S.C. 1901. In re WILL OF TRUSTEE v. EAVES. Wills Act (7 Wm. IV. & 1 Vict., c. 26) takes effect with respect to the testator's deceased daughter Mary Ann Wells. It is not disputed that the ordinary rule is correctly laid down in Jarman on Wills(1), that where a gift is to the children of several persons, whether it be to the children of A and B or to the children of A and the children of B, they take per capita, not per stirpes. Mr. Jarman adds, however, that this mode of construction will yield to a very faint glimpse of a different intention in the context. Counsel for the testator's children contended that the testator's main object must be taken to have been to benefit his own children, and that, as the distribution here is to be between his own children and strangers in blood, and as a distribution per stirpes would be more beneficial to the testator's children than a distribution per capita, the will should be construed as directing a distribution per stirpes. I am unable to adopt that view. I cannot see any indication whatever in this will of an intention on the part of the testator to prefer his own children to the grandchildren of his wife in the distribution of his property. Whatever indication there is is, in fact, in the other direction. The legacies given in the earlier part of the will are to two of the grandchildren of the testator's wife, and to the testator's wife. In the gift of the residue the grandchildren of the testator's wife are first mentioned. The children of the testator are curiously described not as his children, but as the children of his former wife. These are the only indications of intention on the part of the testator. They are slight, but they do not aid the contention that the distribution should be per stirpes. The ordinary rule must therefore prevail, and the distribution of the testator's residuary estate between the grandchildren of his wife and his own children must be per capita and not per stirpes. As to the second point, the children or representatives of the testator's deceased daughter Mary Ann Wells were not represented at the argument. Mr. Treadwell, counsel for the trustee of the will, properly called my attention to the cases of Wisden v. Wisden (2), Winter v. Winter(3), and Mower v. Orr(4). These cases establish that, where a testator makes a gift to a deceased child by name, though that child may be dead at the time when the will is made, the 33rd section of the Wills Act takes effect, and the will must be construed as (1) 5th ed. 1050, 1051. (2) 2 Sm. & G. 396. (3) 5 Hare, 306; 16 L.J. Ch. 111. (4) 7 Hare, 473; 18 L.J. Ch. 361. though the deceased child had been alive at the time when the will was made, and had died immediately after the death of the testator. There are, however, three cases which directly decide that this principle of construction does not apply where the gift is to the children of the testator as a class. The reason is that the effect of the gift is a gift to the children of the testator living at his death; that therefore there was no gift to the deceased child of the testator; that there could, therefore, be no lapse; and that the intention of the Legislature was to provide against lapse merely, not to alter the construction put upon any will. The authorities for these propositions are Olney v. Bates(1), Browne v. Hammond(2), and In re Sir E. Harvey's Estate, Harvey v. Gillon(3). It is therefore clear upon the authorities that the 33rd section of the Wills Act does not take effect with respect to the deceased child of the testator, Mary Ann Wells, and that her representatives, whoever they may be, take nothing under the will. There will therefore be a declaration that the distribution of the residuary estate of the testator between the grandchildren of his wife and his own children must be per capita, and not per stirpes, and that the representatives of the testator's deceased daughter Mary Ann Wells take nothing under the will. The costs of all parties must be taxed and paid out of the estate. Declaration accordingly. Solicitors for the Public Trustee: Stafford, Treadwell, & Field (Wellington). Solicitors for the grandchildren of the testator's wife: Hall & Knight (Wellington). Solicitors for the testator's children by his first wife: Bell, Gully, Bell, & Myers (Wellington). S.C. 1901. In re WILL OF BANKS, PUBLIC TRUSTEE v. EAVES. S.C. IN BANCO. PALAIRET v. REILLY. PALAIRET v. BUDD. CHRISTCHURCH. Principal and Agent-Volunteer Officers-Tenders for Catering-AcceptanceSubsequent Cancellation. 