« PrejšnjaNaprej »
GREVILLE-NUGENT V. MACKENZIE, H.L. such question as that which he is now sug- quarries. Apparently they were worked gesting has ever been raised. I think it is up to the year 1878. There was only a true enough, as he has said, that in some short interval between that time and the of the cases he has referred to facts have time of the lady attaining the age of existed which prevented such a point twenty-one. Six months after she attained being raised, because in those cases the the age of twenty-one she married and person who had opened the mines was the made this settlement. It seems to me settlor himself; yet I think that is insufi- that she is clearly entitled to the income cient to establish a new point. No such
of these quarries. question has ever been glanced at, so far as I know, and certainly it would be an LORD MORRIS.-I am of the odd thing at this time of day if for the opinion. first time you were to put in such a limitation and to alter the law-I think it LORD SHAND.-I also concur. The diswould be altering the law—and to say it tinction apparently sought to be drawn by is not sufficient to introduce into the lan- the respondents' counsel is that the proguage of such an instrument by construc- vision of the deed of agreement or settletion the words “opened mines,” but that ment shall not apply so as to give to a lifeyou must add
“mines opened by the renter the full benefit of the profits or settlor or testator.”
income of her own property, unless the I am unable, therefore, to follow the mines were opened or worked by herself. reasoning of the Court helow. It seems I think there is no anthority that can go to me that that reasoning has been to some that length. The case we bave before us extent induced by their view of the form is apparently this: that mines which have of the conveyance.
Whatever the reason been worked for a very considerable time for it is, I am unabl
to agree with the
in the hands of different people-worked, judgment, and I move your Lordships as the Lord Advocate put it, “off and on that this interlocutor be reversed.
during a century
-were for short.
period of four years only unworked. To LORD MACNACHTEN.-I entirely agree. hold as the result of this that, because I think the Lord Advocate was justified these mines for some special reason were in saying that the learned Judges in what Mr. Guthrie described as “dormant Scotland were misled by the form of this for a temporary period, however short a conveyance. The conveyance is really in period—not abandoned mines or mines common form. I will just refer to a note which had not been worked for a very by Mr. Davidson in his book on Settle. long period of time, and which therefore ments (3rd ed.), vol. iii. pt. ii. p. 857n. (a). might be taken as abandoned-if the
6 Whenever land is intended settlement was made during that period for division among the children of a the proceeds of those mines are to go in a marriage, by far the most eligible mode different way from what they would if of settlement is the creation of a trust for the mines were then working, is, I think, sale and declaration of trusts of the pro- unreasonable. ceeds." Here the land was intended ulti- I am of opinion with your Lordships mately to be divided-at any rate, it was that these mines, although in a sense contemplated that it might be divided- dormant mines-by which I mean mines between the children of the marriage, and the working of which had been for a time accordingly the settlement is in that form. suspended, it may be because of a dimi
When once that difficulty is removed, nished price to be got for the mineral, or the case seems to me to be of the plainest some other temporary cause-must be possible kind. Here was a lady who was regarded as opened mines in the sense absolutely entitled to property which con- which the law has always attached to tained opened quarries. She settled it, those words in questions like the present. reserving for herself for life the income of the property. Surely that included the LORD BRAMPTON.-I am of the same income to be derived from these opened opinion.
REG. V. DEMERS.
GREVILLE-NUGENT v. MACKENZIE, H.L. [It was agreed that the costs should no Government could contract liability come out of the corpus of the estate, not beyond the fiscal year; and fifthly, that the royalties in question.]
the contract imposed no obligation to pay Interlocutor appealed from reversed.
for work not given to the respondent.
The Superior Court ratified the con
tract for the fiscal year 1897, but held Solicitors-C. A. Elgood, agent for Pairman,
that it could not bind the Crown for future Easson & Miller, S.S.C., Edinburghi, for appellants; Bloxam, Ellison & Co., agents for
years. The majority, however, of the Menzies, Black & Menzies, W.S., Edinburgh,
Court of Queen's Bench held that as the for respondents, Miss Greville-Nugent, and printing of official documents was a perMackenzie, and another trustee.
manent service, the making of a contract [Reported by J. Eyre Thompson, Esq.,
for a term of years was matter of adminisBarristcr-at-Law.
tration, and such a contract was valid until rescinded by the Legislature. If the Crown repudiated or broke the contract, damages would be payable to the respondent. The Court affirmed the
order of the Superior Court in respect of 1899.
the current financial year, but left, the Aug. 1.
respondent to make further application Dec. 9.
for future years. Contract Construction Appeal on Petition of Right.
