TO THE EDITOR OF THE LEGAL GUIDE. ANSWER TO PROBLEM I. in No. I. Nov. 9. By the old law, all wills bequeathing real property required to be attested by three witnesses, and no witness was neces sary to a will of personal property, for it might have been made by word of mouth and without signature: 2ndly, a person of the age of discretion was capable of making a will, and it seems that females were considered to have attained the age at twelve, and males at fourteen, but a contrariety of opinion existed, the testamentary power not being regulated by any statute: 3rdly, it was not necessary that the testator should see the witnesses sign the will, only that JOINT STOCK COMPANIES. LIABILITIES OF SUBSCRIBERS TO SCRIP COMPANIES. The state of the Law, in regard to Partnership, has deterred many persons-and more especially those who, from education or habit, are cautious and fearful of enter ing into business--from aiding in the advancement of any commercial pursuit, however tempting it might be, lest they should be them and their property liable to the Law of Partnership. so mixed in the transaction as to render To remove this objection, and to induce Capitalists out of Trade to advance great objects, and to assist in undertakings of great national importance, such as Mining, Railways, &c., by bringing forward their capital, Scrip Companies were introduced. In pursuing this subject, we shall endeavour to ascertain how far Scrip Associations relieve parties connected with them from the liability involved in ordinary Partnerships, and what may be the consequent advantages of the Scrip System to the public. In many parts of Europe limited part he should be so situated as to be able to see if he would. In Doe v. Manifold, 1 M. & S. 294; Todd v. Winchelsea, 1 M. & C. 12, where the testator desired the witnesses to go into another room, seven yards distant, to attest his will, and there was a window broken, through which he might have seen them, the attestation was held sufficient, (Shires v. Glasscock, 1 Salk. 668). Now, by the recent statute, the fol-nerships are admitted, provided they be enlowing alterations are made; 1st, By sectered on a register; but the law of England tion 9 it is enacted, "that no will shall be is otherwise-the rule being, that if a partvalid unless it shall be signed at the foot ner shares in advantages, he also shares in or end thereof by the testator, or by some all disadvantages. In order to constitute a other person in his presence and by his partnership, a communion of profit and loss direction; and such signature shall be made is essential, and this is the true criterion to or acknowledged by the testator in the pre-judge by, whether persons are partners or The shares must be joint, though it is not necessary that they should be equal. A number of persons, for instance, associating together, and subscribing sums of money for the purpose of obtaining a bill in Parliament to make a Railway, are partners in the undertaking. This was decided in Holme v. Higgins, (1 Barn. & Cres.74; 2D. & R. 196); and upon this principle, a subscriber to such a speculation, employed as surveyor, or in any other capacity, for the body of subscribers cannot maintain an action for work done by him in that character, on account of the partnership, against all or any of the other subscribers. sence of two or more witnesses, present at the same time, and such witness shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary: (a)" 2ndly, By section 7 it is enacted, "that no will made by any perSon under the age of twenty-one years shall be valid:" 3rdly, Section 15 preserves the validity of the instrument, notwithstanding the incompetency of the witness. G. W. (a) See Reports, Prerogative Court, supra, In re Milward.-EDITOR. c 2 not. 20 Joint Stock Companies.-Examination of Articled Clerks. Holmes, considering himself a creditor for business done, brought his action against Higgins as a subscriber, and as such he was considered liable. The action was referred to a barrister, who awarded in favour of Holmes, but annexed to the award a certificate, expressing that as it was not his wish that Higgins should be precluded by the award from taking the opinion of the Court of King's Bench, he certified that it was proved before him that the plaintiffand the defendant were subscribers to, and shareholders in the undertaking, for the benefit of which the work and labour was performed, and the expenses incurred by the plaintiff, which formed his demand of action. In the formation of the various companies || scribers were liable to all the debts and of all descriptions now afloat, and we speak losses. now of Joint Stock as well as Scrip Companies, very few of the subscribers who really pay their money for the Scrip, to set the company going (as it is termed), know any thing of the liabilities to which they subject themselves, nor the chances that do exist that they may be ruined in the adventure. They rely in many cases, on a highflown title, and pin their faith to the names of directors placed in a specious advertisement, whose respectability and character. cannot be questioned, but who probably know nothing about the matter, or if they do, it is in the interested character of bankers, surveyors, engineers, auditors, and