K*i« Wwsi Olorn^U Ham i>rl|nol SJibrarg iiaratiaU Equttg QIaUcrtton (Stft of S. 31. iiarHljaU. iC.SI. 1. 1894 CORNELL UNIVERSITY LIBRARY 924 085 504 797 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085504797 INDEX REPORTED CASES EQUITY. AN INDEX TO THE REPORTED CASES NOT OVER-RULED OR OBSOLETE, AND TO THE STATUTES, EULES, AND ORDERS KELATING TO THE PRINCIPLES, PLEADING, AND PRACTICE or THE COURTS OF EQUITY IN ENGLAND & IRELAND AND OF THE EQUITABLE JURISDICTION OF THE HOUSE OF LORDS AND PRIVY COUNCIL. FROM THE EARLIEST TIME DOWN TO THE YEAR 1850. By JOHN JAGOE, Esq. BAKKISTEK-AT-LAW. VOL I. LONDON: BUTTERWORTHS, 1, FLEET STREET; STEVENS & NORTON, 26, BELL YARD, LINCOLN'S INN; Itotn IBoofeseHera anU ^uSltsIjers, AN'D SIMPKIN, MARSHALL, & CO., STATIONERS' HALL COURT. DUBLIN : HODGES & SMITH, GRAFTON STREET. 1861. LONDON : PRINTED BY M, AND "VV. COLLIS, 52, BOW LANE, OHEAPSIDE. TO THE RIGHT HONOURABLE THOMAS BARON TRURO, LORD HIOH CHANCELLOR OF ENGLAND, Eijig WiQtt (WITH HIS LORDSHIP'S PERMISSION,) MOST RESPECTFULLY DEDICATED, By HIS VERY OBEDIENT AND OBLIGED SERVANT, JOHN JAGOE. PREFACE. An Equity I^dex being much required, I have been induced to prepare the present Work ; and at the desire of many professional friends, who consider it would be inconvenient to delay its publication until all the volumes are completed, I give the latest Keported Cases, in the First ; and, though many believe it unnecessary to index the earlier cases ; those of importance, and decisions on the principles of Equity, will appear in the Third Volume ; were all the cases given without a selection, much useless matter would be printed, as the rejected cases are sufficient to fill a good-sized book. The more recent cases being in one volume, and the remote ones in another, will, I hope, be satisfactory to the profession at large. Volume II. embraces the Practice to Michaelmas Term. The Work is systematically arranged, and the distinction between the cases so carefully drawn. IV PEEFACE. that a great number of sub-divisions are necessarily under each principal heading. In Volume I., the cases reported in the House of Lords are first, followed by those of the Privy Council and the decisions of the Courts of Chancery in England and Ireland, the Kolls, and Vice Chancellor's Courts, according to their respec- tive precedence. The later cases are generally classed before the earlier. This volume contains a digest of all the decisions during the periods when Lords Lyndhurst and Cottenham were Chancellors of England, and Lord Plunkett and Sir Edward Sugden, Chancellors of Ireland. In the Second Volume, which contains Pleading and Practice, the cases are differently placed, — as those of the English Courts of Chancery are before the decisions of the Irish Courts of Chancery and House of Lords. The advantage of distinguishing the practice of the different Courts from each other, must be apparent ; as an intermixture would lead to confusion. The Rules, Orders, and Statutes relating to the Pleading and Practice of the English Courts of Chancery in many instances, are given in extenso, and precede the Practice Cases. The Eules, Orders, and Statutes unconnected with Practice, are in the first volume, before the cases to which they belong. PREFACE. V A Digest of the Rules, Orders, and Statutes of the Irish Courts of Chancery and the Standing Orders of the House of Lords, are at the end of Practice. The Bankruptcy Practice has been omitted, as the recent alterations in the law render it impos- sible to give a practice that could be depended upon, as the greater part of the cases have been decided on the repealed statutes ; — the settled Bank- rupt Law is given, under the headings with which it is connected The First and Second Volumes are perfect in themselves, and, include the peidods when the most important changes have taken place in our laws and in the Practice of Courts of Equity. The Table of Cases for the first and second volumes is printed in the second, and, for facility of reference, doubly indexed. The labour and difficulty of preparing a work of this kind will, I hope, be received by the Profession as an apology for any errors which may have escaped observation. J. J. London, 1851. ABBREVIATIONS and REFERENCES. Anon . . Anonymoiu':. Att. Gen. Attorney General. Beav. Beayan's Reports. Beav. Od. Beavan'a Orders. Ch. . Chancellor. Clk. & Fin. Clerk and Finnelly's Rep. Coll. C. C. . . CoUyer's Chancery Cases. Co. . . . Company. Con. & L. . . Connor and Lawson's Rep Corp. . Corporation. Cr. & Ph. Craig and Phillips' Rep. De G. & S. . De Gex and SmaU's Rep. Dru. & W. Drury and Warren. Dru. & "Wal. . Dniry and Walsh. E. . . . England. Eq. Kep. . Equity Reports. Fl. & K. Flanagan and Kelly's Rep. Gen. Ord. . General Order. G. B. . Great Britain. HaU & T. . . HaU and Twell's Rep. Hare Hare's Rep. Husb. & Wife . Husband and Wife. I Ireland, Vlll. Jones . . Jones' Rep. Jon. & Ca. Jones and Gary's Kep. Jon. & I.. . . Jone.s and Latouche's Rep. Jon. & T. Jones and Townsend's Rep. Jur. . . Jurist Digest. Keen Keen's Rep. Long. & T. . . Longfield and Townsend's Rep. Ld. Chan. Lord Chancellor. Mac. & Gor. . . Macnaughten and Gordon's Rep Mo. . . . Moore's Reports. * M. E. . Master of the Rolls. My]. & Cr. Mylne and Craig's Rep. Myl. & K. . Mylne and Keen's Rep. N. S. . New Series. Ord. . Order. Phil. Phillips' Rep. PI. . . Pleading. Pr. . . . Practice. Qu. . . Qusere. Semb. Semble, it seems. S. . . . . Scotland. S. C. . Same Cast. Sim. Simons' Rep. U. K. . United Kingdom. Vend. & Purch. . Vendor and Purchaser. V. C. E. . Vice Chancellor of England. V. C. . Vice Chancellor. Y. & C. . Younge and CoUyer's Rep. The Second Volume will give the Pleading and Practice Cases, and the Rules, Orders, and Statutes, including those of the last Session of Parliament, and the Rules founded on them, with the table of cases for both volumes, forming a complete Equity Practice : — So that the First and Second Volumes are, in themselves, a perfect work, invaluable to Equity Practitioners, and to those who have Chitty's Equity Index, as they continue that work to I80O, This Volume is unavoidably postponed in order to insert the Chancery Orders of the 2nd November, and wiU be Published in a short time. The Third Volume, containing the early decisions which relate to the Principles of Equity, not over-ruled or obsolete, will be ready for delivery durinc; the Eu-iter Teriu. TABLE OF TITLES, WITH ALL THEIR DIVISIONS AND SUBDIVISIONS. ABANDONMENT. — See Pr. Abandonment. — Pr. Motion. — ^Pk. Costs. — ^Insubanoe, — Vend. & Pdboh. ABATEMENT - - -^ — See Pb. Abatement and Revivoe. ABSCONDING. — See Pe. Absoondino. — Defendant.^- Pb. Pko Confesso. ABSOLUTE INTEREST — See Intebest, vested. — Settlement. ABSTRACT. — See Vend. & Puboh, ACCEPTANCE. — See Releasb.- -VeND. & PCROH. — ^TErST. ACCESS. — See ADtTLTERiNE Bastabdt. ACCOMMODATION BILL. — See Bill of Exchange. ACCOUNTING PARTY. — See Pe. Mastbb. ACCOUNT .... — See MoETGABE. — Trustee. — Limita- tions, Statute op. — Pb. Dboebe. — Fb. Receitbb. I. — Generally ... II. — Meroha/nU III. — When, decreed to be taken - IV. — When Opened, and how far back V. — When Reviewed VI. — Inspection of Books of VH. — Dismissal of Bill for yjH.— Practice - IX. — In the Master's Office ACCOUNTS. ■^ See Pr. Preliminabt Accounts. ACCRETION 10 ACCRUER — See Legacy. ACCUMULATION — See Remoteness. — Infant. ACKNOWLEDGMENT — See Limitations, Stat. of. — Moetsage. ACQUIESCENCE — See Equitable Waste. — Laches. ACTION AT LAW. — See Pb. Issue. ACTION TO SET ASIDE ILLEGAL GRANT OF CROWN LANDS ACT OF PARLIAMENT — See Statutes. — Railway Company. — Joint Stock Company, ADDITIONAL LEGACY.. — See Legacy. ADEMPTION. — See Legacy. ADMINISTRATION. — See Executor and Administrator. ADMINISTRATION OF ASSETS. — See ExEOUToa and Administrator. ADMISSIONS — See Pr. Evidence. — Copyholds Answer. ADMIRALTY COURT ADULTERINE BASTARDY ADVANCEMENT — See Parent and Child. ADVANCING CAUSE. — See Pr. Advancing Cause. ADVERSE POSSESSION — See Limitations, Stat. op. — Mortgage. b 10 11 13 13 - 16 -Pr. 17 TABLE OF TITLES. ADVERTISEMENT - ADVOWSON. — See Ecclesiastical Law. AFFIDAVIT. — See Pk. Aitidavit. AGENT. — See Principal and Agent. AGREEMENT 18 - 18 — See Marriage. — Husb. & Wife. — Settlement. — Solicitor and Client. — Frauds, Stat. op. — Pr. Injunction. — Principal and Agent. — ^Vend. & PuROH. — Debtor and Creditor. I. Generally - - - 18 II. When Time is Material • 20 III. Validity of 21 IV. By Letter - - - 21 V. By Fraud - 22 VI. Construction - 22 VII. Part Performance - 24 VIII. What is a Sufficient Signing - 25 IX. Refusal of Court to Interfere • 25 X. Parties Liable - - 25 XI. Waiver of - 25 XII. When Voluntary - 26 XIII. Interest, When Payable on Sum Decreed - - 26 XIV. When Revoked - 26 XV. Satisfaction of - - 26 XVI. Consideration - - 26 XVII. In Contemplation of Marriage - 27 XVIII. Specific Performance, When Decreed 27 XIX. Specific Performance, When Refused 28 ALIEN - - - - 31 — See Foreign Law. ALIENATION - - 31 — See Husb. & Wife. — Will. ALIMONY. — See Husb. & Wipe. ALLOTMENTS ALLEGIANCE - — See Foreign Law. AMENDMENT - , — See Pr. Bill. ANNUAL RESTS — See Pr. In the Master's Oppice. — Interest. ANNUITY. — See Vend. & PracH. — Election. I. Annuity Act II. Memorial III. When Incomplete IV. Arrears and Deductions from V. Interest on Arrears of - VI. Principal Grantor or Surety VII. Construction of - - VIII. Election - IX. Agreements for Payment of X. Apportionment XI. Cum,ulative - - - XII. Trustee of. How Bound Xm. Redemption of - XIV. How Affected by Stat, of Limitations XV. When Usurious 32 32 32 32 32 33 33 33 33 34 34 36 36 37 37 37 37 38 38 - 39 XVI. Fund, When Insufficient - 38 XVII. What Tax Subject to - 38 XVIII. Substitution of - 3° XIX. Annuitants - - - 38 ANSWER. — See Pl. Answer.— Pb. Answer. ANTICIPATION CLAUSE. — See Husb. & Wipe. — ^Alienation. APOTHECARY APPEAL. — See Pe. Appeal. — Pr. Staying Pro- ceedings. APPEARANCE. — See Pb, Appearance. APPLICATION of PURCHASE MONEY. — See Vend. & Pubch. • APPOINTMENT. — See Power. — ^Trustee. APPORTIONMENT - APPRENTICE - APPROPRIATION - ARTICLED CLERK ARBITRATION AND AWARD — See Limits., Stat. of. — Compensation I. Arbitration II. Award 1. When Enforced 2. When Set Aside 3. When Revoked 4. When made a Rule of Court - 5. Under Inclosuie Acts ARREARS. — See Annuity — Interest. ARREST. — See Pe. Areest. ASSETS. — See Executor and Administeatoe. ASSIGNEE. — See Insolvent. ASSIGNMENT — See Mortgage.. — Husb. & Wife. — For- feiture. — Notice. — Priority — Chose IN Action. — Insolvent Debtor. I. When Valid II. When Void - III. Equitable ... IV. Notice V. Pendente Lite ... VI. Voluntary ... ASSIGNEE OF DEBT ATTACHMENT. — See Pr. Attachment. — Pr, Contempt. ATTORNEY.GENERAL - - 46 — See Charity. AUCTION - . .46 — See Vend. & Purch.— Pr. Sales Judicial, 39 40 40 41 41 41 42 42 42 42 43 43 43 43 44 44 45 45 45 45 TABLE OF TITLES. lu AUDITOR - AUTHORITY TO SUE. — See Pb. Authoeity to Sue. BANK - I. Of England II. Of Ireland - III. Joint Stock 1. Generally 2. Parties to Suit IV. Banlcer and Customer - - 46 46 46 46 46 46 48 48 BARON AND FEME. — See HusB. & "Wife. BEDFORD LEVEL ACT - - 60 BARRISTER AND CLIENT . 50 — See Ph. Counsel. BENEFICE. — See EooiEsiASTicAL Law. BIDDINGS. — See Pk. Masteb's Oppicb — ^Pk. Biddinos. BILL IN EQUITY. — See Pl. Bill. — Pa. Bill. BILL OF COSTS. — See Pk. Costs. BILL OF EXCEPTIONS. — See Pr. Bill op Exception«. BILL OF EXCHANGE - - 50 BILL OF LADING. — See Ship. BILL OF SALE. — See Ship. BOND - . . -53 — See PBJaioiPAL& Surety — Partnership. I. Void at Law when enforced in Equity 53 n. Joint and Several - - 53 III. Concealment - - 53 IV. Void - - - - 63 V. Interest on - - - 63 VT . When Estate discharged from - 53 Vn. Lost ... 54 Vm. Rights and Liaiilities of Sureties - 54 IX. Generally - - - 65 BONUS - - - -65 BOOKS _ . - 56 — See Partnership. BOTTOMRY BOND. — See Ship. BROKER - - . .66 BUILDING SOCIETY - - 56 CANAL SHARES - - - 57 CANONRY. — See Ecclesiastical Law. CARRIER . - - -57 CAVEAT — See Patent. 71 71 71 72 CHAMPERTY. — See Maintenance and Champerty. CHANCERY JURISDICTION. — See Jurisdiction. CHARITY - - - 67 — See Trust — Corporation. I. Oeneratty - ■^ - 67 II. Jurisdiction of Court - 69 III. Scheme - 60 IV. Cy Pres - . 63 V. Valid Bequest for - - 63 VI. Void - _ - 64 VII. Mortmain - - - 64 VIII. Leases of Property of - 66 IX. Statute of Limitations -■ 66 X. Application of Revenue of - 66 XI. Trustees and Trust - 68 XII. Information and Petition - 69 XIII. Parties to Charity Suits - - 70 XTV. Notice _ , 70 XV. Legacy Duty ~ - 70 CHOSE IN ACTION - . 70 — See Settlement — Husb. & WipEh I. Generally II. Reduced into Possession - m. Not Reduced into Possession - CHURCH. — See Ecclesiastical Law. COLLEGE - - .. — See Charity. COLONIAL LAW. — See Foreign and Colonial Law.. COMMISSION. — See Pr. Commission to take Answer. — Pb. Commission to examine Wit- nesses. — Lunacy. — Pr. Partition. COMMITTAL. — See Pr. Attachment. — Pr. Contempt. COMMON - - - - 72 COMPANY. — See Railway. — Joint Stock Company. — ^Insurance. — Bank. COMPENSATION - - - 72 COMPOSITION DEED. — See Debtor and Creditor. — Deed: COMPOUNDING A MISDEMEANOR - 73 COMPOUND INTEREST. — See Interest. COMPROMISE - - - 73 — See Family Aeranoement. — Public Policy. CONDITION - - - 73 — See Deed. — Portion.. CONFESSION. — See Evidence. CONFIDENTIAL COMMUNICATIONS. — See Pr. Production op Documents. — Solicitor and Client. IV TABLE OF TITLES. CONFIRMATION - - - 74 — See Estate. — Powee. — Deed. CONSIGNOR AND CONSIGNEE - 75 — See CABmEB. CONTRACT. — See Agbeement. CONTRIBUTION - - - 75 See Heib. — Estates. CONVERSION - - - 76 — See Paktnebship.-Revooation.-Whl. I. Generally ■ 76 II. Into Personalty 77 III. Into Real Estate - - 78 IV. Failure of 78 CONVEYANCE. — See Deed. COPYHOLD 79 — See Settlement, Voluntauy. I. Admission to 79 II. Partition of - 79 III. Will of 79 IV. Mortgage of ~ - 79 V. Evidence - . - 80 VI. Custom - 80 COPYRIGHT - 80 CORPORATION - 80 I. Property of - 81 II. Municipal Officers - 82 III. When Trustees far Charitable Uses 83 IV. Breach of Trust by - 84 V. Municipal Elections 85 VT. Construction of Charter - 85 VII. Generally ... 85 VIII. Suits by and against - 85 COUNSEL. — See Pe. Codnsel. — ^Barrister. COVENANT - . 86 — See Lease. — Moetgage. — Limitations, Stat. op. — Vend. & Pueoh. — ^HusB. & Wife. I. Generally - . - 86 II. For Quiet Possession - -87 in. For Title . - 87 IV. Running with Land - - 88 V. When Oppressive - - 88 VI. To Renew ... 88 VII. To Produce Documents • - 88 VIII. To Stand Seised - - 89 IX. Breach of - . - 89 X. In Farm Lease and not to Burn - 90 XI. To Pay Interest - - - 90 XII. To Settle - - 90 XIII. Joint and Several « - 90 XIV. Who Bound by . - 90 XV. Building - • - 90 XVI. Voluntary - - • 92 CREDITOR. — See Assignment. — ^Debtor and Ceb- DiTOE. — Limitations, Stat, op, — Pr. Creditors' Suit, CROWN — See Jurisdiction. - 92 CROWN COUNSEL. — See Pe. Counsel. CUSTOM - — See Copyhold. CY PRES - — See Chaeity.—Poetion.— Powee. DAMAGES — See Liquidated Damages. DEATH, PRESUMPTION OF DE BENE ESSE. — See Pb. Evidence. DEBENTURE CREDITORS - DEBT - - - - — See Incumbrances. — Limits., Stat. op. DEBTOR AND CREDITOR - — See Judgment. — Executors and Admi- NISTBATOES. LIMITATIONS, StAT. OP. — Estate. — Deed. — Peiokity. I. Generally - - - II. Rights of - III. Specialty Debt . . . IV. Simple Contract Debt - V. Composition Deed VI. Debt by Bank Cheque - VII. Payment - . . VIII. Satisfaction - - . IX. Letter of License - - . DEED — See Debtor and Ckeditoe. — ^Pe. In- spection OP Documents. — Settlejient. I. Confirmation of • II. Fraudulent - - . III. Equitable Deposit of - IV. Deed Poll - V. Valid Execution of - VI. Voluntary - - - Vn, Cancellation of - VIII. Construction of - EC. Void and Voidable X. Lost ... XI. Estoppel XII. Reformation and Mistake XIH. Registration of - DEFENDANT. — See Parties. — Pe. Evidence. — Pr. Contempt. — ^Pr. Dependant. DEMURRER. — See Pr. Demurrer. — Pl. Demueebr. DEPOSIT. — See EauiTABLE Mortgage. — ^Vend. & Pueoh. DEPOSITIONS. — See Pr, Inieerooatories. DEVISE ... — See Will. DISCHARGE. — See Pr. Charge and Discharge. DISCLAIMER DISCRETIONARY POWER — See Power. - 93 93 93 94 94 94 94 95 96 96 96 98 98 98 99 99 99 99 99 99 100 101 102 109 110 110 110 110 - in 113 US TABLE OF TITLES. DISCOVERY. — See Pl. Bill op Discoveey. — 'Pn,, Bill OP DlSCOVEBY. DISSENTERS - - - 112 DISTRIBUTION - - 113 — See Will. — ^Executors & Adminstks. DOMICILE - - - 113 DONA.TIO MARTIS CAUSA - 114 DOWER - - - - 114 — See Election. — Husb. & Wipe. I. When Wife not Entitled to - - 116 116 116 116 116 116 117 - 117 117 - 118 119 - 119 119 119 119 - 120 120 - 120 120 121 121 122 122 123 II. Wife Entitled to III. Parties to - - IV. Not Passing by Assignment V. Legacy in Lieu of DRAINAGE ACT ECCLESIASTICAL LAW I. Church Sate II. Clergymen - - - III. Advowson IV. Canonry . . - V. Ecclesiastical Commissioners VI. Churchwardens and Church VII. Excommunication VIII. Practice under Ecclesiastical Law IX. Bishop X. Disappropriation XI. Non-Residence within Benefice EJECTMENT — See Pe. Deceee. — Pe. Suit. ELECTION — See Husb. & Wipe. I. Generally . - • II. Construction III. Election to Sue - - - IV. When Wife bound to - ELEGIT ... 123 — See Judgment. — Pe. Pieei Facias AND Eleqit. ENGLISH CONTRACT - 123 ENLARGLNG PUBLICATION. — See Pe. Publication. ENROLMENT - - - 123 — See Pe. Eneolment. — ^Pe. Deceee. — Pe. Appeal. ENTERING APPEARANCE. — See Pe. Appeaeance. ENQUIRY. — See Pe. Mabiee's Office, EQUITABLE WASTE - • 123 EQUITABLE JURISDICTION. See JuEiSDiCTiON. EQUITABLE MORTGAGE. — See Mortgage. EQUITABLE SET-OFF. — See Set-opf. EQUITY - •< • -124 — See Ageeement. — Husb. & Wife. — Lien. — Moetgage, ERROR. — See Pe. Eeeob. ESCHEAT - - - - ESCROW ESTATE . - - . — See Absolute Inteeest. — Issue. — Vend. & Puech. — Fine. — Will. — Pe. Sales Judicial. — Inteeest, Vested. — Residue. 125 125 125 L In Fee - - 126 1. How created 127 2. Equitable - 128 11. Tail 128 1. Words which create - 129 2. Equitable Estate - 130 3. Quasi - 130 4. By Implication 130 5. Tenant in tail and remainder man - 131 6. Investment of money in purchase of 131 in. For Life - - 131 1. In Personalty _ - - 134 2. By Implication - - 135 3. When Purchaser of not bound to take - 136 4. Statutable Conveyance by Tenant 136 5. Jointuring Power by Tenant - 136 6. Tenant for Life not Protector of Settlement - - 136 7. Equitable Tenant for Life - 136 8. Purchasing Charges by Tenant 137 9. Tenant for Life and Remainder Man 137 rV. By Courtesy - 138 V, In Joint Tertancy - - 139 VI. By Survivorship - - 139 VII. In Common - - 141 VIII. In Remainder - - 144 IX. All Estate - - 146 X. Personal ... 146 XI. By Implication - - 146 XII. Charges on Real Estate - - 146 XIII. Application of Purchase-Money 149 XIV. Exoneration of - - - 149 XV. Conversion of - - 150 XVI. Waste - - - 151 ESTOPPEL - . - 151 EVIDENCE. — See Pe. Evidence. EXAMINATION. — See Pe. Commission to Examine. — ^Pa. Evidence. EXCEPTIONS. — See Pe. Exceptions. EXCHANGE, RATE OF. — See FoEEiGN and Colonial Lav. EXCHANGE OF LAND - - 152 EXCHEQUER. — See JuEisDionoN. EXCHEQUER BILLS - - 152 EXECUTORS & ADMINISTRATORS. 152 — See DiSTEiBUTioN. — ^Will. I. Liability of - . . 1.52 II.' Rights of - . 154 III. Right to retain their own Debts - 154 IV. Refusal of, to Execute Conveyance 154 TABLE OF TITLES. - 167 167 V. Not bound to continue Policy of Insurance . - - 154 VI. Taking Beneficially - 154 "VH. Compensation to - - 166 VIII. Allowance to - - 165 IX. Assent by - - - 166 X, Substitution of Debts by - 156 XI. Renunciation and Non-Proof of Will 166 XII. Generally - - 166 Xni. Limited Administration - 1 67 XIV. Ad Litem - . - 167 XV. De Son Tort - - 168 XVI. Bona Notabilia - - 168 XVII. Devastavit - - 168 XVIII. Administration Bond - - 158 XIX. Administrati 650 To Charity . - 551 Money to be Invested in Land - 552 Bequest by Married Women - 662 Specific Legacy - - 652 See also Legacy, XXI. In Restraint of Alienation • XXII. When Younger becomes Eldest Son XXIII. Testamentary Receiver XXIV. Contingent Bequest XXV. Cumulativb Legacy See also Legacy. XXVI. Taking by Substitution XXVII. After-born Children XXVIII. Construction of Words XXIX. Who Take 1. Brothers and Sisters 2. Children 3. Grand- children 4. Nephews and Nieces - 5. Husband 6. Widow 7. Aunts . . - 8. Heirs-at-law 9. Cousins . . - 10. Next of Kin - 11. Personal Representative 12. Residuary Legatees 13. Per Capita and Per Stirpes - 14. Generally 15. Servants XXX. Construction WINDING-UP ACT I. Companies Within the Act II. Companies Not Within the Act lit. Who Held to be a Contributory IV. Who May Petition V. Practice Under WITNESS - — See Pk. Eyibencb, 552 652 663 553 653 564 664 655 568 658 668 662 563 564 664 665 665 666 666 667 669 670 671 . 673 673 . 576 676 - 677 677 - 581 582 . 583 INDEX TO THE EQUITY REPORTS ABANDONMENT. See Pr. Abandonment. — Pr. Motion. — Pa. Costs. — Insurance. — Vend, and Pukch. ABATEMENT. ! Pb. Abatement and Revivor. Abatement upon a demand for rent for the hire of Slaves allowed in respect of three, manumitted under the Slave Abolition Act, but refused for the loss occasioned by the diminution of the hours of work of the apprenticed labourers, the compensation for the lessee's loss of such labour being the proper subject of a counter claim before the Commissioners of Compensation. — Albout/ v, Retemeyer, 3 Mo., 4.52. Testator gave legacies to different persons, and an annuity for the personal maintenance and sup- port of his brother, and directed the payment of it to commence on the first half-yearly day after his death, and the legacies to be paid at the ex- piration of two years after that event, or as much sooner as the circumstances of his estate would permit, but without interest in the mean time. The testator's property was insufficient to pay the legacies and annuity in fuU. Held that the annuity was not entitled to priority over the legacies, but must abate proportionably with them. — Ashbumhamyr. Aahhurnham, 16 Sim. 186. A testator covenanted upon his marriage that in case he should die in the lifetime of his wife without issue, his wife should be entitled to one- half of his real and personal property which he should die possessed of. He died without issue in the lifetime of his wife, having by his will devised his real estates subject to annuities. The widow elected to take against the wHl. — Semble. — The annuitants should abate one-half their annuities. — Jackson v. Hamilton, 3 Jon. & L. 702. The testator bequeathed all his monies in Government Stock, and all other monies to trustees upon trust to seU so much of the stock as would be sufficient to pay certain legacies, and to lay out and expend the residue of the stock. Vol. I. and all other monies and personal estate, which he should die possessed of, and which should remain after payment of said legacies, his debts, funeral, and testamentary expenses, in the pur- chase of lands. Held, that the legacies were payable out of the general personal estate, that the residue only, after pajTnent ofthem, was to be invested in land, and that the legacies should not abate in favour of the devisee of the land to be purchased.— JitcAsoB v. Hamilton, 3 Jon. & L. 702. See Pr. ABSCONDING. Absconding. — Dependant. — Pu. Pro CONPESSO. ABSOLUTE INTEREST. See Interest, vested. — Settlement. A testatrix by her will devised Blackacre to her nephew F. for life, with remainder to his first and other sons in tail male, remainder to R. and several other nephews successively for like estates ; and she devised Whiteacre to R. for life, remainder to his first and other sons in tail male, with remainders over to F, and several other nephews in the same manner. Afterwards she made a codicil, and reciting the gifts to F. and R., and declaring her wish to give to R. the property there devised to F. and vice versa. She revoked the said gifts and devised the provision by her will given F. to R., his heirs, executors, administrators and assigns in lieu thereof, devised to F., his heirs, executors, administrators and assigns the property she had by her will given to R. Held, that the limitations over in the will to the ether nephews of the testatrix were revoked, and that R. and F. respectively took absolute interests in their gifts. — Murray v. Johnston, 3 Dm. & W. 143. A testator devised lands of which he was seized pur auter vie to his nephew J. C. for life, and then proceeded thus : " and from and after lus decease I give and devise the same unto the B ABSOLUTE INTEREST. issue male and female of the said J. C, now begotten or to be begotten on the body of his pre- sent ■wife, to be divided between and amongst them in such manner, shares and proportions as the said J, C. shall by his last will limit and ap- point, subject nevertheless to the provisions hereinafter particularly mentioned, viz., that the said J. C, his heirs, executors, administrators and assigns, and the persons who shall become entitled thereto under this my will shall and will pay the head landlord's rent of the said lands, and shall and will yearly and every year during the continuance of the lease pay or cause to be paid to S, his heirs, or assigns, one yearly annuity or sum of £40. j. C. did not duly exercise his power of appointment. Held, that J. C. took an estate for life only, and that his issue took abso- lute interests as tenants in common as purcha- sers, and that the words " issue male and female " meant sons and daughters, or the first line of issue. — Crazier v. Crazier, 3 Dru. & W. 373. Bequest to a daughter of £1000 stock and £70 a-year for life, which two sums were to be under the trust of the executors, and not to permit her to assign " her said annuities " and pay the inte- rest from the £1000 to her for life, and at her decease to divide it between her children. Held, that the daughter took for life only and not an absolute interest, subject to be defeated by the interests given to her children. —Seawin v. Watson, 10 Beav. 200 Distinction between an absolute bequest with a subsequent gift in derogation, and a limited bequest followed by a subsequent restricted gift over. In the former case the absolute gift re- mains upon failure of the subsequent gift, but in the latter the limited bequest is not enlarged by such an event. — Id. A testator gave the interest of his residuary estate to his mother for life, and afterwards one- half of the interest to his brother, and one-half to his sister. Upon the death of the sister the capi- tal was to go to her children, if any, and if not, to his brother. Upon the death of his brother the capital was to go to his children, the sister died without children. Held, that the children of the brother took no interest in her moiety. — Tatnall-v. Tatnall, 10 Beav. 509. Testatrix bequeathed a leasehold house and £3,000 stock to trustees in trust to permit her daughter to receive the rents and interests for life for her separate use, and from and immedi- ately after her daughter's decease she gave the rents and interest to the heirs of the body of her daughter lawfully begotten, but in case her daughter shotdd happen to die without leaving any lawful issue at the time of her decease, she gave the house and stock over. Held, that the daughter took the property absolutely, — The Earl af Verulum v. Bathurst, 13 Sim, 374, A bequest of £2,000 to A., and in the event of her death without children to her heirs, the nearest relation to her grand aunt A, Held, that A. took an absolute interest, — Yearwaad v. Year- wood, 9 Beav. 276. A testator bequeathed his residue to his three sons in trust to be divided between his three sons and his daughter, and he directed his daughter's j share to be kept in the hands of his sons, for her " or " her children's sole use, free from the con- trol of her husband. The daughter survived. Held, that she took absolutely. — Whitcher v, FenUy, 9 Beav, 477. A testator gave fourteen Phoenix shares on trust to pay the produce of ten to his daughters for life, and afterwards to his son, and afterwards to the son's " children ; " and he gave the other four shares to his son for life, and after- wa.rds to his children, and in default of " such issue" of his son he gave all the shares to his daughters and their " issue " share and share alike, such issue not to be entitled to or take more than their deceased parents' share. The son died without issue. Held, that the daughters took absolute interests, and that their children took only by way of substitution for their parents, and not by way of limitation or succession.^ Hedges v. Harper, 9 Beav, 479. Testator directed his trustees and executors to apply the income of his residuary estate for the maintenance, &c., of all his children, and to ac- cumulate the surplus for their benefit until the youngest should attain 21, and then to divide the capital into as many equal shares as the number of his children who should be then living should amount to, an equal share being allotted to each of them and to the issue of such of them as should be then dead, such issue taking their parents' share, the shares of such of his children as should be sons to be paid to them or their issue on his youngest child attaining 21 years, and the shares of such of them as should be daughters and of the issue of such of his daughters as should be then dead he directed to remain in the hands of his trustees upon trust to pay the interest to each of his said children being daughters during their lives, for their separate use ; and on the de- cease of each of his said daughters, or in ease any of them should be dead leaving issue when his youngest child should attain 21, then he directed his trustees to pay the share of such daughter to her issue. One of the daughters who was living when the youngest child attained 21 died a spinster. Held, that she took an absolute inte- rest in a share of the residue. — Hulme v. Hulme, 9 Sim. 644. Testator bequeathed all his property both real and personal to his son Charles, his heirs, execu- tors, &c,, to and for his and their own use and benefit, well knowing he would discharge the trust the testator reposed in him by remembering his (the testator's) sons and daughters, William, Edmund, Martha, &c. Held, that no trust was created for the sons and daughters ; but that Charles took the property for his own benefit ab- solutely, — Barsdell v, BarsdeU, 9 Sim, 319. The testator by his will desired that everything during the life of his wife should remain as it was for her use and benefit, and after her decease he gave his real estate to his male heir, and his personal estate to his children, adding that he gave the above devise to his wife that she might support herself and her children according to her discretion and for that purpose. Held, that the Widow took an absolute interest for her life in the real and personal estate. — Tharpe v. Owen, 2 Hare, 607. A testator gave a fund subject to the life inte- rest of his wife to A, B, and C, equally to be di- vided between them, " but in case of the decease of C without leaving lawful issue " he gave his one-third between A and B. Held, that upon the decease of the wife, C, who was then living, became absolutely entitled to one-third of the fund. — Barker v. Cocks, 6 Beav, 82, Devise of leaseholds in trust for A for Ufe, and afterwards to his issue male severally and respec- tively according to their seniorities, and in default to his heirs according to their seniorities, and in ABSOLUTE INTEREST.— ACCOUNT. Generally. definilt, ovor. Held, that A took an absolute in- terest. — Jordan v. LmoBy 6 Beav. 360. A testator bequeathed the residue of his per- sonal estate to his widow in trust to apply the interest and proceeds for her own use, and after her decease he gave what should be remaining of such residuary monies unto and equally among all the daughters of T, D. and their issue with benefit of siu'vivorship and accruer. T. D. had thi-ee daughters living at the testator's death, one of them died without Issue in the lifetime of the testator's widow. The two others survived the widow and had issue living at her death. Held, that the two surviving daughters were entitled to the whole of the residue absolutely. — Gibbs-v. Tait, 8 Sim. 132. Testator gave all the residue of his effects to be equally divided between his two daughters and their husbands and families. The court rejected the words "husbands and families," and held that the two daughters took the residue equally and absolutely. — Robinsonv. Wadelow,S Sim. 134. Testator bequeathed his real and personal es- tate to trustees in trust to pay an annuity to his wife, and to raise and pay to each of his children £2,000 on their attaining 21, and to accumulate the surplus income of the trust property during the life of his wife and after her death to sell the property and divide the proceeds amongst his children on their attaining 21, and in case his children should die in the lifetime of his wife or under 21 and without leaving issue, then after his wife's death to sell the trust property and divide the proceeds amongst certain other per- sons. Held, that " or " ought to be read as " and," and that the children having attained 21 were absolutely entitled to the property though their mother was living. — Miles v, Dyer, 8 Sim. 330. A testator resident abroad gave a legacy to A, ** or in case of his decease, or at his decease, to be equally divided amongst his children." He gave other legacies in similar terms to B, C, &c., and he directed these sums to be paid to the above persons then residing in Wales, and he appointed executors in trust to send them to the respective individuals within six months. Held, that the parents tookabsolute interests. — Arthur wHagJies, 4 Beav. 406. A testator directed his trustees " to raise £5000 for his daughter," and to invest " his said daugh- ter's legacy" and pay the interest to her for life for her separate use and not to be under the con- trol of any husband with remainder to her chil- dren absolutely, and he gave her the power of appointing a life interest to her husband. The will contained no ultimate limitation of the pro- perty, but charged the legacy on the real estate in case of a deficiency of the personalty. Held, that subject to the interests given to the children the daughter took an absolute interest, and hav- ing died unmarried that her personal representa- tives were entitled thereto. — Meyer v. Townsend, 8 Beav. 443. ABSTRACT. See Vekd. & Pukoh. ACCEPTANCE. See Release — Vend. & Pueoh. — TatrsT. ACCESS. See AnuLTEiiiNE BABTyVHoy. ACCOMMODATION BILL. See Bill op Exchange. ACCOUNTING PARTY. See Fa. Master. ACCOUNT. See MoBTGAGE — Trustee — Limitations, Stat. OF — Pe. DixRF.E — Pr. Receiver. I. — Generally 3 II. — Merchants 4 III.— When decreed to be taken 5 IV. — When Opened and how par back. 6 v. — When Reviewed 8 VI. — Inspection of Books op 8 VII. — Dismissal op Bill poa 8 VIII. — Practice 8 IX. — In the Master's Office 9 I. — Generally. Although a case against a railway company upon a contract may consist of matters cogniz- able at law, yet if there are complicated accounts between the company and the other parties re- spectively, a Court of Equity is more competent than a Court of Law to take them and to dispose of the whole case. Therefore when N. S. had become contractors with a railway, and S. became bankrupt, and the company refused to account with N. for the balance due, it was held that N, might file a bill against the company, and S.'s assignees for an account. — The Taff Vale Railway V. Mxon, 1 Clk. & Fin. N. S. 3. Judgment was given by competent tribunals in France against Garcias in an action brought by him against persons with whom he had been con- nected in a loan transaction, for the purpose of obtaining from them an account and payment of his share in the profits of the loan. He after- wards filed a bill in the Court of Chancery against some of the same persons, and for the same purposes charging that the proceedings and judgment of the French tribunals were contrary to justice and were not final and conclusive, and also that subsequently to the date of the said judgment further profits accrued to the defen- dants from the said loan, and he claimed a right to a share of them. Held, that a plea of the foreign proceedings and judgment set forth in substance and effect filed by the defendants to the bill, supported by averments that the matters in issue in the foreign tribunals were the same a.s the matters put in issue by the bUl covered the whole of the matters comprised in the bill and was a sufficient answer thereto. — Ricacdo v. Gar- oias, 12 Clk. & Fin. 368. An account between a hawker and his custo- mer, consisting of three items only and interest. Held not to be a proper subject for a bill in equity . —Foley V. Hill, 1 Phil. 399. Vhere ai inquiry was directed as to a particu- Generalh', ACCOUNT. Merchants. lar account, and the defendant by his answer and examination relied on a general account includ- ing both the items of the particular account and general items, but was unable to prove the gene- ral items (which were in his discharge) by the usual evidence. Held, that by such failure of proof the general account was cut down to the particular account, and that the defendant must be bound by the result, — Cropper v. Knapman, 4 Y. &C. 2,49. If the executors and trustees of a will file a bill for the purpose of having the rights of the defendants in the residue ascertained, without either praying that the accounts of the personal estate may be taken, or offering to account for it, but admitting that there is a residue, the court will declare the rights of the defendants in the re- sidue without directing the accounts of the per- sonal estate to be taken although the defendants apply at the hearing to have the accounts taken, — Blathwayt-v. Taylor, 11 Sim, 455. A, B, and C, having been in partnership to- gether, and A and C having died, a bill by the residuary legatees of A against his executor and against B and the executors of C for an account of the personal estate of A, was sustained under the special circumstances of the ease, although collusion between the executors of A and the other defendants was neither charged or proved. The case of Newland v. Chambers (1 Ves. sen. 105) considered. — Law v. Law, 2 CoU. C. C. 41. A testator gave his whole estate to trustees (to sell and after payment of debts, expenses, ;and certain legacies, to pay out of the residue ;two annuities of £400 each to P and P, and one of £20,0 to B, for their respective lives, and -for the better fulfilment of that purpose he di- rected them to vest sufficient capital sums on se- curities., and if the residue should not be suffi- .cient, to .vest whatever residue might be, and pay the dis'idends to the annuitants in the same proportions, ^.nd if more than sufficient to vest the surplus and divide it and the capital sums set apart for the annuities, as the same should become tangible by the .death of each armuitant among residuary legatees, B pre-deceased the testator. The residue did not yield sufficient income every year to pay F and P £400 each. On P.'s death, P and P s personal representatives claimed payment of all the arrears out of the then enlarged income of the residue. Held, by the Lords (varying interlocutors of the court below) that P and P were entitled to payment of £400 each only ,in those years in which the ipcome ,c^ the residue was suffi,cient, that when iji any year that income was more than sufficient the excess belonged to the residuary legateesj that on F'b death half the capital of the residue became divisible among them; and the^ P be- came entitled to the income in each year of the other half, but when in any year this income exceeded £400, the excess belonged to the resi- duary legatees, and neither P nor F's represen- tatives were entitled to any payment of arrears, — Casamaijor v. Pearson, 8 Clk. & Fin. 69. No benefit accrued to the reBiduaj:y legatees from the lapse of the annuity to B expept when thereby the income of the residue exceeded the amount of the two subsisting annuities. — Id. Bill for a partnership account and injun«3tion. Order on motion by consent to take the accounts. One of the plaintiifs afterwards became bankrupt, and the defendant filed a supplemental bill, bringing his assignees before the Court, and jiwved .tha.t the proceedings under the order might be prosecuted as well against the new aa against the original defendants. The Court with the consent of the assignees, but without the con- sent of the solvent plaintiff, in the original suit made the order. — Bitcheock v. CopUng, 4 Hare, 161. In a suit by residuary legatees of A against the personal representatives of B, who was the execu- tor of A, for payment of a debt due from B to A, the amount of which was not admitted, and also for an account of the personal estate of A, praying also unless assets were admitted an ac- count of the personal estate of B, and that being insufficient, seeking to charge his real estate. Held, that the plaintiff was not entitled to a de- claration, that a particular debt or sum consti- tuted an item in the account to be taken, but that evidence tending to shew that the defendant should be charged vrith such particular debt or sum was admissible. — Tomlin v. Tomlin, 1 Hare, 236, II. — Mekohants. A Scotchman in Calcutta opened an account with a banking and agency house there in 1786, and died in 1810, having been insane from 1793. A partner in the house being in Scotland in 1812 enclosed in a letter to the ctistomer's relatives there an account current with him from 1787 to 1810, signed by the firm, bringing out annual ba- lances in his favour composed of annual accumu- lations of India interest, the last balance expressed " to bear interest at 9 per cent, per annum." In 1835 the customer's relatives obtained adminis- tration of his estate, and prosecuted actions which had been before the conamencement in the Scotch courts on the account current against another partner who joined the firm in 1793 and continued a partner through several changes till 1820, when he retired to his estates in Scotland, and they claimed interest at 9 per cent, upon the last balance in 1810, and upon the annual accumula- tions thereof since. Held, by the Lords first, (concurring with the court below) that a debt was sufficiently constituted against the firm by the account rendered by them together with in- terest at 9 per cent, on the last balance in 1 810 down to final decree, and that one partner was bound by the account so rendered; secondly, (differing from the court below) that the debt did not carry compound interest from 1810. — Fergusson v. Fyji, 8 Clk. & Fin. 121. There cannot be a title to compound interest vrithout a contract, express or implied, or cus- tom. — Id. By the law of England a contract for compound interest is not valid, except in mercantile accoimts current for mutual transactions. — Id. The plaintiff was a commercial agent of the East India Company at Amboyna. It was his duty to send his account to Jones, the company's agent at Banda, to examine and transmit to the governor of Madras. On the plaintiffs accounts there appeared a balance of 1,325 dollars against him, but on reference to the accounts kept by- Jones of the same transactions instead of a defi- ciency, 4,771 dollars appeareddue to the plaintiff. The company then allowed the 1,325 dollars only. Held, that this was not a suiBcient admission and recognition of the correctness of Jones' accounts as to entitle plaintiff without further evidence to the 4771 dollars. — Faryuhar v. The East India Company, 8 Beav, 260. IFhen decreed to be taken. ACCOUNT. When decreed to he taken. The defendant who was a customer of and had an account with a bank was also employed hy the hank to raise money on certain Spanish bonds which he accordinrfy did, the money being afterwards recalled by the mortgagees and not paid, the bonds were sold, and the defendant re- ceived the balance and retained it without the knowledge of the bank. On a bill filed on behalf of the bank for payment of this balance, and also for a general account. Held, that although the defendant by his answer said the result of the general account when taken would be in his favour, yet he was not entitled to withhold pajTnent of the balance received by him in re- spect of the bonds until the general account should be taken, and a decree for payment of that b;ilance and interest was accordingly made, and also the decree for taking the general ac- count. — Gordon v. Fym, 3 Hare, 223. Innes consignee of a West India estate was ap- pointed trustee thereof by B, the tenant for life for tlie purpose of keeping down incumbrances. Innes was also private agent and banker for B, with the understanding that B was not, nor were his funds to be liable for advances made by Innes for the estate ; Innes becoming embarrassed was declared bankrupt, and assignees were ap- pointed. Held, by the Lords reversi g orders of the Court of Chancery on a bill filed by B and the other owners of the estate to remove Innes from the possession and management, that a sum found due trom Innes to B on their private dealings might be set off against a sum found due to Innes in respect of his advances and payments for the estaXe.—Baillie v. Edwards, 2 Clk. & Fin. N. S. 74. Certain consignments of oil were made from Columba to certain persons resident in England. During the voyage several of the casks in which the oil was contained leaked. Some part of the - oil which so escaped was wholly lost, but the greater part was collected together and sold in one mass by the captain in the course of the voyage for £750. The consignees then agreed to share the proceeds in proportion to their re- spective losses. Held, first, that a biU in equity was sustainaMe by the consignees against the ship-owner for an account of the oil lost and the oil sold. Secondly, that in an action brought by the ship-owner against an individual consig- nee for freight and average, the latter could not set off his share (as ascertained by the agree- ment) of the money arising from the oil sold ; consequently that he could maintain a bill in equity to estabUsh a right of equitable set-off. Thirdly, that several actions having been brought by the ship-owner against the consignees to re- cover freight and average they might aU join in one bill against him for an account and equitable set-off. — Jones v. Moore, 4 Y. & C. 351. The joint-ovmers of plantations in Java which they worked in co-partnership, kept an account with certain merchants and agents at Bombay, and to whom they became largely indebted in respect of monies advanced and paid for their use. Held, that the account was not a mercan- tile account within the meaning of the excep- tion in the statute of limitations. — Forbes v. Skcl- ton, 8 Sim. 335. III. — When decreed to be taken. F, and three others, W D, F D, and J D, pur- chased of J a herd of cattle in the following shares, F one-third, W D, F D, and J D two- thirds between them ; at the time of the pur- chase F and W D wrote a letter to W & Co., which, after stating the purchase, and that they had given them promissory notes for the pur- chase-money, at one and two years' date, pro- ceeded thus: " we request you to endorse theae bills for the satisfaction of Mr. J, for which en- dorsement we will allow you the usual commis- sion of £2 10s., per cent., and will for your se- curity place at your unreserved disposal the whole of the herd in question and its increase, trusting, however, that our recommendation of allowing such part of it to be disposed of as may cover the amount of your indorsements, and confiding to J D, acting under your instruc- tions from us, to remit you all the proceeds as they arise, will meet with your satisfaction." W. & Co. assented to this arrangement, endorsed the notes, and handed them over to J, at the same time F and W D wrote a further ktter to VV. & Co. as follows : " In consequence of your complying with our request, to indorse our bills for the purchase of J's herd, we hereby make over the said herd to you, requesting you to give J D instructions how to dispose of the herd and remit you the proceeds, imtil by such remittances your indorsement is covered." W & Co. in no way interfered with the sale of the cattle, nor were any part of the proceeds of the sale ever handed to them and the herd was lost. Upon a bill filed by F against W. & Co- seeking to make them liable as trustees for the loss. Held, by the Judicial Committee, affirming the decree of the Supreme Court of New South Wales, that under the above arrangement W. & Co., could not bo considered as having been in possession of the cattle as mortgagees, or as equitable assignees, and that the letter operated only as a collateral security, and that they were not liable in equity to account for the loss. The .bill, besides seeking to make the defendants liable to account for a peirticular transaction, prayed for a general account. No general ac- count, however, was asked for in the court below. ITjpon the judicial committee, alErming the decree of the court below, deciding against the Kability of the defendants as to the particular transac- tion they refused to decree a general account as it had not been asked for in the court below.^ Flint V. Walker, 5 Mo. 179. To a bill by the rector for an account of tithes agauist the owners of the manor and lands in the parish the defendants setup amodus of £13 6s. 8d. By the documents coming out of the possession of the defendants, it appeared that £13 6s. Sd.^ and also 8s. 9d. (not pleaded) had been paid by the owner of the manor and lands for different cousiderations expressed in the documents, ani at different times of the year, from 1607 until 1823, when the then owners of the fee agi-eed to discontinue the money payments, and thence- forward to pay tithes in kind. Held, that in such a case the Court would decree an account of the tithes without requiring the plaintiff to establLh his right at law either in an issue or by an action, — Haine v. Cairns, 4 Hare, 327; affirmed ojl appeal, 12 Clk. & Fin. 491. Held also that in such a case if upon the evidence the existence of the modus as pleaded were doubtful the Court would direct an issue, and not leave the plaintiff to his action at law. — Id, Semble, that the defendants were not bound by the .agreement between the rector and the last owners, but were at liberty to relieve themselves 6 TThen decreed to le taken. ACCOUNT. When opened, and how far hack. of the tithe as of an incumbrance on the estate, notwithstanding they had notice at the time of their purchase of the agreement between the last owners and tlieir rector, and of the subsequent payment of tithes in kind. — Id. BUI by a judgment creditor against the heir and assignee of the conusor, (the latter having been discharged as an insolvent shortly prior to his death), and also against an eleffit creditor of the conusor who had been in possession for many years. Held, that the plaintiff was only entitled to an account for wilful default against the eleifit creditor from the time of the filing of the bill.— MoDonnellv. Walshe, 2 Dru. & W. 252. An elegit creditor in possession is bound to account as for wilful default, upon the application of the debtor himself. — O'Brien v. Mahon, 2 Dru. & W. 306. An account of rent and mesne rates decreed under circumstances of complexity of title occa- sioned by the acts of the tenant, and in order to avoid a multiplicity of suits the bill also seeking the delivery of a deed to be cancelled, — Nixon v, Robinson^ 2 Jon. & L. 4. The plaintiff is not, as of course, entitled to a decree from an account when the defendant does not appear, but he must make out his case. — Hayes v. Brierley, 2 Con. & L. 153. A placed his son, who was much addicted to intemperance, under the care of B, a relation by marriage, and, at his death, left his son an annuity of £500. The son resided with B for several years after his father's death, and until a few years before his own death. B always accompanied him when he went to receive his annuity from his father's executors, and he as soon as he had received it handed it over to B to keep for him ; and B from time to time gave him small sums and paid his bills. Held, that B was accountable in a Court of Equity for what he had received from the son. — Terry v. Wacher, 16 Sim. 447. By A's will in 1783 his widow, whom he ap- pointed executrix, was to receive £400 a year for the maintenance of herself and their children, but only £60 a year for herself if she married again. She proved the will, and was appointed receiver of her children's fortunes. She married again in 1791, but concealing her marriage passed her accounts as widow, taking credit for the £400 a year. On her death in 1794, B, her second husband administered to her and to her first husband's estate ; and, having been also appointed receiver of the children's fortunes, passed his accounts in continuation of the widow's without acknowledging their marriage. All the childi-en having attained their majority in 1802 disputed B's accounts, which were then referred to arbitra- tion. C, the eldest of the children, married before the award was made, and one of the ar- bitrators was a trustee of her settlement. Her marriage also was concealed from the court, and the accounts afterwards passed described her by her maiden name. B paid her husband as if under the award, and in ignorance of the settle- ment, sums of money which ought to have been applied to the trusts of the settlement. Held, (reversing decrees made on a bill filed by C and her children in 1836 against B and the trustee) that all the accounts of the estate should be again taken by the master without regard to the award or to the accounts passed subsequently to G's marriage, that B's estate should be charged with the difference between £400 and £60 which his wife had received, and that consideration of the liabilities of C'a husband and of the trustee under their marriage settlement should be reserved until after the report.— JM'Co» v. O Ferrell, 8 Clk. & Fin. 30. In a suit for redemption by one judgment-cre- ditor against another in possession under an elegit, the latter will not be decreed to account for what he might, without wUful default, have received during the period of possession which elapsed previously to the filing of the bill, but merely for what he has actually received, secus where the debtor is plaintiff. — M' Donnelly. Wahh, 1 Con. & L., 388. Decree for taking accounts contingent upon a preliminary finding as to the nature of the estate. Reeve v. Attorney -General, 3 Hare, 193. Decree in legatee's suit on admission of assets without taking the accounts. — Gordon v. Scott, 3 Hare, 459, n. It is not necessary for a plaintiff in a bill for an account to submit to account himself a demurrer, on the ground of the omission of such a sub- mission ; was therefore overruled. — Clarke v. Tipping, 4 Beav. 688. rV. — ^When opened, and how pab back. When a defendant, who is himself a solicitor, by a mistake in practice, allows an account to be taken against him without objection, he is not entitled to have the accounts reopened. — Wallace V. Patten, 12 Clk. & Fin. 491. Principles as to the pleading and relief in suit* to open accounts. — The Earl of Ijucan v. O'Maltey,, 2 Con. & L. 180. A sale was made under a decree of a court of equity in 1808. In 1822 a suit was instituted to set same aside. In 1823 th« principal defendant answered the bill, but no further proceedings were had in the cause until 1839, when the suit was revived. The purchase having been set aside, the account of the rent was directed only from the filing of the bill of revivor and supplement,— Thornton v. Glover, 3 Dru. & W. 195 A lease made to a person standing in the posi- tion of a guardian, and at the same time filling the characters of agent, receiver and tenant, directed to be set aside upon the equity arising out of these relations, and upon the ground of public policy, with costs, notwithstanding that a period of eleven years had elapsed after the granting of the lease, before the institution of the suit. 'ITie account, however, was limited to the filing of the bill, by reason of the delay. — Mul- hallen v. Marum, 3 Dru. & W. 317. A lease of a term of ninety-nine years, made by a corporation to one of their own body at a gross undervalue, was set aside with costs. The lessee was ordered to account for the rents and profits since the date of the lease (1830), and it was referred to the master to approve of a scheme for the application of the rents. — Att-Gen. v. The Corporation of Cashel, 3 Dru. & W. 294. The account of rent given against a purchaser for value, who, after being in possession, is evicted by a party having a better title, ought not to extend to such rents eis, without his detault or neglect, might have been received if no special case of fraud is made against him. The decree for such an account ought to contain directions for just allowances.— ffoweZi v. Howell, 2 Myl. & Cr. 478. ' A person died intestate. His brother took out administration, and placed himself in loco parentis to the intestate's children. One of them attained When opened and ACCOUNT. how far back. 21 in September 1823, and in May 1826 came to a settlement of account with the administrator, which he signed and confirmed, and in January 1828 he received his share of the estate. In Sep- tember 1843 he filed a bill to open the account : many errors were shewn to exist in the account, some of the items of which appeared to be fictitious ; and although forty years have elapsed since the death of the intestate, — twenty years since the plaintiff attained 21, — seventeen years since the settlement of the account, — and more than two years since the discovery of errors, yet the court, having regard to the nature and extent of the errors, the relation between the parties, and the influence of the administrator over the plaiutifi', refused to limit the relief to a right to surcharge and falsify the account, — ^but set it aside altogether, and directed the accounts to be taken with special enquiries. — AUfrey v. AUfrey, 10 Beav. 353. In general, a purchaser of an equity of redemp- tion under an unregistered deed, can impeach an account taken in his absence, at the suit of a mortgagee in a foreclosure suit to which the pur- chaser was not a party, only by surcharging and falsifying. In tins case, doubts being tMOwn upon the reality of the mortgage debt, and the accounts having been taken in the absence of the mortgagor under a decree on sequestration, the whole account was decreed to be opened generally. — Quere as to Dick v. Butler, 1 Molloy 42 ; Wrixon V. Vize, 1 Con. & L. 298. In charity informations the account is some- times carried back to the date of the report of the eh;uity commissioners, — sometimes it is directed from the filing the information, — and sometimes from the decree, according to the circumstances of each case. — Att-Gen. v. The Drapers' Co., 6 Beav. 382. An account was settled and releases executed between the residuary legatees of a partner and the representatives of the surviving partner. Numerous and important errors in the account having been proved, the release was set aside ; but, having regard to the lapse of time, and the loss of books and documents, the court declined opening the accounts altogether, but gave liberty only to surcharge and falsify. — Millar v. Craig, 6 Beav. 433. An account was decreed against an executor after a lapse of nine years, notwithstanding an account settled by a mutual friend of the plaintiffs and the defendant, and admitted by the plaintiffs in 1833, but not then examined by them, or vouched by the defendant. Such account is per- fectly inoperative against minors claiming under the testator's wiE. — Purcell v Cole, Long. & T. 449. A B, the representative of a deceased partner, having filed his bill against C D, the surviving partner, for an account. A B in consideration of £500, released C B from aU claims, and the bill was dismissed. By mutual error a debt of £2000 owing to the partnership, but which was not then known to exist, was omitted in the consideration of both parties : C D afterwards received it. Held that A B, notwithstanding the release, was entitled to his share of the debt, but that to obtain it, the whole account must be re-opened. — Fritt y. Clay, 6 Beav. 503. In ordinary cases the rule is, that the estab- lishment of one mistake is suf&eient to induce the court to give a decree entitling the party to sur- charge and falsify the account. But when the lelation of attorney and client subsists, the ordi- nary rule does not prevail ; for there, though the party only allege generally that the accounts as settled are erroneous, the court will, if sufficient cause be shown, make a decree opening these accounts. — Lawless v. Mansfield, 1 Dru. & W. 557 The court refused to open accounts, though of a general and summary nature, not containing the items, and which had been rendered by a surviving partner to the representatives of a deceased partner, and had remained unquestioned for twenty-two years ; but it decreed an account limited to the subsequent receipts of the surviving partner, which it was admitted had taken place. Scott V. Milne, 5 Beav. 216. Where a bill seeks to open a settled account, some specific error must be pointed out to entitle the party to do so, even though the transactions at which the accoimt had been settled were impeached, and required subsequent circum- stances to confirm them. — De Montmorency v. Devereux, 1 Dru. & Wal. 119. When parties claiming different interests under a will have come to a settlement of their claims between themselves, although on an erroneous view of the will, the coiut will not disturb such settlement, if the means of the parties were equal in making the same. But in a case where a tenant for life of a residuary bequest, after having enjoyed for twenty-nine years the estate of the testator as it stood at his death, with the acquies- cence and by the agency of the executor, who was also the remainder-man, was induced, under an imperfect apprehension of her rights, and by an opinion of counsel on the construction of the wUl obtained by the executor upon an imperfect statement of the will and the facts of the case, to sign a settlement of accounts, founded on the principle that she was only entitled to the interest of the testator's property if the same had been converted at his death. Such settled account was set aside ; it being held that she was entitled to the specific enjoyment of the testator's estate ; although the court did not think it necessary to impute a fraudulent intention to the executor. — Pickering v. Pickering, 2 Beav. 31 ; 3 Jur. 331. Account of deceased partner's estate directed, after lapse of thirty years, and repeated changes in the firm, and after several deeds and a release had been executed by the parties beneficially interested, the surviving partners being the exe- cutors of the deceased partner, and guardians of the cestui que trust, and the settlements being partial only, and founded on insufficient know- ledge by die cestui que trust of the partnership affairs and accounts. — Wedderburn v. Wedderburn, 2 Keen, 722. A receiver in a cause was directed to pay a certain party an annual salary j with the privity of the party entitled, the receiver retained the salary for five successive years, taking credit annually in his accounts for the same. He was afterwards dischargad from the receivership, and having passed his final account, his recognizances were vacated. A bill, after the lapse of more than six years, filed against the receiver for an account of what had been so retained, and for payment of the same. A general demurrer was put in, and it was held that the titatute of Limita- tions was a bar. — Du Pre v. Duncombe, 2 Eq. Eep. 399. Quaere, — whether the plaintiff had any remedy at law by action, or in equity by petition, in the cause, in which the defendant had been reueiver. —Id. Dismissal of Bill. v.— When Reviewed. ACCOUNT. Pi'acHce. A claim aad demand in convention having been nled by an executor against the heiress-at- law and legatee, concluding that the intromis- sions in his qualities of executor, guardian and attorney should be declared to be in every res- pect good and proper accounts, and that the legatee should be bound and condemned to receive over such accounts, and to give a legal discharge and exoneration ; and the defendant having put In an answer in convention with a declaration and demand In re- convention re- quiring distinct accounts in the form therein specified. The court rejected the demand of the j^aintlff and condemned him to render the accounts in the form required by the defendant. The plaintiff having been compelled by process of gyzeling to make presentation of the accounts was subsequently summoned before the Roll Court in accordance with the practice then newly established, and having made default of appear- ance he was ordered to be attached ; and, not- withstanding he objected to the proceedings as Irregular, execution was levied, and his goods placed in Custoclia Regis to abide the sentence of the court. The defendant having presented a petition to assess the pecuniary value of the sen- tences obtained by him, the Judge of the Roll admitted all his claims, and having assessed the items, referred the cause to the whole court, by whom the plaintiff was ordered to pay the amount The plaintiff appealed, first against the applying the practice introduced, pending his case to him ; and secondly, against the decision of the court upon the items of the account. The defendant also brought a cross appeal, against some parts of the judgment. The judicial committee over- ruled the objections, and reviewed the Items of the account, proceeding upon the principle, of receiving a much smaller amount of evidence in defects occasioned by the absence of books and vouchers, which were fairly presumable to be in the power of the plaintiff. — Retemeyer v. Ober- wmlkr, 2 Mo. 93. VI. — Inspection of Books op. A defendant, who is required to set forth ac- counts, is bound to set them forth as well as he is able without much labour or expense ; and he is not bound (more especially where he has not been a party to the transactions, but Is only the representative of a party, and the accounts are long and complicated,) to refer to the books for the purpose of makijig out the accounts. He must, however, allow the plaintifif to inspect the books. — Christian v. Taylor, 11 Sim. 401. VII. — ^Dismissal op Bill. A builder entered Into a contract to build an Union Workhouse on certain specified terms, but became bankrupt before It was complete, and it was finished by the guardians. A bill by the assignees to have an account taken of what had been done was dismissed with costs, on the ground that it was not a proper subject for a suit in equity. — Ambrose v. Dunmow Union, 9 Beav. 508. • L being In difficulties and obliged to leave England, prevailed upon A to manage his estates for him during his absence, and for that purpose constituted him his agent by a power of attorney, which power of attorney contained an express nawet for A to appoint a proper person to act as agent under him. A acted gratuitously in the matter ; A retained B as his solicitor and em- ployed him to receive the rents, and generally In the management of the estates. In B s books items were entered and charged as agamst L. A banking accoimt was opened In the joint names of A and B, into which the rents, &c. were paid, A very long correspondence took place between L's solicitor and B, relative to the accounts which had been furnished, In the course of which B (who was treated rather as the agent of L than of A) said that if there were errors In them they should be corrected. L filed his bill against A and B, aUeg;ing various acts of misconduct and mismanagement, and prayed an account both against A and B. The bill was dismissed with costs, as against both on the ground that as there was no case of fraud made out against A and B, a bill for an account could not be sustained both against an agent and a sub-agent. — Lockwood v. Abdy, 9 Jur. 267.— V. C. E. A sub-agent who was not legally liable to ac- count to the principal in the course of a long correspondence relative to the accounts submitted to correct any errors in the accounts. Held that the submission did not make him a proper party to a bUl by the principal for an account. — Id, VIII. — ^Pbactice. The equitable j urisdiction in matters of account is concui'rent with that of courts of law, and no precise rule can be laid down as to the eases in which it will be exercised, — ^thls court reserving to Itself a large discretion upon the subject ; in the exercise of which It wUl pay due regard to the nature of the case and the conduct of the parties, and will not restrain an action already commenced, merely on the ground that, firom the number and complexity of the items in the account, a judge at nisi priws would urge the parties to refer it. An Injunction In such a case refused on the ground of delay, — the bill not having been filed until six months after the action was commenced, and the Injunction not moved for until another six months after answer, and when the case was ready for trial. — North Bastem Railway v. Martin, 2 Phil. 758 ; 1 Hall & T., 69. When a bill prayed certain accounts, and an injunction to restrain the defendant from proceed- ing in an ejectment, on the ground that one of the lives upon which a lease depended subsisted semble, the court would not make such a decree without a previous enquiry as to the existence of the alleged subsisting life. — O'DonneU v. Nolan, i Dru. & W., 153. In order to save the expense of serving different parties, an inconsiderable aggregate fund was ordered to be severed, and carried over to sepa- rate contingent accounts.— ffajid&y v. Metcalf, 9 Beav., 495. The court will not direct an account to be taken with aiuiual rests, where no special case for that form of decree has been made on the pleadings. Neeson v. Clarkson, 4 Hare, 97. Where a bill for an account which relies on certain Items as the ground fbr transferring the matter from the jurisdiction of a court of law to that of equity, also contains a general vague charge of there being voluminous and intricate accounts between the parties, then if the plalntifl fails in supporting his equity upon the particulai items, he cannot maintain the bill against £ demurrer upon the latter vague charges. Dartltii V. Clemens, 6 Beav. 165. ■' Practice. ACCOUNT. In the Master's Office. An accotmt of rent and mesne rates decreed under circumstances of complexity of title oc- casioned by the acts of the tenant, and in order to avoid a multiplicity of suits the bill also seeking the delivery of a deed to be cancelled, semble that if a demurrer for multifariousness cannot be taken to a bill because it contains a charge of collusion between the several defen- dants, and the plaintiff fail to prove the collusion the objection may be taken at the hearing. — Nixon V, Robinsmi, 2 Jon, & L. 4. As to the rule of court in requiring the ac- counts of the estate to be taken before deciding on the construction of a will.— GiwAeW v. Holmes, 3 Hare, 438. A joint judgment against two cannot be proved under a decree to account in a suit instituted to administer the real assets of the conusor who died fust, the surviving conusor not being a party to the suit as such. The case does not fall within the 28th general rule of March, 1843, (Ireland). — UatcheU v. Sutton, 2 Jon. & L. 21. Although the bill brought by the executor stated that the debts, funeral, and testamentary expenses and legacies of ihe testatrix had been paid, and the residue specifically appropriated to answer the trusts of the will, and merely sought the direction of the court as to the class of per- sons entitled to take under such trusts, the court would not decide the question of construction imtE the accounts of the estate had been talcen, unless it should appear that all the class enti- tled to take were parties to the suit and compe- tent to bind themselves, — and those parties should waive the accounts of the estate and accept the same at a given amount, — and the personal representatives should admit assets for all purposes, — upon which consent and admis- sions, a decree might be made finally disposing of the estate, but saving the rights of creditors. ^Say V. Creed, 3 Hare, 455. BiU in 1812 by a mortgagee to foreclose and sell. The mortgagor who was the only defen- dant not having appeared, a decree upon se- questration was obtained agaiast him. In 1816 the mortgagee died, and considerable delays hav- ing occurred in the prosecution of the suit it was in 1828 revived by his personal representatives. The mortgagor having still neglected to appear a conditional decree upon sequestration was again pronounced'against him, the same having been made absolute in 1832, an account was taken in pursuance thereof. During the pro- gress of the account the mortgagor never ap- peared in the master's Ofliice and before the re- port which had been drawn up and prepared was signed, he died intestate. The suit was then re- vived against V. his eldest son as heir-at-law, and the personal representative of the mortgagor. In 1836 the master made his report, and in 1837 a decree for a sale was pronounced, V. having nei- ther himself nor any one on his behalf appeared before the master or at the hearing. On the plaintiflrs proceeding to make out the title to the lands which were directed to be sold, they dis- covered that in the year 1812, a few months prior to the institution of the original suit on the oc- casion of the mortgagor's marriage, the equity of redemption had been put in settlement and limited to the mortgagor for life, with remaiader to his first and other sons in tall male, but this settlement was never registered. The plaintiff's having filed a supplemental bUl, bringing before the coui-t V. as the first tenant in tail, and the se- veral persons claiming under the settlement. Held, that though the general rule of the court was that where the tenimt for life was a party, and the accounts directed were fairly taken,'such accoimts were binding on those in remainder, and that the latter could only be permitted to surcharge and falsify them, yet, as in this case, the decrees were all upon sequestration, and the accounts taken in the absence of every person in- terested in their being taken fairly, and as some doubts were thrown upon the case as to the ex- istence of any debt, V. was entitled to have a ge- neral account directed. — Wrixon v. Vize, 2 Dm. & W. 192. A. J., being entitled to a -certain jointure by ar- ticles of November, 1799, assigned the same to her son G.C. J., in consideration of the said G.C.J, covenanting to pay the head rents of the lands of Shane, &c., &c., and also of his giving the said A. J. a right of distress on the lands of Blarney in case of any default on his part in the payment of the said head rents. Held that notwithstanding the remedy at law thus provided by the articles, a bill for an accoimt on foot of the payments made by the said G. C. J. in re pect of the said rents, and for a receiver was maintainable. — Goodwin v. Jeffreys, 1 Dru. & Wal. 375. A committee appointed by the inhabitants of M. employed the plaintifis as their solicitors to apply to parliament for an act for constructing a dock. The plaintiffi, in the course of their em- ployment paid considerable sums to engineers, witnesses, parliamentary agents, and various other persons ; and a large sum became due to them for their own costs, and several liabilities were existing against them. The plaintiffs at different times received through bankers and others various sums on account of what was due to them, but were unable to obtain payment of the balance ; upon which they filed a bill against some of the members of the committee, alleging that of the other members some were out of the jurisdiction, emd others were dead and their per- sonal representatives imknown, and praying that the defendants might come to an account with them, and pay to them the balance (which was stated to be £3,232 Is. 4d.), or such balance as, on taking the account, should be found due, and also to indemnify them against the existing lia- bilities. A demurrer to the biU was allowed. — Allison V. Herring, 9 Sim. 583. rX. — Jm THE Master's Office. Accounts to be taken on the form of debtor and creditor, 61st Gen. Ord., 3rd April, 1828, Beav. ed. 25. Examination of accounting parties. — Id. Although this order is imperative, yet a party having acquiesced in the account being brought in according to the old form, cannot afterwards be permitted to turn round and insist that all the proceedings before the master shall be set aside. — Weale v. Bice, Coopers, P. C. 438 Accounts to be entered in a book, 62nd Gen. Ord., 3rd April, 1828, Beav. ed. 25. If copied into schedules annexed to the master's report, such schedules are only to be charged at the rate of 6d. per folio. — Attorney/- General v, Ltiibock, 1 Myl. & Cr. 264. The cases in which this court will interfere to have complicated accounts taken in the master's office instead of leaving them to be ascertained by an action at law are difficult to define, and must be very much in the discretion of the court. "Where surveyors had commenced an action 10 In the Master's Office. ACCOUNT.— ACCRUER.. against a railway company for a large balance claimed in respect of work done and monies ex- pended by them for the raEway company, the particulars of demand in such action being 400 in number, but there being no dispute as to the suras paid by the company on account, this court refused to restrain the prosecution of the action where the railway company had by their bill asked for a discovery as to numerous documents, and stated that they should thereby be enabled to defend the action at law and had not applied for an injunction till more than a year after the action had been commenced, and when it was likely to come on soon for trial, — The South- Eastern Railway v. Martin, 1 Hall & T. 69. Under a decree to take an account of the tes- tator's debts, and to compute interest on such of his debts as carried interest, the master has not jurisdiction to allow a compensation to a party for unliquidated damages on a breach of cove- nant, but upon an application to the court proper directions will be given for the investigation of such a claim. — Cox v. King, 9 Beav. 530. Partnership accounts having been directed to be taken by the master in a case in which some of the books had been lost, the court directed the master, if it should appear in taking the account that any necessary book, &c., should be wanting to report the same specially ; and whether in consequence of the want of such books he was unable to proceed satisfactorily in taking the accounts. — Millar v. Craig, 6 Beav. 433. Difficulty in making a decree against parties depending on the result of accounts which could not be satisfactorily taken in consequence of the loss of the books of accounts. — Rowley v. Adams, 7 Beav. 395. Under a decree to take an account of the debts of a deceased person, and for the administration of his assets, a demand for unliquidated damages may be proved and reported. The preferable mode of ascertaining the amount of such damages is by an issue to be directed for that purpose, but they may be ascertained by the oificer by the ex- amination of witnesses upon interrogatories. — England v. Donnellan, 1 Jon. & Ca. 270. In a suit by a principal against his steward and agent the decree in conformity to the prayer of the bill directed an account to be taken of the rents, profits, and timber money received by the defendant on the plaintiff's account ; and also directed the master in taking the accounts to make to the parties all just allowances. The de- fendant was a solicitor, and had acted as such for the plaintiff during his stewardship ; and bills of cost were due to him from the plaintiff. The master, at the plaintiff's request, taxed the bills, and in taking the accounts under the decree in- cluded the reduced amounts of them amongst the just allowances to which the defendant was en- titled. The plaintiff excepted to the report on that account, and the comrt allowed the excep- tions. — Joliffe-v. Hector, 12 Sim. 398. A husband carried on the business of a victu- aller with siock, &c., which formed the separate estate of the wife ; in carrying on the business he disposed of the consumable stock and substituted similar articles, and at a subsequent period he sold the stock and business. By the decree an account was directed against the husband, of the stock comprised in the settlement and sold. Held, that the master properly included the sub- stituted stocks in the account. — England v. Downs, 6 Beav. 269. Pb. ACCOUNTS. Preliminary Accounts. ACCRETION. A testatrix bequeathed a sum of £300 to her executors in trust, to place the same out at in- terest, and pay same if it should faD due to her nephew, for life, and at his decease " to divide the said sum emd any interest which might be due thereon among all his children equally ; and if he should leave but one child, then to give the whole to such one child." There were two children of the nephew, both of whom died in his lifetime. Held, that this was a gift to the father for life, with remainder to the chUdren as tenants in common with a gift over in case there should be but one surviving child, to that child ; and, that as that event had not happened, the repre- sentative of the deceased children was entitled to the fund. In this case a particular fund which had been set apart during the life of the tenant for life to answer the bequest having risen in value, the court held that there had been such an appropriation of that fund in payment of the legacy so as to entitle the party to whom the legacy was now payable to the benefit of the in- crease. — Kimberley v. Tew, i Dru. & W. 139. ACCRUER. See Legacy. By a marriage settlement after reciting that the lady was entitled to real and personal property, and that it had been agreed that she should settle it and also all other property to which she might become entitled during the coverture upon the trusts thereinafter mentioned ; all her then pro- perty was vested in trustees in trust during her life to pay and apply the income to such person or persons as she from time to time by any wri- ting or writings signed by her should appoint ; and in default of such appointment to her for her separate use, and after her death to pay £500 a year to her husband for his life : and the settle- ment declared that subject to those trusts all the trust property and all the annual produce of it which might remain unappljcd at her death should remain upon the trusts thereinafter men- tioned, none of which were for the benefit of her husband. The trustees received the income of the settled property, tmd with the lady's privity and acquiescence paid it into a bank in their own names, and made remittances to her from time to time as she required money. She and her hus- band separated soon after their marriage. She died in his lifetime. At her death £888 were in her house, and a balance of £2,049 arisen from the income of tlie settled property received by the trustees was standing to their credit in the books of the bank. Held, that the husband was entitled to the £888, but that the £2,049 were subject to the ultimate trust of the settlement as being annual produce remaining unapplied at the wife's death. — Johnston v. Lumb, 15 Sim. 308. Testator bequeathed his residuary personal estate to trustees, in trust, with all convenient speed after his death, to sell such part or parts as they or the survivor of them, or the executors or adininistrators of such survivor, or their or his assigns should think proper, or of any monies in the funds, and also to call in, sell and convert ACCUMULATION. 11 into money all such parts of the rest of his general estate as should not consist of money ; and, out of his general personal estate and the monies forming part thereof, and to arise thereby, to pay his debts, &c., and to invest the residue of the monies to arise from his general personal estate which should remain after answering the pur- poses aforesaid, in the usual securities ; and, from time to time to alter, at their or his discretion, as well as the same stocks, funds and securities, as also such of the stocks, funds or securities being part of his personal estate, which they or he should not think proper to sell and convert into money ; and to stand possessed of all the trust monies, stocks, funds and securities which should be so purchased as aforesaid, and which should remain unconverted into money as aforesaid, in trust, to pay the interest, dividends and annual produce thereof, as when the same should be received to the plaintiff. The residue of the testator's estate, after payment of his debts, &c., &c., consisted iu part of sums of long annuities and Bank and East India Stock which will remain unsold. Held, that the plaintiff was entitled to the income accrued on those sums from the tes- tator's death. — IVrey v. Smith, 14 Sim. 202. Testatrix bequeathed her personal estate to A for life, remainder over. The estate consisted in part of a sum recovered in respect of principal and interest due from a deceased to the testatrix : but, as the debtor died partially insolvent, the sum recovered was less than the principal of the debt. Held, that A. was not entitled to a portion of that sum in respect of the interest of the debt accrued since the testatrix's death, but that the whole of it was part of the capital of the testa- trix's estate. — Turner v. Newport, 14 Sim. 32. A gift between grandchildren living at the testator's death, to be divided between them on the death of the survivor of three persons, with a gift over to the survivors in case of the death of any before he should be entitled to receive his share, and to be paid at the time and in the same manner as before-mentioned, touching the original share. The gift over held to apply to the accruing as well as to the original share. — Eyre v. Mars- den, 2, Keen, 564. ACCUMULATION. See Remoteness. — Infant, See 39 & 40, Geo. 3, i;. 98. Money was put into court and vested ia stocks to abide the result of a bUl. Held, that the party declared entitled to the stock was entitled to the accumulations thereon. — Barrett v. The Stockton and Darlington Bailway Company, 1 CUc. & Fin. N. S. 18. Where the limitations of an estate which are valid have annexed to them trusts for accumula- tion, which are on their creation invalid by rea- son of their indefiniteuess, the court when dealing with the instrument will not support the trusts for accumulation so far as the testator might have carried them, but wiU not reject them alto- gether. — Ker V. Lord Dungamion, 1 Dru. &W. 509. A testator devised his real estate to trustees in fee, to accumulate until the youngest child of A attained twenty-one, and then to divide it. After the expiration of twenty-one years, and before the youngest child attained twenty-one, the heir of the testator died. Held, that the for- bidden accumulation subsequent to the heir's death being in the nature of a chattel interest passed to the personal representative of the heir of the testator. — Sewelly. Denny, 10 Beav. 316. Trustees were to accumulate a residue for a class of children after maintaining them. Held, on the context, that after one attained his age and received his share, he retained no interest in the subsequent accumulations. — South v. Hut- chinson, 8 Beav. 581. Testator directed the income of certain portions of a trust fund to be paid to A. B. C. &c. for their lives, and on the death of the survivor of them the fund to be sold and the proceeds thereof, and also the proceeds which should have accu- mulated in respect thereof, to be divided amongst other persons. Held, that though there were accumulations of the income of the fund which had arisen after the expiration of twenty-one years from the testator's death, the case was not within the Thellusson Act, (39 & 40 Geo. 3, c. 98. — Bridgnorth (^Corporation of,) v. Collins, 15 Sim. 638. A testator devised his freehold and copyhold estates, charged with annuities, for his sons and daughter upon trust, to invest and accumulate the surplus produce thereof for the benefit of his grandchildren until the youngest should attain twenty-one, when the accumulations were to be divided among such of them as should be then living ; and he directed m case any of his sons and daughter should be living after the youngest of his grandchildren should have attained twenty- one, the residue of the said rents and profits should be further accumulated, and such accu- mulation divided among his grandchildren who should be living at the death of the survivor of his sons and daughter and charged as aforesaid ; he directed that after the death of such survivor his said estates should stand charged for twenty years, with the payment of two-third parts of the clear produce of them iu equal proportions of so much money as would in fifteen years make £30,000, which sum with the interest thereof he directed should be equally divided among aU his grandchildren who should live to attain the age of twenty-one, their executors or administrators. The testator died in 1812, leaving ten grand- children, nine of them children of one of the annuitants. All of them lived to attain twenty- one, the youngest having attained that age in 1830. The last survivor of the testator's sons and daughter died in 1831. Held, that the charge of two-thirds of the produce of the estates was a provision for accumulation within the Act 39 & 40 Geo. 3, c. 98, and, therefore, void so far as it ex- tended to any period after the expiration of twenty-one years from the testator's death. — Evans v. Hellier, 5 CLk. & Tin. 114. The TheUusson Act applies not to cases in which there is merely an executory devise or bequest, but only to those cases in which there is an express trust for accumulation ; and if that trust exceeds the time prescribed by the Act, the next of kin or the heir of the testator (according to the nature of the property) and not the resi- duary devisee or legatee is entitled to the income accruing after the expiration of the prescribed time. "The decision in Macdonald v. Bryce, 2 Keen, 276, disapproved of. — Elborne v. Goode, 14 Sim. 165. A testator directed funds to be provided for certain charity-schools by accumulating his pro- perty, but fixed no time for the continuance of the accumulation, which must necessarily have exceeded the legal period. The court held the 12 ACCUMULATION. direction to accumulate to be void, and, con- sequently, the ulterior dispositions of the will to fail : but, as the testator had shown an intention to devote his property to charitable pur- poses, it directed his intention to be carried into effect, cy pros, by means of a scheme to be settled by the master. — Martin v. Maugham, 14 Sim. 230. Testator devised his estates in trust for the plaintiff for life, with remainder to his first and other sons in tail male, with remainders over ; and directed that if any person for the time being entitled to the possession of the estates should be under twenty-one, the trustees should, so long as the person so entitled should be under twent}'- one, receive the rents and apply a competent part thereof for his maintenance, and invest the sur- plus, in their names, on government, or real focurity, and from time to time, receive the income thereof and invest the same in like secu- rities so that the same might accumulate, and should stand possessed of such sui-plus rents, together with the accumulations thereof upon trust, to invest the same from time to time in the purchase of real estates, to be forthwith settled to the uses and upon the trusts thereby declared of the devised estates. Held, that the trust was void for remoteness. — Browne v. Stoughton, 14 Sim. 369. Testator after devising his estate in strict set- tlement, directed that in case he should not erect a mansion-house on his estates in his lifetime, his trustees should forthwith after his death erect the same according to such plan as he should ap- prove of in his lifetime ; or, if he should die before such plan should be prepared and com- pleted, then, according to such plan as his trustees with the consent of the person for the time being beneficially entitled to the immediate freehold of his estates should think proper to adopt ; and he gave £20,000 to the trustees to be applied in erecting the house, and in the mean time to be laid out in the funds, and the dividends to be accumulated, and the accumulation as well as the original fund to be applied in erecting the house, and the surplus (if any) to be laid out in the purchase of lands to be settled to the same uses as the devised estates. Owing to opposition on the part of the tenant for life the trustees did not build the house until more than twenty-one years after the testator's death ; and they in- vested the £20,000 and accumulated the income of it during the whole of the interval. Held, that the direction for accumulation was not within the Thellusson Act, but that the whole of the accumulated fund was applicable to the pur- pose directed by the will. — Lombe v. Stoughton, 12 Sim. 304. A testator directed the income of his property to be accumtilated for the term of twenty-one years from his death. The testator died on the 6th January, 1820. Held, that in the computation of the term, the day of his death was to be excluded, and consequently that the dividends on stock which became due on the 5th January, 1841 , were subject to the trust for accumulation. — Gorst V. Loivndes, 11 Sim. 434. Testator directed his trustees to invest the proceeds of his real and personal estate, and to accumulate the interest until the youngest child of his brother should attain 21, and then to stand possessed of the trust-fund and its accumulations in trust for all the children of his brother who should be then living. The brother had seven children, and all of them were living at the date of the will, and at the testator's death. All the children except the second died, and none of them except the eldest, the second, and the fourth, attained 21. The fifth was the last that died. Held, that the trust for accumulation did not continue imtil the seventh child would have attained 21 if living ; but that it ceased on the death of the fifth child, and that the second child then became entitled to the trust-fund. — Evana v. Pilkington, 10 Sim. 412. Direction to invest £10,000 4 per cent stock in the name of trustees, and to pay thereout annul- ties to various persons, amounting in the whole to £400 a year, and that the trustees should hold the said stock and the dividends thereof, subject to the annuities upon trust, as to so much of the dividends as from time to time should fall in by the determination of the aiuiuities, imtil one half of the dividends should have so fallen in, — to invest the same and the resulting income thereof, in order to increase the capital of the said fund by accumulation ; and so soon as one half of the dividends should have so fallen in, to apply such moiety of the dividends, and also such further parts of the same £is should from time to time fall in by the determination of the annuities respect- ively, and the whole of the dividends when all the annuities should have ceased, to certain charitable uses. The £10,000 4 per cent, stock was invested according to the wUl, and was subsequently converted into 3^ per cents., and the trustees thereupon reduced the payments to the annuitants by one-eighth, the dividends having become to that extent sufficient to answer the annuities. The death of some of the annui- tants afterwards released a part of the dividends, and the sums so falling in were accumulated. In an information to establish the charity : Held that, although the accumulation of the cfividends had not begun until the death of an annuitant many years after the death of the testator, yet by the statute 40 Geo. III., c. 98, the accumulation must cease at the expiration of twenty-one years from his death. — Attorney-General v. Poulden, 3 Hare, 555. That the annuitants were not entitled to be paid their annuities in full, either out of the capital or out of the released dividends, but that the reduction of the stock would operate to pro- duce a proportionate reduction in the several annuities, and in the fvmd applicable to the charity.