Blake, Q.C., Archambeault, Q.C. (AttorAn appeal lies to her Majesty from a
ney-General for Quebec), and Robidoux decision of the Court of Queen's Bench for (all
of the Colonial Bar), for the appellant.
Th. Casgrain, Q.C.(of the Colonial Bar), Lower Canada upon a petition of right.
and Hume-Williams, Q.C., for the responA contract to do work for the Crown not
dent. containing a stipulation that the Crown shall give all or any of such work to the
MACNAGHTEN delivered the contractor, is not enforceable against the judgment of their Lordships : Crown, and no such stipulation can be
In August, 1897, the respondent implied.
Demers, carrying on business in the city Appeal from a decision of the Court of of Quebec as a printer, under the firm of Queen's Bench for Lower Canada, dated
J. L. Demers et Frère, sued her Majesty June 25, 1898, varying a decree of the
the Queen by a petition of right claiming Superior Court for the Province of $85,000 as damages for breach of a conQuebec of February 21, 1898.
tract in respect of the printing and bindThe respondent sued by petition of ing of certain public documents. right for damages against the Crown for It seems that on January 27, 1897, alleged breach of contract. The facts are
the Lieutenant-Governor of Quebec had stated in the judgment.
approved a report of the Committee of The claim was resisted on the grounds
Council stating that the Provincial Secrefirst, that the contract was irregular and
tary recommended that the work in quesvoid ; secondly, that it had never been
tion should be entrusted to the responapproved by the Lieutenant-Governor in
dent's firm for a term of eight years to Council under an Order in Council of
run from January 1, 1897, at the prices January 27, 1897; thirdly, that it was
which that firm had received for the same not authorised by law or resolution of the
work since 1892, and that he should be Legislative Assembly, and no money had authorised to sign a contract to that end, been voted in respect of it; fourthly, that subject as to its details to the approval of
the Lieutenant-Governor in Council. Coram, The Lord Chancellor (Earl of Halsbury), Lord Watson, Lord Macnaghten,
On March 18, 1897, a contract was Lord Morris, Lord Davey, and Sir Henry
signed purporting to be made between Strong
her Majesty represented by the Provincial
REG. v. DEMERS. Secretary, authorised in that behalf by the On appeal to the Court of Queen's Bench Order in Council of January 27, 1897, of the learned Judges delivered judgment on the first part, and the respondent Demers June 25, 1898. They confirmed so much of the second part. The contract de- of the judgment of the Superior Court as clared that the respondent covenanted to dealt with the damages for the year 1897– execute for her Majesty the Queen during 1898, but varied the judgment by reserving the term of eight years beginning from to the respondent all his remedies as to January 1, 1897, the printing and bind- the damages which might accrue to him ing of the public documents specified in for the later years of the contract. the body of the instrument, and that the The judgment of Mr. Justice Larue and contract was made for the prices and con- the judgments of the learned Judges of siderations expressed in the schedules and the Court of Queen's Bench deal at some table annexed thereto.
length with several questions of constiNo Order in Council was passed ap- tutional interest which were raised in the proving this contract or its details as pleadings. Their Lordships do not procontemplated by the Order of January 27. pose to deal with these questions or with The Legislature of Quebec had been dis- the question whether the alleged contract solved on February 27, 1897, before the was of any validity without the confirmacontract was signed. The elections took tory Order in Council contemplated by the place shortly afterwards. The Government order of January 27, 1897. It appears to was defeated and resigned, and on May 28, their Lordships that, assuming the con1897, their successors came into office. tract to be a good and valid contract, the The fiscal
year of the province ends on respondent has not shewn that there was June 30. On June 30, 1897, a report of any breach on the part of the Government. the Committee of Council was approved The contract purports to be made beby the Lieutenant-Governor, stating that tween her Majesty the Queen, represented the Provincial Secretary had reported to by the Provincial Secretary, and the rethe effect that the contract was not bind- spondent Demers. It does not purport ing on the Government, and that he pro- to contain any covenant or obligation of posed that it should be cancelled.
any sort on the part of the Crown. The The respondent was advised of the can- respondent undertakes to print certain cellation of the contract. No work was public documents at certain specified rates. given to him after June 30, 1897. All For all work given to him on the footing the work executed by him up to that day of the contract the Government was unwas paid for according to its value as doubtedly bound to pay according to the measured by the contract prices.
