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V.-C.B.

Anderson v. Anderson..

1872

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.

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from the death of the testator; and sect. 34 that the Act is not to extend to wills made before the 1st of January, 1888, "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.

INDEX.

A

ACQUIESCENCE

See TRUST, 538.

ACTION.

See LANDLORD AND TENANT. 26.

ADMINISTRATOR.

See EXECUTOR AND ADMINISTRATOR.

ADMIRALTY.

See CARRIER, 269.
GENERAL AVERAGE, 162.

ADVANCEMENT.
See WILL, 419.

AGENT.

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-
seilles Extension Railway.
488

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

See MORTGAGE, 437.

AGREEMENT.

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

to supply other soda, on the 2d of Sep- | 5. Held, that the deed nevertheless
tember the Valparaiso house had can-
1 celled the charter of the Precursor.

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Afterwards, on learning from the de-
fendants that they had sold the nitrate
of soda to arrive, but not on what
terms, they purchased other 600 tons
of nitrate of soda at above the de-
fendants' limit, and obtained a trans-
fer of a charter of the same bark Pre-6.
cursor, and shipped the nitrate about
the 23d of December to the defend-
ants, to enable them to execute their
contract, if obliged to do so, or to sell
at a profit, if free. The Precursor
arrived in England on the 8th of May,
1869, and the plaintiff demanded the
cargo under the contract of the 8th of
September:-

Held, affirming the judgment of the
Court of Queen's Bench, that the
plaintiff was not entitled to the cargo.
Smith v. Myers.

42

2. The defendant covenanted with the
plaintiff not to carry on the business
of a publican within half a mile of the
plaintiff's premises. He afterwards
carried on that business within half
a mile, if the distance were measured
in a straight line, "as the crow flies,"
but not within half a mile, if the dis-
tance were measured by the nearest
mode of practicable access :-

Held (by Martin and Channell, BB.,
Cleasby,B., dissenting), that there had
been a breach of the covenant. Mou-
flet v. Cole.

177 note 1917.

3. In an action on a bond, conditioned
that the defendant should not" travel
for any porter, ale, or spirit merchant,
1 as agent, collector, or otherwise :"-

Held (by Bramwell and Pigott,
BB.; Martin, B., doubting), that the
condition of the bond was not broken
by the defendant's entering into the
service, as traveller, of a brewer.
Josselyn v. Parson.
378

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:

would operate as an assignment of the
personal estate, so as to enable B. to
maintain a suit against a trustee to
whom certain personal estate had
been assigned in trust for A.; and
that the creditors need not be parties
to the suit. Glegg v. Rees. 432

An architect entered into an under-
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:-

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.

511 note 532

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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