others-persons who expect or hope to profit by the scheme; and if dupes are gained to support it with their money, these gentry walk out of the direction to save their liability, never having subscribed a shilling, to make way for others who intend to work the concern, and who in many cases are mere men of straw-needy adventurers. This is no varnished picture of some of the numerous companies already defunct, and probably of some now afloat. The case of Holmes v. Higgins, to which we have already alluded, was briefly this:Holmes was a surveyor, and, in the year 1820, notices were given of an intended application to Parliament for leave to bring in a bill for making a railway from Womersley to the river Dun. These notices were given by Holmes, as agent for the bill. A subscription was then commenced for the purpose of passing the bill and making the railway. Several persons subscribed to the undertaking, and Holmes subscribed for two shares; the defendant Higgins subscribed for one share. A solicitor was appointed, with directors, to apply to Parliament, and Holmes was appointed agent to the company, and assistant to the solicitor. These appointments were made at a meeting of the subscribers, at which Higgins acted as chairman. A bill was brought into Parliament, which, from the opposition made to it, was ultimately withdrawn, and of course the company failed, and the sub Higgins did apply to the Court, and Lord Tenterden, in delivering judgment, said it was a case of a number of persons jointly associated together for a common purpose. The plaintiff and defendant were both members of the association. The action was brought against the defendant, who acted as chairman of the meeting when the work done was ordered, and he might have pleaded that he undertook jointly with the other subscribers. The members of the association were therefore partners, and it was perfectly clear that one partner could not maintain an action against his co-partners for work and labour performed, or money expended on account of the partnership; and his Lordship was of opinion, therefore, that the plaintiff could not support the action either against the defendant, who was chairman of the meeting, or against the body of subscribers at large. The award was set aside. EXAMINATION OF ARTICLED MICHAELMAS TERM, 1838. One of the objects of this periodical is (as stated in the preface) to afford students the means of acquiring progressive knowledge that shall be beneficial to them, and enable them to pass their examinations with satisfaction and credit. It appears that the examinations in future will extend to equity as well as law. The questions will be upon the practice of all the superior courts and the Court of Bankruptcy, and upon the laws administered in each of such courts, as also the criminal law. As the examination upon the practice and principles of equity may take some gentlemen by surprise, and as it requires very extensive reading astutely to understand those principles, we will endeavour to assist them as far as our limits will allow, and therefore request attention to our second problem. PROBLEM II. WHAT IS EQUITY? Law Reports. VICE-CHANCELLOR'S COURT. INJUNCTION. COPYRIGHT. K. Bruce moved, ex parte, for an injunction to restrain the defendant, the musicseller in Bond-street, from publishing a song, the copyright of which belonged to the plaintiff. The affidavit stated, that the copyright of 26 poems, called "Hebrew Melodies," composed by Lord Byron, had been assigned by his Lordship to Mr. Nathan, who had set them to music, and that one of the poems, known by the title "I saw thee weep," which had since become the property of the plaintiff by assignment, had been adapted with two slight verbal alterations to different music, composed by Mr. Hodson, of the Yorkshire Stingo, and published by the defendant under the same title. His HONOUR granted the injunction. ROLLS COURT, Nov. 3. TULLETT . ARMSTRONG. LORD LANGDALE pronounced judgment in this case. The plaintiff claimed to be entitled to two annuities granted to him by the defendants, William Armstrong and his wife, Mary Augusta, formerly Tilt, and prayed for an account of these annuities, and that the arrears should be paid to him out of the rents of certain estates devised by the wills of Nathaniel Bradford and Ann Bradford. Nathaniel Bradford, by his will, dated the 27th of March, 1820, gave to his daughter, Ann Bradford, and William Gates, and their heirs, all his freehold, copyhold, and leasehold estates, and the residue of his personal estate, upon trust, for his wife, Ann Bradford, for her life, and after her decease he devised part of the property to his daughter, Ann Bradford, and her heirs, and other part upon trust for and to hold equally between his daughter, Ann, and his Augusta Tilt, during their joint and several granddaughters, Georgiana Pierpont and Mary lives, as tenants in common, so and in such manner that neither of his daughter or granddaughters might anticipate, charge, sell, or dispose of their life estates, and that no husband might have any control over them, nor should they be liable to their debts, and the receipts of his daughter and granddaughters were to be good discharges, and after the decease of the survivor