But the contract imposes After protesting against the action of no obligation on the Crown to pay the the Government, the respondent presented respondent for work not given to him for his petition of right, which was duly fiated execution. There is nothing in the conand filed on August 31, 1897.
tract binding the Government to give In the Superior Court judgment was to the respondent all or any of the delivered by Mr. Justice Larue on Feb- printing work referred to in the conruary 21, 1898. Holding that there had tract ; nor is there anything in it to been a breach of contract on the part prevent the Government from giving the of the Government, his Honour awarded whole of the work, or such part as they damages against the Crown for the fiscal think fit, to any other printer. year 1897–98, for which year the vote of This point, which in their Lordships' supplies for printing had been passed in judgment is fatal to the respondent's January, 1897. But he dismissed the claim, was raised in the pleadings and claim for damages in respect of the sub- apparently presented to both the Courts sequent years, on the ground that a con- below. But it seems to have been lost tract made by the Crown for the payment sight of in the discussion of the more of money extending over future years interesting questions which were debated cannot bind the Crown in default of legis- in the course of the litigation. lative ratification.
A preliminary objection was raised by
REG. v. DEMERS. the respondent to the effect that no appeal June 27, 1898, affirming the judgment of Jay to her Majesty from the decision of Chatterton, V.C., dated June 4, 1898. the Court of Queen's Bench on a petition Francis Crumpe, late of Tralee, in the of right. This point was disposed of county of Kerry, M.D., who died April 1, during the argument, and it is enough to 1877, by his will dated June 1, 1874, say that it appears to their Lordships to
devised all his real estates in the counties be wholly untenable.
of Limerick and Kerry to the Rev. RayTheir Lordships will therefore humbly mond d'Andemar Orpen, the Rev. Thomas advise her Majesty that the appeal ought Moriarty, and Richard Chute Mason (whom to be allowed, the decisions of the Court he appointed executors and trustees of his of Queen's Bench and the Superior Court will), and to their assigns. And after dereversed, and the petition of right dis- claring certain trusts, which have since missed with costs in both Courts.
determined, and giving certain legacies The respondent must pay the costs of and annuities, and directing certain inthe appeal.
vestments as therein mentioned, the said will contained a giftin the words following:
" When the above investments are efSolicitors—S. V. Blake, for appellant ; Capel Care & Ball, for respondent.
fected, I then will and devise and bequeath
the dividends from my investments (first [Reported by J Eyre Thompson, Esq., subject to annuities, or to all calls, demands, Barrister-at-Law.
or debts made on me and due and gifts and annuities) or invest money (which may possibly be due on a mortgage of my lands at Cahaveen, near Castle Island) to be half-yearly received by and made pay
able to my nephew, Commander Moriarty, TIN THE HOUSE OF LORDS.] R.N., during his life, giving him only a 1900. ?
life interest in said dividends or until he Feb. 16. CRUMPE V. CRUMPE. *
may happen to come into and enjoy my
estates by decease of his brother Silverius, Will — Construction – Gift of Rents
or by his brother Silverius forfeiting enConditional Gift-Gift over on Failure joyment of said rents of said lands, or by to Fulfil Conditions from. Derisee of Kents
his brother not forfeiting the same but and His Heirs Male-Equitable Estate in
dying without issue male lawfully beTail Male.
gotten him surviving, whichever event A devise in a will that trustees should
shall first occur." pay the rents of real estate half-yearly to And after making divers other gifts and a person named, but, in case such person provisions the said will then proceeded as should incumber the lands at any time,
follows: that the gift of the rents should be revoked “ After the gifts and annuities are profrom such person and his heirs male, and vided from my personal property and inthat in case of such revocation various re- vestments effected for my nieces and the mainders over should take effect,—Held, church and poor from rents of lands and to confer an equitable estate tail on the dividends of investments combined, I then devisee of the rents.
devise my lands fee-simple estates (by Decision of the Court OF APPEAL in whatever name or tenure I hold the same) Ireland ( 1 Ir. R. 359) affirmed.
