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THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW



Sacramento County Law Library



JAN 1 8 1917



From..



THE ENGLISH REPORTS

EXCHEQUER DIVISION



CONSULTATIVE COMMITTEE



THE RIGHT HONOURABLE THE EARL OF HALSBURY,
LATELY LORD HIGH CHANCELLOR OF GREAT BRITAIN

THE RIGHT HONOURABLE SIR R. B. FINLAY, G.C.M.G., K.C.,
LATELY ATTORNEY-GENERAL



EDITOR
MAX. ROBERTSON, BARRISTER-AT-LAW



THE



ENGLISH REPORTS



VOLUME CLVIII



EXCHEQUER DIVISION
XIV



/

CONTAINING



HURLSTONE AND NORMAN, VOLS. 6 AND 7
HURLSTONE AND COLTMAN, VOL. 1



W. GREEN & SON, LIMITED, EDINBURGH
STEVENS & SONS, LIMITED, LONDON

AGENTS FOR THE UNITED STATES OF AMERICA
THE BOSTON BOOK COMPANY

AGENTS FOR CANADA
THE CANADA LAW BOOK COMPANY

1916



Printed by GREEN & SON, Edinburgh
August 1916



The EXCHEQUER REPORTS. REPORTS of
CASES ARGUED and DETERMINED in the
COURTS of EXCHEQUER and EXCHEQUER
CHAMBER. Trinity Vacation, 24 YICT., to
Easter Vacation, 24 VI CT., both inclusive. By
E. T. HURLSTONE, of the Inner Temple, and
J. P. NORMAN, of the Inner Temple, Esquires,
Barristers-at-Law. Vol. VI. London, 1862.



[Pp. ix. to Ixii. contain Regulse Generales (Court of Exchequer, Revenue Side).]



[1] EXCHEQUER REPORTS. TRINITY VACATION, 24 VICT.

MARSACK v. WEBBER. July 5, 1860. Where two parties employ an arbitrator, and
one pays the arbitrator's fees to enable him to take up the award, (there being no
event of the award to entitle, either party to costs), the party so paying is entitled
to recover from the other a moiety of the sum paid as money paid to his use. v

[S. C. 4 L. T. 553.]

Declaration for money paid. Plea : Never indebted.

At the trial, which took place before Martin, B., without a jury, at the Middlesex
Sittings in Easter Term, it appeared that the action was brought to recover 561., being
a moiety of the sum of 1 1 21. paid by the plaintiff under the following circumstances.

By an agreement of reference, dated the 8th of July, 1857, a certain action, and
all matters in difference between the plaintiff and the defendant, were referred to the
award of G. Goodwin, and G. B. Childs, or in case of their disagreement to such person
as they should by a memorandum in writing appoint, the costs of and incident to the
reference and award, including therein such costs as might be taxed by the officer of
the Court in the action, to abide the event of the arbitration or umpirage. On the
10th of October, 1857, upon a summons at Chambers, Channell, B., on hearing counsel
on both sides, ordered " that John Raymond, Esq., barrister at law, be appointed an
umpire therein, pur-[2]-suant to the Common Law Procedure Act, 1854." On the
1st of March, 1859, the umpire made his award, and thereby awarded that the
defendant should pay to the plaintiff 1561. 18s. in respect of certain accounts; and
that as to certain false and malicious representations, alleged to have been made by
the defendant to the plaintiff, that the defendant was not guilty. Notice having
been given to both parties that the award was ready to be delivered to them on
payment of the fees, amounting to 1121., the plaintiff paid that sum in order to take
up the award.

On these facts the learned Judge directed a verdict to be entered for the plaintiff,
reserving leave to the defendant to move to enter a nonsuit, or verdict in his favour.
Lush, in Easter Term, having obtained a rule nisi accordingly,

