Page images
PDF
EPUB

1853.

DARLEY

v.

MARTIN.

gives the legatee an estate for life only,—and, secondly, that at all events, a bequest like the present, of personal estate to A. for life, and, after his death, to his issue as joint-tenants, or tenants in common, being a course of enjoyment inconsistent with the devolution of an estatetail, is only a gift to A. for life,—and, thirdly, it was contended, on the authority of Tilly v. Collyer, 3 Keble, 589, and Bibin v. Walker, Ambler, 661, that, as the codicil recites that the testator had by his will given the houses in question to his son after the decease of his daughter, and in default of her leaving issue, this was sufficient to constitute a bequest over in accordance with the recital; and, if so, that it was clear that such a bequest over was not bad for remoteness, because the expression, in default of leaving issue, as applied to personal estate, means issue living at her death. The contention, therefore, was, that, even if the gift to the daughter for life, and, after her death, to her issue, was to be construed as an absolute bequest to her, yet she took it, according to Lyon v. Mitchell, 1 Madd. 467, subject to an executory bequest over, in the event of her leaving no issue surviving her.

On the part of the defendants, it was argued, that the case of Knight v. Ellis has been in effect overuled by The Attorney-General v. Bright, 2 Keen, 57, and Jordan v. Lowe, 6 Beavan, 350; and that it is now established, that a bequest of personal estate to A. for life, and, after his death, to his issue, gives him the absolute interest. And, with respect to the bequest to the issue being to them as joint-tenants, or tenants in common, it was contended that this is immaterial; for, that the same rule must prevail, in this respect, with regard to bequests of personalty, as has been established with regard to devises of real estates since the decision of Jesson v. Wright, 2 Bligh. 1. And, as to the effect of the codicil, it was argued, that an erroneous reference in a codicil to the

dispositions of the will, cannot constitute a new bequest in opposition to the will: and Skerratt v. Oakley, 7 T. R. 492, was relied on.

But it appears to us that the argument with respect to the effect of the codicil, when rightly considered, is not that the will is at all revoked or varied by the codicil; but, rather, that, the will and codicil being all one testament, the language of the will may be interpreted by that of the codicil; and that, accordingly, the gift over in the will," in default of such issue," being capable of importing a bequest over on failure of issue living at the death, it ought to be inferred that the testator employed it in that sense, because, in the codicil, he refers to it as if it were a gift over in default of his daughter's leaving no issue, which, as regards personalty, is tantamount to a gift on failure of issue living at her death.

The argument, thus viewed, appears to us to be well founded; and we are therefore of opinion, that, even if the preceding limitation conferred an absolute interest on the daughter, such gift was subject to a good executory bequest over in favour of the plaintiffs,-who are consequently entitled to our judgment.

Judgment for the plaintiffs.

1853.

DARLEY

บ.

MARTIN.

1853.

June 8.

A. contracted

with B., a ship

JAMES REID and JAMES STEWART v. WILLIAM BLACKE-
DON FAIRBANKS, JONATHAN CRANE ALLISON, and
DAVID ALLISON.

THIS

was an action of trover to recover the value of a builder in Nova ship, with her boats, tackle, sails, furniture, stores, and appurtenances, and a compensation in damages by reason of the loss of the freight on a certain voyage. The defendants pleaded, not guilty, and a traverse of the plaintiffs' property.

Scotia, for the building of a vessel. B. was already largely indebted to A.

upon a general consignment account, and A. from time to

time made considerable advances on account of the ship whilst in progress, and also supplied anchors, cables, and other stores for her. On the 20th of June, 1848, B., by a bill of sale, reciting that A. had made advances to B., and had agreed to make such further advances as he might require to build, launch, rig, and fully equip the vessel for sea, "for the security and repayment of all such sum or sums of money as A. had already advanced or might thereafter advance, to aid and assist him to complete and finish the said vessel,” bargained, sold, assigned, and transferred to A. "a certain ship or vessel now in course and progress of building" by him, at &c., particularly describing it, together with certain timber in B.'s possession,-"to have and to hold the said ship or vessel, &c., goods and chattels, &c., to A., his executors, &c., to their absolute use and benefit and behoof for ever, when the said ship or vessel shall be complete and finished, in as full, ample, and perfect a manner as if the said ship or vessel were ready for sea, and ready to be delivered to the said A. at the time of executing these presents,"

On the 30th of January, 1849, B. signed a builder's certificate and declaration of ownership stating A. to be the sole owner of the vessel, and thereupon obtained a certificate of registry in A.'s name, pursuant to the 8 & 9 Vict. c. 89, s. 11. This certificate B. retained in his own possession.

