Breach of trust-Solicitor's liability for improper appointment of new trustees-Constructive trusts-Strangers not to be made constructive trustees merely because they act as the agents of trustees in transactions within their legal powers ... Equitable mortgage-Legal estate-Breach of trust-A., a builder, took an agreement for a lease of a piece of ground for building purposes, and erected a house thereon, for which B. paid, in consideration of which A. agreed to grant to B. a sub-lease for the residue of the term, less ten days. A. let the house for B., acting as his agent; A. then obtained advance from C., and gave an equitable mortgage on the house to secure the amount, concealing the fact of the agreement for the lease. A. then obtained bis lease, and sublet to C. Held, that A. was trustee of the legal estate for B., and that C. could not take advantage of A.'s breach of trust against B. Money advanced-Interest.-A trustee will be allowed interest upon money advanced by him, and applied in pay. ment of his testator's debts, or otherwise on account of his personal estate ... TRUSTS. Trustee-Disclaimer - Resulting trust-Indemnity-Payment by executor-Refunding. In Aug. 1865, S. J. assigned 625 shares in the Albert Life Assurance Company to the plaintiff and to the defendant P. O. J., which were duly transferred into their names; and by an indenture dated 21st Aug. 1866, they agreed to hold the same upon trust for the wife of S. J. for life, with remainder for his children and grandchildren. S. J. made his will dated 21st Aug. 1866, whereby he appointed the plaintiff, and the defendant P. O. J., his executors, and bequeathed his residuary personal estate to his daughters F. and B., and his son W., in equal shares. S. J. died on 15th Jan., 1867. By a settlement dated 31st March, 1856, made on the marriage of the testator's daughter F., the testator had covenanted that he would bequeath by his will or otherwise provide that whatever residue of his personal estate should remain at his decease should be equally divided between his daughter F. and his two other children, B. and W. On the marriage of B. her one-third of the residue was vested in the trustees of her marriage settlement. In May 1869, the executors, having got rid of all their liabilities, except the possible liability on the Albert shares, divided the residue, and paid over onethird thereof to the trustees of F.'s settlement, and a like sum to the trustees of B.'s settlement. In Sept. 1869 the Albert Life Assurance Company was ordered to be wound-up, and on the 20th April 1872, calls for the costs of the liquidation and winding-up, amounting to upwards of 60001, were made upon the plaintiff and the defendant P. O. J. in respect of the 625 shares. The cestuis que trust under the deed of the 21st Aug. 1863 (with the exception of the tenant for life), all disclaimed. On a bill by the plaintiff, as one of the trustees of the indenture of the 21st Aug. 1866, claiming to be indemnified in respect of the calls out of the testator's estate, of which the shares had, under the doctrine of resulting trusts, become part, 723 140 Infant UNDUE INFLUENCE. (See Infant.) VACCINATION. Case stated under Vaccination Acts.-Upon a case stated under 20 & 21 Vict. c. 43, in which certain questions of law were reserved for the consideration of the court, but in which no allusion was made to the period of limitation for proceedings provided by sect. 11 of the Vaccination Act 1871, it was held that the matter of complaint or information arose at the end of the time in which vaccination was required by the notice; and that no information could be laid after the lapse of twelve months from that time, without delivering a fresh notice: Held, also, that the court was competent to determine any question of law arising on a case stated under this Act, not withstanding that the question was not raised before nor reserved by the justices, provided; that the question did not depend upon further evidence which might have been called before the justices ... 749 359 VENDORS AND PURCHASERS. Notice-Purchaser for value without-Legal estate outstanding-Doctrine applies to a transferee under the Crown Lands Occupation Act 1861, of New South Wales 45 Sale of land-Farms-Special terms between tenants and vendor-Purchaser bound by 61 ... VESTRY. ... (See Metropolitan Management.) WASTE. Timber-Tenant for life-Thinnings.-A tenant for life impeachable for waste cannot cut timber, except in the case of a tenant for life of a timber estate, that is, an estate which is cultivated merely for the produce of saleable timber, and where the timber is cut down periodically. A tenant for life impeachable for waste, may cut down timber trees under twenty years of age, provided they are cut down for the purpose of allowing of the proper development and growth of other timber... 671 Obligation to sell water to a township.