— Id. That the whole of the accumulated fund arising before a moiety of the dividends was released by cessation of the annuities, was undisposed of by the will, and formed part of the residuary estate. — lb. A testator bequeathed leaseholds ia Church Street, having sixty years unexpired ; and as to which there was no obligation on the part of the lessor to renew to A. for life, with remainder to the children she should leave, and in default to B, he bequeathed to trustees other leaseholds, upon trust to accumulate the rents until the leases of the Church Street property " should become nearly expired," and then to apply such part thereof as should be necessary in the renewal of the Church Street property " for the benefit of the respective persons to whom he had before by his will given the same," and the residue after answering the purpose aforesaid, he gave to his residuary legatees. The testator died before the Thellusson Act came into operation. Held, that the trust for accumulation and renewal was void for remoteness and uncertainty. — Curtis v. LuHn^ 5 Beav. 147. ACCUMULATION— ACQUIESCENCE. 13 The Thellusson Act (39 & 40 G. 3, u. 98) does not permit accumulation during a minority, and any time to elapse between the death of the tes- tator and the commencement of the minority or in favour of emy person who would not for the time being, if of fall age, be entitled to the annual produce of the fund. — Ellis v. Uaxwell, 3 Beav. 587. A testator directed the accumulation of the ■whole of his personal estate for the benefit of his grand-children, and he gave to his wife " anything which he might not have sufficiently disposed of." Held, that the accumulations of the fund, which were void under the Thellusson Act, be- longed to the widow, notwithstanding the grand- children took vested interests. — lb. Where a testator directs the accumulation of a fund to commence at a time subsequent to his decease the accumulation becomes void at the ex- piration of twenty-one years from his decease although at that period there has been on the whole less than tweuty-one years of accumula- tion. A testator gave annuities to A. and B. respec- tively, charged on money in the funds, and he di- rected that when either died the annuity must accu- mulate until the death of the survivor. A. died some time after the testator, B. being still living. Held, that the accumulation must cease at the expiration of twenty-one years from the testator's decease, and not from twenty-one years from the decease of A. — Webb v. Webb, 2 Beav. 493. A testator gave the residue of his property to E. S., the eldest son of P. S., and failing in him to the next and other sons in succession of P. S., and failing the male children of P. S. to the le- gatees named in the residuary clause. And he directed his executors to apply the dividends of his residuary property to the maintenance of R. S. during his minority, and of the other sons in succession of P. S. in case of the death of B. S., before attaining the age of twenty-one. K. S. survived the testator and died an infant, and P. S. who was far advanced in years had no other son. The period allowed by the statute for the accumulation of the income of the residue having expired, it was held, that the next of kin and not the residuary legatees were entitled to the income of the residue, until the contingency upon which the residue was given either to a male child of P. S. or to the legatees named in the residuary clause should be determined. — M'Donald v. Bryee, 2 Keen, 276. A testator gave £3000 stock to trustees in trust to authorise his bankers to receive the di- vidends and invest the same from time to time in the purchase of more capital in the same stock to be accumulated for so many years as M.J. should live, and after the death of M. J. in trust to pay the £3000 stock with the increased capital and accumulations to T. R. and his issue, and the tes- tator after disposing of other parts of his pro- perty gave the residue of his personal estate to T. E.. and his issue. Twenty-one years elapsed from the death of the testator and M. 3. was still living. Held, that the income of the £3000 stock and accumulations after the twenty-one years and until the death of M. J. was undisposed of, and belonged to the residuary legatees. — O'Neill \, Lucas, 2 Keen, 313. A testator gave certain annuities out of his re- siduary estate to his three children, " and re- quested the surplus of the annual income to be applied in accumulation of the capital of his pro- perty for the benefit of his grand- children," and which was to be divided between them after the death of the survivor of the testator's three chil- dren. Thirty years elapsed between the death of the testator and of the survivor of his children. Held, that the direction for accumulation beyond twenty-one years from the testator's death was void imder the first section of the Thellusson Act, and that the case did not come within the exception of the second section. Held, also, that the void accumulations did not belong to the re- siduary legatees, but that they were undisposed of. Held, upon the construction of the terms of the will such part of the void accumulations as arose from the real estate belonged to the heir-at- law and not to the next of kin. The Thellusson Act which restricts the accumulation of pro- perty, does not operate to alter any disposition in a will except only the direction to accumulate. Striking that direction out every thing else is left as before, and all the other directions in the will, as to the time of payment, the substitution of in- terest or any contingencies, take efiect unaltered by the statute. — Eyre v. Marsden, 2 Keen, 564. ACKNOWLEDGMENT. See Limitations, Stat, of — Mohtgaoe. In 1835, A. filed a creditor's biU against the ad- ministrator of his debtor, founded on a debt due on a promissory note, but in respect of which no payment of either principal or interest had been made since 1823. In 1832 the administrator on the citation of a third person, signed and exhi- bited in the Ecclesiastical Court, an inventory and account of the late debtor's assets and debts in which A.'s debt was entered. Held, that the entry was a sufficient acknowledgment within Lord Tenterden's Act (9 Geo. 4, c. 14) to take the debt out of the Statute of Limitations (21 Jas. 1, c. 16). — Smith Y. Poole, 12 Sim. 17. A. mortgaged an estate to B. for 1000 years. B. died, having bequeathed the mortgage to his widow. She also died, and in 1822 her personal representatives entered into and continued in possession of the estate until 1838, when they sold and assigned the mortgage to C, who entered and continued in possession until 1843, when A.'s heir filed a bill to redeem, on the ground that the deed of assignment recited the mortgage and conveyed the term to C, subject expressly to the equity of redemption of A., or his legal representatives. Held, that the deed was not such an acknowledg- ment of the mortgagor's title as to make the case redeemable. — Lucas v. Dennison, 13 Sim. 584. ACQUIESCENCE. See EaciTABLB Waste — Laches. A municipal corporation voluntarily founded an hospital, under the Act 39 Eliz., c. 6, and purchased real estates and caused them to be conveyed to the hospital, but which were kept under the control and management of the fotmders, who afterwards sold and conveyed them for valuable consideration, granting to the pur- chaser covenants for title, and indemnity against the claims of the hospital. I'he founders applied the money produced by the sale, together with other monies of their own, in the purchase of an estate at W., and they paid annually to the hospital more thim the rents and profits of the 14 ACQUIESCENCE. sold estates. The hospital at first concurred in that arrangement, and acquiesced in it for 120 years, after which the Attorney General and the hospital, by information and bill, claimed a part of the estate at W., bearing the same proportion to the whole estate that the produce of the sale of the hospital's estates bore to the whole pur- chase money of the estate at W. Held, first, that the estates conveyed to the hospital were well vested in it and could not be sold without an Act of Parliament, and, therefore, a decree directing the hospital to confirm the sale was in that respect erroneous. Corporation of Newcastle v. Attorney General, 12 Clk. & Fin. 402. Held, Secondly, that if the hospital's concur- rence and long acquiescence in the arrangement for the sale of its estates were held to bar its right to recover them, or a commensurate portion of the estate at "W., the Attorney General's right to protect the charity still existed. Id. Lands were limited to a father for life, with a power of appointment amongst his children, and in default of appointment, to the tenants in common in fee. The father and his eldest son (there being several children) joined in a fine and recovery of the estates, and being advised that the consequence of their act was to vest the fee in the father alone, he, by lease and release, conveyed the lands to a purchaser, and received the entire amount of consideration money for his own benefit, the son being present at the trans- action and assenting to the conveyance. The interest which the son had in the lands at the time of the conveyance, but not that which he subsequently acquired, is bound by his assent to the conveyance to the purchaser. Thompson v. Simpson, 2 Jones & L. 110. In a case which neither fraud, collusion, nor concealment were complained of the plaintiff, but where the plaintiff's claim was allowed by the master twenty years previously to the plaintiff's application to re-hear an order, and where the plaintiff by using reasonable diligence might have known aU the facts and proceedings in the suits of prior date, the court refused a motion on behalf of the plaintiff to re-hear an order of the court made nineteen years prior to the date of the application, but gave the plaintiff leave to renew his application at the hearing of a supplemental suit recently instituted by him, seeking to vary that order. Gwynne v. Edwards, 16 Law J., N. S., M. R., 84. A. B. by his will devised his freehold estates to his wife Martha for Ufe, and, subject thereto, he devised the same to Martha and her heirs, in trust, to be divided to and among all his children who should be living at the death of Martha, in such shares, &o., as Martha should by will ap- point. In December, 1824, Martha purchased of the children their reversionary interests in the estates at an under value. In June, 1827, Martha died, having devised all her real estates to B. Tunstall, in fee, subject to a chargeof f 2000, and other incumbrances. In 1838, Hill, who had married one of the daughters of the testator and had joined in the conveyance to Martha, became insolvent, and in January, 1842, the creditor's assignee, under the insolvency, filed his bill against B. Tunstall, to set aside the transaction of December, 1824, on the ground of its being a purchase by a trustee from her cestui g«e trust, while the influence was subsisting of her rever- sionary interest, at a gross under value. Held, that though the vendor would have had a right to rescind the transaction, if recent, yet the un- explained acquiescence of more than fifteen years after the death of Martha to the filing of the bill, amounted to a waiver of that right, and that in the absence of fraud, &c., the poverty of the vendor during the whole of that period was no siiffieient excuse for the delay. Roberts v. Tun- stall, 14 Law J., N. S., V. C. W., 484.9 Jur. 232. The deed of association of a Joint Stock Com- pany provided that the business of the company should be transacted by six directors. Four directors conducted such business for a consider- able time, and had various dealings with a third party as agent of the company. Held, that it was not competent to such third party to object in a suit against him, that the four directors did not sufficiently represent the company. Benson v. Hadfield, 4 Hare, 32. Semble, if a vendor vvho has a right upon equi- table grounds to impeach a sale, not only neglects to do so, but by the subsequent execution of other deeds adopts the sale and acts upon it as binding, he cannot afterwards impeach the title of eqiu- table mortgagees who subsequently to this act advanced their money bona fide and without notice to the purchaser. — Nagle v. Baylor, 3 Dro. & W. 60. The court will not in cases of alleged acquies- cence act on light groimds against the legal rights of parties, there must be either fraud or such acquiescence as in the view of the court would make it a fraud, afterwards to insist upon the legal right. — Gerrard v. O'Reilly, 8 Dru. & W. 414. A feme covert was entitled to a reversionary interest in a sum of money vested in her husband and another as trustees. By deed expressed to be made between the tenant for life of the one part, and the trustees (including the husband) of the other part, the tenant for life, who alone executed the deed, declared that the trustees should hold the fund on certain modified trust, whereby the wife's reversionary interest was made subject to her power of appointment by deed or will. The wife died leaving her husband surviving, having appointed the reversionary in- terest away from her husband. The husband afterwards died and the reversionary interest subsequently came into possession. The court considered that, under the circumstances, the husband ought to be deemed to have acquiesced in the arrangement and accepted the trusts for the benefit of the wife's appointees ; and held that the appointees of the wtfe were entitled as against the representatives of the husband. — Inman v. Whitley, 7 Beav. 337. Trustees after acquiescence restrained from legal proceedings against the tenant for life to recover the title deeds and receive the rents. — Denton v. Denton, 7 Beav. 388. A colliery proprietor constructed a railway from his colliery across the lands of several other persons by agreement, and his sclioitors wrote a letter to the defendant across whose lands he desired to carry the railway, referring to the powers of a Local Act of Parliament supposed to enable him to take lands within a certain area for road ways, and offering on the part of the plaintiff to pay him for the land at a fair valua- tion. The defendant did not reply to the letter, and the railway was made across his land without further communication with him. A year or two afterwards the plaintiff and defendant had an interview, but did not agree as to the price to be paid for the land, and three or four years after the railway was made the defendant brought his ACQUIESCENCE. IS ejectment, whereupon the plaintiff filed his bill for an Injunction charging acquiescence. The court on motion restrained the action upon the plaintiff giving judgment in the ejectment, and paying a sum into court not less than the amount of the utmost valuation of the land. — Powell v. Thomas, 6 Hare, 300. On the marriage of a female infant, her rever- sionary interest in choses in action vv-ere settled under the court for her separate use for lile, with remainder to her children. She afterwarJs con- tracted two subsequent marriages,.but no further settlement was executed on those occasions. Part of the reversionary interests fell into pos- session during the first coverture, and part duiing the second, and were transferred to the trustees. Held, first, that although the deed made during infancy was not binding in respect of the rever- sionary interests as against the wife surviving, still she might while discovert adopt it for her benefit ; secondly, that the wife having survived and not having called for a transfer of the fund, must be deemed to have acquiesced in and adopted it, as it was for her interest to do so ; thirdly, that she must be deemed to have married her second husband on the faith that her pro- perty was protected by the settlement, and that he was bound by it ; fourthly, that the third husband, who had notice of the settlement pre- vious to his marriage, and had for some years after acquiesced in it was bound thereby, and had no interest in the settled property. — Ashton V. M'Dougall, 5 Beav. 66. Distinction between the effect of acquiescence upon a motion for an injunction, and on a de- murrer. In tlie former case acquiescence merely prevents the special protection by injunction, but in the latter it must be such as to disentitle the plaintiff to any relief whatever. — Gordon v. The Cheltenham Railway Company, 5 Beav. 229. Consols were settled to the separate use of the wife for life, with a power to appoint it by wUl, and the settlement contained a power for the trustees with the consent in writing of the wife to alter the securities. The trustees without such consent sold the consols and invested the produce in long annuities, which they afterwards sold and lent the money on bond, which was afterwards received by the husband, who in- vested it in leaseholds. The wife received the long annuities until sold, and afterwards joined her husband in executing a deed, reciting that the sale of the long annuities and the subsequent investments had been with her consent. Held, that the appointees of the fund under her will were entitled as against the husband and trustees to have the consols replaced, and that the interest over which the wife had a general power of ap- pointment was not liable to make good the breach of trust. — Kellaway v. Johnson, 6 Beav. 319. A husband seized in right of his wife concurred with the other tenants in common in a partition of estate and mines, but no fine was levied. He died in 1828, after which his widow acquiesced in the arrangement and took the benefit of it. She and her lessee afterwards proceeded to get coal under the land awarded to other parties, and defended that proceeding on the ground that the husband's acts were invalid, and that the parties were still tenants in common of the whole. The court restrained her by injunction.— Afaden V. Veevera, 5 Beav. 503. A supplemental bUl was filed, in which a de- ceased person was named as co-plaintiff and as next friend of infant plaintiffs, and in the title of the plaintiffs interrogatories for the examination of witnesses his name was mentioned as being still a party. Held, that a defendant who had acquiesced and intitled his interrogatories in a similar manner, could not after publication move to suppress the depositions. — Lincoln v. Wright, 4 Beav. 166. "Where in a proceeding before the master the defendant by acquiescence or omission to object, permits the other party and the master to pro- ceed as if he did acquiesce, he comes too late if he does not come at the first opportunity to com- plain of the irregularity. On a reference to the master of exceptions for impertinence, he enlarged the time for making his report three times, and on the 19th of February reported the answer insufficient ; on the 4th of March the defendant gave notice of motion to take the certificates off the file on the ground of irregularity, and of the master's having power to enlarge the power only once. The court held that even assuming the master's power to have been so limited the de- fendant came too late, he not having previously taken the objection. — Davis v. Franklin, 2 Beav. 369. Where a party at the time of the misapplica- tion of a trust fund by the trustee was cognizant of the fact, but had then no right or interest whatever in the fund, and afterwards acquired such right as administrator to the cestui que trust. Held, that his rights as administrator were not affected by such previous knowledge on the ground of acquiescence. Where, therefore, the trustee in such a ceise became bankrupt after committing a breach of trust, the administrator of the cestui que trust was not prevented from proving for the amount of the interest on the trust fund, which occurred due in the lifetime of the cestui que trust. — Ex parte Smith, 2 M. D. & D. 113. ACTION AT LAW. See Pk. Issue. ACTION TO SET ASIDE ILLEGAL GRANT OF CKOWN LANDS. Semble that the of&cers of state in Scotland are the proper parties to pursue an action to set aside an illegal grant of the property of the crown in that country. — The Lord Advocatey. LordDunglas, 9 Clk. & Fin. 173. That such action brought by the Lord Advo- cate in the name and on the behalf of the crown without a special warrantis incompetent, although he obtains such warrant in the course of the pro- ceeding. — Id. That in such an action, the Lord Advocate and the Commissioners of Woods and Forests have no title to sue. — Id. If the law casts any duty upon a person which he refuses or fails to perform he is answerable in damages to those whom his refusal or failure in- jures. If several are jointly bound to perform the duty, they are hably jointly and severally for the failure and refusal. — Ferguson v. Kinnouli Earl, 9 Clk. & Fin. 261. Persons having judicial functions, but being also required to perform ministerial acts, may be sued for the damages occasioned by their neglect or refusal to perform such ministerial acts. — Id, 16 ACT OF PARLIAMENT.— ADMISSIONS. In such actions no allegation of malice is ne- cessary. — III, The taking on his trials a presentee to a church in Scotland is a ministerial act which the Pres- bytery is bound to perform, and for the neglect or refusal to perform which every member of the Presbytery is liable to make compensation in damages to the party injured, and he may main- tain such action agamst the members collectively and individually. — Id. ACT OF PARLIAMENT. See Statutes — Railway Company — Joint Stock Company. An inquisition to assess compensation under a private act of parliament must state the facts ne- cessary to raise the jurisdiction, but it will not be defective for not stating a fact which is neces- sarily implied by those that are stated. — Taylor V. Clemson, H Clk. & Fin. 610. A party interested in the subject matter of a private act of parliament will have his rights af- fected by its provisions, though it may have been introduced and passed without notice duly given to him — Edinburgh Railway Company y, Waiwhope, 8 Clk. & Fin. 710. Under an act of parliament, by which the con- servators of river banks were empowered to "apply the funds under their control, (which were raised by a rate upon the proprietors of adjacent lands,) " in doing, constructing, and executing, all such works, acts, matters, and things, as they should from time to time deem necessary, proper, or expedient for putting the banks into, and main- taining the same in a permanent state of stabi- lity." Held, that they were authorized to apply a portion of the fund in watching, and, if neces- sary, opposing a bill in parliament for a project lower down the river, wmch was likely to be in- jurious to the banlts under their superintendence. —Bright v. North, 2 Phil. 216. A prior act of parliament may operate on a subsequent one. — In re Perrin, 1 Con. & L. 667. An act of parliament, empowering commis- sioners to enclose the common land in a certain township, reciting the titles of certain landowners, and that it would be greatly for the advantage of the proprietors of the common lands that the same should be divided and enclosed, enacted that it should be lawful for the commissioners to set out and make such ditches, water-courses, and bridges, of such extent and form, and in such situations as they should deem necessary in the lands to be enclosed ; and also to enlarge, cleanse, or alter the course of, and improve any, of the existing ditches, water courses, or bridges, as well in and on the same lands as also in any ancient inclosures, or other lands, in the town- ship as they should deem necessary. Held, that the act did not empower the commissioners to alter the drains on the common lands, so as to overload an ancient drain which flowed through the common lands from another township, and thereby to obstruct the drainage of the lands in such other township to the damage and injury of the owners of such lands. — Dawson v. Paver, 6 Hare, 415. Where an act of parliament empowers certain persons to deal with their own property, or with property in a certain place or district, or defined by a certain description, and does not by express words, or by necessary implication, import that the legislature intended to affect the rights of other persons in other property, — courts of law do not construe mere general words in the act as af- fecting the rights of strangers as to property not within the description of that with which the act expressly purports to deal. — Id. Whether an act of parliament is to be deemed a public act binding on all the queen's subjects, or merely a private act, depends upon the nature and substance of the case, and not upon the tech- nical construction, whether the act does or does not contain a clause declaring that it shall be deemed to be a public act. — Id. ADDITIONAL LEGACY. See Legacy. ADEMPTION. See Leoacy. ADMINISTRATION. See Executor and Administbatoe. ADMINISTRATION OF ASSETS. See Executor and Administrator. ADJnSSIONS. See Pr. Evidence — Copyholds — Pr. Answer. A. transferred a sum of stock into the joint names of herself and B., and then informed B. of the transfer, expressing her confidence that B. would fulfil the wishes which A. might express to her respecting the same. After the death of A, her administratrix filed the bill sigainst B., for the transfer of the stock, as part of the personal estate of A. B., by her answer, admitted the transfer of the stock into the joint names of A. and B., and stated that A. afterwards, from time to time, told her (B.) what part of the stock and dividends should be transferred and paid to different persons, and, subject to such disposition, desired her to hold the remainder for her own use ; and B. also, by her answer, stated that she had in pursuance of such directions, paid the several sums to the persons mentioned. Held, that the plaintiff having read from the answer the admission of the transfer upon trust, was bound also to read from the answer the directions or declarations of A. as to the trust upon which the fund was to be held and disposed of. — FreemanT. Tatham, 5 Hare, 329. That the plaintiff ought not, in the circum- stances of the case, to be allowed to withdraw the part of the answer which had been read. — Id. That as to B.'s statement of the declaration of A., that the residue should belong to B. herself, the court would direct an issue, giving the plaintiff an opportunity of examiningB. thereon, as to tlie directions given to her by A.— Id. That the plaintiff was not bound to read the statement in the answer as to the fact of the pay- ments to the other persons having been made, and thatB. was bound to prove, by other evidence, the payments which she had made in performance of the trusts. — 76. ADMISSIONS.— ADVERSE POSSESSION. 17 On an enquiry before the master, the plaintiff read from the answer and examination of the de- fendant, the executor, an admission that a pro- missory note for £400, belonging to the testator, had come to the hands of the executor shortly after the testator's death ; and the executor was then allowed to read the further statement, that some years afterwards, when the plaintiff (the sole residuary legatee) came of age, he had de- livered the note to the plaintiff, who thanked Inm for taking care of it. — East.y. East. 6 Hare, 343. An admission by a defendant in his answer, that he alone has been in the possession, or receipt of the rents and profit of an estate, since a time therein specified, will not under a decree, directing him to account for the rents received by him, since that time preclude him from shewing in the master's office, that part of such rents was not received by him, but was paid by the tenant to other parties. — Bawell v. Haioell, 2 Myl. & Cr, 478. Where in an affidavit, by the respondent in a petition matter for a receiver, on a judgment he denied that the sum claimed by the petitioner was due, Isut said that the " entire sum due on foot of the judgment, &e. is £474 8s. besides costs, which this deponent is advised that he is not liable to." It was held, that he was thereby precluded from insisting on the statute of limita- tions, as a bar to the full amount of that sum. — Tristram v. Harte, Long. & T. 186. Per Foster B. This affidavit was a sufficient acknowledgment in -writing, to take the case out of the statute of limitations Id. ADMIRALTY COURT. If a bottomry bond has been fraudulently ob- tained, this court has jurisdiction to restrain pro- ceedings on it in the Admiralty Court. — (ilascoie v. Latig, 8 Sim. 358. ADULTERINE BASTARDY. Observations as to the nature and extent, of proof unnecessary, to establish a case of adul- terine bastardy, and as to what kind of evidence is admissible in such cases. — Hargrave v. Bar- grave, 9 Beav. 552. A chHd, born of a married woman, in the first instance presumed to be legitimate. The ■pre- sumption thus established by law, is not to be rebutted by circumstances, which only create doubt and suspicion, but it may be wholly removed by shewing that the husband was, first, incom- petent. Secondly, entirely absent, so as to have no intercourse, or communication of any kind with the mother. Thirdly, entirely absent at the period, during which the child must in the course of nature have been begotten. Fourthly, only present under such circumstances as afford clear and satis- factory proof, that there was no sexual intercourse. Such evidence as this puts an end to the question, and establishes the illegitimacy of the child of a manied woman. — Hargrave v. Hargrave, 9 Beav. 552. It is however very difficult to conclude against thelegitimacy, in cases where there is no disability, and where some society or communication is continued between husband and wife, during the time in question, so as to have afforded oppor- tunities of sexual intercourse, and in cases where such opportunities have occurred, and in which any one of two or more men, may have been the father. ANIiatever probabilities may exist, no evidence can be admitted to shew that any man other than the husband may have been, or pro- bably was the father of the wife's child. Through- out the investigation, the presumption in favour of the legitimacy is to have its weight and in- fluence, and the evidence against it ought to be strong, distinct, satisfactory and conclusive. — Hargrave V. Hargrave, 9 Beav. 652. ADVANCEMENT. See Parent and Child. Bequest of residue to A. for life, with power thereon, to advance her eldest son, and a gift after A.'s death of the said residue, to A.'s children equally. Held, on the context, that the amount advanced to A.'s eldest son, was not to be taken into acooimt in the ultimate division, of the re- mainder amongst A.'s children. — Ujgohny. Upjahn 7 Beav. 152. A person invested certain monies in the savings' bank, and in a private bank, in the name of his wife's nephew. Held, under the circumstances of the case, that the monies were intended for the advancement of the nephew, and upon the death of the nephew, intestate, during his minority, the monies so invested were decreed to be paid to his administrator. — Currant v. Jago, 1 CoU. C. C. 261. Monies were invested in the funds by a father, in the name of his son, the dividends of which were received by the father during his life, under a power of attorney from the son. Held, after his death, that this was an advancement, and that the funds belonged to the son. — Sidmouth v. Sid- mouth, 2 Beav. 447. ADVANCING CAUSE. See Pe. Advancino Cause. ADVERSE POSSESSION. See Limitations Stat, op — Mobtgage. In 1812, W., who was entitled to a mortgage executed in the year 1802, filed a bill against V. the mortgagor to foreclose, and sell. The mortgagor not having appeared, a decree upon sequestration was obtained against him in 1 830, the mortgagee having in the mean time died, and the suit having been revived by his representatives, a receiver was appointed over a portion of the mortgaged premises, the residue being at the time in the possession of an earlier creditor. In the ye.nr 1833, and during the progress of the account in the master's office, the mortgagor died intestate, and the suit was thereupon revived against his heir- at-law and personfd representatives. The heir- at-law appeared in the suit, but did not answer, and the report having been made up in 1837, a decree for a sale was pronounced. On the investigation of the title it was discovered, that shortly before the filing of the bill in 1812, on the occasion of the marriage of V., the equity of redemption in the mortgaged premises had been put into settlement and limited to the mortgagor for life, with remainder to trustees for a term of years, to secure a jointure for his intended wife, and portions for the younger children of the marriage, with remainder to his first and other sons in tail male. This settlement, however, was C 18 ADVERSE POSSESSION.— AGREEMENT. Generally- never registered. In the month of May, 1838, the plaintiffs filed the present supplemental bill against the parties claiming under the settlement, seeking the benefit of the decree and the former proceedings. The widow and younger children having set up as their defence, the statute of limitations, (3 & 4 "Will. 4, c. 27). Held, that the possession of the mortgagor was not adverse to the mortgagee when the statute passed, the possession being partly in the court, and partly in the earlier incumbrance, and that there was, therefore, nothing to take away from the mort- gagee, the benefit of the fifteenth section. — Wrixon V. Vize, 3Dru. & W. 104. The court will compel a purchaser to take a title, depending upon parol evidence of adverse possession under the statute of limitations (3 & 4 W. 4, e. 27.)— Scott V. Nixon, 3 Dru. & "W. 388. A. T., a person of unsound mind, living in the family of M. D ., became entitled, as heiress-at-law, to certain lands. M. D. received the rents and profits of such lands for thirteen years, during the life of A.T., and eleven years after her death, when M. D. died. M. D. had procured A. T. to execute a will, devising part of her estate, and also indentures for conveying other parts to M. D. and her heirs. Held, that M. D. founded her title upon the instruments which she had procured A. T. to execute in her favour, that her claim to the lands in question must be deemed to be under and not against A. T., and that there was therefore no adverse possession as against A. T. or those claiming under her. — Lewis v. Thomas, 3 Hare, 26. K. died in 179 1 possessed of an equity of redemp- tion in the lands of A., held for a term of years under the see of Down, and left two sons, H. and T., H. thereupon entered into possession of the lands of A., and obtained renewals of the lease thereof in his own name ; he also executed mort- gages thereof, applied the, rent thereof in dis- charge of some of his father's debts, and acted as sole owner thereof until his death in 1809. He obtained letters of administration to his father in 1802 ; no claim was set up by T. during the life of H. to these lands. Held, that such possession was not adverse against the representative of T. — Scott V. Knox, Long. & T. 381. Trustees, with the consent of A. B., the tenants for life, had a power to sell the trust estate and invest the produce in other real estates. In 1810, A. B., with the concurrence of the trustees, sold the estate for £8,440, and received the purchase m.oney. About the same time (but whether with the concurrence of the trustees was not proved) A.B . purchased another estate for £ 1 7,400. Of the £8,440, £8,124 was paid by A. B. in part payment for the second estate, the remainder was paid partly out of A. B.'s monies, and partly by money raised by a mortgage of the estate. The estate was conveyed to A. B. in fee, no acknow- ledgment or declaration of trust was ever made by A. B. and he retained possession of the estate till thirty years after, when he became bankrupt. The court agauist A. B.'s assignees, presumed, under these circumstances, that the purchase had been made under the power for the benefit of .he trust, and held that there had been no such ad- verse possession, and no such acquiescence on the part of the trustees as to preclude the court making a declaration that they had a lien on the estate to the extent of the trust monies invested in its purchase. — Price v. Blakemore, 6 Beav. 507. A mortgagee in possession for six years without making any acknowledgment of the mortgagor's title, then purchased the interest of the tenan for Hfe of the equity of redemption, and contmue_ in possession for twenty years longer. Held that such possession was not adverse durmg th existence of the life estate so purchased, andtha the statute 3 & 4 Will. 4, c. 27, s. 28, was no therefore a bar to any suit for redemption b; the remainder or reversioner. — Byde v. Dellawai 2 Hare, 628. ADVERTISEMENT. Where there are two rival works, the coui will restrain the proprietor of one of them fron advertising it in terms calculated to induce th public to believe that it is the other work, bu will not restrain him from publishing an adver tisement tending to disparage that other work.- Seehy v. Fisher, 11 Sim. 581. ADVOWSON. See Ecclesiastical Law. AFFIDAVIT. See Pe. Affidavit. AGENT. See Principal and Agent. AGREEMENT. See Marriage — Husband and Wife — Settli MENT — Solicitor and Client— Frauds, Stat OF — Pb. Injunction — Principal and Agent- Vendoe and Purchaser — Debtor and Credito: I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. Generally 1 When Time is Mateeial 2 Validity op 2 By Letter 2 By Fraud 2 Construction 2 Part Performance 2 What is a Sufficient Signing.... 2 Refusal of Court to Inteefeeb.. 2 Parties Liable 2 Waiver of 2 When Voluntary 2 Interest, When Payable on Sum Decreed 2 When Revoked 2 Satisfaction of 2 Consideration 2 In Contemplation of Marriage .. 2 Specific Performance, When De- creed 2 Specific Performance, When Re- fused 2 I. Generally. The appellant having claimed to be a partnt with one Paynter, in gas works, which the lattt had erected, and was about to sell to a compan then about to be formed, it was agreed betwee them, for the purpose of ending their dispute respecting the ownership of the gas -works, th< Generally. AGREEMENT. Gencralli/. Paynter should be at liberty to sell the works at such a price as he pleased, upon accounting to the appellant for the value of the works at a certain rate, and that Paynter should hold shares for the appellant in the company to the value of £2000, for two years. The company (the East London) having been formed, and having pur- chased the gas works from Paynter, the appellant filed a bill against him, and obtained a decree for specific performance of the agreement. Before that decree was made the company was dissolved, and the gas works were sold to the Ratcliff Gas Light Company. The appellant then filed a new till against Paynter, the Ratcliff Company, the ^Directors of the dissolved company, and the as- signee of Paynter, who had become bankrupt, to establish a lien upon the gas works for what should be found due to him under the former decree, as well as to carry out the former decree against all these parties. Held, by the House of Lords affirming a decree of the Vice- Chancellor, that the sale of the gas works by Paynter to the London Company, was authorized by the appel- lant's agreement, and that he had no just claim against the company, or lien on the property, and that the supplemental bill was properly dismissed with costs, as against all the defendants except Paynter and his assignees. — Pinkus v. Ratoliff Gas Light and Coke Co., 1 Clk. & Fin.,N. S. 309. By an agreement between three incorporated railway companies, A. B. and C. it was agreed that A. shoiid purchase the other two raDways -when completed, and that in the mean time their capitals should be amalgamated, for the purpose of such completion, A. undertaking to supply any deficiency, and it was provided that all three companies should concur in applications to Par- liament for the necessary powers to carry the agreement into effect. At the time the agree- ment was entered into, B. had power, with the consent of three-fifths cf its shareholders, to sell its railway to A. but C. had no such power, and neither B. nor C. had any power of amalgamation. The agreement was duly ratified by three-fifths of the shareholders in each of the three com- anies, and C. subsequently, obtained an act, giving it the required powers, but before a similar act was obtained by B. a large majority of its shareholders had become adverse to the project, so that no such act could be obtained, and the directors of that company, with the sanction of theshareholders, were proceeding toconstructand dispose of their railway in a marmer inconsistent with the agreement. A demurrer to a bill, filed by A. against B. and its directors, for specific per- formance and aninjunotion, was overruled, and the injunction granted, it being clear that, for the completion of the purchase, no further parlia- mentary powers were necessary, and it being at least doubtful whether the defendants could be heard in this court to say that the plaintiffs were not entitled to the performance of that part of the agreement, merely because there was another part (viz. the provision for amalgamation,) which required additional parliamentary powers to give effect to it, which powers they refused to apply for. The court will in many cases interfere to pre- serve property in statu quo, during the pendency of a suit in which the rights to it are to be de- cided, and that without expressing, and often without having the means of forming any opinion as to such rights, and in order to support an in- junction for such purpose, it is not necessary for the court to decide upon the merits in favour of the plaintiff. If, therefore, the bill states a sub- stantial question between the parties, the title to the injunction may be good, and yet the title to the relief prayed may ultimately fail. — Great Western Railway v. Birmingham and Oxford Junction, 2 Phil. 697. Evidence of former transactions between the same parties can be received, for the purpose of explaining the meaning of the terms used in their written contract. — Bourne y. Gatliff, 11 Clk. & Fin. 45. Demurrer to a bill against the provisional committee of a projected railway company, for the specific performance of an agreement to de- liver to the plaintiff a certain number of scrip certificates, allowed, there being no allegation in the bill that the defendants had in their posses- sion any scrip to deliver, but statements from which the contrary might rather be inferred. Whether such an agreement is a subject of specific performance, quare. — Columbine v. Chi- chester, 2 Phil. 27. In a suit for specific performance of a written agreement, a parol variation, not set up by the answer, but coming out on the cross-examination of the defendant's agent, who was one of the plaintiff's witnesses, is a proper subject for en- quiry before the court finally disposes of the case. Semble, But the plaintifl' consenting to adopt it as part of the contract, a specific performance of the contract, with the parol variati' n, was de- creed immediately, with costs — London and Birmingham Railway Co. v. Wint r, Cr. & Ph 57. T. H. a merchant in partnership with A. H. died in 1790, unmarried and intestate, possessed oE leasehold property, and leaving his sisters. Lady S. and Mrs. 1). his sole next of kin. Soon after his death the partnership was, on investigation by the creditors, found to be insolvent, and Lady S. and Mrs. D. with consent of their hus- bands, duly renounced administration of his estate. By indenture made between Sir W. S. and his wife. Lady S. of the first part, the said A. H. of tlie second part, and his then new part- ner R. of the third part, after reciting that Ids former partnership was insolvent, that A. H. and E, had undertaken to settle with the creditors by composition, which could not be effected without administration of T. H.'s personal estate, and that there had been money transactions between him and Sir W. S., of which neither kept any account. Sir W. S. and Lady S. renounced, at R.'s request, all their right to the said administration in fav lur of A. H., who in consideration thereof covenanted, after obtaining such administration, to release Sir W. S. from all claims to which he, as ad- ministrator of T. H. or otherwise, might have on Sir W. S., and Sir W. S. in consideration of such release, covenanted for himself, hLs heirs, ex- ecutors, and administrators, and for his said wilfej that they. Sir W. and Lady S., would, after such administration should be granted A. H., execute to him, his executors and administrators, a release of all claims whatsoever which they might have on him as administrator of T. IL, or otherwise. The creditors also, by a composition deed, agreed to accept 15s. in the pound, payable by instal- ments by A. H. and R., and to allow A. H. to take out administration of the estate of T. H. ; after- wards D., the husband of Mrs. D., by a deedpoU, after reciting that he had an unsettled demand against T. H.'s estate, and that the effects of the late partnership, together with his private estate, were insufficient to pay the partnership debts, and that the creditors entered into a composition and agreement with A. ILand R., as aforesaid, de- 20 Generally, AGREEMRNT. When Time is material. clared that a bond for £1000, given to him by A. H. and E., pursuant to an agreement therein recited, should, when paid, be in full discharge of all sums of money due to him from T. H., and of all claims whatsoerer, of him, D. on the estate and effects of T. H., A. H. then took out letters of administration of T. H.'s estate, and, in order to pay the creditors, raised sums of money by an- nuity and mortgage on the said leasehold property, E. joining in the securities, but in 1793, being unable to pay the whole composition by what they had then received from the intestate's estate, they entered into further arrangement with the creditors, and soon afterwards dissolved partner- ship, R. remaining in exclusive possession of the leasehold premises, of which he afterwards pur- chased the fee simple, and, dealing witli them as his own for several years, without any interfer- ence by A. H., or the said next of kin, or their husbands, who survived them, all of whom died between the years 1797 and 1815, he (E..) mort- gaged them in 1815, to secure debts due by him to I), and Co. subject to the leases possessed by the intestate, subject to which healso in 1818, released to them the equity of redemption, and they after- wards sold the property in fee to other parties. A bill to redeem the premises was filed against these mortgagees and purchasers in 18.31 by the administrator de bonis non of T. H., claiming also as representative of the next of kin. There was no proof of the execution of a release in pursu- ance of the covenant by Sir W. and Lady S., ex- cept that it appeared from their deceased attor- ney's billbook that he had prepared such release. Held, by the lords, that it was immaterial whether such releases were executed or not, as the various acts of ownership exercised over the leasehold property by A. H., and by R., and those deriving under him all dealing with it as their absolute property for a period of 37 years with the acqui- escence of the next of kin, and their representa- tives, established beyond all doubt an agreement by the next of kin to give up all their interest in it in consideration of the arrangements of 1790. — Skeffington v. Budd, 9 Clk. & Fin. 219. Semble, if the residue had not been so released, and time, and the acts, and acquiescence of the parties had not been a bar to redeem, the admi- nistrator de bonis non of the intestate would be entitled to sustain such bill, notwithstanding that the equity of redemption had been reserved to the original administrator's representatives, and not to the administrator of A. H., the former administrator. — Id. _ Decree for the execution of a lease to the plain- tiffs, according to the terms of an agreement en- tered into between the two defendants, it appear- ing that one of the defendants who resisted the decree, and claimed the benefit of the agreement for himself, acted as agent of the plaintiffs in ne- gotiating the lease from his co-defendant, so that his own intention was immaterial, and the court being satisfied moreover upon the evidence that the real object and understanding of the contract- ing parties was an agreement for a lease for the benefit of the plaintiffs. — Taylor v. Salmon, i Myl. & Cr. 134. The commissioners appointed under the local acts of parliament for improving the town of Cambridge, have, upon the true construction of those acts, a continuing right to exercise from time to time the power vested in them of taking property for the purposes of the acts, and of re- ferring the assessment of the price to a jury, so long as may be required for carrying into luU effect the purposes contemplated by the acts. J person, whose property is required by the commis sioners for the purposes of the acts, is not entitlei to restrain them by injunction, from taking thi steps prescribed by the acts for obtaining posses sion of the property untU. they shall have shewi a sufficient fund in hand to satisfy the pric( which may be awarded to him, or until they shal have shewn the means by which they propose tc procure it. — Salmon v. Randall, 3 Myl. & Cr. 439 An order for a reference as to title ought tc contain directions for the production of deeds, &c., and for the examination of the parties on oath. — Winierbottom v. Ingham, 9 Sim. 654. This court will not interfere to compel the spe- cific performance of an agreement unless it can itself execute the whole contract in the terms specifically agreed upon. Accordingly, where a bill prayed the specific performance of a contract, one of the terms of which was to the effect that if any damage should result to the defendant from certain works, the erection of which had been agreed upon between the parties, the plaintiff would give to the defendant an equivalent in land to the amount of the damage, and the quan- tity of the compensatory land to be ascertained by certain arbitrators. Held, that the court had not jurisdiction to grant such relief. The execu- tion of a deed containing covenants for the per- formance of that part of the contract which lay in fieri would not be a specific performance.— Gervais v. Edwards, 2 Dru. & W. 80. A bill by a landlord against his tenant for spe cifio performance of an agreement for a lease to be taken by the latter, and an action by the land- lord against the tenant for use and occupation of the premises during a part of the term. Held, to be proceedings for the same matter so far as the subject of the suit was co-extensive. — Ambniat V. Nott, 2 Hare, 649. II.— When Time is Mateeiai,. Agreement for a lesise of 5 years from the 1st of April, 1840, the landlord undertaking to erect by that time a new warehouse on part of the ground to be devised, and to put the old ware- house in repair, the amount of the rent to be de- termined with reference to the amount of the lancUord's expenditure on the buildings. The new building was not erected, nor the old ware- house repaired on the 1st of -4.pril, but no objec- tion was "made by the intended lessees, who then occupied part of the premises under a former agreement, and shortly afterwards the whole pre- mises were destroyed by fire. In such circum- stances, held, upon a bill filed by the landlord for specific performance of the -agreement and for the defendants to rebuild the premises, and to accept a lease, that it was a condition precedent that the premises should be put in repair before the lease was granted, and that as the landlord had not performed his engagement within the time limited, the contract could not be enforced in equity, and the bill dismissed. — Counter v. Macpherson, 6 Mo. 83. A contract for the sale of the vendor's interest in a manor, under a lease for lives, was made on the 16th October, 1840. Objections were taken to the title, and a correspondence between the solicitors of the vendors and purchaser took place, and continued until the 20th of August, 1841, when the purchaser gave notice to the ven- dors that the title being defective, he rescinded V When Time is material. AGREEMENT. Bi/ Letter. 21 the contract. The correspondence -with reference to the title still proceeded, (the purchaser's so- licitor, claiming his right to insist upon the no- tice, but giving the vendors two months more to complete the title,) until the 17th of January, 1842, when the purchaser intimated that he should fall back to his position under the rescinded con- tract. The bill was filed on the 30th of August, 1843. Held, that the interval between the 20th of August, 1841, and the 17th of January, 1842, ought not to be regarded in the question of laches, but that the delay, after the 17th of January, 1842, before the bill vfas filed, precluded the vendors from sustaining their suit for specific performance. — Southcomb v. The Bishop of Exeter, 6 Hare, 213. The fact that the purchaser allowed the de- posit to remain in the possession of the vendor from the time he (the purchaser) declared the contract to be rescinded until shortly before the bill was filed, when he brought his action to re- cover it, did not afiect the question of laches. — Southcomb v. The Bishop of Exeter, 6 Hare, 213. The possession of part of the property com- prised in the contract taken under a mutual ar- rangement, and in ignorance of the objection to the title which was afterwards discovered and relied on, did not afiect the question of laches. — Id. The tendency of tlie court in modem cases has been to restrict the exercise of its jurisdiction in enforcing specific performance of contracts to those cases in which the plaintiff has been prompt in seeking his equitable remedy — Id. The purchaser being in possession of part of the property under the arrangement, and being advised to rescind the contract and assert his pa- ramount title to the property, was not bound to give up possession before he could assert such paramount title by making a formal entry on the property. — Id. By a contract for sale of an estate it was agreed that the purchase should be completed on a cer- tain day, but that all rent to accrue in the interim should belong to the vendor, his heirs, executors, and administrators. The vendor died intestate before the day appointed for completing the pur- chase. Held, that rent accrued between that day and the vendor's death belonged to his heir. — Shadforth v. Temple, 10 Sim. 184. Lands were conveyed to a trustee in trust, to grant a lease of the mines under the same to cer- tain persons for forty-two years, and at the request of the lessees, made at any time there- after, to grant a further lease of the same mines for twenty-one years, to commence at the expi- ration of the first term ; the first lease to contain a covenant for renewal for the second term. The leiise of forty-two years was made accordingly, shortly before the expiration of the first term. The lessees applied for the renewal, which was refused. No proceedings were taken to enforce the performance of the covenant in trust for up- wards of two years after the refusal. Held, that BO far as the title to renewal depended on the covenant, the delay or acquiescence would be a defence in equity. — Walker v. Jeffcrrys, 1 Hare, Semble, that the lessees had an equitable in- terest in the trust, which would not be divested by the delay alone, but, that the lessees in sup- port of the title to a decree for performance of the trust, must shew that they had by performing the covenants on their part, paid the price for "which, on the instruments, the lessors had stipu- lated. — Id. The performance of the covenants by the les- sees being doubtful, and the lessees declining to try issues as to the fact, the bill was dismissed with costs. — Id. Several suits at law and in equity, to determine the title to certain lands, were pending between persons claiming to be mortgagees of such lands, and one who claimed the same lands, in foe by title under a settlement paramount to the mort- gage. The plaintiff claiming to be a subsequent mortgagee of the same lands, contracted to pur- chase the interests of the prior mortgagees in their principal monies, arrears of interest and securities, and to pay the purchase money at certain stipulated times, all of which (except an annuity) were to be paid in 1843, and to pay and indemnify the prior mortgagees against the past and future costs of the units and proceedings ; and time was to be of the essence of the contract. The plaintiff did not pay the instalments until a considerable time after the stipulated period, but such later payments were accepted by the ven- dors. The bill filed in 1845 (when some of the payments still remained to be made) alleged that the defendants refused to perform the agreement, and prayed a specified performance. Held, on demurrer, that the plaintiff being interested as second mortgagee in the subject of the suits, the contract was not to be deemed champerty. — Hunter v. Daniel, 4 Hare, 420. That the defendants, insisting upon their right to treat the agreement as void, the plaintiff was not bound to tender the unpaid instalment of the purchase money before filing his bill. — Id, That every default by the plaintiff in payment of the Instalments at the stijjulated time, is a new breach of the contract, giving the defendants the right to rescind it ; but that to preserve such a right, it must be asserted immediately that the breach occurs ; and that in this case tie breach had been waived. — Id. That the time for performing the several acts required by the agreement on both sides being past, the court would now enforce a contempo- raneous performance of the contract by both par' ties. — Hunter v. Daniel, 4 Hare, 420. m. — ^Validity op. An agreement between two persons who are desirous of purchasing an estate, advertised for sale by auction, that one of them shall not bid against the other is not illegal. — Gallon v. Emms, 1 Coll. C. C. 243. A. and B. agree, that in consideration of A.'s withdrawing his opposition toB.'s purchase of an estate at a sale by auction, A. shall have the right of pre-emption of that estate, and of another estate belonging to B. during B.'s lifetime, and for twelve months after his decease. The agreement is founded upon valuable consideration, and can be enforced against the devisees in trust and ces tui que trusts under the will of B. — Galtony, Emuss, 1 Coll. C. C. 243. rV. — By Letter. Semble, that a letter written and signed by a father after the mamage of his daughter, ad- mitting the terms of certain written proposals which had not been signed, was a recognition of them as his agreement suificiently signed by him under the statute of frauds. — Hammersley v. De Biel, 12 CI. & Fin. 46. 22 By Fraud, AGREEMENT. Consti uction. . A letter, oifering a contract, does not bind the party to ■whom it'is addressed to return an answer by the very next post after its delivery, or to lose the benefit of the contract, an answer posted on the day of receiving the offer is sufficient. — Dunlop V. Higgins, 1 Clk. & Fin. N. S. 381. A contract is accepted by the posting of a letter declaring its acceptance. — Id. A person putting into the post a letter declaring his acceptance of a contract offered, has done all that is necessary for him to do, and is not answer- able for casualties occuiring at the post-office. —Id. In an action for damages for breach of contract in the sale of goods, the measure of damages is not merely the amount of the difference between the contract price and the price at which such goods could be bought at the moment the con- tract was broken, but likewise a compensation for such profit as might have been made by the purchaser had the contract been duly performed. —Id. An agreement between B. and C. was commu- nicjted by one of the parties to A., after applica- tions in writing from A. for the signature of the other parties, to a memorandum expressing his interest as a partner in the transaction relating to the land, the subject of the agreement ; and the court held that the agreement so commu- nicated must be taken not as an original proposal, but as an acknowledgment of a pre-existing right in it ; and that A. might avail himself of the acknowledgment, notwithstanding the agreement between B. and C. was res interalios acta, and not- withstanding A. objected to some of the terms in. that agreement as not truly expressing his part- nership contract. — Dale v. Hamilton, 6 Hare, 392, v.— By Feaud. A. agreed with P., in consideration of £165,000, to grant to P. a lease of certain mines, as trustee for a Joint Stock Company, which P. undertook to form, the consideration to be paid partly in shares in the company, partly in money to be raised by calls on the remaining shares. The lease was afterwards executed, and the company having been formed, with power to sue and be sued, by one of the directors, entered into posses- sion, and worked mines, and paid part of the purchase money. Upon A.'s death, P. as his exe- cutor, filed a bill against V,, then managing director of the company, for an account and pay- ment of what remained due to A. of the purchase money. V. answered, and then filed a cross bill on behalf of tlie company, setting forth various matters as evidence of misrepresentations, con- cealment and other frauds practised by A. and P. on the Company, and prayed that the considera- tion might be declared exorbitant and fraudulent, and that the company was entitled to a valid lease of the mines at their true reduced value. Or that the said agreement might be declared fraudulent and void, and the company discharged therefrom, and entivled to a lien on A.'s estates for the payments made to him. Held, first that the company were not entitled to any relief from their contract by reason of acts and misrepresenta- tions which proceeded from themselves, or were adopted by them, and acquiesced in, after full knowledge, while they continued to work and exhaust the mines. Secondly, That as the ex- ecuted contract was not to be set aside, A.'s executor was entitled to the account and payment prayed by this Wi.— Vigers v. Pike, 8 Clk. & Fin. 562. , Agreement obtained by a surgeon ^om j decease patient, set aside upon the ground, thai the court was satisfied that the patient never die agree to, or intend to direct what, in the alleged agreement, he was represented as agreeing to, and directing, and that his signature, if genuine, must have been obtained by fraud, or under such cir- cumstances as rendered it the duty of a court of equity, to protect the patient and his estate from being prejudiced by it. This relief stands upon a general principle, applying to all the variety of relations, in which dominion may be exercised by one person over another. — Dent v. Bennett, 4 Myl. & Cr. 269. A. and B. having entered into a verbal treaty for the purchase of certain premises belonging to A., and not being able to agree as to the amount of the purchase money, A. addressed a letter to C, a third person, stating that he would take a certam. sum from B., for the premises reserving a small portion of the same, for his sister,if C. appro- ed of it. B. subsequently lodged the sum named by A. with C, of which lodgment, C. made a memo- randum on A.'s letter, with a remark that h was " a great price," during the period of this negoci- ation between A. and B., A. entered into a con- tract with D., for the sale of the same premises, and although notice of the agreement between A. and B., was given to D., actually conveyed the premises to D. Held, on a bill filed by B., for the specific performance of the agreement, that C. must be considered the agent of A., and that as he had signed the contract, acknowledging the receipt of the purchase money, A. was bound to perform the agreement. Also thatD. having had notice of the agreement between A. and B., the conveyance to him must be considered as fraudu- lent, and should be delivered up to be cancelled, and that the conduct of A . having been fraudulent the costs of B. should in the first place be paid out of the funds lodged by her in the hands of C— Field V. Boland, 1 Dru. & "Wal. 37. VI. — CONSTEirCTION. By an agreement between an author and a book- seller, after reciting that the author had prepared a new edition of one of his works, and that the book- seller was desirous of purchasing it ; it was agreed that Messrs. H. (printers) should print 2,500 copies of the work, in type and page, corresponding with another of the author's works, and at the sole cost of the bookseller, and that the latter should pay to the former, for the said edition, a certain sum by instalments, the first to be paid as soon as the edition was ready for publication &c., the work to be divided into three volumes, and to be sold to the public at £3. Held, that the bookseller was not merely a purchaser of 2,600 copies of the work, but was, in equity, an assign of the copyright of it, to the extent that he was to be the sole publisher of it, until the whole edition consisting of 2,500 copies should be sold, and consequently that a bUl by him tc restrain a piracy of the work was not demurrable. Held, also, that notvrithstanding some of the pMsages alleged to have been pirated were con- tained in the prior editions, as well as in the ne'B edition of the work, the plaintiff was entitled tc rely upon them in aid of his title to the relie: prayed. 'The injunction having been granted or the plaintiff undertaking to try his right at law. Construction, AGREEMENT. Construction.. 23 and the author declining to allow the plaintiff to bring the action in his name, the defendant was ordered to admit, atthe trial, that the plaintiff was the legal proprietor of the pirated work. — Sweet V. Cater, 11 Sim. 672. By a contract for the execution of railway works, after specifying certain works to be done for a gross sum, it was provided that extra works, which the company or their engineer should by any writing under his hand require to be executed, should be deemed to be included in the contract, and should be paid for at a certain rate, and that the contractor, should not be entitled to make any claim for any alteration, or addition, which he might make, without such wi-itten, and signed instructions. Held, by the Vice-Chanccllor of England, (affirmed on appeal by the House of Lords,) that a suit, for an account of the monies due to the contractor. In respect of works done under tlie contract, was a proper subject of juris- diction in equity. Held, by the Vice-Chancellor, Wigram, (upon exceptions), that a diiection for an account of extra works, done by the plaintiff under, and by -virtue of the contract, did not authorise any account to be taken of works, (other than the specified works) done by the contractor, with the privity of the company, with- out written instructions, but that the court would give the plaintiff liberty to bring his action at law against the company, in the respjct of works done without such instructions, not however relieving him against the legal effect of the lapse of time during the proceedings in equity. Whether, if the contractor could not in covenant recover for extra works, done for the company without written instructions, he might not recover in assumpsit, qusere. — Nixon v. The Taff. Vale Railway Co., 7 Hare, 136. The law of the country where a contract is made, or is to be performed, furnishes the rules for expounding the nature and extent of its obligations. But the law of the country, where it is sought to enforce performance of a contract, governs all questions, as to the remedy and mode of proceeding, including lapse of time. — Ferffitsso/i v. Fyffe, 8 Clk. & Fin. 121. Upon the construction of certain letters aided by parol evidence. Held, that a testator for valuable consideration, contracted to grant an annuity for the lives of certain persons, and upon the construction of the testator's will. Held, that the same annuity was charged as a " debt " upon his real estate, in exoneration of his personalty. — Moneypenny v. Mascoll, 2 Coll. C. C. 213. A. being entitled to the freehold lands of Blackacre and Whiteacre, in- 1806 granted the former in mortgage to secure an advance of £1000, and at the same time executed a colla- teral bond, upon which judgment was duly ob- tained in Easter Term, 1806. This judgment ■was not revived untU. 1839, and was never re- docketed under the 9 Geo. 4, c. 35. In 1829, A. granted to B. an annuity of £400, charged upon Whiteacre, and in 1833 died, having de- vised "Whiteacre, subject to annuity to his wife, and all other property to two trustees, upon trust to sell, and, after payment of his debts, to make an equal distribution thereof among his younger children: one of the trustees died in his lifetime, and the other refused to act. In 1834, there being a considerable arrear of head rent due upon Whiteacre, and the head land- lord having brought an ejectment, B. paid the arrear of rent and the costs of the ejectment, and subsequently entered into a contract with the younger children for the purchase of White- acre, but died without having completed the same, his widow and executrix, the principal defendant, however, afterwards adopted the con- tract, and by a deed of the 29th of February, 1840, Whiteacre was conveyed by the younger children to the defendant, habendum to her, her heirs, and assigns, free from all incumbrances, except three judgments, one of which was the judgment of £1000 above-mentioned, and the annuity of £400. The covenant in the deed against incumbrances, however, was general. The surviving trustee of the will, though named a party in the deed, never executed it. On a biU, filed by the plaintiff, who was entitled to the mortgage of 1806, and the judgment col- lateral, alleging that Blackacre was insufficient, and seeking to make good the deficiency by means of the judgment out of Whiteacre. Held, that as the sale of Whiteacre was by the younger children, it was only the residue after payment of the debts that was sold, and that, consequently, the lands in the possession of the defendants were, notwithstanding the provisions of the statue 9 Geo. 4, c. 35, liable to the judgment, — Gamett v. Armstrong, i Dm. & W. 182. A vendor being; seized in fee of lands, sub- ject to annuities, which she granted to an at- torney in consideration of advances made and costs incurred by him, agreed to sell the lands to the plaintiff, stating to him that the grantee of the annuities would gain in the conveyance. A deed of conveyance was executed by the vendor, the pui-chase-money was not paid, but part of it was deposited with the attorney who had acted for the vendor and the plaintiff, to remain in his hands until the lands were dis- charged from the annuities. The plaintiff then called on the vendor and the grantee of the an- nuities to execute a deed of indemnity, which parties declined to do. The vendor subse- quently sold the lands to the grantor of the an- nuities who had actual notice of the plaintiflTs conveyance. On a bill filed to set aside the second sale. Held, that the vendor was justified in treating the transaction between her and the plaintiff as incomplete, and in selling to the grantee. It was attempted to impeach the con- sideration of the annuities, but semble such a question was not open to the plaintiff. — Leader V. Ahearne, 4 Dm. & W. 495. A. by deed contracted with B., that in consi- deration of £100 expressed to be paid to A., by B.,he (A.) would maintain, educate, and appren- tice B.'s lMIJ, a boy of five years, and that if he had no cnUd of his own, B.'s child should, in case of his attaining twenty-one years, have all his (A.'s) real and personal estate at his death, subject to a life interest for his widow. It ap- peared, from the cu-cumstances of the case, pro- bable that the appai'ent consideration of £100 was not in fact paid, or intended by either party to be paid, and that it was stated in the deed pro forma oidy. There was some evidence that the child was at A.'s house after the date of the deed, but it appeared doubtful whether the child ever lived with A. iix the manner provided by the con- tract, and he soon after was living with his father (B.) and the court was satisfiedthatA. andB., by agreement between themselves, abandoned the contract, and the status of the child had not been altered by any thing done by A., in pursuance of the contract, upon a bUl filed by the child after the death of A. Held, that the contract 24 Comtruotinri, AGREEMENT. Part Performance. having been abandoned, by the contracting par- ties, could not be enforced by the child. Whether this court would perform a contract by which a person, for a sum of money, deprives himself the possibility of realising property which he can dispose of by wiU, and thus destroys an active motive for bettering his condition in life. — Quiere. Whether if the contract had been so acted on by A, as to alter the status of the child, the child could have enforced the contract. — Quiere, — Hill V. Gomme, 6 Myl. & Cr. 250. A party cannot, by committing a breach of con- tract, divest himself of an estate subject to in- cumbrances, and acquire a new interest, dis- charged of those incumbrances, — Jones v. Kear- ney, 1 Dru. & W. 134. An agreement to sell land, not expressing what interest in it, is construed to mean the whole of the interest of the vendor in the land. — Bower v. Cooper, 2 Haie, 408. An agreement to purchase land for an annuity for the life of the vendor to be a charge on the land, and to be paid quarterly, entitles the ven- dor, not only to the security of the charge, but to the covenant of the purchaser for the payment of the annuity — Id. A deed, dated in 1827, and made between J. Pitt of the one part, and the other persons who had executed the deed of the other partj recited that Pitt, being seized in fee of the lands, deli- neated in the plan thereto annexed (being Pitt- ville), and having it in contemplation to establish a spa at or near the north end of the lands, and to erect a pump-room at or near the spot marked in the plan, and to lay out the rest of the lands for buildings, pleasure grounds, roads, &c., had catised the plan to be drawn, whereby the mode in which the lands were intended to be laid out, and the purposes for which they were intended to be converted and used, were described in order that the beauty and regularity of the whole of the design might be for ever thereafter preserved, subject only to such alterations as should be made or approved of by Pitt, his heirs, or assigns, and as should not destroy the general beauty of the same design, and that each of the other parties to the deed had purchased, or agreed to purchase, one or more of the pieces of land described in the plan as set out for building. The deed then con- tained covenants by Pitt, his heirs, and assigns, to complete the pleasure groimds, roads, &c., and to keep them in repair, and other covenants prescribing the manner in which the pleasure grounds, roads, &o., should be enjoyed and used by the occupiers of the houses to be erected on the building groimd, and that Pitt, his heirs, or assigns, would on every agreement which should be entered into by him, or them, for the sale of any part of the building ground, require the pur- chaser to covenant with him, his heirs, and as- signs, not to erect any messuage on any part of the ground which might lessen in value any other of the messuages erected, or to be erected at Pitt- ville.' In 1833, Pitt agreed to sell lots 2, 3, 4, and 6, of the building ground to Stokes, and Stokes agreed with him to erect three houses on those lots, and that each house should stand back 25 feet from the western boundary of the lots, and that Stokes, his heirs, or assigns, would not do, or suffer to be done, on the lots, or in any building to be erected thereon, any act, deed, &c., which might be deemed a nuisance, injury, or annoyance, or which might lessen in value any adjoining or neighbouring lands or property, or any houses to be erected thereon. Stokes built two houses on lots 2 and 3, and, in 1833, Pitt conveyed those lots to him, and Stokes, for himself, his heirs and assigns, entered into a covenant with Pitt, his heirs and assigns, with respect to those lots and the houses thereon, similar to the last-mentioned stipulation in the agreement. Stokes subsequently gave up lots 4 and 5 to Pitt, and abandoned his agreement as to them, and then sold his house on lot 3 to the plaintiff. Pitt afterwards agreed to sell lots 4 and 5 to Creed. The agreement stipulated that the house, to be erected on those lots, should stand back 10 feet, at the least, from the western boundary thereof, and it contained a stipulation for protecting the adjoining property &om injury, &o., similar to that in Stokes's agreement. Both Stokes and Creed executed the deed of 1827. Creed began to buUd a house on his lots, 13 feet distant from the west boundary, which was 12 feet in advance of the plaintiff's house, and which the plaintiff alleged would be a nuisance or an- noyance to him, and would lessen the value of his house, and, consequently, would be a viola- tion of the covenants in. the deed of 1827, and of the agreement of 1833. Held, that the plan an- nexed to the deed of 1827, was merely a general plan, and was not intended to be strictly adhered to, but its details might be varied by Pitt, and, with his sanction, by the purchasers from him, and that the plaintiff was not entitled to avail himself, as against either Creed or Pitt, of the covenants of 1827, or of the agreement of 1833, for the purpose of preventing the completion of Creed's house in the manner intended, or the per- formance by Pitt of the agreement with Creed.— Selireiber v. Creed, 10 Sim. 9. A husband went abroad, leaving his wife and child unprovided for, whereupon the father of the husband and the father of the wife entered into an agreement to allow the wife £30 each " so long as she should continue separate and,- apart from" her husband. Held, that the allow- ance terminated by the death of the husband.— Miller v. Woodward, 2 Beav. 271. A. when tenant for life only of an estate, agreed to sell the fee to B. B., devised the estate to C. A., some years afterwards, acquired the fee, and conveyed the estate to B. Held, that it did not pass by B's will. Duckle v. Baines, 8 Sim. 525, Vn. — Paut Performance. If an agreement consists of two distinct parts, one of which the court can enforce but not the other, and a bill is filed simply for an injunction to restrain the violation of the former part, the court will grant the injunction, notwithstanding it would not enforce the agreemnnt in toto. — Rolfe v.Eolfe, 16 Sim. 88. The bill stated a parol agreement in part per- formed, for a lease of a farm to be granted by the defendant to the plaintiff, one term of which was that a certain arable field should be laid down in pasture. The plaintiff entered and laid down the field, and it was afterwards severed from the farm, and an abatement in the rent was made in respect of it. The witness examined to prove the agreement did not state that it contained any provision as to laying down the field, so that the agreement proved varied from that alleged in the bill, and on that account the court refused to decree a specific performance. — Mundav v. Jollife, 9 Sim. 413. Specified performance decreed of a parol agree- Parties Ualle. AGREEMENT. Waiver of. 25 meht (in part performed) for surrendering a lease, and granting a new lease at a reduced rent. —Parker v. Smith, 1 Coll. C. C. 608. YIII.— What is a sufficieni! Signing. J. R. Bridges) having five freehold houses, but no other property, in Cable Street, Liverpool, agreed to sell them to J. Bleakley for £248, and, thereupon, drew up the following memorandum in his own hand-writing : " July 26th, 1839, — John Beakley agrees with J. E.. Bridges to take the property in Cable Street, for the net sum of £248 10s." Held, that the agreement was suffi- ciently signed by the vendor. Bleakley v. Smith, 11 Sim. 150. Contract for the purchase of tithes not signed by the party chargeable. Held, under the cir- cumstances, to have been taken out of the statue of frauds. — Blaehford v. Kirkpatrick, 6 Beav. 232. Qtmre, whether the words " approved by me, J. S.," afiixed to certain memoranda, by way of approval, of an arrangement in which the party is interested, is a sisnlug within the statute of frauds.— Parier v. Smith, 1 Coll. C. C. 608. IX. — ^Refusal of Cottrt to Interpekb. In cases of specific performance. Courts of Equii^^ exercise a discretion. In cases of great hardship they will not interfere, but will leave the plaintiff to his remedy by recovery of damages at law. — Wedgwood v. Adams, 6 Beav. 600. Trustees joined their cestui que trust in a con- tract for sale, and personally agreed to exonerate the estate from any incumbrances thereon. There were considerable inciimbrances, and it did not appear whether the purchase money would be su6ficient to discharge them, or what would be the extent of the deficiency. The court refused to decree a specific performance against the trustees, so as to compel them to exonerate the estate, but left the purchaser to his remedy by action for damages. — Id. Specific performance of an agreement to let the workings of quarries, and account of monies due for working the quarries in a particular manner refused, the parties' remedy being at law.— Booth y. Pollard, 4 Y. & C. 61. X. — ^Pakties Liable. By the terms of the resolutions on the forma- tion of a company, the object of which was to purchase land and found a colony, certain trus- tees had the control of an expedition to explore the district ; and it was resolved, that the ex- pense of the expedition should not exceed a certain sum, and that the subscribers were not to be liable beyond a fixed amount. On the arrival in the country, of the persons proceeding on the expedition, they were seized and thrown into prison, and, owing to this, the project failed, and the loss greatly exceeded the limit fixed by the resolutions. Held, that the trustees could not call on the subscribers ior contribution beyond the fixed amount. — Gillan v. Morrison, 1 De. G. & S. 421. A. being tenant for life of an estate, with re- mainder to his sons successively in tail male, entered into an agreement with B. by which it was stipulated that A. should procure an Act of Parliament to enable him to sell the estate to B. ; and that B. should bear all the expenses incident to, and consequent upon, this proposal to pur- chase the estate, together with the expense of obtaining the act, of preparing the abstract, and shewing a title to the estate, and of and about making and completing the sale and conveyance to him, together with the expense of the agree- ment and all other expenses whatsoever of A., in consequence of the sale or arising out of, or in anywise relating thereto, or to the proposal of B. A. accordingly, obtained an act for the sale of the estate to B., which directed the purchase-money to be invested in lands, to be settled to the same uses as the estate stood limited to. Held, that B. was not bound to pay the expenses of the investment. — In re London Bridge Acts, 13 Sim. 180. Certain persons intended to form a railway fi-om A. to B., which was to pass over the plain- tiff's estate. The plaintiff opposed the project ; but, on the agents of the projectors agreeing, in writing, to pay him £20,000 for the portion of his estate over which the railway was to pass, he consented to withdraw his opposition. At the same time certain other persons intended to form a railway between the same termini, but, by a different line, which also passed through the plaintiff's estate, but not through the same part of it as the former line. Fourteen acres of the plaintiff's land were required for the former rail- way, and sixteen acres for the latter. The plain- tiS' opposed the latter railway also. The agents for the rival projectors then entered into and signed an agreement, (which was approved of, and signed by the plaintiff's agent,) by which they agreed that the first line should be aban- doned, and the second adopted, and that the adopted line should take the engagements entered into with the landowners by the abandoned line, and, thereupon, the plaintiff withdrew his opposi- tion to the adopted line ; and the Act of Parlia- ment for making the second railway, and for incorporating the projectors of it, was passed. Held, that the incorporated company were bound to perform the agreement made with the plaintiiT by the projectors of the first railway. — Stanley v. Chester and Birkenhead Railway, 9, Sim, 264. "Where parties, whose rights are questionable, have equal knowledge of facts, and equal means of ascertaining what their rights really are, and they fairly endeavour to settle- their respective claims among themselves, every court feels dis- posed to support the conclusions or agreements to which they may fairly come at the time, and that, notwithstanding the subsequent discovery of common error. — Pickering v. Pickering, 2 Beav. 31. XI. — Waiveb of. Specific performance of an agreement refused, the party seeking performance having been held under the circumstances to have abandoned the contract. — Garrett v. the Earl of Besiorough, 2 Dru. & Wal. 441, A. being entitled to an undivided moiety of a piece of groimd, agreed with B. that in case either of them should at any time purchase the other moiety, the whole should be divided in a par- ticular manner between them, the moiety was sold to a third party, whereupon A. and B . further agreed that neither of them would purchase that moiety, untU they had agreed for a sum to be 26 Satis/action of. AGREEMENT. Consideration. given for it, subject to the stipulations and con- ditions of the former agreement, A. afterwards refused to agree upon the price to be given, and B. having purchased the moiety of the property, A. refused to carry the agreement into effect. Held, that A. vi'as not justified in refusing to fix a price, and a suit having been instituted against him by B., for a partition of the property. Held, also, that A. had abandoned the contract and could not set it up as a bar to the partition. — Morris y. Timmina, 1 Beav. 411. XII. — When Voluntaky. A debtor effected an insurance on his life, one condition of the policy being that if it should be sussigned bnnafide, the assignee should have the benefit of it, so far as his interest extended, not- withstanding the assured should commit suicide ; he deposited the policy with his creditor, ac- companied by a letter promising to assign it to him, when requested, as a security for his debt. No notice of the assignment was given to the assurers. The debtor committed suicide. Held, that inasmuch as the deposit of the policy, and the agreement to assign it by way of security for a debt, constituted in equity a valid assignment as between the parties to the transaction, it was also an effectual assignment, within the condition, as against the assurers. — Cooky. Black,l Hare 390. XIII. — Interest, "When Payable on Sum Decreed, On a decree for the specific performance of a contract for the purchase of a reversion expectant, on a lease for lives, the vendor is entitled to interest on the purchase-money, from the day on which the master reports that a good title could have been made. — Enraght y. Fitzgerald, 2 Dru. & "W. 43. XIV. — When Revoked. An authority given to an auctioneer to sell may be revoked by the vendor at any time before the sale, and such revocation is valid against parties dealing without knowledge of it, therefore in a suit by a purchaser to enforce specific performance of a contract entered into by the auctioneer, by mistake or inadvertence, for the sale of property, as to part of which — a right of way over the land sold — his authority had been revoked, it is com- petent to the defendant to insist upon such re- vocation, and parol evidence is admissible in support of that defence. — Manser v. Back, 6 Hare, 443. XV. — Satiseaotion op. A parent in the written proposals on the mar- riage of his daughter stated, " He intended to leave his daughter a further sum of £10,000 in his will, to be settled on her and her children, the disposition of which, supposing she has no children, to be prescribed by the will of the father." He died without leaving that sum : Held, under the circumstances that there was an obligation in the parent, to be satisfied out of his assets. — De Beil v. Thompson, 3 Beav. 469. A. having invested in stock a sum of money in pursuance of a settlement, by way of portion for one of his daughters, and having given a bont for the payment of a further sum at his decease entered into an agreement with B. to make i provision for his unmarried daughter on hei marriage with B., on a basis of equality with th( provision made for his married daughter, a memo- randum of the terms (in which some variations were afterwards made by the parties,) was written at the direction of A., by A.'s solicitor, in the presence, and with the approbation of B., and A, gave instructions to his solicitor to prepare a settle- ment in conformity with the memorandum, subject to the variations, but he died before such settle- ment was executed, having made a will by which he gave a share of the residue of his estate to his married daughter. B. married the daughter of the testator, and performed his part of the agree- ment comprised in the memorandum, and on a bill filed by him and his wife, claiming the por- tion agreed to be settled against the testator's estate, it was held, first, that the memorandum was not a binding agreement within the statute of frauds. Secondly, that the share of the residue given by the will to the daughter, married in the testator s lifetime, was a satisfaction of that part of her portion, which was secured by bond. — The Earl of Glengall, v. Barnard, 1 Keen, 769. X VI. — Consideration. Stopping a suit in the Ecclesiastical Court for nullity of marriage, on the ground of impotency of the husband, is a good and sufficient consideration to him for agreeing to articles of separation, and so is a covenant by a third party to pay the husband's debts. — Wilson y, Wilson, 1 Clk. & Fin., N. S. 538. The plaintiff was the lessee of a house, and other premises, for a term of thirty-one years, at a rent of £60, and was under a covenant to make certain improvements on the property, he was also tenant from year to year, of an ajoining meadow belonging to a different proprietor, at a rent of £9. The lessor of the house became the purchaser of the meadow, and by arrangement between him and the plaintiff the improvements were extended, and part of the house was made to project over the field, and part of the field was attached to the demised premises, the plaintiff paying about half the expense of the alterations, which far exceeded the sum he had originally covenanted to lay out, and also signing a memorandum which the lessor drew up, whereby he agreed to pay an entire rent of £80 a year, for the consolidated property. Held, that the extension of the house into the meadow by the plaintiff, with the concurrence of his landlord was evidence of, and was sufficient consideration for, a contract to demise the mea- dow,- — Sutherlnnd v. Briggs, 1 Hare, 26. That the act of building part of the house upon the meadow, if it was evidence of any right, was evidence of a right which affected the entire tenement, and that it could not be restiioted so as to affect only the part of the meadow actually built upon.