Abbildungen der Seite
PDF
EPUB

cloth and another clothier perceiving it, used the same mark to his ill-made cloth on purpose to deceive him; and it was resolved that the action did well lie." The same case is cited also in Cro. Jac. (page 471); but it is there said that the action was brought by him who bought the cloth; whereas in Popham, the action is said to have been brought by the manufacturer, and the gist of the action appears to have been the use of his mark "on purpose to deceive" (b).

In Polhill v. Walter (3 B. & Ad. 114), and that class of cases no intention to deceive was proved; but there we find falsehood in fact, with knowledge on the part of the defendant. Now what falsehood in fact is there in this case? Did the defendants falsely represent their iron [387] to be of the plaintiff's manufacture? That is the very question in the cause; and that was left to the jury. Lord Tenterden, in giving the judgment of the court in Polhill v. Walter, observed, "If the defendant had had good reason to believe his representation to be true,―as, for instance, if he had acted upon a power of attorney which he supposed to be genuine, but which was, in fact, a forgery, he would have incurred no liability, for he would have made no statement which he knew to be false: a case very different from the present, in which it is clear that he stated what he knew to be untrue, though with no corrupt motive." The cases may be considered to establish the principle that fraud in law consists in knowingly asserting that which is false in fact, to the injury of another (a).

Can it be contended that the mere use of a similar mark will give a right of action? I do not know that a man can have an abstract right to use any particular mark; but long user in a trade of a mark may produce a general impression that goods bearing such mark are of a particular manufacture. The notice here, although it was argued that it ought to have determined the case in favour of the plaintiff,—cannot alter the legal rights of the parties. Millington v. Fox, which was relied upon, does not establish that doctrine. What is the notice here? It is to the effect that the defendants were using a mark similar to that used by the plaintiff. But such a notice is not equivalent to knowledge; as the defendants might dispute the resemblance; or they might [388] admit the resemblance, and yet insist that they had no intention of passing off their goods as the plaintiff's.

As to the withdrawal of the letters from the jury, I do not think there is any reason for disturbing the verdict upon that ground. If they were commented upon by the counsel for the plaintiff as being evidence of facts, the Lord Chief Justice certainly did not tell the jury that they were not such evidence; if they were used to establish a proposition of law, their effect was reserved for the consideration of the court. TINDAL C. J. concurred.

Rule discharged.

(b) The statement in Cro. Jac. is as follows:-"A clothier of Gloucestershire sold very good cloth; so that, in London, if they saw any cloth of his mark, they would buy it without searching thereof; and another, who made ill cloth, put his mark upon it without his privity; and an action upon the case was brought by him who bought the cloth for this deceit, and adjudged maintainable." In Popham this decision is said to have taken place in 22 Eliz., and in Cro. Jac. in 33 Eliz.; but it is clearly the same case. In Com. Dig., Action on the case for deceipt (A 9), the case is thus referred to:-" So, (i.e. an action will lie) if a clothier sell bad cloths, upon which he put the mark of another, who made good cloths." Comyns does not say by whom the action may be maintained; but as he cites from Cro. Jac. only, it may be inferred that he considered the case as establishing the right of action in the purchaser, which it certainly would, supposing that report to be accurate. The report in Popham would appear more likely to be a true version of Doderidge's statement; since the case, as represented by Croke, would not have been very apposite to that of Southern v. How, in which it was cited by the learned judge. Lord Rolle, however, expressly states, that Doderidge did not say whether the former action was brought by the clothier or by the vendee, but adds-"Semble que gist pur le vendee." 2 Roll. Rep. 28.