-A corporation obtained Parliamentary power to collect all the water from the gathering grounds of a district, but were bound to supply to the township of T. not less than 25,000 gallons or more than 75,000 gallons of water per day, at the price of 6d. per 1000 gallons, and the amount to be supplied between the maximum and minimum limits was to be at the option of the purchaser: Held, on demurrer, that the township of T. might enforce the supply of more than 25,000 gallons per day for the purpose of selling part of it at a profit to a neighbouring township Notice-Period of limitation-Previous summary conviction. -Under the Vaccination Acts, 1867 and 1871, every child is subject to the legislation thereby provided, whether boru within or without the district of the registrar who gives the information, or whether born before or after either Act was passed, until the age of fourteen years. A resolution of guardians, appointing a vaccination officer, is sufficient authority for the officer so appointed to take The proceedings under sect. 31 of the Act of 1867. ground upon which Allen v. Worthy (L. Rep. 5 Q.B. 163; 21 L. T. Rep. N. S. 665), was decided, are in no way affected by 34 & 35 Vict. c. 98 513 Riparian proprietor - Canal company Diversion of stream.-By an Act of Parliament passed in 1821 for amalgamating two canal companies, the amalgamatei company were empowered to maintain and keep navigable the united canal; and for that purpose to supply the united canal at all times for ever thereafter with water from all springs and streams which had been or should be found within 2000 yards of the canal. Under the powers of their Act the company diverted the waters of a stream within the prescribed limits by means of a new channel into their canal: Held (reversing the decision of Malins, V.C.) that the canal company, although they had suffered no present damages, were entitled to an injunction to restrain a waterworks company from diverting the water of the stream so as to cause injury to the navigation of the canal... 443 SUBJECTS OF CASES. WAY, RIGHT OF. ... A direction that charitable bequests were to be satisfied out of such part of the testator's personal estate as could lawfully be applied to the payment thereof, and which should be reserved for that purpose, held to be a plain direction to marshal the assets, so as to give the charities the fullest benefit they were capable of taking After-acquired real property-Mistake-Title by mere possession Statute of Limitations.-A testator, by will, dated April 1824, devised all his real estate to A. upon trust for A. for life, with remainder to her children as tenants in common in fee. In Dec. 1824 the testator had certain real estate at W. conveyed to him to uses to bar dower. He died in 1830, at which time his heir at law was under no disability. On the death of the testator A. entered into possession of all his real estate (including the W. property) as trustee and devisee under the will. In 1852 a suit was instituted by B.'s children against A. and others for the administration of the real estate of the testator; and in the course of the proceedings in the suit it was for the first time discovered that the W. property did not pass by the will. A. then, in 1853, by virtue of her possessory title, conveyed for value the W. property to C. in fee, C. purchasing with notice of all the proceedings in the above suit: Held, that A., although she had originally entered under the will, subsequently discovering her mistake, had, in 1853, as against the other persons claiming under the will, acquired the fee of the W. property by adverse possession for more than twenty years, under which she could make a good title to C. ... ... ... 757 190 779 205 Alimentary allowance-Law of Lower Canada Annuity-Charge-Arrears payable out of income and not out of corpus-Charge was not restricted to the income of any particular year-Continuance beyond the lives of the annuitants... Annuity charged on land.-Land of amply sufficient value to secure payment thereof, with a power of distress superadded by the statute 4 Geo. 2, c. 28-Plaintiff not entitled to have a receiver appointed Charitable bequest-Residue.-Testator gave a sum of £600 to be invested, and directed that the income should be applied in keeping in repair the graves of himself and certain relatives in the churchyards of G. and S., and that any surplus that might remain thereafter should be given away by the executrix of his will every year on his birthday to poor pious members of the Methodist Society resident in G. above the age of 50 years: Held, that the trust to keep in repair the graves was honorary only, and that there was a good charitable gift of the whole sum for the benefit of the persons indicated by the testator discharged from the obligations to keep in repair the graves ... Construction-Wills Act (1 Vict. c. 26) s. 26-Devise of all lands and hereditaments-Strict settlement-Leaseholds -Contrary intention Debts-Real estate.-Where the personal estate is insufficient for the payment of debts, real estates comprised in a residuary devise are chargeable with the payment of debts in priority to real estates specifically devised... Devise in tail-Name and arms clause-Forfeiture-Statute of Limitations.-A testator devised copyhold estates to devisees for life with remainder in tail male, and inserted a condition that each person entitled in possession should take his (the testator's) name and arms, within one year after becoming entitled or attaining twenty-one, whichever should last happen. The first tenant in tail failed to comply with the condition and remained in possession for more than twenty years after, until his death: Held, that he did not acquire a possession title, and that his absence in India and ignorance of the condition, did not prevent the necessity of his complying with it. His eldest son not having complied with the condition the estate passed to a younger, who had barred the entail within one year of his attaining twenty-one... Execution-Acknowledgment.