Hance now shewed cause. Under the order of reference and award made in

Ex, Div. xiv. 1



2 MARSACK V. WEBBER 6 H & N. 3.

pursuance of it, neither party is entitled to the costs of the reference and award.
That was decided by the Court of Queen's Bench in this case : In re MarsacJc and
Webber (2 El. & El. 637). The plaintiff, however, having paid the whole of the
umpire's charges in order to take up the award, is entitled to recover a moiety thereof
from the defendant. There are several dicta which shew that the parties to a reference
are jointly liable to the arbitrator. If so, in this case the umpire might have
maintained an action against both the plaintiff and the defendant. In Bates v. Townley
(2 Exch. 152), by agreement between the plaintiff and the defendant certain differences
between them were referred to arbitration, the costs of the reference and award to be
in the discretion of the arbitrators. The arbitrators, after finding a sum of money
due from the defendant to the plaintiff, awarded that the costs [3] of the reference
and award, including compensation to the arbitrators, should be borne as follows :
that is to say one moiety thereof by the plaintiff, and the other moiety thereof by the
defendants. The plaintiff took up the award, and paid the whole costs of it, and it
was held that he could not recover a moiety of the sum paid by him as money paid
for the use of the defendants. But that was because the award was bad. Parke, B.,
in delivering the judgment of the Court intimated that if the award had been good
the plaintiff might have recovered. He said " the plaintiff must shew that both the
parties became jointly liable to the arbitrators for the sum that was paid to them," &c.
Again, " this contract of the two parties is evidence, by their own admission, that the
arbitrators were to be paid for their trouble, and might be used for that purpose if
the arbitrators had to sue the parties for their services. . . ." "Both the parties
having jointly employed the arbitrators, would, 4 as between them and the arbitrators,
be jointly liable to pay a reasonable compensation." In Re Coombs (4 Exch. 839),
Parke, B., said : "No doubt an arbitrator has a lien upon the award for his services,
or, perhaps, he might maintain an action for work and labour ; and as to the supposed
difficulty to which the party may be subjected who has taken up the award and paid
the money, I am inclined to think that he might maintain an action for money had
and received, on the ground that the payment was not voluntary." [Bramwell, B.
In agreeing to submit their differences to arbitration, both parties must have con-
templated that the award would be taken up.]

Lush, in support of the rule. In the present case there was no evidence of any
promise to pay the umpire. The [4] award might have been taken up by either
party. When the plaintiff took it up, he did so for his own purposes, and must be
deemed to have taken his chance of being reimbursed. The Court of Queen's Bench
have held that there was no event of this award entitling the plaintiff to the costs of
it. [Martin, B. The umpire has done work for both the plaintiff and the defendant
jointly ; therefore, prima facie, he was entitled to be paid. Does it not follow that
there was a debt jointly due by these two persons to a third, which has been paid by
one "?] It is submitted that it is not correct to say that the fee paid to the umpire
was a debt. A barrister may sue for his fees, if there has been an express promise to
pay them : Hoggins v. Gordon (3 Q. B. 466), Egan v. The Guardians of the Kensington
Union (3 Q. B. 935, note) ; but not otherwise. In Virany v. Warne (4 Esp. 46), Lord
Kenyon ruled that this doctrine applied to the case of an arbitrator suing for his fees.
[Channell, B. Suppose it had been expressly agreed that all matters should be
referred to arbitration and that the arbitrator or umpire should be paid, could it be
contended that the plaintiff could not sue 1] The agreement regulates the rights of
the parties ; but here that which has taken place has not been provided for.
[Channell, B. The agreement of reference contemplates that the arbitrator shall be
paid ; it provides how the costs are to be borne by the parties.] Sates v. Townley
(2 Exch. 152) does not shew that arbitrators have a right of action for their fees. In
the present case each party must bear his own costs, and neither party can recover
from the other any part of the expenses he has voluntarily paid : Yates v. Knight
(2 Bing. N. C. 277), Griblle v. Buchanan (18 C. B. 691). The fee paid to the umpire
is a part of the expenses of the reference. The observations of Parke, B., [5] in
Bates v. Townley (2 Exch. 152), and in Re Coombs (4 Exch. 839), must be taken to refer
to a case where there is an express promise to pay the arbitrator. [Martin, B. Surely,
if the parties place before an arbitrator an agreement of reference, stating that the
expenses of the reference and award are to abide the event of the arbitration, that is
an express representation to the arbitrator that he shall be paid.] That cannot alter
the nature of the employment, if in point of law it is merely honorary. [Channell, B.



6 H. & N. 6. JOHNSON V. 8IMCOCK 3

Suppose an arbitrator is asked to act upon a submission which shews that the arbitrator
is to be paid, does not that amount to an express contract that he shall be paid ?]

Cur. adv. vult.