(a) Vide Pasley v. Freeman, 3 T. R. 51; Eyre v. Dunsford, 1 East, 318; Haycraft v. Creasy, 2 East, 92; Tapp v. Lee, 3 B. & P. 367; Ames v. Millward, 2 B. Moore, 713; Adamson v. Jarvis, 4 Bingh. 66; Lyde v. Barnard, Tyrwh. & G. 250, 1 M. & W. 101; Freeman v. Baker, 5 B. & Ad. 797, 2 Nev. & M. 446; Haslock v. Ferguson, 7 A. & E. 86, 2 N. & P. 269; Swann v. Phillipps, 8 A. & E. 457, 3 N. & P. 447. And see ante, vol. ii. 475, n., vol. iii. 82, n.

TAYLOR v. LORD STUART DE ROTHESAY. May 27, 1842.

Where a distringas to proceed to outlawry could not be had by reason of the defendant being a peer, the court granted it to compel an appearance, although the defendant was abroad.

Gaselee Serjt. applied for a distringas to proceed to outlawry against the defendant, a peer of the realm, upon affidavits stating that he was abroad. [Tindal C. J. referred to Cassidy v. Stewart (ante, vol. ii. p. 437). Maule J. The distringas may be taken to enter an appearance. At least I have made orders to that effect at chambers, under similar circumstances.]

Per curiam. Rule accordingly (b).

[389] TUGMAN v. HOPKINS THE YOUNGER.

May 28, 1842.

[S. C. 5 Scott, N. R. 464; 11 L. J. C. P. 309. Applied, O'Dwyer v. Geare, 1859, 1 Sw. & Tr. 466; In the Goods of Hughes, 1860, 4 Sw. & Tr. 210. Distinguished, Lane v. Grylls, 1862, 6 L. T. 535; Brownrigg v. Pike, 1882, 7 P. D. 64.] Certain stock in the long annuities was, by a marriage settlement, vested in trustees for the separate use of the wife, for life, and after her death they were to pay over the principal sum, together with the interest and dividends then due and growing thereon, to such person as she might by will appoint. By her will (reciting the settlement) she appointed executors, and directed them to sell the principal stock. "The proceeds thereof" she bequeathed to different parties. At her death (for some time previously to which she had lived apart from her husband), a sum of money was found at her lodgings, which was taken possession of by the defendant, the son of one of the executors, at the request of his father, to whom he immediately paid it over.-Held, that (assuming the money in question to consist of the accumulations of the wife's dividends), the will did not dispose of it.-Quære whether, under the terms of the settlement, she had power to dispose of it.-Held also, that, as the executors did not take jure representationis, they were not entitled to the money.-Held also, that the money vested in the husband at her death, without his taking out administration.-Held also, that, as the defendant was a wrong-doer in taking the money, he was liable in an action for money had and received at the suit of the husband.

Debt, for money had and received to the use of the plaintiff. Plea: never indebted.

At the trial, before Tindal C. J., at the sittings for London after last Michaelmas term, the following facts appeared in evidence. In April 1829 the plaintiff married a widow named Mary Ann Truscoat, who was possessed of a sum of 811. per annum, long annuities. By an antenuptial deed of settlement (dated the 11th of that month), the above sum of 811. long annuities was vested in the trustees of the settlement, upon trust to pay the dividends, interest and income of the same to her for life, to and for her sole and separate use and benefit, independent of her husband. A power was given to the trustees, during her life, at her request, to sell, assign and transfer any part of the same, not exceeding in value the sum of 3001., and to apply the money arising from such sale or transfer to her sole use and benefit, or to that of any other person whom she [390] might, by deed or will, appoint; and, after her decease, to pay, assign and transfer the said principal sum of 811. long annuities, or so much thereof as might remain undisposed of at the time of her death, together with the interest and dividends then due and growing thereon, to and for the use of such person as she might, by deed or will, appoint.