in trust to the executors and trustees of
my will, to allow and give the rents (reAppeal from a decision of the Court ceived by an agent) of my lands to be of Appeal in Ireland (Fitzgibbon, L.J., half yearly paid to and received by my Walker, L.J., and Holmes, L.J.) dated nephew Silverius Moriarty, barrister-at
law, now in Tasmania, provided he in one * Coran, The Lord Chancellor (Earl of Halsbury), Lord Ashbourne, Lord Macnaghten,
year after he begins to receive those rents Lord Morris, Lord Shand, Lord James of
assumes by Royal license and adopts the Hereford, and Lord Brampton.
name and arms of Crumpe, the surname
CRUMPE v. CRUMPE, H.L. of Crumpe, no other surname following or (otherwise Moriarty) executed a disentailpreceding the name of Crumpe, such name ing assurance of the estates devised by to be adopted by him and his heirs. And
Francis Crumpe. I further declare no taker shall possess Silverius Crumpe died on April 4, 1897, the rents of my estates who does not con- without leaving lawful issue him surform to and comply with this mandate and viving, having previously made his will desire ; and I further declare the said dated March 2, 1892, whereby he devised Silverius shall receive said rents condi- the lands and hereditaments in the county tionally that he the said Silverius shall of Limerick so devised to him as aforesaid have no power of encumbering these lands to his wife, the respondent Mary Crumpe, or rents by anticipation, or by debts, mort- for her life, and from and after her death gages, mortgage bonds, bonds, promissory to the respondent Richard Walter notes, bills of exchange, rent charges or Tweedie and Charles Curling, upon trust any other legal security or device, and if to pay thereout certain annuities, and the said Silverius does so at any time subject thereto to the respondent Theoalthongh obeying the injunction given as dore William Carte Moriarty and his to change of name, I then revoke the gift issue male, as and for an entailed estate of the rents of these my fee-simple es- conditionally upon his assuming the name tates from the said Silverius my nephew and arms of Crumpe, as therein menand from his heirs male, or should the said tioned, and in case the respondent TheoSilverius not forfeit the same and die dore William Carte Moriarty should fail without male issue him surviving, I then to comply with the said condition, or will and bequeath these rents and estates should die without issue male him sur(but conditionally) to his brother Com- viving, then he devised the said lands mander William Moriarty, R.N., and his and hereditaments to John Langford issue male in tail male his first and every Sealy Crumpe, his heirs and assigns, conother son lawfully begotten, and the condi- ditional upon his assuming the name and tions and restrictions under which he is to arms of Moriarty in addition to the name enjoy the same, he must relinquish all and arms of Crumpe, with remainder, in claim to the dividends of my investments in the event of the said John Langford Sealy banks railway companies or any securities Crumpe failing to comply with such conand that he the said Commander William ditions, to the appellant Redmond George Moriarty, R.N., and his heirs male shall Silverius Crumpe, eldest son and heir of in six months after he began to receive Commander William Moriarty, mentioned these rents assume bear and take by in the will of Francis Crumpe, and his Royal license the surname and arms of issue male. Silverius Crumpe by his will Crumpe, no other surname preceding or further devised the said lands and herefollowing the name of Crumpe, and that ditaments in the county Kerry (being the the said Commander William Moriarty, residue of the real estate of the testator R.N., shall have no power of encumbering Francis Crumpe) to the respondent these lands or rents by anticipation or by Richard Walter Tweedie and the said bonds mortgages or any other legal secu- Charles Curling, upon trust to pay certain rity, and if he does so at any time I then annuities, and subject thereto he devised revoke the gift of those rents and lands the same unto and to the use of the appelfrom him and his heirs male or should he lant and his heirs male, with divers die without heirs male arriving to age or
remainders over. marriage, I under any of the above cir- Commander William Moriarty, in the cumstances occurring, will and desire my will of Francis Crumpe named, died on executors and trustees to sell out each July 9, 1886, without having executed any separate estate in the Landed Estates disentailing deed in respect of the said Court Dublin and the produce thereof to lands, leaving the appellant, his eldest son divide into equal shares or portions.” and heir-at-law, him surviving.
And the testator then declared certain The appellant, on March 2, 1898, comtrusts of the said shares or portions. menced an action in the High Court of
On June 30, 1882, Silverius Crumpe Justice in Ireland against the respon