which was duly attested, and which commenced with the words, "This is a codicil to my last will and testament." The Court of Probate, being satisfied that* the instrument of 1851 [386 was the will which the testatrix referred to in the codicil, decreed probate of the two papers as together constituting the will of the testatrix; and it was from that decision that the appeal to the Privy Council was brought. The argument in that case principally turned upon the question, whether the codicil had sufficiently identified the paper of 1851, and it was contended that parol evidence of that fact, upon which the Court below had proceeded, was inadmissible for the purpose of proving such identity. No such point exists in the present case, because the two papers; will and codicil, having been together admitted to probate, the identity of the paper of 1851 with the will mentioned in that testatrix's codicil must be taken to be established. The Privy Council decided that the parol evidence was admissible, and that it proved satisfactorily the identity of the paper referred to in the codicil. But the greater value of this most valuable judgment is, that it decides in very express terms, and by reference to numerous authorities as well before as since the Statute of Wills, that the due execution by a testator of a codicil amounts to a republication of a former will, if the codicil refers to such former will, and that, without any regard to the fact whether or not the paper so referred to complied with the requirements of 'the law as to execution or attestation of such paper; and, referring to the alterations introduced by the existing statute, it pronounces that thereby "the ceremonies necessary to authenticate the instrument are altered; but no alteration is here made in the effect to be given to words used in it. It would seem that a paper which would have been incorporated in a will executed according to the Statute of Frauds must now be incorporated in a will executed according to the new Act." And their Lordships, referring to the case on Lord Hertford's testamentary papers ('), point out and adopt the distinction to be made since the new Act with respect to the unattested papers referred to, the identity of which was not clearly proved (). With these authorities the law is too clear to admit of any doubt upon the single question raised. Sect. 24 enacts that a will shall be construed to speak (1) 4 Moo. P. C., 339. (*) 11 Moo. P. C., 458.
from the death of the testator; and sect. 34 that the Act is not to extend to wills made before the 1st of January, 1838, “and 387] that every will re-executed or republished or revived *by any codicil shall, for the purposes of this Act, be deemed to have been made at the time at which the same shall be so reexecuted, republished, or revived." It was much pressed in the argument on the part of the Plaintiff that the very existence of the will could not be proved, except by the persons who had attested it, and, therefore, that the evil which the statute sought to prevent would be admitted unless the legacy in question were declared to be forfeited. I do not know, and I have no right to inquire, upon what evidence the Court of Probate decided. But I am clearly of opinion that there is no reason to apprehend that, by treating the codicil duly attested as a republication and confirmation of the will, any relaxation of the wholesome provision of sec. 15 would be effected.
That in the execution and attestation of the codicil in question all the requisites of the statute were complied with is clear. None of the evils which the statute intended to prevent can arise; and it would be as much beyond the provisions and the contemplation of the statute, as it would be opposed to good sense and reason, to hold that the codicil, duly executed and attested, had not the effect of republishing the will, and making it a new and original disposition by the testatrix in January, 1869, of the estate which she had dealt with by the will of December, 1868. To hold otherwise would be to hold that any error in a will, once duly executed, could not be corrected but by an entirely new will, for which proposition there is no authority. It cannot be said that the testatrix could not have made a new will if she had been so minded. Suppose that, by the codicil, she had said, "I am aware that my will is so erroneously attested as that my son's legacy will be forfeited, and to prevent that I execute this codicil, and do thereby confirm my will." There can be no doubt that she was competent to do this up to the latest moment of her life. I am of opinion that she has done this by the duly executed codicil; that the whole contents of the previously existing will were incorporated in the codicil; and, therefore, that Plaintiff's bill must be dismissed.
Solicitors: Mr. G. R. Longdon; Mr. J. Letts.
See LANDLORD AND TENANT. 26.
See EXECUTOR AND ADMINISTRATOR.
See CARRIER, 269. GENERAL AVERAGE, 162.
ADVANCEMENT. See WILL, 419.
1. The defendants, M. & W., fruit bro- kers in London, being employed by the plaintiffs, merchants in London, to sell for them, gave them the follow- ing contract note addressed to the plaintiffs:-"We have this day sold for your account to our principal" so many tons of raisins. (Signed) "M. & W., brokers." The defendants' principal having accepted part of the raisins, and not having accepted the rest, the plaintiffs brought an action on the contract against the defend ants, and they sought to make the defendants personally liable by giv ing evidence that, in the London fruit trade, if the brokers did not give the
names of their principals in the con- tract, they were held personallyliable, although they contracted as brokers for a principal; and evidence was also given of a similar custom in the London colonial market:-
Held, that the evidence of the cus- tom in the same trade was admissible, as not inconsistent with the written contract, on the authority of Humfrey v. Dale (7 E. & B., 266; E. B. & E., 1004) ;and that the evidence of a sim- ilar custom in the colonial market was admissible, being evidence in a similar trade in the same place, and as tending to corroborate the evidence as to the existence of such a custom in the fruit trade. Fleet v. Murton, 32
2. The defendant, a merchant in Liver- pool, employed the plaintiffs, tallow brokers in London, to buy tallow for him in the London market.