MARTIN, B., now said In this case there was a reference of all matters in
difference to arbitration, the costs of the reference and award to abide the event.
After the argument of a rule obtained by one of the parties for the taxation of his
costs, the Court of Queen's Bench was of opinion that there had been no event on
which such costs could be taxed. One of the parties, however, has paid a considerable
sum to the umpire, on taking up the award. It was suggested that his right to
recover a moiety was governed by the case in the Court of Queen's Bench. But we
are of opinion the cases are distinguishable. The costs, under the circumstances which
have taken place, are not provided for by the agreement of reference. Then it was con-
tended that the payment to the umpire was a voluntary payment ; not such a payment
by compulsion as would enable one party who had paid the whole to recover a moiety
from the other ; and that the right of the umpire to his fees was not a legal debt.
Without going into that [6] question, we think that when two parties agree to employ
an arbitrator, and one pays a sum of money to take up the award, in reason, justice
and law he is entitled to recover from the other a moiety of the sum so paid.
Therefore, the rule to enter a nonsuit must be discharged.

Rule discharged.

THOMAS JOHNSON v. SIMCOCK AND JACKSON. July 6, 1860. A testator devised
as follows : " As to my real estate if my daughter dies before she arrives at
lawful age, or have no lawful issue, then I leave my real property to my brother
J. and D. H. equal between them, &c. But in case my daughter shall have
lawful issue, then I leave the whole of my property, real and personal, to her and
her heirs, assigns and executors for ever." The daughter having attained twenty-
one, married, and settled /the property in question on her husband, but died
without ever having had a child. Held, that on attaining twenty-one she took
an estate in fee by descent, and that therefore the devise to J. and D. H. never
took effect: per Pollock, C. B., Bramwell, B., and Channell, B., dissentiente
Martin, B.

[S. C. 29 L. J. Ex. 478 : affirmed 1861, 7 H. & N. 344.]

This was an action of ejectment to recover possession of a farm and lands called
Wormlow Cross.

At the trial, before Bramwell, B., at the Spring Assizes at Stafford, it appeared
that Thomas Johnson, the uncle of the plaintiff, being seised in fee of the said farm
and lands, made his will as follows :

" I give and bequeath to my wife, Hannah Johnson, the sum of 201. yearly out
of my real estate ; likewise I give to my wife the interest of 4001. during her natural
life, in case she does not marry ; but if she should marry, then to have only the
interest of 4001., and not any of the 201. above mentioned. And should my daughter
Margery Johnson, happen to die without issue, then I will that the 4001. be at my
wife's disposal in case she survives my daughter ; but should my wife happen to die
before my daughter, then the said 4001. to be at my daughter's disposal. . . . Like-
wise I will, in case my daughter should marry during my wife's life, that my daughter
shall give to my wife 301. to buy her household furniture : and in case my daughter
should have no lawful issues (sic), after her death [7] I will that my property that
shall be remaining to return to my relations, &c. The remainder of my personalty
I leave to my daughter's disposal, if she lives to maturity. As to my real estate,
if my daughter dies before she arrives at lawful age, or have no lawful issue, then
I leave my real and all my other property to my brother, John Johnson, and Dorothy
Harris, equal between them, they paying all the legacies and expenses as before
mentioned ; but in case my daughter shall have lawful issue, I leave the whole of my
property, real and personal, to her and her heirs, assigns and executors for ever,
provided she pays to my wife and my nephew Thomas Johnson, and my brother John
Johnson, their legacies mentioned at beginning of this my will," &c.

The testator died in 1812, leaving John Johnson and Dorothy Harris surviving
him. Dorothy Harris died in 1814; John Johnson died in 1838, leaving the plaintiff



4 JOHNSON V. SIMCOCK 6 H. & N. 8.

his eldest son and heir at law. Margery Johnson, who was the only child of the
testator, died in 1849 without issue.

The defendant's case was, that after Margery Johnson came of age, she executed
a disentailing deed, and the property was afterwards, upon her marriage with the
defendant Jackson, conveyed to trustees, under whom the defendants claimed.

Upon these facts the learned Judge directed a verdict for the plaintiff, giving leave
to the defendants to move to enter a nonsuit.

Whateley, for the defendant Jackson, in Easter Term obtained a rule nisi to enter
a nonsuit, on the ground that by the true construction of the testator's will the
property vested in Margery, his daughter, when she attained the age of twenty-one
years, and passed by the settlement made on her marriage.

