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assess the amount of remuneration and to decide
whether the event had occurred on which remunera
tion depended :
it was for S. to assess honestly and
on reasonable grounds the value of M.'s efforts.
(The Times,
October 12, 1961.)
Criminal law—fresh evidence on appeal.
In R.
v.
Parks (October 4, 1961) the Court of
Criminal Appeal (Lord Parker C.J., Slade and Veale
JJ.) held, allowing an appeal against conviction,
that the principles upon which the Court of Criminal
Appeal would act to allow fresh evidence, under
s. 9 of the Criminal Appeal Act, 1907, were as
follows :
(i) the evidence which it was sought to
have called must be evidence which was not available
at the trial; (ii) it must be relevant to the issue;
(iii) it must be credible evidence, in the sense of
being well capable of belief; and (iv) the court
would, after considering that evidence, go on to
consider whether there might not have been a
reasonable doubt raised by it in the minds of the
jury.
(W.I.R.—1961—I—1484.)
Criminal law—murder—diminished responsibility.
In R.
v.
Bailey (October 23, 1961) B. was charged
with murder. The defence raised a plea of diminished
responsibility, and called three doctors to sub
stantiate that plea. No evidence was called by the
Crown in rebuttal. The trial judge left the issue of
diminished responsibility to the jury.
The jury
convicted of murder. The Court of Criminal Appeal
(Lord Parker C.J., Ashworth and Veale JJ.) held,
allowing an appeal against the conviction for murder,
and substituting a verdict of manslaughter on the
ground of diminished responsibility, that the verdict
was unreasonable :
a jury must act on the evidence
before it; and if there was nothing to throw doubt
on the evidence they must accept it.
(The Times,
October 24, 1961.)
Vendor and purchaser—vendor's
failure
to
answer
requisitions on title—whether purchaser entitled to rescind
the contract—form of action
On May 5, 1961, the purchaser entered into a
contract in writing to buy a 40 per cent, share in the
vendor's freehold property and paid the stipulated
deposit.
The completion was to take place by
August 6, 1961. The property was registered land
and the land certificate showed an entry in the
charges register relating to a covenant between W.
and the vendor's predecessor in title restricting the
user so long as W. was the owner of the adjoining
land.
In the requisitions on title the vendor's
solicitors were asked about the current position of
this entry to which their reply was :
" We are
inquiring as to this." In spite of reminders this was
not adverted to again until after the commencement
of proceedings. On August u, 1961, the vendor
gave notice to complete in the usual form requesting
the purchaser to complete within 28 days.
On September 4, 1961, the purchaser's solicitors,
in answering the notice, referred to the restrictive
covenant and stated :
"... We, therefore, do not
intend to comply with your notice to complete,
and .
.
. rescind the contract. .
. ." and requested
the return of the deposit. On September 12, 1961,
the vendor informed the purchaser that the deposit
was forfeited.
On November 15, 1961, the purchaser took out
a summons seeking a declaration that the vendor
had failed to discharge his obligations and claiming
return of the deposit. On December 6, 1961, the
vendor's solicitors, acknowledging the summons,
wrote that the covenant between W. and the vendor's
predecessor in title was no longer effective as W.
had ceased to be the owner of the adjoining land
some years previously; thus the purchaser had no
right to rescind the contract.
On the further
contention that although failure to answer the
requisition in question might have entitled the
purchaser to repudiate, nevertheless the purchaser,
by bringing these proceedings in this form, so far
from repudiating the contract, had elected to treat it
as on foot and had thereby affirmed it:—
Held, (i) that by his notice to complete the vendor
had made manifest his own refusal to answer the
requisition in question, and that this amounted to
a sufficient breach of his obligation to entitle the
purchaser to rescind, who had done so in the clearest
possible terms ;
thereafter the parties could not
revive the contract unless it was by something which
amounted
to a new agreement between
them,
because an effective rescission brought the contract
to an end.
(2) That the relief sought by the summons was not
inconsistent with that position, since at all times the
purchaser had regarded the contract as having been
validly rescinded. Accordingly, the purchaser had
effectively rescinded the contract and was entitled
to the repayment of the deposit with interest at
4 per cent, from May 5, 1961, until repayment.
(In re Stone and Saville's contract. I.
Weekly Law
Reports,
1962, page 460.)
Trust and trustees—remuneration of trustees—professional
charging clause—reasonable remuneration of professional
trustees—beneficiaries right to have an account of the
amount of the charges
The trustees of a testator's will were his widow,
an accountant and a solicitor and the will contained
the usual professional charging clause.
Costs
amounting to £1,983 175. 3d. and £3,072 were paid
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