In an action brought by the plaint- tiffs against the defendant to recover the loss upon the re-sale of the tallow, which the defendant had refused to accept, it was proved" That there ex- ists an established custom in the Lon- don tallow-trade, for brokers, when they receive an order from a principal for the purchase of tallow to make a contract or contracts in their own names without disclosing their prin- cipals, and also to make such contracts either for the specific quantity of tal- low so ordered, or to include such order with others they may have re- ceived in a contract for the entire quantity, or in any quantities, at their convenience, at the same time ex- changing bought and sold notes with the selling brokers, and passing to their principals a bought-note for the specific quantity ordered by them; and that, when a broker so purchases in his own name, he is personally bound by the contract; and that, on the usual settling days, the brokers balance between themselves the pur- chases and sales so made, and make or receive deliveries to or from their
principals, as the case may be, or, if their principals refuse to accept or deliver, then to sell or buy against them, as the case may be, and charge them with the loss, if any, or, if deli- very is not required on either side, then any difference which may arise from a rise or fall in the market is paid by the one to the other."
All the dealings between the plaint- iffs and the defendant were carried out in accordance with the above custom,` which, however, does not exist in Liverpool, and was unknown to the defendant:-
Held, by Kelly, C.B., Channell, B., and Blackburn, J., that the employ- ment of the plaintiffs by the defend- ant was an employment to buy accord- ing to the usages of the London tallow-market, and that the defendant was bound by those usages, notwith- standing he was ignorant of their ex- istence.
Held, by Mellor and Hannen, JJ., and Cleasby, B., that the plaintiffs, having been employed as brokers to make the contract for the defendant, and having professed to act as brokers, and charged brokerage for their services as such, were not en- titled, as against a person unconnected with the London tallow-market and ignorant of its usages, to set up a custom or usage that they should fill a different character, and become themselves principals in the trans- action instead of brokers. Mollett v. Robinson. 335
3. Two directors of Company A. were also directors of Company B., and both companies employed the same solicitor. Company A. owed money to their contractor, which, however, was not payable immediately. The contractor had bought shares in the company and was pressed by the stock brokers for the money. Company A. agreed to advance him £7000, and borrowed the money from Company B. on the security of a mortgage. The loan was negotiated by one of the persons who was a director of both companies, and the solicitor who acted for both companies prepared the mortgage. Company A. had power under the articles to borrow money, but were not authorized to buy up their own shares. Both companies afterwards were wound up :-
Held (reversing the decision of Malins, V.C.), that Company B. were not affected by notice of any illegality
in the purpose to which the money borrowed was to be applied, and that they were consequently entitled to prove against the estate of Company A. under the winding-up. In re Mar- 488 seilles Extension Railway.
4. A jobber or dealer in shares on the Stock Exchange contracted to pur- chase the Plaintiff's shares in a com- pany, and gave into the Plaintiff's brokers a ticket with the name of the intended transferee, which had been passed on to him. After the execution of the transfer it was dis- covered that the transferer was an infant, of which neither party was previously aware; and the Plaintiff became liable for calls. In a suit by the Plaintiff against the jobber, seek- ing to make him liable to indemnify him in respect of the shares:—
Held, that, as by the usage of the stock Exchange the jobber was, in the absence of fraud, discharged from liability when he had given the name of the transferee and paid for the shares, and as he had given all the further information required by the vendor, the suit against him could not be sustained. Rennie v. Morris. 651
1. The defendants' correspondents at Valparaiso bought on their account of S. & Co. 600 tons of nitrate of soda, and on the 16th of July, 1868, they chartered the bark Precursor to bring it to England, and they, on the same day wrote to the defendants of this. On the receipt of the advice, the defendants, on the 8th of Sep- tember, made a contract, through brokers, with the plaintiff: "We have this day sold to you about 600 tons, more or less, being the entire parcel of nitrate of soda expected to arrive at port of call per Precursor, at 128. 9d., per cwt.... Should any circum- stance or accident prevent the ship- ment of the nitrate, or should the vessel be lost, this contract to be void." In the mean time, on the 13th of August, an earthquake had de- stroyed the greater part of the nitrate of soda while lying at the port of lading; and it having been deter mined by arbitration, pursuant to the contract, that S. & Co. were not bound
fer of a charter of the same bark Pre-6. An architect entered into an under-
4. A bill stated that, by an indenture made between A., of the first part, B., of the second part, and the seve- ral other persons whose names and seals were, or were intended to be, thereunto subscribed as creditors of A., of the third part, A. assigned all his personal estate to B., upon trusts for the creditors of A.:-
Held, on demurrer (affirming the decision of the Master of the Rolls), that this was not an averment of the execution of the deed by any of the creditors:
taking with his employer that a house should be erected for a sum not ex- ceeding £15,000, including architect's commission and all expenses, and engaged the services of a builder who, without being informed of the undertaking, gave an estimate based on quantities given him by the archi- tect, and entered into a contract with the employer for the completion of the work from the architect's plans, and under his superintendence, for £13,690, with power for the architect to order extra works, and with a clause providing that all questions between the parties under the con- tract should be settled by the award of the architect - -on a suit by the builder claiming to be entitled to be paid by the employer for all quanti- ties executed by him beyond those included in his estimate, and for extra works:-
Held, that the account was too com- plicated to be taken at law, and ought to be taken in this Court:-
7. Held, also, that on the evidence the architect was the agent of the em- ployer; that his undertaking having been concealed from the builder, the arbitration clause in the contract could not be enforced; and that the Plaintiff was entitled to an account for what was due to him for any works executed by him under the architect's direction not included in the contract, and for any works so executed under the contract the price for which was not therein included, and for any variations made under the architect's direction of works included in the contract. Kimberly v. Dick.
8. An agreement (sanctioned by Act of Parliament) was entered into between two water companies, by which it was agreed that company A. should take over the works, provide for a mortgage debt, and pay interest upon the shares of company B. This agreement was sanctioned by Act of Parliament, and the transaction was
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