be paid to the captain or his agents on right and true delivery at the port of discharge." The charterer shipped a portion of the cargo under a bill of lading which stated freight to be payable as per charter party.” Helid, that the rate of freight alone and not the stipulation as to lien, was incorporated in the bill of lading, so that the shipowner had no lien as against a bona file onerous indorsee for the whole freight, but only for that of the goods mentioned in such bill of Lading:
Fry v. Chartered Mercantile Bank of India, London and China, 35 L. J. C. P., 306.
COURT OF SESSION.
M.P.-Ker's TRUSTEES v. KER AND OTHERS.-Nov. 7.
Trust.—Marriage Contract. By trust disposition and deed of settlement, dated 23d Sept. 1839, Robert Ker, senior, of Argrennan, directed his trustees to hold his estate in trust, for the use and behoof of his eldest son, Robert, and the heirs of his body; whom failing, for the use and behoof of his second and other sons in succession. He further directed his trustees, upon his eldest son attaining majority, to convey to him the said estate ; but declaring that, in case his eldest son should marry, or otherwise conduct himself so as not to merit the approbation of his said trustees, the provisions made in his favour should only belong to him in liferent for his liferent use allenarly. By a codicil, dated 26th January 1847, the testator directed his trustees not to make over the estate to his eldest
, son until he should attain the age of twenty-five years. The testator died in 1854. His eldest son attained his majority on 22d July 1857. On 21st September 1858, he married Miss E. H. R. Macalpin, an Irish lady with a considerable fortune. On this occasion two Bettlements were executed—one in the English form settling the lady's fortune on herself and her children, with a liferent to Mr Ker; the other in
the Scotch form, by which the estate of Argrennan was settled by means of a trust on Mr Ker in liferent and his heirs in fee, and Mrs Ker was provided with an annuity of £400. The marriage was intimated to the trustees under his father's deed, and approved of by them, and a minute of approval entered in their sederunt book. On 18th June 1861, and within a few weeks of Mr Ker's attaining the age of twenty-five, these trustees, in virtue of a power in the settlement, restricted his interest under that deed to a liferent, and declared that the provisions therein contained should belong to him in liferent only, and to bis heirs in fee. Questions having been raised as to the effect of this minute upon Mr Ker, jun.'s right of fee, it was decided by the Lord Ordinary (Kinloch), and adhered to by the First Division, and affirmed by the House of Lords, that Mr Ker, jun.'s right under his father's trust-settlement was only one of liferent. Mr Ker, jun., however, had in his ante-nuptial marriage contract conveyed to trustees his whole "right and interest, present and future," under his father's trustscttlement, for the purpose, inter alia, of paying to him during the subsistence of the marriage, and in the event of his surviving his wife, to him thereafter, during the remainder of his life, the free balance of the income of the trust estate. This provision was declared to be alimentary, and not disposable by him to his prejudice. The contract also provided an annuity of £400 a year to Mrs Ker, and certain sums to the children of the marriage. Nearly two years after this date, viz., 28th July 1860, Mr Ker, junior, executed a deed in which, on the narrative of a certain sum advanced to him by Mr Justice, he conveyed his whole rights under his father's trustsettlement and under his marriage contract to that gentleman. The question now raised is, whether the trustee under the marriage contract, or Mr Justice, in virtue of the last mentioned deed, is entitled to be preferred to the rents and profits of the estate of Mr Ker, senior. The marriage contract trustees contended that they were entitled to the rents and profits because, at the time of the marriage, it was understood that Mr Ker was to become owner of the fee of his father's estate, and the contract had been framed on that footing, while, by the act of his father's trustees, his right had been restricted to a liferent. The security, therefore, for Mrs Ker's jointure had failed, and they were entitled to accumulate the rents in order to provide for the jointure and the claims of the children. They also contended that the provisions in the marriage contract were alimentary, and that Mr Justice ought to claim from them, as they had the right to these funds in the first instance. The Lord Ordinary (Kinloch) repelled the pleas of the marriage contract trustees, and decided in favour of Mr Justice.
MACLACALAN v. GARDINER.—Nov. 7th. Motion for New Trial-Credibility of Witnesses Question for Jury. This was an action at the instance of a widow claiming damages for the death of her husband, who was killed in a colliery belonging to the defender. The issue was whether the deceased was killed by being thrown out of a cage owing to the defective machinery for working said cage, through the fault of the defender. The case was tried before the Lord President and a jury, at the last spring sitting, and the jury found for the pursuer. Thereafter, the defender moved for a new trial, on the ground that the verdict was contrary to evidence.
Lord Deas said— The question was, whether the accident happened in consequence of one of the spokes of a wheel being broken or insufficiently secured. Four witnesses swear it was broken. If it was broken that would cause accident. Seven witnesses swear it was not broken. If it was not, then that was not the cause of the accident. The jury believed the four witnesses. It was a question of credibility, not to be determined by number. There was no more proper jury question than that the jury have decided. Even if I leant to the side on which there were seven witnesses, that is not a sufficient reason for upsetting a verdict. But I am not prepared to do so. Of them, two were interested. The means of knowledge which the seven possessed, were not greater than those possessed by the four; while it is very important that no cause of accident is proved if it did not happen through the broken spoke.
Lord Ardmillan agreed. His lordship thought a distinction was to be drawn between a case, in which, on an inference drawn from proved or admitted facts, the Court thought the jury wrong. That would be a strong case for granting a new trial: but where the matter is not one of inference, but of antagonistic evidence, he was not disposed to upset the verdict of a jury who saw the witnesses. Demeanour and mode of giving evidence are so important that it was not advisable readily to interfere in such cases.
The Lord President thought at the trial that the question was a nice one, and felt rather disposed to side with the minority, but in the circumstances, would not differ.
M.P.-Hill's TRUSTEES v. Hills-Nov. 8th.
Trust-Residue—Vesting. By trust disposition and settlement, the late David Hill conveyed his whole estates to certain trustees. The first purpose of the trust provided that, in respect, the main object of the trust was to form a clear capital trust fund of £6500, to be disposed of as directed by the deed, the truster's brother, Robert Hill, should provide funds to the trustees for paying all his lawful debts, death-bed and funeral expenses, and the expenses of the executry. The second purpose of the trust was, that the trustees should make over to the said Robert Hill, the lease of Hallyards for the whole remaining years thereof, and also the truster's whole crop and stocking, and moveable estate generally, at the sum of £3500, which he should be required to pay as soon after the truster's death as convenient, and this sum, with the sum of £3000, of which the truster was himself possessed, was to form the capital of £6500, to be disposed of in the following way :- The said Robert Hill was to have the whole interest of £6000 thereof, until the youngest son of the truster's brother, Dr Andrew Hill, should attain the age of twenty-one years, and on that event, the said sum was to be divided as directed in the deed.
The truster died on 16th November, 1860, and his brother, Robert Hill, died on 18th February, 1864. Dr Andrew Hill's youngest son, however, will not attain majority till 1878, and a question has accordingly arisen as to the right to the interest of the £6000 until that event.
The heirs in mobilibus of the truster, claim this interest as undisposed of residue. The persons to whom the £6000 is to go in 1878 claim it, and the representatives of Robert Hill claim it. The trustees, therefore, have