V.C. K.]

[V.C. K.

Re ALBO'S TRUSTS-TOWSEY v. GROVES.
for the payment of the income of a fund in court
under the following circumstances:-It appeared that
a Mr. Albo, who was a resident of Jersey, was entitled
to the income of this fund amounting to 7106, and
that he had been found of unsound mind, "by a
letter passed before the bailiff of the Island of Jersey,
convened before justice at the suit of her Majesty's
Attorney-General of Jersey, and Emanuel Albo was
chosen curator of the property and person of his
brother presented to the Act of the Royal Court." The
copy of an official letter was produced containing the
joint opinion of the Attorney-General of Jersey and
another counsel, that by the law of Jersey the curator
of a lunatic was capable of giving receipts for money
belonging to such person, but that it would require
the consent of the parties appointing him curator
to enable him to dispose of any large amount of pro-
perty.

Lushington appeared for the petitioner.

Bristowe for the trustee of the settlement.
The VICE-CHANCELLOR said that, upon production
of the official and verified copy of the Act of the
Royal Court of Jersey, finding the unsoundness of
mind of John Joseph Albo, and of the joint opinion of
the Attorney-General and the advocate, he would
make the order, inasmuch as the petition did not ask
for the absolute disposal of the fund, but for the appli-
cation of the dividends only.

Vict. c. 65, which confer upon the maker of a new
design a monopoly in respect of it. Both Acts relate
to the shape and configuration of the article manufac-
tured; but the one Act applies to ornamental designs,
and the other to designs of utility. No doubt these
two things may be combined. There may be a design,
the beauty and utility of which are inseparable; and
which may, therefore, be registered under either or
both of the Acts. But, when once the registration is
effected, the court must look at that as showing the
object of the registration. There is this analogy be-
tween patents and registered designs: as the former
must be accurately described in the specification, so
the latter must be in the register. I considered it
necessary, in this case, to examine the carriages of the
plt. and the deft., in order thoroughly to appreciate
the nature of them. I find them to be both of a very
agreeable and ornamental appearance. But, as the
plt.'s carriage is not registered under the first Act, I
cannot regard that circumstance. The useful qualities
on which the plt. relies to prove that his carriage
is a new one relate to four parts of it:- Part
1. The seat. With respect to that, I think
that, although it may add to the elegance of the
carriage, it does not, in fact, increase its utility.
Then, as to part 2, the opera board. That, I think,
is no novelty; and the points in which it is, or may
be, useful are not those claimed. Part 3. The boot.
That does not contribute in any way to the utility of
the carriage, as claimed. The only thing which
does So contribute is part 4, the curved arch.
I will not go into the question whether the
fact of the other three parts not conducing to
the utility of the carriage vitiates the registration;
but I think it does not do so. The only question
which it is necessary for me to consider is whether
part 4 is so new as to justify the plt. in registering
his design? I must confess I am of opinion that it is not
sufficiently new for the purpose. It is no doubt useful;
but the common case on both sides is, that such an arch
was in ordinary use for front wheels to pass under
when the carriage is turning. The only novelty
claimed as to the arch is, that it is a little higher than
usual, so that larger front wheels can be used. But
the same application of the same thing to the same
article cannot be claimed as a novelty, merely because This was a motion by the defts. for an injunction
it is a little larger. I think it is impossible to say that to restrain the next friend of the plts. from taking
the plt.'s design in this case is a new design within any part in the suit; also for an inquiry whether the
the meaning of that word in the Act. From the ex-suit was for the benefit of the infant plts, and if se,
amination of the plt. it appeared that the nature of
the invention is accurately stated in the certificate of
registration; and I am not prepared to say that the plt.
was not the first to make this kind of dog-cart. But
even so, the defect of his case is not cured, and the
result is, that he can have no relief. The bill must be
dismissed, and the costs must follow the event.
Plt.'s solicitor, R. H. Peacock.
Deft.'s solicitor, Walker and Son.

Jurisdiction-Lunatic-Proceedings in JerseyPayment of income to curator. An inhabitant of Jersey, entitled to property which had been paid into court, was found, by proceedings taken in Jersey, of unsound mind, and his brother appointed his curator, who petitioned the court to have the dividends paid to him for his brother's benefit. Verified copies of the proceedings in Jersey were produced.