In the latter end of the same year, the trustees of the settlement, at the request

() Vide the uniformity of process act, 2 & 3 W. 4, c. 39, s. 3, which, in cases where the defendant cannot be served with a writ of summons, authorises the awarding of a writ of distringas "directed to the sheriff of the county wherein the dwellinghouse or place of abode of such defendant shall be situate, or to the sheriff of any other county, or to any other officer."

of Mrs. Tugman, and under the power above mentioned, sold out 161., part of the 811. long annuities, and paid over the proceeds, amounting to 3001., to her; but what became of this money did not appear. In 1831 the plaintiff and his wife separated, and they continued to live apart till the time of her death, which occurred on the 17th of December 1840. Her will, dated the 29th of October 1829, after reciting the deed of settlement, proceeded thus:-"Now, in execution of the said power so given to me by such indenture, or by any other power or authority enabling me in that behalf, I do hereby direct my executors hereinafter named to sell or dispose of, or otherwise call in, the said sum of 811. long annuities, or so much thereof as shall remain undisposed of at the time of my decease; and as to the proceeds thereof, I do hereby give and bequeath the same in manner and form following: that is to say, first, I give and bequeath unto my executors, Robert Scantlebury and Thomas Hopkins hereinafter named, the sum of 501. each; and as to all the rest, residue and remainder of the proceeds of the said 811. long annuities, I hereby give and bequeath the same and every part thereof unto my two nieces Emma F. and Eliza F., to be equally divided among them." The testatrix then appointed the said R. Scantlebury and T. Hopkins (the father of the defendant) her executors. Soon after the death of Mrs. Tugman, the defendant, by the direction of his father, who was in an infirm state of [391] health, went to her lodgings, and took from a bureau the sum of 841. 3s. 6d. in bank notes, gold and silver, which he claimed to belong to his father, as executor, and which he paid over to him the same day. This money had been laid out by the executors in the payment of the funeral and testamentary expenses, and a portion of the debts of Mrs. Tugman. There was no evidence that she had any other source of income than the stock in the long annuities. The executors had taken out probate of the will "limited so far only as concerns all the right, title and interest of her, the said deceased, in and to the said sum of 651. long annuities, and the dividends and interest now due and to grow due thereon; and the furniture and effects purchased by the said Mary Ann Tugman, with the dividends and interest of the said 651. per annum, long annuities, and all savings and accumulations arising therefrom, which she, the said deceased, by virtue of the said indenture of settlement, had a right to dispose of, and hath by her said will disposed of, accordingly, but no further or otherwise," &c. It was objected at the trial, on behalf of the defendant, that Mrs. Tugman's will was a valid appointment, under the settlement, of the 841. 3s. 6d., which must be considered as the accumulations of her dividends; but that, even if it did not pass to the executors, the plaintiff could only be entitled to it upon taking out administration; that the fund was, at any rate, answerable to the funeral and testamentary expenses of the deceased; and, lastly, that the defendant was not liable, as he acted merely as agent for his father, one of the executors, to whom he had paid over the money, and against whom only, if at all, the action could be maintained.

These objections were overruled by the Lord Chief Justice, and the plaintiff obtained a verdict for the sum [392] in question; leave being reserved to move to enter a verdict for the defendant.

The

Channell Serjt., in last Easter term, having obtained a rule nisi accordingly, Talfourd Serjt. (with whom was Montague Chambers) now shewed cause. first question is, whether the money found in the lodgings of Mrs. Tugman after her death, belonged to her husband, the plaintiff; the second is, whether, supposing it did belong to him, the defendant is liable in this form of action.

The first question depends on the terms of the marriage settlement and of Mrs. Tugman's will. Even assuming that the sum of money under consideration consisted of accumulations derived from the dividends payable to the deceased under the marriage settlement, still her will did not profess to dispose of that money, neither had she any power of disposition over it by the settlement. All that the trustees were empowered by the settlement to do, was, to pay the dividends to her during her life, and after her death to pay the principal sum, "together with the interest and dividends then due and growing thereon" to any person to whom she might appoint it, by will. This power is confined, in terms, to the stock itself, and to such dividends as might be due or growing due at the time of her death; it does not apply to dividends previously due, which had been paid over to her. The will follows the power contained in the settlement, and contains no residuary clause. The testatrix desires her executor to sell the long annuities; and "as to the proceeds thereof" she makes certain bequests; but that can only mean the proceeds of the sale of the stock,

