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Anderson v. Anderson..

1872

V.C.B. 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 (3). 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.

1872

Anderson v. Anderson.

V.C.B.

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 397] 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 wonld 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.

IN DE X.

A

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

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

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 ro-
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 in the purpose to which the money
their principals refuse to accept or borrowed was to be applied, and that
deliver, then to sell or buy against they were consequently entitled to
them, as the case may be, and charge prove against the estate of Company
them with the loss, if any, or, if deli- A. under the winding-up. In re Mar-
very is not required on either side, seittes Extension Railway. 488
then any difference which may arise
from a rise or fall in the market is paid 4. A jobber or dealer in shares on the
by the one to the other.”

Stock Exchange contracted to pur.
All the dealings between the plaint- chase the Plaintiff's shares in a com-
iffs and the defendant were carried out

pany, and gave into the Plaintiff's
in accordance with the above custom, brokers a ticket with the name of
which, however, does not exist in the intended transferee, which had
Liverpool, and was unknown to the been passed on to him. After the
defendant :

execution of the transfer it was dis-
Held, by Kelly, C.B., Channell, B., covered that the transferer was an
and Blackburn, J., that the employ. infant, of which neither party was
ment of the plaintiffs by the defend- previously aware; and the plaintiff
ant was an employment to buy accord. became liable for calls. In a suit by
ing to the usages of the London the Plaintiff against the jobber, seek-
tallow-market, and that the defendant ing to make him liable to indemnify
was bound by those usages, notwith- him in respect of the shares :-
standing he was ignorant of their ex- Held, that, as by the usage of the
istence.

stock Exchange the jobber was, in the
Held, by Mellor and Hannen, JJ., absence of fraud, discharged from
and Cleasby, B., that the plaintiffs, liability when he had given the name
having been employed as brokers to of the transferee and paid for the
make the contract for the defendant, shares, and as he had given all the
and having professed to act as further information required by the
brokers, and charged brokerage for vendor, the suit against him could not
their services as such, were not en. be sustained. Rennie v. Morris. 651
titled, as against a person unconnected
with the London tallow-market and

See MORTGAGE, 437.
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-

AGREEMENT.
action instead of brokers. Mollett v.
Robinson.

335 1. The defendants' correspondents at

Valparaiso bought on their account
3. Two directors of Company A. were of S. & Co. 600 tons of nitrate of soda,

also directors of Company B., and and on the 16th of July, 1868, they
both companies employed the same chartered the bark Precursor to bring
solicitor. Company A. owed money it to England, and they, on the same
to their contractor, which, however, day wrote to the defendants of
was not payable immediately. The this. On the receipt of the advice,
contractor had bought shares in the the defendants, on the 8th of Sep-
company and was pressed by the stock tember, made a contract, through
brokers for the money. Company brokers, with the plaintiff: “We have
A. agreed to advance him £7000, and this day sold to you about 600 tons,
borrowed the money from Company more or less, being the entire parcel
B. on the security of a mortgage. of nitrate of soda expected to arrive
The loan was negotiated by one of the at port of call per Precursor, at 128.
persons who was a director of both 9d., per cwt....Should any circum-
companies, and the solicitor who acted stance or accident prevent the ship-
for both companies prepared the ment of the nitrate, or should the
mortgage. Company A. had power vessel be lost, this contract to be .
under the articles to borrow money, void.” In the mean time, on the 13th
but were not authorized to buy up of August, an earthquake had de-
their own shares. Both companies stroyed the greater part of the nitrate
afterwards were wound up :-

of soda while lying at the port of
Held (reversing the decision of lading; and it having been deter-
Malins, V.C.), that Company B. were mined by arbitration, pursuant to the
not affected by notice of any illegality 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. would operate as an assignment of the
celled the charter of the Precursor. personal estate, so as to enable B. to
Afterwards, on learning from the de maintain a suit against a trustee to
fendants that they had sold the nitrate whom certain personal estate had
of soda to arrive, but not on what been assigned in trust for A.; and
terms, they purchased other 600 tons that the creditors need not be parties
of nitrate of soda at above the de to the suit. Glegg v. Rees. 432
fendants' limit, and obtained a trans-
fer of a charter of the same bark Pre-6. An architect entered into an under
cursor, and shipped the nitrate about taking with his employer that a house
the 23d of December to the defend. should be erected for a sam not ex-
ants, to enable them to execute their ceeding £15,000, including architect's
contract, if obliged to do so, or to sell commission and all expenses, and
at a profit, if free. The Precursor engaged the services of a builder
arrived in England on the 8th of May, who, without being informed of the
1869, and the plaintiff demanded the undertaking, gave an estimate based
cargo under the contract of the 8th of on quantities given him by the archi.
September:

tect, and entered into a contract with
Held, affirming the judgment of the the employer for the completion of
Court of Queen's Bench, that the the work from the architect's plans,
plaintiff was not entitled to the cargo. and under his superintendence, for
Smith v. Myers.

42 £13,690, with power for the architect

to order extra works, and with a
2. The defendant covenanted with the clause providing that all questions

plaintiff not to carry on the business between the parties under the con-
of a publican within half a mile of the tract should be settled by the award
plaintiff's premises. He afterwards of the architect -- on a suit by the
carried on that business 'within half builder claiming to be entitled to be
a mile, if the distance were measured paid by the employer for all quanti-
in a straight line, “as the crow flies,” ties executed by him beyond those
but not within half a mile, if the dis included in his estimate, and for extra
tance were measured by the nearest works:
mode of practicable access :-

Held, that the account was too com-
Held (by Martin and Channell, BB., plicated to be taken at law, and ought
Cleasby,B., dissenting), that there had to be taken in this Court:-
been a breach of the covenant. Mou-
flet v. Cole.

177 note 191 7. Held, Also, that on the evidence the

architect was the agent of the em.
3. In an action on a bond, conditioned ployer; that his undertaking having

that the defendant should not“ travel been concealed from the builder, the
for any porter, ale, or spirit merchant, arbitration clause in the contract
as agent, collector, or otherwise :" ould not be enforced; and that the

Held (by Bramwell and Pigott, Plaintiff was entitled to an account
BB.; Martin, B., doubting), that the for what was due to him for any
condition of the bond was not broken works executed by him under the
by the defendant's entering into the architect's direction not included in
service, as traveller, of a brewer. the contract, and for any works so
Josselyn v. Parson.

378 executed under the contract the price

for which was not therein included,
4. A bill stated that, by an indenture and for any variations made under the

made between A., of the first part, architect's directionof works included
B., of the second part, and the seve in the contract. Kimberly v. Dick.
ral other persons whose names and

511 note 532
seals were, or were intended to be,
thereunto subscribed as creditors of 8. An agreement (sanctioned by Act of
A., of the third part, A. assigned all Parliament) was entered into between
his personal estate to B., upon trusts two water companies, by which it
for the creditors of A.:-

was agreed that company A. should
Held, on demurrer (affirming the take over the works, provide for a
decision of the Master of the Rolls), mortgage debt, and pay interest upon
that this was not an averment of the the shares of company B. This
execution of the deed by any of the agreement was sanctioned by Act of
creditors :

Parliament, and the transaction was

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