Monday, Jan. 12.
TOWSEY V. GROVES.
Injunction-Suit instituted by a stranger on behalf of
infants.

B., who was the son and articled clerk of the solici
tor for the plis., instituted a suit on behalf of infants,
without any communication with them or their guar-
dians. On an injunction being prayed to restrain
him from taking any proceedings in the suit, and
for inquiries,

Held, that an inquiry must be directed whether the suit
was for the benefit of the infants, and if so, whe-
ther the next friend should be continued, or another
appointed in his place. All proceedings in the
meantime to be stayed.

that another next friend might be appointed. The
father of the plts. died in 1837 leaving several chil-
dren, the eldest of whom was now fourteen years old,
and appointing guardians for them. The bill was
filed in July of last year, without any communication
with the defts., to whom he was an entire stranger, by
Mr. Sidney Mayhew, he being the son and articled
clerk of the solicitor for the plts. in the suit.

Glasse, Q.C. and Nalder supported the motion.
Southgate, Q.C. and Little contra.
The following cases were cited:-

Nalder v. Hawkins, 2 M. & K. 243;
Richardson v. Miller, 1 Sim. 133;
Fox v. Sumerkrop, 1 Beav. 583;

Guy v. Guy, 2 Beav. 460;

Starten v. Bartholomew, 6 Beav. 143;

Sale v. Sale, 1 Beav. 586;

Whittaker v. Marlar, 1 Cox, 285;

Smallwood v. Rutter, 9 Hare, 24.

The VICE-CHANCELLOR said that it was obvious that the interests of mankind required that encouragement should be given to bona fide suits on behalf of persons not sui juris or capable of protecting themselves; that principle, however, rendered great caution necessary to prevent suits being instituted which were improper. In this case nothing was alleged renThis was a petition under the Trustee Relief Act, dering the interference of the court necessary, al

The order was made.

Vol. 7.]
V.C. S.]

THE LAW REPORTER.

WEST v. WEST.

though it did not therefore follow that a suit | was improper. Alfred Mayhew, ostensibly employed by the next friend, turned out to be his father and resided with him, he being an entire stranger to the defts. and plts., and the bill was filed without any communication with either, which, so far as the plts. were concerned, might be right enough, considering their youth; but nothing whatever was stated as to the motive for filing the bill, no affidavit made on the subject; it was therefore a case of grave suspicion that it was not for the benefit of the infants. Solicitors as a body stand as high in character as the members of any other profession, but necessarily their pecuniary interest was all one way, and cases might occur of which the court had the greatest horror where duty and interest conflicted, and in a case of such suspicious circumstances as the present it would It expect some explanation, but none was given. might be that Mr. Sidney Mayhew employed his father ab initio, but it might be that the father suggested the suit, and that he should be the An inference therefore was left to next friend. His Honour be drawn from the intentional silence. would not at once infer that Mr. Sidney Mayhew was an improper person to be next friend, or was an improper suit, but direct that the suit an inquiry whether it was for the benefit of the infants that such a suit, or any suit, should be instituted, and if it was beneficial then whether Mr. Sidney Mayhew should be continued as next friend, and if not, that some proper person should be appointed in his stead, and meantime that all proceedings should be stayed.

Solicitor, Mayhew, Carey-street Lincoln's-inn.

V. C. STUART'S COURT.
Reported by JAMES B. DAVIDSON, Esq., of Lincoln's-inn,
Barrister-at-Law.

Wednesday, Jan. 21.

WEST v. WEST.

Will-Construction-Vested interest-Condition

precedent.

Testator gave a share of his residuary real and per-
sonal estate upon trust for his son and daughter, to
be divided between them in equal proportions as
tenants in common, the share of the son to be vested
in him at twenty-four, and the share of the
daughter to be vested on her marriage, with consent
of her guardians. In case of the son dying under
twenty-four, or of the daughter dying without having
been married with such consent as aforesaid, the
share was to go to the survivor, to be vested in him
or her respectively at the same age or time as his or
her original share.

The son attained twenty-four, and the daughter at-
tained twenty-one, and was unmarried:
Held, on the construction of the will, and in the events
that had happened, that the daughter took a vested
interest on her attaining twenty-one.