-Testatrix signed her will in the presence of one of the attesting witnesses only. When the second witness came into the room, L., a person who was present, told him to put his name under that of the testatrix. He did so, and the other witness also signed her name. No word was spoken by the testatrix, and no act was done after the second witness came into the room: Held, that the words of L. being spoken in the hearing of the testatrix, were adopted by her, and 82 252 149 156 435 Execution-Foot or end-Irregularity in form Execution-Incomplete signature of attesting witness.-Testatrix executed her will by making her mark in the presence of two witnesses. The first witness signed his name, and the second, being old and infirm, was only able to write the word "Saml.," which was the abbreviation of his christian name, and did not complete his sig. nature: Held, that as the act which he intended to perform, viz., the subscription of his full name, was not complete, the will was not duly attested Legacies-Gift of, followed by gift of residue subject to power.-By a settlement trustees were directed to hold the trust funds in trust for five persons, or their respective issue, in such parts, shares, or proportions as A. D. should by will appoint. A. D., by her will, gave to three of the objects of the power the sum of £5 each, and gave all the residue of her property of whatever kind, and over which she had any power of appointment, to the two remaining objects absolutely. Held, that the legacies were charged on the settled property, and that the appointment was a valid exercise of the power... Legacy to each of ten poor clergymen to be selected by A. not charitable legacies within the meaning of the Statute 9 Geo. 2, c. 36, but general legacies Married woman-Separate estate.-A balance in a banker's hands, belonging to a married woman at the time of her death, and arising from saving effected by her out of her separate estate, will not pass under a gift of "all funds and property... purchased out of" separate estate 152 283 214 155 Married woman's wills-Power-Revocation-Probate.-A married woman, by virtue of a power contained in ber marriage settlement, made a will in 1857, in which, after referring to her marriage settlement, she devised all her property to her husband. In 1863 she made another will, in which she again referred to her marriage settlement, and devised a freehold house, of which she was possessed, to her cousin, and gave moneys in trust to persons for payment of legacies. Her household furniture and effects were not disposed of by this will; it appointed executors, and concluded thus: "I revoke all former wills by me heretofore made." The court held that the will of 1863, including the revocatory clause, was applicable to the will of 1857, and decreed probate of the latter will alone... 909 Printed form-Execution.-Testatrix made her will on a printed form. At the bottom of the first page there was an attestation clause, which was signed by the testatrix and two attesting witnesses. There was also an attestation clause at the bottom, of the second page. The testatrix had signed this with her mark, but the attesting witnesses had not signed it: Held, that the will was not duly executed ... 305 Probate.-The will of a testatrix was contained in four testamentary documents, in the last of which a clanse revoking all previous wills was inserted. On proof being given that the revocatory clause had been inserted by mistake, without any instructions from the testatrix, and that the will was not read over to her, the court granted probate of the four documents, omitting the clause of revocation 341 74 - Two wills-Residuary clause-Revocation Pure and impure personalty.-A testator (in effect) directed that his debts and legacies (other than charitable legacies) should be paid by his executors out of his impure personalty, and his charitable legacies out of his pure personalty. The pure personalty was insufficient to pay all the charitable legacies in full. In Dec. 1871, he borrowed 8000l. of his bankers, to be repaid in March 1872. This sum was placed to his credit on a loan account. He died in Feb. 1872, having at the day of his death, 6291. standing to his credit on his general drawing account: Held, that the executors (who had proved the will during the pendency of the loan) were not bound to pay, out of the impure personalty, the whole amount of the debt due on the loan account at the day of the death ...page 244 77 Shifting clause-Re-settlement of the estate Tenant for life and remainderman-Trust for sale on death of tenant for life-Bill for sale oripartition.-A testator lef, by his will, his real estate to his wife for her life, or un til her second marriage; on her death or marriage the es tate to be sold and the proceeds to be divided amongst bis three daughters. One daughter married and her share was settled; the other two daughters were of age, and now filed a bill for sale or partition, the widow consenting: Held, that the court had no jurisdiction to order a sale Trust for investment of proceeds of personalty.