not the dividends previously received by her. She had no power to pass any property to her executors except the [393] particular stock comprised in the marriage settlement. As soon as the trustees paid over the dividends to her, the money became absolutely the property of her husband. If a burglary had been committed in Mrs. Tugman's house, and property belonging to her had been stolen from it, the house and property must have been described in the indictment as those of her husband; R. v. French (a). By the twenty-fifth section of the statute of frauds (29 Car. 2, c. 3), explaining the statute of distributions (22 & 23 Car. 2, c. 10), the rights of the husband over the estate of the wife are expressly reserved. [Maule J. But the husband must take out administration.] He undoubtedly must do so where he wants to recover a chose in action belonging to his wife; otherwise he cannot sue for it; but this was a chose in possession. If the wife had purchased even wearing apparel for herself out of this money, it would have vested by law in the plaintiff, so as to have been liable to be taken in execution for his debts; Carne v. Brice (7 M. & W. 183). The cases of Jarman v. Woolloton (3 T. R. 618), and Haselinton v. Gill (ib. 620, n.; S. C. more fully, 3 Dougl. 415), will be relied on by the other side; but they are clearly distinguishable from this case. In Jarman v. Woolloton it was decided that if a woman, before marriage, with the consent of her intended husband, conveys all her stock in trade and furniture to trustees to enable her to carry on her business separately, and the husband does not intermeddle with them, and there is no fraud, the furniture and the stock (although fluctuating) are not liable to his debts. In that case the property never belonged to the husband; and the wife was considered to have been in possession of it, as agent for the trustees. Haselinton v. [394] Gill is to the same effect. These cases form, in fact, no exception to the general rule.-that all personal chattels of the wife, not in possession at the time of the marriage, if they are reduced into possession during the coverture, are vested in the husband. Com. Dig. Baron and Feme (E. 3.) There are undoubtedly cases in the ecclesiastical courts to shew that the wife may dispose of the accretions of her separate property; but by the canon law husband and wife are, for some purposes, considered separate persons. The rule of law is clear, that the right to take out administration belongs to the husband, exclusively of all other persons; and the ordinary has no power or election to grant it to any other; 1 Wms. Executors, 242, 243 (1st edition; 3d edition, 315, &c.); but although entitled, he is not bound, to take out administration. In the present case he is under no liability to make any distribution, or to render any account. Molony v. Kennedy (10 Sim. 254) is precisely in point, and shews that the plaintiff was entitled, in his marital right, to the money in question. [Maule J. Suppose there had been a debt on bond due to Mrs. Tugman before her marriage, and remaining due at the time of her death, the defendant must go the length of contending that the executors could recover the money due on the bond.] That they clearly could not do; nor indeed could the husband until he had taken out administration, as the bond would be a chose in action.

As to the second point-if this money was the property of the plaintiff, the defendant, who was a wrongdoer in taking it, cannot discharge himself from responsi bility by saying that in so doing he acted as agent for his father. This case is distinguishable from Stephens v. Badcock (3 B. & Ad. 354); where an attorney who was accustomed to receive certain dues for the plaintiff, his client, went [395] from home leaving his clerk at the office. The clerk, in the absence of his master, received money on account of those dues for the plaintiff (which he was authorised to do), and gave a receipt in his own name for his master. The attorney was in bad circumstances when he left home, and he never returned; but it did not appear that his intention not to do so, was known to the clerk at the time of the payment. The clerk afterwards refused to pay over the money to the plaintiff; and on assumpsit being brought against him for money had and received, it was held that the action did not lie; for the clerk had received the money as the agent of his master, and was accountable to him for it; the master, on the other hand, being accountable to the client for the sum received by his clerk (a); and there was no privity of contract between the plaintiff and defendant. In the present case the plaintiff waives the tort and considers the

(a)1 Russell & Ryan, C. C. 491. See also Farre's case, Kel. 43; Rex v. Smith, 5 C.