William James West, by his will, dated the 7th
April 1848, devised and bequeathed all his real and
personal estates, whatsoever and wheresoever, to
trustees, their heirs, executors, administrators and
assigns, upon trust to pay his just debts, &c., and to
stand possessed of the residue of his said real and per-
sonal estates, upon trust, as to one-third thereof, and
of the rents, interest and annual income thereof, for
his widow, for life, and after her decease or marriage,
then upon the same trusts for the benefit of his son
and daughter as were next thereinafter declared. And
as to another third of the said real and personal estates
upon trust for his said son William Robert West and
his said daughter Julia Mary West, to be divided

66

[V.C. S.

between them in equal proportions, as tenants in com-
mon, and not as joint tenants, the share of his said
son to be vested in him at the age of twenty-four years;
and the share of his said daughter to be vested in her
on her marriage with the consent, nevertheless, of
William Robert should die under
her guardian or guardians for the time being."
In case his son
twenty-four" and without leaving lawful issue or his
said daughter Julia Mary should die without having been
married, with such consent as aforesaid," then the.
testator declared that the share of him or her so
dying, together with all accumulations, should be held
"in trust for the survivors of them his said son and
daughter, his or her heirs, executors, administrators
and assigns, and to be a vested interest in him or her
respectively, at the same age or time as his or her
original share." As to the remaining one-third part
of the said real and personal estates, testator gave
the annual income thereof to his youngest son Jaines
Edwin West for life, and after his decease, "upon the
same trusts for the benefit of his said son William
Robert West, and his said daughter Julia Mary
West, as were last thereinbefore declared concerning
the one other third part of the said trust-estates, so
limited in trust for them as aforesaid." The testator
declared that "if at his decease his said son William
Robert West should not have attained the age of
twenty-four years, or his said daughter should not have
been married with such consent as aforesaid," it should
be lawful for the trustees to apply all or any part of
the income "of his or her presumptive or contingent
tenance. He further appointed his said trustees his
share in his said trust-estates" for his or her main-
executors, and also, together with his wife, "to be guar-
dians of such of his children as for the time being
should be under the age of twenty-one years."
The testator died on the 24th May 1848.
James Edwin West died under twenty-one, on the
William Robert West had attained
26th Sept. 1860.
twenty-four, and the plt. Julia Mary West had
attained twenty-one since the death of the testator, and
was unmarried.

The bill, filed on the 2rd June 1862, prayed that the rights and interests of the plt. and all other parties might be ascertained.

The defts. were William Robert West, the widow, and the trustees.

The bill alleged that the defts. refused to transfer and pay one-third of the property to the plt. alleging that she had only a contingent interest dependent on the event of her marrying.

or

Malins, Q.C. and Hardy, for the plt., contended that
she was absolutely entitled to a share in the property,
and that the word "vested" must be understood not
in its technical sense, but as meaning "paid
"transferred." The gift was an absolute vested inte-
rest at the death of the testator, to be conveyed and
transferred at the event of the plt.'s marriage with con-
sint. They eited

Taylor v. Frobisher, 5 De G. & Sm. 191;
Berkeley v. Swinburne, 16 Sim. 275;
Young v. Robertson, 8 Jur. N. S. 825;

1 Jarm. on Wills, 722, 2nd edit.

He

J. J. Aston, for the son, contended that the daughter was not entitled absolutely till her marriage. cited

Atkins v. Hiccocks, 1 Atk. 500.

Bacon, Q. C. and Marten were for the trustees. The VICE CHANCELLOR.-There is great difficulty in cases of this kind. Lord Hardwicke, in the case of Atkins v. Hiccocks, held that, when the words referring to marriage amount to a condition precedent, That is an intelligible the condition must be performed in order to entitle the legatee to a vested interest. ground of decision, and the authority of that case has never been questioned. It is certain, in the present

V.C. S.]

WEST v. WEST.

