Donatio Mortis Causa.

questions by him, she never told him that she was claiming the deposits as a gift. It was not till April 12th that the solicitors instructed by her conveyed her claim to the administrator, and the facts on which the claim was based were never presented to the administrator till the hearing. This fact has caused me some little difficulty, but, after full consideration, I do not think it would justify me in regarding her evidence and that of Emily Grimwood and William Affleck as being concocted or inaccurate.

I therefore decide in favour of the claimant, but the administrator is entitled to his costs of these proceedings as between solicitor and client out of the fund and he is also entitled, in my opinion, to his costs as between solicitor and client of obtaining administration, including the amount he has had to pay for duty. If it had not been for the existence of these deposits, which, as far as he knew, formed part of his wife's estate, he need never have taken out letters of administration at all. I understand that the solicitors to the parties are prepared to agree these amounts, and when they have done so, I shall award accordingly.

The Treasury fees and my expenses of the hearing will also come out of the fund."

Award that there be paid out of the deposits to the Chief Registrar the Treasury fees of 31. and 31. 3s. Od. and 5l. Os. 7d. for his expenses, a total of 11l. 38. 7d., to Messrs. Wilson & Bullough, as solicitors of John Dootson, 35l. for the costs of these proceedings and of letters of administration to the depositor's estate, and that the balance of the deposits and the deposits on Special Investment account be paid to Nancy Jane Grimwood.

Solicitors for the applicant: Baucher & Vincent, Wigan.

Counsel for the administrator: Essenhigh, instructed by Wilson & Bullough, Wigan.

Jurisdiction.

Jurisdiction of the Registrar-Savings Bank (Barrister) Act, 1876, Section 2-husband and wife--claim by husband to wife's deposits as being his property.

Frances Emily Cuddeford. Post Office Savings Bank, 1007.

Hearing and award, 29th May.

The written judgment of the Chief Registrar was as follows:The deposits are claimed by Henry Cuddeford, husband of the depositor, as his property.

Counsel for the depositor took a preliminary objection to the hearing on two grounds --1. That Section 17 of the Married Women's Property Act ousted the jurisdiction of the Registrar, citing In re Married Women's Property Act, 1882, [1917] 2 K.B. 72. In my opinion this case has no bearing on the matter, as it merely decided that when the application was made under the section to the High Court, the judge could not refer the matter to an official referee for trial. In my opinion the section is merely an enabling section and leaves any other remedies a husband or a wife may have previously had against a wife or a husband untouched, including proceedings before the Registrar.

2. That the Savings Bank (Barrister) Act, 1876, Section 2, only transferred to the Registrar the powers and duties relating to any dispute

Jurisdiction.

between the Postmaster-General and "any depositor or person claiming through or under a depositor" and this was not such a dispute. I am of opinion that the words, though not very apt, were intended to operate as a transfer of all the powers of hearing disputes formerly vested in the barrister appointed to certify the rules of savings banks, and those powers by the terms of the Savings Bank Act, 1844, Section 14, covered such. a dispute as the present one under the words " any person claiming to be entitled to any money deposited in such savings bank." It is absurd to suppose that the intention was to pick out certain classes of disputes and transfer them from the barrister to the Registrar, who was in fact the same person under a different name, and to leave the other disputes to be heard by "such persons as the Treasury from time to time appoint" under subsection (2) of the same section or to leave them with no one at all to hear them. Further, the Friendly Societies Act, 1875, Section 10 (4) transferred to the Registrar all the other functions and powers of the barrister, and this makes it still more unlikely that the intention of the Act of 1876 was such as Counsel contended. But if the contention were well-founded, the matter could at once be put right by the Treasury's appointing the Registrar to hear any disputes which were not included in the transfer, and the point is therefore not one of practical importance. [See Note.]

I therefore dismiss the preliminary objection and proceed to decide the case on the merits.

The deposits admittedly consisted of savings from the husband's earnings. They were brought home by him week by week, when he was earning substantial sums as a sub-contractor, in sums of 51. or more, in addition to the regular sum of 21. 10s. Od. per week which he allowed his wife for housekeeping. The wife alleges that when he handed her the money he said "There, Kate, that's yours," but she admits that as recently as April last he reckoned up the money to see how much he had got. The method in which the money was kept seems to me to negative the idea that it was intended as a present to the wife. It was kept in Treasury notes in a cover under the oilcloth beneath the bed. It was not in the custody of the wife any more than it was in the custody of the husband. It was kept in a room common to both where both had access to it. That being so, the presumption that there was a gift from the husband to the wife does not, in my opinion, arise. Neither does the fact that the money is now in a deposit account in the wife's name assist her case. It was put in by the wife during the husband's absence from home and without his knowledge and consent. The case bears no resemblance to those cases where money is placed by the husband in an account at a bank in the name of his wife.