[8] M'Mahon and J. E. Davis shewed cause. (a) The intention of the testator was
that if Margery Johnson died under twenty-one years of age, or had no lawful issue,
the estate should go to the testator's brother John Johnson, and Dorothy Harris,
with a proviso that if Margery had a child, she should take an estate in fee. There
is no devise of any estate for life to her, but she took an estate in fee by descent,
subject to the executory devise over in the event of her dying without ever having
had a child. The cases of Weakley d. Knight v. Rugg (7 T. R. 322), and Doe d. Barnfield
v. Wetton (2 Bos. & P. 324), cited in Jarman on Wills, vol. 1, p. 473, 2nd ed., shew
that there is nothing to give to Margery Johnson an estate tail, either expressly or by
implication. Gardner v. Sheldon (Vin. Ab. Devise (L. 2), pi. 9) shews that, where
an estate is devised over after the death of the testator, upon condition, the heir takes
by descent until the condition is performed. Therefore this case does not fall within
the terms of the rule as stated in Jarman on Wills, vol. 1, p. 422, which applies to
cases where the testator begins by devising his real estate to the party whose estate
is to be defeated on the contingency taking effect. Soulle v. Gerrard (Cro. Eliz. 525)
was commented upon by Lord Cranworth, C., in Grey v. Pearson (6 H. L. 61, 79), who
points out that the construction adopted in that and other cases has been for the
purpose of preserving the estate, which would otherwise go over, in case of the death
of the first taker under age, leaving issue. But no such reason for changing the
natural meaning of the words exists in the present case. In Mortimer v. Hartley
(6 Exch. 47), the testator, after giving estates tail to his children John and Anne,
proceeded as follows : [9] " If it should please God to take John and Anne under
age, or without leaving lawful issue, I give and bequeath to my brother Joseph
Westerman, and his heirs for ever, all these cottages," &c. The Court of Exchequer
held that "the disposition of the Courts should always be to abide by the words of a will,
and read them in their ordinary grammatical sense ; " and accordingly they refused to
change " or " into " and " for the purpose of effecting the conjectured intention of the
testator. That opinion was approved and acted upon by Vice Chancellor Knight
Bruce (3 De Gex & S. 316). In Billiard v. Gennings (12 Moo. 276 ; see 2 Vern. 377),
Lord Holt denied the case of Soulle v. Gerrard (Cro. Eliz. 525) to be law. In Wood-
ward v. Glasbrook (2 Vern. 388), where one devised several parcels of land to his
several children in tail, and if any of them die before twenty-one, or unmarried, such
child's part to go to the surviving children, Lord Holt held that, one child dying
unmarried, though he attained the age of twenty-one, his share went over to the
survivors. The Courts will not change " or " into " and," where such a change would
lead to intestacy. In the present case, if "or" be changed into "and," neither the
executory devise over, nor the conditional gift of the fee to the daughter, would take
effect. It would, therefore, in the events which have taken place, violate the
expressed intention of the testator. It may be doubted whether " lawful age " is to be
construed as meaning " full age," that is, twenty-one. A woman is of lawful age to
contract a marriage at twelve years old, and the testator may have meant to say,
" if my daughter never arrives at womanhood or if having arrived at that age she dies
without ever having had a child, the estate is to go over.

Whateley and Manley Smith, in support of the rule. The [10] present case falls
within the rule thus stated in Jarman on Wills, vol. 1, p. 422: "By far the most
numerous class of cases exhibiting the change of the testator's words are those in
which the disjunctive, 'or,' has been changed into the copulative, 'and,' and vice

(a) In Trinity Term, June 7. Before Pollock, C. B., Martin, B., Bramwell, B.,
and Channell, B.