[V.C. S.

tenants in common, and not as joint tenants. These
words are free from all doubt. The testator intended
that the son and daughter, at some time or other,
should take the whole equally between them as tenants in
common. Having said that, he goes on to say that
the share of the son is to be vested at twenty-four.
He might have said the same thing as to the daughter,
but she was only eighteen, and he contemplated that
she might marry before twenty-one, and he intended if
she married before twenty-one that it should be with
the consent of her guardians, and that her share should
be then payable. That was a rational intention,
and expressed by these words, "the share of
my daughter to be vested in her upon marriage
with the consent of her guardians or guardian
for the time being." It seems very clear that
her marriage with the consent of guardians must mean
her marriage under twenty-one; for, if her marriage
did not take place under twenty-one, she could not
have any guardian. The testator meant that, if she
married under twenty-one without consent, the legacy
should not then vest in her. But it is a rational in-
tention to assume that he gave her a greater benefit
than he did to his son, whose share was not to
vest until twenty-four. He goes on to say, "in case
Robert William should die under twenty-four, and
without leaving lawful issue, or his said daughter
Julia Mary should die without having been married
with such censent as aforesaid." These words “die
without having been married with such consent as
aforesaid," must mean nothing else than "die under
twenty-one unmarried." Thus, if she died unmarried
under twenty-one, her share was to go to her brother.
This gift over in the event
of dying before vesting
would be almost nonsense, if the construction con-
tended for by the brother and trustees were to prevail.
Suppose the son died under twenty-four, what was to
become of the two shares? There is a clear gift of
them to the daughter as the survivor, and in that event,
if the will is to be construed with reference to the
marriage, that the daughter was to take a vested interest
only if she married with the consent of guardian-, and
that could not occur after twenty-one, the whole gift
would fail. Sir W. Grant said that a gift of residue
was a different thing from a gift of a legacy; and
that it was the wish of the court to prevent an intestacy.
But here would be an intestacy of the whole if the
daughter survived and married at thirty, the son dying
under twenty-four, neither could take a share of the
residue. That is a conclusion entirely different from
the intention to be collected from the whole scope of
this will. This is, I think, a stronger case than that of
Booth v. Booth, where it appeared that the court
wished to accelerate vesting and to prevent intestacy.
Under the circumstances, it seems to me that the plt.
is entitled to a declaration that her share is vested, and
I think the proper order will be to declare that the son
and daughter were entitled absolutely. The declaration
was that according to the true construction of the will,
and in the events which had happened, the plt. and
her brother were absolutely entitled in equal moieties
to the entirety of the real and personal estates, subject
to the interest of the widow in one-third, during her
life.

case, that there is no condition precedent, and there |
are other authorities which show that, upon questions
of this kind, the court has done some violence to the
language of the testator, in order to prevent the con-
sequences which would follow from a presumption in-
consistent with the intention of the testator in favour
of the legatee. In the case of Booth v. Booth, 4 Ves.
399, there was a gift of residue, as in the present case,
upon trust to pay the dividends equally between the
testator's great-nieces, Phoebe Booth and Ann Booth,
until their respective marriages, and from and imme-
diately after their respective marriages, to assign and
transfer to them their respective shares and moieties
thereof. That was a strong case, for there was an
express life-interest, with a direction to pay the capital
upon the marriage of the nieces. One of the nieces
died unmarried, and the question was, whether her
share was vested. Lord Alvanley decided that it was a
vested interest, though the event of marriage had never
occurred. Looking at the whole will, and doing
violence to the particular words which said that the
capital was to be paid upon marriage, he held that the
capital was transmissible, though the lady was never
married at all. In that case the court had to consider
the various authorities, and amongst the rest, the
case of Atkins v. Hiccocks, and Lord Alvanley, in
deciding in favour of the niece, who had never
been married, relied very strongly upon the
circumstance that the subject-matter of the gift was
not a legacy of specified amount but a share of residue.
That seems a small distinction, but it is beyond a
doubt that this court, in questions of this kind, has
made a distinction in favour of residuary legatees, and
has taken a strong view in favour of intention, the
bounty not being a part of the general residue, which
is manifested by the testator. Sir W. Grant in
Leake v. Robinson, 2 Mer. 386, had occasion to con-
sider the decision of Lord Alvanley in Booth v. Booth,
and after criticising the judgment of Lord Alvanley,
he ends by expressing his strong approbation of the
principle upon which that learned judge proceeded. At
p. 386, Sir W. Grant says: "I am aware that though in
regard to particular legacies, this doctrine," that is in
favour of vesting, "has not been controverted, yet the
case of Booth v. Booth may be considered as throwing
some doubt upon it, when it is a residue that
is the subject of the bequest. There is cer-
tainly a strong disposition in the court to con-
strue a residuary clause SO as to prevent an
intestacy with regard to any part of the testator's
property. With all that disposition, it is evident that
Lord Alvanley felt that he had a difficult case
to deal with. Some violence was done to the
words in favour of what be conceived to be, and
what in all probability was, the intention. That in-
tention, however, was collected from circumstances
that do not occur in the present case. Both the
legatees were adults at the time the will was made.
Lord Alvanley admits that, if it had been otherwise, it
might have made some ingredient in the argument."
He goes on with further observations on the case of
Booth v. Booth, and adopts the principle on which that
decision was founded. Now, in this case there is a
clear manifestation of bounty towards this daughter,
and the whole question seems to be, whether these words
which refer to her marriage, were or were not intended
to give her a beneficial interest in regard to the time of
vesting, greater than the testator intended to give to
her brother. This is a case of a gift of residue, as in