1901. April 25, May 10. DENNISTON, J. A Volunteer encampment was about to be held at Timaru. Colonel Gordon, the Officer Commanding the Canterbury District, called a meeting of officers, of whom Palairet was one. At this meeting the question of catering was discussed, the outcome being that an advertisement was inserted in a newspaper stating that tenders would be received by Colonel Bailey, the Officer Commanding the South Canterbury Sub-district. The tenders of the respondents were accepted by Colonel Bailey. The latter did not profess to contract for Palairet, nor did the respondents profess to have contracted on the faith of Palairet's credit. Palairet was shown to have acted throughout as the subordinate and agent of Colonel Gordon. Held, on an appeal from a decision of a Magistrate in favour of the respondents in an action by them against Palairet and others, That Palairet was not liable. APPEAL on the law and facts from the judgment of the Stipendiary Magistrate at Timaru on the 12th of September, 1900, in favour of the respondents. All the facts on which the judgment is based are set out in the judgment. Harper, for the appellant, cited the following authorities: Encyclopedia of the Laws of England(1); Todd v. Emly(2); Thomas v. Edwards (3). The plaintiff was bound to prove that the defendant, in acting as he did, was not acting as agent for another: Overton v. Hewett(4). When an agent is acting for an undisclosed principal, the question to whom was credit given becomes important: Evans on Principal and Agent(5); Encyclopedia of the Laws of England(6); Rice v. Chute(7); Palmer v. Hutchinson (8); Dunn v. MacDonald(9); Gidley v. Lord Palmerston(10); Thomas v. The Queen(11). Joynt, for the respondent Reilly: The evidence shows that Palairet together with the others were all principals. They met at the "Grosvenor " for the (1) Vol. iii. 51. (4) 3 T. L.R. 246. (7) 1 East, 579. (8) 6 App. Cas. 619, 627. (9) [1897] 1 Q.B. 401; on app. ibid. 555. (10) 3 Br. & Bing. 275. (11) L.R. 10 Q.B. 31. S.C. 1901. v. REILLY. PALAIRET v. Budd. express purpose of making arrangements about the encampment. The advertisement by Colonel Bailey was the outcome of the cussion. From Mr. Gillies's evidence there appears PALAIRET to have been a consensus of opinion that a Timaru person should have the catering. Colonel Bailey's acceptance of Reilly's offer was an acceptance by all five persons, and bound them. Palairet, in giving notice of the cancellation, does not purport to speak for Colonel Gordon, but for himself. There is no foundation for saying that they were public agents or officers of the Crown. Before they can set up that defence they must show that they come within section 37 of "The Crown Suits Act, 1881." In Cross v. Williams(1) a captain of a Volunteer corps was held responsible for uniforms supplied to his men. Raymond, for the respondent Budd: These five gentlemen met for a common purpose-they had charge of the making of the arrangements for the camp. It is conceded that neither the Crown nor the individual members of the corps are liable. If, then, those five gentlemen are not liable, no one is liable. Palairet was particularly inter- . ested he had charge of the commissariat. They met, and the outcome was the advertisement. Palairet, in pursuance of what came within his particular department, ordered certain things; and we have the further fact that he finally gave the contract to Burke. Palairet and the others were practically in the position of parties having a common purpose, and acting together in furtherance of such purpose. In such a case each of them has authority to bind the others to the extent of attaining that common purpose. Harper in reply. DENNISTON, J. :— Cur. adv. vult. These two appeals have by consent been argued together, there being no substantial difference in their main features. In each the respondents (plaintiffs below) sued the appellant Christopher Bailey and H. Gordon for damages for breach of contract. In Reilly's case the plaintiff put in a tender in answer to an advertisement in these terms: 66 "V.R. "Easter Camp, Timaru. TENDERS will be received by Colonel Bailey, Volunteer (1) 31 L.J. Ex. 145. S.C. 1901. PALAIRET บ. "Office, Timaru, for the sole right of canteen on the grounds "at the Levels during Easter camp. Liquid refreshments only to be sold. REILLY. PALAIRET v. BUDD. "C. S. BAILEY, Col., 66 Commanding S.C. Sub-Dist." Reilly's tender was in these words: "To Colonel Bailey. "April 4th, 1900. "I AGREE to pay fifty-two pounds (£52) for canteen for the right to sell liquid refreshments at Easter camp. 66 66 "P. REILLY, "Melville Hotel, Timaru." Colonel Bailey accepted the tender in these terms: "Timaru, 5th April. I HEREBY accept your tender for canteen, Easter camp, for 'which I hold your deposit cheque, £52. "C. BAILEY, Lieut.-Colonel, 66 Commanding S.C. Sub-District." In Budd's case Colonel Bailey saw him personally. The acceptance of his proposal was in writing, in these terms: "I HEREBY accept your agreement to cater for undermen"tioned at Easter, as stated: "Defence Department to supply seats, tents, &c. "C. BAILEY, Lieut.-Colonel, "Timaru, 7th April, 1900." 66 Commanding Camp. Subsequently Colonel Bailey, acting under specific orders from Colonel Gordon, one of the defendants, gave notice to the respondents cancelling these contracts; upon which the respondents brought their actions, and recovered damages against all the defendants. The only question to be decided now is as to the personal liability of the appellant Palairet. The contracts were made with Colonel Bailey only. Whether he was or was not personally liable is not now directly in issue. He did not profess to contract for any of the other defendants. Their names were not mentioned. The respondents do not profess to have |