On the 29th of March, 1849, B. induced the comptroller of the customs at Pictou, in Nova Scotia, to cancel the above certificate, and to grant him a fresh one in his own name as owner, and on the same day executed an assignment of the ship, then in an unfinished state, to C., who took possession of her, finished her, and sent her to Liverpool with a cargo on his own account:

Held, that the property in the ship passed to A. by the bill of sale of the 20th of June, 1848, and that his right was in no degree limited by the habendum; and, consequently, that C. was liable in trover.

-

The parties having agreed that the amount of damages should be assessed by an average stater, the court suggested, and the parties assented, that the proper principle on which to estimate such damages, would be, the value of the ship and all her stores, &c., on the 29th of March, 1849, when C. took possession of her; and that, as a mode of ascertaining such value, the referee should consider what would have been the value of the ship at Pictou, if she had been completed by B. according to his contract with A., and deduct therefrom the money that would necessarily have been laid out by B. after that date, in order to complete her according to the contract.

Quare, as to the effect of the registry of the ship in A.'s name, if there had been no bill of sale?

The cause came on for trial at the sittings at Guildhall after Michaelmas Term, 1852, when a verdict was taken for the plaintiffs, by consent, subject to the opinion of the court upon the following case:

The plaintiffs, from the beginning of the year 1845, were, and are, merchants residing and established at Glasgow, using the style or firm of John Stewart & Co. The defendants during the same time were, and are, merchants residing and established at Halifax, in Nova Scotia, using the style and firm of Fairbanks & Allisons. Alexander Russell, hereinafter mentioned, was, and is, a ship-builder, master blacksmith, and store-seller at Pictou, in Nova Scotia. All are British subjects.

1853.

REID

V.

FAIRBANKS.

Alexander Russell was from the year 1845 in cor- Course of dealrespondence with the plaintiffs, and had occasionally, ing. from time to time, advances from them, and occasionally had received from them shipments of goods suitable to a dry goods store, and to the outfit of vessels, by which he had been enabled, with the aid of his own resources, to build his ships; and he had built at Pictou, and had consigned several ships when built and complete, to the plaintiffs at Glasgow, as his agents, for sale.

Five ships had been thus built, consigned to, and sold in Glasgow by, the plaintiffs, acting as agents and on behalf of Russell, previously to 1847. Some of these ships, when built and completed for sea, had been registered by Alexander Russell in his own name, and powers of attorney had been sent by him to the plaintiffs, under which those ships had been sold by the plaintiffs, on arrival in Scotland, on account of Alexander Russell. One of these ships, called the Mary Ann Stewart, the last that arrived, was sent to Leith, in Scotland, under a licence granted by the collector of customs at Pictou, under a builder's certificate by Russell, which certificate therein stated the plaintiffs to be owners. This ship, on her arrival, was by the plaintiffs, as owners, assigned to the purchasers.

1853.

REID

v.

FAIRBANKS.

Reid to Russell.
Jan. 2, 1847.

Russell to plain

tiffs. Feb. 27, 1847.

Plaintiffs to

17, 1847.

The net proceeds of each ship, including the Mary Ann Stewart, as well as the net freight earned by each, were in due course credited to Alexander Russell by the plaintiffs, in the accounts between them. On the result of these transactions, Alexander Russell was indebted to the plaintiffs at the end of 1846.

In 1847, Russell made known to the plaintiffs his desire to build another vessel; and the following correspondence passed between the parties:

"I am still of the same opinion, and think that your new vessel of from 500 to 600 tons, substantially got up, and well found, and energetically managed, could be made to pay, although I do not profess to have much knowledge in sea-faring business. It would be a business much more easy to manage, and which one would better understand what they are doing, than in building and selling."

"If you are still willing, I can, in June, 1848, have one of the same size and model as the draught sent by you built, which will be plenty in time to make two trips that season."

"As to the new vessel to be regularly in the timberRussell. April trade, I think a small company could be formed to carry on such a business respectably and profitably. I have been in correspondence with a friend, who I think will join us, and will write you particulars again. I herewith inclose you drawings and scale of materials which I would recommend for the new ship. A vessel of these dimensions would be well fitted for a regular trader in the timber-trade, and would sell readily, and bring a good price, were we disposed to part with her and we would be quite willing to take the half of such a vessel. The great fault with the last vessel you sent here, was, the depth of hold: had it been two feet more, the vessel would have brought 200l. to 3007. additional, besides being much more marketable. And, in conclusion, I

« PreviousContinue »