the case of Booth v. Booth. But there is no direction
like that in Booth v. Booth, where the first gift was to
the daughter of the dividends, with a subsequent
direction, in the particular event, to pay the capital,
but a gift of residue with an express trust for the son
William Robert, and the daughter Julia Mary West,
to be divided between them in qual proportions as

Solicitors for the plt., Smith, Stenning, and Croft agents for Pearless and Son, East Grinstead.

For the trustees, Thomas and Hollams, agents for Alleyne and Walker, Tonbridge Wells.

Vol. 7.] Q. B.]

THE LAW REPORTER.

REECE V. CHAFFERS-ALLEN v. CLARK.

Thursday, Jun. 22.

REECE U. CHAFFERS.

Practice-Compulsory reference—Action on attorney's bill-Defence of negligence.

In an action on an attorney's bill, there being a dispute as to items, and also a defence on the ground of negligence, and a judge having made an order at chambers to refer the matter to the arbitration of the master under the compulsory powers of the C. L. P. A. 1854, this court refused to disturb the order, it not having being made to appear on the part of the deft. at chambers that the defence of negligence was so distinct as that it ought to be tried by a jury.

This was an action by an attorney against the deft., also an attorney, to recover a bill of costs for business done as agent.

[Q. B.

Monday, Feb. 2.
ALLEN v. CLARK (Executrix).
Negligence of attorney-Conditions of sale-
Investigation of title-Damages.

Plt. entered into a contract for the purchase of certain
leasehold property under certain conditions of sale,
one of which was, that the purchaser should take
an underlease "according to the draft underlease
already prepared, which will be produced at the time
of sale, and may in the meantime be inspected at
the office of Mr. H.; but no abstract of the vendor's
title thereto shall be required, nor the lessor's tille
Ile afterwards employed
objected to or gone into."
the deft.'s testator, an attorney, to complete the
purchase, who failed to make the requisite search, or
to investigate the vendor's title, or to require the
production of the original lease. It subsequently ap-
peared that the premises had been previously mort-
gaged, and the plt. was turned out of possession by
the mortgagee:

Held, that this amounted to negligence on the part of the attorney sufficient to maintain an action against his estate, and that the plt. was entitled to recover, in addition to the amount he had paid to obtain a good title, interest on the same during the time he held possession, as he had been obliged to pay the mortgagee mesne profits during that period. The declaration stated that theretofore, and in the Blackburn, J., on the application of the plt. at chambers, made an order under the compulsory lifetime of John Clark, the plt. had agreed at an clause of the C. L. P. A. 1854 to refer the action to auction to purchase a leasehold estate and interest in a arbitration. The summons before the learned judge house, at and for a sum of money, upon certain conwas supported by the plt.'s affidavit, and the gentle-ditions of sale, and thereupon, in consideration that man who appeared on behalf of the deft. did not present the grounds of opposition so clearly as to make it appear to the satisfaction of the learned judge that the matters of dispute were such as ought to be tried by a jury.

G. Francis, for the deft., moved for a rule to set aside He prothis order, as not warranted by the statute. duced an affidavit showing that the defences relied on were: (1) No signed bill delivered; and (2) such negligence on the part of the plt. as disentitled him to recover; and he urged that these raised questions which ought to be submitted to a jury:

Chapman v. Van Toll, 8 E. & B.; 27 L. J. 1, Q.B. COCKBURN, C. B.-I think that there ought to be no rule. All the matters brought before us may well be disposed of by the master, who is quite competent to deal with them. It is not disputed that the order was rightly made by the learned judge on the materials before him. Possibly, if the matters now presented to the court had been properly brought before him, he might not have made the order. But the order having been made, and the questions being such as the master can deal with, I think we ought not to interfere to set aside the order.