It is quite clear to me that this money was not intended as a present to the wife, but was saved either for domestic or business purposes for the benefit of both spouses. The parties have now separated under a justice's order and if the whole of the 2007. had still been in the Bank, I should probably have thought it equitable that, the marriage having come to an end for all practical purposes, the common fund should have been divided between the parties. I am spared this decision, as the wife has already drawn out half the deposits and they are outside my jurisdiction. I therefore award the other half to the husband, and make no

Jurisdiction.

order as to costs except that the Treasury fee shall come out of the deposits.

Award accordingly.

Solicitors for husband: W. T. Ricketts & Son.

Counsel for wife M. Margolis, instructed by C. Butcher and Simon Burns.

NOTE. A warrant for this purpose was given by the Treasury on December 12th, 1924, and is printed on page 2 of this Report.

Marriage, Deposits made in Contemplation of.

Claim by depositors to sums of money deposited in their joint names in contemplation of their marriage.

Sarah Rosen and Hyman Cohen. London Savings Bank, 50l. 12s. 6d. and 4561. 15s. special investment department.

Hearing, 14th October; Award, 18th October, 1924.

The Chief Registrar's written judgment was as follows:

The deposit in the ordinary branch was supplied by Max Cohen, father of the depositor Hyman Cohen, and that in the special investment branch by Soloman Rosen, father of the depositor Sarah Rosen.

The depositors, Hyman Cohen and Sarah Rosen whose first name is Leah, not Sarah, were introduced to one another by a friend of both of them on February 2nd of the present year. Their parents are described on their respective letter headings, Cohen as "wholesale manufacturer, maids' and women's mantles and costumes" and Rosen as " Ragsman and job buyer."

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It was suggested that a match between the two young people would be a good idea and Rosen, partly perhaps with the notion of bridging the gulf that yawned between the wholesale manufacturer and the ragsman, and partly perhaps from what appears to me, after seeing the parties, to have been an entirely topsy-turvy estimate of the respective merits of the progeny of the former and the progeny of the latter, conceived the notion of depositing 450l. in the joint names of the intended spouses as against 50l. to be deposited by Mr. Cohen the elder.

Young Mr. Cohen's evidence is that Mr. Rosen said he would give a present of 450l. " to me and the young lady." Miss Rosen deposed that the money was to be for them if they married. I do not think there is any real difference between these two statements. It is perfectly clear that the money put up both by Rosen and by Cohen was intended to be, in the first place, an encouragement to the depositors to bring off the hoped-for engagement and, in the second place, to provide them with something to go on with, when they were preparing for marriage and after marriage. That is why the two sums of money were placed in an account in the joint names of the two expectants on February 26th, 1924.

Miss Rosen was employed in business for 12 hours a day between Monday and Friday, and for a shorter period on Sundays. When he saw her on Saturdays and the remaining portion of Sundays young Mr. Cohen does not appear to me to have been a very ardent wooer. He alleges that he spent about 1007. on her in three months or so, in motor rides, cinemas and other pleasures. This, as his wages from his father were only 31. 10s. per week and as his father had not displayed any

Marriage, Deposits made in Contemplation of.

conspicuous generosity in contributing to the joint deposits, seems to me a somewhat surprising statement. I am inclined to believe the young lady, who puts a very much lower figure on the expenditure and states that young Mr. Cohen's contribution to their joint entertainment consisted mainly in sitting around with her at her own home.

It is admitted, however, that he gave her a white fox fur, a necklace and what he called " a few handbags," the total value of these presents being put by him at 271. He also claims in respect of a somewhat curious item, namely 10s. which was deposited in respect of rooms booked at Margate for August Bank Holiday and forfeited because, in the events which happened, the rooms were not occupied. Hyman paid the deposit and Leah recovered it.

I think a fair sum to set against these items is 251.