H. & N. 11. JOHNSON V. SIMCOCK 5

versa. It is obvious that these words are often used orally without due regard to
their respective import; and it could not be difficult to adduce instances of the
inaccuracy even in written compositions of some note. It is not, therefore, surprising
that this inaccuracy should have found its way into wills. Accordingly, we find that
the Courts have often been called upon to rectify blunders of this nature, &c. It has
long been settled that a devise of real estate to A. and his heirs, or, which would be
the same in effect, to A. indefinitely, and in case of his death under twenty-one, or
without issue, over, the word ' or ' is construed ' and ' ; and consequently the estate
does not go over, unless both the specified events happen." Here the testator's
daughter, Margery Johnson, took an absolute vested interest on attaining the age of
twenty-one years. Suppose she had died under that age, leaving children, it is
impossible to suppose that the testator did not mean that the property should go to
her children. To carry out the testator's intention, the word "or" must be read
" and." Unless " or " be construed " and," the estate would go over to the testator's
brother in either of the events specified. In Eastman v. Baker (1 Taunt. 174, 182)
the words were : "I give unto my daughter Jane all the right, &c., I now have in a
certain messuage to her and her heirs ; but if my daughter shall happen to die, and
not attain the full age of twenty-one years, or having no such issue, then I give and
devise the same premises to my dear wife." Mansfield, C. J., in delivering the judg-
ment of the Court, said : " The question is whether ' or ' in this place means ' and.'
According to Fairjield v. M&r-[H]-gan (2 New Rep. 38), and the other cases cited, it
must mean ' and ' ; because, if it does not, it follows that, upon the contingency of
the daughter dying, having issue, but not having attained the age of twenty-one years,
the estate would pass over from her children, which could never be the testator's
intention." In Soulle v. Gerrard (Cro. Eliz. 525) there was a devise to one of four
sons and his heirs for ever, and if he die within age or without issue, to his three
other sons jointly. The devisee had issue, a daughter, and died within age ; and the
Court held that he took an estate tail. Irt Price v. Hunt (Pollex. 645) there was a
similar limitation, and the Court held that the grammatical sense of the word " or "
might be rejected, and the word read as if it were " and." Walsh v. Peterson (3 Atk.
193), Barker v. Suretees (2 Str. 1175), and Eight, Lessee of Day v. Day (16 East, 67),
are authorities in favour of this mode of construing the devise.

The learned Judges differing in opinion, the following judgments were now
delivered.

MARTIN, B. This is an action of ejectment which was tried before my brother
Bramwell, at Stafford, when he directed a verdict for the plaintiff, giving the defen-
dant leave to move to enter a nonsuit. A rule was granted for this purpose, and
cause has been shewn against it. The question depends upon the will of Thomas
Johnson, dated the 9th of March 1810. He had an only child, a daughter, Margery
Johnson ; after his death she married, and died some short time ago, never having had
a child. After she came of age, and during her marriage, she and her husband executed
a disentailing deed, and the defendant claims [12] title under it, and if she had either
an estate in fee simple absolute, or an estate tail in the real property devised, the
defendant's title is good, and he is entitled to have this rule made absolute. The
plaintiff claims title under John Johnson, the brother of the testator, named in the
will, and his contention is, that upon the events which have happened he became
entitled to a moiety of the property upon the death of the daughter. The duty of
Courts of law, in construing wills, is to give effect to the intention of testators, as
expressed by them in writing. Very many rules have been enunciated to aid the
Courts in giving the proper construction ; but their primary duty is to read the will
itself and endeavour to ascertain what its words express taken in their plain, natural,
ordinary, grammatical sense. It plainly appears from the present will that a principal
object which the testator had in contemplation was, that in the event of his daughter
having issue, the great bulk of his property should go to her. He also expresses an
intention that, in the event of her dying without issue, what then remained of his
personalty should (as he expresses it) return to his relations.

The first part of the will relates to the personalty. The devise as to the property
in question is as follows : " As to my real estate, if my daughter dies before she
arrives at lawful age, or have no lawful issue, then I leave my real property to my
brother John Johnson and Dorothy Harris equal between them, they paying all the
legacies before mentioned ; but, in case my daughter shall have lawful issue, then I



6 JOHNSON V. SIMCOCK 6 H. &N.13.

leave the whole of my property, real and personal, to her, and her heirs, assigns and
executors for ever."

It was argued on behalf of the defendants, first, that by the legal operation of this
will the daughter took an estate in fee simple, by descent conditional ; that the word
"or" [13] must be read "and"; that the devises to the brother John Johnson and
Dorothy Harris were executory devises in the event of the daughter dying under
age, and without having had issue ; and that upon her attaining full age, her estate
in fee simple became absolute, and that, if the will were construed otherwise, the
consequence would follow that in the event of the daughter dying under age, and
leaving a child, the property would go to the brother John Johnson and Dorothy
Harris, in exclusion of the daughter's child, which would be contrary to the plainly
expressed intention of the testator. Or, secondly, that the daughter took under the
will an estate tail by implication. If either of these positions be maintainable the
defendant's title would be good. If the will had stopped at the devise to John
Johnson and Dorothy Harris, there would have been much weight in the argument
on his behalf. But 1 think we are bound by law to read the whole devise together,
and the next sentence is to the express effect that in case the daughter should have
lawful issue the whole of his property was to go to her and her heirs for ever. This
shews, first, that the estate devised to the daughter was not an estate tail ; for the
devise is, that, upon issue of her body being born, the estate should be to her and her



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