— /rf. That the extension of the house, part of the demised premises, into the meadow, and the in- crease, and consolidation of the rent, was evidence that the meadow was to be held for the same term as the demised premises. — Id. That the doctrine with regard to the mutuality of contracts, had no application to such a case. —Id. Specific Po'formance, AGREEMENT. JVlien Decreed. 27 XVII. — In Contemplation op Marriage. On the marriage of E., her grandmother, who ■was not under any legal or moral obligation to provide for her, signed the following memoran- dum which had been written by her agent at her request, viz.. Lady T. has desired C. to notify that " she intends leaving E. £2,000, to bear interest from her death, and to be secured by a bond. She has further desired C. to say that this is the provision she intends making for E. on her in- tended marriage. On the same day C, the agent, wrote to the intended husband S., stating that Lady T. intended to give £2,000 at her death, and a house at Cheltenham, subsequently C. wrote to Lady T., stating that S. wished to have the bond perfected, and also to have the house which Lady T. intended to give. This letter was read to Lady T. by E., and she then desired E. to keep it, add- ing, that it related to the business with S., the in- tended marriage was shortly afterwards solem- nized in the lifetime of the grandmother, who, however, had been for some time unable to attend to business in consequence of indisposition, and who died without having executed either the bond for £2,000, or a conveyance of the house at Cheltenham. Held, that the memorandum, let- ters, and subsequent marriage, constituted a suf- ficient agreement within the statute of frauds, binding upon the representatives of Lady T.,both as to the bond for £2,000, and the house at Chel- tenham. Previously to the execution of the me- moiandum. Lady T. had bequeathed the house to C. Qiitere, whether, under the statute of wills (1 Vic. c. 26) the contract rendered C. a trustee, or whether he took as devised, subject to the contract. — Saunders v. Cromer, 3 Dru. & W. 87. Upon a treaty for a marriage between M. and E. a minor, M. communicated to the guardian of E. a letter from his uncle H., stating that he had by his will left liis T. estate to M. The guardians resolved that, untU a suitable settlement should be made by H. of real estate upon the marriage in the usual course of settlement, it was not ad- visable that it should take place. This resolu- tion was communicated to H., who, in reply, wrote to M., "my sentiments respecting you con- tinue unaltered, however, I shall never settle any part of my property out of my power so long as I exist. My will has been made for some time, and I am confident I shall never alter it to your disadvantage. I repeat that my T. estate will come to you after my death, unless some un- foreseen occurrence should take place," and de- sired his letter to be communicated to the guar- dians. The guardians consented to the marriage which was solemnized. Held, that the letter did not amount to a contract by H. to devise the T. estates to M., and that H. might dispose of them as he pleased by his will. That, supposing it amounted to a contract, matters connected with the subsequent conduct of M., were '* unforeseen circumstances," and that H., was the sole person to determine whether, upon their happening he would alter his will. — Maunsell v. White, 1 Jon. & L. 539. XVni. — Specific Perfoemance.- Deckeed. -When Form of claim by a person entitled to the spe- cific performance of an agreement for the sale or purchase of any property seeking such specific performance. — Gen. Ord. 1, 22nd April, 1850, Schedule 8. N. obtained a patent for the application of the principle of smelting iron by the use of heated air applied to furnaces. B. obtained a license from him to use this process on the payment of Is. per ton on the iron thus smelted. Disputes and then litigation arose between them, and it was agreed by an instrument in writing, dated 11th November, 1833, which recited the previous circumstances, that both parties should vrithdraw their law processes, that — " in consideration of the present payment of £400, to be accepted by N., in full of Is. per ton on the whole iron smelted from the erection of B.'s works up to the 11th day of November current, and in consideration of the payment of Is. per ton upon the whole iron which shall be smelted from the 11th of No- vember current, till the expiry of the letters pa- tent, by the use of heated air in any of the modes heretofore applied, or in any other mode falling under the said patent." N. should grant to B. a license which, further on in the agreement, was described to relate to " the application or use of heated air in any of the modes heretofore practised at B.'s works, or in any other mode falling under the description in the said patent, or in the specification thereof." N. afterwards instituted a suit to compel B. to perform this agreement, B. instituted a cross suit to suspend N.'s proceedings, on the ground that the process of smelting by heated air, used at B.'s works, did not fall within the patent. Held, by the lords, affirming the decree of the court of session, that after this agreement B. could not set up such a defence to the claim of N. — Baird v. NeiUon, 8 Clk. & Fin. 726. The court will decree a specific performance of an agreement for the sale of a certain number of shares in a raUway company. — Duncuft v. Al- brecht, 12 Sim. 189. A parol agreement for the sale of such shares is binding, for they are neither an interest in, or concerning lands, within the 4th section of the statute of frauds, nor goods, wares, or merchan- dizes within the 17th section. — Id. A party, who has received notice from a rail- way company of their intention, in exercise of powers given by the railway act, and the Lands Clauses Consolidation Act, to purchase his lands, may sustain a bUl for specific performance of the agreement thereby created, and the court will en- force such agreement by ordering the company to take the proceedings prescribed by the statute for ascertaining the amount of purchase-money, and compensation. — Walker v. Eastern Counties' Railway Co., 6 Hare, 594. A. having granted a lease of certain mines to P., as a trustee for the "West Cork Mining Company, and having in his lifetime received certain sums in part payment of the consideration money of the said lea^e, P., who was his executor, filed his bill against V., the managing director of the said company, for an accoimt of the sum due on foot of the said purchase-money, and for payment thereof. V. filed a cross bill on behalf of the com- pany, and thereby after setting forth various facts and matters as evidencing fraudulent conduct against the shareholders on the part of A. and his executor P., &c. &c., impeached the lease as frau- dulent, and consideration thereof as exorbitant and extravagant, &c., &o. Held, under the cir- cumstances, that the plaintifiF in the original cause was entitled to the relief as prayed for by his bill, and that the cross bill should be dis- 28 Specific Performance, AGREEMENT. fVTien Refused. inissed without costs. — Fike v. Vigers, 2 Dru, & Wal. 2. A. upon Ms marriage in 1815, conveyed an es- tate in which he had an equitable interest to the use of himself for life, remainder among the issue of the marriage in the usual course of strict settle- ment, remainder among his brothers for certain interests, with the ultimate reversion to himself, and his heirs. In 1827, he, upon his second mar- riage, reciting that in the settlement of 1815 he had a reversion in fee expectant on the failure of issue male, of his former marriage, covenanted to settle the reversion upon the issue of the second marriage. A. died, and all the issue of the first marriage failed. Held, that the limitations in the deed of 1815, to the collateral relations, were vo- luntary, and that the issue was entitled to the estate, and would have been entitled to a con- veyance of the legal estate as a specific perfor- mance of the articles of 1827 against the collateral relations, but that the point did not arise in this case, the contest being only between equities. — Stanpoole V. Stacpoolef 2 Con. & L. 489. The owner of an estate took the benefit of the Insolvent Act, and afterwards became bankrupt. The assignees in bankruptcy, without commu- nicating with the assignees of the insolvency, in whom the estate was vested, sold it, pending a suit instituted by the vendors for a specific per- formance : the assignees of insolvency affirmed the sale. A specific performance was decreed. — Sfdebotham v. Barringioriy 5 Beav. 261. Under a marriage settlement, tenant for life, with remainder to his first and other sons by his wife F. in tail, with remainder to himself in fee, had power to grant leases for ninety-nine years, in possession, at the most improved rent, under an indenture of lease to be executed with certain formalities. Twenty-eight years after the mar- riage, the wife still living, and there being no issue of the marriage, the husband gave a bond conditioned for thegrantinga lease for ninety-nine years at a rent of £20 per annum, upon the ex- piration of a subsisting lease as soon as the sub- sisting lease determined, the obligee of the bond entered into possession, and for some years paid a rent of £20. Held, notwithstanding some evidence of inadequacy in the rent, that the re- presentatives of the obligee were entitled to a decree for specific performance of the agreement contained in the bond. — Butler v. Powes, 2 CoU. C. C. 156. Covenant in February, 1841, by a municipal corporation to build a market forthwith. Bill in September, 1843, for specific performance of the covenant. Answer in December, 1843, stating that the Corporation had not until recently de- termined for what goods the market should be adapted, and that the building should proceed with due diligence. At the hearing in June, 1844, the cause was ordered to stand over for six months. In May, 1844, the Corporation approved of a plan for the market, and in July, 1844, they met to consider the order in the cause, and, sub- sequently, built the market. The court stayed all proceedmgs without costs. — Price v. Corpora- tion of Penzance^ 4 Hare, 606. A suit for specific performance of a contract was, at the hearing, ordered to stand over. The contract being afterwards performed, it was held to be regular for the plaintiff to bring before the court, upon petition, the facts which had taken place subsequently to the answer. — Id. Proceedings taken by defendants towards the fulfilment of a contract for the erection of a cer- tain buUding, may enable the court to decree a specific performance of the contract in a case where, without such proceedings, it might have been difiioult to define what would be a sufficient performance. — Id. 4 Hare, -509. A bUl prayed the specific performance of an agreement " if a good title could be made." At the hearing it was declared that the agreement ought to be specifically performed, and it was referred to the master to enquire whether a good title could be made : the master reported in the negative. The plaintiff, on further directions, waived all further objections to the title, and proposed to take the property : this was resisted by the vendor. Held, that the plaintiff was en- titled ; but, being aware at the first hearing of the objections to the title, he ought to pay the costs of the investigation in the master's office.— Bennett v. Fowler, 2 Beav. 302. A. made an equitable mortgage of certain pre- mises to B., and he afterwards entered into an agreement to grant a lease of the premises to C, who had notice of the prior charge. A. became bankrupt before the lease was executed, and, on the petition of B., an order in bankruptcy was made under which the premises were sold, and B . became the purchaser, and retained the amount of his equitable mortgage out of the purchase money. Held, on a bUl filed by C. for specific performance of the agreement, that B. having become the purchaser, and thereby united his equitable mortgage with the equity of redemp- tion, was bound to perform the agreement.— Smith V. Phillips, 1 Keen, 694. XIX. — Speoipio Pekpormance, "When Eeptjsed. On the marriage of T.P., a settlement wasmade of certain lands held on a lease of lives, renew- able for ever. The settlement gave T.P. an estate for life, and contained the following power of leasing : " It shall be lawful for T. P., and all and every other person and persons, to whom any use is hereby limited, when in actual possession of the said lands, &c., to demise the said lands for any number of lives or years, consistent mth their respective interests therein, to 'commence in possession and not in reversion, remainder or expectancy, reserving the best rents without taking any money by way of fine, &c. T. P. granted a lease to A. P., at a farm rent, for the lives of three persons therein named, with a covenant, that on failure of any of the three lives, the lessor, his heir and assigns would, on the payment of £5 as a fine upon each life that should happen to die, add to the time and term of the lease Uie life of another person nominated by the lessee, fi-om time to time, successively for ever. Held, that this lease was not warranted by the power, and a decree by the Court of Chancery in Ireland ordering specific performance of the covenant of renewal, was reversed, and the bill ordered to be dismissed with costs, — Clark v. Smith, 9 Clk. & Fin. 126. A contractor sent in a tender to a railway company for the execution of a part of the works either with a double or single line of rails. He was informed in wiiting by the engineer of the company that his tender was accepted, and that intimation was confirmed by the directors upon his attendance at one of their board-meet- ings, but no document accepting the tender was executed by the company in such a mani.er as to be binding at law, nor was any conclusion ever Specific Performance, AGREEMENT. When Refused. 29 )me to whether there should be a single or a )uble line. The railway was afterward aban- med, and the contractor then filed a bill seeking I have a binding contract executed by the com- my, or to recover fri»m them the loss he had istained in preparing for the works. Held, pon demurrer, that he had no claim to relief in juity upon the general merits of the case, and lat an jdlegation, unsupported by any additional icts, that the company held money in their ands for the purpose of paying the plaintiff, id were trustees of it for his benefit under an in- ;rument in writing, was not sufficient to sustain le bill. — Jackson v. The North Wales' Railway ompany, 1 Hall & T. 75. In a marriage settlement which comprised only le property of the wife, it was agreed between le intended husband and wife, and each of them ovenanted with the trustees, that any property ) which the wife might become entitled during le coverture, should be conveyed to such uses as le should by deed or will appoint, and, in the efault of appointment, to the use of herself for fe, remainder to the use of the husband for his fe, remainder to the use of the wife's children, ud in default of such children, to the use of A.B. tier niece) suid her heirs. After the death of the fife without children, and without having exer- ised her power of appointment, the husband filed bill against her heir at law, praying that a real state, to which she had become entitled during er lifetime, might be conveyed to the uses f the settlement. On the question, whether tie decree for specific performance should be con- ned to the life estate of the husband, or should xtend to the limitation to the niece, who was Iso dead? Held, that it should extend to the itter, on the ground that the right of the hus- and to a specific performance of part of the ovenant, drew with it the right to a specific per- 5rmance of the whole, at least as against the heir f the settlor, whatever it might have done as gainst a purchaser for value. — Davenport v. iishopp, 1 Phil. 690. A. being entitled to certain lands in fee, granted nnuities out of them to B., to secure money ad- anced by him. A. subsequently agreed to seU lie lands to C, in order to redeem vrith the pur- hase money a leasehold interest, which was nder eviction, representing to him that B. would )in in the conveyance. A. executed the convey- nce to C, but he refused to allow B. to get the urchase-money until B. would discharge the land f the annuities, which B. refused to do. A. sub- equently sold the lands to B., who had notice of tie prior deed. On a bill, filed by C, to set aside he sale to B. ; Held, that A. had a right to treat lie contract as incomplete, and to sell to another. reader v. Aheame, 2 Con. & L. 634. Held also, that C. could not impeach the con- ideration given for the annuities. — Id. Specific performance of an agreement refused, lie party seeking performance having been held, nder the circumstances, to have abandoned the ontract. Qusere, whether the evidence of a vrit- ess should be read, who had deposed to an admis- ion by the plaintiff of his having abandoned tie contract, the fact of such abandonment aving been put in issue by the answer, but not lie admission itself? — Garrett y. The Earl of Bes- orough, 2 Dm. St. Wal 441. A lease of mines contained a covenant that if lie lessor should, at any time before the expira- ion or determination of the lease, give notice in raiting to the lessee, of his desire to take all or any part of the machinery, stock in trade, im- plements, &c., in or about the mines, then the lessee would, at the expiration of the lease, de- liver the articles specified in the notice to the lessor, on his paying the value of them, such value to be ascertained in the manner therein mentioned. Held, that the covenant was so in- jurious and oppressive to the lessee, that the court ought not to enforce it, or to grant an in- junction to prevent a breach of it. — Talbot v. Ford, 13, Sim. 173. Two railways, called A. and B., were projected, by different parties, to run from M, towards N. The line of A. passed through the centre of the plaintiff's estate, and the line of B. through a cor- ner of it. The projectors of A. agreed with the plaintiff for the purchase of that portion of his land which they required ; and they were to have power to vacate the agreement, in case the act for making their railway should not pass. Two bills were brought into Parliament for forming the railways, and were referred to a committee, at whose suggestion the two projects were amal- gamated, and an act was passed incorporating the projectors of both railways into one company, and for making a railway partly in the line of A., and partly in the line of B,, the latter being the line selected with respect to the plaintiff's estate. Pending the act, the promoters of the two rail- ways agreed with each other that when either company should have entered into contracts with landowners, whose property might be affected by either line, though in a somewhat different mode, the contracts entered into by the company, pro- posing the rejected line, should be adopted by the imited company, A copy of this agreement was subsequently sent to the plaintiff by the united company. The projectors of the line A. afterwards vacated their agreement with the plaintiff. Held, that the plaintiff could not en- force that agreement against the united company. — Greenhalgh v. The Manchester and Birmingham Railway Co., 9 Sim. 416. The bill stated a psirol agreement, in part per- formed, for lease of a farm, to be granted by the defendant to the plaintiff; one term of which was, that a certain arable field should be laid down in pasture. The plaintiff entered and laid down the field, and it was afterwards severed from the farm, and an abatement in the rent was made in respect of it. The witness examined, to prove the agreement, did not state that it con- tained any provision as to laying down the field ; BO that the agreement proved, varied from that alleged on the bill, and on that account the court refused to decree a specific performance. — Mun- day V. Jolliffe, 9 Sim. 413. By an agreement, between the plaintiffs and the defendants, the former, in consideration of certain payments to be made by them to the lat- ter, were to hand the exclusive right of engrav- ing and publishing a series of maps from draw- ings to be furnished to them from time to time by the latter. The court refused to restrain the de- fendants from acting in violation of the agree- ment, as it could not compel the defendants to furnish the drawings, and, therefore, could not decree a specific performance of the agreement. — Baldwin v. The Society for the Diffusion of Useful Knowledge, 9 Sim. 393. This court will not interfere to compel the spe- cific performance of an agreement unless it can itself execute the whole contract in the terms specifically agreed upon. Accordingly, where a bill prayed the specific performance of a contract, 30 Specific Performance, AGREEMENT. When He/used. one of the terms of wMch was to the effect, that if any damage shouldresult to the defendant from certain works, the erection of which had heen agreed upon between the parties, the plaintiff would give to the defendant an equivalent in land to .the amount of the damage, and the quantity of compensatory land, to be ascertained by cer- tain arbitrators. Held, that the court had not jurisdiction to grant such relief, and thi.t the ex- ecution of a deed, containing covenants for the performance of that part of the contract which lay in fieri, would not be a specific performance. —Gervais v. "Edwards, 2 Dru. & W. 80. Specific performance of a partnership contract for an absolute term of years, leaving undefined the amount of the capital, and the manner in which it was to be provided, the mode of carrying on the business being discretionary, cannot be enforced in a court of equity, and the court being unable to enforce the entire contract, will not enforce it in part, as against the representatives of a deceased partner, by refusing them a decree for the dissolution of the partnership, and the sale of the property, which had, under the contract, been specifically devoted to the partnership busi- nees. — Downs v. Collins, 6 Hare, 437. P. being seised of an estate, by lease for lives renewable for ever, subject to a rent equal in amount to a rent, which a subtenant paid him for part of the estate, agreed in vraiting to let the other part of the estate in his own possession, to D. his brother, for the lives of D. and two others, and the life of the survivor, free from rent and as- sessments during D.'s life, to be subject to a rent of £350, during the other lives or life surviving X>., leases to be executed at the request of either party, a memorandum was added of the same date, signed, by both parties, stating " rent to be pay- able half yearly, every 1st of May, and 1st of November henceforward." Prior to the agree- ment, D. being elected member of parliament, for a city was required to take the member's qualifi- cation oath, and a petition was threatened against his return, for want of qualification, but was ibandoned at the date of the agreement. P. died intestate without executing a lease, or parting with possession. Held, by the lords, (affirming a decree which had dismissed a bill filed by D., against P.'s heir at Jaw, for specific performance,) that the circumstances and evidence shewed, that the object of the agreement was to give D. a qualification for parliament, that no interest in the property passed, and that the parties never intended that the agreement should be executed, and therefore the execution of it could not be enforced, either as an agreement for valuable consideration, (which was the case made by the • bill), or as a gift. — Callaghan v. Callaghan, 8 Clk. & Pin. 374. Bill by a tenant in possession, under a subsist- ing tenancy for the specific execution of a parol contract between him and his landlord, dismissed. The court, holding that there was no act of part performance to talie the case out of the statute of ftauds, the remaining in possession being a mere continuance of the character which the tenant had already filled. Any act which may be referred to a title dis- tinct from the parol agreement, under which the party seeking performance claims, cannot be con- sidered as operating to take the case out of the Btatute. Semble, in this case no parol agreement was ever concluded between the parties. — Brennan v. Bolton, 2 Dru & W. 349. By the terms of a letter from the plaint which was accepted and signed by the defendau it was agreed that the " plaintiff should let to t defendants, or assign, if preferred, for the longi term he could grant." Held, on a bill, filed ; specific performance, that the defendants W( bound to take such title as the plaintiff had the time the said agreement was made, and th under the terms of the said agreement, the c fendants were not entitled to call upon the plai tiff to shew his lessor's title. — MoUoy v. Ster, 1 Dru. & Wal. 585. Where a bill for specific performance is fi] by a purchaser, and it turns out that the veuc cannot make a good title, the bill is dieinissf but without costs. — Maldon v. Fyson, 9 Beav. i'. A. B. and C. possessed of a manor, under ecclesiastical lease, agreed vrith M. to grant hi upon the expiration of a subsisting grant, a ca of court roll of a tenement holden of the mam and entered into a joint and several bond to pi form the contract. A. afterwards conveyed 1 interest in the manor to B., subject to the agre ment with M. ; and died, having appointed t plaintiff his executor. The validity of the lea: constituting the title of B. and C. to the mam was subsequently impeached, and pending t trial of their right to the manor, they were unal to grant the copy of court roll according to t agreement. M. thereupon brought three seve: actions upon the bond against the plaintiff and C. respectively. The plaintiffs B. and entered into a consolidation rule, whereby th all consented to be bound by the verdict in o of the actions. The plaintiff then filed his I against B., C, and M., for a specific performance the contract by B. and C, and to restrain the i tion brought by M. Held, that the question against M. was the same both at law and equity, and that after having consented to bound by the verdict in the action, the plain could not sustain the suit, and the bill was d missed, without prejudice to any question of cc tribution or indemnity as between the plain B. and C, the obligors in the bond. — Eole Fearse, 5 Hare, 408. A trustee entered into a contract for the sale trust property, and it was agreed that the pi chaser should, out o£ the purchase-money, ret; a private debt due to him from the trustee, or bin by the trustee. Held, that this court wo\ not decree the specific performance of such a c( tract. — Thompson v. Blackstone, 6 Beav. 470. Even after great delay and acquiescence 1 court will not compel a purchaser to complete, the title appears to be manifestly bad. — Blachft V. Kirkpatrick, 6 Beav. 232. A father (tenant for life), and a son (tens in tail), in 1831, joined in mortgaging the esta to secure payment of a debt of the son under agreement between them to suffer a recove and resettle the estate — as to the remainder, af the death of the tenant for life, in case the fatl should at any time be obliged to pay any part the interest of the mortgage debt, or the i should not pay off that debt by a certain day, 8 the father should then pay it off and release ' son therefrom — to the use of the father in fi the father covenanting to convey or devist seventh part of the estate to the son ; and in c the son should pay off the mortgage by the ti mentioned, then to the son, and the heirs of body, charged with £500, for such persons as father should by deed or will appoint. The did not pay off the mortgage debt, nor did AGREEMENT.— ALIENATION. 31 father pay it off or release the son therefrom, but the father paid the interest until his death in 1841, and after his death his devisees paid off the mortgage. Held, that neither party having per- formed the agreement, or apparently acted upon it, in the lifetime of the father, the court would not, after the death of the father, enforce the spe- cific performance of the agreement, nor vifould the court, in such a case, enforce specific perform- ance of an agreement which, apparently, was an agreement for the sale of the son's reversion- ary interest in the estate at an undervalue. — Playford v. Playford, 4 Hare, 546. That as the agreement could not he specifically performed, the original rights of the parties re- mained ; and the son was therefore entitled to redeem the estate upon repayment of the mort- gage debt and the interest — Id, Insolvency is a ground upon which the court wUl refuse specific performance of an agreement to grant a lease, but there must be proof of ge- neral insolvency, and a particular default in the payment of rent to the landlord of the premises last occupied by the person contracting for the lease, will not disentitle him to the performance of the contract, where there is the testimony of unexceptionable witnesses to his responsibility. —Necde v. Mackenzie, 1 Keen, 473. ALIEN. See ToREiGN Law. See Amendment of Laws relating to 7 & 8 Vic, c. 66. — Kegistration of Aliens, 6 & 7 W. 4 u. 11. A testatrix devised a real estate to trustees, upon trust, to sell and to divide the produce of the sale amongst certain persons, some of whom were aliens. The estate was sold under decree of the court. Held, that the Crown was not entitled to those shares of the produce of the sale which were payable to the aliens. — Du Bourmelin v. Sheldon, 4 Myl. & Cr. 625. Testator devised freeholds and leaseholds to four persons, intending them to hold the same in trust for an alien, and shortly afterwards in- formed three of them of his intent, and those three at his request wrote letters to him acknow- ledging the intended trust. After his death a suit was instituted by two of the devisees against the other two, the alien, the testator's next of kin, and the Attorney-General, as representing the Crown, to have the rights of the parties declared. The court refused to make any declaration, ex- cept that the lands were not subject to any trust. Bxirney v. Macdonald, 15 Sim. 6. A., who was by birth an Englishman, emigrated to the United States of America, after the recog- nition of their independence by the treaty of 1783, and took oaths of obedience to the American Government, and of abjuration to all other alle- giance, married an American woman, and had a son of that marriage (B.) bom in the United States. B. had a son (C.) who was also bom in America, out of the Queen's dominions. Held, that C. was capable of inheriting real estate as a British subject within the statutes, 13 Geo. 3, c. 21, ; and 4 Geo. 2, c. i\.— Fitch v. Weler, 6 Hare, 51. The abjuration, by a British subject, of his al- legiance to the Crown, and his promise of obedi- ence to a foreign state, although it might have rendered him liable under the statute 3 James 1, c. 4, ss. 22, 23, to the penalty of high treason, does not therefore disqualify the children of such British subject from inheriting in the absence of any attainder of such British subject by judg- ment, outlawry, or otherwise. — Id. The exclusion from the benefits of the statutes 4 Geo. 2, c. 21, s. 2, of the children of fathers, who, at the time of their birth were liable to the penalties of high treason or felony, in case of their returning into this kingdom or Ireland without the royal license, is not to be construed as re- quiring the court to determine incidentally, and in the absence of the party charged, that he has been guilty of treason or felony ; but, the exclu- sion must be construed as restricted to that class of offences in which the penalty is annexed, to the fact of returning without license. — Id. The privileges which the statutes, 4 Geo. 2, c. 21, and 13 Geo. 3, c. 21 confer, are the pri- vileges of the children, and not of the father; and, therefore, acts intended by a British born subject to have the effect of acts of abandonment or ab- juration of his rights in that character do not deprive his chUdren of the benefit of the statutes 4 Geo. 2, c. 21, and 13 Geo. 3, c. 21, unless such acts bring them within the disqualifying provisions of those statutes. — Id. A person claiming the benefit of the statute, 13 Geo. 3, c. 21, does not lose that benefit, only because he does not cpnform or qualify in the manner prescribed by the sect. 3 of that statute within five years from the accruer of his right or interest. — Id. If an alien, resident abroad, composes a work there, but publishes it first in this country, he is entitled to the protection of the laws of this country relating to copyright : semble. — Bentley v; Foster, 10 Sim. 329. A devisee of lands was made to English sub- jects, in trust to sell, and after payment of mort- gages, to invest the surplus monies in the funds, in trust for persons, some of whom were aliens. Held, that the Crown was not entitled to the share of the aliens, either in the land or the pro- duce. — Du Hourmelin v. Sheldon, 1 Beav. 79. ALIENATION. See Husband and Wife — Will. Testator, after giving several annuities, begged it to be understood that if any of his annuitants should attempt to sell or dispose of their interest in his annuities to them, (which he wished only for their peculiar and particular benefit,) from that moment his bequest to them was to termi- nate for ever, and the principal and interest of each bequest to revert to his general fund. One of his annuitants petitioned for the benefit of the Insolvent Debtors' Act, having entered the an- nuity in his schedule, together with the effect of the above-mentioned clause in the will, and, afterwards, the usual vesting order was made by the Insolvent Debtors' Court. Held, that his annuity ceased on his presenting the petition. — Martin v. Maugham, 14 Sim. 230. The dividends of a fund were directed to be paid to A. for life ; but, if he assigned or other- vrise disposed of them, they were to go over. A. being in prison and charged in execution for debt, the creditor obtained an order under 1 & 2 Vict. c. 110, s. 36, vesting all his property in the pro- visional assignee of the Insolvent Debtors' Court. Held, that the dividends of the funds did not go 32 ALIENATION.— ANNUITY. Annuity Act. over, but vested in the assignee. — Pym v. Lockyer, 12 Sim. 394. The form commonly Tised for restraining married women from disposing of their separate property by anticipation is insufficient for that purpose. The receipt clause ought to declare that the receipts of the married vifoman to be given from time to time after the income of the property shall have become due, shall be, and that no other receipts shall be, sufficient dis- charges to the trustees.— £fow» v. Bamford, 11 Sim. 127. ALIMONY. See Husband and WirEi ALLOTMENTS. A man mortgages an estate in fee, without noticing rights of common. Aftervfards allot- ments are made to him in respect of his rights of common by virtue of an enclosure act, which enacts that the allotted lands shall be subject to the same uses as the lands in respect of which they are allotted. Semble, that the legal estate in the allotments passes to the mortgagor and not to the mortgagee.— ifcyii v. Douglas, 4 Y. & C. 448. ALLEGIANCE. See EoREiGN Law. Discussion of the question whether a sovereign prince is liable to the jurisdiction of the courts of a foreign county in which he happens to be resident, and as to ihe liability to suit of one who unites in himself the characters both of an inde- pendent foreign sovereign and a subject. — The Duke of Brunswick v. The King of Honover, 6 Beav. 1. A sovereign prince, resident in the dominions of another, is ordinarily exempt from the juris- diction of the courts there. — Id. A foreign sovereign may sue in this country, both at law and in equity ; and if he sues in equity, he submits himself to the jurisdiction, and a cross bill may be filed against him, and which he must answer on oath : but a foreign sovereign does not, by iiling a bill in chancery against A., make himself liable to be sued in that court for an independent matter by B. — The Duke of Brunswick v. The King of Hanover, 6 Beav. 1. The King of Hanover after his accession, re- newed his oath of allegiance to the Queen of England, and claimed the rights of an English Peer. Held, that he was exempt from the juris- diction of the English Courts, for acts done by him as a sovereign prince, but wm liable to be sued in those courts in respect of matters done by him as a subject. Held, also, that the sovereign character prevailed where the acts were done abroad, and, also, where it was doubtful in which of the two characters they had been done. — Id. ANNUAL RESTS. See Pb. in the Master's Office — Interei ANNtriTY. See Vend. & Puech. — Eieotion. Anndiiy Act Memorial When Incomplete Arrears and Deductions prom ., Interest on. Arrears of Principal Grantor or Surety .. Construction of Election Agreement for Payment op Apportionment Cumulative Trustee op. How bound Redemption op How affected by Stat, of Limi- tations When Usurious Fund, When Insuppicibnt ; . . What Tax subject to Substitution op Annuitants I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVEI. XVIII. XIX. I.— ANNUITY ACT. AMENDMENT. See Pr. Bill, See 63 Geo. 3, o. 141, That, , in all orders directing the payment i dividends and annuities, the time when the fir; of such payments shall be made, and when a subsequent periodical payments, whether qua terly, half-yearly, yearly or otherwise shall 1 made, shall be specified and expressed in wore at length.— 28th Gen. Ord., 21 Dec, 1833. J. r. being resident in Ireland, entered into contract, for the purchase of two annuities, fro: L. and his vrife, the defendants who were res dent in England. The security for the paymej of the annuities was a joint and several covenan on the part of the defendants, arid a joint warraj of attorney, to confess Judgment in the Court i Queen's Bench in Ireland, and a policy of insu: ance on the life of one of the defendants, at a ofiice in London or Westminster. The on] property pledged for the payment of the annuit; was an annuity to which the wife was entitlei for her separate use, charged upon property siti ated in Ireland, and which she assigned to tl plaintiff, and appointed him her attorney in reli tion thereto. It appeared that the deeds wei prepared in Ireland, smd on Irish stamps, an sent to England to the defendants, where the were executed by them, and the consideratic money was paid to the defendants in Englani but the deed was executed by the plaintiff i Ireland. Held, that the transaction was a EngHsh one, and the security therefore withi the meaning of the Annuity Act, 63, Geo. 3, o. 14 and consequently void for want of enrolment.- Ferguson v. Lomax, 3 Dru. & W. 238. A freehold estate worth £100 a year, wi devised in trust for the testator's daughter, married woman, for her separate use for life, wit remainder in trust for all her children by her the present, or any future husband, as tenants i common m fee, subject to a proviso, that if tl daughter should die without leaving issue of hi Arrears, Sfc. ANNUITY. Interest on Arrears of. 33 body, the estate should be in trust for the surviv- ing brothers and sisters. In 1822, the daughter and three of her six children joined in granting an annuity of £48, charged on the devised estate. Held, that the annuity was within the exception of the 53, G. 3, c. 141, and therefore did not require enrolment.^- Ty(i{/b)-rf v. Marchant, 3 Myl. & C r. 550. Many of the provisions of 3 & 4 Will. 4, c. 42, though made with reference to proceedings at law, will be adopted by this court. — Hyde v. VHce, 8 Sim. 578. II. — Memorial. The grantor of an annuity had admitted, in his answer to a bill in chancery, that the annuity was a subsisting charge on his estates, and the decree and proceedings in the suit, had treated the annuity as valid. Under these circumstances the grantor's devisee, was restrained from pro- ceeding, at law, to set aside the annuity for want of a memorial. — Roberta v. Madocks, 13 Sim. 549. The memorial of an annuity, after setting forth the grant, from which it appeared that the con- sideration for the annuity was £455, averred that the true and bmiajide, consideration for the annuity was £450, and that the said sum of £450 was paid to the grantor by the grantee. The memorial stated also, that the grantee's execution of the deed, was attested by three persons, whose names it mentioned, but the name of only one of them was indorsed on the deed. Held, that the grant of the annuity, and all the securities for it Were void. — Gibhs v. Hooper, 9 Sim. 89, III. — ^\Vhen Incomplete. A vendor being seised in fee of lands subject to annuities, which she granted to an attorney, in consideration of advances made, and costs incur- red by him, agreed to seU the lands to the plain- tiff, stating to him that the grantee of the annuities would join in the conveyance, a deed of conveyance was executed by the vendor, the purchase money was not paid, but part of it was deposited with the attorney, who had acted for the vendor and the plaintiff, to remain m his hands until the lands were discharged from the annuities. Theplaintiffthen called on the vendor, and the grantee of the annuities, to execute a deed of indemnity, which the parties declined to flo. The vendor subsequently sold the lands to the grantee of the annuities, who had actual notice of the plaintiff's conveyance, on a bill filed to set aside the second sale. Held, that the vendor was justified in treating the transaction, between her and the plaintiff as incomplete, and in selling to the grantee. It was attempted to impeach the consideration of the annuities, but Semble, such a question was not open to the plaintiff. — Leader v. Aherne, 4 Dru. & W. 495. IV. — Aubears and Deductions fkom. TTpon the purchase of an annuity granted for two lives and the life of the survivor, and made redeemable upon six months' notice, a policy of insurance which had been effected upon the life of one of the grantors, was assigned to the annui- tant, and was subsequently kept up by her, at her own expense. ITie life having dropped, the company paid the amount of the insurance to the annuitant, the annuity having subsequently fallen into arrear ; upon a bill filed by the annul'' tant, to raise the arrears, held, that the annui- tant was not bound to give credit, for the amount received on foot of the policy, as against the arrears of the annuity, but was entitled to retain the same, as compensation for the diminution in value of the annuity. — Milliken v. Kidd, 4 Dru. & W., 274, 2 Con. & L. 442. The Court of Chancery has a concurrent juris-- diction with courts of law, in annuity cases, and therefore can entertain a suit to raise the arrears of an annuity, though the grant of the annuity contains a clause, enabling the grantee to distrain, and the bill contains no averment of any substan* tial diflioulty, to prevent the plaintiff availing himself of this remedy. — Manly v. Hawkins, 1 Dru. & Wal. 363. Payment decreed of the arrears of an annuity, secured by bond, with interest, not exceeding, however, in the whole the penalty of the bond.— Crosse v. tiidingfield, 12 Sim. 35. A testator charged his real estate with payment of his debts, and of an annuity to his wife in lieu of dower. The real estates having been sold to pay the debts, and the income of the remaining proceeds being insufilcient to pay the annuity. Held, that the widow was entitled to have her annuity paid out of the capital, as well as the in- come of the remaining fund. Held, also, (the annuity being wholly in arrear) that the arrears were to be computed from the testator's death. — Stampers. Pickering, 9 Sim, 176. A receiver was appointed in an annuity cause, and was afterwards extended to the matter of a petition, presented by a prior mortgagee, under the mortgage act. Held, that rents received by the receiver before the conditional order for ex- tending the receiver to the matter was made, and which were still in court, belonged to the annui- tant. — Daveron v. Collins, 2 Jon, 807. V. — Interest on Akkears op. After the death of a person, who had cove- nanted to pay an annuity, a suit was instituted for the administration of his assets, pending which the annuity became in arrear. The court re- fused to allow interest on the arrears.^-,/(*Ain« V. Briant, 16 Sim. 272. Tlie established rule of this court (which, how- ever, is only general, and not inflexible,) is that in- terest cannot be recovered upon the arrears of an annuity. Interest will be given upon the arrears of an annuity where the person bound to pay it has been a party to the deed by which it was created, and his acts disclose a system of gross misconduct, and opposition to the court, for the purpose of evading payment. Mere legal delay is not a suf- ficient ground to induce the court to give inte- rest, nor will a mere covenant to pay an annuity be sufficient to create an exception to the general rule. But if there is a covenant to indemnify an annuitant against the effect of incumbrances, and the perception of the annuity, has been prevented by the claims of incumbrancers, and, especially, if this has occurred in consequence of the acts of the covenanter, a case for damages under the co- venant is clearly shewn, and this court, in order to prevent circuity of action, has jurisdiction to give interest upon the arrears of tifie annuity. —Martyn v. Blake, 3 Dru. & W. 125.— 2 Con, & L. 65. D 31 Construotmi of. ANNUITY. Construction of. The court will not give interest upon the ar- rears of an annuity, unless a special case be made. — Booi/i V. Leycester, 1 Keen, 247. In 1795, an annuity was granted for the gran- tor's life, and was secured by a bond, and by a warrant of attorney, on which judgment was en- tered. The grantor died intestate in 1810, at which time the annuity was greatly in arrear. The grantor's assets consisted solely of a fund in court which had been accumulating from the grantor's death, no administration was taken out to the grantor until 1834. Held, that the gran- tee was entitled to be paid the arrears of the an- nuity, with interest at £5 per cent, from the death of the grantor. — Hyde v. Price, 8 Sim. 678. VI. — Principal Gkantoe, oe Surety. By deed of annuity, in consideration of £9,000 therein stated to be paid to L. E. M. and M., the said L. granted to Messrs. D. & H. an annuity, or clear yearly rent of £1,800, for three lives, charged upon his estate, and L. E. M. and M. covenanted to pay the said annuity or yearly rent with a proviso for the repurchase by them, or any or either of them ; and they executed their joint and several bond, and warrant of attorney, to confess judgment on the bond, the judgment to be as a further security for the annuity, and to be entered forthwith against L. and E., but not against M. and M., until default of payment, and execution not to be entered on the judgment against L. and E. until the annuity should be forty days in arrear, and E., for further seeming the annuity, agreed, in the event of not becoming purchaser of L.'s estates in 12 months, to assign at L.'s expense a mortgage which E. held on it, and also to procure the guarantee of a competent person for payment of the annuity. Held, by the lords, (reversing the decree of the court below), that E. was a principal grantor of the annuity, and not a surety. — Hollier v. Eyre, 9 Clk. & Ein. 1. The question whether a person is principal or surety, in the grant of an annuity, is to be deter- mined on the terms of the instruments. No ex- traneous evidence is admissible for that purpose. —Id. Til. — Construction of. A win contained these words — "my will is, that whatever I die possessed of, or in any way entitled to, together with whatever property my wife may be any way entitled to, shall produce to my wife an annuity of £100 per annum, to each of my daughters £100 per annum for them- selves and their children, and to my wife's mo- ther an addition to any property she may possess, so as to make up to her during her life an annu- ity of £100 per annum, said annuities after the decease of my wife and her mother, to be equally divided among my three children, "VVUliara, Mary, and Julia Louisa ; all the rest and residue of my property and possessions I give and bequeath to my son "William." At the time of the testator's death his daughters had no children. Held, that the annuities thus created were perpetual annuities. The testator's daughter M. died, and after her death he made a codioil to his will, di- viding her annuity between his two surviving children, but in other respects confirming the will. His wife's mother having died, he made a second codicil in these words—" and, m case my son William shall die without leavmg issue male lawfully begotten, my will is, that after the de- cease of my wife, and my daughter J. L., my re- maining property shall then be equally divided between two relations named in the codicil, and their children." Held, that these codicils did not alter the nature of the annuities given by the will to Julia Louisa. — Stokes v. Heron, 12 Clk. & Fin. 161. A testator directed his executors to set apart a sum of stock to answer an annuity of £600 to le paid to his daughter Anna Maria (who was then his only surviving child), for her life, and on her death to divide the principal among her children, if she should have any, on their respectively at- taining the age of twenty-four ; if no child, or none, who should attain that age, to pay thereout two small legacies, " and all the rest and residue of the said principal fund he gave and bequeathed to and amongst his heirs at law, share and share alike ;" and, in a subsequent part of his wiU, he appointed his said daughter by name, his general residuary legatee. Held, nevertheless, that as sole heiress at law and next of kin of the testator at the time of his death, she, and not his heirs at law or next of kin at the time of her death, was entitled under the ultimate gift to the fund set apart to answer the annuity. — Ware v. Rowland, 2 Phil. 635. Upon a devise of real estates in trust, to receive the rents, and thereout to pay the testator's widow an annuity, and " from, and immediately after," her death, to convey the estates to his three sisters. Held, (reversing the decision be- low), that the annuity was a charge only on the rents which accrued during the life of the widow, and not on the corpus of the estates. — Foster v. Smith, 1 Phil. 629. A testator gave to each of his iive daughters £400 per year for their lives, and after their re-- speotive deceases he gave the same to their chil- dren respectively ; and in case any of the daugh- ters died without issue the annuity to cease. Held, that the children of the daughters took for life only a proportion of the annuity. — Hedges v. Harper, 9 Beav. 479. A testator bequeathed to his wife £600 per an- num for her life, to be paid quarterly, and after her death the said annuity to be equally divided between six persons, whom he named, or the sur- vivors or survivor of them. He also gave to each of these sis persons £100 per annum during their lives, to be paid quarterly, with power to leave their said respective annuities at their deaths, to any persons they might marry, or any children they might leave, but in case of any of them dying without exercising such power then to the survivors or survivor. Held, (reversing the de- cree below), that the gifts over of the annuities of £600 and £100 respectively, were not gifts of so much stock in the 3 per cents, as would pro- duce those annuities, but gifts of annuities for the respective lives only of the persons to whom they were limited as tenants in common. — Blewilt V. Roberts, 1 Cr. & Ph. 274. Testator directed his executors to set apart a sum, not more than £7,500, tlie dividends of which, when invested as after directed, would amount to or produce the clear yearly sum of £300, clear of all deductions whatsoever, and to invest the sum, so to be set apai-t in government or other securities, and he directed that if at any time the dividends of the trust monies should Construction of. ANNUITY. Construction of. 33 from any cause whatsoever prove insufficient to answer the putposes aforesaid, the trustees should out of the residue of the monies that should come to their hands, raise such further sum as should be sufficient to make good any deficiency, and apply the same accordingly, and he gave the an- nuity to the plaintiff for life. Held, that the an- nuity was free of legacy duty. — Harris v. Burton, 11 Sim 161. Testator bequeathed two leasehold houses to ti'ustees, in trust, out of the rents, to pay £50 a- year to his daughter-in-law so long as she should remain his son's widow, and to invest the surplus in stock, to be held in trust for his wife for life, remainder for his grand- daughters ; and after his death, in case his daughter-in-law should be then married, or after her decease or second marriage, whenever the latter event might happen, to sell the houses and invest the proceeds in stock, to be held in trust for his wife for life, remainder for his grand- daughters. The daughter-in-law continued single, and the trustees paid her the £50 a-year out of the rents, and disposed of the sm-plus in the manner directed, until the lease of the houses expired. Held, after the death of the testator's widow, that the stock purchased with the surplus rents, -was not subject to the payment of the annuity, notwithstanding the lease had ex- pired. — Darbon v. Richards, 14 Sim. 537. A grant of an annuity, charged upon a bene- fice for life of the incumbent, is not prohibited by the statute law of Ireland, but is on the con- trary valid and binding upon the grantor during his own incumbency. The object of the statute 10 & 11 Car. 1, c. 3, was to protect the successor and not to impose any restraint upon the person himself. A judgment as such, and until seques- tration issued does not give such a lien upon a benefice as will enable the judgment creditor to rank in priority over other debts, and, therefore, in this case where the judgment bore date in 1831, but the sequestration did not issue until 1841 ; the plaintiff, whose deed of aimuity was executed in 1835, was held entitled to priority over the judgment creditor. — Wise v. Beresford, 3 Dru. & W. 276. W. H., by his will, which was not attested so as to pass real estates, directed that his property should produce for his wife an annuity of £100, for each of his daughters M. and J. L. £100 per annum. The annuities given to his wife and her mother, after the death of the survivor, to go to his three children W., M., and J. L., in equal shares, and bequeathed the residue of his pro- perty to W. Subsequently M. died, and by a codicil the testator diiectedthe £100 per annum, &c., provided for M., to be equally divided be- tween W. and J. L. ; by a second codicil, W. H. directed that, in the event of W.'s death without issue male, then, after the decease of his (the testator's) wife and J. L. his remaining property should go over. J. L. had no children at the date of the will, or at the time of the testator's death,, nor did she take any other benefit under the will and codicils than those mentioned. Held, that J. L. took only a life interest in the respective gifts to her. AVhere an annuity is be- queathed without words of limitation and unac- companied by a reference to some fund for its payment, the legatee will not take more than a life interest. Semite, under the wUl, J. L. vrould have taken a perpetuity, for where an annuity is given with reference to a particular fund, the pointing to the fund is such an indication of in- tention as amounts to a dedication of so much of that fund as will absolutely purchase theannuity, —Heron v. Slok.s, 2 Dru. & \V. 89. ; 1 Con. & L. 271. Annuities held successive, and not eumulativoi — Bayleev. Quin, 2 Dru. & W. 116. A testator being seised of an estate, for lives renewable for ever, demised it subject to a profit rent, of £400 to his brother-in-law H. for life, and having in the commencement of his will recited this demise, and that he had this profit rent, of £400 per annum, professed to deviso same amongst three childi-en. A., B. and C, in manner following : to his sister A., £150, to her sole and separate use for ever, to be issuing and payable out of the said lands and premises ; to his sister B., £150, in the same terms ; to his sister G. £100, in the same terms, "said three sums, making together the sum of £400 sterling, yearly reserved, and made payable to him by said leasej so made to the said H.," and then he devised the reversion, share and share alike amongst his four sisters. A., B., C, and D. the wife ot H., after the payment of the said bequests, of £400 yearly. By a second codicil, he revoked the gift of £150 per annum, to his sister A., and devised £100 yearly, part of the said £150, to the husband of said A. for life, vnth remainder to M. for life, with remainder to M.'s issue male, for ever share and share alike, and as to the re- maining £50, he devised same to his sister D. for ever. Held, that the said annuitants under the will, and codicil were entitled to perpetual interests in the several annuities, that construc- tion being aided by the class of cases, which have . decided, that an intention to pass, the inheritance will be effectuated, though the testator may have dealt only in express terms with a limited in- terest in the inheritance. — Ashtonv. Adamson, 1 Dru. & W. 198, 1 Con., 2 L. 325. A testatrix by her will devised the lands of D. to trustees, to the use of her son, Y. theplain- tiff for life, with remainder to his children in tail. She then bequeathed a number of annuitiesto different members of her family, and among the rest an annuity of £100, to the defendant H., and she directed that these armuities should be paid, without any deduction, and charged them "on the land so devised, to the use of my son Y." the plaintiff, and on the residue of certain other lands, which she directed to be sold. The testatrix subsequently made a codicil to her will, in -which the following clause occuired: "And whereas I did, by my said will, give the lands of D., to the use of my son Y., as therein, now I do hereby, revoke so much of my said will, as gives said lands of D., to my said son Y., and I direct that my trustees shall stand, seised of the said last-mentioned lands, to the use of my daughter H., the annuitant for her life, in addi- tion to what I have left her by my said will." Held, that the testatrix merely meant to substitute one devisee for another, and did not intend to discharge the lands of D. from contributing to the payment of the annuities, with which, by the -vvill, they were charged. — Young v. Hassard, 1 Dru. & W. 638. Bequest of an annuity, to A. and B., and to the survivor for life, and if A. should have any " children," then to be equally divided between them,butifA. should die " without lawful issue," then to A., and his heirs for ever. Held, that the children of A., took absolute interests in a perpetual annuity. — Bobinsonv. Hunt,iBea.v.i50. A testator gave his real and personal estate to his wife, subject amongst other bequests, to au 36 Cunstructio)t of. ANNUITY. Ayreementfor Payment of. annuity of £50, to A. B. for ever. Held, that on A. B.'s death intestate the annuity passed, not to his heir, but to his personal representative. — Taylor v. Martindale, 12 Sim. 158 Testatorbequeathed to his wife, £600 per annum for her life, and after her death the said annuity to be equally divided between A., B., C, D., E., and F., or the sui-vivors or survivor, and he be- queathed to the same six persons, £100 per annum each, during their lives, with power to leave their annuities at their deaths to any person they might marry, or any children they might leave, but in case of either of them dying without exer- cising such power, then to the survivors or survivor. Held, by the Vice-Chancellor that the above bequests in favour of A., B., C, D, E. and F., passed the capital of the funds producing the annuities, but the Lord Chancellor reversed his honor's decision. — Blewitt v. Roberts, 10 Sim. 491. Testator after reciting that the income of his wife, in case she survived him, would consist in part of the rent of a leasehold estate, which he had settled on her, directd his trustees in case the lease should expire in her lifetime, to pay to her out of the dividends, and interest arising from a sufficient part of his personal estate, at their discretion, so much per annum, as would be an equivalent for the rent lost thereby, and he gave his residuary personal estate to the trustees, in trust, to invest it in the usual securities, and to accumulate the income should the lease ex- pire in his wife's lifetime, and then during the remainder of her life to pay her the income of the accumulated fund, and after her death to stand possessed of the capital for his grand- children. The lease expired in the wife s life- time, but the income of the residuary fund was not equivalent to the rent lost. Held, that the wife was entitled to have the deficiency of her income, made good out of the capital of the resi- duary fund. — Boyd v. Buckle, 10 Sim. 695. A. by his last will and testament, gave an annuiiy, (which he directed his eldest son W., to pay) to his daughter B. for life, with power to her to dispose of same, to all or any of her children, by any writing witnessed by two or more credible witnesses. B. by her last will re- citing that this annuity was one for ever, devised the same to her two sons, share and share alike, W. by his last will and testament, (which was subsequent to the will of B.) "ratified, and confirmed the annuity so given by his father to B., and by her bequeathed to her two sons," and directed his eldest son, his heirs, and assigns to pay same. Held, that the annuity was a per- petual one, and not merely for the life of B. and her children. — Burke v. Lambert, 2 Dru. & Wal. 608. The court refused to order an estate charged by will, with an annuity, to be either mortgaged or sold, for payment of the annuity, notwith- standing the rents were very inadequate to pay it, and it had become greatly in arrear, the estate being settled on A. for life, with remainders over, the aimuitant being still alive, and there being no necessity, for the court to direct the estate to be either sold or mortgaged, for payment of the testator's debts. — Graves v. Hicks, 11 Sim. 551. Testator gave to M. W., an annuity of £40 for her life, payable out of his long annuities, and directed that at M. W.'s death, the principal, out of which the annuity arose, should go to his next of kin, then living, and he further directed that the annuity should be secured, on his stock of long annuities. The testator died possessed of £509, long annuities. Held, that a fmid for payment of the annuity, ought to be provided in three per cents., and that the money required for that purpose, ought be be raised by the sale of part of the long annuities, and that the remain- der of the long annuities formed part of the testator's residuary estate. — Fryer v. Butfar, 8 Sim. 442. A. and B. for a valuable consideration paid to them, join with C. as their security in granting an annuity to D. and the three Jointly, and two of them separately covenant that the three, or some, or one of them, shall well and truly pay the annuity A warrant of attorney of even date with the indenture was also given by the three as a collateral security, and it was thereby declared, that the judgment to be entered upon the warrant of attorney should be considered as a further security to D : A. and B. afterwards became banlcrupts. Held, first, that D. might prove against the estate of A. and B. for the value of the annuity ; secondly, that the covenant to pay the annuity was not merged in the judgment. — Ex parte Pennell, 2 M. D. & D. 273. On a petition that the property on which an annuity is charged, should be sold for the pay- ment of the value of the annuity, the court will refer it to the Commissioner to ascertain in the first instance whether the petition has a valid security on the premises in which the annuity is alleged to be charged. — Ex parte Sttiart, 2 M. D. & D. 540. A banki-upt, previous to his marriage, became bound to trustees in the penal sum of £3,000, conditioned for payment to them by his executors of an annuity of £150, in case his intended wife should survive him, in trust for her use and benefit. The bankrupt and his wife were both living. Held, that the trustees could prove for the value of the annuity under the provisions of the 54th section of the 6 Geo. 4, c. 16, although it was not an annuity in possession. — Ex parte Broadley, 2 M. D. & D. 524. Vni.— Election-. The grantee of an annuity effected a policy on the life of the grantor at his own expense. The grantor had a power of redemption on payment of £2,500 ; and it was provided that in case the grantor should, " at the time of malcing such re- purchase," by notice in writing elect or take the policy, the grantee would assign to him any policy " then vested" in him, which might be effected in respect of the annuity ; but it was de- clared, that it should not be incumbent on the grantor to keep on foot any policy. The policy became valuable, and the grantor gave the month's notice of re-purchase, and declared his election to talte the policy. Held, that grantor had no right afterwards to surrender the policy for his own profit ; and, semble, that although he might have let the policy drop, yet he was not at any time entitled to surrender it for his own profit. — Hawkins v. Woodgate, 7 Beav. 565. IX. — Agreements eob, Payment op. The plaintiff being entitled to an annuity of £300, charged upon plantations in the West Indies belonging to K., entered (as agent for K.) into an agreement with D., by which T), in con- Apportionrrlent. ANNUITY. ReJeniptum of. 37 Bideration of having the produce consigned to him until his advances were satisfied, was to ship sup- plies to the plantations, and honor bills drawn upon him D. by K., for the expenses of management, and also to pay the plaintiff's annuity. The con- signments were made, and D. paid the plaintiff's annuity for one year, and theji discontinued the payment although he received subsequent con- signment's. The bill prayed that D. might bo ordered to pay the annuity so long as he con- tinued to receive the consignments. Held, on demtu'rer, that without deciding whether the plaintiff could (with reference to the decision in the case of Garrard v. Lord Lauderdale) sustain a suit to enforce the agreement as against D. D., could not after the payment of the annuity which he had made under the contract withhold from the plaintiff the benefit of the contract for the further payment of the annuity. — K'rwan v. Danifl, 5 Hare, 493. • AprOHTIONMENT. of appointing the principal sum. — Samuda v. Lousada, 7 Bcav. 243. Gift of an annuity of £300 to the testator's three daughters, and the survivors and survivor, with a gift over to the last stu-vivor, of the sum set apart to answer the annuity. After the death of one of the daughters, the fund set apart was lost by the misconduct of the trustee, and the annuity remained unpaid for the rest of the lives of the other two ; but, after their deaths, a sum of money forming part of the residue, but of less amount than the original fund becoming available. Held, (reserving the original decision) that as the last survivor had had no opportunity of re- ceiving the capital during her life, the annuity was to be considered as continuing for her benefit after her sister's death until her own, and, thcrc- fure, that she was entitled to an apportionment in respect of the arrears of such annuity during that interval, as well as in respect of the principal fund. — Innca v. Mitchell, 2 Phil. 346. Gift of an annuity of £300 to the testator's thrre daughters, and the survivors and survivor, with a gift over to the last survivor, of the sum set apart to answer the annuity. After the death of one of the daughters the fund set apart was lost by the misconduct of the trustee, and the annuity remained unpaid for the rest of the lives of the other two; but, after their deaths, a sum of money forming part of the residue, but of less amount than the original fund became available. Held, that such sum was to be appropriated, rateably, between the arrears due to the two surviving daughters, respectively, at the time of the death of that one of them who died first, and the sum originally set apart, and which belonged to the last survivor. — Iniies v. Mitchell, I Phil. 710. Power to appoint an annuity, held under the circumstances, to authorize the appointment of the principal sum invested in the funds for se- cui-ing it. — Samuda v. Lousada, 7 Beav. 243. A testator bequeathed an annuity of £500 a year to his daughter for life, and directed an in- vestment in the funds for securing it, and after her decease he directed the " annuity" should go as his daughter shoidd by will appoint, and in default the " annuity" should be applied towards the maintenance of her children until twenty-one, and then " the principal sum" to the children, with a gift over " of the said principal sum of monev." Held, that the daughter had the po\ver XI. — CtlMUlATIVE. A bequest by the will of the testatrix, of an annuity to her " servant" E. H., and a bequest by a codicil three years afterwards of an annuity of the same amount to her " servant" E. H. Held, to be cumulative the word " servant," not expressing the motive, but being descriptive only. — Roch V. Callen, 6 Hare, 631. Testator by his will bequeathed sums to his four sons absolutely, and other sums to his four daughters for their Kves, with remainder to their children. One of liis sons afterwards died, and the testator thereupon made a codicil as follows : " In consequence of the death of my son, J. T., I have opened my will, and now wish to bequeath to my wife £600 a-year, to my three sons £2,000 each, to four daughters £300 a-year each, and at the death of my wife the £600 a-year to be equally divided amongst my four daughters. This memorandum will, I hope, be attended to in case of death before I make the legal alteration in my will." Held, that the gtfts by the codicil were in addition to those by the will, and that the annual sums given by the codicil were per- petual and not mere life annuities. — Tweedale v. Tweedale, 10 Sim. 453. Annuities of £900 and £500, respectively be- queathed by a testator to his two sisters. Held, not to be a satisfaction of anntiities of £ 300 each, granted in his lifetime by him to them for valuable consideration. — Hales \. Darell, 3 Beav. 324. XII. — Trustee op, how bound. A trustee is bound not to do anything which can place him in a position inconsistent with the interests of the trust, or which can have a ten- dency to interfere with his duty in discharging it. Neither the trustee nor his representative can be allowed to retain an advantage acquired in viola- tion of this rule. — Hamilton y. Wright, 9 Clk. & Fin. 111. A trust was created by a debtor for the benefit of creditors, and the trustee had the power to bind the debtor personally and heritably, for tho beiiefit of the trust. By the terms of the trust- deed, the trustee was likewise required to do all in his power to keep the residue of the trust- estate as large as possible for the debtor. The trustee purchased an annuity, granted by the debtor after the date of the trust-deed. The trustee died. His representatives sought to en- force the annuity against the grantor. It was held, that they could not do so, and a decree of the Court of Session affirming the right, was reversed. — Id, XIII. — EEDlilirTION OP. A., by several deeds of the same date, granted, for valuable considerations, several annuities or rent charges for lives, to be issued and payable out of certain real estates, of which he was the owner, reserving to himself and heirs, in each case, a power to re-purchase the annuity, on pay- ment, at three months' notice, of the the original price, together with a half-yearly payment of it in advance. Each annuity was secured by the When Usurious. ANNUITY. Annuitants. personal covenant of the grantor, by clauses of dis- tress and entry, in case It should lie a certain num- ber of days in arrear, and, by a warrant of attor- ney, to confess judgment against the grantor for double the original price. And, by another deed of even date, which recited the annuities as being respectively subject to "a proviso for redemption or re-purchase," the real estates on which they were charged, were conveyed to trustees for a term of years, with power of sale, to secure the regular payment of them, and, subject theretOj on trust for the grantor. The grantor, by his will, charged his real estates, in aid of his per- sonal estate, with the payment of his debts, other tlian mortgage debts, and, subject thereto, devised them in strict settlement. Held, (reversing the judgment below) that the annuities were to be treated as securities for the repayment of loans, and consequently, that the value of them, (there being no personal assets for theii' paymentj was, by \ irtue of the will, a charge upon the corpus of the real estates, and that the tenant for life of the real estates, as betvveeii Irim and the remainder man, was only liable to keep down the interest on such value. — Bulwer v. Aslley, 1 Phil. 422. XIV. — How ArFECTED BY STATUTE OF LIMI- TATIONS. Notwithstanding the principal question in the suit, he the right of the plaintiff to two annuities, one of which only has been paid. The defendant, on a decree being made for the arrears of the un- paid annuity, cannot setup the Statute of Limi- tations, as limiting the period of the account, if the benefit of the statute be not claimed upon the pleadings. — Roch v. Callmi, 6 Hare, 531. An annuity given by a will, forming no charge upon land, but being personal only, is not within the Statute of Limitations, 3 & i WUl. 4, c. 27, g. i^.—Id. A. grants an annuity to a trustee for B., for his life, and, in the conveyance enters into a personal covenant with 13. for payment of sam^. A. sub- sequently sells .subject to said annuity. Held, on a bill filed by B. against the purchasers to raise the arrears thereof, (A. or his personal le- presentatives being no party to the cause), that though there was no obligation imposed on the purchaser to indemnify A., yet that the court would not thus indirectly enforce this obligation, and thereby in effect evade the operation of the statute of limitations, and accordingly the ac- count was limited to a period of six years prior to the filing of the bill. — Harrison v. Duir/nan, 2 Dm. & W. 29j. If a bill of revivor is filed at any time within twenty years after a decree for an account, the court will not refuse relief, unless there has been a variation of the rights of parties as to occasion danger of working positive injury and injustice to other persons. -.-/i^, XV. — When TJsuitious, A. api^lied to B. to lend him £400 on mort- gage of certain leasehold houses, but B. refused. It was then agreed that A., in consideration of the £400, should grant to B. two annuities of £21 each for 40 years to be issuing out of the houses. Held, that the transaction was usurious. ^^ChiUingioorih v. C/iiUingworth^ 8 Sim. 404. XVI.— Fund when Insufficient. The dividends of a sum in court, being insuffi- cient for the payment of an annuity charged upon it, a prospective order was made for the sale, from time to time of so much of the corpus, as would together with the dividends be necessary for raising the amount of the annuity.— ffoe^j/'e v. Lewin, 1 Beav. 431. A sura of money in the 5 per cents, set apart, to answer an annuity, was reduced to 3^ per cents., and the dcvidends having become insuffi- cient to pay the annuity, the court made a pro- spective order for the sale, from time to time, of a sufficient part of the capital, to meet the accru- ing payments of the annuity. — Swallony. Swallon, 1 Beav. 432. XVII. — What Tax Subject to. A testator gave to his wife an annuity or clear yearly rent charge of £1,800, clear of all taxes and deductions. Held, that the annuity was subject to the property tax. — Wall. v. Wall., 15 Sim. 613. XVIII. — Substitution of. Bequests of an annuity of £800 to the testator's wife, followed by a bequest (among others), of an annuity of £200 to the testator's daughter, and a subsequent direction in the same instru- ment, that at the death of the testator's wife, the daughter was to have £400 a year. Held, that the annuity of £400 given to the daughter, was in substitution for, and not in addition to the prior, annuity of £200 given to the same legatee. — Yockney v. Hansard, 3 Hare, 620. XIX. — Annuitants, A testator gave his whole estate to trustees tu sell, and after payment of debts, expenses and certain legaices, to pay out of the residue two an- nuities of £400 each to F. and P., and one of £200 to B,, for their respective lives ; and for the better fulfilment of that purpose, he directed them to vest sufficient capital sums, on secui-ities, and if the residue should not be sufficient to veiit whatever residue might be, and pay the dividends to the annuitants in the same proportions, and if more than sufiioient, to vest the surplus and divide it, and the capital sums set apart for the annuities as the same should become tangible by the death of each annuitant: among residuary legatees. B. pre-deceased the testator. The re- sidue did not yield sufficient income every year to pay F. and P. £400 each. On the death of F., P. and F's. personal representatives claimed payment of all the arrears out of the then enlarged income of the residue. Held, by the Lords, (varying interlocutors of the court below), that F. and P. were entitled to payment of £400 each only in those years in which the income of tlie residue was sufficient; that when in auy year- that income was more than sufficient, the excess be- longed to the residuai-y legatees ; that on F's. death, half the capital of the residue became di- visible among them, and then P. became entitled to the income, in each year, of the other half; but, when in any year this income exceeded £400, the excess belonged to the residuary legatees, Ammilaiits. ANN UlTY.— APPORTIONMENT. 89 and neither, P. nor F's. representatives were en- titled to any payment of aiTears. No benefit accrued to the residuary legatees from the lapse of the annuity to B., except when thereby the income of the residue exceeded the amount of the two subsisting annuities. — Casamaijor v Pearson, 8 Clk. & Fin. 69. A lessee of a bishop's lands in Ireland, with a custom of renewal, granted sub-leases, with cove- nants to renew on payment of rents and fines. The sub-leases became vested in B., who charged the lands £ind other lands of which he was seized ill fee with annuities, and conveyed both des- criptions of lands to a trustee to secure the an- nuities, with power, if they should be in arrear, to raise payments by sale or other means. R's. interest m the leasehold and freehold lands was assigned to Haig in 1814, and the lease under the bishop had then become vested in him, and he obtained renewals of it. On a bill filed against him in 1815 by the annuitants, praying a sale for payment of arrears then due, orders and decrees were made, appointing aieceiver of the rents and profits of all the lands to pay the annuities there- out, and declaring them to be a first charge on both descriptions of lands, and ordering a sale of part to pay the arrears, unless Haig should pay the same in six months. On a supplemental biU by the annuitants, stating that they had dis- covered that the sub-leases had not been renewed, and praying that Haig might be ordered to renew them, a decree was made ordering liim to execute renewals on payment of the rents and fines due to him, the same to be a first charge on the lands in case of renewals ; but, if the annuitants should not pay the rents and fines, then their bill as far as it prayed renewal of the sub-leases to be dis- missed vrith costs, and the freehold lands to be sold, subject to the annuities, for payment of the arrears. The annuitants declined to renew find- ing the proceeds of the freehold lands which were sold a sufiicient fund for their dividends. Hold ( afiirming decrees of theCourtof Chancery) , that the annuitants could not be compelled to renew the sub-leases, and that Haig was not en- titled in justice or in point of form to be reim- bursed by them, personally, or out of the produce of the freehold lands, for the rents paid to them by the receiver out of the leasehold lands. — Haig v. Roman, 8 Clk. & Fin. 321. A testator, by a will of 1805, gave to R., one of the plaintifiFs, an annuity of £300, and, by a sub- sequent will of 1812 revoking the former will, he devised to the same plaintiff an amiuity of £600 per annum. The will of 1805 was admitted to be valid, but the wUl of 1812 having been im- peached, a suit was instituted to establish it. Semble, that K. the annuitant, notwithstanding that in any event she was entitled to an amiuity of £300, was not entitled to an order that the receiver in the cause should pay her out of the rents of the estate the annuity of £300. It is not the course of the court to pay annuities charged upon encumbered propertv pending the litigation. D' Alton V. Lord Trimleston, 2 Dru. & W. S31. A bill for chief rent is sustainable in this court, when, in consequence of the acts of the party liable to pay such chief rent, all the difiiculty in the way of the plaintiflfa proceeding at law has been occasioned. — T/ie Archbishop of Dublin v. Lord Trimleston, 2 Dru. & W. 535. AKSWEE. See Pl. Answek.— Pr. Answeb, ANTICIPATION CLAUSE. See HusD. & Wife.— Alienation APOTHECARY. The right of an apothecary to charge attend- ances is not matter of law but of contract, either express or to be implied from the usage of the place. — Smith v. Chambers, 2 Phil. 21 . APPEAL. See Pb. Appeai. — Pk. Staying Pkoceedinos. APPEARANCE. See Pb. Appeakanoe. APPLICATION OF PURCHASE MONEY. See Vend. & Puroh. APPOINTMENT. See Power. — Tiiustee. APPORTIONMENT. See 11 Geo. 2, o. 19, s. 15.— 4 & 5 Will. 4, c. 22. The Act 4 & 6 W. 4, u. 22, for the apportion- ment of rents, anntdties, and other periodical payments, extends to Scotland. — Fordyce v. Bridges, 1 Clk. & Fin., N. S. 1. The Apportionment Act, 4 & 5 W. 4, c. 22, does not apply to rents, payable by tenants from year to year, which have been reserved by an in- strument in writing. — In re Markby, 4 Myl. & Cr. 484. A., on his father's death, became tenant in tail in possession of estates, with remainder to his younger brother, in tail. After the father's death, a suit was instituted on behalf of A. and his younger brother, (both of whom were infants) and a receiver of the rents of the estates was ap- pointed. The younger brother was made a party to that suit as being entitled to a portion out of the estates. A. died under twenty-one, and without issue. At his death the estates were held, as they had been ever since his father's death, by yearly tenants under parol demises. Held, that A.'s administratrix was entitled to a proportionate part of the rents which were ac- cruing due at his death. — Kevill v. Davids, 15 Sim. 466. A. B., amarried woman, conveyed her separate estate to C. D., in trust to sell, &c., and pay a debt due to him from her, and further advances, not exceeding in the whole £402, and to hold the surplus for her separate use. C. D. afterwards made further advances, far exceeding the limit, part of which was paid upon bOls drawn on him by A. B., with directions "to charge the same 40 APPORTIONMEMT.— APPROPRIATION. to the account of" her separate estate. Held, that CD. -was not entitled to appropriate liis re- ceipts in the first place in payment of the ad- vances, not covered by the security, the court considering that C. D.'s receipts could not be considered as indefinite payments ; that he had them only for the purpose of paying cffthe charge, and afterwards for A. B.'s separate use, and that upon the true construction of the instrument C. D. -was hound to apply the separate estate which he received in satisfaction of the charge, and could only consider the surplus after such satis- faction as subject to the disposition of C. D., or liable to such ordinary lien as he might acquire by advancing money to her. — Smith v. Smith, 9 Beav. 80. The interest of certain debentures belonging to a testator was permitted to be received by a le- gatee for several years, the debentures at the time of the testator's death not being equivalent to the legacy. Held, that the debentures were appropriated to the legatee, that, upon being paid off at a price greater than the amount of the le- gacy, the produce belonged to him. — Kimberley V. Tew, 2 Con. & L. 366. A life estate in realty was created by a deed in 1787. The estate was sold and invested in 1821 in consols. The tenant for life died on the 9th of December, 1841. Held, that her executors were not entitled to an apportionment of the di- vidends under the 4 & 5 "WUl. 4, c. 22.