he gave the property over to Henry Tilt, in fee, but if he died without issue, then between Ann Bradford, Georgiana Pierpoint, and Mary Tilt, as tenants in common in all respects similar to the aforesaid devise made to them, to be free from the control of any husband, to have no power of anticipation, and their receipts to be good discharges, and he appointed his daughter and Gates executors. The testator died in October, 1820. Mary Augusta Tilt, now Armstrong, the granddaughter, was then unmarried, and it was argued for the plaintiff that the limitation to her separate use was on that account not effectual, and that the restraint against the anticipation of her life interest was void, because the devise was not accompanied with a gift over on an attempt to alienate. On the 25th of August, 1826, Ann Bradford, the daughter, made her will, and devised to trustees, subject to the life estate of her mother, upon trust to receive the rents and them pay unto her niece, Mary Augusta Tilt, for her life, so as she should not sell or dispose of her life interest, or raise money thereon by mortgage or otherwise, and so as the rents should not be subject to, but be exclusive of, the control or interference of any husband, nor be liable to his debts, and her niece's receipt only was to be a good discharge for the rents, and after her decease she gave the premises to her children. On the 23rd of April, 1827, the legatee, Mary Augusta Tilt, married the defendant, William Armstrong, and two days afterwards Ann Bradford, the daughter, made a codicil, and died in the October following. Mary Augusta being married, it was argued that the attempt to restrain alienation was inoperative, because there was no gift over. In January, 1830, Mrs. Ann Bradford, the wife of the testator, died, and then the bequests took effect in possession. In 1832, an annuity of 317. 178. was, in consideration of 300l., granted to the plaintiff by the defendant Armstrong and his wife, and deeds were executed to secure it upon the bequests in the two wills to Mary Augusta Armstrong, then Tilt, and payments were made up to January, 1834. In January, 1835, Armstrong took the benefit of the Insolvent Debtors' Act, J 22 Rolls' Court-Review of Lord Langdale's Judgment.-By the Editor. and the bill was filed. In this court a mar- As this separate estate owed its origin to opinion that a woman was not at liberty to virtue of the security executed to him by Mr. and Mrs. Armstrong; but as to the other estate, he thought the plaintiff was entitled to the relief prayed for. His Lordship added he really hoped the case would be further investigated. SCARBOROUGH v. BORMAN. Lord LANGDALE pronounced judgment in this case, in which the bill stated that Thomas Smith, by his will, in June, 1820, bequeathed to Marris and to Borman, the defendant, 1,500l., upon trust to invest it in the funds, and during the life of his daughter, Frances Brown, then the widow of George Brown, deceased, to pay the dividends into her own hands, for her sole, separate, and exclusive use and benefit, exclusice of and without being in any way subject or liable to the debts, intermeddling, or control of any future husband, and her receipt, good discharge for the dividends. The testanotwithstanding any future coverture, to be a tor died in June, 1820, and in April, 1832, There was issue by the first husband three Mrs. Frances Brown married the plaintiff. children. The prayer of the bill was for an account of all sums received by Borman, the acting trustee, and that what might be found due should be paid to the plaintiff, and that dividends of the stock during the life of his the plaintiff might be declared entitled to the defeat the intention of the testator by any act of her own whilst single. It had been argued that if property given for the separate use of a married woman without power of anticipa-wife. The defendant put in a demurrer to the tion came to her whilst she was a feme sole, she possessed an absolute control over that property, and upon her marriage it would vest in her husband; but it appeared to his Lordship, that the Court had not considered that a woman by the fact of marriage subjected an estate given to her for her separate use to the martial rights of her husband. He could not agree to the proposition that where a gift was limited to a woman for her separate use, that that limitation would become nugatory if she chanced to be single at the time when the gift vested in her. He had found himself embarrassed from the conflicting opinions, and had wished to have had the case reargued before the Lord Chancellor and the Vice-Chancellor; but, as that course had not been approved of, he must state his opinion; still he was desirous that the case should be brought under the consideration of a higher tribunal. It appeared to him, that property given to a woman for her separate use without power of anticipation, might, under the authority of the Court, be enjoyed by her as her separate estate during coverture, and that in respect of such estate she might be considered as a feme sole. The words " independent of her husband" meant that the Court would not permit the marital power of the husband to be used in contravention of the donor's intention. His Lordship then declared