CROMPTON, J.-I am of the same opinion. If a summons of this kind is supported by an affidavit that the matters in dispute are mere matters of account, and no answer is given to the affidavit, it ought to be acted upon, and an order made. If there was any mistake on the part of the clerk attending for the deft., that should be set right at chambers. All the grounds for making or for not making the order should be shown upon the hearing of the summons; but after the order is made it ought not to be disturbed upon grounds which might have been presented to the judge. Where the matters of account are merely ancillary to some question of fact, there might be good ground for letting that question go to a jury; but where, on the other hand, it appears to the judge that the real question is one of amount, then it might be best that the whole matter should be referred. In such a case as the present I think the master was the proper tribunal.

BLACKBURN, J. concurred.

Rule refused.

the plt., at the request of the said J. Clark, then re-
tained and employed him as the plt.'s solicitor on his
behalf as such purchaser, to investigate the title, and
to cause such leasehold estate and interest to be duly
conveyed and granted to the plt. for fees and reward to
the said J. Clark in that behalf, the said J. Clark
promised the plt. to perform and fulfil his duty as
such solicitor in the premises, and although the said
J. Clark accepted and entered upon the plt.'s retainer
and employment, and afterwards, as such solicitor, ad-
vised the plt. to pay, and that the plt. did, under
such advice, pay the purchase-money so agreed to be
paid to a person (to wit), David Hughes, for a pre-
tended lease by him of the said house so contracted to
be purchased, yet the said J. Clark did not perform
or fulfil his duty in the premises in this (to wit), that
he did not use or exercise due or proper care, skill, or
diligence in inquiring into the title of the said lease-
hold estate and interest, or of the right of the said
D. Hughes to grant the said lease, and in ascertaining
whether or not the said pretended lease was a valid
lease, or whether such leasehold estate and interest so
agreed to be purchased by the plt. as aforesaid was
duly conveyed and granted to the plt., but therein wholly
failed and made default, and by and through the neglect
and default of the said J. Clark in that behalf, the plt.
was induced to and did complete the said purchase and
accept the pretended lease as a valid lease, and as the
lease, grant and conveyance of the leasehold estate, and
which he had purchased as aforesaid, and was induced
to pay and did pay the said purchase-money to the
said D. Hughes, whereas the said D. Hughes had no
right to the said purchase-money, or to grant the said
lease, and the said lease was invalid and wholly void,
and was not the lease or the estate and interest which
the plt. had agreed to purchase. And the plt. wholly
lost his said purchase-money and the expenses of the
said conveyance and other expenses connected there-
with, and the interest he would and might have made
from the due investment of the said moneys, and was
afterwards ejected from the said house by persons
having lawful title thereto, and who were not parties
to the said lease, and was obliged to pay the costs of
the said ejectment, and has necessarily incurred costs

ALLEN v. CLARK.

in defending the said ejectment, and has become liable | 3, the vendor shall, at his own expense, forthwith deto pay the said mesne profits of the said house from liver to each purchaser, or his solicitor, an abstract of the time of the said purchase until the recovery of title to the lot or lots sold to him or her, commencing possession in the said ejectment, and has been and with the underleases under which such lots are held. is otherwise injured. 5. That the purchaser shall not require any other evidence of the validity of the leases than the last receipt for rent, which shall be taken to be conclusive evidence that all covenants, clauses and conditions therein contained have been duly observed, performed and kept up to the day of completion, and as the pur

Pleas-1. That the said John Clark did not pro mise as alleged. 2. That the said John Clark did perform and fulfil his duty in the premises. 3. That one of the said conditions of sale upon which the said leasehold estate and interest in the said house were purchased by the plt. was as follows:-"The purchaser will have an opportunity at the time of sale chaser of lot 1 (that is to say, the said leasehold estate and interest agreed to be purchased by the plt.) shall take an underlease of such lot, according to the draft underlease already prepared, which will be produced at at the time of sale, and which may in the meantime be inspected at the office of Mr. Hughes; but no abstract of the vendor's title thereto shall be required, nor the lessor's title be objected to or gone into.'