I have said that the young couple spent a large part of their time at the young lady's home, but this propinquity scarcely had the normal results which might have been expected of it. In the month of May, 3 months after the first meeting, and nearly three months after the first deposit, we find Miss Rosen, quite naturally, urging Mr. Cohen to convert this still somewhat casual acquaintance into engagement. They agree that this was so. The result of this, according to him, was that, although he did not know what the size of her finger was and had taken no steps to find out, he went off to a suitable jeweller and bought two rings at the price of 155l., and presented them to her, whereupon she told him to take his rings away and himself with them and never had any more to do with him. He subsequently took the rings back to the jeweller and was paid only 1351. for them. A receipt of both the transactions was produced. She, on the other hand, deposed that she never was offered any rings and never saw any rings. Her father's evidence is that he also was wondering why no ring had been produced and asked young Mr. Cohen's mother, who is an invalid, about it, and she said business was so bad they could not afford a ring at present.

Mr. Cohen's story strikes me as highly improbable. He admits that the girl was urging him to become properly engaged to her, and, if so, it is most unlikely that as soon as he had done what she asked and presented her with two rings which were, and I have no doubt looked thoroughly expensive, she should have declined to have anything more to do with him or his rings. And even if she had and the rest of his story is true I do not feel much sympathy with a young man, who buys rings far beyond his means and then when they have been rejected owing to his own antecedent tepidity, loses money, either himself or vicariously through his father, upon them. I decline to consider his

claim in respect of this sum.

On the main issue, there was an interesing discrepancy between young Mr. Cohen and his solicitor as to the nature and extent of his claim. I have no difficulty in understanding the former's view. He wants his 501. back and in addition half the 4501. as damages for breach of promise. The claim as formulated by the solicitor I find more difficult to understand. First, he maintains that a completed gift cannot be revoked. Even if that proposition be accepted at its widest and without exception as being true, it does not help his client. The result would be that the deposits would remain where they are till the death of one of the depositors, when it would pass to the other.

Marriage, Deposits made in Contemplation of.

The next proposition is that a completed gift made with the hope of bringing about an engagement cannot be recovered, and for this the curious case of Robinson v. Cumming, 2 Atk. 409, is cited. The judgment of Lord Hardwicke L.C. in that case is as follows:

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If a person has made his addresses to a lady for some time, upon a view of marriage, and, upon reasonable expectation of success, make presents to a considerable value, and she thinks proper to deceive him afterwards, it is very right that the presents themselves should be returned, or the value of them allowed to him but, where presents are made only to introduce a person to a woman's acquaintance, and by means thereof to gain her favour, I look upon such person only in the light of an adventurer, especially where there is a disproportion between the lady's fortune and his, and therefore, like all other adventurers, if he will run risques, and loses by the attempt, he must take it for his pains."

That judgment obviously has no relation to the facts in the present

case.

He further suggests that the " gift" must be regarded as having been made in equal shares.

In my opinion there was no "gift." I have already described the purpose with which, in my opinion, the money was deposited by the two fathers and this differentiates the case from the last authority to which my attention was drawn, Jeffreys v. Leek, which appears only to be reported in 153 L.T. Journ. 139. There after the plaintiff's daughter and the defendant had got engaged, a motor car was bought to which the plaintiff contributed 2501. and the defendant's father 721. The defendant broke off the engagement, and the plaintiff demanded the return of the car or 250l. The defendant alleged that the 2501. was a gift and claimed to retain the sum. Judgment was given for the plaintiff, on the ground that the gift was given in contemplation of marriage and the defendant broke off the engagement.

In the present case, in my opinion, there was never any engagement. There was no breach of promise of marriage, because there was no promise. The young people, when it came to the point, did not get engaged. The purpose for which the money was deposited entirely failed, and the deposits and interest are repayable to the respective persons who made them, subject to the return to Hyman Cohen of the presents which he made to Miss Rosen, or their value, which I assess at 251., and I award accordingly. The Treasury fee for the award will be deducted proportionately from the two portions of the fund.

Award that from the deposits standing to the credit of Sarah Rosen and Hyman Cohen in the ordinary branch and in the special investment department the Treasury fee of 51. be paid and that out of the balance the sum of 50l. 4s. 9d. be paid to Max Cohen, father of the depositor Hyman Cohen, and, if the white fox fur, the necklace and the two bags given by the depositor Hyman Cohen to the depositor Sarah otherwise Leah Rosen be returned to him within ten days of the date of this award the sum of 4521. 28. 9d. to Solomon Rosen father of the said depositor Sarah otherwise Leah Rosen; but if such presents be not so returned the sum of 251. to the depositor Hyman Cohen and the sum of 4271. 2s. 9d. to the said Solomon Rosen.

Solicitors for Hyman Cohen: Palmer and Robinson.