—Miehell v. Michell, 4 Beav. 549. An information related to two objects, one failed, and the decree dismissed so much of the information as related to it without costs, and or- dered the defendant to pay the informant his costs of the suit. Held, that the taxing master was wrong in apportioning the general costs of suit between the two objects. — The Att. Gen. v. Lord Carrington, 6 Beav. 454. APPRENTICE, Explanation of acts for regulation of appren- tices 5 & 6 Vic. c. 7. Apprenticeship Indenture's Act, 3 & 4 "Will. 4, c. 63. Apprentices to bankrupts discharged from their indentures. Bankrupt Law Consolidation Act, J849, s. 170, Jagoe's ed. 102. Court may order any sum to be paid in respect of apprentice fees. — Id. An apprentice to an attorney, who, during the period of his apprenticeship, filled the office of salaried clerk in the office of one of the six clerks of the court of chancery. Held, notwithstanding, to be entitled to be admitted a solicitor of the court. — In the matter of Lyons, 1 Dru, & "Wal, 827. A fiat of bankruptcy, issued against the master of an apprentice, but was afterwards annulled by means of a composition between the bankr-upt and his creditors. Held, that the indentures of apprenticeship were discharged. — Aliens, Coster, 1 Beav. 274. APPROPRIATION. "Where a mortgagee of certain lands, which were held imder leases for lives renewable for ever, had become bankrupt, and an ejectment for non-pajTnent of rent having been brought by the landlord, and the premises redeemed by the assignees within the time allowed by the statute to mortgagees, who subsequently entered mto possession by their agent. Held, on a bill filed by an annuitant, claiming, under a deed of set- tlement prior to the date of the mortgage, that the assignees were chargeable as mortgagees in possession, and were bound to appropriate the rents and profits of the lands which they had re- ceived, or without wilful default might have re- ceived in discharge of the redemption money in priority to that of their own mortgage. — Shane v. Mahon, 1 Dru. & "Wal. 189. A. gives his promissory note to B., who by de- posit fliereof at the bank raises money which he pays to A., being indebted to him. Accounts are subsequently settled between A. and B., but the promissory note remains at the bank. The money being still due by B. to the bank, B. be- comes insolvent, and the bank brings an action against A. for the note. A. insists that the note has been discharged by B. in the course of his dealings vrith the bank. Injunction granted to restrain the action at law, and inquiries directed whether B. was a consenting party to the state of the accounts in the bank books, and, secondly, whether the sums paid into the bank by B. were paid in with specific appropriations. — Moatyn v. Burdekin, 3 Jur. 52 C. A. being seized in fee of Ardgiillen, confessed a judgment, and afterwards, upon the marriage of his son, B. conveyed the lands to the use ot B. for his life, remainder to the issue of the mar- riage, and covenanted that they were free from incumbrances. By his will he gave several lega- cies, and died, having appointed B. his executor, and leaving assets more than sufficient to pay all his debts and legacies. Upon the marriage of C, one of the legatees, a settlement was executed, whereby, after reciting the wiU of A., and that the legacy of C. was then in the hands of B. as executor ; C. assigned the legacy to trustees, of whom B. was one, upon trust for C, for her life, and after her decease, without issue, upon trust for the benefit of the judgment creditor and his issue. In 1836, the judgment creditor instituted a suit for payment of his judgment out of the real and personal assets of the testator. In 1836, C, and her husband, (there being no issue of their marriage,) instituted another suit against B. and the persons entitled under their settlement, in default of issue of their marriage, for the appoint- ment of new trustees, and an account of the trust funds, and in that suit an order was made on the consent of B., but without notice to the persons entitled in default ot issue of C. and her husband, that B. should transfer to the credit of that cause stock to the value of C.'s legacy without prejudice to the rights of the parties, and it was ordered that the dividends thereof be paid to C. The stock was accordingly transferred by B., who purchased same with the produce of the sale of part of the assets of the testator, which were outstanding in specie when the bill of 1835 was filed. The assets having been wasted, the chil- dren of B. claiming as specialty creditors of A, under his covenant, filed a bill in 1840 to have the stock standing to the credit of C.'s cause, ap- plied in payment of the judgment debt. Held, that the stock had not been appropriated to die payment of C.'s legacy, either as against the spe- cialty creditors or the other legatees of A., but that it still continued assets for payment of his debts and legacies.— /enmni/s v. Bond, 2 Jon. & L. 720 A. B„ an equitable mortgagee, lent the title APPROPRIATION.— ARBITRATION AND AWARD. 41 deeds to C. D., the mortgagor, to enable him to arrange a sale of the^property, C.D, was indebted to A. B., both on the mortgage and on a trade account. CD. paid to A. B. a part of the pro- duce of the sale ; but there was no evidence of his having made any express appropriation of that payment. Held, that it must be understood that the payment was made on the mortgage account, and that A. B. had no right to appropriate it to the trade account. — Young v. English, 1 Beav. 10. A., an executor, who was also trustee, divided the assets. He paid to the adult legatees their shares, and invested the shares of the infants in his own name, but he executed no declaration of trust thereof, he afterwards applied these sums to his own use. Further assets having unex- pectedly fallen in. Held, that they ought, in the lu'st place, to be applied in making good the in- fants legacies, — Wilmott v. Jenkins, 1 Beav. 401. B. S. & Co., of Calcutta, having consigned certain goods to G. B., in England, on which they had a lien for the price, write him word that they intend to draw in favour of G. K. & Co. for the balance of such shipments, and that they inclose bills of lading, and policies of insiirance, for the goods in question, and they also draw a bUl for the amount on G. B. in favour of G. K. & Co., which they direct G. B. to place to ac- count of shipments, per Gardner. Before the goods reach England G. B. becomes bankrupt, and the goods come to the possession of his as- signees. Held, that the above expression in the bill and the letter amounted to a specific appro- priation of the goods for the payment of the bill, and that the assignees were bound to account to G. K. & Co. for the proceeds, — Ex parte Gled- atanes, 3 M. D. & D. 109. One of two bankrupts, W. M., being a partner in another firm of M. & S., gave a security to the petitioners for any monies that might become due either from the house of the bankrupts, or from the firm of M. & S. Held, that the proceeds of the security might be applied first in discharge of the debt due from the firm cf M. & S. — Ex parte Glyn, re Medley, 1 il. D. & D. 25. ARTICLED CLERK. An articled clerk to an attorney and solicitor is not an apprentice within the meaning of the forty-ninth section of the bankrupt act, 6 Geo. 4, c. 16. — Exparte Prideaux, 3 Myl. & Cr. 327. See Bankrupt Law Consolidation Act, 1849, s. 170, Jagoe's ed. 102. An articled clerk had neglected to file the neces- sary affidavit within six months ; " but the omis- sion had arisen from inadvertence only." Held, that this was not a sufficient ground for relieving him from the consequences under the 6 & 7 Vic. e. 73, s. 9. — In re Benson, 10 Beav. 435. ARBITRATION AND AWARD. See Limitations, Stat, op — Compensation. I. Arbitration 41 II. Award , 42 1 . When Enforced 42 2. When Set Aside 42 3. When Revoked 42 4. When made a rule of Court 43 6. Under Inclosure Acts 43 I. — Arbitration, Sec 3 & 4 William 4, c. 42. Two persons equally entitled to certain unen- closed slobs, agreed to allot certain parts thereof to each of them in severalty, and refer it to ar- bitrators to award what portion of the unallotted slobs should be allotted to each of them for owelty of partition. Held, that the insufficiency of the unallotted slobs to compensate one of the parties for the deficiency of his part of the allotted lands arising from a matter which occurred subse- quently to the arrangement between them, but which was in their contemplation at the time, did not give him an equity to have compensation out of the lands allotted to the other party. An agreement to refer, and arbitrators namedi, and a covenant not to sue, and a power to examine witnesses upon oath, and to make the submission a rule of court, prevent a party from filing a bill, with the view of withdrawing the case from the arbitrators. A party to a suit cannot set up an objection which grew out of his own conduct. Two arbitrators were named in a submission to refer, and they, or other the persons appointed in their place, were, before they proceeded, to ap- point a third arbitrator. Any two of the arbitra- tors for the time being might at any time, or from time to time, make awards or orders, pro- vided the last of such awards should be made before the 1st of July, 1843, or before such other later time as any two of the arbitrators for the time being should appoint ; and any two of the arbitrators for the time being might extend the time for making the last award, whether such time should have previously expired or not. And it was provided that X. should, as soon as conveniently might be, appoint an umpire, and that if no two of the arbitrators for the time being should be able to agree in making an award, or order, concerning any matter which ought to be awarded, or ordered by them, such matter should be awarded or ordered by the umpire. And if at any time before the several powers, authorities, covenants, and provisions, in the deed of submis- sion, were executed either of the arbitrators named by the parties should refuse to act, the party whose arbitrator so refused should appoint another in his place, and if he did not do so within fourteen days, then, that the third arbitra- tor, and if none such, the umpire should appoint such arbitrator. The plaintiff's arbitrator re- fused to act, and nothing was done in the matter of the reference before the first of July, 1843. The plaintiff having, after that day, refused to appoint an arbitrator, the defendant procured X, to appoint an umpire, who appointed an arbitra- tor on behalf of the plaintiff', and the two arbi- trati.TS appointed a third, and then the time was extended by the three arbitrators. Held, that the time was duly extended. — Dimsdale v. ho- bertson, 2 Jon. & L. 58. Accounts being directed to be taken by the master, liberty was by consent given to the pai'- ties to submit to arbitration any question of ac- count. The court also gave liberty to the master to adopt the conclusion, but would not even by consent make it compulsory. — Scale v. Fothergill, 8 Beav. 361. Arbitration clauses in deeds are not binding on the parties so as to oust the jurisdiction of the court. — The Earl of Marlborough v. Bower, 7 Beav. 127. An arbitrator appointed by certain acts of par- liament made an award which was resisted by 4-2 Award. ARBITRATION AND AWARD. When Revoked. one of the parties interested, as being, and was in fact without any fraud in the arbitrator in- valid. Held, that this circumstance did not af- fect the validity of a subsequent award made in the same matter between the same parties. — Great North of England Raihoay Co. v. Clarence Railway Co., 1 Coll. C. C. 607. Several actions and suits pending between the plaintiif and defendant, one of such actions came on for trial in the Queen's Bench, when by con- sent all matters in difference, including the suits at law and in equity then depending between the parties, were referred to arbitration. The plain- tiff in equity afterwards served a subpoena to hear judgment, and set down the causes. The court on motion set aside the subpoena, with costs, and struck out the causes &om the list. — Ambler v. Tebbutt, 2 Beav. 442. Although an agreement of the bankrupt to submit to arbitration is not binding on his assig- nees, yet where a judge's order (made by con- sent) in a cause in which the bankrupt was plain- tiff, recognized a pending reference between the parties, and ordered that, in the event of any sum being found by the arbitrator to be due from the banlcrupt to the defendant, such sum might be set off against the debt and costs in the ac- tion, it was held, that this order amounted to an agreement, on the part of the bankrupt, to allow a right of set-off to the defendant of the sum to be thus ascertained, by which the assignees were equitably bound, and the sum not having been ascertained before the bankruptcy, it was referred to the registrar to do so ; and the assignees were in the meantime restrained from proceeding in any action for the recovery of the debt. — Ex parte Uichie, re Geddes, 1 M. D. & D. 181. II. — AWAED. 1. When Enforced 42 2. When set aside 42 3. When Revoked 42 4. When made a ride of Court 43 5. Under Inclosure Acts 43 II, 1. When Enforced. The Court of Chancery is one of the " Courts of Record" to which the stat. 9 & 10, W. 3, c. 15, gives summary jurisdiction for the enforce- ment of awards. The statute excludes every jurisdiction from interfering vrith the execution of awards made under it, except the summary juris- diction expressly given by it. And a bill will not lie to impeach an award made under the stat. ■whether the submission under which it was made has, or has not, been made a rule or order of court before bill iiled. — Hemming v. Swinnerton, 2 Kiil. 79. Award of arbitrators enforced in equity, al- tliough the STibmission to arbitration was to be made a rule of court of common law. Awai'd enforced, although made after the prescribed time, when both parties had without obiection allowed the arbitrators to proceed after that time. Where an agreement provides that various things shall be done by respective parties, and that if any disputes shall arise with respect to Ih: m, such disputes shall be settled by particular jiersons as arbitrators, the award of the arbitra- tors need not embrace any more of the matters provided for by the agreement than are brought before them by the parties. — Ilaicksworth v. Brammall, 5 Myl. & Cr. 281. An award, as between partners, providing for the application of the partnership aissets, ii tnere should be a surplus, but not providing tor the event of a deficiency, is not necessarily mvahd; for the court, in support of the award, may m a proper case intend that the state of the assets is such as to render the latter provision unneces- sary. — Wilkinson v. Page, 1 Hare, 276. An award, in other respects valid, is not ren- dered invalid owing to the nature of the remedy to which the parties are left, in order to enforce obedience to the award, provided the remedy be sufficient. — Id. An award, (under an order of reference in a cause seeking an account,) directing accounts in question between the parties to be taken without ordering payment of the balance which shall be found due is not therefore bad, for the court may enforce payment of such balance in the cause, —Id. A sum of money, constituting an item in an account, being one of the matters in reference, the arbitrator directed the accounts to be taken, and the sum in question to be paid at a certain time, without reference to the state of the ac- counts at that time. Semble, this does not ne- cessarily affect the validity of the award.— W. Among the matters referred to an arbitrator, was the question whether W. or P. ought to be ultimately liable upon a promissory note of which P. was the maker, and W., an indorsee, as surety for P. ; and whether P. was entitled to an indem- nity from "VV. against the liability of P. to pay the note when it became due ? The arbitrator, by his award, among other things declared that the liabilities of P. on the note, as between P. and W. should remain unaffected by the award. Held, that the award was not final, and was therefore bad. — Id. II, 2, When set aside. Upon the face of an award the arbitrator ap- peared to have improperly disallowed a sum of £818. On an application to a Court of Equity to set aside the award, the respondent offered to allow it. Held, nevertheless, that the award must be set aside. — Skipworth v. Skipworth, 9 Beav. 135. Award held bad and set aside, first, because the arbitrators had awarded on a matter which was not referred to them, and what they had so awarded without authority could not be separated from the other parts of their award ; secondly, because they had declined to arbiti'ate upon cer- tain matters included in the reference. Prin- ciples of the court in dealmg A\ith awards. — Bownes v. Fernie, 4 Myl. & Cr. 150. Award set aside on the ground of interviews having taken place between the arbiti'ator and one party in the absence of the other. — Harvey V. Shelton, 7 Beav. 455. Similar misconduct on the part of the person applying will not prevent the coui't setting aside the award, for the matter concerns the due ad- ministration of justice. — Harvey v. Shelton, 7 Beav. 455. II, 3. When Revoked. A submission by a woman to ai'bitration is re- voked by her marriage before the award is made. —M'Can v. O'Ferrall, 8 CI. & Fin. 30. Where an award is made after the submission has been revoked by the plaintiff, equity will not restrain the di. i'eiulants from acting on the award, Award. ARBITRATION, &c.— ASSIGNMENT. When valid. 43 imless the plaintiff has good grounds for revoking the suhmission. — Pope v. Lord Ihmcannon, 9 Sim. 177. H, i. When made a i-ule of Court. The submission to ai-biti-ation may, under the statute 9 & 10 Will. 3, o. 15, be made a rule of ciurt not only after the awaa-d has been, but after the last day of the term following the publication of the award j and when, therefore, it is no longer open to either party to complain of the awai'd on the ground of corruption, or undue preference. — Hemminr/ v. Swinnerton, 6 Hare, 360. An objection to the validity of an award, ap- parent upon the award, is not an objection to making the submission a rule of court under the statute. — Id. A motion to make a submission to arbitrators a rule of court under the statute must be made exparte, semble. — Id. A general demurrer to a bill to set aside an award which was agreed to be, but had not been made a rule of the Court of Chancery, overruled by the Vice- Chancellor, but allowed, on appeal, by the Lord Chancellor. — Hemming v. Stoin- ne7ton, 14 Sim. 588. A motion to make an award an order of court is not a motion of course, but is a special motion to be made upon notice. — WiUcinson v . Paffe, I Hare, 280. II, 5. Under Inclosure Acts. Conditions of sale describing a title to premises as arising under an exchange by virtue of an award of coimnissioners under an inclosure act, are satisfied by shewing a title by award in res- pect of other lands and of common rights, without shewing the further particulars of the exchange ; and, if the vendor contracts to commence his title with the award, the pui-chaser has no right to inquire into the title of the lands given by the vendor in exchange for the lands contracted to be sold.— Ca«i;;/ v. Coirall, 4 Y. & C. 228. An award by the commissioners of lands in general terms without stating their tenure is prima facie evidence of their being freehold. — Id. The legal title to purchase-money or compensa- tion-nioney, to be ascertained by the awai-d of a conunissioner under an inclosure act, is not com- plete until the award is made ; therefore, if a person entitled to such money assigns away his interest before the award is made, he is not a necessEiry party to a bill filed by the assignee for the recovery of the money. — Cator v. Croydon Canal Company, 4 Y. & C. 405. Commissioners appointed under an Act of Parliament to set out the metes and bounds of mines and quarries in the Forest of Dean, and to fix the rent to be paid for the same. Held, under the terms of the act, to have no power to compel a miner to pay in money for by- gone workings, or to exclude him from the award if he refused • to make such payment. — Att.-Gen. v. Jackson, 5 Hare, 335. Commissioners appointed by an Act of Parlia- ment to detennine the respective rights of the Crown, and the customary miners on crown lands, had made an award giving a benefit to a miner, but had required such miner to submit to terms which they had no power to impose, and which the miner did not afterwards fulfil. Held, that after the time limited by the act for making the award had expired, the court would not set aside the awai-d at the suit of the Crown, as it could not then restore the miner to his rights under the act. — Id. In the case of an award made upon the faith of a parol contract, entered into by a party taking a benefit under the award, that such party would pay a sum of money to the Cro\vn on informa- tion by the Crown seeking specific performance of the pai'ol contract, and thereby, in effect, to add the parol agreement to the award, cannot be sustained . — Id. Semble. The refusal to pay a sum of money, according to an agi-eemcnt, upon the faith of which an awai'd v.-as made, although it was a stipulation which the commissioners making the award were not empowered to insist upon, would be a ground upon which, in equity, the party to whom the monies were to have been paid might resist the performance of the award if the other party had sought the aid of the court to enforce it.— Id., 5 Hare, 365. ARREARS. See Annuity — Interest. ARREST. See Pk. Aruest. ASSETS. Sec ExECCTOB AND Administratoh. ASSIGNEE. See Insolvent, ASSIGNMENT. See Mortgage. — Husb. and Wife. — FonpEiTuuE. — Notice. — Pbiohity. — Chose in Action. — Insolvent Debtor. I. When Valid 43 II. When Void 44 III. Equitable 44 IV. Notice 45 V. Pendente Lite 45 VI. Voluntary 45 I, — When Valid. An assignment by a Puisne Judge, of the Su- preme Court at Madras, of the sum " equal to the amount of six months' salary," directed by the 6 Geo. 4, c. 85, to be paid to the " legal personal representatives," of such judge, in case he should die in, and after, six months' possession of office, is a valid assignment, being a vested contingent interest in such judge, and not being payable during the lifetime of the judge, is not an assign- ment of salary vrithin the 5 & 6Edw. 6, c. 16, and 49, Geo. 3, c. 126, and therefore contary to public policy. — Arbuthnot v. Norton, 6 Mo. 219. Assignment by the assignee of an equitable term, to a person in poor circumstances, held valid although it was made in order to avoid pay- ment of a sura of money chargeable on the lessee, under the original agreement, which agreement 44 Void. ASSIGNMENT. Equitable. the assignee had adopted in all its -pans.— Fagg V. Dobie, 3 y. & C. 96. The motive which induces the assignee of a lease to assign over, his interest has no bearing upon the question, whether the assignment is fraudulent or not, provided Ihe assignment is real, and intended to operate, as it appears to operate. —Id. Assignment of all and every, the household goods Sc, the particulars whereof were stated to be more fully set forth, in an inventory signed by the grantor, and annexed thereto. There was no such inventory. Held, nevertheless, that the as- signment was effectual, it appearing firom the answer of the party resisting its validity, that the particulars could be ascertained. — Ewjkmd v. Duims, 1 Beav. 522. Assignment of funds by a prisoner on a charge of felony, to secure payment of an antecedent debt and costs to be incurred in his defence, established, notwithstanding his subsequent con- viction. — Perkiiis v. Bradley, 1 Hare, 219. A deed of assignment by way of mortgage of a ship, together with her tackle and appurtenances, and all oil head matter, and other cargo which might be caught, or brought home in such ship is, as against the assignor, a valid assignment in equity as well of the future cargo, to be taken during the particular voyage, as of the cargo (if any), which existed at the time of the assign- ment. — Langton v. HortoH 1 Hare, 549. The ship was on her voyage at the time of the asi^ignment ; the parties sent notice of the assign- ment to the master of the ship, and the master delivered up possession of the ship and cargo, to the mortgagees immediately after her return li-om the voyage. Held, that the equitable title of tlie mortgagees to the cargo was perfected, and could not be defeated by a judgment creditor of the assignor, who afterwards sued out a writ of fifa, and proceeded to take the ship and cargo, in execution. — Id. II. — Void. A testator in Scotland gave all his property to trustees — first, to pay his debts, secondly, to pay Mrs. R., a married woman, so much of the annual jnoceeds as they might deem necessary, for sup- port of her and family during her life, declaring tile same to be alimentary and exclusive of her husband, nor attachable, nor assignable, nor sub- ject to any deeds or debts of her or her husband. The acting trustee with consent of Mrs. E.. as- signed to her alimentary creditor, the rents of the trust property — first, to pay debts affecting it : secondly, to pay part of the rents to Mrs. K. for aliment : thirdly, to apply the residue in payment of the debts due to the assignee. Held, that the assignment was void on three groimds, viz. ; first, it was not competent to the trustee to substitute another person for himself in the trust — which was the effect of the assignment ; secondly, the rule of law in Scotland requiring the concurrence of the husband in his wife's deed, could not be dis- pensed with, by his absence abroad at the time for a temporary purpose only ; thirdly, the assign- ment was void, as it violated the express prohi- bition against alienation, and in this respect the law in Scotland is the same as in England. — Rennie v. Ritchie, 12 01k. & Fin. 204. A. made a voluntary assignment of turnpike bonds and shares in companies to B., in trust for himself for life, and after his death for his nephew. He delivered the bonds and shares to B., but did not observe the formalities required by the Turnpike Road act, and tlie deeds by which the companies weie formed to make the assignment effectual. Held, on his death that no interest in either the bonds or the shares passed by the assignment, and that B. ought to deliver them to his executors. — Smrle v. Law, 15 Sim. 95. The interest of a sum secured by a mortgage of tithes being in arrear, the mortgagor wrote and gave to the mortgagee a letter to the lessee of the tithes, desiring him to pay the sum in arrear to the mortgagee, and to charge it to the mortgagor in settling for the tithes of the current year. The mortgagor sent tire letter to the lessee, who undertook to pay tlie amount within a certain time. The payment however was never made. Held, that the letter was not an assignment in equity to the mortgagee, of a debt due from the les- see ot ihe mortgagor, but was an order for pajTnent of money, which could not be enforced because it was not stamped.— iorcf Braybrook, v. Meredith, 13 Sim. 271. A. executed a deed, conveying and assigning his property to trustees, for the benefit of cre- ditors. The operative part of the deed was in these words — " A.U and sundry superiorities, lands and heritages, debts heritable and move- able, an.d whole goods, gear, sums of money and effects, and in general my whole means and estate, heritable and moveable of whatever nature, or denomination, or wherever situated persently belonging to me," Held, that these words did not pass the profits of a public oiliee at that time filled by the grantor. Semite, that the profits of a public office cannot be assigned for the benefit of creditors.— ffi'Hv. Paul, 8 C.'lk. & Fin. 295. A. and B. carried on business in partnership, they were also members of a firm which traded as C. & Co. A. and B. for the purpose of paying off certain of their debts, assigned to the other members of the firm of C. & Co., portions of their shares in that film. The assignment which was bona fide, was regularly intimated, and it was duly entered on the books of the firm. An extent at the suit of the crown, afterwards issued against A, and B. Held, that the portions of shares thus assigned, could not be seized under the extent. — Spears v. The Advocate General, 6 Clk. & Fin. 180. III. — EaUITABLE. A. having goods in the hands of B., as his agent at a foreign port, and being under liabiHties to C, by letter to G. promised that he would direct, and by a subsequent letter to B., did direct B. to deliver over the goods to D., as the agent of C. at that port. Before the delivery of the goods, a commission of bankrupt issued against A., under an act of bankruptcy, committed while his letter was on the way to B., and the goods were de- livered byB.toD., in ignorance of the bankruptcy. Held, that C. had a good title in equity to the goods. — Burn v. Carvalho, 4 Myl. & Or. 690. A Calcutta firm by a letter dated in January, and received in London on the llth March, 1841 directed their London correspondents to hold a sum of money (equal to a lac of rupees, at the currant rate of exchange), payable on the 19th, November following, out of remittances, and con- sig-nments on the general account, at the disposal of a creditor of the Calcutta firm in Liverpool. The Calcutta house at thesame time acquainted the Liverpool house of the directions which had been Notice. ASSIGNMENT.— ATTORNEY -GENERAL. 45 given. The London house informed the Liverpool house that they had received and registered the order, and after stating that they were in advance of the Calcutta house, and declining to accept bills for any part of the amount, said, that if remitt- ances should come forward to enable them to meet the wishes of the Calcuttahouse, they would lose no time in advising the Liverpool house. The Lon- don house also, in acknowledging to the Calcutta house, the receipt of the order, said that the state of their accounts did not warrant them in meet- ing the requisition, but they would meet it, if in a position to do so, before November. The Cal- cutta house revoked the order, by a letter of January, 1842, received by the Loudon house on the 12th March, 1842. Held, that the eflect of the triple correspondence between the Calcutta house and the London house, the Calcutta house and the Liverpool house, and the London house, and the Liverpool house entitled the Livei pool house, as against the London house, to an account in equity, of the balance on the 1 2th March, 1841, on their general account with the Calcutta house, (giving the London house credit on such account, for aU liabilities incurred by them, on behalf of the Calcutta ho>ise on that day), and of the con- signments and remittances of the Calcutta house to the L»ndon house, in the general account which came to the hands of the latter, between the 12th March, 1841, and the 12th March, 1842. — Malcolm v. Scott, 6 Hare, 570. The London house might have dedined the approbation, and returned the balance of the ac- comit to the Calcutta house, but they could not as against the Calcutta house, have retauied any balance due to the Calcutta house, except for the purpose which the latter had directed. — Id. Semble, that the London house was not merely bound to pay to the Liverpool house the amount directed, so far as the balance of account on the 19th November, 1841, enabled them to do so, but was bound to appropriate aU the remittances and consignments from the Calcutta house, on general account, from the receipt imtil the revocation of the order, after reimbursing themselves in respect of their advances and liabilities on behalf of the Calcutta house, at the time they received it. — Id. Semble, that the communications between the Calcutta house and the London house, and the Calcutta house and their Liverpool creditor, would not have entitled the latter fi«n to the ac- count, as against the London house, without the communications which took place between the London and the Liverpool firm. — Id. The equitable assignee of an underlease is clothed vrith the obligation to perform the cov- enants in the underlease, though he is himself the,original lessor, and cannot set up the non- performance of those covenants against his lessee, as'a ground for refusing the performance of a cov- enant in the original lease. — Jenkins v. Portman, 1 Ketn, 436. IV. — ^Notice. Under the 9 Geo. 2, c. 5, (Irish statute) pay- ment by the conusor of a judgment to the conusee, witliout notice of the assignment of the judgment, is payment to the assignee thereof. The regis- tration of the assignment, under that statute, does not operate as notice to the conusor. The situ- ation of the conusor, under this statute, resembles that of a mortgagor under the (English Statute) 32 Hen. 8, c. Si.— Boyle v. Ferrall, 12 Clk. & Fin. 740. V. — PisNBENTE Lite. Whore a plaintiff assigns his interest, the court will not allow his assignee to come in by amend- ment, but will leave him to file a supplemental hill.—Magrath v. Heeran, Fl. & K. 237. Some of the plaintiffs, who had an equitable interest only in the property in question, mort- g.iged their interest, pending the suit. Held, at the hearing that the mortgagee was a necessary party. — Solomon v. Soloman, 13 Sim. 616. VI. — Voluntary. M. who, in the event of surviving her daughter, and on the death of her daughter without issue, would, as next of kin, be entitled to a fund which was vested in trustees, executed a volun- tary assignment of her interest in the fund to the husband of the daughter, and declared the trusts of the assignment, as to part for the benefit of M. herself, and as to another part for the daughter's husband absolutely. No notice of the assignment was given to the trustees. Tho daughter after- wards died without issue, and the husband filed his bill against the trustees andM., to compel the performance of the trust. Held, that the volun- tary assignment did not create a trust which a Court of Equity would enforce, and the bill was dismissed. — Meek v. Kettletcell, 1 Hare, 464. ASSIGNEE OF DEBT. The assignee of a debt cannot sue for it in a Court of Equity, unless the assignor refuses to allow the assignee to sue for it at law in his name, or has done, or intends to do some act which will prevent the assignee from recovering it at law in the assignor's name. — Hammond y. Messenger, 9 Sim. 327. ATTACHMENT. See Pr. Attachment — Pr. Contempt. ATTORNEY- GENERAL. See Charity. Unnecessary to require appearance and answer from formal defendants. New process against them by service of copy biU, 23 Gen. Ord. 26th August, 1841. Edwards, ed. 86. The Attorney General cannot be proceeded against by service of copy bill under the 23rd order of August, 1841. — Christopher v. Cleghom, 8 Beav. 314. In an information the Attorney General and not the relator is the party prosecuting the cause, and, therefore, the court wUl not allow counsel for the relator, to be heard in any other character than as cotmsel for the Attorney General. — Att. Gen. V. Ironmongers' Co., 1 Cr. & Ph. 208. In a suit to have the rights of the parties to the property in question declared, to which the Attorney General was a defendant as represent- ing the crown, the court refused to give the At- torney General his costs, though it gave all other parties their costs as between solicitor and client. — Burney v. Macdonald, 15 Sim. 6. 46 ATTORNEY-GENERAL.— BANK. The Attorney General not having answered the bill within a reasonable time, the court or- dered that he should put in his answer within a week after service of the order, or that the bill should be tsiken pro confesso against him. — Grooms V. Att. Gen. and others, 9 Sim. 325. Testatrix gave £6,000 stock to the governors of the chai-ity for the relief of poor widows and children of clergymen, the dividends to bo from time to time applied for the benefit of poor wi- dows and maiden daughters of clergymen of the Church of England, who should have attained the age of 30 years, in such shares and propor- tions as the governors of the said charity should in their discretion think fit. A bill, claiming the legacy, was filed against the executors by " The Governors of the Corporation of the Society for the relief of poor widows and children of Clergy- men, commonly called the corporation of the sons of the Clergy." Held, that the Attorney Gene- ral was a necessary party to this bill, as the le- gacy was not given upon trusts corresponding with the trusts upon which the corporation held their general property. — Corporation of the Sons of the Clergy v. Mose, 9 Sim. 610. In a charity information, filed without a re- lator, the Attorney General did not personally appear at the hearing, but two other counsel ap- peared in support of the information. Held, that the costs of a brief to the Attorney General ought to be allowed, in addition to those of the two counsel in the taxation of costs as between party and party. — Att. Gen. v. The Drapers' Co., i'hea.v, 305. Reference to the Att. Gen. in Charity cases. — Att. Gen. v. Pretyman, 4 Beav. 462. In an information by the Attorney General at the instance of a relator, the Attorney General ought not to appear otherwise than in support of the information. As to the position of the Att. Gen. in informations at the instance of a re- lator, and the practice in such cases. — Att. Gen, V. The Ironmongers' Co., 2 Beav. 313. AUCTION. See Vendob and Purchaser— Pb. Sal-es Judicial. Where property is advertised to be sold " with- out reserve," such advertisement is understood to exclude any interference by the vendor either direct or indirect, which can under any possible circumstances affect the right of the highest bid- der, whatever may be the amount of his bidding, to be declared the purchaser, any evasion of that engagement on the part of the vendor being a violation of his contract with the public, will dis- entitle him to the aid of a court of equity to en- force the sale. Therefore, where previously to a sale of a life interest which was advertised to be "without reserve," the vendor entered into a private agreement with another person, that the latter should bid a certain sum at the auction, and be the purchaser at that sum, unless a higher sum were bid, a bill by the vendor for specific performance against a third party who had been declared the purchaser at the auction, though for a much higher price, was dismissed. — Robinson V. Wall, 2 Phil. 372. AUDITOR. Testator devised his estates to trustees in trust, to apply the rents in paying off incumbrances, and directed them to employ A. to audit their, accounts, and to allow him a proper salary. Held, that the trustees could not arbitrarily re- move A. from his offioe, but he was entitled to hold it as long as he was willing and able, and to receive an adequate salary.— Williams v. Corbet, 8 Sim. 349. AUTHORITY TO SUE. See Pa, Authority to Sue. BANK. BANK. I. Of England 46 II. Of IllELAND 46 III. Joint Stock 46 1. Generally 46 2. Parties to Suit 48 IV. BANKEil AND CuSTOMEIl 48 I. — Of England. The Court of Chancery may, without bill filed, restrain the Bank of England irom permitting the transfer of Stock, &c., 5 Vic. o. 5, s. 4. Limited privileges given to Bank of England by 3 & 4 W. 4, c. 98. Act to regulate the issue of bank notes in En- gland, 8 & 9 Vic, c. 76, to amend, 7 & 8 Vic, e. 32. One of two trustees of a sum of stock, sold it out under a power of attorney, to which he had forged the signature of his co-trustee, and some time afterwards absconded. Held, that the Bank of England was compellable, in a court of equity. to re-invest the stock in the name of the other trustee. — Sloman v. Bank of England, 14 Sim. 475 The Bank of England ought not to be made a party to a suit for the purpo se of giving effect to a charge upon stock standing in the name of a felon convict. — Perkins v. Bradley, 1 Hare, 2 IS. II. — Or Ireland. Semble, the Bank of Ireland may issue a com- mission of bankruptcy. — In re Beak, 2 Dru. & W. 375. III. — Joint Stock. 1. Generally 46 2. Parties to Suit 48 III, 1. Generally. Acts for regulating banking co-partnerships in England, 7 Geo. 4, c 46 ; amended by 1 & 2 Vic. c. 96, 3 & 4 Vic. 0. Ill, 5 & 6 Vic. c. 85. Joint Stock. liANK. Generally. 47 Acts for regulating banking co-partnerships in Ireland, the members thereof severally rendered liable to their engagements. And the co-part- nerships enabled to sue and be sued in the name o! their public offices, 5 Geo. 4, c. 73. Repealed, and other provisions, made by 6 Geo. 4, c. 42 ; 11 Geo. 4 & 1 W. 4, c. 32 ; 1 & 2 Vic. c. 96 ; 3 & 4Vic. c. Ill; 5 & 6 Vic. c. 85. An act for regulating the mode in which they may sue and be sued in Scotland, 7 Geo. 4, c. 67- Acts for regulating legal proceedings between joint stock banking companies and their members, amending the law relative to, 1 & 2 Vic. c. 96 ; continued and extended by 2 & 3 Vic. c. 68 ; 3 & 4 Vic. c. Ill ; made perpetual by 6 & 6 Vic. c. 85. A joint stock banking company stopped pay- ment. Certain of the shareholders, who after- wards obtained the management of the affairs of the company contributed, in proportion to the number of shares held by them, to a common fund which was to be applied for the protection of the contributors in payment of the debts of the bank. And they called on all the shareholders to contribute to this fund. Some did not, and for the purpose of carrying out the object of the contributors, an arrangement was entered into between them and a creditor of the company, that the creditor should obtain a judgment against the company, to be used against such of the share- holders as the conti'ibutors should select. Ac- cordingly a creditor obtained a judgment by con- fession against the public officer, and at the in- stance of the contributors issued a scire facias against the plaintiff who had been a shareholder, biit before the contract upon which the judgment had been obtained was entered into, had by in- formal transfers assigned his shares to a trustee for the company. This transaction is fraudulent in the view of a court of equity, and the creditor was restrained proceeding at law against the plaintiif. — Taylor y. Hughes, 2 Jon. & L. 24. The 6 Geo. 4, c. 42, does not prevent or inter- fere with the bona fide retirement from the co- partnership of any member, and the company may buy out a partner notwithstanding the act. —Id. Where a transfer of shares is made by a mem- ber of the company, the latter may, as between the parties to the transfer, dispense with the ma- chinery which the legislature has rendered ne- cessary to transfers in general, and the company cannot afterwards, as between themselves and the partner with whom they contracted, impeach the transaction. — Id. Semble, 1. That a person who de facto is a partner, and who appears to be so on the books of the co-partnership, and whose name is regis- tered as such, cannot discharge himself of his Ua- 5 bility to creditors, by shewing that the transfer to him was informally executed. 2. That the registry of the name of the plaintiff after the bank had stopped payment, as a partner " concerned in the co-partnership, as the same appears on the books of the company," was not authorized by the act even at law, where he had ceased to ap- pear as a partner on the books for seven years, and his name had been withdrawn from the re- gister, and no new contract had been entered into with him, but entries merely had been made that the transfers by him were invalid. — Taylor V. Hughes, 2 Jon. & L. 24. A suit by some partners in a Joint Stock Bank- ing Company on behalf of themselves and the other shareholders, to restrain a creditor of the company from suing the shareholders for a debt alleged to have been inequitably created. The common injunction restrained the defendants from proceeding at law against the plaintiffs touching the matters in question. Held, that the common injtmction in- terms only protected the plaintiff's named on the record ; and that, therefore, a proceeding by the defendants against the other shareholders, not individually named, was no breach of the injunction. —Lund v, Blan- shard, 4 Hare, 290. That, if the plaintiffs on the record could pro- cure the other shareholders to submit to the same terms as the plaintiffs on the record must submit to, the court would, on an interlocutary applica- tion by the plaintiffs on the record, give the same relief or protection to the other shareholders as to the plaintiffs on the record. — Id.. That, in the circumstances of the case, a special application was necessary, to give the full benefit of the injunction to the shareholders not named on the record ; and, that for such purpose, it was necessary to shew, that such other shareholdLrs stood in the same situation as the plaintiffs named on the record, but not necessary to shew, that the other shareholders were on the merits of the case entitled to the injunction ; and, that it was competent to the defendants to shew any special circumstance, which would make it unjust to ex- tend the benefit of the injunction to the other shareholders. — Lund v. Blanshard, 4 Hare, 290. "Whether in a suit by a few of the shareholders of a company, on behalf of themselves and the other shareholders, it is competent to some of such other shareholders who may disapprove of the suit, to move the court that the suit so far as it is instituted on their behalf may be stayed : quccre.—Id. 4 Hare, 299. BUI by some of the shareholders of a Joint Stock Bank, on behalf of themselves and all the other shareholders, (except the defendants,) charging the directors of the bank, and others of the defendants, with fraudulent misapplication of the funds of the bank, with having borrowed from third parties (who were also defendants) monies in the name of the bank for private and improper purposes ; and with having by their public officer suffered judgment to be recovered against the bank by such third parties, for the amount of such advances, in order that the same might be recovered from the shareholders of the bank ; charging also the defendants -with making use of the proceedings under the judgment to enforce payment from the shareholders of a call of £3 per share, not warranted by the deed of association ; and praying that the debts and liabilities of the bank might be ascertained, and the assets applied in satisfying them, and an in- junction issued to restrain process by the defen- dants (the third parties) against the plaintiffs under the judgment. Held, on demurrer, that certain shareholders of the bank, who had paid the call of £3 per share, and who were, there- upon, by express engagement with the bank relieved from proceedings under the judgment, were necessary parties to the suit ; and that, inasmuch as such parties not being named as de- fendants must be regarded as plaintiffs under the general description of other shareholders, tlie suit was improperly framed on the ground of misjoinder. — Lund v. Blanshard, 4 Hare, 9. That, where the defendants, the third parties, had aided in the misapplication of the funds in the manner stated, they might be properly made defendants to a smt by a cestui que truat ; aud. ;48. Joint Stock. BANK. Parties to Suit. that a bill seeking relief both against such third patties and the directors of the bank, was not multifarious. — Id. The deed of association of a Joint Stock Com- pany, provided that the business of the company should be transacted by six directors ; four di- rectors conducted such business for a considerable time, and had various dealings with a third party as agent of the company. Held, that it was not competent to such third party to object in a suit against him, that the four directors did not suf- ficiently represent the company. — Benson v. Had- Jield, 4 Hare, 32. The plaintiffs, who claimed as trustees of a dissolved banking company, and were proved to have been partners in the company, held entitled to sustain a suit as representing the company against a defendant, who had been in the habit of transacting business with the company, and had dealt with the trustees in that character, and by his answer to the suit, made no positive sugges- tion that the plaintiffs did not sufficiently repre- sent the company. — Gordon v. Pym, 3 Hare, 223. Two of three partners against whom a fiat had issued, were members of a joint stock banking company, the first of the three being indebted to the banking company at the time of their bank- ruptcy. Held, that the banking company could prove* against the joint estate of the three. — Ex parte Law, re Hague, 1 M. D. & D. 16. A creditor of a joint stock banking company, may sue out a flat against any individual member of the company, without proceeding, in the first instance, against the public officer of the company, under the provisions of the 7 Geo. 4, c. 46. — Ex parte Wood, re Wood, 1 M. D. & D. 92. 'SVhere a party held shares in a joint stock banking company, for a period of two years, and received successively two years dividends on his shares. Held, that this was sufficient to con- stitute a trading as a banker. — Exparte Wyndham, re Byrom, 1 M. D. & T>. 146. But holding shares in a joint stock company, for a period of six days only, where no dividends or profit appeared to have been received by the party, during the time that he possessed the shares, was held, not to constitute a trading within the bankrupt law. — Ex parte Atkinson, re At/cinson, 1 M. D. & D. 300. A member of a joint stock banking company, kept an account with them as his bankers, and at the time of his bankruptcy, was indebted to them in a large balance, on such banking account, the company being also, then considerably in- debted to various other persons. Held, that the company had a right of proof against the bank- rupt, for the balance due on suchbanking account. — Ex parte Davidson, re Caldeeott, 1 M. D. & D. 648. nership. To this bill the defendant demised, for want of equity, and for want of parties. Held, first that the 33 Geo. 2, applied to compames formed under the 6 Geo. 4. Held, also that the defendant as one of the public officers, sufficiently represented the several shareholders. Held, further that the prayer for an account of the per- sonal estate, of the partnership was sufficient, the bill stating, and the demurrer admitting that the personal estate was sufficient for the payment of its &ehti.—Fawcett v. Hodges, PI. & K. 100. _ A. gave a bond to the public officer, of a joint stock banking company, (in which he subse- quently became a shareholder), to secure advan- tages made to him by the company. The bank afterwards suspended their business, and brought an action on the bond, in the name of the officer, A. then filed a hiU on behalf of himself alone, against the officer and directors of the company, praying for an account of the dealings, and the transactions of the company, down to the time when their business ceased, that his share of the capital, and the profits might be ascertained, and set off, against the money due on the bond, and that the surplus might be paid to him. Held, that the bill prayed in effect, for a dissolution of the company, and therefore that all the share- holders ought to have been parties to it. — Abra- ham V. Hanney, 13 Sim. 581. A. filed a bUl against the public officer, of a joint stock bank, alleging that he had been in- duced to purchase 500 shares in the bank, by friudulent representations, made by the directors in their reports, as to the prosperous state of the company's affairs, and prajdng for a declaration to that effect, and that the purchase might be declared void, as between him and the company, and that the latter might repay him his purchase- money. Held, that as the litigation was between one member of the partnership, as such, and the other members as such, the public officer was improperly made a party to it, as representing the company, and a demurrei by him was allowed. — Seddon v. ConneU, 10 Sim. 58. A joint stock banking company, under 7 Geo. 4, c. 46, may sue by their public officer, members of the company, jointly with strangers. — Manners V. Rowley, 10 Sim. 471. Ill, 2. Parties to Suit. A creditor of a banking company, formed under the 6 Geo. 4, c. 42, after the stoppage of payment of the company, filed a bill on behalf of himself, and all other creditors of the company, who should come in, and contribute to the expenses of the suit, against one of the public officers, as sole defendant. The biU prayed, that in pursu- ance of the 33 Geo. 2, c. 14, the demands of the plaintiff, and the other creditors might be paid, out of the personal estate of the society, and if that should prove to be insufficient, that they might be paid by the society, and it prayed for an account of the personal estate of the copart- IV. Banker and Customer. Making good contracts entered into by certaiil Bankers 1 & 2 Vie. c. 10, and 4 & 6 Vic, c. 14. M. employed R. & Co., bankers in Edinburgh, to obtain for him payment of a biU drawn on a person resident at Calcutta ; R. and Co. accepted the employment, and wrote promising to credit him with the money when received. R. and Co. ^ transmitted the biU in the usual course of busi- ness to C. & Co. of London, and by theni it was forwarded to India, where it was duly paid. R. & Co. wrote to M. announcing the fact of its payment, but never actually credited him in their books with the amount. The house in India failed. Held, that R. & Co. were the agents of M. to obtain payment of the bill, that payment having been actually made, they became ipso facto liable to him for the amount received, and that he was not called upon to sufier any loss occasioned by the conduct of their sub-agents, as between whom and himself no privity existed. — Mackersey v. Ramsays, 9 Clk. & Fin. 818. A partnership consisting of more than six per- Banker and Cuslomer. BANK. BanJcer and Customer. 40 sons, carrying on the business of bankers in or ■within sixty-live miles of London, cannot, with- out violating the Acts of Parliament respecting the Bank of England, accept, in the course of such business, a bill of exchange payable at less than six months from the time of such accept- ance. Whatever is prohibited by law to be done directly, cannot legally be effected by an indirect and circuitous contrivance. A London Joint Stock Bank, consisting of more than six partners, entered into an agreement vi'ith a bank in Canada, that G. P., manager of the London Joint Stock Bank, but not a partner therein, should accept bills drawn on him by the Canada Bank, payable at less than six months from the acceptance thereof; and that the London Joint Stock Bank would provide funds for the due payment of such bills, the money transactions arising thereupon, being, in the ac- counts between the two banks, to be treated as transactions between the said banks. Held, by the Lords, (affirming the judgment of the Master of the Rolls,) that the acceptance of such bills in execution of such agreement was unlawful, regard being had to the acts in force respecting the Bank of England. That such acceptance would not be lawful even if the London Joint Stock Bank at the time of the acceptances had in hand funds on account of the bank in Canada, equal to the amount of the bills so accepted. That the ac- ceptances of such bills would not be lawful if the London Joint Stock Bank had not, at the time of the acceptances, any funds in hand belonging to the bank in Canada ; but the bills were accepted on the credit of a contract by that bank, to remit funds to meet such acceptances before the bills became payable. That the Bank of England might maintain an action against the London Joint Stock Bank founded on such transactions. —Booth V. The Bank of England, 7 Clk. & Fin. S09. A settlement made by a banker on the marriage of his son, and purporting to provide for the issue of the marriage, is within the third section of the Bankers' Act, and the limitations in favour of such unborn children are void. — Spearing v. Delacour, 1 Dru. & Wal. 591. The remedies given by the Banking Act (7 G. 4, c. 46) are not cumulative but substitutional for the prior liabilities of partners, and, there- fore, proceedings cannot be had against a party three years after he has ceased to be a member. — Barker v. Buttress, 7 Beav. 134. Bankers, xmder the circumstances of the case, decreed to refund monies which had been drawn by a trustee irom a trust account standing in their books and placed to the credit of the trus- tee's private account with the bank, upon the balance of which lattir account the bankers were creditors. — Pannel v. Hurley, 2 Coll. C. C. 241. "Upon a loan of £28,200 Cuba Bonds by a customer to his bankers, the latter engaged to replace them "at or within the expiration of three months if he should require them to do so," and to deposit other securities for the per- formance of this engagement. After the expira- tion of the three months without any requisition on the part of the customer, the customer con- sents to an exchange of other securities for those deposited by the bankers, without any new stipu- lation as to the period of redemption, and the bankers afterwards become bankrupt. Held, under these circumstances, that the time for re- placing the Cuba Bonds became indefinite, and that the bankers were not bound to replace- them until requested to do so, and that no such request having been made by the customer before their bankruptcy, the customer had no right to prove for the amount of the bonds under the fiat ; and that the 6 Geo. 4, c. 16, s. 56, as to the proof of contingent debts did not apply. — Ex parte Eyre, 3 M. D. & D. 12 ; 1 PhU. 227. A customer deposits a box containing various securities with his bankers for safe custody, and afterwards grants a loan of a portion of such securities to one of the partners in the banking- house for his own private purposes, upon his de- positing in the box certain railway shares to secure the replacing of the securities thus lent. This partner afterwards, for his own purposes and without the knowledge of the customer, abstracts the railway shares and substitutes others of less value. Held, that as the proceeds of the railway shares were not applied to the u»e of the partnersliip, the banking fii-m were not answerable for this tortuous act of their partner for his own benefit, and, consequently, that the customer had no right of proof against the joint estate for the amount of the diflference between the value of the shares abstracted, and those that were substituted. — Id. Held, also, that the partners were not charge- able with any loss occasioned by this subtraction of the shares on the ground of negligence, and that even if they were, it would be a claim for unliquidated damages, and, therefore, not prove- able against the joint estate. — Id. Customers draw cheques on their bankers with whom their accounts are already overdrawn, and pay away the cheques, which come to the hands of other bankers. The second bankers remit to the first the cheques in a printed circular, desii-- ing the amount of them to be paid to the London correspondents of the second bankers. Notwith- standing this circular, the custom between the bankers is to pay one another's cheques, so far as circumstances permit, by remittances of notes of the bankers sending the cheques directly to those bankers, the understanding being, however, that the cheques should be paid on the day ou which they are received, or the day following, either by such remittances or by remittances ac- cording to the directions of the circular. The first bankers give the second credit in their books for the amount of the cheques, but become bankrupt three days after receiving them, and without having made any payment or remittance in respect of them, knowing at the time of re- ceiving the cheques that bankruptcy was inevit- able. The assignees obtain payment fi'om the customers of the fuU amounts of the cheques. Held, that the second bankers were entitled to payment in full of the same amounts out of the bankrupts' estate. — Ex parte. Cole, 3 M. D. & D. 189. 11. M., who carries on the business in partner- ship with J. C, J. P., and T. S., as brokers, signs one of the notes of the bank in this form, " I pro- mise to pay, &c," for J. C, J. P., R. M. and T. S. — R. M. On the firm becoming bankrupts. Held, that the holder of the note might prove against II. M.'s separate estate. — Ex parte, Christie, 3 M. D. & D. 736. A bill of exchange remitted by a customer to his bankers, and not due, but remaining in specie at the time of their bankruptcy, continues the property of the customer, and the same is the law as to a bank post bill which the customer sends to the bankers with a letter, desiring them E 50 BANK.— BILL OP EXCHANGE. to place it to Hs credit, and to send a receipt. — Exparte, Atkins, 3 M. D. & D. 103. The relation between a banker and customer, ■who pays money into the bank, is the ordinary relation of debtor and creditor, with a superadded obligation, arising out of the custom of bankers to honour the customer's drafts, and that relation is not altered by an agreement by the banker to allow the interest on the balances in the bank. The relation of banker and customer does not partake of a fiduciary character, nor bear analogy to the relation between principal and factor, or agent, who is quasi trustee for the principal in respect of the particular matter for which he is appointed factor or agent. Held, therefore, that an account between bankers and their customer, not long nor complicated, but consisting of a few items and interest, is not a fit subject for a bill in eqaiVj.— Foley v. Hill, 2 Clk. & Fin. N. S. 28. May prove against one of its members. — Re Caldecott, 2 M. D. & D. 368. The bankrupt was a member of a joint stock banking company, and kept an account with the bank as a customer at the time of his bankruptcy, he was indebted to the bank to a considerable balance beyond the value of his shares in the bank, and some other property on which the company had a lien. Held, that this balance constituted a proveable debt. — Exparte, WalUs, 2M. D. &D. 201. The petitioner deposited India bUls with her tanlcers, specially indorsed by her to receive the amount when due, the balance of the petitioner's banking account (exclusive of the amount of the bills) being then in her favour, and continuing so up to the bankruptcy of the bankers. The bankers charged discount on the bUls in their account with the petitioner, who might have drawn on them for the amount, it being the cus- tom of the bankers to consider ordinary bills so deposited as cash. The bankers paid the bills away to a creditor, with whom the assignees af- terwards settled an account, charging him with the amount of the bUls, and receiving from him a balance due to the estate. Held, that the pe- titioner was entitled to be reimbursed the whole amount of the bills from the assignees. Ex parte, Bondre Forster, 1 M. D. & D. 10. BARON AND PEME. See Husband and Wife. BEDFORD LETEL ACT. By the Bedford Level Act, it was enacted that all conveyances by indenture of the 95,000 acres allotted to the then Earl of Bedford, or any part thereof, entered with the registrar of the level, should be of equal force to convey the freehold and inheritance thereof, as if the same were for valuable considerations inrolled within six months in one of the king's courts of record at Westminster, and that no lease, grant, or con- veyance, of a charge out of, or upon, the 95,000 acres, or any part thereof, except leases for seven years or under in possession, should be of force, but from the time it should be entered with the registrar. Conveyances were after- wards made of part of the 96,000 acres, but were not registered. Held, that those conveyances ■were, nevertheless, valid for all purposes except for entitling the grantees to the privileges con- ferred by the act on the owners of lands within the level, and for the other purposes of the act, — Willia V. Brown, 10 Sim. 127. BARRISTER AND CLIENT. See Pa. Counsel. The employment of counsel as confidential le- gal adviser, disables him from purchasing for his own benefit charges on his client's estates vrith- out his permission, and although the confidential employment ceases, the disability continues so long as the reasons on which it is found continue to operate. C, a barrister, who had been for several years confidential and advising counsel to P., and had by reason of that relation acquired an intimate knowledge of his property and liabi- lities, and was particularly consulted as to a com- promise of securities given by P. for a debt which C. considered not to be recoverable to the full amount, purchased these securities for less than their nominal amount, without notice to P., after ceasing to be his counsel. Held, that C.'s pur- chase, whUe the compromise proposed by P. was feasible, was in trust for P., and that C. was en- titled only to the sum he had paid vrith interest, according to the course of the court. — Carter v. Palmer, 8 Clk. & Pin. 657. A. B., a barrister, who had filled the situation of confidential and advising coimsel to C. D. for several years, and had thereby acquired an inti- mate knowledge of his estates and UabQities. Held, to be incapable of purchasing even after the relationship had ceased for some time, out- standing securities aifecting his client's estates, especially as the validity of those very securities had been impeached, and such impeachment was knovni to A. B., he having been repeatedly con- sulted by C. D. in reference to a compromise, respecting those securities, with the then holders of them. — Carter v. Palmer, 1 Dru. & Wal. 722. BENEFICE. See Ecclesiastical Law. BIDDINGS. See Pr. Master's Office — ^Pn. Biddinos. BILL IN EQUITY. Pl. Bill — ^Pb. Bill. BILL OF COSTS. Pb. Costs. BILL OF EXCEPTIONS. See Pk. Bill op Excepiiohs. BILL OF EXCHANGE. When bill of exchange not payable at the drawer's residence, 2 & 3 W. 4, o. 98. When dishonoured, 6 & 7 W. 4, c. 58. Bills of exchange and promissory notes, when BILL OF EXCHANGE. 51 exempted from usury laws, 7 W. 4, and 1 Vic, c. 81. Exempt &otn usury laws until Jan. 1, 1851, 8 & 9 Vic. c. 102. The register of protests for non-acceptance and non-payment of bills of exchange and promissory notes established by the Scotch acts of 16S1 and 1696, and the 12 Geo. 3, c. 72, and 23 Geo. 3, o. .18, is a public document, to which every body has a right of access, and the publication of which in a printed paper does not constitute a libellous publication. — Fleming v. Newton, 1 Clk. & Fin. N. S. 363. Where bills were di'awn and accepted, and be- came due in France, but the acceptor, a Scotch- man, before such bills became due, returned to , Scotland, and there continued till his death. Held, by the lords (reversing the decision of the court of session), that more than six years having elapsed between the time of the bills becoming due, and the action being brougfht, the Scotch law of prescription applied, and that its effect was not prevented by the fact that the payee had taken legal proceedings in France during the ab- sence of the debtor, and had obtained judgment against him. — Don v. Lippman, 5 Clk. & Fin. 1. A. accepted a biU of exchange for £150, drawn by and for the accommodation of B. B. indorsed the bUl, and then, in order to facilitate its being discounted, procured C. to indorse it. B. subse- quently, and before it became due, delivered the bill to a person who advanced him £100 upon it. When the bill became due the holder demanded payment of the £100 from C, and C. some weeks afterwards took up the bill of exchange for £160, and the holder then paid him a further sum of £50 in addition to the £100 he had formerly paid to B. C. brought his action against A., upon the bill, and B. filed his bill to restrain the action, and have the bUl delivered up. The common injunction was obtained, but was dissolved on the merits, and C. recovered judgment in the action. At the hearing the bill was dismissed for want of equity with costs. — Hammon v. Sedg- wick, 6 Hare, 256. The acceptor of a BiU of Exchange, who had, by the hands of the drawer, as his agent, paid the amo\mt of the bill, after it became due, to an in- dorsee for value, without procuring it to be de- livered up, filed his bill against such indorsee for value, and a subsequent indorsee, charging that the indorsee to whom the payment had been made had afterwards indorsed the bill to the other defendant without consideration, in order to re- cover the money from the plaintiff a second time, and praying that an action commenced against him for the amount might be restrained, and the bill delivered up to be cancelled. Demurrer, for want of the drawer as a party to the suit, over- ruled. — Earle v. Holt, 5 Hare, 180. A merchant abroad sent drafts, from time to time, to his London correspondent for acceptance, under an authority for that purpose, and upon an understanding that the liabiKties of the latter, in respect of all such acceptances, should be cov- ered by means of biUs payable in London, to be remitted to him from time to time. Under such an arrangement, the presumption is, untU an agreement to the contrary is shewn, that the Lon- don correspondent was not intended or entitled to treat the bUls, so remitted, as cash, or to discount them before maturity, and, therefore, it was held, that two of such bills, which were existing in specie in his hands at the time of his bankruptcy, and were not then due, did not pass to his assig- nees, but were the property of the party who re- mitted them. — Lambert v. Woollett, 2 Myl. & Cr. 389. _ , A. B., very soon after coming of age, was in- duced by C. D., his superior officei', to accept bills for £3,000, at two months, for his accommo- dation, which were handed by C. D. to E. F., a money lender, on payment of a debt of £2,590. E. F., who was privy to the transaction, after- wards agreed to arrange the renewal of these and another bill for £500 for twelve months, in con- sideration of A. B.'s promissory note for £2,500, payable in three years, which sum E. F. charged for his expenses and trouble. E. F. was, under the circumstances, restrained till the hearing from suing for the £2,500 — Lloyd v. Clarke, 6 Beav. 309. A customer pays in bills of exchange to his bankers, and he becomes bankrupt. The bankers prove for the whole balance due from him, and afterwards some of the bills of exchange paid in, are paid in full by other parties liable, some be- fore and some after the dividend is declared. Held, that the proof ought to be reduced by the amount of the paid bills, and the dividends re- funded. — Ex parte Hornby, re Pritcliard, 1 De Gex. 69. A. & Co. being indebted to D. & Co. in the sum of £4,000, deposited with them a bill of exchange to that amount, indorsed by L., for the accommo- dation of A. & Co. Afterwards A. & Co. having agreed to indemnify L., and having prevailed upon several persons to accept bills for their ac- commodation, deposited those bills with D. & Co., "as collateral security for the payment" of the former bill. A & Co. subsequently obtained further advances from D. & Co., on the security of the bills so deposited. Upon the bankruptcy of A. & Co., D. & Co. sued the acceptor of one of the deposited bills, who thereon gave a cognovit, which, together with the bill was handed over by D. & Co. to L., who paid full value for it. Held, that by the above-mentioned arrangement the deposited bills were to be the primary security in the hands of D. & Co., for payment of the £4,000, but that L., being answerable for the residue which might remain unsatisfied by means of these bUls, could not be compelled in equity to deliver up the bill and cognovit, of which he had obtauied possession. — Jones v. Lane, 3 Y. & C. 281. If a party has wrongfully obtained possession of a bill of exchange, although under circumstan- ces which would give a complete defence at law, a court of equity will order the delivery up of the instrument, if from lapse of time or death of wit- nesses such defence is likely to fail, but the court will refuse such relief in all cases where the pos- session of the party is not shewn to be inequit- able. Therefore where A. had the possession of a bUl of exchange, accepted by B., which for reasons dehors the instrument, he could not en- force against B. in an action. Held, nevertheless, that B. had no equity to have the bUl delivered up to be cancelled, unless he could shew that A. had the wrongful possession of it. — Id. The cases of fraud, where a bill has been ordered to be given up, are confined to those where the possession but for the fraud would be that of the plaintiff in equity. — Id. Where an overdue bill or note is indorsed after action is brought, the indorsee, vrith the notice of the action, has no right of action upon it. — Id. BUl by indorsee against the acceptor of a bill, aUeged to have been mislaid, lost, or accidentally destroyed, for payment or an indemnity, dis- 52 BILL OF EXCHANGE. missed with costs, the loss, &c., not being suffi- ciuntly proved. — Cockell v. JBridgeman, 4 Beav. 499. A. and B., who are partners, and C, as their surety, give a joint and several promissory note to 1)., by which they "jointly and severally pro- mise to pay " to D. the amount of a partnership debt, due from A. and B. The note is signed by A. and B., not as individuals, but in their partnership firm, and by C, their surety. Held, that this note could not be treated as the several note of each one of the three, but as the several note of only the surety, and the joint note of A. and B., and that on the bankruptcy of A., who had survived his partner B., the holder of the note could only rank as a creditor against the joint estate.— Ex parte, Wilson, 3 M., B. & D. 57- A. survives B., his partner, and continues the business in the same firm of " A. and B.," at the time of B.'s death a large balance was owing by them to their bankers, to whom A., some time after B.'s death, indorses several bills in the part- nership iirm of A. and B. Held, that it could not be inferred from this circumstance alone, that the bills were so indorsed upon a partnership transaction of A. and B., and that the bankers might prove the amount of the bills agamst the separate amount of A. — Id. B. S. & Co., of Calcutta, having consigned cer- tain goods to G. B., in England, on which they had a lien for the price, write him word that they intend to draw in favour of G. K. & Co., for the balance of such shipments, and that they inclose bills of lading and policies of insurance for the goods in question, and they also draw a bill for the amount on G. B., in favour of G. K. and Co., which they direct G. B. " to place to account of shipments per Gardner." Before the goods reach England, G. B. becomes bankrupt, and the goods come to the possession of his assignees. Held, that the above expressions, in the bill and the letter, amounted to a specific appropriation of the goods for the payment of the biU, and that the assignees were bound to account to G. K. and Co. for the proceeds. — Ex parte Gledstanes, 3 M., D. &D. 109. A person deposits a bill of exchange for £12,000, payable to his order, and also a warrant of attor- ney, executed by the acceptor of the bill, and ex- pressed to be made to secure (among other things) the payment of the bUl. The purpose of the deposit is, and is by the accompanying me- morandum expressed to be, to secure the pay- ment of another bill for £3,000 accepted by the depositor. The deposited bill is not indorsed. On the bill for £3,000 becoming due, it is renew- ed, the deposited documents remaining in the possession of the holder of this bill, and a new memorandum of deposit being signed, which states the deposit to have been made on the day of the date of the new bill. This bill is renewed in the same way, and the transaction is repeated on several successive occasions, each transaction taking place through the agency of a person who is the solicitor of the acceptor of the deposited bill for £12,000, and who, as such solicitor, attested by the execution of the warrant of attorney, but no further notice of any of the transactions is given. Held, on the depositor becoming bank- rupt, that the deposit must be considered to have been made at the time of the first transaction, and not to have been made afresh at every succeeding one. — That the interposition of the solicitor of the party who executed the deposited warrant of attorney, was not notice to that party, so as to take the security out of the reputed ownership of the depositor. That the circumstances of the warrant of attorney, being expressed or executed, for the purpose of securing the payment, of a sum primarily secured by a negociable instrument, did not supersede the necessity of notice, as to the warrant of attorney. That the deposit of the bill of exchange, though not indorsed was good with- out notice, and that depositee was entitled ts have it indorsed, and to the common equitable mortgagee's order. — Ex parte Price v. Gibbs, 3 M. D. & D. 586. A bill of exchange remitted by a customer to his bankers, and not due, but remaining in specie at the time of their bankruptcy, continues the property of the customer, and the same is the law, as to a bank post bill, which the customer sends to the bankers, with a letter desiring them to place it to his credit, and to send him a receipt. — Ex parte Atkins, 3 M. D. & D. 103. A. being a bona-Jide holder of two bills accepted by the bankrupt, for the payment of which he also held a security, transfers the security to B., who proves for the amount under the fiat. Held, that such proof did not prevent the right of A. to prove also on the bills, though it might be a question for future consideration, whether he would be entitled to receive dividends on such proof. — Ex parte, re Barham, 1 M. D. & D. 179. A. owed B. £227, and to secure the amount, deposited with him bills to the amount of £1518, drawn by A. and accepted by C. A. and C. both became bankrupt. Held, that B. might prove the full amount of the bills under the fiat eigainst C, but not to receive dividends beyond the sum of £227. — Ex parte Philips, re Barker, 1 M. D. & D. 232. A. and B., as joint executors, carry on their testator's trade in co-partnership for the benefit of his family, and it is arranged between them that A. should alone draw and accept bills, and manage the cash transactions. A. having refiised to accept any more bills drawn by H. and D., B., unknown to A., authorizes her son to accept them, and A. and B. afterwards become bank- rupt. Held, that the holders of these bills could not prove them against the joint trade. — Ex parte Holdsworth, re Robinson, 1 M. D. & D. 475. A bill of exchange was given by a bankrupt to a creditor in consideration of an advance of money made more than six years before the bill was given. Five years after the proof was made and dividends had been received upon it, the commissioners ordered the proof to be expunged, on the ground that the bill was not such an ac- knowledgment in writing of the debt as took the case out of the statute of limitations. Held, that the bill was sufficient for that purpose, and, con- sequently, that the proof must be restored. — Ex parte Wilson, re Bentley, 1 M. D. & D. 686. A creditor to whom a bankrupt has made an assignment to secure a debt with interest, cannot, without giving up the security, prove upon a promissory note, part of the consideration for which consists of eirrears of interest upon the secured debt. — Ex parte Clark, re Clark, 1 M. D. & D. 622. BILL OF LADING. See Ship. Joint and Several. BOND. When Estate, Sf-c. 53 BILL OF SALE. See Ship. BOND. See Principal and Surety — Partneeship. I. Void at Law when enpoeoed in Equity 53 II. Joint and Several 53 III. Concealment 53 IV. Void 63 V. Interest on 53 VI. When Estate discharged prom .... 53 VIL Lost 64 VIII. Rights and Liabilities op Sureties . . 5 1 IX. Generally 65 I. — Void at Law when enforced in Equity. II. — JoixT AND Several. A bond, void in law, may be enforced as an agreement in equity, subject to the effect of the equitable circumstances under which it was made. — Squire v. Whitton, 1 Clk. & Fin. N. S. 333. An instrument purporting to be a bond ex- ecuted by the obligor with blanks for the name of the obligee, and, therefore, void in law, is im- perative in equity as an agreement, there being no second contracting party. — Id. A party joining sis surety in a bond ought to be informed of the nature of the obligation, name of the obligee, and the relation in which he stands to the principal obligee. — Id. M. induced W. to join him as surety in a bond for repayment of a loan, saying he only wanted time to realise securities, and he would hold her harmless. M. and S. being trustees of a fund, sold it with consent of B. the cestui que trust, and thereby raised the loan for M., who informed W. that B. was the lender, but did not inform her how the loan was raised. Held, that B. not being in fact the lender, his personal representatives had no privity of contract with, or equities against, W., and that in consequence of the con- cealment from her of the real natui-e of the trans- action she was in equity altogether released from the bond. — Id. C. and F. entered into a joint and several bond, of which the condition was, that if they, or either of them, their or either of their heirs, &c., duly paid an annuity to B. for his life, in manner fol- lowing, viz., one moiety thereof to E. during her life, and the other moiety thereof by F., his ex- ecutors or administrators, during the life of E., and after the death of E. the whole by F., his heirs, executors, or administrators, during the life of B., then the bond should be void. Held, that the liability under the bond was joint and several, and that F. having failed after the death of E. in paying the annuity, the estate of E. was liable on his default. — Church v. Kinq, 2 Mvl. & Cr. 220. A. and B. were obligors in a joint bond. A., who was alleged to be the principal debtor, died, j Held, that his assets were not in equity liable up(;n the bond, but that the liability sui-vived to B. — Richardson v. Horton, 6 Beav. 185, III, — Concealment. In contemplation of a marriage, between a lady, who was an orphan and a protestant, and a gentleman who was a roman catholic, a settle- ment was executed, to which the lady's uncle was a party, and the subjects of which were stock, belonging to the lady, and two sums of money, one secured by the uncle's, and the other by the gentleman's bond, and both of them payable to the trustees of the settlement, twelve months after the date of the bonds. The settlement, after de- claring trusts in favour of the lady and gentleman and their children, jirovided that until the mar- riage should be duly had, and solemnized, accord- ing to the forms of the Church of England, or in cas2 it should not be so solemnized within twelve months, next after the date of the settlement, the trustees should stand possessed of all the trust monies, securities, and premises, and the securities for the same, in trust for the lady, her executors &c., and should pay, assign, and transfer the same accordingly. The marriage never took place. After the uncle's death, his bond was found amongst his papers, with the words " Cancelled, the marriage never having taken place," written across the face of it. The court, though it did not consider the bond to be invalidated ; — held, that according to the true construction of the proviso, the lady was not entitled as the cestui que trust of the bond. — Mitford v. Reynolds, 16 Sim. 130. Bond for a sum of money, ordered to be de- livered up to be cancelled. The Lord Chancellor being of opinion upon the evidence, first, that the bond was not intended to operate as a security for money at all events, but was given for a col- lateral purpose, which had been fully satisfied, and secondly, if that were doubtful, that the obligee's subsequent conduct, and mode of dealing with the bond, during the whole of his life, amounted in equity to a release of the debt.— Flower v. Marten, 2 Myl. & Cr. 459. IV.— Void. A partnership composed of three persons. A., B. and C, gave a joint, and several bond to a bank, to cover advances, to be made to them by the bank, on a cash credit. A. died, B. the son and heir of A., within one year after his father's death, gave to the bank a heritable bond, over his father's estates, for securing payment of ad- vances, to be made by the bank. Held, that this was a bond for his own, and not for his father's debts, and was consequently void, under the Scotch act of 1661, as a bond granted by the heir, within one year of the ancestor's death. — Royal Bank of Scotland y. Christie, 8 Clk. & Fin. 214. V. — Interest on Wliere the amount due on foot of a bond for principal and interest, has once reached the penalty, interest is not again payable, although a partial pavment be subsequently made. — Oiegg V. Glover,'Y\. & K. 614. VI. — When Estate Discharged from. E. and S. partners in trade, executed in the year 1811, four joint and several bonds to O., to secure 54 Rights and Liabilities, Sfc. BOND. Rights and Liabilities, S(C. re-payment, with interest of £10,000 advanced to tlieni by his acceptance, and payment of four bills •of exchange, amounting together to that sum. Tiyo of the bonds were made payable in 1817, and two in 1818. S. died early in 1815, and his ex- ecutors agreed with R. and with K., who was then in partnership with E,., in place of S., that R. and K., in consideration of the outstanding debts and effects of the former partnership, should pay certain sums to the executors, and should also indemnify S's estate against certain scheduled debts including these bonds. No notice of that agreement was given to O. He continued to re- ceive interest on the bonds from the new firm, as well after as before they became due, and the account which they furnished to him, contained an account of the dividends due to him, on £17,000 stock, which he lent to the new firm. From O.'s correspondence with that firm in 1820, it appeared that he had in 1817 given them three years' further time for payment of the bonds, and that in 1 820, he gave twelve month s' further time. These indulgences were granted without consent of S.'s executors. In 1823, O. took from R. and K., a collateral security for payment of the debt, expressly reserving his right against S.'s estate, in re.spect of the bonds, but concealing the arrange- mentfromS.'sexecutors. In 1829 O.'s executors, to whom he had assigned the bonds before his death, applied for payment of them, to S.'s ex- ecutors, who thereupon filed their bill, praying that it might be declared, that their testator's estate was discharged from the bonds. Held, that the indulgence granted by O., for payment of the bonds in 1817, without consent of S.'s ex- ecutors, had the effect of discharging his estate. — Oakley v. Pasheller, i Clk. & Ffn. 207. VII.— Lost. A bill was filed for relief, in respect of a lost bond, which was alleged to have been altered alter its execution. Held, that the doctrine laid down in Simpson v. Ix)rd Howden did not apply, for the bond being lost, the objection would not at law appear on the face of it. — Williams v. Flight, 5 Beav. 41. BUI by the obligee in a bond, who had delivered it up in a mistake, (as he alleged) to the defen- dant, the obligor, to recover the amount due on it. The answer admitted the delivery of the bond, and that the defendant had destroyed it, but traversed the allegation as to mistake. Held, at the hearing, that as the answer admitted the bond to have been destroyed the court had jurisdiction ; notwithstanding there was not annexed to the bill an affidavit, that the bond was lost or not in the plaintiff's custody. — Crosse v. Bedingfield, 12 Sim. 35. VIII. — Rights and Liabilities op Sueeties. A surety is not of necessity, entitled to receive without inquiry, firom the party to whom he is about to bind himself, a full disclosure of all the circumstances of the dealings, between the prin- cipal and that party. If he requires to know any particular matter, of which the party about to receive the security is informed, he must make it the subject of a distinct inquiry. An obligation to a banker, by a third party, to be responsible for a cash credit, to bo given to one of the banker's customers, is not avoided by the fact, that im- mediately after the execution of the obligation, the cash credit is employed to pay off an old debt to the banker.— ITomtVtore v. Watson, 12 Clk. & Fin. 109. A party became surety in a bond, for the fidelity of a commission agent to his employers. After some time the employers discovered irregularities in the agent's accounts, and put the bond in suit. The surety then instituted a suit to void the bond, on the ground of concealment by the employers, of material circumstances affecting the agent's credit, prior to the date of the bond, and which if communicated to the surety, would have prevent- ed him from undertaking the obligation. On the trial of an issue, whether the surety was induced to sign the bond by undue concealment, or decep- tion on the part of the employers the presiding judge directed the jury, that the concealment to be undue, must be wilful and intentional, with a view to the advantages, the employers were thereby to gain. Held, by the lords, (reversing the judg- ment of the court of session), that the direction was wrong, in point of law, mere non-communi- cation of circumstances, affecting the situation of the parties, material for the surety to know, and within the knowledge of a person obtaining a surety bond, though not wilful or intentional, or with a view to any advantage to himself, is undue concealment, and will release the surety. — Rail- ton V. Matthews, 10 Clk. & Fin. 936. In construing an agreement in the form of a bond, in which a surety became liable for the due fulfilment of an agent's duties therein parti- cularly enumerated ; a general clause in the obli- gatory part of the bond must be interpreted strictly, and controlled by references to the prior clauses, specifying the extent of the agency. Held, accordingly, (afiirming the judgment of the court of session), that monies received by an agent on account of his employers, during the time of his agency, but not in pursuance of the particular agency, disclosed to the surety by the specified conditions in the bond, were not covered by the surety's obligations, "that during the whole time the said J. D. B., (the agent), shall continue to act as agent aforesaid, in consequence of the above-recited agreement, he shall well and truly account for, and pay to us, (the employers), all sums of money received by him on our account." —Napier v. Bruce, 8 Clk. & Fin. 471. The rule as to the liability of sureties in a bond, is the same in Scotland as in England, namely, that they are not to be discharged from theu' ob- ligations, unless the contract between them, and the obligees is varied by a positive contract, be- tween the obligees and the principal, without notice to the sureties. It is the duty of a surety to see that his principal does his duty. — Creighton V. Rankin, 7 Clk. & Fin. 325. A son being indebted to his father upon a bond for £1000, and interest, subsequently joined his father as surety in a bond for £500, and interest, given by tlie father to a third per- son, and a memorandum was then indorsed upon the bond for £1000, by which it was agreed between the father and son, that the son should not be called on to pay the within- mentioned principal sum of £1000, untU the fa- ther should have paid all principal money and interest due on the bond for £500. Held, that this indorsement did not affect the interest ac- cruing due upon the bond for £1000, and, therefore, that after the death of the father and son, the personal representatives of the father might tile a bill against the real and personal Oenerully. BOND.—BONUS. 