& P. 201.

(a) See Bamford v. Shuttleworth, 11 A. & E. 926.

C. P. XII.-6

money as received by the defendant to his the plaintiff's use. Even if the defendant were the agent of his father, he could not justify the commission of the wrongful act, on the ground that he had paid over the money to his principal (b). [Maule J. Supposing that such payment would have discharged the defendant, he ought to have pleaded it.]

Channell Serjt., in support of the rule. It may be admitted that it would be necessary to plead the payment over if it was set up by way of answer to the action. But the fact is used for the purpose of shewing that if the defendant received the money as agent for his father, it was not received to the use of the plaintiff.

The first question in this case is, as to the right of Mrs. Tugman to dispose of this money by her will. [396] The case of Molony v. Kennedy (10 Sim. 254) does not shew that a wife has not the power of disposing of the accretions of her property, where she has power to dispose of the property itself. On the contrary, the ViceChancellor in giving judgment said, "Mrs. Molony's annuity of 8001. and every thing that arose from it, was exempt from the control of her husband during her life (b)2; and as the cash and bank-notes which were found in her possession at her death, arose from that annuity, they were part of her separate property, and she might have disposed of them either by deed or by her will." But not having disposed of them by will, it was considered in that case that the husband was entitled to them in his marital right. In Gore v. Knight (2 Vern. 535) it was held, that where a woman, on marriage, had reserved a power to dispose of her personal estate, all that she died possessed of was to be taken to be her separate estate, or the produce of it, unless the contrary could be made appear; and as she had power over the principal, she might dispose of the interest. The principle of the rule is stated in Williams on Executors (vol. i. p. 43, 1st ed.; p. 47, 2d ed.; p. 48, 3d ed.), where, after referring to the case of Fettiplace v. Gorges (1 Ves. jun. 46, 3 Bro. C. C. 8), in which it was held that where personal property is actually given or settled, or is agreed to be given or settled, to the separate use of the wife, she may dispose of it as a feme sole, to the full extent of her interest, although no particular form to do so is prescribed in the instrument by which the settlement or agreement was made, the author proceeds; "the principle upon which that decision was founded is this: that when once the wife is permitted to take personal property to her separate use as a feme sole, she must take it with all its privileges and incidents, one of [397] which is the jus disponendi" (a). [Tindal C. J. Suppose the wife had laid out the accumulations of her dividends in the purchase of furniture, would not that have belonged to her husband at her death. I am speaking of the strict legal interest of the parties; it might be different in equity.] Assuming that the wife had the power to dispose of her separate property and its accretions, it is submitted that it would not belong to the husband. In such a case the wife would be treated, as in equity, as a feme sole; and the property held answerable for her debts.

Assuming that she had the right to dispose of the money, the next question is, whether Mrs. Tugman did dispose of it, by her will; and it is submitted that the term "proceeds" in the will may certainly be understood to mean the proceeds of the dividends previously received.

This being an action for money had and received, which is of an equitable nature, the court will look at all the circumstances of the case; and if it appear that in equity the wife's executors would be liable to pay her funeral expenses out of her property, they would be entitled to the money in question; at any rate till the husband takes out administration. [Coltman J. If the husband is liable for the funeral expenses, would he not be so whether he had taken out administration or not?] Perhaps he might; but in this case, the executors, persons appointed by the testatrix, have paid all the testamentary expenses. In Molony v. Kemble the vice-chancellor deducted the funeral expenses from the sum to which the husband was declared to be entitled. In this case therefore the plaintiff cannot be entitled to the whole of the money, which being the accretion of the wife's separate property goes to the executors in the first instance for the purpose of [398] meeting the debts and testamentary expenses of

(b) See Calland v. Loyd, 6 M. & W. 26.
(b) But see Carne v. Brice, ubi supra.
(a) See the cases referred to, loc. cit.

« ZurückWeiter »