-A testator devised real estate in strict settlement, and directed his trustees to invest the residue of his personal estate in the purchase of manors. lands, and hereditatments adjoining, or coavenient or desirable to be held therewith: Held, that the trustees might purchase the minerals under the settled estate ... 671 861 Trust property-Dividends-Will of testator before passing of Apportionment Act 1870-Death subsequent-Dividends apportioned... WORKSHOP REGULATION ACTS. (See Workshops.) WORKSHOPS. ...page 249 Saturday half-holiday-Alteration by Secretary of StateInformation-A half-holiday of equal length may (under 30 & 31 Vict. c. 145, sched. s. 1, 9), by permission of the Secretary of State, be substituted on some other day of the week for the half-holiday required by the Act to be given on Saturday to children, young persons, and women employed in workshops coming within the Act. Permission having been given to substituted Wednesday for Saturday afternoon in a particular workshop, an information was preferred against the proprietor for employing a young person after two p.m. on Wednesday: Held, that such an information could not be sustained ... ... 517 COURTS OF LAW AND EQUITY, IN BANKRUPTCY, IN THE DIVORCE AND PROBATE COURTS, IN THE ADMIRALTY COURT, AT NISI PRIUS, THE CRIMINAL COURTS, IN IRELAND, &c. Equity Courts. COURT OF APPEAL IN CHANCERY. Reported by E. STEWART ROCHE and H. PEAT, Esqrs., Barristers-at-Law. Thursday, Dec. 18, 1873. (Before the LORD CHANCELLOR (Selborne) and the LORDS JUSTICES.) BALL V. RAY. Damages-Assessment Appeal as to quantum. The Court of Appeal will not entertain an appeal from an order of the court below assessing damages, unless it is shown that the court below has acted on a wrong principle in assessing the quantum of damages. THIS was an appeal from a decision of the Master of the Rolls. The suit was instituted to restrain a nuisance occasioned by the defendant having made certain changes in his stable, which was separated from the plaintiff's dining room by a party wall only. The Master of the Rolls dismissed the bill with costs, but on appeal the Full Court granted an injunction against the continuance of the nuisance, and directed an inquiry as to damages (See 28 L. T. Rep. N. S. 346; L. Rep. 8 Ch. 467). The case went back to the court below, for the purpose of making inquiry as to damages. The plaintiff, being dissatisfied with the amount of damages awarded to him, appealed. Higgins Q.C., and J. Chester, for the appellant, argued on various grounds that a larger amount of damages ought to have been awarded. Without calling upon Sir Richard Baggallay, Q. C. and A. T. Watson, who appeared for the defendant, The LORD CHANCELLOR (Selborne) said: I am of opinion that there is no reason to disturb the judgment of the Master of the Rolls. It is a mere question of the quantum of damages, and certainly this court, when it directed the inquiry as to damages, meant that a fair compensation should be paid to the Vol. XXX, N. S., 747. plaintiff, for the loss which he had sustained. They did not mean that vindictive or speculativedamages should be granted to him. It is not shown that the Master of the Rolls in deciding upon the quantum of damages has applied to the measure of those damages any wrong principle. It is not shown that the actual amount of damages were or could be demonstrated to the court. On the contrary it is admitted that the plaintiff kept no books whatever, was not able to prove as a fact what he did receive and what he did not receive, and as against the general evidence which he gave, partly on his own information, confirmed by his housekeeper, swelling the amount of damages to a very large sum, there was to be opposed his own statement not being on oath, but under the obliga tion of law when he was bound to make a true statement, putting the profits of this business at a lower amount than that allowed him by the Master of the Rolls. In that state of things it was surely in an eminent degree for the court to discharge the office of a jury; and it would be easy to refer to authorities such as Penn v. Bibby (15 L. T. Rep. N.S. 399; L. Rep. 2 Ch. 127) before Chelmsford L.C., and Grey v. Turnbull in the House of Lords, and to numerous cases before the Privy Council, which show that where upon ques-tions of fact the court appears to have fairly discharged the same duty which a jury would have to discharge upon conflicting or doubtful evidence, it will be a very difficult thing to induce the Court of Appeal to go into the merits for the purpose of forming that judgment, upon the balance of the evidence which possibly might have been formed if it had come before them in the first instance. If that rule has been established and held a satisfactory one as to questions of fact in general which stand in the position which I have described, it appears to me to be of still greater importance to establish and maintain a similar rule as to mere questions of the quantum of damages. In all cases in which you deal with the verdict of a jury, or of a judge in this court, or at common law, giving a verdict properly so called without a jury under the statute which enables that to be done, the verdict |