55 representatives of the son, praying for immediate payment of the interest on the bond for £1000, and for payment of the principal, when the prin- cipal and interest on the bond for £500 should have been paid. A surety, who compounds a debt for which his principal and himself have become jointly liable, and takes an assignment of that debt to a trustee for himself, can only claim against his principal, the amount which he has actually paid. — Reed v. Norris, 2 Myl. & Cr. 361. AVhere a bond, which on the face of it appears to be a simple money bond, is given to secure a sum certain with interest, it must be construed so far as at least regards the surety, as given to secure the debt then existing, and not to cover floating balances. The conduct of the principals, creditor and debtor, vrith respect to such a bond, will not aifect the rights and liabilities of an in- nocent surety who has not authorized their deal- ing with the bond in a particular manner. The tact that a bond is payable on demand, and that Interest is payable &om the date of the bond, is a circumstance to shew that it is a simple money bond, and not a bond to secure a floating balance. — Walker and others v. Hardman and others, i Clk. & Fin. 258. IX. — Gexekallt. G. R. became a partner in a mercantile house in Ireland in the year 1801, and having no ready money to bring into the firm, and being in Lon- don, he obtained from N. & Co., Loudon, ban- kers, a credit for £10,000, by giving them his bonds, with warrants of attorney to confess judg- ments to secure the payment of the loan. Four bonds drawn on Irish stamps by the London banker's agent in Ireland, were executed there by G. E.., who resided in Ireland, and had large estates there and none elsewhere. Each of the bonds was expressed to be for the sum of £5,000, conditioned for the payment of £2,500 " sterling, good and lawful money of Great Britain, with legal interest." The last of the bonds wa? pay- able in March, 1804. The warrant of attorney to each bond was expressed to be to confess a judgment upon a bond for £5,000 " sterling, good and lawful money of Great Britain, with legal interest of like lawful money of Great Britain." The judgments were entered up in the court of King's Bench, in Dublin, in the usual form, and had the word "sterling" only. The £10,000 put to G. Il.'s credit in the London bank was op- plied in paying in London, by G. R.'s direction, bills drawn by his partners in Ireland. Payments on account were made by G. K., and his agents, to N. & Co.'s law agent in Dublin, in Irish cur- rency, and he acknowledged these payments. The assignee of the securities, several years after, filed a bill in Ireland against G. R.'s heir-at-law and executor, claiming full payment of principal and interest, and thereupon a question was raised whether the debt was to be repaid in English or Irish currency, and with English or Irish interest. Held, by the lords (reversing so far the decree of the Lord Chancellor of Ireland), that the sums se- cured by the bonds should be treated as principal money of English currency, bearing English in- terest, payable in London, with exchanges on the payments made by G. E. on foot of the bonds, at the rate of the day on which such payments were made. — Noel v. Roctifort and others, 4 Clk. & Fin. 158. A., being indebted in several suras of money, some by simple contract, others secured by bonds to which warrants of attorney were annexed, but upon which judgments had not been entered, and not being liable to any debts which affected real property by deed poll, conveyed certain Yeal and personal estates upon trust, to raise money by sale or mortgage, for the payment of all debts due by him, and which affected his said estates thereby conveyed. Held, that this trust included the said bond debts, but not any of the simple contract debts of the grantor. — Douglass v. Allen, 2 Dru. & W. 213. A parish being indebted to A., for repairs done to the church, the parishioners agreed at a vestry, that the parish officer should give a bond for the amount, that A. should give the parish twelve months' notice, when he required payment, and that the parish should be at liberty to pay the debt by instalments, and at another vestry held shortly afterwards, it was resolved that the obligors should be indemnified by the parish- ioners out of the rates, and the parish officers, for the time being were authorized and directed to pay the interest, and the principal when required out of the rates. A. who was himself a parishioner, and several other of the parishioners, signed both the agreement and the resolution, he received the interest on his debt for several years, and part of the principal, also out of the rates, and never called on the obligors to pay the interest. Held, that as the parishioners had no power to bind the parish, tiie obligors were not exempted from their liability on the bond, notwithstanding A. had signed both the agreement and the resolution. — Jaquet v. Lewis, 8 Sim. 480. I'he testator sealed and delivered a bond, con- ditioned for the payment of an annuity after his death, to a woman with whom he had cohabited. At the time he gave instructions to prepare the bond, he stated that it was not his intention to break off his connexion with the obligee, and he deposited the bond with his solicitors, with whom it remained until after the death of the obligor. On a reference to the master, he found that the consideration of the bond was past cohabitation. Held, that the bond was valid, that being proved to have been sealed and delivered, the retention of it in the hands of the obligor's solicitor, did not affect its operation, and that after the facts had been referred to the master, and the court was satisfied with his finding, payment of the sum secured by the bond, would be decreed without a trial at law. — Hall v. Palmer, 3 Hare, 632. A. and B. entered into a joint, and several bond to C. D., and E. C. delivers the bond to A., (who was her son), for safe custody, and, after for sometime receiving the interest from A., she and D., another of the obligees, dies, B., one of the obligors, also dies, when his executors and A, make an arrangement together, without the privity of E., the surviving obligee, and erase the name and seal of B. from the bond. Held, that this did not invalidate the bond, as against A., and that on his bankruptcy, the surviving obligee might prove for the amount of the principal, and interest due upon the bond. — Ex parte, Smith, 3 M. D. & D. 378. BONUS. Tenant for life of bank stock held entitled to a bonus of one per cent., directed to be made out of the interest and profits on the capital stock of the bank. — Preston v. Melville, 16 Sim. 163. BROKER.— BUILDING SOCIETY. Tor several years prior to 1846 an assurance company declared half-yearly dividends of £2 10s. per cent, on their stock, but in that year they declared a half-yearly di«srfeniiof £12 lOs.per cent. HelS, that a tenant for life of their stock was entitled to the whole amount of that dividend, — Price V. Anderson, 15 Sim. 473. BOOKS. See Partnership. Testator gave to his son all his plate, jewels, trinkets, and all his furniture and other articles of domestic use and ornament. By a codicil he gave to his wife all his provisions, wines, car- riages, horses, and all his musical instruments, and the use of all his books, and all his money in his dwelling-house and in his banker's, and land steward's hands for her own sole use and benefit. Held, that the books were given to the son ab- solutely, subject to a life interest in the wife. — Corncwall v. Comewall, 12 Sim. 303. BOTTOMRY BOND. Sec Ship. BROKER. Preventing embezzlement by, 7 and 8 Geo, 4, c, 27 ; 9 Geo, 4, c. 53 ; 7 and 8 Geo. 4, c, 29, ss, 49 — 50 ; and 9 Geo. 4, c, 55, s, 42, In case the declaration alleged that A. em- ployed B, as a broker, to sell and deliver oil on the terms contained in such contracts of sale as should be made with persons who should become purchasers thereof for reasonable commission to B., that B, accepted the employment and sold oil to C, on the terms of payment on delivery, that it thereupon became the duty of B. not to deliver the oil without payment, that B, delivered the oil to C, but did not obtain payment, whereby the plaintiff was damnified. Held, that the duty of B. arose out of the contract, that this declai-a- tion therefore set forth a good cause of action, and that after verdict, judgment could not be arrested, — Brawny. Boorman, 11 Clk. &Fin. 1, A broker having taken an assignment of several cargoes, in trust, to sell them on their arrival, and out of the proceeds to repay himself the amount of his advances, took possession of some of the cargoes and sold them under the power in the deed, while the rest were sold under an order made in a suit instituted by him to enforce his security, by which it was directed that they should be sold by him, in such manner, and at such time as he and the receiver in the cause should agree, and in the event of their differing, then as the master should direct. Held, that in the latter sales he was entitled to the usual com- mission allowed to brokers employed by the court, but that in the former he was not entitled to any commission, having sold as a trustee, — Ar- nold y. Garner, 2 Phil. 231. A party, who had been ordered to transfer large sums of stock mto court, paid the broker at the rate of Is, 3d. per cent, for identifying him on making the transfer. Held, that the payment (which amounted to £28 2s. 6d.) was proper, and ought to be allowed in taxing the parties' costs, — Davenport v, Powell, 14 Sim, 275, Brokers in the City of London being directed to purchase iron, delivered to the buyer bought notes, purporting to be notes of the contract for iron, not disclosing the name of the seller, the brokers guaranteeing the jjerformance of the con- tract, and the buyer paid the brokers their com- mission, together with a deposit in part payment of the price of iron. The buyer afterwards dis- covered that there was no principal seller of the iron, other than one of the firm of the brokers, who intended himself to perform the contract, and upon a bill filed by parties from whom the buyer of the iron had obtained money on the se- curity of the contracts, the deposits were ordered to be repaid with interest. — Wilson v. STiurt, 6 Hare, 366, K in such a case the plaintiffs had, before the bill was filed, abandoned all interest in the con- tracts for the iron, they could not afterwards sue for the recovery of the deposits, but the cancella- tion of certain letters which gave the plaintiffe an interest in the contract as against the brokers, the plaintiffs being at the time of such cancella- tion ignorant, and the brokers' knowing the truth of the case, does not in equity protect the brokers from the claim of the plaintiffs for the recovery of the deposits, — Id, If the plaintiffs had known that the brokers wei-e also sellers of the iron, or if the plaintiffs were otherwise not deceived by their representa- tions, they would not have been entitled to relief in equity, — Wilson v. Short, 6 Hare, 366. Knowledge by the buyer of the fact, that there was not any seller of the iron other than the brokers, would not affect parties advancing money to the buyer, on the faith of representations made to them by the brokers, that the contract was regular and valid ; nor deprive such parties of their right of rescinding the transaction, and re- covering payments which had been made. — Id. There is a remedy in equity, as well as at law, by a principal against his broker or agent, to re- cover a sum of money paid to the broker on his untrue representation, that he had entered into a contract for his principal, which alleged contract had in fact no existence. — Id. BUILBING SOCIETY, Act for the regulation of 6 & 7 W, 4, e. 32. The plaintiff became a member of, and pur- chased twelve shares and a half, in a building society, constituted under the statute 6 & 7 W. 4, c. 32, and the society advanced a sum of £750 in respect of such shares, upon a conveyance of certain property to the trustees of the society by way of mortgage. According to the rules of the society 10s, per month subscription, and 4s. per month redemption monies were payable on each share, until a sum of £120 per share should be realised for the non-purchasing members. On a bill against the trustees for redemption. Held, that upon the terms of the mortgage deed, and the rules of the society, the plaintiff was enti- tled to redeem only upon payment of all the future subscriptions on his shares until the disso- lution of the society, the probable duration of the society to be ascertained by calculation, and the future payments to be treated as if immedi- ately due. — Mosley v. Baker, 6 Hare, 87. 57 CANAL SHAKES.— CHARIXy CANAL SHARES. Canal shares -will not pass under a bequest of property vested in " bonds or securities." — Hud- dlestone v. Gouldsbury, 10 Beav. 647. CANONRY. See EcoLOiSiASTioAL Law. CARRIER. The protection of common carriers against loss of parcels, &c., 11 Geo. 4, & 1 W. 4, c. 68. A carrier by sea, under a bill of lading of goods, "to be delivered in like good order, &c., at the port of, &c., unto Mr. , or assigns, on paying for the said goods freight and charges as per margin, with primage and average accus- tomed," is not entitled immediately on the ar- rival of the vessel, and without liotice to the owner, to land the goods ; and if he should land them, and they should be destroyed, he will be answerable to the 0"\vncr for the loss. — Bourne v. Gatliff, 11 Clk. & Fin. 45. In a declaration against carriers, one of the counts averred the contract to be to carry goods from D. to L., and to take care of them on land- ing them at the wharf there, and to deliver them to the plaintiff ; the defendants pleaded that they did take care of the goods at the wharf, till they were destroyed by fire, without defendants' de- fault. Held, a good plea to the count. — Id. Though, generally speaking, there is a delivery to a carrier to deliver to a consignee, the latter is the proper person to bring tVie action for a loss against the carrier, yet if the consignor make a special contract with the carrier, such contract supersedes the necessity of shewing the owner- ship in the goods, and the consignor may main- tain the action, though the goods may be the goods of the consignee. The question, whether in fact goods were delivered to the carrier at the risk of the consignor or consignee, is a question for the jury. The delivery of goods to a carrier by a consignor does not necessarily vest the pro- perty in them or the consignee. — Dunlop v. Lambert, 6 Clk. & Fin. 600. CAVEAT. See Patext, CHAMPERTY. See Maintenance and Champerty. CHANCERY JURISDICTION. See JnKiSDiCTioN. I. II. III. IV. V. VI. VII. vin. IX. X. XI. XII. XIII. XIV. XV. CHARITY. See Tkust — Cokporation, Generally 57 Jurisdiction op Court 59 Scheme 60 Cy Pres 63 Valid BEauEST pob 63 Void 64 Mortmain '. 64 Leases or Property op 66 Statute op Limitations 66 Application of Revenues op 66 Trustees and Trust 68 Information and Petition 69 Parties to Charity Suits 70 Notice 70 Legacy Duty 70 I. — Generally. Act for registering and securing charitable donations, 62 Geo. 3, c. 102. Acts for better securing charitable donations and bequests by Roman Catholics, 2 & 3 Wil. 4, <;. 115. An act for the better application of charity, 7 & 8 Vic., c. 97. Act for providing a summary remedy for the abuse of charitable trusts, 52 Geo. 3, c. 101. Act for facilitating applications to courts of equity, regarding the management of estates or funds belonging to, 59 Geo. 3, c. 91. Where exhibitions are provided out of the surplus funds of a grammar school, none but boys who are objects of the charity ought to be eligible to them, observations on. — The Alt. Gen. v. The Earl of S'amford, 1 Phil. 437. Att. Gen. v. Corporation of Ludlow, 2 Phil, 685. The 59 Geo. 3, c. 12, does not extend to charity lands which are devoted to other pur- poses besides those to which poor rates and church rates aie applicable. — Att. Gen. y. Lewin, 8 Sim. 366." The 69 Geo. 3, c. 12, s. 17, does not apply to copyholds nor to freeholds, held upon any spe- cial trusts for a parish, — In re Paddington Cha- rity, 8 Sim. 629. The 69 Geo. 3, c. 12, does not extend to charity lands which are devoted to other purposes be- sides those to which the poor rates are applicable. — Att. Gen. v. Lewin, 8 Sim. 366. The decree of the Master of the Rolls, in Attor- ney General v. Fishmongers' Company, (Knese- worth's Charity,) 2 Beav. 151, affirmed by the Lord Chancellor, his lordship being of opinion that the property was devised to the company for their benefit, subject only to certain charges which, except in one particular, were declared illegal by the act 1 Ed. 6, 0. 14, and there being no evidence that in that one particular the charge had not been properly satisfied. — Att. Gen. v. Fishmongers' Company, (Kneseworth's WUl), 6 Myl. & Cr. 11. In 1704, Lady Hewley, an English protestant nonconformist, conveyed estates in England to trustees, (all of whom appeared to be resident in 58 Generulty. CHARITY. Generally. England, and some of whom at least were pro- testant nonconformists,) in trust, for such poor and godly preachers for the being of Christ's holy- gospel, and of such poor and godly widows for the time being of such preachers, as the trustees for the time being should think fit, for promoting the preaching of Christ's holy gospel in such manner and in such poor places as the trustees for the time being should think fit, for educating such young men designed for the ministry of Christ's holy gospel as the trustees for the time being should think fit, and for relieving such godly persons in distress, being fit objects of her own, and the trustee's charity, as the trustees for time being should think fit ; and she directed that the trustees for the time being should, in their dispositions and distributions of the afore- said charities, have a primary respect to such ob- jects thereof as aforesaid, as were then or should afterwards be in York, Yorkshire, or other nor- thern counties in England, not excluding those in other places and counties as the trustees for the time being, from time to time, should think St. Held, by the Vice Chancellor, that orthodox English dissenting ministers, and members of congregations, essentially, and substantially, in doctrine and discipline, of the same sort as the orthodox dissenting congregations which existed in England in 1704, and, therefore, that orthodox English dissenting ministers, and members of Baptist, Independent, or Congregational and Presbyterian congregations in England, which were not in connexion with, or under the juris- diction of, either the Kirk or the Secession church of Scotland, were alone entitled to participate in the benefits of the charity, and that such of the trustees as were members of Presbyterian con- gregations in England which were in connexion with the Kirk, or with the Secession church, ought to be removed. The last mentioned trus- tees appealed irom his honour's decree, and after the appeal had been opened, but before the argu- ment was concluded a decree was drawn up at the reijuest of the defendants, and with the ap- probation of the Attorney General, and the sanc- tion of the Lord Chancellor, in terms which ad- mitted the ministers and members of Presbyte- rian congregations in England, in connexion with the Kirk and the Secession church of Scotland, to participate in the administration and benefits of the charity. — Ttie Att. Gen. v. Wilson, 16 Sim. 210. A testator devised property, then on lease at a rent of £26, to the principal of Brasen-nose Col- lege, the bailiffof Birmingham, and the mayor of Haverfordwest, for the time being, to hold, to them, and to their successors, for ever ; the said yearly rent to be paid in manner following ; the sum of £8 13s. 4d. as an additional maintenance to the school at Birmingham, to be paid to the schoolmaster by the direction of the bailiff and his brethren ; £8 13s. 4d. to Brasen-nose College for a scholar ; and £8 IBs, 4d. to the school- master of Haverfordwest. And he directed that, at the expiration of the lease, the land should be " set forth and improved by the said principal, bailiff and mayor for the time being, or their suc- cessors, either by fine or otherwise, so that the said rent of £26 be for ever reserved, and paid as before expressed, and the fine, if so set, should be equally divided betwixt the said schools and college." Held, that the college took no bene- ficial interest in the increased rents or fines after- wards reserved, — The Att. Gen. v, Gilbert, 10 Beav. 517. In construing a charity trust deed, the court will admit proof of the meaning of the founders from evidence of their acts, their form of worship, and that of the societies of which they were members, and from contemporaneous history, and will adopt the construction rendered probable by the evidence, provided it be consistent with the words of the deeds. Acting upon evidence of this nature, the court in the present case held, that a fund set apart for the benefit of " Protestant Dissenters" was not applicable to Unitarians. — Att. Gen. v. Drummond, 1 Con. & L. 210. In the year 1 7 1 0, certain members of Trinitarian Dissenting Congregations, subscribed large sums of money for charitable purposes, and executed a trust deed for the management of the fund. This deed recited, that the objects of the trust were, first, to support the protestant dissenting interest against unreasonable prosecutions, secondly, to educate youth, designed for the ministry amongst protestant dissenters, and thirdly, to assist poor protestant dissenting congregations. Held, that the unitarian protestant dissenters were not within the trust of the deed. — The Att. Gen. v. Drummond, 1 Dru. & W. 353. Charitable bequest to the Rector, and corpora- tion of W. W. being a vicarage, payment was ordered to be made to the vicar and corporation. — Hopkinson v. Ellis, 5 Beav. 34. Where trustees have an option, to apply funds to purposes, which though liberal or benevolent, are not such as are in this court understood to be charitable, the trust cannot be executed here. Thus the court cannot execute a trust for private charity. — Nash v. Morley, 6 Beav. 177. By letters patent, E. A. was empowered to found a charity, consisting of a master, and a spe- cified number of other members, who were thereby created a corporation, with power to take certain lands. E. A. was empowered to make ordinances for the government thereof, and for the better ordering of the estates. E. A. established the charity, and conveyed the lands to the use of the master, and other members specified by the letters patent, and to no other intent and purpose what- soever. He afterwards made ordinances, whereby amongst other things he added to the number of members specified by the letters patent, and ap- propriated to them a portion of the revenues of the charity property. Held, that E. A. had not the power of creating additional members, or of declaring any trust of the property in their favour. — Att. Gen. v. Dulwioh College, 4 Beav. 255. A chartered company became entitled to a de- vise to them in the terms of their charter, contained in the will of one of their body, to property subject to rent charges, which were devoted to supersti- tious uses, principally under the will of the late Sir J. C. In 1437, Sir J. C.'s executors of their good grace, zeal and love, which they had unto the soul of Sir J. C, and to the intent that his will might be better observed, paid to the company 400 marks, in recompence of the great charge, and cost the company had borne in reparations of the land, out of which the rent charge was issuing, so that the wiU of Sic J. 0. might be observed, and kept in time coming. In 1547, the statute against superstitous uses passed, and three years after, the company purchased the rent charges of the crown, which were conveyed by letters patent ; subsequently in the 4th Jac. 1, an act of parlia- inent passed, whereby, to remove doubts and ques- tions, it was enacted that all messuages, rents, &c., as had been theretofore devised to the company, and which were mentioned in the letters patent, Jurisdiction of Court. CHARITY. Jurisdiction of Court. 59 might be thereafter held by the company, against the king, saving the, right of persons, other than the king. The company had ever since been in possession of the property, and had dealt with it as their general property, but had applied part of the rents in charity. In an information filed in 1832, insisting that the property vras devoted to charity under the devise. Held, that at this distance of time, any thing which seemed am- biguous, ought to be presumed in favour of the company, that the testator was a mere trastee for the company, that it ought to be presumed that charges, to which the crown became entitled, and which were granted to the company were equal to, if they did not exceed the whole value of the land, and that under the grant and statute, the estates themselves became the property of the company. — Att. Oen. v. The Fishmongers' Com- pany, 2 Beav. 588. Where it appeared upon an information against the Fishmongers' Company, that the company had omitted to invest a legacy, directed to be in- vested in land, fox the benefit of the charity, but had applied their own funds in aid of the charity, to a larger amount than the investment would have produced, the court held that the neglect to invest the legacy, either in land or (if that could not be advantageously accomplished) in some separate fund, was a substantial ground for complaint, and directed accordingly, such invest- ment as appeared to be most beneficial to the charity, but refused any inquiry, as to loss al- leged, but not shewn to have been sustained by the neglect to invest. And considering that the suit was not instituted for the benefit of the charity, the court directed the defendants to pay the costs, as between party and party, and refused the relators their extra costs, out of the charity fund, — Att. Gen. v. Fishmongers' Co., 1 Keen, 492. Testator by will, after disposing of one half of the income, of his personal estate, gave the fol- lowing direction, as to part of the remaining half. " The sum of £50 sterling, more or less, shall be annually distributed, in a weekly allowance of bread, amongst twelve poor old persons residing in the parish of D., with some occasional dona- tions to them and to others." By a codicil he directed that at least two sixpenny loaves should be given every week, to sixteen old persons, and that on the annual return of his birth day, each of these sixteen persons should receive a shilling loaf &c., at the mausoleum, which was to be erected to his memory. Held, that the clauses in the wUl and codicil, must be taken together, and that the effect of them was to make perpetual provision, for the weekly gift, of two sixpenny loaves, to each of sixteen poor old persons, of the parish of D., and for the annual gift of the shilling loaf &o., to each of the sixteen persons at the mausoleum, if it should be erected, or some other convenient place. — Thompsony. Thompson, 1 Coll. C. C. 392. The entrance of boys under twelve years of nge, into a free school having been discouraged. Held, on petition under the 52 G. 3, c. 101, that such a course of proceeding was prejudicial to the objects of the charity, and ought to be cor- rected. — In re the Rugby School, I Beav. 457. II. JUUISDICTION 03? CoUET. ^ Courts of equity have an original inherent juris- diction in cases of charity. — Incorporated Society v. Richards, 1 Con. & L. 58. After a decree had been made, in a suit by in- formation and bill, for the general administration of a charity, one of the objects of which was a free grammar-school, the master of the school, who was not a party to the suit, presented a petition in it, with the sanction of the Att. Gen, stating that in 1832, which was five years before the de- cree was made, the defendants, the trustees of the charity, unlawfully removed him from his office, and praying to be paid the arrears of his salary. Hold, that the petition could not be entertained, because it was presented by a person who was not a party to the suit, and involved an important question between the petitioner and the trustees, which was not raised at the hearing of the suit. Held also, that the coiirt would not have juris- diction to determine the question, if the petition had been presented under Sir Samuel Romilly's Act ; but that a new suit must be instituted.— Att.Gen v. Bristol (Corporation of J, 14 Sim. 648. Upon an information for the reformation of al- leged abuses in the management of a school estab- lished by the founder of Magdalen College in con- nexion with it. Held, that the court had not jiu'isdiction to give the rehef asked. That, though there was sufficient proof of the duty or obliga- tion, there was no evidence of a trust, as the word is understood in this court, and that the proper remedywas through the visitor. — I'heAtt. Gen. v, Magdalen College, Oxford, 10 Beav. 402. The crown, in consideration of the past services of the town, the situation and importance of the place, the injury and damage to be expected from the king's enemies, from the current of water, and from the traffic on the bridges, and the ruin likely to take place if the means of repairing were not provided, granted certain tolls to the corpora- tion of Shrewsbury, to be applied in reparation of the bridges and walls, without yielding any account or reckoning thereof. Held, that the grant was not made to the corporation tor lis own benefit, only as a reward for prior services : that it was the duty of the corporation to apply so much of the receipts as might be required for the purpose stated : that this was a gift for a public and general purpose, for the benefit of the town, in aid of a general charge or burden to which the burgesses and inhabitants of the town were liable, and that it was a gift to charitable uses under the statute of Elizabeth, and was, therefore, subject to the jurisdiction of the court. — The Att. Gen. v. The Corporation of Shrewsbury,, 6 Beav. 220. Where two classes of persons claim, adversely to each other, the right of administering the funds of a charity, the court wiU not decide the ques- tion, on a petition presented under 62 Geo. 3, c. 101. — In re West Retford Church Lands, 10 Sim. 101. The coui't has no jurisdiction to make an order on a petition, presented under 52 Geo. 3, o. 101, for transferring the funds of a dispensary to an hospital, and amalgamating the two institutions. — In re Reading Dispensary, 10 Sim. 118. Discretion of the court in limiting the en- forcement of the strict rights of charities, how re- gulated. — Att. Gen. v. Prettyman, 4 Beav. 462. This court has authority to exercise a discretion in charity cases, and where it appears that the prosecution of accounts and inquiries would not be beneficial but prejudicial to the interests of the charity, the court will refuse them. The court also discourages long and expensive litigation in charity cases for matters of small value. — The Alt. Gen. v. Shearman, 2 Beav. 104. New trustees of a charity were appointed under 60 Jurisdiction nf Court. CHARITY. ScJie the Municipal Corporation Act. The trustees afterwards presented a petition, under the 52 Geo, 3, c. 101, stating that it was doubtful ■whether the legal estate in the charity property was vested in them, and that the town council claimed certain powers adversely to the trustees, and raising several other difficult and doubtful questions relating to the charity. Held, that the court had no jurisdiclaon to decide questions of such a nature upon petition. — In re Philtii.oit' 3 Charity, % Sim. 381. Principles upon which the court proceeds in the exercise of its jurisdiction over charitable foundations and in the application of relief where the funds have for a long period been, without corrupt intention, misapplied by the trustees. — Att. Gen. v. Cuius College, 2 Keen, 250. ' The court considers not only the terms of the gift but the circumstances under which the gift was accepted and the foundation established. — Id. A college is under no obligation to accept an accession to its foundation, or any other trust, but if it does accept it, without any arrangement made for a modification at the time of acceptance, it is bound to adhere strictly to the trust. — Id, If there are questions upon the original instru- ment of foundation, and an arrangement be made at the time of acceptance, and it is evidenced, either by cotemporaneous instruments, or even by constant s-iibsequent usages, which may be con- sidered as evidence of such arrangement, the court will not disturb it, though, in its own view of the original instrument, that arrangement was In effect not expedient. — Id. Where the founders of charitable institutions have thought fit to appoint colleges to be trustees of their foundations, the court is not at liberty to interfere with the will of the founder in that respect, upon the notion that when individuals are trustees there is a greater personal responsi- bility.— /rf. Where there had been great errors and mis- applications of the charitable funds committed by the trustees, and their predecessors, for two cen- turies, but no corrupt or improper motive was imputed to them, the court refused to appoint new trustees ; and in consideration of the great accumulation of the charity property, the result of the care and economy of the trustees, and of other circumstances, the court, notwithstanding the errors which had been committed, allowed to the trustees their costs of the suit out of the funds which had been so accumulated. — Id. In a charter incorporating a charitable founda- tion, under the name of the master, and five poor of the college or hospital therein described, it was provided that the master should perform certain ecclesiastical duties, either by himself or by some sufficient minister or curate. The master of the hospital did not reside in or near the hos- pital, and a scheme had been approved, upon a reference by which the master of the hospital was to allow a salary to a curate, who was to reside in the hospital. Held, upon the constitution of the whole charter, that the master was bound to reside in the hospital for the purpose of perform- . ing the several duties of his office. Whether ecclesiastical duties enjoined under a charitable foundation are properly performed, it is not within the jurisdiction of the court to determine, this being a matter which belongs to the cognizance of the ecclesiastical authorities. — AU, Gen, v. Smithies, 1 Keen, 289. If a spiritual duty, attached to the office of a corporator of a charitable corporation be not pro- perly performed, the court will not interfere, but application should be made to the visitor or the proper spiiitual authorities.-^.4«. Gen. v. Crook, 1 Keen, 121. III. — SchemS. A testator gave the residue of his estate to an Incorporated Company in the City of London, upon trust, to apply one moiety of the income to the redemption of British Slaves in Turkey or Barbary ; one-fourth part to the support of cha- rity schools in the City and suburbs of London, where the education is according to Church of England, not giving to any one above £20 a year; and in consideration of the company's care and pains in the execution of his will, out of the re- maining fourth part to pay £10 a year to such minister of the Church of England as should ftom time to time, officiate in their hospital ; and the rest to necessitated decayed freemen of the com- pany, their widows and children, not exceeding £10 a year to any family ; and the testator posi- tively forbade his trustees to diminish the capital by giving away any part of it, or to apply the in- come to any use ol uses but those mentioned in his will. The income of a moiety of the residue, having for several years been suffered to accumu- late, iii consequence of there being no British Slaves in Turkey or Barbary an information was filed for the administration of the charity estate, including the accumulation of that moiety, and it appearing that there were no British Slaves to be redeemed, and no other object having been suggested, which, in the opinion of the court, bore any resemblance to the redemption of such slaves, it was declared that after setting apart a certain sum out of that moiety and its accumula- tions, to provide a fund for the redemption of any British subjects who might thereafter be held in slavery in Turkey or Barbary, the income of the surplus of that moiety and its accumulations ought to be applied in supporting and assisting charity schools in England and Wales, where the education was according to the Church of Eng- land, but not to an amount of more than £20 a year to any one school. The Lords affirming that decLiration, agreed that the income of the moiety could not be ap- plied to any other purpose more in conformity with the testator's intentions, and with the object of the charity that failed. A court of appeal is not disposed to disturb a decree which depends on the discretion of the judge, and not upon prin- ciple. — The Ironmong&r^s Co. v. The Att. Gen., 10 Clk. and Fin. 908. It is no criterion of the invalidity of a charity bequest that it is not capable of being adminis- tered in this court, for that is the case in every charity gift which is administered by the sign manual ; but it is a criterion where the question is whether the gift be charitable or not. A bequest of residue " to the Queen's Chan- cellor of the Exchequer for the time being, and to be by him appropriated to the benefit and ad- vantage of my beloved country Great Britain," held to be a good charity bequest. And, semble, that the selection of a particular officer of the government, as trustee, marks the mode of appli- cation sufficiently to preclude the exercise of any discretion on that subject. — Nightingale v. Goul- bmirne, 2 Ph. 594. Observations on the doctrine of limiting the participants in a fund devoted to the poor of a Schema. CHARITY. Scheme. 61 pai'sh ■ o those who are not in receipt of parochial relief. Semble, a sounder rule is to administer the charity according to the ortlinary rule, and leave to chance to what extent it may operate to the relief of the poor rate. The order of reference to approve of a scheme in such a case contained a special authority to the master to include pro- visions for educating, clothing, and apprenticing the children of the poor, advancing sums by way of loans, &c. Sketch of scheme pursuant to such order. Semiie : a decree, containing a declaration as to the proper mode of applying the income of a chamy estate -irith reference to the founder's deed, need not be reheard in order to enable the court, on the hearing of a subsequent information, to make a different prospective declaration in refer- ence to the same question. — Att. Gen. v. Bovill, 1 Phil. 762. The Att. Gen. ought to be a party to all in- quiries before the master, under tie 62 Geo. 3, c. 101, (Sir S. Eomilly's Act,) and any proceed- ings taken in his absence are irregular. — Att. Gen. v. Earl of Stamford, 1 Phil. 737. Grantor reciting that a school was intended to be erected in the neighbourhood of C. for the education of poor children, granted to the Incor- porated Society a rent charge of £30, to be applied for the maintenance and support of the said school " in such manner as in such like schools they should direct." In consequence of the want of funds the society discontinued the school at C. Held, that the general object of the grantor was cliarity, and that the rent did not cease upon the school being discontiaued, and it was referred to the master to settle a scheme. — TAe Incorporated Society v. Price, 1 Jon. & L. 498. A testator gave the residue of his estate to an incorporated company in the City of London, upon trust, to apply one moiety of the income to the redemption of British Slaves in Turkey or Barbary ; one-fourth part to the support of cha- rity schools in the City and suburbs of London, where the education was according to the Church of England, not giving to any one above £20 a year ; and in consideration of the company's care and pains in the execution of his will, out of the remaining fourth part to pay £10 a year to such minister of the Church of England as should &om time to time officiate in their hospital ; and the rest to necessitated decayed fteemen of the com- pany, their widows and children not exceeding £ 1 a year to any family. And the testator positively forbade his trustees to diminish the capital by giv- ing away any part of it, or to apply the income to any use or uses but those mentioned in his will. The income of a moiety of the residue having for several years, been suffered to accumulate in consequence of there being no British captives in Tuikey or Barbary, an information was filed for the administration of the charity estate, including the accumulations of that moiety, and it appear- ing that there were then no British Slaves to be redeemed, and no other object having been sug- gested, which in the opinion of the court bore any resemblance to the redemption of such slaves, it was declared that after setting apart a certain sum out of that moiety and its accumulations, to provide a fund for the redemption of any British subjects who might thereafter be held in slavery in Turkey or Barbary, the income of the surplus of that moiety and its accumulations ought to be applied in supporting and assisting charity schools in England and Wales, where the education was according to the Church of England, but not to ' an amount of more than £20 per annum to any one school ; and it was referred back to the master to settle and approve a scheme for the purpose. — Att. Gen. v. Ironmongers' Company, 1 Cr. & Ph. 208. It was referred to the master to approve of a scheme for the application of the revenues of a charity, part of which was applicable to eccle- siastical purposes of the parish of W. M. By an Act of Parliament, passed in. 1840, certain powers &c. were given, to the Ecclesiastical Com- missioners, and to the Queen in Council ; and it was enacted that so much of this charityproperty " as should upon due enquiry be found legally applicable thereto, should, by the like authority, be applied for the purpose of making a better provision for the cure of souls in the parish of W. M." The Ecclesiastical Commissioners ap- plied for liberty to attend the master on the scheme, but the court held that the act did not invest the commissioners with jurisdiction to determine what was legally applicable, which rested with the court, and that the words " like authority" did not refer to the commissioners; that if this court ascertained what portion, accord- ing to the endowment, ought to be applied for spiritual purposes even in a particular manner, the act did not authorise the Coramifsioners or the Queen in Council to prepai-e or ratify a dif- ferent scheme. That the commissioners had not vested in them any such tnist as could be per- formed or recognized by this court ; that they had no estate or interest in the matters in question, and no right to be treated as independent parties in the information, or to appear as such, and, therefore, that they could not sustain such a petition. — The Att, Gen, v. Wimborne School, 10 B',av. 209. A scheme relating to a charity, which had not been submitted to the master but had been sanc- tioned by the Att. Gen., directed to be carried into effect. Monies belonging to a free-school, founded by Queen Elizabeth, ordered to be in- vested in land for the purpose of erecting addi- tional buildings in furtherance of the objects of the charity. — Alt, Gen, v. Mansfield (Earl of), 14 Sim. 601. Testator devised a house to trustees in trust for, and appointed same to the use of a female charity school. The premises became in lapse ot time ruinous, and not suited for the purpose of a female school, but were valuable for commercial purposes. There was no fund for repairing the house. Upon a petition presented by the trus- tees under the 52 Geo. 3, c. 101, the court refused to refer it to the master to inquire whether it would be for the benefit of the charity to sell the house, but granted a reference whether it would be for its benefit to let the house and apply the rent in procuring a suitable place for carrying on the school. — In re The Suir Island Female Cha- rity School, 3 Jon. & L. 174. A decree having directed the settlement of a scheme for the regulation of the hospital of King James in Colchester, and for the future applica- tion of its revenues, the court in afterwards con- sidering the scheme, came to the conclusion that upon the true construction of the cheirter of foun- dation, and of the laws and statutes of the hos- pital, it was intended and was essential to the proper performance of his official duties, that the master should have a proper residence within the hospital or on the lands belonging thereto, and a reference was accordingly directed for the pur- pose of ascertaining the best mode of providing 62 Scheme. CHARITY. Scheme. such residence, but the court declined to make any specific declaration that it waa the duty of the master to reside, that being a matter falling ■within the j urisdiction of the visitor, — Att, Gen, V. Smythies, 2 Myl, & Cr. 135. Testator gave to T. R. £15,000, to be by him applied for the use of Roman Catholic Priests in and near London, at his absolute discretion. T, R, died in the testator's lifetime. Held, that the legacy was not void for uncertainty, and did not lapse by T. R.'s death in the testator's lifetime, but was good sis a charitable legacy, and that it must be applied for the benefit of persons filling the character of Roman Catholic Priests in and near London at the testator's death, and after- wards according to a scheme to be approved of by the master. — The Att. Gen. v. Gladstone, 13 Sim. 7. A direction as to charitable trusts, upon which real property devised by a will is to be applied, contained in a codicil referred to in the will but not attested, is not binding on the master when settling a scheme, but if proper should be adopted by him. — Att. Gen. v. Madden, 2 Con. & L. 619. Bequest of stock to the " Society for Bettering the Condition of the Poor," upon trust, to apply the income in the payment of the house-rent of seven or more country labourers in the princi- pality of Wales, selected in a certain manner ; and bequest of other stock to the " Society for the Encouragement of Female Servants," upon trust, to distribute the income annually in gra- tuities to servants, in the same principality, selected in a certain manner. The two societies renounced the respective trusts, and disclaimed the legacies. Held, that the discretion of the trustees was not in these cases of the essence of the trust, that the trust being originally created for certain definite objects, and not a gift to cha- rity, generally or indefinitely, it was not a case in which the disposition of the fund required the authority of the sign manual, and that the court would carry the trust into effect by means of a scheme. — Reem v. Att. Gen., 3 Hare, 191. A testatrix by her vrill bequeathed unto W. Y. and A. O., such sum of stock as she might be in possession of at her decease, to be by them ap- plied to charitable purposes according to her in- structions deposited with A. O. It appeared in the cause, that the instructions to A. O. were verbal, and that the application of the fund was left to his ovm discretion. Held, that there was a good charitable bequest, and a reference was directed to the master to settle a scheme for the distribution of the fund. The absence of express provisions cannot prevent the execution of a cha- ritable trust, although the fund may not be ap- propriated to the precise charity which the donor intended. — The Commissioners of Charitable Donations and Bequests v. Sullivan, 1 Dru. & W. 501. Testator, who had been born in Scotland, and educated at Glasgow College, by his wUl, dated in 1677, and made while he was resident in Eng- land, gave the residue of his estate to trustees for the maintenance and education at the TTniversity of Oxford, of scholars born and educated in Scot- land, who should have spent a certain time as students at Glasgow College ; and he declared it to be his wiU that every such scholar should, upon his admission at Oxford, execute a bond conditioned for payment of £500 to the college, if he should not enter into holy orders, and if he should accept any spiritual promotion, benefice, or other preferment in England or Wales ; it being the testator's wiU that every such scholar should return into Scotland, there to be preferred or ad- vanced as his capacity should deserve, but in no case to come back into England, nor to go into any other place, but only into Scotland for his preferment. The testator died in 1676. Glasgow College was Presbyterian while the testator was a student there, but Episcopalian at the date of this will and of his death. In 1693, a decree was made by Lord Somers in relation to this charity, whereby it was declared that Ealliol College should receive the testator's exhibitioners accord- ing to the condition of his will, and directions were given as to the number of students, and their stipends, &o. In 1759, this decree was adopted by Lord Keeper Henley, with certain variations as to increasing the number of exhibitioners, and the stipends of each; underthese decrees, students had been admitted for many years at Balliol Col- lege from Glasgow College, without regard to their destination for holy orders. Upon an in- formation, filed in 1845, at the relation of certain members of the Episcopal Church in Scotland, praying a scheme for the regulation of the charity, the court directed a reference to the master to in- quire whether, consistently with the law of Scot- land, the scheme, according to which the charity was administered, could be modified so as to make it more eifectually conducive to the supply of the present Episcopal Church of Scotland, with fit and competent clergymen, who being born in Scotland and educated at Glasgow and Oxford, should exercise the clerical functions in Scotland. The court also declared that in ad- ministering thecharity, in the meantime, Glasgow College ought to have regard, so far as conveni- ently might be in the present state of the Epis- copal Church in Scotl^d, to the circumstances that the testator ought to be considered as having been when he made his will a member of the Established Church of England, or the Estabhshed Church of Scotland, and, therefore, an Episcopa- lian Protestant, and having by the expression " holy orders," meant, holy orders Episcopal or- dination. — Att, Gen, v. Glasgow College, 2 Coll. C. C. 665. Bequest of residue to a company to apply the interest of a moiety " unto the redemption of British slaves in Turkey or Barbary," one fourth to charity schools in London and its suburbs, and in considiration of the care and pains of the company, the remaining one fourth towards ne- cessitous decayed freemen of the company. There were no such British slaves to redeem, and a reference was made to the master to approve of a scheme for the application of the fund ibMS un- applied, having regard to all the charitable be- quests in the wUl. Held, that the application of the fund to the education of British emancipated apprenticed negroes was not a cy pres application ; secondly, that the gift to the freemen of the com- pany was a chai'itable bequest; and, thirdly, there being no direct objects to which the income could be applied regard being had to the bequest touching British captives, that the application of the fund to the second and third purposes was as near as could be to the intention of the testator, having regard to all the charitable bequests in the will. — Att, Gen, v. Ironmongers' Co., 2 Beav. 313. The court directed that, in settling a scheme for a grammar school, liberty should be given to the master to approve of a plan for adding in- struction in writing and arithmetic to instruction in grammar and other learning fit to be taught in Valid bequest for. CHARITY. Valid heqttest for. 63 'tammar school. — The Att. Gen. v. Caitia Col- 'e. 2 Keen, 150. rV.— Cy Pres. The testator directed funds to be proyided for rtain charity schools, by accumulating his pro- rty ; but fixed no time for tlie continuance of e accumulation, which must necessarily have ;ceeded the legal period. The court held, the rection to accumulate to be void, and, conse- lentlv, the ulterior dispositions of the wUi to il ; but, as the testator had shewn an intention devote his property to charitable purposes, it rected his intention to be carried into effect, ey ■es, by means of a scheme to be settled by the aster. — Martin v. Maugham, 14 Sim. 230. A school was founded for the education of poor lildren within a certain district. The district as converted into a dock under a local act of irliament, so liiat the objects of the charity lUed. The court referred it to the master to pprove of a scheme for the application of the mds of the charity cy pres, — Att. Gen. v. Glyn, I Sim. 84. A testator bequeathed £1,000 to "the Jews oor. Mile End," there were two charitable in- atutions for poor Jews, at Mile End, and it not ppearing which of the charities was meant, [eld, that the fund ought to be applied cy pres, nd the court divided the bequest between these wo charitable institutions. — Bennet v. Sayter, 2 leav. 81. Principles on which the court proceeds in the pplication of a charity fund cy pres. — Att. Gen. . The Ironmongers' Co., 2 Beav. 313. "V. — Valid BEauEST pon. A testator, in disposing of " the property of rhich he should be possessed at his death, after aymeut of debts and expenses," made several pecific and pecuniary bequests, and he directed is executors, amongst other things, to purchase nd prepare for the ultimate deposit of his own lody, and for the removal and deposit of the re- lains of his parents and sister, then lying in- erred in a certain churchyard, a certain piece of mconsecrated ground then belonging to another lerson, on which they were " to build a suitable, landsome, and durable monument, the expense be met and provided for from the surplus pro- lerty that should remain after payment, of the hove legacies and bequests, &c. ;" after which, le gave tiie remainder of his property to the go- 'emment of Bengal, to be applied to charitable, peneficial, and public works, at, and in the city if Dacca, in Bengal, for the exclusive benefit of he native inhabitants, in such manner as they ind the government might regard as the most londucive to that end." Held, first, that the di- ection as to the monument was not a charge ipon the residue, but a bequest of such integral )art of the residue as would be necessary for car- yiug the direction into effect. Secondly, that iven supposing that direction to be void, it did lot invzdidate the subsequent bequest to the go- remment of Bengal, if otherwise valid, inasmuch B the sum necessary for carrying the direction as the monument into effect was capable of being iscertained. Thirdly, that the bequest to the jovermnent of Bengal was a good charitable be- luest. Whether the direction as to the monu- ment is void qwnre ? — Mitford v. Reynolds, 1 Phil. 185. A. B., by trust of settlement, gave all his es- tate, real and personal, to trustees, with power to keep up the trust by assumption of new trus- tees, and he directed them to put out on security £2,000, and to pay the interest to M. M. for her life, the said sum itself payable to the trustees on her death, and he directed them to apply the re- sidue of his estate to such benevolent and charit- able purposes as they should think proper, and if the same should amount to £600, or upwards, he recommended to his said trustees, and their foresaids, to vest the same in themselves, and ap- ply the proceeds in yearly payments to faithful domestic servants settled in Glasgow. And if the residue should not amount to £600, he autho- rized his said trustees to distribute same to such charitable and benevolent purposes as they should think proper. The residue was found to amount to £12,000. Held, first, that the words " the said sum itself, payable to the trustees on her (M. M.'s) death," did not give the £2,000 to them benefi- cially, but it became part of the general estate : secondly, that the bequest of the residue was not void for uncertainty ; and, thirdly, that the costs of all the parties ought to be paid out of the re- sidue, as the instrument was obscurely worded, and the residue was so much larger than disponer expected. — Miller v. Rowan, 5 Clk. & Fin. 99. Where a legacy was given by a will to A. B., " to be applied to the use of " a certain Roman Catholic College, and A. B. died in the testator's lifetime ; the court, on being satisfied as to the respectability and permanent character of the in- stitution, ordered the legacy to be paid to the president of the college, who was the officer en- trusted with the management of its pecuniary affairs, without requiring any scheme to be settled, although the Attorney General asked for one. — Walsh V. Gladstone, 1 Phil. 290. A gift, to be divided " among poor pious per- sons, male or female, old or infirm, as the execu- tors see fit, not omitting lai-ge and sick families, if of good character," is a valid charitable bequest, the word " poor " extending through the whole sentence. — Nash v. Morley, 5 Beav. 177. Bequest " to the poor on the testatrix's little estate in Suffolk." The testatrix, in 1784, had an estate in Suffolk, but which was settled in that year, and the testatrix had merely a rent charge issuing thereout. Held, that there was a valid charitable gift to the poor on the estate. — Bristow v. Bristow, 5 Beav. 289. A bequest of a legacy to trustees " upon trust, to pay, divide, or dispose thereof, unto or for the benefit or advancement of such societies, sub- scriptions, or purposes, having regard to the glory of God in the spiritual welfare of his crea- tures, as they shall in theii' discretion see fit." construed to be a gift to religious purposes, and restricted to such purposes. — Townsend v. Carus, 3 Hare, 257. A bequest for a religious purpose is a valid charitable bequest, although the paramount re- ligious object might possibly be effected by an application of part of the fund to a purpose which, separately taken, would not be strictly chaiitable. —Id. Testator, by his will, directed that a sum, not exceeding £50 a-year, should be paid in quarterly payments to a literary man preferably, not more than forty years of age. By a codicil, he declared that his object was to give what little assistance he could to a worthy literary person, who had 64 Void. CHARITY. Mortmain. not been very successful in his career, and as far as possible to enable him to assist in extending the knowledge of those doctrines in the various branches of literature to which the testator had turned his attention and pen. Held, that, pro- vided the literary works of the testator were con- sistent with religion and morality, this was a charity to which the law of England would give effect; — Thompson v. Thompson, 1 Coll, G. 0. 392. A bequest of the residue of personal estate for such religious and charitable institutions and purposes within the kingdom of England as, in the opinion of the testator's trustees, should be deemed fit and proper, is a good charitable be- quest'. — Baker v. Sutton, 1 Keen. 224. VI.— Void. A direction by a testator to his trustees, to ap- ply the residue of his personal estate to, and for such benevolent, charitable and religious pur- poses, as they in their discretion, should think most advantageous and beneficial, and for no other use, intent or purpose. Held, void for uncer- tainty. — Williams y-Kershato, 5 Clk. & Pin. Ill, n. A testator by a codicil to his will, having devised certain lands to trustees, for charitable purposes, and having decided that the said lands were let at a clear yearly rent of £237, which he directed to be appropriated, in the particular manner spe- cified in the codicil, for the maintenance of an alms house, &c. &c., declared that in the event of there being an increase in the rents by any new letting, the surplus so to arise, should go to the only use and behoof of the person, or persons of the S. and C. families, who for the time being should be lords or lord, lady or ladies of the manor of D., and in case the said families did not protect the said charities, or if the said families should become extinct, then, and in either of the said cases, the trustees were to apply the said surplus rents in addition to the former provision for the charity. After the death of the testator, the families of S. and C, sold the manner of D. On a bill filed by the commissioners of charitable donations, to carry into effect this codicil ; held, that as the gifts of the surplus rents, to the mem- bers of the S. and C. families was a clear, eqtiita- ble devise in fee, that the gift over to the trustees, for the charity was too remote. Held, also that the families of S. and C, had not by the sale of the manor of D . , become extinct within the mean- ing of the codicil. Held, also that though it appeared that the rents, as appropriated by the testator, had became insuificient to support the charity, as originally intended, the trustees were not entitled, as against the families of S. and C, to any portion of the surplus rents. — The com- missioners of Charitable Donations and Beqtiests V. De Clifford, 1 Dru. & W. 245. Bequest of personalty to trustees, to be "ap- plied for the relief of domestic distress, assisting indigent, but deserving individuals, or eneourage- ing undertakings of general utility." Held, void, as a charitable bequest. — Kendall v. Granger, 8 Beav. 300. A bequest to the Queen's Chancellor of the Exchequer, for the time being to be by him ap- propriated, to the benefit and advantage of Great Britain. Held, to be valid so far as related to the pure personalty, but void in respect of the per- sonalty savouring of reality. — Nightingale v. Goulbourn, 5 Hare, 484. Ten acres of charity land were alienated by the trustees, in consideration of £55, and a fixed rent charge of £6. Held, that it was incumbent on those claiming the benefit of the alienation, to shew that the transaction was benefical for- the charity, and not having done so, it was held in- valid. — Ati. Gen. v. Brettingharti, 3 Beav. 91. .VII. — MOUTMAIN. See 45 G. 3, c. 101, repealing so much of 9 G. 2, c. 36, as restrained Oxford and Cambridge universities from purchasing, or holding ad- vowsons, except as therein provided. 9 G. 4, c; 85, and 9 G. 2, c. 36. Shares in gas light, and in a dock company, which possessed real estate for the purposes of their undertaking. Held, not within the statute of mortmain.— S^o»-fo'»^ v Parker, 9 Beav. 450. Canal shares, which by act of parliament, were declared to be personal estate, and transmissible as such. Held, by Sir John Leach, to be within the mortmain act. — Tomlinson x. Tomlinson, 9 Beav. 459. Testator bequeathed the residue of his personal estate, to his ejSecutors in trust, for the establish- ment or institution of a charitable receptacle, if the same could be done for fifty-four poor old men, but if no such institution could be con- veniently established, he desired that the residue should be disposed of in charitable donations of £6 each, ■ to persons of the same description. Held, that the bequest was wholly void, under the statute of mortmain. — Att. Gen. v. Hogdson, 15 Sim. 146. Personalty, directed to be laid out in land, to be held in trust for A. for life, with a gift over upon a breach of a condition, to a charity. Held, that the charity could not takel — Bidgwag v. Woodhouse, 7 Beav. 437. Bequest of chattels real to trustees to erect such monument as they should think fit, and build an organ gallery. The first object was valid, tlie second invalid, under the statute of mortmain. Held, that the trustees were wrong, in applying the whole to the first object, and an inquiry was directed to apportion the gift. — Adnam v. Cole, 5 Beav. 353. A simple declaration, that charity legacies are to be paid out of pure personalty, will not give to such legacies, a priority upon the pure personalty over other legacies and charges, nor exempt any part of the estate from the ordinary rules of ap- plying and distributing the assets. — Sturge v. Dimsdale, 6 Beav. 462. A testatrix created a mixed fund, of realty and personalty, for payment of her debts and legacies, but she directed the charity legacies to be paid out of pure personalty, she afterwards directed hor trustees to set apart, a sum of stock, sufiicieut to provide for a number of annuities, and as the annuitants died, the stock let loose, was to be ap- plied in payment of the charity legacies. Semble, that the direction alone was not of i'- self, sufficient to exempt the charity legacies from being payable, out of the realty, in the proportion of the realty to the personalty ; but, held, that the second part created a demonstrative fund cf pure personalty, out of which the charity legacies wore to be paid. — Id. Testator after limiting his Staffordshire Estates to his daughter and her sons, in strict settlement, recited that he had lately pui'chased an estate I called C, for the purpose of renewing a chapel, Mortmain. CHARITY. Mortmain. 65 3Ut that he had been, prevented from carrying lis intention into effect ; he then devised the C, sstate to trustees, in trust, to apply the rents upon such trusts, and for such purposes, as the persons :'or the time being in possession of his Stafiord- iliire estates, should in their discretion appoint ; 3ut he trusted that out of respect to his memory, ;hey would exercise such power, in doing such jharitable acts, as they know he would most ap- jrove of. Held, that both the subject and the jbject of the trust were clearly pointed out, and ;hat the latter being charitable acts, the trust was i-oid, under the Statute of Mortmain. — Pilkington V. Boughey, 12 Sim. 114. A school was founded for the education of poor jhildren, within a certain district. The district was converted into a dock, under a local act of parliament, so that the objects of the charity failed. The court referred it to the master, to approve of 1 scheme, for the application of the funds of the sharity cy pres. — Att. Gen. v. Glyn, 12 Sim. 84. A lease of land already in mortmain, made to a charity, does not require enrolment under 9 Gr. I, c. 36.— Id. Upon an information, for the appointment of mew trustees of a dissenters' meeting house, on the ground that the parties in possession had excluded persons who according to the trusts were entitled to the use of the premises, and had admitted others to the use of the same who were lot entitled thereto, the court made a deci-ce for the appointment of new trustees, not"\vithstanding the deed declaring the trust was not enrolled, according to the provisions of the Mortmain Act (9 Geo. 2, c. 36), and notwithstanding the defen- dants, who had (permissively) the possession and use of the premises objected, at the hearing, that the deed was void under the statute, the defen- dant who had the legal estate, admitting the trust, and submitting to act as the court should iirect. — Att. Gen. v. Ward, 6 Hare, 477. The court wUl make a decree for the appoint- ment of new trustees of lands, for a charitable use, although the deed originally declaring the use be not enrolled under the Mortmain Act, if the trustees, in whom the legal estate is vested admit the trust, and do not object that the deed is void under the statute, but submit to act under the direction of the court. — Id, The shares in the London G as Light and Coke Company, are not within the Statute of Mort- nain. — Thompson v. Thompson, 1 Coll. C. C. 381. Shares in the London Dock Company, and in ;he East and West India Dock Company, held, lot to be interests in land within the Statute of Mortmain, 9 Geo. 2, c. 36. — Hilton v. Giraud, 1 De. G. & S. 183. Policies of Assurance, by which the directors mgage "to pay out of the funds," or " that the 'unds shall be liable," or " that a share of the 'unds shall be paid," are not so connected with and as, under the Mortmain Act, to render in- ralid a gift of them to charity, although the as- iets of the assurance companies consist partly of ■eal estate. — March v. Att. Gen., 5 Beav. 433. The rule is the same, although by the policy lealed with the corporate seal of the company, he assured becomes a member. — Id. The court will not marshal assets for the pur- lose of giving effect to charity legacies. — The Philanthropic Society v. Kemp, 4 Beav. 681. A testatrix bequeathed legacies to charities md to individuals, and she &ected her charity egacies to be paid " out of her ready money, ind the proceeds of the sale of her funded pro- perty, personal chattels and effects, and not from the proceeds, or by sale of her leasehold or real estates ;" and she charged her leischold estates, in addition, with the payment of her debts, fune- ral and testamentary expenses, and legacies not given to charities. The pure personalty was in- sufficient to pay the debts, &c., and all the lega- cies. Held, that the charity legacies failed in the proportion of the mixed personalty to the pure personalty. — Id. A testator gave his real and personal estate to trustees, upon trust, with all convenient speed to convert into money ; and he directed them at the end of twelve months after his decease, to invest the sum of £600 out of his personal estate in trust for a charity ; he also directed them, at the end of twelve months after his decease, (all his pro- perty being personal,) to lay out the residue for other charities, The realty was sold. Held, that the £600 was not payable out of pure per- sonalty, but out of the mixed fund ; and that this gift, and the gift of the residue, were ren- dered void by the Mortmain Act in the propor- tion which the realty bore to the personalty. Held, also, that the realty was not converted to all intents, and so as to entitle the next of kin to the fund released, in consequence of the invalidity of the gift of the real estate to charity. —Johnson V. Woods, 2 Beav. 409. A. conveyed a piece of ground, by bargain and sale enrolled, to trustees for charitable purposes, but he retained possession of the deed and of the land for more than 20 years afterwards, and then the trustees reconveyed the land to him. After A.'s death his heirs agreed to sell the land to B. An information was then filed against the heir and B., claiming the land on behalf of the charity; but the coTurt held, that the conveyance to the trustees was void, as it was to be inferred from the circumstances above mentioned that there was a secret trust for A. — Att. Gen. v. Poulden, 8 Sim. 472. Testatrix bequeathed a sum of money to trus- tees in trust, in case the inhabitants of the parish of A. should, within seven years after her death, build a church within the said parish, to pay and apply the said sum as they should think fit, for and towards defrajing the costs and expenses of building and erecting such new church. Held, that the bequest was valid within the Statute of Mortmain. And that, at all events, where the sum so bequeathed does not exceed JE500, and the testator appears to have survived the making of the will more than three months, the bequest is good within the stat. 43 Geo. 3, c. 108, sec. 1. — Dixon V. Butler, 3 Y. & C. 677. It is contrary to the policy of the Mortmain Acts, and to the usual practice of the court, to allow money, belonging to a charity, to be in- vested in land, even for the purpose of enlarging the charity. — Att. Gen. v. Wilson, 2 Keen, 680. It is conti-ary to the policy of the Mortmain Act to permit testamentary gifts of money to be laid out on land, as an inducement to draw land into mortmain. A testator gave the residue of his personal es- tate to his executors and other persons, with a request that they would be pleased to entreat the lord of the manor of Devonport to grant a spot of ground suitable for the erection of dwellings to be appropriated to a charitable purpose. Held, that the bequest did not clearly exclude a pur- chase of the land, and that even if it did it was void under the Statute of Mortmain, — Mather v. Scott, 2 Keen, 172. P 66 Leases of Property of. CHARITY. Application of Revenues of. A bequest of the residue of personal estate for such religious and charitable institutions and purposes, within the kingdom of England, as in the opinion of the testator's trustees should be deemed fit and proper, is a good charitable be- quest. — Baker v. Sutton, 1 Keen, 224. A bequest of money directed to be laid out on mortgage security at the highest interest that could be legally and safely obtained for the same, held to be void under the Mortmain Act. — Id. A direction to executors to purchase so much freehold land as could be bought for £100 for a charitable purpose, and in case land could not be conveniently purchased within twelve months after the testator's decease, to pay 20s. per quar- ter for such charitable purpose, until such pur- chase could be made, does not give the executors such a discretion as to take the bequest out of the Mortmain Act. — Mann v. Burlington, 1 Keen, 235. VIII. — Leases of PRorERTT op. A lease of land already in mortmain made to a charity, does not require enrolment under 9 Geo. i, c. Z6.—Att. Gen. v. Glyn, 12 Sim. 84. A husbandry lease of charity lands for 200 years, at a fixed rent, cannot, unless there be some spe- cial reason, be supported in equity. Such a lease of charity lands cannot be supported upon any custom of the county in which the lands are situate. — Att. Gen. v. Pargeter, 6 Beav. 150. ■ The purchaser of a charity lease takes with no- tice of the facts appearing thereon, shewing its equitable invalidity. — Id. Lease of charity property for ninety-nine years at a fixed rent, containing no contract to repair or lay out any money thereon, set aside. — Att. Gen. V. Foord, 6 Beav. 288. A building lease of charity property for more than ninety-nine years, cannot stand, unless there be some special grounds on which it can be pro- tected. — Id. Master of an ancient hospital held liable to re- fund filnes, which, according to the custom of his predecessors, he had received for renewal of leases. — Att. Gen. v. rretyman, 4 Beav. 462. Lease of 999 years of charity property at a fixed rent, upheld, the arrangement appearing free from fraud, and for the benefit of the charity. — Att. Gen. v. South Sea Company, 4 Beav. 453. In a proper case charity trustees have the power of alienating the charity property. — Id. Absolute alienation, and a reversionary lease of charity property, set aside as improvident. — Att, Gen. v. Kerr, 2 Beav. 420. The court refused to direct an inquiry as to the propriety of granting leases of charity lands for lives renewable upon a fine at a small reserved lent, where there had been no alteration in the mode of letting the lands for upwards of 200 years. — Att, Gen. v. Crook, 1 Keen, 121. IX. — Statute op Limitations. P. P., by his will of the 4th of June, 1812, de- vised a rent charge as a salary for a schoolmaster, to be appointed by the owner for the time being of the estate on which the rent was charged. A schoolmaster was never appointed. In 1839, an information was filed to caiTy the said trust into execution. Held, that the Statute of Limitations could not run until a schoolmaster was appointed. and that, consequently, the owner of the estate was liable to an accoimt since the death ot the testator. Whether trusts for charitable pur- poses are v/ithin the statute, 3 & 4 Will. 4, c. 27, quosre.—Att. Gen. v. Persse, 2 Dru. & W. 67. Courts of equity in this country have an inhe- rent jurisdiction in cases of charity. Cases of charity were not included in any of the early statutes of limitations, nor were charities bound to that analogy to these acts, which equity ap- plied in all other cases, and semble, they would seem not to have been included within the enact- ments of the 3 & 4 Will. 4, c. 27, but appear to have been a casus omissus, — The Incorporated So- ciety V. Richards, 1 Dru. & W. 259 ; 1 Con. & L. 68. That so far as the case was one of trust, it was one of express trust, within the section 25th of the statute 3 & 4 WUl. 4, c. 97, and, therefore, the information having been filed within twenty years after the conveyance was executed to the defendants B. & C, the statute was not a bar to the suit. — Att. Gen, v. Flint, 4 Ilare, 147. X. Application of Revenues op. A simple declaration that charity legacies are to be paid out of.pure personalty, will not give to such legacies a priority upon the pure personalty over other legacies and charges, nor exempt any part of the estate from the ordinary rules of ap- plying and distributing the assets. — Sturge v. Dimsdalc, 6 Beav. 4G2. A testatrix created a mixed fund of realty and personalty, for payment of her debts and legacies, but she directed the charity legacies to be paid out of pure personalty. She afterwards directed her trustees to set apart a sum of stock sufiicient to provide for a number of annuities, and as the annuitants died, the stock let loose was to be ap- plied in payment of the charity legacies. Semble, That the direction alone was not of it- self suiRcient to exempt the charitable legacies from being payable out of the realty, in the pro- portion of the realty to the personalty, but held, that the second part created a demonstrative flmd of part personalty, out of which the charity legacies were to be paid. — Id. A testator, by his will, founded a charity, to- wards which he directed certain and definite sums to be applied, and he devised estates to a company for that purpose ; the will contained no express be- neficial gift to the company. Held, however, under the circumstances, that tlie company was entitled to the increased rents of the property, after making the fixed payments. — Att, Gen, v. The Grocers' Co., 6 Beav. 526. A bequest was made to a corporation in terms which devoted the whole improved income to a charity. In 1559, the corporation, by their answer ill a suit, oflfered to apply the whole income to the charity. The decree directed the distribution of the whole existing income, and provided that, in case of an increase, the objects should receive an increase, limited to £16, but it made no dis- position of any surplus. Held, that under tiiis decree the corporation was not, by implication, entitled to such surplus. — Att. Gen, v. The Dra- pers' Co., GBeav. 382. Generally a charitable gift must be accepted according to the declared intention of the giver ; but a corporation not being bound to accept an accession to its foundation, may consent to re- ceive itwith qualifications, which mav be collected Application of Revenues of. CHARITY. Application of Revenues of. 67 either from documents or constant usage, adopted at the time, and persevered in downwards. — Id. A. B. entered into an arrangement with a body corporate for the endowment of a school, and conveyed real estates to them of a computed definite value. The corporation stipulated to maintain the charity for certain fixed sums, payable out of rents of a computed definite amount, to which they agreed to abide, and be- came bound to maintain it though the rents should fall, and certain patronage was given to the corporation. There was a clause of forfeiture on their non-performance. Held, nevertheless, upon the context of the foundation deed, that al- though the corporation were bound to maintain the charity even if the rents fell short, yet that the charity was entitled to the benefit of any in- crease in the rental. — Att. Gen. v. The Merchant Venturers' Society, 5 Beav. 338. A. B. bequeathed to a company a sum to pur- chase lands of the clear value of £100 a year, and gave £96 to charity, and "the residue of the said sum of £100, being £4 yearly, to the company for their pains." Held, that all the objects were entitled, rateably, to the increased rents. — Ait. Gen. V. Drapers' Co., 4 Beav. 67. Accounts in a charity case limited to the filing of the bill, where, from the institution of the charity, the funds had been improperly applied, the trustees retaining for themselves more than they were entitled to. — Id. A testatrix, after reciting that the rent of a property was £10, devised it to Christ's Hospital, (a charitable foundation), intrust, as to £6 for the poor of three parishes, and as to £4 to A. B. for Hfe, and after her death, in trust, for the three parishes, Held, that Christ's Hospital took no interest in the increased rents. — Att. Gen, v. Christ's Hospital, 4 Beav. 73. ■Where a testator clearly declares an intention of devoting the whole income of a property to charitable purposes, then, although he does not, in specifically directing the application of portions of it, exhaust the whole income, still the general intention that the whole should be applied to charitable purposes, will prevail ; and, on the other hand, although he does not make any such general declaration of devoting the whole to charity, but gives each and every portion of the whole income at the time to some charitable pur- pose, and by that means exhausts the whole ; then, if the income should afterwards increase, the increase will also be applicable to charitable purposes, — Att. Gen, v. The Coopers' Co., 3 Beav. 29. A testator devised a house to the Coopers' Company, upon condition, and to the use, intent and purposes of maintaining, augmenting and supporting a school at E.., lately erected; and the same rent, which he represented to be £11, should be bestowed in manner following. He then gave different sums to different objects, amounting in the whole to £8, and amongst them 5s. to the Coopers' Company, and then gave £3, which he represented as that which remained ungiven, to the Coopers' Company, to put in their common box toward the repair of the house when need be ; and, if the house should fall into decay by sudden misfortune whereby no rent should be made, then the legacies to stay until it should be made tenantable, which he trusted the company would do within two years, and when tenantable the company to go on with his wUl " to avoid the penalty and danger which followeth." He then Bave the house over beneficiallv to the Grocers' Company, if the Coopers' did not bestow the £8 as he willed them to do. The rents increased to £75. Held, that all the objects of the testator's bounty were entitled to participate in the in- creased rents, and that the Coopers' Company took the three-elevenths beneficially, subject to the repairs.— ^«. Gen. v. The Coopers' Co., 3 Beav. 29. In every case where the general purpose of a gift or conveyance is declared to be a charity, and the particular payments do not exhaust the whole fund, any surplus will belong to the cha- rity, unless there are other circumstances from which a contrary intention of the testator can be collected. — Att. Gen.y, The Drapers' Co., 2 Beav. 508. A charity was founded " for the relief of the poor of S." Held, that the charity funds ought to be exclusively applied to the relief of parties not receiving parochial relief. — Att. Gen. v. Wil- kinson, 1 Beav. 370. A testator by his will, dated in the year 1556, devised lands, upon condition that with the rent of the premises the trustees therein mentioned should cause a free-school to be kept in the vil- lage of H., for evermore, to the intent that the children that should be there brought up should pray for the testator's soul, and for all Christian souls. Held, that the words " free school" ought not to be construed as if they were " free gram- mar school," and that the rents and profits of the devised estates were applicable to all elementary instruction. — Att. Gen. v. Jaclcson, 2 Keen, 541. A testator contemplating that a fixed annual income of £250 would arise from the investment of £5,000, which annual income he directed to be distributed by his supervisors in the manner directed by his will, gave to his executors and other persons certain property, and directed them after his death to erect a grammar school for the instruction of five score scholars ; and he ordered six tenements to be buUt for six almsfolk, and ordained six fellowships and scholarships to be founded in Caius College. He then appointed' the master and fellows of Caius College to be the supervisors of his will, and wUled that the mas- ter and four senior fellows should perform all that was appointed to be done by the supervisors ; and he gave to the master and four senior fellows for their pains, yearly, the sums of money afterwards appointed to them. He then gave particular sums, amounting in the whole to £243 14s. 8d., (among which were a sum of £3 to the master, and 30s. each to the four senior fellows ;) arid he willed that the remainder of the £250 per annum should be from time to time bestowed in such charitable uses as his executors for their times, and after his supervisors, should think fit. The sum of £5,000 given by the will was invested in land, and the rents had increased greatly beyond the £250 originaUy contemplated by the testator. Held, that the master and four senior fellows took the remainder of the £250, upon trust, for charitable purposes, exclusive of any application of it to their own benefit, and that they were entitled to a proportion of the surplus rents, in respect of the gift of the re- mainder i^ro rata with the other specified objects of the testator's bounty.— ^«. Gen. v. Caius Col- lege, 2 Keen, 160. . The court will not marshal assets m favour of a charitable bequest given out of a mixed fund, whether the bequest be particular or residuary.— Hohson V. Blackburn, 1 Keen, 273. 68 Trustees and Trust. CHARITY. Trustees and Trust. XI. — Tkustees and Trust. Under what circumstances the court will make an order for filling up vacancies in charity trus- tees under the Municipal Corporation Act. — In re Shrewsbury Charities, 1 Mao. & Gor. 84. The court will make an order for filling up the vacancies in charity trustees, by the appointment of particular individuals, without a reference to the master. Where an unnecessary party had been served with a petition, solely in consequence of a claim by him, he was left to bear his own costs. — In re Shrewsbury School, 1 Mac. & Gor. 85. P. Blundell by his will, dated in 1599, founded a free grammar school for one hundred and fifty boys, born, or for the most part before their age of six years, brought up in the town or parish of Tiverton; and directed that if that number could not be filled up, the want should be sup- plied with the children of foreigners, and those foreigners only to be admitted with the assent and allowance of such ten householders of the town as should be most in the subsidy-books of the then Queen, and her successors ; and there should be no scholar at the school under a grammar scho- lar : and, after providing that there should be a master and usher for the school, and that their yearly salaries should be £50 and twenty marks respectively, he willed that they should be content with that recompense, without seeking or exact- ing any more either of parent or children, it being his meaning that the school should be a free school and not a school of exaction. Held, that the terms " foreigners and children of foreigners" meant children who had not been born, or, for the most part, before the age of six years, brought up in the town or parish of Tiverton ; and, that though it had long been the practice for the master and usher for the time being to take boarders, that practice ought to be discontinued ; that there being no longer any subsidy-books, a new qualification ought to be fixed for the ten householders ; that, though some of the trustees of the charity-property resided at a considerable distance from Tiverton, they ought not to be removed, notwithstanding the testator had di- rected the vacancies in the trusteeship should be supplied by persons near inhabiting ; and, there being a surplus of the income of the charity pro- perty, that the salaries of the master and usher ought to be increased ; and that the propriety of appointing more ushers, and of extending the education of the scholars to matters of science and literature, including one or more of the modern languages, ought to be referred to one of the masters of the court. — Att. Gen, v. Earl of Devon, 15 Sim. 193. The court will not make an order for filling up vacancies in charity trustees under the Municipal Corporation Act, unless it be satisfied that the existing number is practically insufficient, and that inconvenience arises from not having more. — In the Worcester Charities, 2 Phil. 284. Charity trustees appointed under the 6 & 6 TV. 4, c. 76, are invested by their appointment with all the rights and powers as such trustees, which formerly belonged to the corporation or corporate officers for whom they are substituted. — Att. Gen. v. The Corporation of Ludlow, 2 Phil. 685. The decree of the master of the rolls, in. — Att. Gen. V. Fishmongers' Company, (Preston's Will,) 2 Beav. S88, afiirmed. If there be no doubt of the origin and existence of a trust, this court will not allow lapse of time, to enable those who are mere trustees, to appro- priate to themselves that which is the property of others ; but in questions of doubt whether any trust exists, and whether those in possession are not entitled to the property for their own benefit, the court vrill pay the utmost regard to the length of time, during which there had been enjoyment, inconsistent with the existence of the supposed trust. — Att. Gen. v. Fishmongers' Co., (Preston's Will,) 5 Myl. & Cr. 16. A testator in the year 1690, by his will devised and bequeathed certain properties therein men- tioned, for charitable purposes, but without naming any trustee or devisee. From the death of the testator to the present time, the property was applied upon trusts, in the will specified. Upon a petition presented under the statutes, 52 Geo. 3, c. 101, and 1 W. 4, c. 60, stating such facts, and that the heir of the testator could not be discovered, the court made an order, referring it to the master, to appoint new trustees, and to approve of a proper person, in place of the son of the testator, to convey to such new trustees. — In the matter of Bishop Gore's CImrity, 4 Dm. & W. 271. In the appointment (under the Municipal Cor- poration Regulation Act) of trustees of property lately held by a corporation upon charitable trusts, persons who are members of the new cor- poration, are not ineligible as trustees, even al- though the corporation may have formerly set up a claim to the property, in opposition to the charity. A person's name had been submitted to the master, as a new trustee, and he had been approved by the master, but without any affidavit of his respectability, such an affidavit was after- wards produced to the Lord Chancellor, and no objection to his respectability was made. Held, that there was no ground for referring the ques- tion of his appointment back to the master. — In the matter of the Ludlow Charities, 3 Myl. & Cr. 262. Property appropriated by a municipal corpo- ration to the maintenance of lectures to preach, before the corporation, is not property held by the corporation upon a charitable trust within the meaning of the seventy-first section of the act 5 & 6 W. 4, c. 76. — In the matter of the Oxford Charities, 3 Myl. & Cr. 239. A petition was presented under SirS.Romilly's Act, imputing misconduct, and seeking to dis- place the trustees and alter the management of a charity, in conformity with a decree which turned out to have been reversed at the hearing : a scheme and the appointment of additional trustees were alone asked. The title alleged being plainly erroneous, the court, though of opinion that the two objects asked were proper, refused to direct them on this petition, but dismissed it with costs. In-re, Peyton s Hospital, 8 Beav. 70. On a petition for the appointment of new trus- tees to a charity, the court directed that in the deed appointing the new trustees, a power should be inserted for appointing new trustees in future. —In re 52 Geo. 3, c. 101, 12 Sim. 262. Where a reference has been made to the master to appoint trustees of a charity, it is the rule ofl the court to adopt the master's appointment,; unless the persons appointed can be shewn to bej objectionable ; and the court will not enter into the question of the fitness of other persons whom the master has refused to appoint. Where, how- ever, under the Municipal Corporation Regula- tion Act, a reference has been made to the master Trustees and Trust. CHARITY. Jn/ormation and Petition. 