his opinion, that as to the estates given by the will of the testator, Nathaniel Bradford, to Mrs. Armstrong, for her separate use, without power of alienation, the plaintiff had acquired no right over them in plaintiff's bill. There was no argument, the cording to the decision of the Court in the parties agreeing to the case being decided acpreceding case of Tullet v. Armstrong." His Lordship declared his opinion that the wife was entitled, and upon that ground allowed the demurrer. The dividends were for the separate use of the wife, and the stock was in the hands of trustees. Review of the Judgment of the Master of the Rolls, in the above reported Cases. -By the EDITOR. In these cases the conscientious judgment given by Lord Langdale, who is so highly respected, must be admired by every person in or out of the profession. The question is one of high importance to all classes of society, and upon which much doubt and uncertainty has long prevailed, caused by the doctrines ruled by the Courts of Equity on the subject. His Lordship demurs to the proposition that where a gift was limited to a woman for her separate use, that limitation would become nugatory, if she chanced to be single at the time when the gift vested in her, and expresses his opinion, that "property given || is a creation of equity, and equity might to a woman for her separate use, without modify the power of alienation (1 Rose, 200). power of anticipation, might, under the Notwithstanding this doctrine, the general authority of the Court, be enjoyed by her opinion was against the validity of this as her separate estate during coverture, new restriction, that the words were simply and that, in respect of such estate, she void, and that the woman's power of alienmight be considered as a feme sole;" and ation still existed. "Equity in upholding that the words "independent of her hus- settlements on a married woman for her band" meant that the Court would not per- separate use, considered her for this purmit the marital power of the husband to pose as a feme sole, and, viewed in that be used in contravention of the donor's in- light, she must, like a person sui juris, take tention. the property with the power of alienation. There is, perhaps, no sound principle upon which a restraint upon alienation can be supported where the interest is not given over, or made to cease upon alienation." (Sugd. Powers, vol. i. p. 294). By the general principles of our law, a man takes an estate with all its incidents. Upon these principles Sir Edward Sugden in his valuable Treatise on Powers, Vol. I. p. 203, observes, "Therefore, although a provision may be made to cease on the bankruptcy or insolvency, for example, of the party for whom it is made; yet, if it is given to him for life, it is subject to his debts, and he may alien the property notwithstanding any declaration to the contrary in the instrument by which the estate was created;" see Brandon v. Robinson, (1 Rose, 197. It is equally a principle of our law that the property of a married woman vests in her husband upon marriage; he takes her real property for their joint lives, and her personal property absolutely. Courts of Equity have, however, imposed restrictions upon those rights, of serious importance, which infringes the legal principles first mentioned, by giving him an estate with his marriage, without a commensurate power of treating it as his own -it being the practice of such courts to create an unalienable personal trust in favour of married women, so that they may possess estates which their husbands cannot alien. Lord Langdale has observed upon Watson's Case, as the commencing (as the fact is) of these restrictions; in that case the words," and not by anticipation," were first introduced by Lord Thurlow, whose reasoning for their introduction was, that he did not thereby take away any of the incidents of property at law; that this interest, which a married woman is suffered to take, Lord Eldon, in his observations upon the words introduced by Lord Thurlow. (who was a trustee of Miss Watson's settlement), 11 Ves. J. 221, says, he did not attempt to take away any power the law gave her as incident to property, which, being a creation of equity, she could not have at law, but as, under the words of the settlement, it would have been hers absolutely, so that she could alien. Lord Thurlow endeavoured to prevent that, by imposing upon the trustees the necessity of paying to her, from time to time, and not by anticipation; reasoning thus,-that equity making her the owner of it, and enabling her as a married woman to alien, might limit her power over it, but the case of a disposition to a man who, if he bar the property, has the power of alienating, it is quite different. pay her own The old way of expressing a trust for a married woman is described also by Lord Eldon, in Brandon v. Robinson, (18 Ves. J. 434), as being, that the trustees should into her proper hands and upon receipt only, and yet the court of equity always said she might dispose of that interest; Pybus v. Smith (3 Bro. C. Ca. 340.; 1 Ves. J. 189) and if she had disposed of it, the Court would compel her to give her own receipt, if that were necessary, to enable her assignee to receive it. (To be continued.) |