60 to appoint new trustees of charity property, instead of the old corporation who had been the former trustees, and the master had received evidence which tended to show there was a sus- picion of the old trustees having exercised their trust for political purposes, and had declined to reappoint any of the old trustees, and had written a memorandum, stating that he had come to that determination " in consequence of the case made against the old trustees ;" the court entered into the consideration of the propriety of the master's conduct in rejecting all the old trustees, and held, that the existence of a general suspicion of im- propriety on the part of the old trustees in the exercise of their trust, whether that suspicion were well or ill-founded, justified the master in declining to reappoint any of the old trustees. An institution, for the maintenance and education of poor children, founded in 1617, and chartered in 4 Car. 1, (1628), was held, under the circumi, stances, to be not exclusively a Church of Englana charity, so as to make it proper to place it under the superintendence of a body of trustees con- sisting entirely of members of the Church of Eng- land. — In re the matter of The Norwich Charities, 2 Myl. & Cr. 275. In considering whether mixed trustees, or trustees of a particular religious class or denomi- nation, of charity estates, vested in a municipal corporation, should be appointed under the 3 & 4 Vict. c. 108, s. 112, (Municipal Corporation Act,) the court will look to the constitution of the trust, and how it has been exercised, and how matters stood at the time when the act came into opera- tion in the borough ; and where the usage has been to apply the charity estate exclusively for the benefit of persons of a particular religious de- nomination, and such application is not clearly inconsistent witli the constitution of tlie trust, the court will appoint trustees of that religious denomination only. — In re Charitable and I'rust Estates of Drogheda, 3 Jon. & L. 422. A. being a lessee of lands under a charity, and being also the owner of an adjoining public- house and premises, was, in 1794, appointed a trustee of the charity, and jointly with the other trustees tiiok a conveyance of the charity estates. A., in 1817, after the expiration of his lease, took another lease for twenty-one years of lands of the charity, whicli were described as part of a room in the public-house, but were not otherwise detined. A. subsequently sold the public-house to the defendants, B. & C, and died ; and B. & C. in July, 1823, took a conveyance and assignment of the freehold premises and the lease from the executors of A. In 1832, B. became a trustee, and executed the deed of trust in which the wliole of the room in the public-house, and other parts of the premises, were described as the pro- jicrty of the charity. In May, 1843, the informa- tion was filed at the suit o'f the trustees other tlian B., claiming rent in respect of the whole of the room in the public-house and other parts of tlie premises, as being the property of the charity in the occupation of the defendants, and praying that the defendants might be decreed to convey the lands in question to the trustees of the charity. Held, that the defendant B. bein^ one of the trus- tees of the charity estate, the suit could be sus- tained against B. and C, notwithstanding the other trustees might be able to proceed at law by ejectment. — Att. Gen. v. Flint, 4 Hare, 147. lleference on the petition of the Attorney General, made under the 2 W. 4, c. 57, to appoint new trustees of a charity to settle a scheme, and to ascertain the property, and irf whom the legal estate was vested. — In re Tho Fowey Charities, 4 Beav. 226. A fund was raised by voluntary subscription by the inhabitants of Lewes and its neighbour- hood, and applied in the purchase of premises for making a pest-house, and the trusts were declared accordmgly. In 1808, the trustees, under a resolu- tion of the inhabitants at a general meeting, sold the premises, and lent the produce to the com- missioners of lighting and paving, on the security of the rates. Neither the principal, or interest having ever been repaid. Held, upon an in- formation by the Attorney General, that this was a charitable foundation, that a breach of trust had been committed, and that the money ought to be repaid by the commissioners out of the rates, though by the act empowering the commis- sioners to raise money on the rates, one- twentieth of the principal was to be paid off annually. — Att.Gen. v. Kcll, 2 Beav. 576. XII. — Infokmatios axd Petition, If it appears to be for the benefit of a charity that part of the estates belonging to it should be sold, tin order for that purpose may be made on a petition presented under 52 Geo. 3, c, \a\.—Re Parke's Charity, 12 Sim. 329. In charity informations the account is some- times carried back to the date of the Report of the charity commissioners, sometimes it is directed from the filing the information, and sometimes from the decree, according to the circumstances of each case. — Att. Gen. v. The Drapers' Co., 6 Beav. 382. The proper form of suit to administer the funds of a charity is the information of the Attorney General, but the ti-ustees may file a bill against the Attorney General to have the accounts of the charity taken, and to be per- sonally discharged from liability in respect thereof, submitting to such account as the Att. Gen. would be entitled to ask against them in an information; and in the same suit, if the Att. Gen. desire it, the court shall direct a re- ference for a scheme. — The Governors of Christ's Hospital V. Att. Gen., 5 Hare, 257. A bill was filed by one of several trustees of a charitable gift, the validity of which was dis- puted, against the co-trustee who had refused to act, and the next of kin of the testator, to have it executed. Tlie trustees had accepted the trust. Held, that the proceeding was not improper, and that the plaintiff was not bound to apply to the Attorney General to proceed by informa- tion. — Nashv. Morley, 5 Beav. 177. An information and bill was filed to set aside a long lease of premises vested in the Coopers' Company for charitable purposes. The plain- tiffs were three members of the court of assist- ants of the company, (who alleged that they acted as trustees of the charity,) and an alms- man and almswoman, who were objects of the charity. A general demurrer to the information and bill was allowed, as no relief was prayed with respect to the plaintiffs individually. But leave was given to amend the record by making it an information only. — Att. Gen. v. East India Company, 11 Sim. 380. An information alleging an abuse in the in- ternal regulations of a charity dismi-sed, on the ground that they were the proper subject for the 70 Information, Sfo. CHARITY.— CHOSE IN ACTION. interference of the special visitor. — Att. Gen. v. Dulvnch College, i Beav. 225. Generally the relator, in a charity informa- tion, is, upon obtaining a decree, entitled to his costs as between solicitor and client, and to be paid the difference between the amount thereof and that portion recovered from the defendants out of the charity estate. In special cases he may be entitled to his costs, charges, and ex- penses. — Att. Gen. v. Kerr, i IBcav. 297. The extra costs of a charity information in- stituted in respect of one only of several gifts belonging to the charity, should, in the first instance at least, fall on the property which is the subject of the information. It may happen that justice to the relator, and even the interests of the charity, may require a different provision, which would be made when the circumstances require it, but not otherwise. — Id. The court ought not to decree the sale of a charity estate except upon a very special case ; and so much of an information as sought to ob- tain an inquiry, preparatory to that decree, in the absence of any special case for it, was dis- missed. — Att. Gen, v. The Mayor, Alderman, and Burgesses of Newarh-upon-Trent, I Hare, 395. The court does not consider it the duty of the Attorney General to contend for his strict rights in charity informations ; in cases of hardship it sanctions his acting with forbearance towards the parties, and will postpone its decision, to give the parties an opportunity of entering into an arrangement with the Attorney General. — Att. Gen. v. Brettingham, 3 Beav. 91. A testator, in whom real estates were vested, subject to certain rent charges, devised them to the Fishmongers' Company, " in aid of the main- tenance of the poor men and women of the mys- tery and community aforesaid for ever," being precisely the same terms as those under which, by their charter, the company were licensed to hold lands in mortmain. Held, under the cir- cumstances, that the testator was a mere trus- tee for the company, and an information being filed against the company to carry into execu- tion the charitable trusts mentioned in the tes- tator's will, was dismissed with costs. — Att. Gen. V. The Fishmongers' Co., 2 Beav. 588. The principal charge in an information being that certain alienations made by the trustees of the charity lands, were not authorised by the In- closure Act, under which they purported to be made, and in particular that an improvident ex- change had been made in order to favour one of the trustees, and it appearing that, although the directions of the Inclosure Act had not been strictly followed, nearly twenty years had elapsed since the transaction, and neither the exchange with the trustees, nor any of the alienations, were shewn to have been improvident or impro- per, the information was dismissed with costs as to that part of it ; and the information, as it was framed, not appearing to have been filed with a view to the benefit of the charity, and having been instituted and conducted in a man- ner to create unnecessary expense, no costs were given to the relators up to the hearing, as to that part of the information which was not dismissed. — Att. Gen, v. Cidlum, 1 Keen, 104. Where the case charged in an information, praying for the regulation of a charity, was in- consistent with the true state of the case set forth in the answer, and the relator brought the in- formation to a hearing without amendment, and with a prayer for, relief founded on the imtrue statement, no application having been made tc the company, trustees of the charity, for the cor- rection of the alleged abuse previously to the filing of the bill, the court, although it was a case in which some relief might have been granted if it had been properly brought before the court, dismissed the information with costs. — Att, Gen. V. The Grocers' Co., \ Keen, 506. XIII. — Pahtjes to Ciiauity Suits. Testatrix gave £6,000 stock to the governors of the charity for the relief of poor widows and children of clergymen, the dividends to be, from time to time, applied for the benefit of poor widows and maiden daughters of clergymen of the Church of England, who should have attained the age of thirty years, in such shares and pro- ^portions as the governors of the said charity 'Should, in their discretion, think fit. A bill, claiming the legacy, was filed against the ex- ecutors by the " Governors of the Corporation of the Society for the relief of Poor "Widows and Children of Clergymen, commonly called the Corporation of the Sons of the Clergy." Held, that the Attorney General was a necessary party to the suit ; the legagy not being given upon trusts corresponding with the trusts upon which the corporation held their general property. — Corporation of the Sons of the Clergy v. Mose, 9 Sim. 610. The Attorney General and plaintiflS being en- titled, as against B., one of the tenants in common in possession of the property claimed on behalf of the charity, an issue, to try the right of the charity to the lands in question, the other tenant in common was held to be a proper party to the suit and to the issue. — Att. Gen. v. Flint, i Hare. XIV. — Notice. B. and C, having notice of the title of the charity to part of a room, not particularly spe- cified or defined by metes and bounds, cotdd not insist on being purchasers for value without notice of any part of such room ; and, inasmuch as B, and C. had not proved that they had acquired the legal estate in the other parts of the premises claimed by the charity, and the equitable interest of the charity, if any, was prior to that of the defend- ants, it was not a case in which the defendants could rely on the defence of a purchase for value without notice. — Att. Gen. v. Flint, 4 Hare, 147. XV. — Legacy Duty. Testator gave his residuary estate (which amounted to £13,000) to his executors, to be by them appropriated to the education of the child- ren of the poor in Ireland, principally those in or about Limerick. Held, that the legacy duty was payable on the residue. — Att. Gen. v. Fitzgerald, 13 Sim. 83. CHOSE IN ACTION. See Settlement — Husb. & AViee. I. Generally 71, II. Reduced into Possession 71 III. Not Reduced into Possession 71 Meduce'd into Tossession. CHOSE IN ACTION. Not Jteduced into Possession. 71 1. — Geneuaxly. In a suit to carry into execution the trusts of a •will, it was ordered that the receiver should, out of the rents, pay to H. a feme covert, and the devisee of the real estates, the annual sum of £400 a-year, for her separate use, and on her own receipt, by way of maintenance. Held, that the allowance of £400 a-year was not a chose in ac- tion, and that it was a portion of the estate of H. in the lands, and not an interest therein distinct from the estate vested in her. — Rochard v. Fulton, 1 Jon. & L. 413. A., previous to his decease, executed a volun- tary deed, by which he conveyed and assigned to the plaintiff a certain note or memorandum in writing, being the acknowledgment of a sum of £1,620 then due to him by K., and all the interest then due, or which might hereafter accrue due, on foot thereof, upon trust, to pay the interest thereof unto the said A., his executors, adminis- trators, and assigns, for his life, and a period of fourteen months afterwards, and at the expiration of the said fourteen months to pay out of the principal sum to and amongst certain persons and relations of the said A., as in the said deed par- ticulai'ly mentioned, and as to the residue in trust for the said plaintiff, his executors, admi- nistrators, and assigns, for his and their own be- nefit. The deed also cont-iined a provision ■whereby the plaintiff, his executors, administra- tors, and assigns, were irrevocably constituted, the attorney of the said A., for the purpose of suing for and recovering the said debts. A. soon afterwards departed this life without making any will, or other disposition of his property ; the defendant, who was his admmistralor, having re- fused to allow his name to be used to enable the plaintiff to recover the said sum, and having ac- tually himself commenced an action for that pur- pose. Held, upon a bill filed by the plaintiff, to restrain the proceedings in said action, and to carry the trusts of the deed into execution, that as the transaction between A. and the plaintiff was complete, the deed, though volimtary, should be carried into execution. — Blahely v. Brady, 2 Dru. &W. 311. Generally choses in action do not pass by a be- quest " of goods and chattels " in a particular locality. — 'Ihe Marquis of Hertford v. Lord Low- t/ier (Countess of Zichy's case), 7 Beav. 1. The assignee of a chose in action, the assign- ment of which is available only in equity, takes iubjeot to all the equities which subsist against the assignor. — Ord v. White, 3 Beav. 357. II. — Reduced into Possession. A trustee for sale of a testator's estates sold ■)art of them, and paid the proceeds intocourt. ■V party, entitled to a share of the testatoi's pro- lerty, assigned his interest to S. by way of mort- ;age, and S. gave notice of the assignment to the Tustee, but did not obtain a stop order. The re- nainder of the estates was afterwards sold, and he proceeds paid into court under the decree in he suit. Subsequently, the assignor took the jcnefit of the Insolvent Debtors' Act. Held, hat the notice given to the trustee was sufficient o take the assigned share out of the order and lisposition of the assignor. — Matthews v. Gabb, 5 Sim. 51. The tenant for life of a tnist-fund having con- ented to turrender her interest to the reversioner. a married woman, and the latter having been ex- amined in court, and consenting, the court or- dered the fund to be transferred to her husband. — Creed v. Perry, 14 Sim. 602. A married woman, who was entitled to a trust- fund in reversion, having had the life-interest as- signed to her, the court ordered the fund to be transferred to her husband, she consenting. — Hall v. Hugonin, 14 Sim. 595. A married woman, an infant, having become entitled to £900 under the trusts of her mother's settlement, the trustees paid £400, part of it, to her husband, upon the understanding that he would settle the remaining £500 for the benefit of his wile, in the manner after mentioned. Ac- cordingly, the trustees paid the £500 to N. and M., the husband's nominees ; and by a deed made between the husband and wife and N. and M., it was declared that the latter should pay the income of the £500 to the wife, for her sepa- rate use for life, and that after her death, the principal should remain upon such trusts as she should appoint by will, and in default of ap- pointment in trust for her next of kin, according to the statutes of distribution. The wife survived her husband. Held, that the settlement was binding on her ; and that, under it, she was en- titled merely to the income of the £500 for her life, and not to the principal absolutely. — Hansen V. Miller, 14 Sim. 22. A woman being entitled to two sums, one se- cured by a mortgage in fee to herself, and the other to a trustee for her, married. The mortga- gees having been applied to, but being unable to pay the sums, the trustee paid them to the hus- band. The husband died, leaving mortgages un- transferred. Held, that he had reduced both sums into possession. — Rees v. Keith, 11 Sim. 388. III. — Not Reduced into Possession. A female infant being entitled to the reversion of a chose in action, expectant on the decease of the survivor of A. and B., she and her husband covenanted, in contemplation of their marriage, to assign it to trustees, in trust, as to one moiety, for the husband absolutely, and, as to the other moiety, for the wife and the issue of the marriage. Tlie husband died first, and afterwards A. andB. died. Held, that the wife was entitled to have the chose in action transferred to her. — Levas- setir V. Scratton, 14 Sim. 116, By articles entered into on the marriage of a female infant, she and her intended husband agreed to assign, on her attaining 21, a share of her deceased grandfather's residuary estate, to which she was entitled under the trusts of his will, to trustees, in trust for themselves and their children, and, after the lady had attained 21, a settlement was made in pursuance of the articles, but before the settled property was transferred to the trustees, the husband died. Held, that the wife's right to the property by survivorship was not barred. — Ellison v. Elwin, 13 Sim. 309. A married woman being entitled to one-fifth of a residue, joined with her husband and the four other residuary legatees in filing a bill to have the testator's estate administered, and the residue ascertained and distributed amongst the parties entitled. Pending the suit, but before the rights of the parties had been declared, the husband and ■wife joined in assigning the wife's share to A., as a security for a debt, due to him from the husband. 7-2 CHOSE IN ACTION.— COMPENSATION. The husband died, and, afterwards, a decree was made directing one-fifth of the residue to be paid to the wife. A. never presented a petition in the suit, nor took any other step to enforce his se- curity, until after the decree was made. Held, that by the decree the wife became entitled to her share free from her husband's debt. (Whether an assignment by a husband and wife of the wife's chose ill action to a particular assignee, for value, is binding on the wife surviving? Q«.) — Hulchins V. Smith, 9 Sim. 137. CHURCH. See Ecclesiastical Law. COLLEGE. See Charity. ♦ A provision in the statutes of a college that among candidates for a particular fellowship, those should be preferred who should be bom nearest to a particular place. Held to be opera- tive only in case of equality of merit. Where, by college statutes, one of the qualifications of a fellow was that he should be " in sacerdotio con- stitutus," before his admission, and the general practice of the college was to admit fellows elect on the expiration of a six months' probation from the time of their election, but the statutes pre- scribed no particular limit to the period of proba- tion; an objection to an election that the word "sacerdotium" meant the order of priesthood, and that the party elect was not, at the time of liis election, old enough to be capable of taking even deacon's orders within six months, was overruled, it being held, first, that "sacerdotium" meant holy orders generally, and, secondly, that the fellow elect might, either by a faculty from the archbishop, or by an extension of the period of probation, which the coUege were willing to grant, procure deacon's orders within the neces- sary period. — In re University College, Oxford, 2 Ph. 521. Upon the true construction of the charter and statutes of Downing College, Cambridge, a per- son who is in holy orders is not ineligible to the office of the master of the college, provided he has other qualifications thereby prescribed. 1 he charter declared that the number of fellows should be sixteen, two of them should be in holy orders, and the rest should be laymen ; it then nominated three persons, as follows, all of whom were laymen, and it provided that the remaining thirteen should not be nominated until after the completion of the college buildings, Hemble, it is not absolutely necessary that a vacancy in one of these three original fellowships, prior to the completion of the college buildings, should be supplied by the election of a lay fellow. Effect of long and undisturbed possession in influencing the decision of a visitor in cases where the right may be doubtful. — In the matter of Downing Col- lege, 2 Myl. & Cr. 642. An assignment of the emoluments of a fellow of a college in the university, is valid in equity, and effect will be given to a security thereon, out of dividends apportioned to such fellow, from time to time in respect of his fellowship. — Feistel v. King's College, Cambridge, 10 Beav. 491. Motion by incumbrancer on a fellowship for a receiver, and injunction refused by the V. C. E, — Berkeley v. King's College, Cambridge, 10 Beav, 602. COLONIAL LAW. See Foreign and Colonial Law, COMMISSION. See Pr. Commission to take Answer. — Pr, Commission to Examine Witnesses. — Lunacy. •^Pr. Partition. COMMITTAL. See Pr. Attachment. — Ph. Contempt. COMMON. In 1784 a certain tenement, and four acres, and one acre and a-half of land, dispersed in the common field of A., were conveyed to the party under whom the vendor claimed. In 1818 the devisee of the same party conveyed the tenement, with an allotment of land, described as containing three acres and one rood, allotted to the devisor under an act passed in 1801, for enclosing part of the parish of A. , in lieu of five acres of common field lands. The estate was contracted to besold in 1841. Held, that in the absence of any proof that the whole of the common lands in A. had not been allotted, or that any other allotment had been made to the same party, the court would assume that the allotment had been made in sub- stitution of the common lands comprised in the deed of 1784. — Major v. Ward, 5 Hare, 598. Under a conveyance by a lord of the manor of P., of "all those messuages, lands, tenements, com- mons, wastes, woods, underwoods, and the soil of the woods and underwoods of P.," without any reservation of manorial rights, the soil of the common of P. passes. — Cator v. Croydon Canal Co., 4 Y. & C. 405. COMPANY. See Railway — Joint Stock Company— 1 nsuran ce — Bank. COMPENSATION. Whether compensation can, under the Muni- cipal Corporation Act, be given for the profits of an ofiice which the officer voluntarily resigned : guisre. — Parr v. The Att. Gen., 8 Clk. & Fin. 409. The lessee of slaves entitled to claim a portion of the compensation money, awarded under the act for the abolition of slavery in respect of them, notwithstanding a covenant in the lease to refer to arbitration in case of loss by the abridgement of the labour of the slaves, or diminution of the return of the lessee, in consequence of any Act of Parliament or regulation of the colonial legis- lature. The act for the total abolition of slavery not being contemplated by the parties, and not, therefore, within the meaning of the clause. Gordon v. Bi-uce, 2 Mo. 261. Semble. The case of the purchase of a fee simple estate, is distinguishable from that of a COMPENSATION.— CONDITION. 73 life estate, with respect to compfensation for casualties. — Vesey v. Elwood, 2 Con. & L. 47. The Commissioners of Customs, by the direc- tion of the Lords of the Treasury, granted to A. IS a compensation for the loss of an office which tie had held in the Custom House, £500 a-year, payable quarterly by the Keceiver-General of Customs. A. assigned the allowance to B. for 1 valuable consideration, and, subsequently, took the benefit of the Insolvent Debtors' Act. The ;oui-t in a suit by B. against A. and the assignees ■>{ his estate, but to which neither the Lords of ;he Treasury nor the Commissioners of Customs were parties, restrained the Receiver-General Tora paying over to the defendants monies in his lands, on account of the arrears of the allowance, mless the Lords of the T'reasury, or the Com- nissioners of Customs, should order the contrary. Semble, that such compensation allowance, though revokable at the pleasure of the government, is issignable. — Tumsiall v. Boothby, 10 Sim. 542. COMPOSITION DEED. See Debtob and Ckeditor — Deed. COMPOUNDING A MISDEMEANOR. Securities by the plaintiff to prevent a prosecu- ion for cheating at cards, decreed to be delivered ip. — Osialdiston v. Simpson and othei's, 13 Sim. il3. COMPOUND INTEREST. See Interest. COMPROMISE. See Family Arrangement — Public Polict. Parties agreed to compromise a suit, and that le " costs, charges, and expenses, as between jlicitor and client," should be paid out of the ind. Held, that the taxing master ought to reat the suit as properly constituted, and ought ot on the taxation to consider whether the dc- ;ndants, having interests similar to the plaintiffs, liould have been made co-plaintiffs ; and, 3condly, that if any of the parties entering into le compromise intended to challenge the pro- riety of the constitution of the suit, they ought ) have distinctly stated, and have provided for in the agreement. — Lucas v. Peacock, 8 Beav. 1. A compromise under the court held not to ex- ude a point of construction, not then under insideration, — Bennett v. Merriman, 6 Beav. 30. A party who, upon compromise, had executed general release, claimed relief on the ground of large item in which he was interested, having f mistake been omitted in the account. Held, at he was entitled to relief, but that to obtain the release must be wholly set aside. — Pritt v. 'ay, 6 Beav. 603. A. B., the representative of a deceased partner, iving filed his biH against C. D., the surviving Jtner, for an account, A. B., in consideration £500, released C. D. from all claims, and the II was dismissed. By mutual error, a debt of iOOO, owing to the partnership, but which was not then known to exist, was omitted in the con- sideration by both parties : C. D. afterwards received it. Held, that A. B. notwithstanding the release, was entitled to his share of the debt, but that to obtain it the whole account must be re-opened. — Id. CONDITION. See Dkcd — Portion. A lease, which contained a larger quantity of land than was intended to be demised, was de- creed to be rectined, as to the overplus. Semble. To effectuate this by surrender, the overplus might be dangerous, as the condition in the lease of re-entry, for non-payment of rent, might be affected by the surrender. — Mortimer v. Shortall, 2 Dru. & W. 363. Testator, after giving certain benefits to his heiress-at-law, out of his real estates, revoked them, and gave them over, in case she should dispute his will, or his competency to make it, or should not conirrm it when required by the trustees. Held, that the clause of revocation and gift over was valid. — Cooke v. Turner, 14 Sim. 493. The plaintiff dehberately, and with fuU notice, accepted the benefits under his mother's wUl, which "prohibited" him from setting up any claim on account of any " error, irregularity, or impropriety," in the execution of the trusts of his father's will. Held, that he could not main- tain a suit against the executor of his father's will to make him accountable for the profits made by the employment of part of the trust fund in his business. — Egg v. Vevey, 10 Beav. 444, A testator, having an estate subject to a mort- gage of £4,460, created by liimself, devised it to A. B., in fee, " he paying the mortgage thereon;" and he devised his residuary, real and personal estates, to trustees, for the payment of his debts ; and he gave to the mortgagee, through the me- dium of his executors, £2,000 to exonerate the estate. Held, that although if the devise had been simply " of the estate," or " of the estate, subject to the mortgage thereon," the mortgage would have been payable out of the testator's general estate; yet that the words "he paying the mortgage thereon" imposed a duty on the devisee, and am'bunted to a direction, or condition, that he should pay the mortgage, or take the estate, subject to the burden upon it, so far as the same exceeded the £2,000. — Lockhart v. Hardy, 9 Beav. 379. Condition of forfeiture, in case testator's wife's sister should reside with, or dwell in the house, or place of residence, of his wife, or became part of her family. Held, not illegal.— iJirfjicay v. Woodhoiisc, 7 Beav. 437. A condition, divesting a vested gift, is to be strictly construed. — Id. A testator gave a legacy to A., in the event of B. dying unmarried, but upon the express con- dition that A. should, within three years &ora the testator's death, pay to the executors all monies due from him to the testator. Held, that the condition was substantially performed by a pay- ment after the expiration of three years, and that the legacy was payable. — Paine v. Hyde, 4 Beav. 468. The testator bequeathed the residue of his per- sonal estate to his daughter, upon trust, for her maintenance and support, until she attained 74 CONDITION.— CONFIRMATION. twenty- one, or married, with the consent of her trustees, under that age ; and upon her attaining Buch age, or her marriage, for her separate use, ■with remainder to her children ; and in case of her deatli, without issue, he bequeathed the same to certain legatees, in remainder. The testator afterwards declared, by a codicil, that, in conse- quence of a nervous debility, his daughter was unfit for the control of herself, and his will was that she should not marry ; and in case of her marriage, or death, he gave the property he had bequeathed to her over to the same legatees, in remainder. Held, that the limitation over by the codicil, being in general restraint of mar- riage, was void, as to life interest of the daughter. — yiorley v. Rennoldson, 2 Hare, 570. Whether the interest in remainder bequeathed to the children by the daughter, by the will, was revoked by the codicil ; quare. — Id. A testator gave one estate to James, upon trust, to pay to testator's wife £18 a-year for life; and after her decease he gave the estate to Thomas. The testator also gave a second estate to James, upon trust, to pay testator's wife £28 a-year for Irfe ; and after her decease he gave this estate absolutely to James ; and he declared that if James should neglect or refuse to pay the annuities from either of the said estates, when they became due, that his wife should have power of selling the estates, and to appropriate the money to her own use ; the rents being insuffi- cient to pay the annuities. Held, that the widow had a right to sell, unless James paid the full amount of the annuities, but that he was not per- sonally bound to pay them. — Button v. Button, 2 Beav. 256. Conditions annexed to appointments, made in pursuance of a power, though in themselves void. Held, not to invalidate the appointments. — Pals- grave V. Atkinson, 1 Coll. C. C. 190. A bequest was made by a testator to his cre- ditor, on condition of his paying his debt before, or to his (the testator's) executors immediately after his death. The testator afterwards accepted a composition, and the remainder of the debt continued unpaid. Held, that the legatee was, nevertheless, entitled to the legacy. — Gaih v. Burton, 1 Beav. 478. CONFESSION. See Evidence. CONFIDENTIAL COMMUNICATIONS. See Pu. Production op Documents — Solicitou AND Client. CONFIRMATION. See Estate— Power — Deed. A tenant in tail, by indenture of settlement, executed upon the occasion of the marriage of his eldest son, reciting that he was seised in fee, or in tail, conveyed the lands as if he was seised in fee, to trustees, for a term of 100 years, to se- cure a jointure for the intended wife of his son, in case certain other lands on which it was pri- marily charged, should be sold, and subject to said term, to the use of himself for life, remainder to trustees to preserve, &c., remainder, subject to a third term of 300 years, to the first and other sons of his son in tail. No fine, recovery, or dis- entailing deed was levied, suffered, or executed, by the father or by the son. A bill was filed to raise the portions for the younger children of the father, the settler, and a decree was pronounced, directing a sale of the term of 200 years ; after the decree, the eldest son of the marriage, his gi-and- father being then dead, executed a disentailing deed, and subsequently, his father having died in the interval, conveyed the lands in fee expressly subject to the term, to a stranger to the suit, by whom shortly afterwards the fee was conveyed to the widow of the father, who was a party to the suit, and against whom a decree upon seques- tration had been obtained. Held, that the acts of the eldest son operated as a confirmation of the settlement. — Massey v. Batwell, i Dru. & W. 68. A., shortly before his death, stated to the de- fendant, who was his solicitor and land agent, that he intended to make him a present of £300, and subsequently being taken ill he sent for the defendant, and desired him to retain that sum out of the balance in his hands. There was no third person on either of those occasions, and on the day following the last conversation A. died. Upon the death of A., in 1831, the defendant in- formed A.'s executors of the gift, and assisted them in making out an account of the testator's assets, in which account the £300 was treated as a gift by the testator in his lifetime, and in the inventory returned to the Ecclesiastical Court, and on the accoimt settled in the Stamp-office, a like credit was taken. In 1832, the defendant, at the request of one of the executors, furnished an ac- count in which, among other things, he stated all the circumstances under which he claimed to be entitled to this sum of £300, taking credit for it against the balance in his hands, and seeking to retain the residue of the said balance in dis- charge of certain costs due to him and his partner in a suit in the exchequer, in which he had been employed by the testator in his lifetime, and after his death for the executors, the amount of which costs, however, had not been ascertained. This account was retained by the executors without any objection. Upon a bill iiled by the executors in 1839 against the defendant, for an account of the sums due by him as agent of the estate of the testator, Held, that the gift of £300 could not be supported, that the executors had not con- firmed said gift, and were not precluded by any acquiescence fi-om disputing same. — Walsh v. Studdart, i Dru. & \V. 159. By marriage settlement, Blackaore and "White- acre were expressed to be conveyed to trustees by A., the father of B, the intended husband. At the time of the settlement A. was not in pos-^ session of Blackaore, his title was disputed, and ultimately defeated ; Whiteacre was held under leases for lives, and was subject to head rents. The settlement contained a provision that, in case A. should purchase the head rents of Whiteacre, they should be subject to the ti'usts of the settle- ment, and A. should have power to charge the property so purchased, with the amount of tlie purchase-money. By settlement, A. covenanted with the father of the intended wife for good title generally, and A. and B. covenanted with the trustees for good title, notwithstanding any act done by them. A. purchased the head rents, charged the amount of the head rent on the pro- perty, and appointed the charge to his daughter, and was the personal representative oi the cove- COXFIRMATION.— CONTRIBUTION. 75 er. Held, that by hia confirmation he had ated his right to sue on the covenant, and the benefit of the covenant vf&s lost to those ;led to estates in remainder under the settle- t. — Martyn v. M'Namara, 4 Dru. & W. 411. le plaintiff, being the devisee under his fa- 's will, on the ISth of April, 1829, four days : his father's death, executed a conveyance ■rtain lands and premises to the defendant, had been land agent and general manager he plaintiffs father, and on the same day ed an agreement prepared by the defendant, itituting him his agent at a salary of £200 per am, an:i further agreeing to continue this ry if he should remove him from the agency lOut sufficient cause. In addition to the cir- stance of this being a dealing between prin- ] and agent, residuary legatee, and executor, deed itself contained a false recital, stating at it was given at the desire of the plaintiffs er, and in consideration of his services." The ndant having been removed from the agency 830, and aU accounts being then wound up, plaintiff, in the month of December, 1830, :uted a new deed, purporting to confirm the 1 of April, 1829, and subsequently wrote two srs to the defendant, by one of which he med the benefit of a certain covenant in the 3r deed of December, 1830, and by the other ressed his entire satisfaction at the transac- . ; on a biU filed for an account and to set aside ie deeds. Held, that if the case had rested on first deed alone, the plaintiff would have been tied to relief, yet that all the subsequent acts, ticularly the letters, amounted to a confirm a- L of this original dealing, and accordingly the was dismissed without costs. — De Montmo- yy V. Devereur, 1 Dru. & Wal. 119. CONSIGNOR AND CONSIGNEE. See Caeeiek. "he appointment of a defendant, who is an ex- tor and trustee, to be a consignee with the al profits, is a matter for the discretion of the Tt ; but when such a discretion has been ex- ised, and an appointment made under it has n acted upon, the court will not afterwards hdraw its sanction from the appointment so ie. — Morrison V, Morrison, 4 Myl. & Cr. 215. L consignor, who has purchased goods on ao- nt and at the risk of his correspondent, and ivered them to the carrier, has no right by 5on of a variation of the accounts between him I his correspondent, or of a disagreement ween them, to depart from his duty and de- !r them to another person ; and a party taking u the consignor with notice of the circum- ices, is subject to the rights of the correspon- it. — Green v. Maitland, 4 Beav. 524, lode of taking accounts as against mortgagees L consignees of the produce of a West India ite. — Faulkner v. Daniel, 3 Hare, 218. i. consignee of West India estate, appointed by court, is not entitled during the continuance lis office to be paid the balance due to him out the compensation money awarded under the t for the Abolition of Slavery. — Farguharson Balfour, 8 Sim. 210. CONTRACT. See Agkeement, CONTRIBUTION. See Heir — Estates, A testator gave his farm of A. with stock, and one-third of his residuary property, to hia grand- son X., and his farms of B. and C, with the remaining two-thirds of the residue of his property, to his grandsons Y. and Z., and he bequeathed to his wife an annuity, to be paid to her during her life by his said three grandson--, share and share alike. The farms of A., B. and G. were held under terminable leases, and the testator declared that his said grandsons or their heirs " on the fall of any lease, were to be equal sufferers pursuant to their respective propor- tions." The testator, at the time of making his will, and at the time of his death, was also seised for two lives of the farm of Blackacre, which passed under the wiU as part of his residuary property. Held, thaton the fall of the leases under which A., B. and C. were held, a purchaser of Blackacre would not be liable to a demand for contribution, for that the true construction of the clause, declaring that the grandsons were to be equal sufferers on the fall of any lease, was that which confined its operation to the leases spe- cifically mentioned and devised by the wlU.^ Spunner v. Dwyer, i Dru. & W. 477. Testator devised lands to each of his sons, F., J., S. and P., and directed one-half of his debts to be paid by F., and the other one-half by J., S. and P. equally, and he charged the lands devised to them with his debts in these proportions : — A creditor of the testator filed a bill in 1818'for the administration of his estate. By the report it appeared that J. had overpaid his share of the debts, S. had paid his share with the exception of a small sum, which was shortly afterwards paid, and large sums were still due by F. and P. By the final decree in 1822, F. euid P. were di- rected to complete the payments to be made by them, or, in default, that their lands should be sold. In the same year after the decree, the plaintiff obtained an order for a receiver over the lands of F. and P., but the receiver was not actually appointed until 1834 ; between 1822 and 1839 the plaintiff filed a supplemental biU and bill of revivor, and took other proceedings in the cause, but did not prosecute them. The present supplemental bin was filed in 1839, and in the prosecution of the suit it appeared that F.'s share of the lands never was sufficient for the payment of his portion of the debts. The lands devised to J., S. and P. are liable to contribute rateably to make up the deficiency occasioned by the original insufficiency of F.'s estate to answer the demand on it, and also the costs of the suit. If it were by the default of the plaintiff that the order for the receiver was not acted on until 1834, he is not entitled to recover against the lands of J., S. or P. so much of the interest on his demand as ought to have been borne by F.'s lands, and which would have been paid by the receiver had he been appointed in 1822. — Newby v. Drew, 1 Jon. & L. 445. A testatrix devised fee simple lands and leaseholds for years to Y. and his issue, and other fee simple lands to H. and her issue, and charged all the lands so devised with the payment of 76 CONTRIBUTION.— CONVERSION'. Generally. annuities bequeathed by her will. The freeholds and leasehold are liable to contribute in propor- tion to their respective annual values, at the de- cease of the testatrix, to the payment of the annuities, and the leaseholds are not liable in the fii-st instance. — Young v. Hassards, 1 Jon. & L, 466. One of the provisional directors of a projected railway company (which was not carried into execution) was sued by the engineer, for services performed in surveying the line of the proposed railway; and judgment was recovered against him in that action. Upon a bill filed by him against his co-directors for contribution : Held, that the test of liability to contribution is liability to the plaintiff at law, and not the holding of shares in the projected company, — Lefroy v. Gore, 1 Jon. & L. 57). That the amount of the contribution of each director is to be ascertained, by dividing the total loss by the number of directors who consented to act, and not by dividing it by the number of those who were named as directors in the pro- spectus, nor by reference to the number of shares subscribed for by each director. — Id. The plaintiff having released one of the di- rectors, in order to render him a competent wit- ness on the trial at law ; Held, that if such re- lease were a proper act, to be done in furtherance of the defence of the action, his share of the loss is to be borne equally by all parties having the benefit of the defence at law ; and inquiries were directed as to that point. — Id. A person who originally is named in the pro- spectus as a director, and afterwards ratifies and consents to his appointment as such, is liable on the intermediate contracts entered into by his co- directors. — Id. A contribution was directed amongst specific legatees for payment of the debts and costs of suit. One of such legatees became insolvent, and, by his non-payment, the fund raised was deficient. The court directed an additional con- tribution amongst the solvent legatees. — Connolly V. Farrell, 10 Beav. 142. Bill by a trustee, under an act of parliament, for making and maintaining roads, who had acted in the trust, against some of his co-trustees, for contributions towards a debt, recovered from the plaintiff by bankers, who had advanced money, under the orders of the trustees, for the purposes of the trust. Directed at the hearing to stand over, giving the plaintiff liberty to add such other trustees as parties to the suit as the several defendants, by their answers, submitted were necessary parties, and liable to contribute, if they (the defendants) were liable ; the plaintiff electmg not to waive his right against such other parties. — Wilson V. Goodman, i Hare, 54. A. B., being entitled to a bishop's lease, grants a sub-lease to C. D., with a covenant " that in case he, &c., should, at any time thereafter, re- new or take a longer term in the premises de- mised than he had therein, then that he, the said A.B., &c., would, within twelve months after such renewal, and, in like manner, upon every renewal or further term of years, &c., renew to the said C. D., &c." The representative of A. B., who had renewed with the bishop, at a heavy fine, re- fused to grant a renewal to the representative of C. D., without his contributing towards the pay- ment of the fine so paid by him to the bishop. Held, on a bill filed by G. D.'s representative to compel a renewal, that the representative of A. B. was not entitled to any contribution, but was bound by the covenant, in the original lease, to renew with the representative of C. D. whenever he obtained a renewal from the bishop, — Thomaa V. Burne, 1 Dru, & Wal. 657. A. B. devised and bequeathed certain leasehold interests, held by him under the See of Water- ford and Lismore, and other property, to trustees, upon trust, for the sole use and behoof of his daughter, for and during her natural life ; and from and after her decease, to the use and behoof of ihe first son which might thereafter be law- fully begotten on the body of his said daughter, and her heirs for ever. These leasehold interests were renewed by the trustees, until the testator's daughter reached her full age, and from that period continued, from time to time, to be re- newed by the tenant for life, and large fines were, accordingly, paid for that purpose. A bill having been filed by the husband of the tenant for life, after her decease, against the remainder man, for contribution towards the fines so paid : Held, that as, upon the true contruction of the will, the tenant for life was bound to keep these interests renewed, and was only entitled to the surplus rents and profits which remained, after paying the head rent and renewal fines, such bill could not be sustained. — French v. St, George, 1 Dru. & Wal. 417- The owner of estates, in the counties of Oxford and Berks, covenanted, on his marriage, to con- vey such part of them to trustees as should be of the aim.ual value of £900, to the use of himself for life, with remainder, to the use and intent that his intended wife should yearly receive for her jointure £800, to be charged upon the same here- ditaments. The settler, not having made any settlement, in pursuance of the covenant, by his wUl confirmed the settlement, devised his estates in the counties of Oxford and Berkshire to his wife for life. He afterwards by deed revoked his wUl as to the estates in Oxfordshire, which, conse- quently, on his death, descended to his heir-at- law. The jointress insisted that she was entitled to the Berkshire estate for her life, free from any contribution towards her jointure, and that the Oxfordshire estates were exclusively liable to satisfy the covenant. But it was held, that as no intention to benefit the jointress to the extent for which she contended appeared on the face of the will, the two estates were liable to contribute rateably to the satisfaction of the covenant. — Eyre v. Green, 2 Coll. C. C. 527. CONVERSIOiSr. See Partneksuip — IIevoc,4.tiox — Wills. I. Generally 76 II. Into Peksonalty 77 III. Into Real Estate 7S IV. Pailuiie op 78 I. Gen EH ALLY. Testator directed the trustees of his will to sell his real estates, and retain £5,000 out of the pro- ceeds, and to stand possessed of that sum, in trust, for A, for life ; remainder in trust for A.'s son for life, with divers remainders over, all of wliich were void for remoteness. And he gave his personal estate, after payment of the legacies thereinafter given, and the residue of the money to aiise by the sale of his real estates, after Into Personalty. CONVERSION. Into Personalty. 77 king good the £6,000 to B., A. died a helor; the testator's heir also died. Held, t the heir's personal representative was cn- ;d to the £5,000. — Burky v. Evelyn, 16 Sim. Vhere a term of years is bequeathed to a itee for life, with remainder over, and the jtee for life, having joined with the executors ielling and assigning the term to a purcha-icr, a sum of stock, survives the duration of the (n, the legatee for life, and not the legatee in lainder, is entitled to the stock, although the ;er was not a party to the sale, f the legatee in remainder (not being a party ;he conversion) sues for a portion of the pur- ise money, in the lifetime of the tenant for , whether the court will do more than secure fund, or whether it will apportion the fund, ording to the value of the respective erests; qtiare. — Phillips v. Sarjent, 7 Hare, S. direction to sell particular parts of the testa- 's personal estate is not of much weight on the BStion of the conversion of the residue ; for the e as to the conversion does not proceed on the :sumed existence of a definite intention that ! property shall be converted, but upon the pressed intention that the legatees shall enjoy i property in succession. — Cafe v. Bent, 5 ire, 34. The direction, that the trustees should retain a r centage on the rents to be collected, fortified other expressions in the will, regarded as evi- nce that the testator contemplated the enjoy- !nt of the leasehold property in specie by the ;atees. — Id., 5 Hare, 36. Residuary gift of the whole income of the tes- or's property (which included leasehold and ig annuities) to his wife for her life at her own iposal, but not to sell without the consent of all rties, remainder to the brothers of the testator ually. Held, that construing the gift with re- ence to the other provisions of the will, the dow was entitled to the income of the property • her life, in the state of investment in which it IS left by the testator. — Hinvca v. Hinves, 3 ire, 609. Semble, in the application of the rule for cou- rting into permanent investments at the death the testator, perishable property, in which he s given interests for life, and other interests in ccession, the inclination of the court in the ter cases when the meaning was doubtful, has en in favour of that construction which would re to the tenant for life the enjoyment of the aperty in specie. — Id. II. — IXTO Peksonaltt. Testator gave all his estate and effects, of what ture, kind, or quality soever, after payment of i debts, funeral, and testamentary expenses, to istees, their heirs, executors, &c., in trust, in 50 there should not be sufficient to pay the an- ity thereafter given to his wife, to sell all his d and personal estate, and invest the proceeds the funds, and out of the dividends, or the its of his real estate until the same should be d, to pay his wife an aimuity of £300; and, er paying an annuity to another person, to pay 3 residue of the rents and dividends to his wife ' her life : and he gave all the rest of his estate a effects, after payment of his debts, legacies, and funeral and testamentary expenses, and the before-mentioned annuities, to his four sisters, to be equally divided between them, share and share alike; but if any of them should die before their shares should become due and payable, leaving a child or children, then he gave the share of such of them so dying unto such child or chil- dren. The testator left no residuary personal es- tate ; and the rents of his real estate were not nearly sufficient to pay his wife's annuity. Hut, nevertheless, the real estate remained unsold long after her death. Held, that, under the circum- stances, it was to be considered as converted into personalty by the will. — Wardy. Arch, 15 Sim. 389. Testatrix, after expressing her intention to dis- pose of all her real and personal estate as there- inafter mentioned, gave certain legacies, and ap- pointed A. and B. her executors, and gave to them and their heirs all lawful powers and autho- rities to conduct and manage her freehold estates, so that the same might at their discretion be sold and converted into money, and the net money to form part of her personal estate ; and for those and every other purpose coimected with her pro- perty, whether real or personal, she invested them, and the suirivor of them, and his heirs, executors, and administrators, with her full au- thority ; and she directed that any undisposed-of surplus of monies should be paid as she should by any future writing or will direct. Held, that the real estate was converted out and out into money, and subjected in common with the per- sonal estate, to the payment of the testatrix's debts and legacies. — Flitit v. Warren, 14 Sim. 554. The common council of London being empow- ered, by a local act of parliament, to take a free- hold house belonging to A., for the purposes of the act, at the expiration of six months after no- tice given of their intention to take the same, served A. with the required notice in September, 1840. The amount of the purchase-money was afterwards agreed upon, and an abstract of A.'s title was sent to the common council. In April, 1841, he died, having, by his will dated 1837, devised his real estate to B., and his residuary personal estate to C. Held, that the purchase- money, (which after A's death was paid into court imder the act,) was to be considered not as a part of his real, but as part of his personal es- tate, and that all his debts, &c., having been paid, it belonged to his residuary legatee. — Ex parte Hawkins, 13 Sim. 569. A sum of money directed to be invested by an executrix " in land, or some other securities," for the benefit of one life, with remainder to his chil- dren, " but in failure of these to A., and his heii-s, for ever," and which had not been invested in land, held to have been originally impressed with the character of real estate, but by the subsequent dealing therewith by the parties beneficially in- terested, to have acquired the quality of person- alty. — Cookson V. Reay, 5 Beav. 22. 'Pestator devised a real estate to his daughter for life, and then to be sold, and the proceeds to be divided amongst her children. One of the children died in her lifetime, having devised his share of the estate to his son. Held, that the de- ceased child took his share of the estate as per- sonalty in reversion, expectant on his mother's death, and, consequently, that his executrix and not his son was entitled to it. — Elliott v. Fisher, 12 Sim. 505. After a specific gift of certain leasehold houses 78 Into Real Estate. CONVERSION, Failure of. to the testator's wife for her life, she paying the ground rents and performing the covenants, with remainder over to his nephew, the testator bequeathed " the rents and profits, dividends and interest," of all the residue of his property to his wife for her life, with a gift over of the whole of the residue after her decease to other persons. Held, that the widow was not entitled to the en- joyment in specie, during her life, of that part of the residue which consisted of leasehold and other perishable property, but that the same ought to be converted. — Pickup v. Atkinson, 4 Hare, 624. Two brothers, A. and B., entered into co-part- nership without articles, and purchased land for the purposes of their trade, with money borrowed from C, and had the land conveyed to them- selves in moieties, to uses to bar dower. Shortly afterwards they mortgaged the land to C, in fee, to secure the money borrowed. A, died intestate, leaving B. his heir i B. then took D. into part- nership ; each of the firms erected trade buildings on the land, and paid for them and for the in- surance on them, and also paid the interest on the mortgage money out of their partnership funds. XJltimately B. and D. paid off the mort- gage out of their partnership property, and took a re-conveyance of the land to themselves as joint tenants in fee. B. died, and his heir, who ■was also the heir of A., claimed the land ; but the court held that it was converted into per- sonalty, and dismissed the bUl. — Houghton v. Houghton, 11 Sim. 491. Testator gave to his wife the whole of the in- terest arising from his property, both real and personal, during her life, and in case he should die without issue, he gave after the death of his wife the whole of his property, both real and personal, to his brothers and sister. The testator died possessed of leasehold and also of real pro- perty. Held, that the widow was not entitled to the leasehold property in specie during her life, but only to the dividends of stock to be purchased "with the proceeds of the sale of it. — Benn v. Dixon, 10 Sim. 636. III. — Into Eeal Est.vte. By a marriage settlement, real estates were conveyed to trustees, in trust, to sell and hold the proceeds, in trust, for the husband and wife for their lives successively, remainder, in trust, for their children, remainder, in trust, for the survivor of the husband and wife, absolutely. There was no child of the marriage. The husband survived his wife, and after her death consulted his solicitors upon his rights under the settlement, and they having advised him that he was en- titled to the whole beneficial interest in the estates, he got possession of the settlement, and of the title deeds, and remained in possession of them, and also of the estates, until his death. Held, that thereby he declared his election to take the estates as land. — Davies v. Ashford, IS Sim. 42. A testator gave his daughter a sum of money, and directed his executors, " as soon as convenient after his decease, to purchase an estate ;" and when she attained twenty-one, she was to receive the money if the land was not bought. There was a gift over. The estate was not purchased, and she invested the money in the funds. Held, on the daughter's death, that the money was im- pressed with the character of realty, and passed as such. — Simpson v. Ashworth, 6 Beav. 412. A testator directed his trustees, with the con- sent of his widow, to invest his personal estate in freehold, leasehold, or copyhold messuages, tenements, or hereditaments, and settle them upon certain trusts, which were applicable to realty. Held, that a conversion into real estate was intended.— Here/ord v. Rmenhill, 5 Beav. 51. A testator directed a part of his personal estate to be converted into realty, and settled on certain trusts. These being exhausted, and no invest- ment having been made. Held, that the residuary legatee was entitled to the fund, and took it in the character of personalty. — Id. Real estate was conveyed to a trustee, on trust, to permit a mortgagor to receive the rents and profits, and upon payment of the principal and interest of the mortgage debt, as therein men- tioned, to reconvey the estate to the mortgagor, his heirs and assigns ; but if default should be made in such payment, then that the trustee should enter into possession of the premises, and at his discretion sell the same and pay over the residue or surplus (after payment of the debt, interest and costs) to the mortgagor, his heirs, executors, administrators, or assigns. There was default in payment, but no sale of the estate took place until after the death of the mortgagor, who devised it to the plaintiff for life, with remainder over in tail. Held, that there was no conversion, but that the surplus proceeds passed by the devise as real estate. — Bourne v. Bourne, 2 Hare, 35. Where a testator directs his personal estate to be converted into real estate for several purposes, some of which iail, the heir is not, after satisfying the purposes which can take effect, entitled to the personalty as being impressed with the cha- racter of realty. — Hereford v. Ravenhill, 1 Beav. 481. A testator directed his trustees to invest his personal estate as soon after his death as a con- venient purchase could be found in a real estate, and settle it according to certain limitations. These limitations having become exhausted before the personal estate had been invested, Held, that the heir-at-law of the testator was not a necessary party to a suit to have the rights to the fund declared. — Id. IV. Pailure op. Held, upon the construction of a will, that the real estate had not been converted out and out. — Hopkinson v. Ellis, 10 Beav. 169. Testator devised his real estates to trustees, in trust, to sell, and pay the proceeds to the person or persons who, at the decease of S. M. and M. W., was or were their heirs or eo-heirs-at- law, respectively, in equal moieties. One of the trustees was the testator's heir ; and he and his co-trustees sold part of the estates, shortly after the testator's death. The heir then died ; aird after his death it appeared that the persons who were the heirs of S. M. and M. W., at their re- spective deaths, had died in the testator's life- time ; and, consequently, the trusts declared in their favour failed. Held, that the testator's real estates were not absolutely converted by his will into personalty, but only for the purpose ex- pressed therein ; and that purpose having failed, that they descended to his heir. Held, also, that the proceeds of that part of the estate which had been sold by the testator's heir and his co- trustees was sold under an erroneous impression Partition of. COPYHOLD. Mortgrge of. 79 that one or more of the intended cesiuis qui trust might be in existence ; and, consequently, that those proceeds also must be considered as part of the real estates of the heir. — Davenport v. Colt- man, 12 Sim. 610. CONVEYANCE. See Deed. COPYHOLD, See Settlement, Voluntary. I. Admission to 79 11. Partition of , 79 III. "Will of 79 IV. Mortgage op 79 V. Evidence 80 VI. Custom 80 I. Admission to. Commutation of certain manorial rights, in re» Bpect of lands, of copyhold and customary tenure, and other lands, subject to such rights ; and facilitating the enfranchisement of such lands, and the improvement of such tenure. — i & 5 Vict., c. 35, amended by 6 & 7 Vict., c. 23 ; 7 & 8 Vict., c. 55. By a local act of parliament, a company was incorporated, and empowered to purchase certain lands ; and all persons seised, possessed of, or interested in those lands, were empowered to convey their right and interest therein to the company, in the form prescribed by the act ; which, notwithstanding some of the lands were copyhold, was adapted to the conveyance of free- tiolds only. A copyholder used that form, and afterward^ died, without having made any sur- render of the tenements comprised in it to the lord of the manor. Held, that the company, being a corporation, were not entitled to be ad- mitted to the tenement, but that they were en- titled to have the customary heir of the deceased tenant admitted ; and the court declared that, on [lis admittance, he would be a trustee of the com- pany. — Grand Junction Canal Company v. Dimes, 15 Sim. 402. Devise of a copyhold estate, to three trustees, ipon trust, to permit A. to occupy the same, or receive the rents and profits thereof, for his life ; md, after the death of A., upon trust, to sell the !State, and divide the proceeds amongst the chil- Iren of A, ; and gift of the testator's residuary istate to the trustees, upon other trusts, but iharged with debts, and the costs and charges of )roving and executing " the will." Held, that he fines, payable on the admission of the de- fisees, in trust, to the copyhold estate, were not )art of the costs and charges of executing the vill, to be borne by the residuary estate, but hat such expenses of admission were a charge ipon the copyhold estate so devised. — Cole v. Tealoits, 5 Hare, 51. II. Partition of. Independently of the 4th and 5th Vict., c. 35, . 85, this court has no jurisdiction to direct the partition of copyholds, nor of customary free- holds.— .Tope v. Morshead, Beav. 213. On a suit, previous to the 4th and 5th Vict., c. 35, s. 85, for partition of freeholds and copyholds, the court directed the copyholds to be allotted in entirety to one of the parties. — Dillon v. Coppin, 6 Beav. 217, n. A bill in equity will not lie for a partition of copyholds. — Horncastle v. Charlesworth, 11 Sim. 315. The court might enforce the specific perfor- mance of an agreement, between joint tenants of a copyhold estate, to divide the land, and hold the respective parts in severalty, and decree the parties to make mutual surrenders for that pur- pose ; although, before the statute 4 and 5 Will. 4, c. 35, the court had not jurisdiction, in a mere suit for partition, to decree the partition of copyholds. — Bolton v, Ward, i Hare, 630. III. Will of. The probate of a will is not a sufficient authentication of it, so far as relates to copy- holds. — Archery. Slater, 11 Sim., 507. There is no case in which the court has estab- lished a will of copyholds, semhle, — Archer v. Slater, 10 Sim, 624. The probate copy of a copyholder's will is suffi- cient to lead the uses of a surrender to the use of his wUl. — Id. Testator expressed an intention to dispose of all his worldly effects, and directed all his just debts and funeral expenses to be fully discharged, by his executor thereinafter named, and after giving several legacies he devised all his copy- hold land to his son John, and left all the rest and residue of his estate and effects unto, and to the use of his son John, whom he thereby appointed sole executor and residuary legatee. Held, that, tak- ing the whole of the will together, the words were sufficient to pass the fee in the copyholds, and to charge them with the testator's debts. — Dover v. Gregory, 10 Sim. 393. A testator, entitled to a copyhold estate, in re- mainder expectant upon the determination of the life estate of his wife in the same premises, by his will gave the income of all his property, wherever situate, or of whatsoever kind, to his wife for her life, and at her decease he gave all the property then left by him, and of which she was to have the income for her life, to his chil- dren, and on his wife's death or second marriage, he directed his trustees to receive the rents and dividends arising from the estate and effects he should die possessed of, and to apply the same in the maintenance of his children, until the youngest should attain twenty-one. Held, that the inte- rest of the testator in remainder in the copyhold estate passed by his wUl. — Ford v. Ford, 6 Hare, 486. IV. — Mortgage op. A. mortgaged copyholds to B., by a deposit of a copy of his admission. A. died, and his heir mortgaged them to C, by deposit of a copy of his own admission, C. afterwards sold and con- veyed the estate to D. X>. had notice of B.'s se- curity. Held, that it was unnecessary to deter- mine whether C. took with notice of B.'s incum- brance, as by the deposit he could take only such interest as the heir could give, namely, his inte- 80 Custom. COPYHOLD.— COPYRIGHT. rest sjibject to the equitable charge of the ances- tor ; and, secondly, that the conveyance to D. was void as against 'B.—Tylee v. Webb, 6 Beav. 652. In 1829, A. was admitted to a copyhold, and in 1832, he deposited the copy of his admission with B. as security. In 1837, A.'s heir, after ad- mission, attempted to sell the property without effect. C. acted therein as his attorney, and D. as the clerk of C. On the 20th July, 1837, A.'s heir mortgaged the property to C. by deposit of Ms own admission. In this transaction I), acted as the agent and clerk of C, and as the agent of the heir. It appeared that in November, 1835, D. had notice of B.'s incumbrance, and that on the 19th July, 1837, D. knew that the produce of the sale was to be applied in discharge of B.'s demand. Held, that the knowledge which D. possessed in November, 1835, could not be im- puted to C. in 1837. Secondly, that D.'s know- ledge in July, 1837, that the proceeds of the sale were to be applied in discharge of B.'s demand, did not clearly shew that even he at that time re- collected or knew that which he had known in November, 1835; and, thirdly, semble, that C, who knew that the party from whom he took had been admitted only as heir, and that the an- cestor had been admitted under a copy of court- roll, dated in 1829, must be deemed that the an- cestor having the copy of court-roll might have created an equitable mortgage by deposit, and, consequently, ought to have required its produc- tion before he advanced his money, — Ti/lee v- Webb, 6 Beav. 552. V. EvIDENCEi Copies of court-roll, authenticated by the steward of the manor, are admissible as evidence, though they are not copies delivered to the tenant of the estate. — Breeze v. Hawker, 14 Sim. 350. VI. — Custom. A sun-ender by the wife of a copyholder, with his consent, and after having been separately ex- amined, to the use of a purchaser from the assig- nees of the husband who had become bankrupt, held eifectual to bar her right of free bench, if any such existed by special custom, although at the time of such surrender, the purchase not hav- ing been completed, the purchaser had not any legal estate in the premises. Doctrine as to the operation of fictitious forms of conveyance.- - Wood V. Lambirth, 1 Phil. 8. Whether a custom for a lord to prosecute mining operations under the soil, so as to destroy the buildings of the copyholders without making any compensation, is a valid custom, quare, — Hilton V. Lord Granville, 4 Beav. 130. COPYRIGHT. Of Books secured to Authors, 5 & 6 Vict., o. 46 ; extended by 7 & 8 Vict., c. 12. In Designs, 6 & 6 Vict., c. 110. Amending the laws relating to Literary Dra- matic Property, 3 & 4 Will. 4, c. 15 ; 5 & 6 Vict., c. 45. International Copyright, 7 & 8 Vict., c. 12. Publication of Lectures prevented without con- sent, 6 & 6 Will. 4, c. 66. In Musical Compositions, 5 & 6 Vict., c. 45. Extending 17 Geo. 3, c. 57, to Ireland, in respect of Prints and Engravings, 6 & 7 Will. 4, c. 59. The right and property of an author or com- poser of any work, whether of literature, art, or science, in such work, unpublished or kept for his private use or pleasure, entitles the owner to withhold the same altogether, or so far as he may please, from the knowledge of others ; and the court will interfere to prevent the invasion of this right, by the publication of a catalogue, containing a description of such work. The court will interfere, by injunction, to prevent a party availing himself, in any manner, of a title, arising out of a violation of right, or breach of contract or confidence. The cases in which the court refuses to interfere, by injunction, until the legal right is established at law, have no appli- cation to cases in which the court exercises an original and independent jurisdiction to prevent a wrong arising from a violation of right, or breach of contract or confidence. A party having, at the suit of A. and B., submitted to an injunction, restraining him from publishing cer- tam etchings, the works of A. and B., respec- tively, cannot object to an injunction, granted on the application of A., restraining the publication of a catalogue, or description of the etchings, on the ground that ft is too extensive, as not clearly identifying which of such etchuigs belong exclu- sively to A. — Prince Albert v. Strange, \ Mac. & Gor. 25; 1 Hall & T. 1. The proprietor of an Eneyclopjedia, who em- ploys a person to write an article for publication in that work, cannot, without the writer's con- sent, publish the article in a separate fcrm, or otherwise than in the Encyclopoedia, unless the article was written on the terms that the copy- right therein should belong to the proprietor of the Encyclopaedia for all purposes.— The Bishop of Hereford v. Griffin, 16 Sim. 190. The copyright in musical compositions is more extensively protected than the copyright in dra- matic i)ieces. — Russely. Smith, 15 Sim. 181. A person who attends oral lectures is not justi- fied in publishing them for profit, and an action at law will lie upon the implied contract by the lecturer, against a pupil attending oral lectures, who causes them to be published for profit. An injunction will be granted against third persons publishing lectures, orally delivered, who have procured the means of publishing those lectures from parties who attended the oral delivery of them, and were bound by the implied contract.— Abernethy v. Hutchinson, 1 Hall & T. 28. Injunction refused to restrain alleged infringe- ment of copjTight, before trial at law, where the conduct of the plaintiffs had been such as, in the opinion of the court, was calculated to induce the defendants to believe that the course taken by them would not be objected to by the plaintiffs. AVhether it is not piracy to print, at full length, cases contained in the law reports, altliough with the addition of notes, however voluminous ; — qumre. — Saunders v. Smith, 3 Myl. & Cr. 711. The question whether one author has made a piratical use of another's work does not, neces- sarily, depend upon the quantity of that work which he has quoted, or introduced into his own book. Where there is any doubt as to the ex- clusive legal title of a party claiming ah injmic- tion, in aid of that legal title the court wiU not COPYRIGHT.— CORPORATION. 81 ercise jurisdiction, -without giving an oppor- lit}' of tiyijTg the legal title, by proceedings at V. — Bmmwell v. Ilalcomb, 3 Myl, & Cr. 737. The ground on which the court protects trade irks is, that it will not permit a party to sell I own goods as the goods of another. A party II not, therefore, be allowed to use names, uks, letters, or other indicicE, by which he ly pass off his own goods to purchasers as the inufacture of another person. — Perry v. True- :, 6 Beav. 66. I'hc proprietor of a book whose copyright has en invaded, by the printing of a similar work, d who is entitled to an injunction to restrain e printing and sale of the unlawful work, is t, under the statute 54 Geo. 3, c. 156, s. 4, titled to an order for the delivery up of the egiil copies, if the book, the copjTight of which s been infringed, was not composed and enteied cording to the statute, at the time the illegal pies were printed. — Colbum v. Simms, 2 Hare, 3. Semble, there is no common law right in the thor or proprietor of a book, which is printed, the delivery up of the copies of the iUegal Drk : and, tlierefore, if such relief is given in uity it must be under the provisions of the atute for the Protection of Literary Property. Id. Whether the copies of tlie illegal work would, any case, be ordered to be delivered up in a it to which the person, at whose expense and 1 whose account they had been printed, was it a party, quare. — Id. Principle upon which the court gives an ac- unt of the profits of the unlawful work in the se of piracy. — Id., 2 Hare, 560. Tho defendants published a work, containing I original essay on modern English poetry, ographical sketches of forty-three modern poets id selections from their poems, amongst which 3re six short poems and parts of longer poems, e copyright whereof belonged to the plaintiff, le selections constituted altogether the bulk of e defendants work, but were alleged to have en introduced into it for the purpose of illus- iting the essay. The court restrained the pub- ation of the defendants' work, as being an fringement of the plaintiff's copyright. — Cambell Scott, 11 Sim. 31. Where a party seeks to restrain an infringe- ent of his copyright, it is not necessary for him specify either in his bill or affidavit the parts his woik wiiich he considers to have been rated, although he does not claim copyright in I the passages, which are the same in both >rks. — Sweety. Maugham, 11 Sim. 51. Where an injunction, restraining an inlringe- ;nt of copyiight is continued, subject to the lintiff bringing an action, the court will not ow the defendant to continue the sale of his )rk, he keeping an account ; unless the plaintiff U consent. — Id, By an agreement between an author and a okseller, after reciting that the author had pre- red a new edition of one of his works, and that 3 bookseller was desirous of purchasing it, it IS agreed that Messrs. H. (printers) should ,nt 2.500 copies of the work in type and page •responding with another of the author's works the sole cost of the bookseller, and that the ter should pay, to the former for the said tion, a certain sum by instalments ; the first be paid as soon as the edition was ready for blication, &c. ; the work to be divided into three volumes, and to be sold to the public at £3. Held, that the bookseller was not merely a pur- chaser of 2,600 copies of the work, but was in equity an assign of the copyright of it, to the ex- tent that he was to be the sole publisher of it until the whole edition, consisting of 2,500 copies, should be sold, and, consequently, that a bill by him to restrain a ijiraoy of the work was not de- mui rable. Held, also, that notwithstanding some of the passages alleged to have been pirated were contained in the jnior editions as well as in the new edition of the plaintiff's work, the plaintiff was entitled to rely upon them in aid of his title to the relief prayed. The injunction having been granted on the plaintiff undertaking to try his right-at-law, and the author declining ti allow the plaintiff to bring the action in his name, the defendant was ordered to admit at the trial that the plaintiff was the legal proprietor of the pirated work Sweet v. Carter, 11 Sim. 672. If an aUen, resident abroad, composes a work there, but publishes first in this country, he is entitled to the protection of the laws of this country relating to copyright: semble.— Bentley v. Foster, 10 Sim. 329. Lijunetion to restrain the piracy of a publica- tion to which the plaintiffs would have been otherwise entitled, refused, on the ground of delay, in making the application. — Leais v. Chapman, 3 Beav. 133. The publisher of a book filed a bill for the usual relief, but on an invasion of copyright ; but, though he had purchased the book of the author and paid for it, it did not appear that the copyright had been assigned to him. Held, that the bill was demurrable, because the author was not a party to it. — Colbum v. Duncombe, 9 Sim. 151. A work, consisting partly of compilations and selections from former works, and partly of original compositions, may be the subject of copy- right. The defendant having published a book consisting of matter pirated from the plaintiff's works, intermixed with original matter, the court without waiting till the whole of the pirated parts could be ascertained, enjoined the defen- dant from publishing his book, containing any articles pirated from the plaintiff's works. — Lewis V. FuUartoii, 2 Beav. 6. CORONER. A coroner discharged from his office for neglect of duty, by the authority of the great seal. — Ex parte Pasley, 3 Dru. Ss W. 34. CORPORA'nON. I. Pkopertt of 82 II. MunicipalOfpicbrs 82 III. When Trustees pob Charitable Uses 83 IV. Breach op Thcst by 84 V. Municipal Elections 85 VI. Construction of Charter 85 VII. Generally 85 YIII. Suits by and against 85 82 Property of. CORPORATTOX. Mitnicipal Officers I. — Property op. See Municipal Corporation Act, 6 & 6 W. 4, c. 76. —Acts for making compensation to officers in Boroughs, named under 3 & 4 Vic, c. 108, BS. 206, 210, 3 & 4 Vic, c. 109, s. 11. In 1230, M., Archbishop of Cashel, with the ciinsent of the Dean and Chapter, granted to the Corporation of Cashel the town of Cashel, and also granted to the said corporation, and their tenants, and all inhabitants of the said town, free pasture in all his lands, except meadows, &c Subsequently the corporation became seised in fee of the lands over which free pasture had been so granted. There was not any evidence to shew the time or the manner in which the corporation became seised of the soil. Held, that inasmuch as the old right of pasture in the lands of the corporation was affected with a trust for the benefit of the inhabitants of Cashel, so the soil of the lands, which were substituted for that right, was bound by the same trust whether the new right was acquired by usurpation or other- wise. A lease, for a term of ninety-nine years, made by the corporation to one of their own body, at a gross undervalue, was set aside with costs ; the lessee was ordered to account for the rents and profits since the date of the lease, 1830, and it was referred to the master to approve of a scheme for the application of the rents. To prove the grant of 1230 by M., an attested copy of an enrolment of a charter of confirmation by Roland, a subsequent Archbishop of Cashel, found amongst the Parliamentary Rolls, in the Rolls Office, and which contained an inspeximus of the charter of grant by M., was admitted as good secondary evidence. — Att. Gen. v. The Corporation of Cashel, 3 Dru. & W. 294, 2 Con. & L. 1. The act 5 & 6 W. 4, c. 76, creates a public trust of the property of Municipal Corporations, and of the fund raised for the purposes of the act, subject like other property held in trust, to the jurisdiction of the Court of Chancery. Although the act contains provisions for correcting abuses in respect of the borough property, there is nothing in it to exclude the ordinary jurisdiction of the Court of Chancery trust, to prevent breaches of trust. Held accordingly, by the Lords, (affirming the judgment of the Court of Chancery,) that a bond given by the town council of a borough to secure compensation, out of the borough fund, to an officer, for the profits of offices, some of which he continued to hold, was a breach of trust, and illegal. AVhether compen- sation can, under the act, be given for the profits of an office, which the officer voluntarily resigned, gutere. — Parr v. Att. Gen., 8 Clk. & Fin. 409. Under a wiU dated in 1624, real and personal property was vested in the Corporation of Reading, upon certain trusts, for the poor of that town, and if the corporation neglected to perform those trusts, or misemployed the property for one year, the will gave it over to the Corporation of Lon- don, in trust for Christ's Hospital. In 1639, a decree was made on an information in the Ex- chequer against both corporations, which directed the Corporation of Readhig to apply the income of the property for the benefit of the poor of that town, but in a manner different from that pre- scribed by the will, and that if the Corporation of Reading should neglect to perform the premises, or shoiUd njisemploy the property for one year, they should convey it to the Corporation of Lon- don, in trust for Christ's Hospital. The Corpor- ation of Reading neglected to perform the direc- tions of the decree for several years. In 1837, certain individuals were appointed trustees of the property in their place under the Municipal Cor- porations Act. The couit held the decree of 1 639 to be binding, and the legal estate in the property to be still vested in the Corporation of Reading, and ordered them to convey the property to the Corporation of London, in trust for the Hospital. — Christ's Hos2>ital v. Grainger, 16 Sim. 83. The Corporation of Norwich restrained from soliciting, at the expense of the borough fund, a bill in jjarliament to enable them to improve the navigation of the river which flows through that city to Yarmouth. — Att. Gen, v. The Corporation ofNorioieh, 16 Sim. 225. The Corporation of Lichfield, constituted under the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, boiTOwed £200 of M., to enable them to pay li., their then treasurer, sums which he had paid to creditors of the old coi-poration, and gave M. their promissory note for £200. They did not, however, pay over the sum to L., but suffered him to receive their then accruing income in re- duction of what was due to him, and applied the £200 to puri>oses to which the income would otherwise have been applicable. Held, that the Corporation had no authority to give the promis- sory note, as it was not given to secure a debt due prior to the passing of the 5 & 6 Will. 4, c 76. — Att, Gen, v. The Corporation of Lichfield, 13 Sim. 547. Where money, the produce of the sale of cor- poration lands, has been paid under an act of parliament, authorizmg the court to make such order concerning it, for the benefit of the parties interested, as the court shall think fit, it is not competent for the court, since the stat. 5 & 6 AVill. 4, c. 76, s. 92, (the Municipal Corporation Act,) to order the principal money to be paid in dischai-ge of coiporation debts, accruing since the passing of that act. The dividends only can be applied for that pui-pose. The trusts of the Municipal Corporation Act are applicable to per- sonal, as well as real, estate. — Ex parte. Corpora- Hon of Hylhe, 4 Y. & C. 55. This court still has jurisdiption to relieve against collusive alienations of corporate property, notwithstanding the remedy provided by the 97fli section of the Municipal Corporation Act ; but as by that act corporate proi)erty is applicable to public purposes, the Attorney General must sue, in such cases, in conjunction with the corporation. — Att. Gen. v. Wilson, 9 Sim. 30. II. — Municipal Ofpicebs. The convention of the Royal Burghs in Scot- land exists under the authority of an act passed in the reign of James 3, U.u. 1487). It con- sists of commissioners or delegates &om the Royal Burghs, meets annually, declares the amount of money required for certain purposes to be raised by the various burghs, holds its sittings for two or tliree days, provides by emnual votes for its expenses, and is then dissolved. Two persons were appointed conjunct clerks of the Con- vention, and their appointments were declared to be " with benefit of survivorship," and " wiLh survivancy to the longest liver of them ;" antl the office was given to them " as freely and fully as any of tlieir predecessors had held it ;" and the emoluments were declared to belong to one of them " during his natural life," the other Municijjal Officers. CORPORATION. When Trustees, Sfc. 83 13 to have the benefit of the survivOTship. The iivention in one year raised the salary of its ;rks ; in another it lowered their salary below i original amount, and it also increased their ities. There were instances of express ap- iiitmcnts " during pleasure " and of dismissals, eld, by Lords Brougham and Cotteiiham (Lord impbell dissenting), first, that this was not a c olKce, for that the expressions in the appoint- 2iit were explained by the circumstances under tiicli it was madej and, secondly, that the salary ight be raised or lowered at the pleasure of the mvention. Per Lord Campbell : The Convention of Royal arghs is a corporation. On the facts of this se, and the te: ms of the appointment, the office granted fof life ; and the Convention cannot duce the salary below its ancient and original nount; but the Convention can reduce it to at amount, and may, perhaps, cast new duties I the officers. — Convention of Ri.yal Burghs in •otland V. Cunningham and Bell, 9 Clk. & Fin. [4. Under the Municipal Corporation Act, officers removed" under its provisions, became en- tied to compensation. A. B., the then town erk, made no formal suiTender of his office, nor ly attempt to procure his re-appointment, or to intest the election oi C. D., who was appointed iwn clerk. Held, that this constituted a re- oval of A. B, from his office. — The Att, Gen, v. he Corporation of Poole, 8 Beav. 75. For the purpose of establishing a claim to com- :nsation for the loss of a connected or depen- mt office, it ought to be shewn, first, that the fice was connected, or understood to be con- ;cted with, or dependent upon, the corporate fice lost ; and, secondly, that the loss of it was innected with the loss of the principal office ; It it is not required, by the act, that the con- :cted or dependent office, or the office under- ood so to be, should be itself a corporate body. -Id. Held, that the circumstance of a town clerk iving continued, for some time after he m as re- eved from the office, to perform the duties of le offices of clerk of the peace and clerk of the agistrates until other clerks were appointed, did )t in any way interfere with his right to com- insation for the loss of those offices, — Id. The town clerk of Poole, who had held several Eces at the time of the passing of the Municipal orporation Act, was removed. Held, that he was ititled to compensation for the following con- ;cted offices : — solicitor to the corporation, clerk ' the peace, magistrates' clerk, solicitor to the lay committee, solicitor to the water bailifi', and othonotary of the weekly court of record ; but at he was not entitled to compensation for the Bees of solicitor to the coroner, under-sheriff, licitor to the overseers and guardians of the )or of the town and county, and solicitor to the mp and watch commissioners. — Id, ^Vhere a party is in the legal and undisputed issession of a municipal office, it is competent r him, by suspension and interdict, to protect s office against the unauthorized intrusion of a irty who has no title to the office ; but it does it put into office a party who has the abstract ;ht to it, — Fleming v. Dunlop, 7 Clk. & Fin. 43. A bill of suspension and interdict is an in- mpetent procedure to try and determine the srits of contested municipal elections.— -/rf. Procedure by bill of suspension and interdict nnot be taken against a party in possession of an office, to question his right thereto, by a party who is not in possession ; nor can it apply to a case where neither party is in possession ; nor to acts done anterior to the acts of election j nor can the right of election be decided by it. — Id. An interlocutor passing a bill of suspension and granting interdict, is subject to appeal to the House of Lords, within the 48 Geo. 3, c. 151. — Id. The Municipal Corporation Act has not de- stroyed the individuality of the old corporation, but has merely varied the mode in which the officers are to be chosen. — Att. Gen. v. Wilson, 9 Sim. 30, If some of the members of a corporation are in- strumental in unlawfully dispossessing the cor- S oration of its property, they are personally able. — Id, III. — When Trustees foe Chakitable Uses. The act 39 Eliz. c. 5, enables " all and every person and persons" to found hospitals for the poor, and to incorporate them, a municipal cor- poration included in the words " every person and persons," and may exercise the powers given by the act. A voluntary conveyance of real estates to a charity is not defeated by a subse- quent conveyance of them for valuable considera- tion. Real estates conveyed to and vested in an hospital founded under the act 39 Eliz. c. 5, cannot be alienated by the hospital nor can it confirm an alienation of them by the founders. A municipal corporation voluntarily founded an hospital under the act 39 Eliz. c. 5, and purchased real estates, and caused them to be conveyed to the hospital ; but which were kept under the con- trol and management of the founders, who after- wards sold and conveyed them for valuable consideration, granting to the purchasers coven- ants for title and indemnity against the claims of the hospital. The founders applied the money produced by the sale, together with other monies of their own, in the purchase of an estate at W., and they paid annually to the hospital more than the rents and profits of the sold estates. The hospital at first concurred in that arrangement, and acquiesced in it for 120 years, after wliich the Attorney General, and the hospital, by in- formation and bill, claimed a part of the estale at \V„ bearing the same proportion to the whole estate, that the produce of the sale of the hos-' pital's estates, bore to the whole purchase money of the estate at W. Held, first, that the estates conveyed to the hospital were well vested in it, and could not be sold without an act of par- liament, and therefore a decree directing the hospital to confirm the sale is in that respect erroneous. Secondly, that if the hospital's con- currence, and long acquiescence in the arrange- ment for the sale of its estates were held to bar its right to recover them, or a commensurate portion of the estate of W., the Attorney General's right to protect the charity still existed. Thirdly, Semble, that though the hospital's bill should be dismissed the Attorney General's information would be retained. — The Mayor of Newcastle v. The Attorney General, 12 Clk, & Fin. 402. A charity was founded some time in the 12th century, and was commonly called " The Master, Brethren, and Sisters of the Hospital of St. John the Baptist." In the time of Charles 2 the mastership of the hospital, and the lands, &c. belonging to it were granted to the Corporation of Chester. The leases of the hospital lands had 84 When Trustees, S^o. CORPORATION. Breach of Trust by. never been granted by the corporation under their common seal, but in the leases of the cor- poration were described as being the master of the hospital, and the rents were reserved to the master, brethren, and sisters. An information was filed against the Corporation of Chester, and the parties who had been appointed trustees of the charity estates, under the Municipal Corpora- tion Reform Act, to ascertain the charity lands, and to have a scheme for the due regulation of the charity, to which information the master, brethren, and sisters of the hospital were not miide parties as a corporate body. It was decided by the court, that they did not form a corporate body, and consequently an objection that they ought to have been made parties to an informa- tion as a corporation was not sustained. The objection that the hospital ought to have been a party to the information as a corporate body, was not taken by the Corporation of Chester until several years after the decree had been made. Whether such an objection if valid would be allowed to be taken by such a party, after such a lapse of time, qucsre. — The Att. Gen, v. The Corporation of Chester, 1 Hall & T. 46. Generally, a charitable gift must be accepted according to the declared intention of the giver, but a corporation not being bound to accept an accession to its foundation, may consent to receive it with qualifications, which may be collected either from documents or constant usage adopted at the time and persevered in downwards. — The Att. Gen. v. The Drapers' Co., 6 Beav. 382. By act 5 & 6 "Will. 4, c. 76, s. 71, it is enacted, that all the estate and interest of such bodies corporate, or members thereof, as were seised or possessed of any real or personal estate in trust for charitable uses, should in respect of such uses and trusts, continue in the persons who at the time of passing the act (1835) were such trustees until the 1st day of August, 1836, or until parlia- ment should otherwise order, and should there- upon utterly cease and determine. Provided that if parliament should not otherwise direct on or before the said 1st of August, the Lord Chan- cellor, or Lords Commissioners of the Great Seal, should make such orders as they should see fit for the administration, subject to such charitable uses and trusts as aforesaid, of the said charity estates and funds. Parliament did not pass any subsequent act on the subject before the 1st of August, 1836. Held, that the administration of the charity estates and funds, did not continue in the persons so described after the 1st of August, 1836 ; and that it was competent to the Lord Chancellor after that day to make orders for the appointment of new trustees for their administration, — Bignold v. Springfield, 7 Clk. & Fin. 71. Orders made by the Lord Chancellor in the matter of such charitable estates and funds, by viitue of the said act, and also of the act 52 Geo. 3, c. 101, which last gives an appeal to the House of Lords, are subject to such appeal. Whether such orders made under the act 6 & 6 Will. 4, 0. 76, alone are subject to appeal, qumre. — Id. A summons of declarator charged the lord provost, magistrates, and town council of Glas- gow, with the breach of an agreement entered into by their predecessors with regard to the adminis- tration of a trust fund, and prayed " that the said lord provost, magistrates, and council, and A. B. C. D. &o." reciting the name of every one of them, ".for themselves, and as representing the burgh and community of Glasgow, ought to be discerned." The Court of Session pronounced an interlocutor discerning " against the defenders in terms of the conclusion of the libel," declaring them liable in expenses, and especially directing that no part of the expense of this litigation should form a charge on the trust fund. Held, that the interlocutor thus appearing to affect the interests of each individual member of the cor- poration, any one member was by law entitled to appeal against it. — Gray v. Forbes, 6 Clk. & Fin. 357. IV. Bbeach op Trust by. A corporation may institute a suit for setting aside transactions fraudulent against it, although carried into effect, in its name, by members of the governing body; and that right is not affected by the Attorney General having also power to call in question such transactions. The members of the governing body are the agents of a corpora- tion ; and if they exercise their functions, for the purpose of injuring its interests, and alienating its property, they are personally liable for any loss occasioned thereby. — Att, Gen, v. Wilson, 1 Cr. & Ph. 1. Liability of the new municipal corporations, and the ratepayers of their boroughs, for the breaches of trust of the old corporations, and the costs of obtaining redress. — Att. Gen, v. The Corporation of Leicester, 9 Beav. 646. The new corporations succeed to the debts and duties of the old corporations whose place they now occupy, as well as to their estates, property, and rights. — Id. Where a decree has declared that a corporatioii is liable to make good the loss occasioned by a breach of trust, the court will not specially charge the loss upon the general corporate property, but will leave the plaintiff to enforce Ms remedy by the usual process against a corporation. An order, therefore, contained in such a decree, and directing inquiries into the corporate property, and the special trusts to which it was subject, with a view to charge the loss upon such por- tions of that property as should not be subject to any special trust, was discharged. — Att, Gen. v. Corporation of East Retford, 3 Myl. & Cr. 484. The funds belonging to the municipal corpora- tions of boroughs, named in schedules A and B of the 6 Will. 4, c. 76, (the Municipal Corporation Act) became, upon the passing of that act, sub- ject to certain public trusts, to be exercised by the new council only in the manner and for the pur- poses prescribed by the act. An appropriation of such funds made by the old corporation, after the passing of the act, but before the election of the new council, and having for its object to endow the churches and chapels of the esta- blished church, within the borough, with fixed stipends, for their several ministers, is not an ap- propriation warranted by the act, and is, there- fore, a breach of trust. The ordinary jurisdiction of the court over such a transaction, by means of an information, seeking to have the funds re- called and the appropriation rescinded, as being a breach of trust, is not arrested by the speciid remedies provided in certain cases by the 97th section of the Municipal Corporation Act. ' Semble, Those remedies would not be appli- cable, in any case, to a transaction of the descrip- tion. — Att, Gen, v. Aspinall, 2 Myl. & Cr. 613. Construction of Charter. CORPORATION. Oenerally. 85 V. Municipal Elections. A custom of the City of London, that when tie inhabitants of any ward shall three times lect and return to the Court of Mayor and Lldermen the same person to be alderman, who hall be, by the said court, according to another ustom of the said city, adjudged on such three eturns not to be a fit person to support the lignity and discharge the duties of the office, the aayor and aldermen may elect and admit a lit lerson, being freeman, out of the whole body of he citizens, to be alderman of such ward, is a alid custom in law. Held, (affirming the judg- lent of the court below) that this custom is not brogated by the act 11 Geo. 1, o. 18, " for regu- ating elections within the City of London," by fhich it is enacted that the right of election of Idermen, and for the several wards, shall belong freemen of the city, being householders of the yards, and to none other whatsoever ; nor by he bye-law of the city, (13 Anne) by which, fter reciting that by the ancient custom of the ity, when any ward became vacant of an alder- nan, the inhabitants thereof having right to vote, vere wont to choose one person only, being a reemau, to be alderman of the ward ; for re- noving that custom, it was enacted, that from henceforth, in all elections of aldermen of the aid city, at the wardmotes, there shall be elected inly one able and efficient citizen smd freeman to le returned to the Couit of Mayor and Alder- nen, which person shall be by them admitted to he office. — The King v. Johnson, 6 Clk. & Fin. 41. The lists of persons qualified to elect or be ilected to municipal offices, in the burghs of •cotland, must be made up on the 16th of Sep- ember in each year, by the town clerk of each >iirgh, in conformity with the sherifis' lists of )arliamentary voters for such burghs, — Monteith '. McGavin, 5 Clk. & Fin. 409. The town clerk has no authority to alter the )urgh lists then made up, even upon intimation hat the sheriffs' lists had been subsequently iltered by the Court of Review ; but such burgh ists must remain until the 16th of September in he following year, and then be altered in con- ormity with the then existing parliamentary lists or the burgh. — Id. Where, therefore, a person's name stood on the heiifis' lists on the 16th of September, and was ransferred by the town clerk to the burgh list m that day, such person was entitled to elect and le elected to a municipal office, in virtue of so ippearing on the burgh lists, though before the leriod of the municipal elections his name had leen, by the decision of the Court of Review, re- noved from the parliamentary lists made up by he sheriff. Qiuere, whether, in such a case, his ight to elect or be elected can properly be dis- ussed in the courts of Scotland by a bill of sus- lensiou and interdict. — Id. VI. — CONSTIIUCTION OP ChARTEE, By a charter of Philip and Mary, in Latin, of January 6, 1553, after reciting that eighteen iresbyters, fifteen clerks, and twelve poor men, lad been lately maintained at Boston, out of the ssues of certain guilds, since dissolved, and thereof the possession had been seized by the rown, to the grief of all the catholic inhabitants here, it was witnessed that considering a provi- ion for divine worship and the maintenance of the poor, and the education of youth, belonged to the regal office, and at the humble petition of the mayor and burgesses, and in consideration of the charges which they sustained in and about the reparation of the bridge and port, and that they might be better able to sustain these charges, the Idng and queen granted certain lands to the cor- poration, to the mtent that they should found and maintain a grammar school in Boston, and a schoolmaster, two priests to celebrate divine service in the parish church, and four poor per- sons to pray for the souls of the king and queen, and their ancestors, with a direction to apply all the rents and profits, " ad sustentationem peda- gogi et suppedagogi scole predictse, ac cappella- nos et pauperes predictos, et alia necessaria pre- dict' burgum scholam capilanos et pauperes predict' et sustentationem et manutencionem eorundem tantummodo tangentia et concernen- tia." Held, that the trusts were for religious purposes, education, and the relief of the poor exclusively. Effect of usage in the construction of charters. — Att. Gen. v. The Corporation of Boston. 1 De. G. & S. 519. VII. — GENER.iLLT. A devise to a corporation for its own purposes, though void at law, is good in equity. — T)ie lu- corporaled Society v. Richards, 1 Dm. & W. 258. The proper style of municipal corporations in cities is, "the Mayor, Aldermen and Citizens," and not "the Mayor, Aldermen and Burgesses," of the city. — Att, Gen. v. The Corporation of Wor- cester, 2 Phil. 3. Under the Municipal Corporation Reform Act, the corporation of a city ought to be styled, " The Mayor, Aldermen and Citizens of the City." — Corporation of Rochester v. Lee, 15 Sim. 376'. Some forms prescribed for the government of a corporation may be imperative, and others di- rectory only. — Foss v. Harbottle, 2 Hare, 495. Vni. — Suits by and against. A judgment, obtained by confession, against the old corporation of D., subsequently tn the 16th February, 1836, is not conclusive against the new corporation, in a case where the court is doubtful whether the demand upon foot of which the judgment was obtained, was or was not within the terms of the 6 & 7 W. 4, c. 100. and it was held, upon an information filed by two of the burgesses of the new corporation, to stay the issuing of the execution against the goods of the corporation, upon foot of that judgment, that they were entitled to have an issue directed to try whether or not it was originally such a demand as came within the provisions of that act. — Ait. Gen. V. The Corporation of Dublin, 1 Dru. & W. 545. Course of proceeding to take a bill pro confessn, against a corporation. — Brickwood v. Harvey, 8 Sim. 201. Municipal corporations, as altered by the Mu- nicipal Corporation Act, (5 & 6 W. 4, c. 76) are but a continuance of the old corporations, and where the new corporation was made party to a suit in respect of a breach of trust committed by ^their predecessors, it was held, they were not en- titled to costs.— ^H. Gen. v. Kerr, 2 Beav. 420. Demurrer to an information seeking relief against the corporation of Poole, and the person 86 Generally. CORPORATION.— COVENANT. GeneraUi/. who had been town clerk, before the passing of the MunicipEil Corporation Act, in respect of the compensation awarded by the council to such town clerk, under the provisions of that act allow- ed. — Alt. Gen, v. The Corporation of Poole, 2 Keen, 190. Demurrer allowed to an information filed for the purpose of setting aside a mortgage, and ap- propriation of the money thereby raised, to the endowment of the clergy of Liverpool, made by the old council of the town of Liverpool, in the interval between the passing of the Municipal Corporation Act and the election of the new councD, there being no allegation in the informa- tion of fraud, collusion, or improvidence, the new council having refused to take any proceedings for the purpose of calling in question the acts of their predecessors, and the application of the property for the more secure endowment of the members of the established church, not appearing to the court to be other than an application which under the circumstances, must legally be con- sidered as beneficial to the inhabitants of the borough, — Att. Gen. v, Aspinall, 1 Keen, 513. Demurrer to an information against the Cor- poration of Nm-wioh, praying for an injunction to restrain certain applications of the city fund of the borough and city of Norwich, which, as the information alleged, were intended to be made in violation of the Municipal Corporation Act, 5 & 6 W. 4, e. 76, allowed, under the circumstances. Whether the court has jurisdiction notwith- standing the provisions of the Municipal Corpora- tion Act, to restrain misapplications of the borough fund of the corporation, queere. In the ordinary management of the borough fund, a court of equity ought not to interfere, but in a case of misapplication, calling for a specific remedy, semble, that the jurisdiction of the court is not excluded by the Municipal Corporation Act. — Ait. Gen. v. The Corporation of Norwich, 1 Keen, 70O. COUNSEL. See Pe. Counsel — Barkister. COVENANT. See Lease — Mortgage — Limitations, Stat, or — Vendor & Purch. — ^Hdsb. & Wipe. I. Gexerailt 86 II. Foil Quiet Enjoyment 87 III. For Title 87 IV. Running with Land 88 V. When Oppbessivb 88 VI. To Renew 88 VII. To Proddoe Documents 88 VIII. To Stand Seised 89 IX. Breach op 89 X. In Farm Lease and not to BuRif . . 90 XI. ^. TO Pay Interest 90 XII. To Settle 90 XIII. Joint and Several 90 XIV. Who Bound By 90 XV. Building , 90 XVI. Voluntary ,...,,,..,,.. 92 I. — Generally. A. demised to B. and his heirs, certam lands excepting and reserving unto A., his heirs, and Bssigns, all mines, minerals, and other royalties, to hold for lives renewable for ever, at a lump rent, and it was agreed that it should be lawful for A. his heirs and assigns, at all times during the term into the demised premises (the dwelling house excepted) to enter and there to dig and search for mines, and further that it should be lawful for A. his heirs and assigns to have, hold, and enjoy, by separate and distinct bounds, 200 or 300 acres, at the election of A. his heirs and assigns of the demised premises (the mansion house and orchards excepted) most contiguous to the said mines, in case any should be found therein, he the said A, his heirs and assigns making an allowance and abatement unto B. his heirs and assigns for such acres, out of the reserved yearly rent, according to the rate and proportion of the rent thereby reserved and payable out of the demised premises. Mines having been discovered and the landlord having selected the land to be taken, the court decreed a specific perfonnance of the contract, a court of law having decided that the clause in the lease was a covenant and not a condition of re-entry, but quaere whether it is not a condition and not a covenant. — Croker v, Orpen, 3 Jon, & L. 589. Semble, The Landlord must take the acres in one place and at one time, not part here and part there. — -Croker v. Orpen. 3 Jon. & L. 589. It being established that mines were discovered on the lands, the court will not enter into the consideration whether they are profitably worked or not, or what is the motive of the landlord in enforcing the contract, but if the mines were colourably worked for the purpose of making out a claim to the land, the court would not give effect to the contract. — Id. Whether the landlord has taken the lands most contiguous to the mines, is a question of fact, and a jury having found that he did, although some of the lands selected were outside what would be the circular boundary of the like quantity of land, having for its centre the com- mon centre of the mines. The court held that the selection was properly made — Id. The landlord is entitled to hold the lands taken by him, not merely during the existence of the mines, but absolutely during the whole interest granted to the lessee in them. — Id. The abatement of the rent in consequence of the assumption of the land by the landlord, is to be in proportion to the quantity of the land selected irrespective of its quality as oompaied with the quality of the rest of the demised premises — Id, Semble, The landlord is not bound to make compensation for improvement on the reassumed lands. — Croker v. Orpen, 3 Jon. & L, 589. A. being seised in fee of premises, subject to an entire rent by indenture of the 14th of May, 1793, sold a portion of them then in the possession of B., who was his attornej- and tenant, to him his heiis and assignes, and by the same indenture after reciting that A. was seised of other premises which with the premises so conveyed, were sub- ject to the quit rent, and that B. had agreed to indemnify A., his heirs and assigns, and the other premises, the estate of A from the payment of the quit rent, B. for himself his heirs executors and administrators covenanted with A. his heirs and assigns that B. his heirs and assigns would at all times thereafter pay the quit rent of all the premises, as well of such as were thereby sold to him as of the other premises, the estate of A. would at all times thereafter save harmless and indemnify A. his heirs and assigns, und his and Generally. COVENANT. For Title 87 ;heir real and personal estate from payment ;hereof. Held, in a suit, instituted for that pur- jose, by an assignee of the unsold lands asalnst 1 person who claimed as a volunteer under B., ;hat the sold lands were specifically bound to ndemnify the unsold lands, against the jjayment of the quit rent. Semble, That the proper form of indemnity is a ;rant of a rent charge, in fee equal in amount to the quit rent, and to be issuing out of sold lands. —Hatton V. Waddy, 2 Jon. 641. Equity will interfere in the case of a breach of covenant, notwithstanding the covenantee might not have recovered damages for it at law. — Elliot V. Turner, 13 Sim. 477. Equity will not relieve against a breach of co- venant, unless the payment of money will be an adequate compensation for it. — Id. The lessee of an inn covenanted to use and keep it open as an inn during the term, and not to do any act whereby the licenses might become forfeited. The lessee having threatened to do certain acts inconsistent with the first branch of the covenant, the lessor obtained an ex parte in- junction, restraining him from discontinuing to use and keep open the premises as an inn, and from doing any act whereby the licenses might become forfeited or be refused. But the injunc- tion was afterwards dissolved, the court having no jurisdiction to restrain a person from discon- tinuing to use premises as an inn, which was the same in effect as ordering him to keep an inn ; and no intention having been shewn on the part of the defendant to violate the negative part of the covenant. — Hooper v. Brodrick, 1] Sim. 47. A party covenanted " to do and perform all such acts, matters, and things, as should be re- quisite for continuing and keeping on foot a policy." Held, that the covenant could not be read negatively, as if he had covenanted to do no act whereby it would become void ; and, there- fore, that the covenant was not broken by the sui- cide of the covenantor, whereby the policy became forfeited. — Dormay v, Borrodaile, 10 Beav. 335. A. covenanted with B. to pay him a certain Sinn, by bills of exchange, drawn by B. upon and accepted by A. A. only gave B. a bill for part of the s\im, and that bill was dishonoured. Held, that B. was a specialty creditor of A. for the whole sum. — Copeland v. Martin, 9 Sim. 433. Covenants in marriage articles, entered into by the fathers of the intended husband and wife, though expressed to be dependent. Held, on be- h.ilf of the issue of the marriage, to be indepen- dent of each other. — Ltai/d v. Lloyd, 8 Sim. 7. The testator gave the residue of his estate to trustees, upon trust, to divide the same amongst the several persons who were his creditors, at the time he executed a certain conveyance for their benefit, their executors and administrators ; such payment and provision to be made to and Braong,st such persons respectively, their respec- tive executors or administrators, rateably and in proportion to the quantum or amount of the ori- ginal debt or debts due from him to such person or persons, respectively ; and if any person or persons, claiming under such bequest, should not give notice of such claim to the trustees within two years of the testator's decease, such share or shares of the residue to go to certain residuary legatees. Held, that the residue was to be di- vided into parts corresponding in number and proportion with the original debts. — Philips v. Philips, 3 Hare, 281. That the shai-es attributed to the debts of cre- ditors who died in the lifetime of the testator did not lapse by their death. — Id. That the surviving partners were the persons to receive and give receipts for the share of the residue attributed to a joint debt ; and that it was not necessary, before carrying over the shares in tliis suit, to inquire into the state of the accounts as between the surviving and the repre- sentatives of the deceased partners. — Td. That a claim made by the representatives of a pai-tner, beneficially interested in a joint debt, was a sufficient claim, although such partner was not the last siurvivor of the partners in the firm to which the debt was owing. — Id. That the share of the residue attributed to a debt, in respect of which no claim was made, be- longed to the residuary legatees. — Id. That the amount of the residue, whether as ex- ceeding or falling short of the amount of the un- paid debts, did not affect the construction of the will.— 7rf. Semble. That the trust must be considered as proceeding upon a mixed principle of bounty and obligation ; and that the vi-ill must be read, as to some extent, directing pajTuent of debts. — Id. Qutsre, as to the construction of such a bequest, if the debts had all been paid in full before the date of the will. — Id. II. For Quiet Enjoyment. A lessor covenanted with his lessee for quiet enjoyment of the demised premises, and after- wards devised his real estate, subject to and charged with the payment of his debts. After the death of the lessor the lessee was evicted, and brought his action of covenant against the executors of the lessor, who pleaded pletie administravit ; whereupon the lessee took out judgment of assets, quando, &o., and procured the damages to be assessed upon a writ of inquiry. He then filed his bill against the devisers of the lessor for satisfaction of the damages and costs out of the real estate of the lessor, devised by his will. Held, that although damages recovered in an action of covenant, brought in respect of breaches of covenant, happening after the death of the testator, were not a debt within the statute of fraudulent devises, (3 & 4 Will. & Mary, c. 14) yet they were a debt payable out of the real estate of the testator, under the charge of debts thereon, created by his wUl. — Morse v. Tucker, 5 Hare, 79. That the devisees were not bound by the action brought, or the inquiry as to damages had against the executors ; but were entitled to have tlie question of the liability of the estate of the testator, on the covenant, tried in an action, defended by the devisers themselves. — Id. The lessee having recovered damages upon the covenant in the action directed by the court, to which the devisees were parties, was held entitled, as against the devisees, to the amount of such damages :^to his costs of the ejectment — of the action brought against the executors — of the action on the covenant, to which the devisees were parties — andofthesuit.andalso to intereston the damages and costs, to be computed from the time the amount was ascertained, and judgment entered up, in the action to which the devisees were parties. — Id^ III.— Foe Title. A., on the marriage of his son B., settled 88 Running with Lands. COVENANT. To produce Documenis. among other estates one of which he had been but was not then in possession, and as to which he was then in litigation, and to which he was ultimately declared not to be entitled ; by the settlement he covenanted generally with F., the lady's father, for title to all the lands, and he and ]J. entered into, with the trustees, the ordinary qualified covenants. By the settlement it was provided that if A. should purchase the head rents and inheritance of any of the settled estates which were held for lives, his purchase should be subject to the trusts of the settlement, but that he should have power to charge the estate so purchased with the purchase money. A. did so purchase, and charged the estate with the purchase money in favour of his daughter, D., without cansideration. Held, that this appointment was as valid against A.'s general creditors as the settlement of any other part of his property would have been, and would therefore prevail against them, unless A, had been largely indebted at the time, and that even if the eviction, above-mentioned, were a breach of the general covenant, the parties claiming under the settlement were merely general credi- tors, but that, semble, the general covenant was cut down by the subsequent qualified covenants. — Martyn v. M'Namara, 2 Con. & L. 541. Held, also, that the person to sue on the general covenant, after F.'s death, was his personal representative, and that this in the present case being B., the tenant for life under the settlement, who had confirmed the appointment to D., lie was barred from suing on the covenant, and the benefit of it, as against I). 's charge, was gone. — Id. Qxum-e, As to the validity of the covenant as to the property evicted, it being at the date of the settlement in litigation. — Id. Estates were devised to A. for life, remainder to B. for life, remainder to his sons successively in tail male. A. and B., during the infancy of E.'s eldest son, obtained an act of parliament vest- ing the estate in trustees, in trust, to sell. Held, that A. and B. must covenant with the pur- chaser for the title. — In re London Bridge Acts, 13 Sim. 176. If settled estates are sold under a power to sell them, with consent of the tenant for life, he must covenant for the title. — Id, IV. Running with Lands. A., an owner of land in the township of S., entered into articles of agreement with B., the lessee of a neighbouring colliery, by which he agreed to grant to B. a lease of that part of the land, for the purpose of forming a railway for the conveyance of coal to certain wharfs ; and B., for himself, his executors, administrators, and assigns, agreed with A,, his heirs and assigns, to convey upon the railway all the coal to be gotten in from the colliery, or from any other lands or grounds in the township ; and to pay A., his heirs and assigns, twopence for every ton of coal so con- voyed. B. consigned his interest in the colliery, and in the lands taken, under the articles of agreement, for forming the railway, together with the use of the railway, to C, Held, that the agreement to convey upon the railway all coal, &c., and to pay twopence per ton in respect of it, ran with the land ; and, consequently, that the agreement was binding on C. — Hemingway v. fernandes, 13 Sim. 228. v. When OrpRESSiVE. A lease of mines contained a covenant that, if the lessor should, at any time before the expi- ration or determination of the lease, give notice in writing to the lessee of his desire to take all or any part of the machinery, stock in trade, imple- ments, &c., in or about the mines, then the lessee would, at the expiration of the lease, deliver the articles specified in the notice to the lessor, on his iiaying the value of them ; such value to be ascertained in the manner therein mentioned. Held, that the covenant was so injurious and op- pressive to the lessee, that the court ought not to enforce it, or to grant an injunction to prevent a breach of it. — Talbot v. Ford, 13 Sim. 173. VI. To Renew. In 1779, A., a lessee under a dean and chapter, for twenty-one years, renewable every seven, underlet to B. ; and covenanted, within two months after the dean and chapter should have renewed the lease under which he then held, to execute to B. a lease for such further term, as would make up sixty-one years, from 1778, B. from time to time surrendering the then sub- sisting lease, and paying, upon every such re- newal, such a proportion of the fine, which A. shoidd have paid to the dean and chapter on re- newing the lease or leases, under which he should hold the premises, as should have been imposed on account of any new buildings erected, or to be erected, by B. upon the premises. Held, that B. was not bound to contribute to the fine paid on renewal, subsequent to that which first en- abled A. to make up the sixty-one years. — Clution V. Fleming, 8 Sim. 105. A copyholder agreed to demise a tenement, within the manor, for sixty three years, on a building lease ; and as the custom did nut allow a lease to be made for more than twenty-one years, the copyholder agreed to execute a lease for twenty-one years, with a covenant for him- self, his heirs, and assigns, to renew the lease for a further term of twenty-one years, at the expi- ration of the first, and for a further term of twenty-one years at the expiration of the second term. The copyholder died before the lease was executed, having devised the premises to a trustee. Held, on a bill by the lessee against the trustee for specific performance, that the trustee, having no beneficial interest in the estate, was not bound, in the lease for twenty-one years, to enter into any covenant for the renewal of the lease at the expiration of that term ; and that he could only be required to covenant against his own acts. — Worley v. Framplon, 5 Hare, 660. Whether, if the trustee had brought liis bill for specific performance against the lessee, the lessee would have been compelled to perform the contract, if the trustee declined to covenant for renewal ; qucere. — Id. VII. — To Produce Documents. The right of a purchaser to a covenant for the production of documents constituting part of his title does not extend to copies of court roU, or in- dentures of bargains, or sales enrolled, unless they are in the possession or power of the vendor. A purchaser is not entitled as a matter of course to a covenant for the production of all documents To Stand Seised. COVENANT. Ill Farm Lease, ^-c. 89 mtained in the abstract of title which are not ;livered to him, but only of those which are ne- ■ss:;ry to make out a good sixty years' title. — loper V. Emery, 1 Phil. 388. The vendor of a piece of copyhold land enfran- lised in 1799i delivered to the purchaser two ab- racts commencing in 1736, one of the title to the nd, and the other of the title to the manor, lie deed of 1799, which was 40 years old, recited .at the then lord, and the then owner of the nd, were respectively seised in fee, and several the deeds relating to the lord's title were bar- ins, and sales enrolled, and. therefore, copies of em as well as of the surrenders and admittances lich would be good evidence, might be pro- red by the purchaser at any time. The vendor IS unable to deliver to the purchaser the deed 1799, or any of the prior instruments, but was lling to covenant to produce that deed. Held, It he was bound to give the purchaser cove- ats for the production, not only of that deed, t of all the prior instruments mentioned in the stracts. — Cooper v. Emery, 10 Sim. 609. VXII.— To Stakd Seised. [n the year 1817, A., who was not then a trader, his marriage covenanted that all his property, 1 and personal, as well that in possession as at he should tiiereafter acquire, should stand, 1 be charged, and chargeable with a sum of 000 for certain purposes therein mentioned, ne months after his marriage A. became a der, and in the year 1835 was found and de- red a bankrupt. Held, on a bill filed by the e and children, who were interested under the tlement of 1817, that the covenant to charge 3r acquired property created a valid charge on the freehold estates of A., purchased subse- sntly to his marriage, and should be carried cifically into execution against the assignees he bankrupt A. — Lyster v. BurraugJia, 1 Dru. iV. 149. '. B., by indentures of lease and release, in sideration of natural love and affection for his ers, and a nominal consideration, released a ticular freehold estate to 13., his heirs, and . did not waive his rights or remedies as mortgagee of the £10,000. — Lee v. Lockharl, 3 Myl. & Cr. 302. Whatever may be the general rule, if there be any, as to extending indulgence to a creditor under a composition deed, who does not claim the benefit of the deed within the time specified therein, that rule does not apply to a creditor who actually refuses to come in under, or assent to the deed, within the time limited, and who does not retract such refusal within that time. — Jo/m- son V. Kershaw, 1 DeJ. & S., 260. A. B. and C. B., (his eldest son,) being in em- barrassed circumstances, executed a deed of trust of the 5th of January, 1S18, and which was made between A. B. and C. 13. of the first and second parts, a trustee of the third part, and se- veral creditors of the said A. B. and C. B., whose names were written in the schedule thereunto annexed, of the fourth part. The plaintiff, who was one of the creditors of A. B., refused at first to execute the deed, and proceeded at law on foot of his demand against A. B. The action, however, having abated by the death of A. B.,he subsequently submitted his claim to arbitiation •with aie assent of the trustee, emd the amount of his debt having been ascertained, he was then permitted by the trustee to become a subscribing party to the deed. Held, that, under the circum.- stances, the plaintiff was entitled to file a bill to carry the trusts of the deed of the 5th of January, 1818, into execution, Semble, in a suit so con- stituted, the other creditors of A. B. and C. B., who subscribed the deed, are not necessary par- ties. — Field V, Lord Donoughmore, 2 Dru. & Wal. 630. Where a debtor enters into a deed of trust for the benefit of his creditors, it is not absolutely necessary that every creditor, seeking for the be- nefits to be derived thereunder, should actually subscribe the deed, but the court, before it per- mits a creditor who has not executed it, to take the benefit under such deed, is bound to see that he has performed all the fair conditions of the deed, and if such creditor has taken any step incon- sistent with the provisions of the deed, he will be held deprived of all advantage arising there- from. — Field V. Lord Donoughmore, 1 Dru, & Wal. 227.- A debtor conveyed all his property to trustees for his creditors, in consideration of a license and release granted to him by the deed ; and after- wards died. Seven years after his death, a cre- ditor who had notice of the deed shortly after its execution but did not execute it, filed a bill to be allowed to execute it, and to have the benefit of it. But the court dismissed the bill, because the debtor could not have the benefit of the conside- ration. — Lane v. Husband, 14 Sim. 656, A suit was instituted by a son against his mother. A compromise was effected, whereby the mother agreed to settle a sum on the son and his family, and pay £170 amongst such of the son's creditors " as should be willing to accept the same in full discharge of their respective debts, and should express their consent before a given day ;" none of the creditors assented, and no payment was made to them. The son became insolvent. Held, that the mother was not liable to pay the £170 to the assignees. — Sherwood v. Walker, 6 Beav. 401. The obligor of several bonds, in which A., his solicitor, joined as surety, conveyed certain real property to A., upon trust, to sell, and out of the proceeds of the sale to pay the bond creditors. The creditors did not execute, nor had any notice of the deed. Held, that the deed was a more deed of agency, and not binding in favour of the creditors, but that A. was entitled to retain the estates conveyed to him until he should be dis- charged from his liability as surety under the bonds. — II ilding v. Richards, 1 Coll. C. C. 665. Deed of conveyance of land by a debtor to a person upon trust, for effectually securing the repayment of certain specified sums due in re- spect of certain bonds mentioned in the deed. Held, under the circumstances of the case, to be binding on the debtor as between him and the creditors, although the creditors did not execute the deed. — Wilding v. Richards, 1 Coll. C. C. 661. Bankers take from a customer an equitable mortgage by deposit of title deeds. The pro- perty comprised in the deeds is subject to a trust of which the bankers have no notice, and the de- posit is made in breach of that trust. The trust must prevail against the bankers' lien. — Manning- ford V. Toleman, 1 Coll. C. C. 670. Assignee of A , under a deed of assignment, and trust, for the benefit of A.'s creditors, de- creed, under the circumstances of the case, to pay the costs of a suit for an account brought against him by the assignee of A. under the Insolvent Debtors' Act.— Collins v. Reece, 1 Coll. C. C. 676. 98 Debt hj Bank Cheque. DEBTOR AND CREDITOR. Sati^aclion. A. executed a deed of assignment of his effects to a trustee, for the benefit of all his creditors who shall sign or assent to the deed, within three months after the date of it. Qwere, whether in the view of a court of equity a creditor, who does not sign or assent to the deed until after the ex- piration of the three months, can take any bene- fit under it. — Id. A., by indenture, assigned certain rents to which he was entitled for life, to a trustee upon several successive trusts, for the benefit of cer- tain of A.'s creditors who were parties to the deed, and subject thereto upon trust, to pay the surplus to A. By the terms of the deed the trustee was directed to pay to some of the credi- tors their debts, and to others their debts with interest. Held, that the latter creditors had a priority over the former in regard to interest, al- though the former might be entitled to interest as against the surplus of the estate. — Jenkins v. Perry, 3 Y. & C. 178. Upon a composition between a debtor and his creditors, a creditor cannot ostensibly accept a composition, and sign the deed which expresses his acceptance of the terms, and at the same time stipulate for, or secure to himself, a peculiar and separate advantage which is not expressed upon the deed. A creditor holding a security for his debt may stipulate to have the benefit of it in ad- dition to the amount of the composition offered by a debtor to his creditors, but he must either hold himself entirely aloof from the other credi- tors, or distinctly communicate with them on the subject if he at all acts in common with them. A debtor entered into a negotiation for a com- promise with his creditors, but there did not ap- pear to have been any general meeting of them, or any agreement entered into by them generally. One of the creditors stipulated that he should have the benefit of a mortgage security which he held, in addition to the amount of composition. He accepted the composition, but did not then execute the composition deed ; he afterwards realised his mortgage security, and then executed the composition deed, by which he purported to release his debtor altogether without any reserva- tion of the mortgage security, another creditor subsequently executed the composition deed. The agreement was not communicated to the other creditors, but there was no fraudulent conceal- ment. Held, on grounds of public policy, that the creditor was not entitled to retain his mort- gage security, in addition to the amount of the composition,-.— OwWiw^wjor^Av. Lloyd, 2 Beav. 385. Although a creditor gives his assent to a pro- posal of the bankrupt to assign his effects for the benefit of his creditors, yet, if the deed contains a stii)ulation in favour of a creditor, the first men- tioned creditor is not bound by the deed, but may sue out a fiat upon it, as an act of bankruptcy, — Ex parte Marshall, re Marshall, 1 M. D. & D. 675. "VI. — Debt by Bank CnBauB. A cheque for £4,700, drawn upon the Lutter- worth Bank, was given to A. at Lutterworth on the 20th of April, after banking hours, in payment for an estate. A., who lived three miles from Lutterworth, immediately handed the cheque to B. to be placed to A.'s account at the Rugby Bank. Rugby is six miles from Lutterworth. On the arrival of the cheque the same day at Rugby, the Rugby Bank nad closed j but the cheque was deposited with one of the partners of that bank for the night, and m the morning of the 21 St of April, it was paid into the bank, and on the same day transmitted by post to the Lut- terworth bankers, with directions to send the amount to London. The Lutterworth bankers received the cheque early on the 22nd. At half- past one o'clock on that day they stopped pay- ment. Held, that the deposit of the cheque vrith the Rugby bankers was a reasonable and pro- bable course on the part of A., consequently, that the presentment to the Lutterworth Bank was in time to prevent the cheque from becoming his cheque, and that the debt was still due to him.— Bond V. Warden, 1 CoU. C. C. 683. An unstamped cheque, addressed to Messrs. C. & Co., bankers, Lutterworth, but not expressed to have been issued at or within the legal distance of Lutterworth, is void within the statutes which require that such cheque shall have the place of issue specified in it, — Id. VII. — Payment. Executors, before suit commenced, paid some of the testator's creditors a certain proportion of their debts. Held, that they were not entitled to any further payment tuitil the other creditors had been paid proportionally. — Wilson v. Paul, 8 Sim. 63. "*■ Executors will not be allowed payments to creditors made after a decree for administering the debtor's estate. — Michelaon v. Piper, 8 Sim. 64. Where an executor has paid a creditor part of his debt, the court will not make any further pay- ment to him out of either the legal or the equit- able assets of the debtor, until all the other debts are paid proportionably. — Id. A. B,, on a sale of certain lands, covenanted with C. D., the purchaser, to protect him against " all judgments, charges, and incumbrances, &c." It subsequently appeared that the lands were liable to a judgment confessed previously to the lands coming into the possession of C. D., and proceedings having been commenced by the con- nusee against the lands, and A. B. having been called on by C. D,, and having accordingly, and in fulfilment of his covenant, paid off the amount of the judgment. Held, that this was not a vo- luntary payment. — Aickin v. Macklin, 1 Dru. & Wal, 621. VHI. — Satisfaction. A creditor against two estates for the same debt is entitled to receive dividends on the full amount from both estates until his debt has been satisfied. —Bonser v. Cox, 6 Beav. 84. A. having purchased, but not paid for, a parcel of hops, which remained in the possession of B., the seller, subject to his lien for the purchase- money, assigned his effects to trustees for the be- nefit of his creditors who should signify their as- sent to the deed, and send in an account of their demands within three months from the date. A. informed B. that he had assigned his efiects for the benefit of his creditors ; and, thereupon, B, wrote to the trustees for an authority to sell the hops ; and, after some correspondence had passed between them, in the course of which B., as he said, signified his assent to the deed, the trustees gave the authority, and B. sold the hops, but for much less than was due to him, and then claimed Coiifirmation of. DEEP. Voluntary. 99 to be paid a dividend, under the deed, on the ba- lance remaining due to him. Held, that his claim was not sustainable. — Bush v. SMpman, 14 Sim. 239. IX. — ^Letter op License. From the circumstances under which a letter of license was signed, it may be inferred that it was not a bindmg concluded agreement, upon the person so signing it, as where it was only in the course of signature by the creditors generally, and it was not intended that it should operate unless signe'l by an influential overpowering body of the creditors, which it was not. — In re Semple, 3 Jon. & L. 488. A jury having found, upon an issue sent to them, that a letter of license executed under such circumstances, was not a concluded binding agreement, the Lord Chancellor refused to disturb the verdict. — Id. DEED. See Debtor and Creditok. — ^Pr. Inspection oe Documents. — Settlement. I. Confirmation op 99 II. Fraudulent 99 III. Equitable Deposit op 99 IV. Deed Poll 99 V. Valid Execution op 99 VI. Voluntary 100 VII. Cancellation op 101 VIII. Construction op 1 02 IX. Void and Voidable 1 09 X. Lost 110 XL Estoppel 110 XII. Reforjiation and Mistake 110 XIII. Registration of 110 I. — Confirmation op. Attestation of instruments of appointment under deeds, &c., 54 Geo. 3, o. 168, 7 W. 4, & 1 Vic, c. 26. Act for the more convenient and eifectual re- gistry of deeds in Ireland, executed in Great Britain, 3 G. 4, c. 116. Regulating transfer of property, by 7 & 8 Vic, c. 76. Abolition of lease for a year in deeds of con- veyance, 4 & 6 Vic, c. 21. Indenting of deeds no longer necessary, 7 & 8 Vic, c. 76. Act for regulating the oflnce for registering me- morials of deeds, conveyances, and wills in Ire- land, 9 G. 4, c. 57, repealed, and other provisions made by 2 & 3 W. 4, c. 87. A trustee and executor, who had been land agent and receiver to his testator without settling accounts for several years, upon liis death, ob- tained from the cestui que trust, and residuary legatee, an agreement to continue him in the agency, and in case of removal without just cause to allow him the same salary, and also a deed granting to him part of the trust estates. The agreement and the deed were prepared by the agent who was an attorney, and executed by the principal and cestui que trust, without legal ad- vice, and the deed recited untruly that it was deration of the agent's services," and also in full discharge of all accounts between them. The new agency terminated in a year-and-a-half by mutual desire of the parties, and after a settlement of ac- counts, to the satisfaction of the principal's legal advisers, he executed a deed approved by them, confirming the former deed, and subsequently wrote letters to the agent claiming the benefit of the latter deed, and expressinsr his satisfaction at having given the estate. Held, (afiirming the decree of the court below, dismissing a bill to set aside both deeds, and to take the executorship and other accounts,) that although the deed of gift was voidable in its origin, and could not be sustained if it stood by itself, and had been im- peached in reasonable time, yet tliat the subse- quent deliberate acts of the party impeaching it, assisted by his legal advisers, made it valid. — Da Monimorency v. Devereux, 7 Clk. & Fin. 188. It is to be assumed that legal advisers in dis- charge of their duty to their client, investigate suspicious transactions, and satisfy themselves before they approve them that it is for the client's benefit to approve them. — Id. Where a transaction of a suspicious nature in its commencement can only be sustained by sub- sequent acts of confirmation, the party so sus- taining it must pay his own costs of the inves- tigation into circumstances. — Id, II. When held to be Fraudulent. A. being entitled to three debts, covenanted ■with B., that in case he received them in full, he would pay him £1000 ; but in case he should re- ceive part only, he would pay one-third of the sum recovered. A. received one of the debts, which he so wholly retained. Afterwards, and within three months before A.'s imprisonment and taking the benefit of the Insolvent Act, he (without pressure) assigned one of the debts to B., to secure one-third of the debt recovered and those still unpaid. It was set aside as fraudulent under the act. Held, also, that B. had not, as against the insolvent's assignees, any lien on the remaining debts for the one-third of the first debt improperlyretained by A. — Harries v. Lloyd, 6 Beav. 426. III. EauiTABLE Deposit op. A mortgage was made, " subject to prior in- cumbrances." Held, under the circumstances, that a prior equitable charge was not included, it being unknovifn to the mortgagee, and it not ap- pearing to have been the intention of the mort- gagors to include it. — Greenwood v. Churchill, 6 Beav. 314. IV. Deed Poll. A deed poll, in the form of a power of attorney, held in equity to amount to an assignment, or to a covenant to assign. — Bennett v. Cooper, 9 Beav. 252. V, Valid Execution op. A person labouring under great defectiveness of vision, though not absolutely incapable of writing, may, if he pleases, execute a deed, by 100 Voluntary. DEED. Voluntary. ■will be good under the Scotch Acts of 1640 and 1679.— iJe« V. Baxter, 7 Clk. & Fin. 261. VI. Voluntary. A Toluntary conveyance of real estates to a charity is not defeated by a subsequent convey- ance of them for valuable consideration. — Mayor of Newcastle v. The Att. Gen., 12 Clk. & Fin. 402. S., entitled to a lease for lives, by lease and re- lease of the 5th of March, 1 833, in consideration of love and affection for his eldest son J,, " and in order to advance him in life, and to entitle him to a wife and fortune now in contemplation," conveyed the lands to J. and his heirs. This deed was executed by S. and J., and was regis- tered by S. nine months afterwards ; but S. re- tained it in his possession, and, with the assent of the son, continued to his death to act as the owner of the lands. S., by his wUl, devised all such real, freehold, and personal property of which he should die seised or possessed, to J., "in case he shall recover from his present ill- ness ;" and appointed E. his residuary legatee. There was no particular marriage in contempla- tion when the conveyance of 1833 was executed. J. survived the testator, and afterwards died of the illness with which he was afflicted when the testator made his wUl. Held, 1, That the con- veyance of 1833 was not conditional, but executed for a specific purpose, which had not been per- foimed, and that on its execution the legal estate was vested in J. 2. That the estate was not di- vested by the son not afterwards maiTying. 3. That the circumstance of the case did not estab- lish a trust for S. Semble. That the true con- Btruetion of the devise to J. is that it is a gift to him in case he did not die from his then present illness in the lifetime of the testator. — Alleyne v. AUeyne, 2 Jon. & L. 544. A deed, entered into by the owner of an estate ■with trustees, for the payment of certain credi- tors, therein enumerated, but who are no parties thereto, is voluntary ; and, as it may be revoked at any time, creates no lien on the estate of the debtor in favour of the creditor named therein. — Steele v. Murphy, 3 Mo. 445. A., previous to his decease, executed a volun- tary deed, by which he conveyed and assigned to the plaintiff a certain note or memorandum, in writing, being the acknowledgment of a sum of £.1,620, then due to him by K., and all the in- terest then due, or which might hereafter accrue due on foot thereof, upon trust to pay the in- terest therof, unto the said A., his executors, administrators, and assigns, for his life, and a period of fourteen months afterwards ; and at the expiration of the said fourteen months, to pay out of the principal some small suras, to and amongst certain persons and relations of the said A., as in the said deed particularly mentioned ; and as to the residue, in trust for the said plain- tiff, his executors, administrators, and assigns, for his and their own benefit. The deed also contained a provision, whereby the plaintiff, his executors, administrators, and assigns, were irre- vocably constituted the attorneys of the said A., for the purpose of suing for and recovering the said debt. A. soon afterwards departed this life, without making any will, or other disposition of his property. The defendant, who was his ad- ministrator, ha'ving refused to allow his name to be used to enable the plaintiff to recover the said sum, and having actually himself commenced an action for that purpose. Held, upon a bill filed by the plaintiff to restrain the proceedings in said action, and to carry the trusts of the d!eed into execution, that as the transaction between A. and the x^laintiff was complete, the deed, though voluntary, should be carried into execution.— Blakely v. Brady, 2 Dru. & Wal. 311. W. B. having, as law and land agent of F. H., negotiated and been party to a deed of separation and maintenance between F. H. and his wife, M. H., in the year 1^21, and having by fraud prevented the registry of that deed of mainten- ance, was, four years afterwards, employed throughout the negotiation of a loan of money, which was advanced on a registered mortgage of the estates comprised in the deed of mainten- ance, as solicitor both for F. H. and X. Y., the person advancing the money. In a contest for priority between the unregistered deed of main- tenance and the registered mortgage. Held, that inasmuch as the knowledge acquired in the transaction of the deed of maintenance was clearly brought home to W. B., and its continu- ance so clearly proved as to make it fraudulent on his part to conceal it when acting in the mort- gage transaction, such fraud on the part of W. B., the agent, was visitable on X. Y, his principal. Held, also, that X. Y. should be treated as a person who, through-^ agent, had actual notice of the deed of maintenance ; and that, consequently, X. Y.'s registered deed should be postponed to M. H.'s unregistered deed. Semble. Though a deed of separation contains no more than a covenant on the part of the wife's trustees that the wife shall provide, support, and educate the children of the marriage, and that she shall not sue the husband for alimony or otherwise ; still it is a deed for valuable conside- ration and not voluntary. Semble. That evidence of a consideration, which is not inconsistent with the consideration set out on the face of the deed, is admissible, in order to support such deed as one for value. — Nixon V. Hamilton, 2 Dru. & Wal. 364. A. B., by deed of the 30th of June, 1828, con- vej'ed certain lands, of which he was seised in fee, to a trustee, for the use of himself for life, and after his decease to permit his daughter, C. C, to receive an annuity of £60 thereout for life, and subject thereto to convey the said lands tohisson,M.N., (who was the principal defendant) his heirs, executors, administrators, and assigns. By a deed of the 24thof July, 1829, the lands were conveyed back to the said A. B., by the trustee, the said C. D., and M. N., freed and discharged of all the trusts of the deed of June, 1828 ; and by two sub-equent deeds, A. B. again conveyed all the said lands (in consideration of an annuity of £100 for his own life, and £30 for his widow) to the said M. N., his heirs, executors, adminis- trators, and assigns. On the death of A. B., CD. filed his bill to raise the arrears of the annuity of £50, under the first deed, praying also that the subsequent deed of the 24th of July, 1829, wliich purported to release that amiuity, might be set aside ; and bringing before the court as a party defendant, X. Y., who was a mort- gagee of part of the lands in question, under a mortgage of the 15th of December, 1836, ftom M. N. Held, under the cii^cumstances, that the deed of the 24th of July, 1829, could not be sus- tained against the plaintiff, and that she was en- titled to the arrears of the annuity, granted to Voluntary. her under the deed of the 30th of June, 1828. Held, also, that as between C. D. and M. N., the deed of the 30th of June, 1828, was not voluntary. Semble. That supposing the deed of the 30th of June, 1828, to have been voluntary, X. Y., the mortgagee, would have been entitled to priority- over it ; and that the protection given to a pur- chaser, under the statute against fraudulent con- veyances, is not to be confined to cases where the first and second conveyances are made by the same person. — Blake v. Hyland, 2 Dru- & W, 397. A. instituted a suit against B. and C, respect- ing a sum of £4000 ; D. also was made a party to the suit, but having no interest ho disclaimed. A., B., and C, afterwards came to a compromise, in pursuance of which they executed a deed assigning the £4000 to trustees, in trust, to pay to D. his costs of the suit, and to divide the rest of the fund amongst A., B., and C. D., though he was not a party, either to the compromise or the deed, filed a bill against A., B., and C, and the trustees, to compel a performance of the trusts and payment of his costs. A demiurer by C. for want of equity was allowed. — Gibbs v. Glamis, 11 Sim. 584. The testator, by a voluntary deed, covenanted with trustees, that in case A, and B. his two natural sons, or either of ihem, should survive him, his (thp. testator's) executors and adminis- trators, should, within twelve months after his death, pay to trustees named in the deed £60,000 upon trust, for such of them (A. and B.) as should attain twenty-one, and being living at the time of his death, and if neither of them having survived him should have attained twenty-one, then upon trust for him (the testator) and his executors tind administrators. The testator re- tained the deed in his own possession until his death, and did not communicate it either to the trustee or to A. and B. The testator, by bis will, dated some years later than the deed, bequeathed all his property upon trust for the benefit of his wife and his said sons A. and B. and his legitimate children. After the death of the testator, the deed of covenant was found amongst his papers. A. survived the testator and attained twenty-one. Held, that though the deed of covenant was voluntary, it nevertheless created a trust for A. ; and that the refusal of the trustee to sue at law upon the covenant did not prejudice the right of A. to recover the payment of the debt out of the assets of the testator. — Fletcher v. Fletcher, 4 Hare, 67. That the deed was not of a testamentary nature, there being no power of revocation reserved to the covenantor. — Id. That the retention of the deed in the possession of the covenantor, and the absence of communica- tion respecting it to the trustees, and the cestuis- que trust, did not affect its validity. — Id. Equity assists a party claiming under a volun- tary deed of covenant, by enabling him to use the deed, either at law or in this coiirt. — Fletcher V. Fletcher, 4 Hare, 78. A conveyance in the form of a purchase deed for valuable consideration, but in fact voluntary, not supported against a prior voluntary convey- ance made by the same p^rty. — Roberta v. Wil- liams, 4 Hare, 1 30. Semble, The heir at law of the author of a voluntary deed, cannot avoid the deed under the statute 27 Eliz, c. 4, by conveyance of value. — Parker v. Carter, i Hare, 409, DEED. Cancellation of .■ ■ 101 A corporation voluntarily founded a\ospital under the 39 Eliz. c. 6, and procured realyfetates to be conveyed to it, which however were_ mjbse- quently managed by the founders. The fotmdei's afterwards sold the hospital property, and con- veyed it for valuable consideration to the pur- chasers, giving them an indemnity, and they ap- plied the purchase money, together with other monies of their own, in the purchase of the W. estate. The founders accounted to the hospital yearly for more than the rental of the estate sold. Held, that the hospital was entitled to such a proportion of the W. estate, as the purchase money of the charity estate contributed towards the purchase of the W. estate. — The Att. Gen. v. The Corporation of Newcastle, 6 Beav. 307. A father who had four natural daughters, an da legitimate son, entered into an agreement with his son, evidenced by certain deeds, whereby the father covenanted to transfer the siun of £20,000 to a trustee for the benefit of his four natural daughters, and the son covenanted to pay the debts of the father. The son paid some of the father's debts, and died before the covenant on the part of the father was performed, having by his will given the whole of his property to his father, who became the son's personal representa- tive. A demurrer to a bill filed by one of the natural daughters, and praying to have the agree- ment executed against the estate of the father and son, was allowed. Where two persons for valu- able consideration as between themselves cove- nanted to do some act for the benefit of a mere stranger, that stranger cannot enforce the cove- nant against the two, though either of the two might do so against the other. — Colyear v. The Countess of MvXgrave, 2 Keen, 81. Among the trusts of a settlement, (the subject of the settlement being property limited to the separate use of the wife,) it was provided that the trustees should effect a policy of assurance to the amount of £3,000 on the life of the wife, and annually pay the premium out of the trust money during ihe life of the wife, and stand possessed of the assurance in trust after the decease of the wife, to invest the £3,000 when received, and pay the interest to the husband for his life if he should survive the wife, and after the decease of the husband, to pay the £3,000 to such person or persons as the wife should by will, notwithstand- ing her coverture, appoint, and in default of such appointment, to the persons entitled under the statute of distributions. There were no children of the marriage, and the wife having survived her husband, and being unwilling to continue the payment of the annual premium, joined with the surviving trustee of the settlement, in making a voluntary assignment of the policy to her cousin, who paid the aimual premium during his life, and by his will appointed G. his executor and resi- duary legatee ; G. continued to pay the premium, and on the death of the assured received the value of the policy. Held, on a bill filed by the next of kin of the wife againstG.,and against the executor and residuary legatee of the wife, that the assign- ment was valid, and that G. was entitled to the value of the policy. — Godsal v. Webb, 2 Keen, 99. ■VII. — Cancehatiox op A person transfers a sum of stock into the names of trustees, and by an indenture under his hand and seal, declares that the stock shall be held by the tnistees upon certain trusts for the 102 Construction., DEED. Construction. benefit of A. and her children by the settlor. The settlor afterwards obtains from the trustees a retransfer of the stock to himself, and razes the seals from the deed. By his wiH, not referring to the deed, he gives A. an annuity and other benefits, and the residue of his estate to the children. A. is entitled to the provision made for her both by the deed and the will. — Smith v. Lyne, 2 Y. «5 C. C. C. 345. Vm. — Construction. A tenant for life, in consideration of £500, granted an irredeemable annuity of £64 19s. 2d. to B. for her life, to be issuing out of the lands, and in order the more effectually to secure B. in the payment of the said annuity, and in the re- payment of the said sum of £500, A. assigned to B. a policy upon his life for £500, to hold as her property for ever, and it was agreed that as soon as A. should give unexceptionable security for the payment of the annuity, B. should be entitled to receive the sum of £50 only in every year, the sum of £14 19s. 2d. being the insurance of A.'s life from him to her, which last mentioned sum was annually to be paid by B. out of the annuity of £64 19s. 2d., until such security should be given. No such security was given, B. died, having been paid all the arrears of the annuity, then A. died. Held, that the representatives of B. were entitled to thejum insured. — Kavanagh V. Waldron, 3 Jon. & L. 214. A. tenant for life remainder to his son B. in tail, A. and B. execute a deed whereby, after reciting an agreement between them that A. should grant to B. and his assigns, an annuity of £100, chargeable upon the lands, payable during the lives of A. and B., and the survivor of them, and that in consideration thereof, A. should have power to charge said lands with £1,000, within- tercst from his death for his own benefit but not to be raised or paid till two years after his death. A. and B. declared the uses of a recovery suffer- ed by them to be that B. and his assigns should, during the lives of A. and B., and the survivor of them, receive thereout an annuity of £100, with the usual powers of distress and entry in the case of non-payment thereof, and, subject thereto, to the use of A., and after his decease, to the use of B., in tail, and A. was thereby empowered to charge the lands with £1,000, with interest from his death, to be disposed of as he should appoint amongst his younger children. A. died, having exercised his power, leaving B. and several younger children surviving. Held, that the £1,000 was a charge on the lands in priority to B.'s annuity.— Jl/t7& v. Mills, 3 Jon. & L. 242. Tenant in fee, in possession of lands, conveyed the same, and all bogs thereon, to a purchaser, who, by deed of equal date, demised the lands to the vendor and his heirs, for lives renewable for ever, to hold " in the same manner as he now holds the same," reserving a rent equal to six per cent, on the purchase money. The lease contained the ordinary powers and covenants. The vendor had, in some few instances, before the conveyance, cut turf for sale. Held, never- theless, — the court being of opinion that there was no such general dedicadou of the bog to cutting for the mere purpose of sale, as to con- vert it into the nature of an open mine, — that the lessee was not entitled to cutting for sale. — Cop- finger \. Gvbbins, 3 Jon. & L. 397. By marriage settlement the husband coven- anted with the trustees, that he would forth- with effect a policy of assurance upon his life with, some respectable company for the sum of £1,000, and assign the same to trustees. A policy of as- surance, effected with a friendly society, if it be not assignable, or if it be less beneficial than a policy effected with an ordinary assurance com- pany, is not within the meaning of the covenant, and a reference was directed on the subject. — Courtney v. Courtney, 3 Jon. & L. 519. Semble, That a friendly society is not an assur- ance company within the meaning of such a cove- nant, and that if the covenanter rely upon an assurance with a recently established friendly society, (supposing such to be an assurance com- pany within the covenant,) as a performance of his covenant, he ought to show that the society is possessed of capital, and is solvent. — Id. A marriage settlement recited an agreement by the father of the intended wife, to grant to the husband, as a marriage portion, certain annuities to be issuing out of distinct lands, held upon terminable leases, and witnessed that in consider- ation of marriage, and to grant a marriage portion to the husband, and in order to secure a jointure for the wife, in case she should survive, the settlor conveyed the lands to trustees, upon trust, to permit and suffer the husband, during the life of himself and his wife, to take and receive to his use, out of the lands nominatim, the several annuities mentioned in the recital, and, after the decease of the husband, to permit and suffer the children of the marriage to take and receive the said several annuities, in such shares as the hus- band or wife should appoint, and in default of appointment, equally; and in case the wife should survive the husband, and there should not be any issue of the marriage then living, to permit her during her life to receive the said annuities, with power to disti'ain for same, provided that if the wife should survive the husband, and there should be children of the marriage living at his death, then that the trustees should pay her during her life out of all the lands, or suffer her to receive, out of the rents of the said several lands, an annuity of £150, in bar of dower, with power to distrain for the same. Held, upon the construction of the whole instrument, that the annuity of £150 was in addition to the annuities granted to the trustees, and mentioned in the re- cital, and was not payable out of those annuities. — Blair v. Nugent, 3 Jon. & L. 668. In searching for the intention of a donor, which is the standard to govern the construction of a deed of gift, the facts, first, that the gift is subject to the condition of making certain pay- ments to others; secondly, that forfeiture will be incurred for non-performance of that condi- tion ; and thirdly, that the donee may be sub- jected to loss by the performance of that condi- tion, are sufficient to raise the presumption that, in case of the increase of the fund, the donor in- tended to give the donee the benefit of that increase. — Jack v. Burnett, 12 Clk. & Fin, 812. In 1814 estates were limited to such uses, &c., as A. should appoint, and default of appointment to him for life, remainder to his son for life, re- mainder to the son's first and other sons, in tail, male ; and those limitations were followed by powers of leasing, and selling, and exchanging ; the latter cf which was to be exercised during the lile of A. and his son, and with their con- sent. In 1 830, A. being desirous of relinquishing his life interest, appointed the estates to his son for life, remainder to the uses upon the trusts, Vonstritction. "TTERD. Construction. 103 and subject to the po-wers expressed and con- tained in the deed of 1814, ulterior to the limita- tions therein for the lives of A. and his son. Held, that though the power of sale and ex- chancte was to operate in derogation of the life estates, it was not destroyed by the deed of 1830, — Morgan v. Rtitson, 16 Sim. 234, By a settlement lands were limited to trustees, to the use of the settler for life, with remainder, subject to a term of ninety-nine years, to the use of his three daughters for their lives, as tenants in common, with remainder to trustees, during the life of each daughter, to preserve contingent remainders, with remainder as to the share of each daughter at her death to the use of her first and other sons, successively, in tail, male ; with remainder, in case of the death of any one or more of the daughters, without issue male, to the use of the survivor or survivors, during their or her respective lives and life ; with remainder, in like manner, as ()p the original share, to the use of the first and other sons of such surviving daughters or daughter, in tail, male ; with re- mainder, in case all the daughters should die without issue male, as to the share of each, to the use of the daughters, £i3 tenants in common, in tail ; and in case one cr more of the daughters should die, without issue, it was provided that the share or shares of such daughter or daughters should go to the use of the daughters of such survivors or survivor, tts tenants in common, in tail general ; the ultimate remainder was limited to the use of the settlor in fee. Held, that the limitation, in case of the failure of issue gene- rally of any of the daughters, to the daughters of the survivors or survivor, was a good contingent remainder, and not void for remoteness. Held, also, that the words '* survivors or survivor *' were to be read "other or others ;" and, conse- quently, that the limitation ovei to the daughters of one of t)ie settlor's daughters, who had issue, was not defeated by the death of that daughter in the lifetime of another, who subsequently died without issue, but that the limitation took effect as a good cross-remainder. A limitation, by way of remainder, cannot be void for remote- ness. General powers of sale and exchange in a settlement are gcod. — Cule v. Hewell, i Dru. & W. 1. By a deed of settlement, executed on the occa- sion of the marriage of B., certain lands, of which A., the father of B., was seised as tenant for life, were conveyed to trustees, in trust, to pay B. an annuity during the life of A. ; and certain other lands, to which A. was absolutely entitled, were also conveyed, upon trust, to permit A., and his heirs and assigns, to receive the rents and profits thereof, during B.'s (the son's) life ; and subject thereto to secure a jointure of £300 for the son's intended wife ; and to raise a sum of £4,000 as portions of the younger children of the marriage ; and it was provided that these portions should be divided amongst the younger children in such shares and proportions as B. should appoint, and in default of appointment share and share alike, and should be payable to such of them as should be sons at their ages of twenty-one years, and to such of them as should be daughters at their ages of twenty-one years, or days of marriage, which should first happen, " if such respective times of payment should happen after the death of B. ; but if before, then, within three calendar months after the death of the said B., and not before or sooner, unless with the consent of the said A., if living ; and if dead, of the said B., testified in writing, under their respective hands and seals." B,, after the death of his father, A., in pursuance of the power contained in this set- tlement, executed an ai)pointment in favour of tlie plaintiff, who was one of his younger chil- dren, and who liad attained her age of twenty- one years, and directed such portion to be raised and paid to her forthwith. Upon a bill filed to raise the amount thereof. Held, that the settle- ment authorized B., the son, after the death of his father, to charge the lands with the portion in question, and to direct immediate payment. — Keily v. Keily, 4 Dru. & W. 38. A., being indebted to the jilaintiffs in a sum of £400, and being entitled to a life estate in certain leasehold premises, conveyed by deed, of the 21st of November, 1837, his life interest therein, to a trustee, upon trust, "out of the interest, proceeds, or annual rents, or annual proceeds thereof," to pay the rents to which the lands were subject, the premiums of insurance on a cer- tain policy of insurance, (which A. had effected upon his life, and which policy was assigned by a separate deed,) and also to the said plaintiffs the said sum of said £400, with legal interest fi'om the date thereof, at the rate of £6, by the year, until the same should be fully paid off and discharged ; and upon payment thereof to re-convey the same to A., or his assigns. The deed did not contain any covenant for payment on the part of A. Held, upon the true construction of the deed of November, 1837, that the plaintiffs were not to be considered as mortgagees, or entitled to a sale, but only to have a receiver, and the trusts of the deed carried into execution, under the direction of the court. — Taylor v . Emerson, 4 Dru. & W. 117. By a marriage settlement of the 9th of May, 1789, certain real estates, the property of the husband, were limited, in trust, for him for life, and after his decease, to trustees, for a term of 1000 years, and subject thereto to the first and other sons of the marriage, with remainder to the husband, in fee. The trusts of the term, which were for raising a sum of £8,000, as portions for the younger children of the marriage, were de- clared to take effect in case where there should be one or more child or children of the said mar- riage, besides an eldest or only son. There was no son of the said marriage, but only two daughters. Upon the occasion of the marriage of one of the daughters, the father covenanted to settle upon herself and her husband and their issue an anntiity of £500 per annum ; and sub- sequently conveyed, in fulfilment of this cove- nant, a portion of the lands which were the sub- ject of the settlement of 1789, to trustees, for a term of 300 years, to secure the same. Upon the marriage of the second daughter, the father made a pecuniary provision for her, which was ex- pressly declared to be in satisfaction of her por- tion, under the settlement. The father, by his will, devised the estates, which were the subject of the settlement of 1789, to his two daughters, in the same manner as they would come unto them if he had died intestate. Held, upon the construction of the settlement, that as there was no son of the marriage, the portions were not raisable. — Wallcott v. Jiloomfield, 4 Dru, & W, 211. By articles, executed upon the marriage of A, and B., it was provided that the survivor should, in case of issue, leave to the said issue two- thirds of whatever property might remain, re- taining one-third ; or to be more specific, that A, 104 Construction, DEED, Construction, should settle upon any children he might have by B. two-thirds of the property he might pos- sess, in case he survived her ; and that B. should be equally bound to settle and hand over to any children she might have by A. two-thirds of any property remaining at the time. There was issue, one child; and B., the wife, having sur- vived, Held, that she was entitled to one-third of all the property of which A. died possessed. — M'Donell v. M'Donell, 4 Dru. & W. 376. By deeds, executed in 1704, Lady Hewley con- veyed estates to trustees, upon trust, to pay out of the rents such sums, yearly or otherwise, to such poor and godly preachers for the time being of Christ's holy gospel, and to such poor and godly widows for the time being of poor and godly preachers of Christ's holy gospel, as the trustees for the time being should think fit ; and to dispose of such sums, and in such manner, for promoting the preaching of Christ's holy gospel in such poor places as the trustees for the time being should think fit ; and also to dispose of such sums as exhibitions for educating such young men, designed for the ministry of Christ's holy gospel, as the trustees for the time being should think fit ; and to dispose of the remainder of the said rents in relieving such godly persons in distress, being fit objects of her and the trus- tees' charity, as the trustees for the time being should think fit. And she directed that when any one of the trustees should die, the survivors should elect in his place such a person as they, in thnr judgments and consciences, should think fit to be a trustee. By other deeds, executed in 1707, Lady Hewley conveyed other estates to the same trustees, partly for the support of poor old people in an alms-house, for the management of which she appointed other trustees ; and after directing that the trustees and the managers should observe the rules which she should leave for the selection and government of the poor people therein, she ordered the residue of the rents to be applied upon trusts which were the same as those contained in the deed of 1704, By the rules left by her for the selection of the old people for the alms-house, she ordered that none be admitted but such as should be poor and piously disposed, and of the Protestant religion, and able to repeat by heart the Lord's Prayer, the Creed, the Ten Commandments, and Bowles' Catechism. At the dates of the deeds, all reli- gious sects tolerated by law believed in the 'Trinity ; but in the course of time the estates be- ciime vested in trustees most of whom were Uni- tarians, and they applied the rents for the benefit of Unitarians, and that sect became tolerated by law. Held, by the Lords, (^affirming judgments of the Court of Chancery), on an information filed in 1830, that neither Unitarians nor mem- bers of the Church of England, but Protestant Dissenters only, were entitled to the benefit of the charities ; and that all the trustees were pro- perly removed, as all had concurred in the mis- application of the charity funds. — Shore v. The Att. Gen. 9 Clk. & 2 Fin. 355. Where, on the construction of a deed, there is a reasonable doubt as to whether the party who is charged as entitled to the first estate of inheri- tance has such estate or not, the court will allow the cause to stand over to be amended, by bring- ing before the court the person who, in the event of the party charged as tenant, in tail, taking only an ettate for life, would indisputably repre- sent the inheritance. — Whaleij v. Morgan, 2 Dru. & Wal. 330. A sum of £7,500, Bank Stock, was vested in trustees, upon trust, out of the proceeds thereof to pay an annuity of £561 to F. for life, and to invest the residue in Bank Stock or government security ; and, upon trust, that after the decease of F., the £7,500 Bank Stock, and the savings of the dividends or proceeds thereof, be divided into five equal shares — a share to be transferred to each of the five persons therein named. One- fifth of the £7,500 Bank Stock was, upon the marriage of one of the parties entitled to the corpus of the trust fund in the lifetime of the annuitant, made the subject of settlement. Held, upon the intention of the parties to be gathered from the nature of the instrument, and upon its construction, that one-fifth of the accretions, by way of bonus, subsequently added to the original capital sum, and also one-fifth of the surplus dividends were subject to the trusts of the settlement. — Plunkett v. Mansfield, 2 Jon. & L. 344. Another of the persons entitled to one-fifth of the corpus of the trust fund, by indenture, reciting that he was entitled after the decease of the annuitant to one-fifth of the sum of £7,500 Bank Stock, in consideration of the sum of £500. sold and assigned £750, or one-half of the sum of £1,500 Bank Stock, and all his estate and reversionary interest therein. Held, that the purchaser was not entitled to the accretions by way of bonus which had been afterwards declared on the £7,500 stock, or to the surplus dividends thereof. — Id. A money fund was vested in trustees upon trust, to permit the intended wife, during the joint lives of herself and her intended husband, to take the interest thereof for her separate use, and after the decease of the husband, in trust for the wife and her assigns diiring her life, in case she should survive him, and after the decease of the wife, as to one moiety of the property upon trust for the sole and absolute use of the wife, to be disposed of by her in such manner as she might by deed or will, notwithstanding her coverture, appoint, and in default of any such appointment upon trust as therein mentioned. The wife cannot during the coverture make am absolute disposition of the moiety of the trust fund. — Nixon v. Nixon, 2 Jon. & L. 416. E. being entitled to an annuity of £480, issuing out of the lands of X., of which her son A. was seised in fee, on her marriage in 1801 with "SV. executed a settlement whereby after reciting that the clear annual rents of X. did not upon an average exceed the sum of £240, and were there- fore insufficient to answer the accruing payments of the annuity, she assigned the aamuity and all arrears and future payments thereof to trustees upon trust, that if A. should attain the age of twenty-one, the trustees should thenceforth during the joint lives of E. and A. thereout pay him a certain annuity, with a proviso for its cesser or abatement, in case A. should become entitled to an annual income of equal or lesser amount, and subject thereto to receive so much and such part of the annuity of £480 as the clear yearly rents of X. should from time to time be sufficient to pay, and pay the same to W, and to E. after the death of W., and to stand possessed of the arrears then due and thereafter to become due of the annuity in consequence of the rents of X. being insufficient to answer same, upon trust, if A. should attain tweuty-one, or marry and survive E., to release the lands from the arrears due at the time of the settlement or Construction, DEED. Construction. 105 thereafter to become due, and if A. should either die in the lifetime of E., or should survive E. and die under twenty-one, and without having been married, to stand possessed of the arrears, upon such trusts as E. should appoint, and in de- fault of appointment to call in and enforce pay- ment thereof, and invest same, and pay the interest thereof to E. for life, then to \V. for his life, and then the principal to the children of E. and W, equally ; and it was declared that, in the mean time, and until under the trusts, the arrears should either become absolutely vested in A., or become absolutely subject to the appoint- ment of E., the trustees should forbear from requiring or enforcing payment of the arrears. A. attained the age of twenty-one years, W. died afterwards, the rent of X. amounted to more than £480 per annum. Held, E. and A. being both living, that the surplus rents, after paying the accruing gales of the annuity, were properly ap- plicable to the payment of the arrears which accrued since the settlement of 1801. — Batteraby V. Rochfort, 2 Jon, & L. 431. B., iu consideration of £2,275, assigned an an- nuity upon her own life, charged upon the estates of X. to A., and covenanted for the payment of it. The deed contained a clause empowering B. to determine and revoke the assignment upon re- payment of the principal sum of £2,275, and discharge of all arrears of the aimuity, " and all proportion of such annual and increased pre- miums as after-mentioned, to be paid by A. to the Hope Insurance Company, if any shall be so paid," provided that whereas A. had assured, or agreed to assure, the life of B. for the sum of £2,275, the aimual premium for which was pay- able in advance at the beginning of each year, it was agreed that if such above-mentioned re- demption should take place at any time after the premium should have been paid for the then cur- rent year, then B. would repay to A. at the time of such redemption, the full proportion of such premium which should belong to such part of the current year as shoiild be then unexpired, whether B. should require the policy of insur- ance to be assigned to her or not, and B. cove- nanted to repay A. all extraordinary expenses of insurance occasioned by her going beyond Eu- rope. A. effected a policy of insiurance on the life of B. for £2,275. Held, that B. was entitled upon repurchase of the annuity to an assignment of the policy. — Williama v. Atkyns, 2 Jon. & L. 603. A sum of money, the property of the intended husband, was vested iu trustees, upon trust, dur- ing the joint lives of husband and wife, to pay the interest to the husband, and, after his de- cease, to permit the wife during her life to receive same, subject, however, to the control and limi- tations as the husband should, by will, appoint, amongst the issue of the marriage living or likely to come forth, and in default of such issue, or of such will, to the wife for her life, and after her decease, as she should appoint, amongst such of the issue as should be then living, and in default of appointment equally, and if no issue living at the death of the wife, over. The wife died, leav- ing the husband and several issue of the marriage her surviving. The husband is not in the events which happened entitled to the trust fund for his own use. — Smith v. Doolan, 2 Jon. & L. 717. Where parties to a deed of settlement contem- plate several states of circumstances, and there is found on the face of the instrument a clear and distinct expression of intention to provide for one event which precisely happened, the terms of gift so expressed are not to be superseded, nor their effect destroyed, by any ambiguity of terms and used solely in reference to other events or states of circumstances which have not happened. — Dill V. Haddington, 8 Clk. & Fin. 168. Upon the construction of the particular instru- ments, held, that, by the conveyance of one-fourth " of and in the leat or water-course," the pur- chaser acquired no interest in the water, other than such part as remained after supplying the public purposes, for which the leat was autho- rised to be made. — Att. Gen. v. The Corporation of Plymouth, 9 Beav. 67. Upon a separation between A. and B., (hus- band and wife,) a deed was executed, making a provision for the wife, and all and every of the children of A. by B., who should attain twenty- one. A reconciliation took place, and another child was born. Held, upon the construction of the deed, that such last-mentioned child did not participate in the provision. — liulme v. Chitty, 9 Beav. 437. By a settlement of the 3rd of July, 1801, cer- tain freehold lands were settled on T. G., on his eldest son, J, G., and his issue, in strict settle- ment, with ultimate remainder to " H. G., (the second son of the settlor,) his heirs, and assigns," and by the same settlement certain other lands, which were partly freehold and partly chattel, were settled on T. G. for life, " and from and after the decease of the said T. G., to the several uses, intents, and purposes, as are hereinbefore expressed and declared " respecting the first set of lands, and subject to which those lands were, in the previous part, limited to the issue of J. G., " to and for the use and benefit of the said H. G., subject to the provisions heretofore made, for the issue of the said marriage." Held, that the se- cond class of lands were settled to the same uses as were declared respecting the first, and that H. G. took an estate in both lands iu fee. — Garde v. Garde, 3 Dru. & W. 435. Principles on which the court acts in suits to set aside deeds on the ground of the intonation of the grantor. — Nayle v. Baylor, 3 Dru. & W, 60. By indenture of settlement in the year 1808, and made on the marriage of A ., certain premises which were chattel, were conveyed to trustees for the use of A. for life, and from and after his decease, subject to a jointure for his intended wife, to the use of the son of the said marriage, and for want of such issue, to the use of A. for ever, and a power was given to A. by the said deed, " that he should be at liberty to raise by deed mortgage, or by any other writing, a sura of £1000, to be applied to any purposes the said A. pleases, in case the said marriage shall take effect, but the said sum of £1000 is not to be raisetl by way of the sale of said lands." A., having become indebted to Q. H., in the sum of £1,600, assigned his life estate to the said Q. H . by way of mortgage, and for the purpose of more effectually securing the payment of the said sum of £1,500, he, by virtue of the power in the said settlement, granted and appointed by way of mortgage the said sum of £1000. In 1817, A. became bankrupt, andvmdcr an order made in the matter of the bankruptcy, all the es- tate and interest of the assignee, and also of Q. H., were purchased by the plaintiff, and as- signed by deed, the 1st of October, 1818. A. subsequently died. On a bill, filed by the plain- tiff, to have the benefit of his purchase, it, was held, on appeal to the House of Lords, that, by 106 Construction. DEED, Construction Virtue of this assignment, the plaintiff became entitled to this sum of £1000, in addition to the life estate of the bankrupt. The cause now coming on, upon the report of the master ascer- taining the amount due to the plaintiff for princi- pal and interest. Held, that the settlement of 1808, under which the right to charge the sum of £1000 arose, authorised the creation of that charge with interest. — Simpson v. 0^ Sullivan, 3 Dru. & W. 446. H. M., on the marriage of his son T. with A. C, conveyed certain lands to trustees, subject to certain specified charges, upon trust, to permit T., during the life of H, M., to receive thereout an annuity of £500, and to permit H. M. to re- ceive the residue of the rents during his life, and after his decease, that the lands should go to T. and his heirs ; and in case A. C. should survive T., whether H. M. should be then living or not, to permit her to receive thereout an annuity of £200, and after the decease of T., to permit the issue of the marriage to receive thereout an an- nuity of £500 ; and H. M, covenanted with the trustees that the lands were free from incum- brances save those specially mentioned, and that " the clear yearly profit rents, now arising out of the same premises, and other the property to which T. M. will be entitled to after the decease of H. M., exceed in value the annual sum of £1000 per ann im, and that the same shall con- tinue to be of the clear annual value of £1000 during the life of the survivor ot them, the said T. M. and A. C. T. and A. C. died in the life- time of JI. M.; the former died intestate, leaving two children, of whom the plaintiff was the sur- vivor. T. was not entitled to any other pro- perty than the settled lands, which were not at any time of the value of £1000 per annum. H. M. regularly paid the several annuities pro- vided by the settlement to the parties entitled to them, and died without making any additional provision for the issue of the marriage. Held, that the covenant as to value endured only dur- ing the lives of T. and A. C, and the survivor ; and that, under the circumstances, no right of an action on it accrued, and a bill praying for com- pensation out of the assets of H. M. for the dif- ference between the value of the settled land and the yearly sum of £1000, was dismissed with costs. — Wood V. Jameson, 1 Jon. & L. 3. The lands of A. and B. were, in 1809, conveyed to such uses as W. C. should appoint, and in de- fault of appointment to J. C, and his heirs, in trust, for W. C, in fee. In 1829, W. C. ap- pointed B. to J. J. H., and his heirs, and by deed of equal date appointed A. to M. B. for the term of 500 years, and subject thereto to himself in fee. The trusts of the term were that if J. J. H. should, by legal process, be obliged to pay, or to prevent legal suits should voluntarily pay, any charge affecting B., then that the trustee should by sale or mortgage of the term raise money to indemnify J. J. H., &c. In 1830, J. J. H,, at the request of \V. C, paid off a judgment of 1817, which had been recovered against W. C, and W. C. covenanted that the sura paid by J. J. H. should be deemed to have been paid by him in discharge of a debt affecting the lands of B. Held, 1. That the judgment wasnot a charge affecting the lands of B., within the meaning of the trusts of the indemnity deed. 2. That by the indemnity deed the power of appointment reserved by the deed of 1809, was exercised to its full extent. 3. That the sum due on foot of the judgment of 181-V, was a charge on the lands of A. in the pri- ority of the date of the judgment, and not of the deed of 1809. — Bickson v. Collis, 1 Jon. & L. 94. By marriage settlement, the husband conveyed an estate in possession in Blackacre, and an es- tate in reversion expectant on the life of J. S., in Whiteacre, and the wife conveyed certain ter- minable leasehold interests upon tnist, after the decease of the husband, to permit the wife to re- ceive the rents of her o^vn lands whether they exceeded £200 a-year or not, but inasmuch as the wife's lands were held for terminable inte- rests, it was declared and agreed that her jointure during her life should be £200 a-year at the least. The lands of Blackacre and Whiteacre were then charged with an annual sum equal to the defi- ciency arising from the rents of the wife's lands being insufficient to answer the jointure of £200 a-year, and it was provided that as J. S. was en- titled to an estate for life in Whiteacre, such part of the jointure as ought to be paid out of Black- acre and Whiteacre, should, during the life of J. S. be borne out of Blackacre, but no part thereof out of Whiteacre, but if J. S. should die in the lifetime of the wife, that from his decease Black- acre should be released from all future payments of the jointure, and the same or such part thereof as ought to be paid out of Blackacre and White- acre should be borne out of Whiteacre, and not out of Blackacre. Held, on construction of the whole instrument that after the death of J. S., in the lifetime of the wife, the jointure was charged on Blackacre and Whiteacre, and that the latter clause only regulated the mode in which it was to be borne as between the lands charged there- with. — Sullivan v. Sullivan, ] Jon. & L. 678. The words, *' during their joint and natural lives," in a settlement, held to mean, "during their joint lives and the life of each of them." — Smith V. Oakes, 14 Sim. 122. In 1773, A. married B., who was seised in fee of estates in Denbighshire. By their marriage articles they covenanted that M. and N. should stand seis'din B.'s estates, (which were men- tioned by their names,) to the use of A. and B., for their lives, and the life of the longer liver of them, remainder to the use of their first and other sons, in tail. B. had an estate in Denbighshire, called Plas Madoc, which was not mentioned in the articles. A. and B. had two sons. In 1802, they and their elder son, conveyed all their es- tates, including Plas Madoc, to a tenant to the priBcipe, and afterwards suffered recoveries of them, for the purpose of barring all estates-tail, reversions, and remainders in the estates, and re- settling them to such uses as A. and B., and their elder son, should appoint, and, in default, to A, and B. for their lives and the life of the longer liver of them, remainder to such uses as the elder son should appoint, and, in default, to such uses as the said estates were and stood limited to by the articles. Held, that the ultimate limitation was wholly inoperative at law, and that it had no effect in equity upon Plas Madoc, and that, sub- ject to the powers and life estates, there was a resulting use, as to it, for B. in fee. In 1809, (at which time A. was dead,) B. and her elder son executed deeds, and suffered recoveries, by which, (after reciting that the son had contracted for the purchase of B.'s life interest in the estates, except as thereinafter mentioned,) they appointed the estates, except Plas Madoc, (which was mention- ed to be, but was not, thereinafter more particu- larly described,) to the uses after expressed; and they granted the estates to E. J. and his heirs, save and except to B . , duringher life, out of the grant, the Construction. DEED. Construction, 107 estate called Plas Madoc, to hold the premises thereby granted, (except as thereinbefore ex- cepted,) to E.J. and his heus, subject, as to Flas Madoc, to a mortgage thereon, to uses which were declared of all the estates, the last being for the elder son in fee. Held at law, that he took an estate in fee, in possession in Plas Madoc. Held in equity, that he took, at the least, an es- tate in fee, in remainder expectant on B.'s death, in Plas Madoc. — Youde v. Jones, H Sim. 131. A., and B, his surety, executed a joint and several bond to C, conditioned to be void on payment of £5 000 by A. C. proved the £6,000 as a specialty debt, under the decree, in a suit instituted by A.'s creditors after his death. After- wards B. paid the £5,000, and thereupon C. ex- ecuted to him a general release of all claims and demands in respect of the bond, and by the same deed covenanted to stand possessed of all monies to be received under the proof, and of all the se- curities for the £5,000, in trust for B., and to use his utmost endeavours to obtain payment of that sum for B.'s benefit. Held, that the legal effect of the release was not controlled by the covenant, and that the master, when he made his report in pursuance of the decree, was justified in disallow- ing the £5,000 as a specialty debt, and in allow- ing it merely as a simple contract debt to B.— Warwick v. Richardson, 14 Sim. 281. A settlement directed the trustees, immediately after the decease of the survivor of the husband and wife, to transfer a fund unto and amongst all and every the son and sons, daughter and daughtei s of the husband and wife, and the children of such son and sons, daughter and daughters, in case any of them should be dead, leaving issue, share and share alike ; but the child or children of such of the said sons and daughters as should be then dead, were to be entitled only to a parent's share ; and in case there should be no child or children of the husband and wile living at the death of the survivor of them, then in trust to transfer the fund to the survivor or his execu- tors, &c. There were three children of the mar- riage, but they all died before either of their parents ; two of them left children, some of whom survived both their grandfather and grandmother. Held, that the surviving grandchildren were en- titled to the fund.— Greere v. Bailey, 14 Sim. 635. Deeds in the nature of family arrangements, are exempt from the rules applicable to other deeds, the consideration for the former being partly value, and partly love and affection. — Persse v. Persse, 7 Clk. & Pin. 279. A suit was instituted by a son against his mother. A compromise was effected, whereby the mother agreed to settle a sum on the son and his family, and pay £170 amongst such of the son's creditors " as should be willing to accept the same in full discharge of their respective debts, and should express their consent " before a given day. None of the creditors assented, and no payment was made to them. The son became insolvent. Held, that the mother was not liable to pay the £170 to the assignees. — Sherwood y. Walker, 6 Beav. 491. Partnership stipulation, that a son of one part- ner, or in case of his minority the executor, should, on the death of such partner, succeed to his share. The court, on the terms of the part- nership deed, considered it an option and not an obligation.— JWrerfjmoA v. Wimble, 6 Beav. 495. Under a general conveyance of freehold and personal property, upon trust, "to pay off all debts due by me to any person whatsoever, and which now affect my said estates hereby convey- ed," bond debts were held to be included, there not appearing to be any judgment debts, and the grantee being the heir of the grantor. — Douglas y. Allen, 1 Con. & L. 367. The acts of parties cannot be allowed to affect the construction of deeds. — Id, The intended wife being seised of a remainder in fee, which would vest in her immediately upon her father's decease, if he died without having had any other issue, it was settled upon the in- tended husband for life upon the death of the wife, " if she ever became entitled thereto, but not otherwise." Held, that the husband's life estate vested in him, although the wife did not survive her father. — Wallace v. Wallace, 1 Con. & L.-491. A. covenanted in B.'s marriage settlement, " that in case there shall not be any issue male of the said marriage, or that all such issue male shall happen to die under the age of twenty one years, or if there shall be three or more daughters of the said marriage, that then and in that case" A. would pay an additional portion of £1,000 among B.'s daughters, at twenty-one, or marriage, as B. should appoint, and in default of such ap- pointment, among "such daughters, in case there shall be three or more, such daughters share and share aUke." Held, that A. was chargeable only in the case of one of the first two events and the last happening together, the last "or" being to be construed "and." — Whitey .Stipple, 1 Con.&L. 525. By a marriage settlement, trusts were declared of a sum of money, the wife's property, for her separate use for Hfe, for her husband for Ufe, for their children, as the wife should, by deed or will, appoint ; in default of appointment, for the children equally; if there should be no child, then for such persons as the wife should appoint, by deed or will ; and in default thereof, for the executors or administrators of the wife. The ul- timate trust took effect. Held, that by the exe- cutors or administrators of the wife, her next of kin, at her death, were meant ; there being, throughout the settlement, an evident intention to exclude the husband from taking more than a life interest. Reversed ; See, 1 Phillips, 1. — Daninl V. Dudley, 11 Sim. 163. In 17u4 Lady Hewley, a Protestant Noncon- formist, conveyed estates to trustees, for the benefit of such poor and godly preachers for the time being of Christ's holy gospel, and for such poor and godly widows for the time being of poor and godly preachers of Christ's holy gospel, as the trustees for the time being should think fit: for promoting the preaching of Christ's holy gospel, in such manner, and in such poor places, as the trustees for the time being should think fit ; for educating such yovmg men, designed for the ministry of Christ's holy gospel, as the trus- tees for the time being should approve of ; and for relieving such godly persons in distress, being fit objects of her own and the trustees' charity, as the trustees for the time being should thiiik fit. At and for several years after the date of the conveyance, all sects tolerated by law believed in the Trinity, but in the course of time the estates became vested in trustees of whom the majority (though calling themselves Presbyterians) were -XJnitarians, and one was a member of the Church of England, and they applied the rents for the benefit of the Unitarians. At the hearing of an information filed against the trustees, the court held that neither Unitarians nor members of the Church of England were entitled to participate 108 Const ruction. DEED. Construction, in the management or benefits of the charity, and ordered the trustees to be removed, and afterwards appointed members of three different sects of Trinitarian Dissenters in their place. — Att. Gen. v. !>hore, 11 Sim. 692. Whether the instrument, in which the word occurs, is a will or a deed, " or," may be con- strued to mean " and," and " and " may be con- strued to mean " or," if such a construction is necessary to give effect to the intention of the party by whom the word is used. — White v. Supple, 2 Dru. & W. 471. Semble. The evidence of a consideration, which is not inconsistent with the consideration set out in the face of the deed, is admissible, in order to support such deed as one for value.^ Nixon v. Hamilton, 2 Dru. & W. 364. A marriage settlement, after reciting that it had been agreed that a cottage, &c., (which the husband held for the remainder of a term of 2,000 years,) should be settled on the husband for life, and after his decease on the wife for life, by way of jointure ; and after their several de- ceases, on the issue of the marriage ; and in de- fault of issue, on W. C, and his heirs, executors, &c., assigned the cottage to a trustee, for the re- mainder of the term, in trust, to permit the hus- band to receive the rents for so many years of the term as should expire in his lifetime ; and after his decease, in trust, to permit the wife to receive the rents during her natural life ; and after their several deceases, to permit the heirs of the body of the husband, begotten on the body of the wife, to receive the rents for so many years of the term as should expire in the life or lives of him, her, or them, respectively ; and after the several deceases of the husband and wdfe, and in default of issue of the body of the husband and wife, as before, limited to permit W. C, his heirs, executors, &c., to receive the rents for all the residue of the term. Held, that, under the fii-st limitation, the term vested in the husband absolutely. — Bartlett v. Green, 13 Sim. 218. A deed, in the Scotch form, made between parties, some of whom were domiciled in Scot- land, and the others in England, construed partly according to the law of Scotland, and partly according to the law of England ; that is to say, so far as it concerned the Scotch parties, according to the Scotch law, and so far as it con- cerned the English parties, according to the English law. — Duncan v. Campbell, 12 Sim. 616. In the construction of family deeds, when the intention is plain to give interest, the court is bound to effectuate such an intention, even though there are no express words to that effect. — Clayton v. The Earl of Glengall, \ Dru. & W. 1. In the year 1710, certain members of Trini- tarian Protestant Dissenting Congregations sub- scribed large sums of money for charitable pur- poses, and executed a trust deed for the manage- ment of the fund. This deed recited that the objects of the trusts were, first, to support the Protestant Dissenting interest against unreason- able prosecutions ; secondly, to educate youth designed for the ministry amongst Protestant Dissenters ; and thirdly, to assist poor Protestant Dissenting congregations. Held, that Unitarian Protestant Dissenters were not within the trusts of the deed. To aid in the construction of such a deed, the court will receive evidence of the acts of the founders, but not of their opinions. Evi- dence is also admissible to explain the significa- tion in which ambiguous words or expressions were generally understood at the time of the execution of the deed. — The Att. Gen. v. Drum- mond, 1 Dru. & \V. 353. A., being indebted to his bankers, executed a deed, purporting to be a mortgage, to them for securing the debt. After executing it he deli- vered it to his attorney, who retained it in his possession till A. 'a bankruptcy, which occurred about a month afterwards. The attorney then delivered it to the mortgagees. Held, that this was a good delivery by A. to the mortgagees. — Grugeon v. Gerrard, 4 Y & C. 119. In 1792, husband and wife, in consideration of a sum of money, executed a conveyance, with a fine of the wife's estates of M. and F., to O., in fee. In August, 1798, they conveyed the M. estates alone to O., in fee, with a declaration that the fine already levied should enure to the uses of that deed. In November, 1 798, by a deed reciting that the original transaction was only a mortgage, and that it had been lately discovered that the wife had only a life interest in the F. estate, the husband and wife, in consideration of a further advance of money from O., conveyed to him the wife's life interest in that estate. O. never executed the last-mentioned deed, but he entered into possession of both estates at the time of its execvition. Upon a bill filed in 1836 by the heir of the wife, to redeem the P. estate. Held, that he was not entitled to relief; for that, with the exception of the recital in the deed of November, 1798, the circumstances of the case were consis- tent with the original transaction, being a pur- chase ; and that, although O. entered into pos- session under that deed, yet not having signed it, he was not bound by its recitals. — Tull v. Owen, 4 Y. & C. 192. The court refused, after a long lapse of time, to rectify a deed, by altering it from an absolute conveyance to a mortgage. — Id, No person can bring an action on an indenture unless he is a party to it, or claims through a party. But a deed poll may be so conducted as to give a right of action against the person who executed it. — Gardner v. Lachlan, 8 Sim. 123. By a marriage settlement, the wife's portion was limited to the wife for life, with remainder to the husband for life, ■with remainder to the children of the marriage, to be vested at twenty- one, or marriage, and in case none should attain that age, or marry, then, in trust, for the brothers and sisters of the wife or their issue, as she should appoint, and in default of appointment, in trust, for her next of kin. Held, that the children of the marriage were not excluded from taking under the ultimate limitation. — Withy v. Mangles, 4 Beav. 358. On the marriage of a lady, who was possessed of funded property, and shares in water- works, the funded property alone was settled ; the set- tlement, however, contained a recital of an inten- tion that all property which the wife, or her hus- band in her right, should, after the marriage, be- come entitled to, should be settled on similar trusts, and a covenant by the husband and by the wife that all property which she or her hus- band in her right should, after the settlement, become entitled to, should be settled. Held, that the shares were subject to the trusts of the set- tlement. — James v. Durant, 2 Beav. 177. A., being entitled to a contingent interest in £1,000, being a moiety of £2,000, part of a sum of £20,000, directed by the will to be invested, and which was accordingly invested in the 3 per cent, consols, advertised it for sale by auction, describ- Construction, DEED. Void and Voidable, 109 ing it as a reversion to £1,000 principal money, payable on a contingency, and part of a sum of £20,00(1 invested in the 3 per cent, consols. The interest having been put up for sale in pursuance of the advertisement, B. became the purchaser, and by an indenture reciting the bequest, the in- vestment of the legacy, and the purchase at the sale. A, assigned toB. " all that sum of £1,000 sterl- ing, being one moiety of the legacy or sum of £2,000 bequeathed by the will." Held, that B. ■was entitled to the value of the £1,000 in its state of investment. — Lucas v. Bond, 2 Keen, 136, 496. Held, upon the construction of a marriage set- tlement, that under a limitation " to the execu- tors, administrators, or assigns, of the settlor, to and for his and their own use and benefit," his executors were not entitled beneficially. — Hamea V. Names, 2 Keen, 646. Construction of a clause of accruer "in case of any younger son becoming an eldest or only son." An estate was limited to A. for life, with remainder to his first and other sons in tail, and a term was created for raising portions for youn- ger children, to be interests vested in sons at twenty-one, but payable after the death of A. ; and it was provided that in case any of the younger sons should become an eldest or only son, his portion should accrue to the other chil- dren. A. had had two sons, B. and C, nnd one daughter. B. attained twenty-one, sufiered a recovery, whereby he destroyed C.'s estate in remainder. B. died in 1807, leaving C. an in- fant, to whom he devised the estate for his life. A. died in 1833. Held, that C. was not entitled to participate in the portion. — Peacocke v. Pares, 2 Keen, 689. The wife of a partnership creditor of an intes- tate, being one of the intestate's next of kin, duly executed a proxy of renunciation of the adminis- tration of the intestate's efiects. A few days af- terwards the creditor executed a deed-poll, by which, after reciting the insolvency of the intes- tate's estate, and that a composition deed had been executed by the creditors, in which they agreed that A. should have administration of in- testate's effects, and reciting that A. had executed to the creditor a bond which the latter had agreed to accept in satisfaction of the debt, it was declared that the same when paid should be ex- ecuted by him the creditor, in fuU payment, and satisfaction of all and every sum and sums of money due or owing by or from the said intes- tate, to him the said creditor, on account of the partnership or any other account whatsoever, and of all claims and demands whatsoever of him the said creditor, on the estate and effects of the said intestate. Held, that this amounted to a release by the creditor of his wife's distributive share in the residue of intestate's personal estate, although such residue was not mentioned or re- ferred to in the deed-poll. — Skeffington v. White- hurst, 3 Y. & C. 1. A father, by deed, settled certain leaseholds upon his son H. O. D. absolutely, and a certain rent-charge, and stock in the public funds, upon H. O. D. for life, with remainder to his children. The settlor afterwards, by a deed-poll which he had reserved to himself power to make, revoked all the uses, trusts, estates, &c., of the settlement so far as the same related to his son H. O. D., and declared that all estates, shares, right, inte- rest, and benefit whatever, given by the settle- ment to or in favour of the said H. O. C, should be and remain to the use of trustees, their heirs, executors, and administrators, in trust, during the joint lives of H. O. D. and his wife, M, D., to pay the annual income to M. D. for her sole and separate use, and for the support of her children by H. 0. D., and if H. O, D. should die in the lifetime of M. D., in trust, to pay the same to her during her widowhood, for the sup- port of herself and her said children, with a li- mitation over in favour of such children, in case of her death or second marriage. H. O. D. died in the lifetime of M. D., leaving several children by her. Held, that the deed-poll was not to be considered merely as a revocation of H. O. D.'s life estate, but that the trusts of the second deed were to be substituted for the trusts declared by the first deed in favour of H. O. D, " conse- quently, that M. D. took an estate for life, or during her widowhood, in the rent-charge and stock, as well as in the leaseholds. — Angell y, Dawson, 3 Y. & C. 308. IX. Void and Voidable. A deed which takes effect by delivery, and is executed by an infant, is voidable only, and not void, Zouch V. Parsons, (3 Burr, 1794)", is sound law. A voidable deed is valid until some act is done to avoid it, and it lies upon those who claim in op- position to the deed to shew that such act has been done. A father, a tenant for life of an es- tate, pur auter vie, and his son tenant quasi, in tail, in remainder under a marriage settlement of the year 1767, join in executing a deed of the year 1792, the son being at the period of the ex- ecution of such deed under age, whereby the lands were conveyed to a trustee upon ti-ust, for the father for life, remainder to the son, if he survived his father, absolutely, but if he died in the lifetime of his father without issue, then to the father absolutely. In this deed there was contained a power enabling the father and son to revoke the uses, and declare new ones. The father in three years after executed a deed, by which he purported to convey all his interest to the son, but still remained in possession, and sub- sequently obtained a renewal to himself from the head landlord. The father and son subsequently join in selling part of the lands comprised in the original settlement, creating the quasi entail, and on that occasion exercised the power of revoca- sion, which was contained in the deed of 1792. The son in 1815 executes a settlement upon the occasion of his marriage, (his father being then alive, but not a party to the deed,) by which deed he conveyed the lands to trustees upon certain trusts for himself for life, for his intended wife, and the issue of the marriage, and in default of issue for himself absolutely. The son survived the father, and died in 1832, leaving issue one daugh- ter only. The next tenant quasi in tail, under the original settlement of 1767, filed his bill, claiming under the entail as still subsisting. Held, that by the operation of the deed of 1792, which was voidable only, and not void, and which had been afterwards oonfiimed by the son by the ef- fect of subsequent dealings with property, the quasi in tail had been effectually barred. — Allen V. Allen, 2 Dru. & W. 307 : 1 Con. & L. 427. The plaintiff cohabited with M. S., a married woman, andin consideration of her agreeing to con- tinue to cohabit with him, he executed a deed, *' for the consideration therein mentioned," where- by he granted to a trustee, for her, an annuity to no Estoppel. DEED. Registration of. commence on his death, marriage, or -withdrawing his protection from her, and covenanted to charge any' land that he should become possessed of, ■with the annuity, and for further securing the annuity, he executed a bond, on the penalty of £1,000, to the trustee, and gave a warrant of at- torney to enter a judgment against him on the bond, judgment was entered up against him at the suit of the trustee, for £1,000, and costs. Some years afterwards the plaintiff married, pre- viously to which he had put an end to his inter- course with M. S., and having been advised that the annuity deed, and collateral securities, which he stated to have been obtained from him in con- sideration of future cohabitation, were not bind- ing upon him, he refused to pay the annuity. In consequence of which, M. S., in the trustee's name, brought an action against him, on the judgment. The bill prayed that the annuity deed and collateral securities, might be declared void, and be delivered up to be cancelled, and that the trustees might enter up satisfaction on the judg- ment, and that the action might be stayed. The trustee put in a general demurrer, which was al- lowed. — Smyth v. Griffin, 15 Sim, 245. X. — ^LosT. A. made a mortgage to B., and delivered to him the title d^eds of the estate. Some years after- wards A. gave B. notice of his intention to pay off the mortgage at the end of six months, but did not pay the money until after that time, owing to B. not having offered him any indemnity that was satisfactory to him, in respect of B. having lost some of the deeds. B. then brought an ejectment for the estate ; whereupon A. filed a biU to redeem. The court decreed a redemption, and ordered that a sum which A, had paid for interest accrued on the mortgage- money, after the expiration of the six months, should be repaid to him ; that B. should give him an indemnity, to be approved of by the master, and also pay the costs of the ejectment, and of the suit. — Middleton (Lord) v. Eliot, 15 Sim. 531. Evidence of the loss of a deed and of its con- tents, though not strictly formal, held to be suffi- cient. — Green v. Bailey, 15 Sim. 542. A memorial is good secondary evidence of a lost deed. — Allen v. Allen, 1 Con. & L. 427. XI. — ^Estoppel. A conveyance by lease and release does not operate by estoppel ; Right v. Bucknell, (2 B. & Adol. 278,) overruling Bensley v. Burdon (2 Sim. & S. 519).— Lloyd V. Lloyd, i Dru. & W. 354. D. and F. made a vnritten agreement, for a lease, a lease is executed according to the express terms of the agreement. In a suit instituted by D. to reform the lease, by introducing a new term ; Held, that parol evidence was not admiss- ible to shew that the lease, though in strict con- formity with the tprms of the written agreement, was conti ary to its spirit, as there was somethmg dehors the contract, agreed upon between the parties, yet omitted in the lease. Semble, If there had not been a written agreement, the evidence would have been admissible. — Davies v. Fitton, 2 Dru. & W. 225. There is no objection to correct a deed by parol evidence, where there is anything in writing be- yond the parol evidence to go by, but where there is nothing but the recollection of witnesses, and the defendant, by his answer, denies the case set up by the plaintiff, the plaintiff appears to be without remedy. In the principal case the parol evidence was corroborated by the documents, and subsequent transactions in the cause. — Mortimer V. ShortaU, 2 Dru. & W. 363. A. being seised of estates inC, and having pro- posed to settle a certain part of them on his mar- riage, a settlement was made of all his estates in C, which were intended to be specified and de- scribed in the schediUe thereunder written, " but which schedule is not intended to abridge or affect the generality of the description hereinbefore con* tained." Held, from the disposal and other evi- dence that the words in italics were inserted by mistake. — Walsh v. Trevannion, 16 Sim. 178. XII. — ^Eefoemation and Mistake. The court, under the circumstances of the case, refused to set aside deeds executed by one under restraint in a lunatic asylum, under medical cer- tificates. — Selby V. Jackson, 6 Beav. 192. When a party, without authority, but bona fide assumes the management of the property of one mentally incompetent, this court will not, on his recovery, restore to him his property without making an equitable allowance for the expenses and liabilities. — Id. Where a release has been executed and the parties have for a long space of time acquiesced in it, the mere proof of errors will not, in the ab- sence of fraud, induce the court either to set it aside, or to give leave to surcharge and falsify; but the nature and amount of the errors alleged and proved may have a very considerable effect in the consideration of the question whether the release was fairly obtained. — Millar v. Craig, 6 Beav. 433. XIII. — Reoistbation op. A. being entitled to land in Ireland, was dis- charged in England, as an insolvent debtor, under the 1 Geo. 4, c. 119. The assignment of all his estate and effects to the provisional as- signee, was filed in the Insolvent Court, but was not registered. The sub-assignment to the general assignees was registered. Afterwards A., by deed duly registered, conveyed his Irish estates in mortgage to B., who had no notice of the in- solvency. The title of the mortgagee is to be pre- ferred to that of the assignees of the Insolvent. — Battersby v. Rochfort, 2 Jon. & L. 431. In a suit to carry into execution the trusts of a will, it was ordered that the receiver should out of the rents pay to H. a feme covert, and the devisee of the real estates, the annual sum of £400 for her separate use, and on her own receipt, by way of maintenance. By a deed subsequently executed, to which H. and her husband were parties, the estates, subject to certain charges, were conveyed in fee simple to such uses as H. should by deed appoint. In 1839, H., in con- sideration of a sum of money then advanced to her, conveyed the estates in mortgage to the plaintiff, and by a subsequent witnessing partly for the better securing the payment of the interest, assigned the allowance of £400 a year, to a trustee, with power to give receipts for the same, upon trust, to pay thereout the interest to the DEVISE. Ill ?laititiff and residue to the separate use of H. his deed was registered. The memorial of it set forth the several denominations of lands conveyed by it, and stated that they were subject to cer- tain charges, as the same or the interest of H. were rightfully subject to, under certain inden- tures and arrangements in said mortgage recited, but it did not mention the assignment of the allowance of £400 a-year. In 1840, H. in con- sideration of a sum of money then advanced, mortgaged the same estates to the defendant, and by a separate deed, assigned the allowance of £400 a-year to trustees, upon trust, thereout to pay the interest of the money then advanced, and to pay the residue to H. These deeds were duly registered. Tlie defendant had not when he advanced his money, actual notice of the assign- ment of £400 a-year to the plaintiff, but he had notice of the plaintiff's mortgage. After the execution of the defendant's mortgage deed, and before the payment of the money, the defendant gave notice of the assignment of the allowance to the receiver, the plaintiff then gave notice of the assignment to his trustee, and afterwards the de- fendant obtained an order in the cause, that the receiver should pay the allowance to his trustee. Held, that the allowance of £400 a-year, was not a chose in action. — Rochardx, Fulton^ 1 Jon. & L. 413. That it was a portion of the estate of H, in the lands, and not an interest therein, distinct from the estate vested in her. — Id. That the memorial of the first mortgage was a sufficient memorial of the assignment of £400 a- year to the trustee of the plaintiff. — Id. Actual notice of the memorial of a deed, which firom the memorial appeared to be conversant with all the estate of the grantor in the lands con- veyed, is such notice of an assignment of a partial interest of the grantor in the same lands, made in trust for the same grantee, by the same deed, but not mentioned in the memorial, as will avoid the effect of a subsequently registered assign- ment of that partial interest. — Id. In 1808, T. granted an annuity to Sir J. P., by deed defectively registered. In Trinity Term, 1822, N. obtained a judgment against T., and in Michaelmas Term, in the same year, M. also obtained a judgment against him. In 1826, T. executed a mortgage to C, and in 1829 granted an annuity to W., by deeds which were duly registered. In 1831, J. T. who was entitled to one moiety of the annuity granted to Sir J. F. by the deed of 1808, filed his bill. To this W. C. and M. were parties, but not N, ; upon the 21st of November, 1838, J. T.'s cause was heard upon an order to take the bill as confessed against the executors of M., and upon pleadings and proofs as to the other defendants, and a decreee to account was had, admitting the priorities of C. and W. over J. T.'s demand. Upon the 11th of November, 1839, the master made his report under this decree, finding that M. had not filed a charge upon foot of his judgment, and that J. T. had since the pronouncing that decree purchased the mortgage of C, and annuity of W., but had not made any claim upon foot thereof. Upon the 26th November, 1839, a final decree was had in J. T.'s cause. Held, that J. T. by purchasing up the claims of C. and W., and not making any claim founded on the rights thereby acquired, deprived N. of the priority to which to which he was previously entitled, that priority ceasing as soon as the conflict between the registered and the unregistered deeds determined. Held, also that the executors of M. were excluded by the final decree in J. T.'s cause, they having allowed a decree pro confesso to be taken against them, and not having filed a charge under the decree to account in that cause. — Murtagh v. Tisdall, Fl. & K. 20. An assignment of a legacy charged upon land, is an assignment of money only, and does not affect the laud within the meaning of the registry acts. The registration of such an assignment thereof, does not postpone a prior unregistered assignment of the same legacy. — Malcolm v. Charlesworth, 1 Keen, 63. DEFENDANT. See Parties. — Pe. Evidence. — Pb. Contempt. — Pb. Defendant. DEMURRER. See Pa. Demtjbeer. — ^Pl. Demxikeeb. DEPOSIT. See JBauiTAELE Mortgage. — Vendor and PUEOH. DEPOSITIONS. See Pe. Interrogatoeies. DEVISE. See Will. A person being in prison for contempt, in not executing a deed, making a surrender, or levying a fine, &c., according to decree, the court may, after two months, order a master to execute such deed, &c.— Rule 15, 1 Will. 4, c. 36. Devisees in trust, vrith power to sell, &c., to represent persons beneficially interested, in the same manner as executors represent personal estate.— 30 Gen. Ord., 26th Aug. 1841. Beav. ed. 173. Where estates are devised to trustees and exe- cutors, subject to, and charged and chargeable with the pa5'ment of debts, &c., upon certain trusts, with a direction for the sale of the estates, although there be no express power to give dis- charges for the purchase money, the trustees re- present the cestui que tnist under this order. — Savory v. Barber, 4 Hare, 125. And in a suit by creditors to establish their debts against real estate, devised within the meaning of this order, pecuniary legatees, whose legacies are charged upon the real estate, are re- presented by the trustees. — Ward v. Baasett, 5 Hare, 179. So the residuary legatee of the proceeds of real estate is an unnecessary party to a bill, by the legatee, of part of the proceeds. — Reeve v. Richer, 11 Jur. 960. But where the trust, or power of sale, is not immediate, as where the devise is to trustees for certain persons for life, and after their decease for sale, the cestuit que trust in remainder, must be made parties. — Cox v. Barnard, 5 Hare, 253. 112 DISCLAIMER.— DISSENTERS. Cestui que trust for life, is a proper party in n creditor's suit. — Hill v. Ledbrook, 6 Jur. 1078. Bill for the specific performance of a covenant, wliich entitled plaintiff to an aliquot share of the testator's estate, real and personal, with the other children of the testator. Held, that the other children of the testator were necessary parties, although the real and personal estates were de- vised and bequeathed to trustees, upon trusts, for sale ; and with the powers mentioned in this order for the benefit of the other children. — Jones V. How, 12 Jur. 227. If an estate is devised to A., and his heirs, upon certain trusts, A. ought not to devise the estate, but ought to let it descend to his heir. If he devises it, his assets ought to bear the costs of getting the legal estate out of his devisee. — Cooke V. Crawford, 13 Sim. 91. Devisee not bound by the amount of a claim substantiated against the executors, in an action at law, to which he was not a party. — Willson v. Leonard, 3 Beav. 373, DISCHABGE. See Pe. Charge and Discharge. DISCLAIMER. Where, on a bill of foreclosure by a first mort- gagee, against a second mortgagee and a mort- gagor, the second mortgagee, by his answer, dis- claimed, yet the plaintiff brought the second mortgagee to the hearing, no costs were given to the second mortgagee on the decree against him, upon the preponderance of modem decisions, though formerly the practice was to give such disclaiming second mortgagee defendant his costs, the plaintiff adding such costs to his own. — OArly V. Jenkins, 1 De G. & S. 543. A bill filed against trustees, to compel the transfer to the plaintiff of a fund to which he stated that he was solely entitled, joined as de- fendants certain persons, who had, as the plaintiff alleged, rendered the suit necessary, by calling upon the trustees to transfer the fund to them ; and the bill therefore prayed that they might pay the costs of the suit. The defendants in question put in what they called an answer and disclaimer ; in which they merely stated that they did not now claim, and never had claimed, any interest in the trust fund in question. Upon exceptions taken to this answer and disclaimer, which covered the whole of the interrogating part of the bill, the Vice Chancellor held the ex- ceptions good, except as to one interrogatory, which he thought was immaterial. Held, upon appeal, that his Honour's order was right. Semble. That the plaintiff was entitled to an answer to all the interrogatories in the bill. — Graham v. Coape, 3 Myl. & Cr., 638. In a suit by a second mortgagee to foreclose and redeem, certain defendants, including the provisional assignee of the insolvent mortgagor, disclaimed. They were, however, brought to a hearing, and it there appearing that there was insufficient to pay the first mortgage, the plaintiff declined taking the account. The bill was dis- missed, as against the disclaiming defendants, without costs, and the first mortgagee alone was held entitled to his costs, — Gibson v. Nichol, 9 Beav. 403. If some of the defendants in a foreclose suit disclaim, the court will decree them to be fore- closed, and not simply dismiss the bill as against them. — Perkin v. Stafford, 10 Sim. 562. A bill was filed by a person claiming to be en- titled to a trust fund, against the trustees and another party, who it alleged claimed an interest in the fund, and it contained various allegations tending to shew that he had mixed himself up with the whole transaction, and had rendered the suit necessary by his personal conduct, and it prayed that the party might pay the costs of the suit. Held, that as the bill did not state simply that the defendant claimed an interest in the fund, it was not sufficient for the defendant to put in a disclaimer, but that he must answer the bUl fully. —Graham v. Coape, 9 Sim. 93. The plaintiff, who was entitled to the tithes arising on the defendant's land, served the de- fendant with notice that he had, by a certain in- denture and lease, demised those tithes for a term of years. The plaintiff afterwards filed the bill for an account of the same tithes. It appeared that the lessee disclaimed all interest in the tithe ; and the lessee also put in a disclaimer in the cause. Held, that upon the disclaimers, the court might safely make a decree upon the evi- dence then before it, without directing an enquiry with reference to the alleged demise. — Mounsey V. Bwnheim, 1 Hare, 15. Where, in a suit for small tithes by the vicar against occupiers, the rector is a defendant, and disclaims, the court may use the disclaimer for the purpose of founding upon it a decree for the particular tithes demanded by the plaintiff in the suit, but not for the purpose of proving the right of the vicar to such tithes. — Salkeld v. Johnston, 1 Hare, 196. DISCRETIONARY POWER. See Power. A testator gave £150 a-year to such of his re- lations as his widow should deem requiring and most meriting such relief. Held, that a widow of the testator's brother was not an object, and the widow having given a portion to such widow, and the remainder to the relations, Held also, that a relative to whom no part had been appro- priated, and who did not shew himself to possess the qualification, had no right to question the misappropriation. — Harvey v. Harvey, 5 Beav. 134. DISCOVERY. See Pl. Bill op Discovery — Pr. Bill op Discovery. DISSENTERS. For regulating suits relating to dissenters. See 7 & 8 Vic. c. 45. In 1704, Lady Hewley, a Protestant Noncon- formist, conveyed estates to trustees for the bene- fit of such poor and godly preachers, for the time being, of Christ's holy gospel, and for such poor and godly widows, for the time being, of poor and godly preachers of Christ's holy gospel, as the trustees, for the time being, should think fit for promoting the preaching of Christ's holy gospel, in such maimer, and in such poor places, as the DISTRIBUTION.— DOMICILK. 113 trustees for the time being should think fit ; for educating such young men, designed for the ministry of Christ's holy gospel, as the trustees for the time being should approve of; and for re- lieving such godly persons in distress, being fit objects of her own and the trustees" charity, as the trustees for the time being should think fit. At and for several years after the date of the con- veyance, all sects tolerated by law believed in the Trinity, but in the course of time the estates became vested in trustees, of whom the majority (though calling themselves Presbyterians) were Unitarians, and one was a member of the Church of England, and they applied the rents for the benefit of XTnitarians. At the hearing of an in- formation filed against the trustees, the court held, that neither XTnitarians nor members of the Church of England were entitled to participate in the management or benefits of the charity, and ordered the trustees to be removed, and after- wards appointed members of three different sects of Trinitarian dissenters in their place. — Att. Gen. v. Sho)-e, n Sim. 592. A bequest for the assistance of Unitarian con- gregations held to be valid, and the trust directed to be carried into execution. — Shrewsbury v. Hornby, 5 Hare, 406. DISTRIBUTION. See Will. — ^Exons. & Admohs. See 22 & 23 Car. 2,c. 10, explained 29 Car. 2,c. 3. On the marriage of A. a certain sum was settled in trust for her for life, "as and for her joitnure, in full lieu, bar, and satisfaction of any dower, or thirds, which she could or might claim at common law, out of all or any of the estates, real, personal, or freehold," of her intended hus- band. Held, afiirming the decree of the Court of Chancery of Ireland, that this settlement barred her claim on the personal estate of her intestate husband, under the statute of distributions. — Gurly V. Gurly, 8 Clk. & Fin. 743. Testator directed his residuary real and per- sonal estate to be divided, by his trustees, in such shares and at such times as they should think proper, amongst his nephews. A., B., and C, and his other nephews and nieces, sons and daughters of his late sisters T. and H., who should be living at his decease, and the children of any other such nephews and nieces, who, having died in his lifetime, had left issue. There were several children, and children of deceased children, both of T. and of H., living at the testator's death. The trustees not being able to agree as to the di- vision of the property, the court ordered it to be divided amongst the children and the children of the deceased children of T. & H., per capita. — Tomlin v. Hatfield, 12 Sim. 167. Testatri.x bequeathed her residue to A. T., after her death to be equally divided between S. L. and M. S., the daughters of her sister E. S., and E. B., the daughter of her sister S. M., and her children. E. B. had eight children living at the testatrix's death, and one born eifterwards and during A. T.'s life. Held, that the residue on A. T.'s death was divisible amongst S. L., M. S., and E. B., and her nine children equally. — Len- den V. Blackmore, 10 Sim. 626. Where an intestate leaves a widow but no next of kin, the widow is not entitled to the whole of his personal estate, but one moiety belongs to her, and the other to tiie crown. — Cave v. Roberta, 8 ,Sim. 214. DOMICILE. The domicile which an owner of personal pro- perty has at the time of his death, determined whether it is or not liable to the legacy duty. — Thomas v. The Advocate General, 12 Clk. & Fin. 1. A domiciled Englishman (while resident at Milan) executed in October, 1838, a codicil, dis- posing of personal property, situate in the United States of America. TTiis codicil was holograph, signed, though not tested but was executed according to the Austrian law. Held, by the judicial committee, (affirming the judgment of the Prerogative Court) — first, that the validity of the codicil was to be governed by the law of the domicile, and secondly, that the provisions of the 1st Vict. c. 26, applied to testamentary papers, made in foreign countries by a domiciled Englishman. — Croker v. The Marquis of Hertford, i Mo. 339. A British subject went to settle in France in 1762, and afterwards purchased an estate, and became naturalized there. In 1791 he left France and came to England, in consequence of the French Revolution, and shortly afterwards Ills property was. confiscated by the revolutionary government. In January, 1802, he made a will in London, by which he left his property, partly to a charity in Ireland, and partly to individuals resident in England, and appointed one of those individuals his executor. In April, 1802, emi- grants were permitted to return to France, and soon afterwards he returned to that country. In 1804, he made a will in Paris, in which he stated that he was bom in Waterford, and had come to France to obtain restitution of his estate, and after referring to his former will (which he had mislaid in London) he recapitulated very nearly its contents, and concluded by expressly con- firming it. He died in Paris in 1806, and his two testamentary papers were proved both in France and England. Under the treaty of peace between England and France in 1815, a large sum of French stock was set aside by the then French government for the purpose of compensating British subjects, whose property had been con- fiscated by the revolutionary government, and part of that sum was awarded, by commLssioncrs appointed by the British government, to the testa- tor's executors, for the loss of the testator's pro- perty in France. The commissioners, under the powers of an act of parliament, sold the stock so awarded, and paid the proceeds into the Court of Chancery. Held, that the testator was domicil and in France at his death, and that fund in court was not subject to legacy duty. — The Com- missioners of Charitable Donations and Bequests in Ireland v. Devereux, 13 Sim. 14. A native of Scotland died domiciled in Dome- rara, having personal property in Scotland, and having left legacies to persons in that country. Held that the legacies were not liable to legacy duty. — Thompson v. Ttie Advocate General, 13 Sim. 153. The law of the domicile of a deceased person, governs the succession of his personal estate wherever situated, but the estate itself must be administered in the country in which possession is taken of it under lawful authority. — Prestoiiv. Melville, 8 Clk. & Fin. 1. In matters to be determined by the domicile of the parties, it is a principle of the law that the domicile's origin must prevail, until the party has not only acquired another, but has mani- fested and carried into execution an intention of I 114 DONATIO MARTIS CAUSA.— DOWER abandoning his former domicile, and acquiring another as his sole domicile. — Dalhousie M'Dnuall, 7 Clk. & Fin. 817 ; Mmro v. Munro, 7 Clk. & Fin. 842. In order to acquire a domicile, there must be actual residence in the place chosen, which must be the principal and permanent residence of the party. — Id. By marriage the domicile of the wife becomes that of the husband. — Id. In and before 1805, A. and his wife, who were Biitish-born subjects, were domiciled and natur- alized in the Danish island of St. Croix. In 180.5 they came to England, and weradomiciled there at their deaths. In 1807 they made a joint will, by which they bequeathed a sum belonging to them jointly, and which was invested on, a mortgage in St. Croix, amongst their children and grand- children, and appointed their son, and the hus- band of one of their deceased daughters (both of whom were Danish subjects, domiciled in St. Croix) their executors. In 1814, A. made a se- parate will by which he gave the mortgage money to his wife. A. died in 1819. In 1822 the wife made a separate will by which she gave tlie money to two of her daughters ; she died in the same year. The separate wills were proved in the Prerogative Court of Canterbury, afterwards the joint wiU was proved in St. Croix, by the executors named in it. Held, that the legatees under the wife's separate will, and not the legatees under the joint will, were entitled to the mortgage money. — Pricey. Dewhwst, 8 Sim. 279. If a british subject, domiciled in a foreign country, by his will appoints A. his executor, that makes a 'disposition of his personal property, which, though valid by the laws of England is invalid by the laws of that foreign country, the Court of Chancery is at liberty, notwithstanding probate may have been granted to A. in this country, to hold that the wUl has no operation beyond appointing A. the executor. — Thornton v. Curling, 8 Sim. 310. DONATIO MARTIS CAUSA. A. shortly before his death stated to the de- fendant, who was his solicitor and land agent, that he intended to make hun a present of £300, and subsequently being taken suddenly iU, he sent for the defendant, and desired him to retain that sum out of the balance in his hands. There was no third person present on either of those occasions, and on the day following the last con- versation A. died. Upon the death of A. inl831, the defendant informed A.'s executors of the gift, and assisted them in making out an account of thetestator's assets, in which the £300 was treated as a gift by the testator in his lifetime, and in the inventory returned to the Ecclesiastical Court, and the account settled with the Stamp Office, a like credit was taken. In 1832, the defendant at the request of one of the executors, furnished an account in which among other things, he stated all the circumstances under which he claimed to be entitled to this sum of £300, taking credit for it against the balance in his hands, and seeking to retain the residue of said balance in discharge of certain costs due to him and his partner, in a suit in the Exchequer in which he had been em- ployed for the testator in his lifetime, and after his death for the executors, the amount of whiclr costs, however, had not been ascertained. This account was retained by the executors without any objection. Upon a bill filed by the execu- tors in 1839, against the defendant, for an account of the sums due by him, as an agent to the estate of the testator, Held, that the gift of the £300 could not be supported, that the executors had not confirmed said gift, and were not precluded by any acquiescence from disputing same. — Walshv. Stoddart, 4 Dru. & W. 159. Wliere a disposition of money is attempted to be supported as a donatio mortis causa, a mere general statement of the fact of a gift having been made is not sufficient, the court requires to be informed of the most minute particulars, how, and where, and in whose presence the gift was made, and in what condition of mind and body the alleged donor was. It is essential to the validity of a donatio mortis causa, that the money or the subject of the gift should be actually handed over at the tivcie.— Thompson v. Heffer- >nan, 4 Dru. & W. 285. A. being in a declining state of health, delivered to B. a locked cash-box, and told her at his death to go to his son for the key, and that the box contained money for herself and entirely at her disposal after he was gone, but that he should want it every three months whilst he lived. The box was twice delivered to A. by his desire, and he delivered it again to B., and it was in her possession at his death. The box was broken open by B. after A.'s death, and contained a cheque for £500, drawn by C. in favour of A., and enclosed in a cover, endorsed withB.'s name, and the key (which A .'s son had refused to de- liverd to B.) had a piece of bone attached to it with B.'s name written on it. Held, that there was donatio mortis causa. — Reddel v. Dobree, 10 Sim. 244. A person having some Dutch bonds, and the title deeds of certain estates, which he keeps in a box, delivers the key of the box to J., in whose house he lives, and with whom he is on terms of intimacy, and tells a third person that the con- tents of the box belong to J. He has ever kept possession of the box, directing J. to open it for him, from time to time, as occasions require. He also receives the dividends due on the bonds, anda few weeks before his death, being in his eightieth year, and infirm in health, he directs his nurse to deliver the box to J., which she accordingly does, and J. keeps the box till his death. Upon the box being subsequently opened.the envelope in which the bonds are contained is found to be addressed in the hand-writing of the deceased to the wife and sister of J., with a direction that it is to be delivered "unopened," and attached to the envelope is a letter addressed by the deceased to the same persons, stating the shares in which each is to have the benefit of the bonds, stating also by way of postscript to J. that the writer talces this course solely to evade the legacy duty, and that he recommends perfect silence on the subject. The transaction amounts either to a gift inter viros, or to a donatio mortis causa in favour of the wife and sisters of 3 .—Farquharson V. Cave, 2 Coll. C. C. 356. DOWER. See Election. — HusE. and Wife. I. When Wife not entitled to 115 II. Wife entitled to 115 III. Parties to 116 IV. Not Passing by Assignment 116 V. Legacy in Lieu of 116 men Wife not entitled to. DOWER. Wife entitled to. 115 I. When Wife not entitled to. See the law for the amendment of, 3 & 4 W. 4, c. 105. On the marriage of A., a certain sum was set- tled in trust for her for life, " as and for her iointure, in full lieu, bar, and satisfaction of any dower or thirds which she could or might claim at common law, out of all or any of the estates real, personal, or freehold," of her intended hus- band. Held, affirming the decree of the Court of Chancery of Ireland, that this settlement barred her claim on the personal estate of her in- testate husband, under the statute of distribu- tions.-— GiwZy V. Gurly, 8 Ok. & Fin, 741. A. being equitable tenant in tail of certain lands, some of which were fee simple, and some held under leases pur auter vie during the life- time of his father, the prior tenant for life, and before he obtained the actual possession of said lands, sold a portion of the leasehold interests, and by a contemporaneous deed conveyed the fee simple lands to the purchaser by way of in- demnity against all incumbrances affecting the purchased lands. A., at the period of this transaction, was married to the plaintiff, but no settlement had been executed upon the occasion of the marriage. In 1808, upon the death of his A.'s father, the legal fee descended upon A. In 1810, by a further deed executed between A. of the one part, and trustees in whom the estate of the vendee in the sale of 1804 was vested of the other part, A. covenanted that in case the pur- chased lands should be made liable to pay the amount of the incumbrances affecting same, the trustees should be at liberty to resort to the in- demnity lands, to be recouped thereout in all such sums with interest and costs. In 1813, A. and his wife, the plaintiff, executed a deed whereby, after reciting that the plaintiff had agreed to levy a fine to discharge her right of dower, and that A. had agreed to secure her a jointure or rent-charge in lieu thereof, A. con- veyed the said indemnity lands and others to the use of himself, his heirs, and assigns, discharged of all estates, tail, and dower, and by the said deed he charged the said lands with an annuity of £200 per annum by way of jointure. A. hav- ing subsequently died, and the lands charged with the jointure having proved insufficient in consequence of prior incumbrances, the bill in the present cause was filed by the plaintiff, pray- ing that she might be declared entitled to dower out of all the estates of which A. was seised dur- ing the coverture, except such as had been sold subsequently to the deed of 1813. Held, that as against the parties deriving under the vendee in the sale of 1804, that the plaintiff's claim could not be sustained ; but that against the heir-at- law of A. she was entitled to a decree. If a man before marriage enter into a contract for the sale of his fee simple estate, his subsequent marriage does not in equity create any right of dower. — Ll07/d v. Lloyd, i Dm. & W. 3.54 ; 2 Con. & L. 592. Where, in a settlement, a jointure is provided for the wife, and declared to be in full lieu, bar, and satisfaction, of any dower or thirds which she could or might otherwise claim at common law, out of any or all of the estates real, personal, or freehold, of which the intended husband was then or at any time or times thereafter shoidd become entitled to or possessed of, it was held that the wife was barred of all interest in the u ndisposed of residue of her husband's personal estate. — Giorl,/ V. Gurly, 2 Dru. & W. 465. A future contingent provision accepted by an adult female upon her marriage in lieu of dower, is in equity a good bar to dower. — In re, Herons, Fl. & K. 330. The legal estate of a property being vested in A., for the benefit of himself and B,, in equal moieties, he mortgaged it unknown to B. B. afterwards paid off the mortgage, and had the legal estate conveyed to him, subject to such equity of redemption as the lands were subject to. Held, that there was not such a perfect union of the legal and equitable estate in B.'s moiety of the estate as to give his widow a title to dower. — Knight v. Frampton, 4 Beav. 10. Where a testator by his will provides amply fbr his widow, giving her a portion of his estate for her life, and also an annuity charged upon his general estate, with powers of distress and entry in case of non-payment, and there was also con- tained in the will a leasing power for the trus- tees thereof, which overrode the entire freehold estate, these circumstances were held sufficient to indicate an intention to exclude the testator's widow from her dower. — Hall v. Hill, 1 Dru. & W. 94; 1 Con. & L. 120. G. B., by his will, devised his fee simple and freehold estates to T. L., upon trust, to pay seve- ral annuities, and amongst others an annuity of £300 per annum to T. L., himself, his heirs, and assigns. On a bill filed by the widow of T. L.'s annuity of £300 per annum, seeking to be de- clared entitled to dower out of it. Held, that the rent-charge was but an equitable interest, and that the legal and equitable estates not being commensurate, the widow could not by means of her husband's legal estate enforce her right of dower in the annuity of £300 per annum. Semble, the court, however anxious to aid the wife's equity against the £300 per annum, has no jurisdiction to take the whole estate into its hands, and so administer it, as to pay the wife a thud of the £300 per annum. — Lyster v. Ma- hony, 1 Dru. & W. 236. II. Wife Entitled to. Lands held under leases for lives, renewable for ever, and for long terms, were, upon the mar- riage of A. with B., conveyed to trustees, upon trust, to receive the yearly rents, issues, &c., of the said premises, and pay over the same to A. for his life, as long as he should continue solvent, and able suitably to support the said B., and no longer ; and from and after his becoming insol- vent, failing in his trade, or being unable suitably and completely to support and maintain the said B., then to pay over the said rents to the said B., for her life, and for her own sole and sepai'ate use, &c. Held, that that statement did not bar B. of her right to dower out of the fee-simple estates acquired by A. subsequently to his mar- riage. — Fyan v. Henry, 2 Dru. & W. 566. A party died in 1830, having vested in him a mortgage, in fee ; and the lapse of time and cir- cumstances were such as to render it very impro- bable that any party could now establish any right to the equity of redemption. Held, never- theless, that the widow was not entitled to the dower. — Flaek v. Longmate, 8 Beav. 420. The testator devised all his real estate to a trustee, upon trust, for sale, with power to con- vey the same to purchasers, without concuirence of any person or persons beneficially claiming under his will ; and he directed the trustee to stand possessed of the proceeds of such sale, to- gether with the residue of his personal estate. 116 m/e entitled to. « DOWER.- -DRAINAGE ACT. upon trust, to pay one moiety of the interest and dividends thereof to his wife durmg her widow- hood, and the other moiety of such interest and dividends (and the whole after his wife's decease or second marriage) to his sister, for her life ; with remainder, as to the whole of the trust funds, to the childi'en of the testator's sister, for their lives, and the life of the survivor, remainder over. The widow of the testator was dowable of part of the real estate. Held, that the widow was entitled both to the dower and to the benefit given to her by the will. — Ellis\. iewis, 3Hare, 310. Where the devise of land is in trust for sale, the mode of applying the proceeds does not affect the question whether the widow is entitled to her dower, or is put to her election. — Id. 3 Hare, 314. A widow concurred in a partition of her hus- band's estate, and released a moiety allotted to the other tenant, in common, from her dower. The other moiety was conveyed to the trustees of her husband's will. Held, that she was entitled to dower out of the entirety of the latter moiety. — Reynard v. Spence, 4 Beav. 103. A testator devised all and singular the rents, issues, and profits of his copyhold lands, to be applied to the maintenance of his children, until the youngest should have attained twenty-one years, subject in the meantime and charged with an annuity to his wife so long as she should con- tinue his widow ; and upon his youngest child attaining twenty-one, he devised all and singular his said copyhold lands among all his children equally ; and he devised all and singular his freehold tithes and lands, upon the same trusts as he had declared respecting his copyhold es- tates, subject to the annuity to his wife ; and he bequeathed the use of all his household goods and furniture to his wife so long as she should continue his widow. Held, that the widow was entitled both to the benefits given by the will and to her dower. — Dawson v. Bell, 1 Keen, 761. A testator gave all his farms, lands, estates, and hereditaments, and all other his real estate, upon trust, to receive the rents and profits, and pay to his wife, during her life, in case she should continue his widow, the sum of £200 ; and out of the same rents and profits to maintain and educate his son during his minority ; and to place the surplus of the same rents and profits out at interest, till his son should attain twenty- one ; and when his son should attain twenty- one, to pay him the accumulations, and let him into possession of all his said real estates, lands, and hereditaments, subject to the annuity to the widow. Held, that the testator's widow was entitled both to the annuity and to her dower out of the devised estates. — Harrison v. Harrison, 1 Keen, 765. III. Parties to. Bill for dower. The defendants in possession denied the title of the widow, alleging that her husband had not been seised of an estate of inhe- ritance in the premises. That allegation being founded on information, as to the time of his death, was believed to be correct, but afterwards fotmd to be erroneous. Becree for dower and arrears for six years before the filing of the bill, but without costs. — Bamford v. Bamford, 6 Hare, 203. Semble. If the defence to a bill for dower be groundless, or founded on facts which the defen- dant knew, or with reasonable diligence might have known, to be untrue, the decree would be with costs. — Id. IV. Not Passing by AssiaNMENT. An assignment of " all and singular the lega- cies, debts, monies, estate, and effects, whatso- ever and wheresoever, and of What nature or kind soever, of or to which J. H., in right of his wife or otherwise, was possessed," will not pass a claim of the assignor's wife to dower out of the estates of the former husband. — Brown v. Mere- dith, 2 Keen, 527. V. Leoacv is Lieu op. A legacy to a widow, in lieu of dower of thirds, at common law, or by custom, has no priority over other legacies where the testator leaves no real estate. — Acey v. Himpson, 5 Beav. 35. DRAINAGE ACT. Under the draining act, where the tenant for life is an infant, the petition must be presented in the name of the guardians. Form of reference under this act (3 & 4 Vict., c. 65), and of the subsequent proceedings thereon. — Stanhope Y, Stanhope, 3 Beav. 547. 8 & 9 Vict., c. 56, repeals 3 & 4 Viet., c. 55, enacted for defraying expenses of draining settled estates. Ld. Ch. and Master of the llolls to make orders. All applications under the act to be made as directed by the following orders : — The person entitled to land to present petition to the Ld. Ch. or M. R.— 1 Gen. Ord. 4th March, 1846. Form of petition to Ld. Ch. to be marked with the name of a V. 0. — 2 Gen. Ord., Id. M. R. or V. C. may make order suited to the case, without the attendance of counsel, solicitor, or petitioner. — 3 Gen. Ord., Id. Form of order. — Id. Reference to master in rotation to enquire into Title— Charges — Permanency of proposed improvements— Expense and value thereof — Benefit to parties interested — Master may pre- scribe.— 3 Gen. Ord., Id. Proof of title.— 4th Gen. Ord., Id. Master may order any other person interested to be served with notice of pro- ceedings. — 5 Gen. Ord., Id. Master may apply to the judge who made the reference for special directions, &c. — 6 Gen. Ord., Id Reference to be conducted according to the Gen. Ord. of the court. — 7 Gen. Ord., Id. Report to be filed. — 8 Gen. Ord., Id. Any person interested in the land may, within fourteen days, petition to have the report reviewed. — 9 Gen. Ord., Id. Same judge who made the order of reference is to con- sider the petition to review. — 10 Gen. Ord., Id. And may order parties to attend, £uid case to be argued by counsel. — H Gen. Ord., Id. Refer- ence back to master. — 12 Gen. Ord., Id. Peti- tion to confirm report. — 13 Gen. Ord., Id. Same judge to consider petition to confirm. — 14 Gen. Ord., Id. And may require the attendance of persons interested and of counsel. — 15 Gen. Ord., Id. Order to confirm.— 16 Gen. Ord., Id. On confirmation of report master to issue certificate. 17 Gen. Ord., Id. Form of. — Id. Any person advancing the money so to be expended, and satisfying the master of its having been expended, to have a charge on the inheritance. — Id. But not to be effective until indorsement by the master. — Id. Certificate to be made in dupli- cate. — 18 Gen. Ord., Id. Inquiry by master pre- vious to indorsement. — 19 Gen. Ord., Id. Form of indorsement. — Id, Indorsement to be made in duplicate. — 20 Gen. Ord., Id. Appeal to Ld. Ch.— 21 Gen. Ord., Id. 117 ECCLESIASTICAL LAW. I. II. III. IV. V. VI. VII. VIII. IX. X. XI. ECCLESIASTICAL LAW. Church Rates 117 Clergymen 117 Adtowson 118 Canonry 119 Ecclesiastical Commissioners .... 119 Churchwardens and Church .... 119 exoommunioation 119 Practice under Ecclesiastical Law 119 Bishop 120 Disappropriation 120 Non-Residence within Benefice . . 120 I. — Church Rates. See Church Discipline Act, 3 & 4 Vic. c. 86. Act to restrain jurisdiction of Ecclesiastical Comts in certain cases respecting tithes, 4 & 5 Vic. c. 36. An act to explain and amend, 6 & 7 W. 4, c. 77, and 3 & 4 Vic. c. 113, 4 & 5 Vic. c. 39. Act for regulating Ecclesiastical Courts, 3 & 4 Vic. c. 93. Act to remove doubts respecting Ecclesiastical patronage, 9 & 10 Vic. c. 88. Act for renewal of leases by Ecclesiastical per- sons, 6 & 7 W. 4, c. 64. By the statute 59 Geo. 3, c. 134, s. 14, it is enacted, that it shall be lawful for the churchwar- dens of any parish, with the consent of the ves-- try, to raise and borrow money upon the credit of the church rates of any parish, for the purpose of defraying the expenses of any church or chapel. Held, by the Judicial Committee of the Privy . Council, (reversing the judgment of the Arches Court of Canterbury,) not to authorize church- wardens to borrow money on the credit of the church rates, for repayment of a debt incurred in past years for repairs of the church. — Piggott v. Beorblock, 4 Mo. 399. The vicar general of the Roman Catholic Church at Gibraltar is liable to account for the fees received by him for administering the offices of the church, such fees being by custom regu- lated, and subject to the control of the assembly of elders, or junta, of which he is the head, and disposed of by them for the general purposes of the church. Decree granting injunction against the receipt of such fees by the vicar general, and directing him to replace in certain parts of the church the tariff or table thereof, varied, by dis- solving the injunction, and decreeing him only to account as receiver for all sums paid to him on account of the same. — Hughes v. Porral, 4 Mo. 41. Whether the statute, 53 G. 3, c. 127, s. 7, which gives power to a justice to enforce the payment of a sum under £10, due upon a church rate, where neither the validity of the rate, nor the liability of the party, has been questioned, takes away the jurisdiction of the Ecclesiastical Courts in such cases, qaiere. But, assuming that it does, it seems to be still competent to institute a suit in that court for payment of a sum under £10, due upon a church rate, because, until the defen- dant has appeared in such a suit, there may be no means of linowing whether the validity or lia- | bility is in dispute or not, therefore when a sig- / nificavit, as recited in the return to a writ of habeas corpus, stated that the prisoner had been pronounced guilty of contumacy for non-payment of a sum of £2 5s. to certain churchwardens, with their costs of suit, pursuant to a monition duly issued in a certain cause of substraction of church rate, the proceedings wherein were carried on in pain of the contumacy of the prisoner, who, though duly cited with the usual intimation, hrd not appeared, an objection that the cause w: s not sufficiently described for want of an aver- ment, that the validity of the rate, or the liabi- lity of the party were in dispute, was overruled. —In re Baines, 1 Cr. & Ph. 31. A church rate made avowedly larger than was necessary for the current year, for the purpose of enabling the churchwardens to liquidate a debt incurred in former years, is excessive, and there- fore illegal, — Farlar v. Chesterton, 2 Mo. 330. II. — Clergymen. By sec. 3, of the 3rd and 4th Vict. c. 86, (the Church Discipline Act,) the bishop is empowered to issue a commission of inquiry respecting any charge or report against any clergyman within his diocese, " provided always that notice of the intention to issue such commission, under the hand of the bishop, containing an intimation of the nature of the offence, together with names, addition, and evidence of the party on whose ap- plication or motion such commission shall be about to issue," shall be sent by the bishop to the party accused, 14 days at least before such commission shall issue ; and by sec. 13, it is pro- vided that it shall be lawful for the bishop, " if he shall think fit, either in the first instance or after the commissioners shall have reported that there is SM&oient prima facie gi'ound for institut- ing proceedings, and before the fiUng of the ar- ticles, but not afterwards, to send the case by letters of request to the Court of Appeal of the province, to be there heard and determined ac- cording to the law and practice of such courts Held, by the Judicial Committee, affirming the judgment of the court below, that the service of notice of the intention to issue a commission by the bishop, but upon which no cojnmission issued, wiU not preclude the bishop from sending the case to the Court of Appeal, by letters of request in the first instance. — Head v. Sandeis, 4 Mo. 186. A clergyman of the Church of England having refused to perform the office of interment, after due notice of the death of a parishioner, baptised by a layman, suspended from the ministry for 3 months under the 68th canon of 1603. — Escot: V. Mastin, 4 Mo. 104. Bequest for the benefit of unbeneficed curateSj whose annual incomes do not exceed £35, and to such as shall be recommended in a certain man- ner ; Held, to comprise two classes, those who having incomes of £35 and under, and also those recommended in the way prescribed. — Penning- ton V. Buckley, 6 Hare, 453. _ Receiver of a brewery granted on the applica- tion of a spiritual person who was a dormant partner therein. — Hale v. Hale, 4 Beav. 369. The Ecclesiastical Court of Jersey has jurisdic* 1!8 Advowson. ECCI ESIASTICAL LAW. Advowson. tion, uncler tho 17th and 46th canons, to enter- tain a suit against a clergyman, charging him with certain acts of conduct " which created a scandal against morality and religion, especially against the Established Church, of which he is a minister," though the alleged acts, if proved, would constitute a criminal offence over which the Ecclesiastical Court has no jurisdiction ; the gravamen of the charge beuig the scandal induced by the reports of the acts in question, for which a clergyman is amenable to his ordinary, and not their criminalty, for which he is liable to the criminal tribunal of the island. — The Dean of Jersey v. Tke Rector of—, 2 Mo. 229. III.— Advowson. The taking on his trials a presentee to a church in Scotland is a ministerial act, which the Pres- bytery is bound to perform, and for the neglect or rjfusal to perform which, every member of the Presbytery is liable to make compensation in damages to the party injured, and he may main- t.iin such action against the members collectively and individually. — Fergason v. KinnouU, Earl of. —9 Clk. & Fin. 251. A grant of an interest in a benefice is binding on the grantor, the stat. 10 & 11 Car. 1, c. 3 Ir. e.xtending only to successors. — Wise v, Bercs- ford, 2 Con. &"L. 282 ; 3 Dru. & W. 27G. A judgment is not a lien on a benefice, and sequestration has not relation back to the judg- ment, so as to bind a grantee of an annuity charged on the benefice, by a deed subsequent to t-ie judgment, but prior to the sequestration. — Id. The statute 10 Aime, c. 12, establishes the civil light of patronage in the Church of Scotland, and the general assembly of that church has no authority to make any acts or regulations which may prevent the exercise of those rights. An act of assembly, therefore, which permitted the male headis of families in a parish to dissent, without reason assigned, from the induction of a presentee, and declared that if the dissidents formed the majority, the Presbytery should not proceed to the trials and settlement of the pre- sentee, was held contrary to the statute, and con- sequently illegal. The Court of Session is com- petent to entertain under such circimistances, a suit by the presenter against the Presbytery for trials and settlement according to the presenta- tion. — Auchterarder Presbytery v. KinnouU, Earl of, 6 Clk. 2Ein. 646. A testator, v/ho was both patron and incumbent of a living, devised the advowson and all his other real estates, and also his personal estate, to trustees in trust, to pay the rents, dividends, interest, and annual income of his real estates, until they should be sold as thereinafter directed, and also of his personal estate, to his sister until she should have a child, and immediately after her having a child, in trust, to stand seised and possessed of his real estates, if not then sold, and of his personal estate, and the rents, dividends, and interest, and annual income thereof in trust for her children or child, who should attain twenty-one, their heirs, &c., and if she should have no such child then in trust, after her death, for the trustees, their heirs, &c. The testator then directed his trustees to sell the advowson, and his other real estates, with all convenient speed after his death, and to stand possessd of the proceeds upon the trusts before declared of his personal estate ; and he empowered his trustees to apply the rents, dividends, interest, and annual income of the presumptive shares of his sister's children, of hisreal estates, (if not then sold,) and if sold, then of the money arising therefrom, and his personal estate, for their maintenance during their minorities ; and dii-ected that the surplus rents, dividends, interest, and annual in- come, should be invested and accumulated for the benefit of the children, from whose shares the same should be saved. At the testator's death his sister (who was his heir) had three infant children, and his living having become vacant by his death, the question was whether the children, their mother, or the trustees were entitled to pre- sent to it. Held, that as the presentation to a living does not produce the rents, dividends, in- terest, or annual income, the disposition of the will was not applicable to that species of pro- perty, and consequently that the testator's sister was entitled as heir-at-law to present to the liv- ing on the existing vacancy. — Martin v. Martin, 12 Sim. 579. A testator devised his advowson to trustees, to sell on the death of A., and divide the produce amongst certain persons. A. was the incumbent, so that on his death no sale could be made until the vacancy was filled up. Held, that the court had no jurisdiction to authorize a sale in the life- time of A. on the ground that it would be bene- ficial to the parties. — Johnstone v. Sober, 8 Beav. 233. By deed the advowson of the vicarage of C. was vested in nine trustees, upon trust from time to time, as an avoidance should occur, that they or the major part of them, within the space of four calendar months next after such avoidance, should publish notice in the parish church upon two several Sundays, immediately after divine service, of a certain time for the meeting of the parishioners, within such four calender months, for electing a vicar, and should, witliin six calen- dar months next after such avoidance, by writing under their hands and seals, present to the ordi- nary for institution and induction as vicar, s\ich clerk as should be elected by the parties therein mentioned. By the terms of the deed this elec- tion was to be by the parishioners, having a certain qualification in land in the parish, " or the major part of such parLohioners, together with the trus- tees as aforesaid, or the major part of them, then assembling in or at the parish church, or market house of C, within the said four calendar months." On the occasion of an election in 1840, there were eight trustees, two of them were out of the jurisdiction. Of the remaining six, five signed a written notice of the intended election, which notice was didy published pursuant to the deed, though previous to publication one of the signatures was erased. The same five attended the meeting, which was held within the proper time, and four of them voted for the successful candidate. These four, and the trustee within the jurisdiction who was not present at the meeting, joined in the presentation, which was subse- quently approved of by the trustees out of the jurisdiction. The remaining trustee refused to join in the presentation. Held, that the election was valid, that the dissentient trustee was bound to give effect to it by joining in the presentation, and that tlie bishop, subject to any question aris- ing as to professional unfitness in the clerk, or coiTupt simoniacal or scandalous proceedings at the election, was bound to present. — Att. Cen. v. Cuming, 2 Y. & C. 139. By deed of trust of 1682, for the appointment of a vicar, it was declared that upon the death of Ecclesiastical, Sfc. ECCLESIASTICAL LAW. Practice, ^c. 119 any of the trustees, the survivors should from time to time when and as often as they should think fit, before the number of tlie trustees should be reduced to the number of five, or within three months after they should be reduced to the num- ber of four, appoint new trustees, and convey the premises to them, so as to complete the number of nine trustees. It appears that from the date of the deed to the election of a clerk in 1840, this clause had never been strictly acted upon, though the number of the trustees had generally been kept up to nine. Held, that the informality in the appointment of the trustees did not vitiate the election. — Id. IV. — Canonrt. By the 21st canon it is enacted, that "the dean, in causes which shsdl be handled in court, shall ask the advice and opinion of the ministers who shall be present." The ministers are only assess- ors, and have no voice in the decision of the court, wliich rests with the dean or commissary alone. — The Dean of Jtrsey v. The Rector of — , 3 Mo. 229. A canon of Windsor granted the canonry, and the profits, &c., to the plaintiSs, to secure a sum of money. So far as it appeared on an interlocu- tory application, the estates were vested in the corporation, and the canon was entitled to an aliquot share of the profits. There was no cure of SMuls, and the only duties were residence within the castle and attendance in the chapel twenty-one days a year. Held, upon this state of cu'cumstances, that the security was valid, and a receiver of the profits was appointed. — Grenfell V. The Dean and Canons of Windsor, 2 Beav. S44. Principles of public policy on which pay, pensions, &c. are held unaUenable. — Id. V. — Ecclesiastical Commissioners. It was referred to the master to approve of a scheme for the application of the revenues of a charity, part of which was applicable to ecclesi- astical purposes, of the parish of W. M. By an act of parliament, passed in 1840, certain powers, &c., were given to the Ecclesiastical Commission- ers, and to the Queen in council, and it was en- acted that so much of this charity property "as should, upon due enquiry, be found legally appli- cable thereto, should, by the like authority, be applied for the purpose of making a better pro- vision for the cure of souls in the parish of W. M." The Ecclesiastical Commissioners applied for liberty to attend the master on the scheme, but the court held that the act did not invest the commissioners with jurisdiction to determine what was legally applicable, which rested with the court, and that the words, "like authority," did not refer to the commissioners ; that if this court ascertained what portion, according to the endowment, ought to be applied for spiritual pur- poses even, in a particular manner, the act did not authorize the commissioners, or the Queen in council, to prepare or ratify a different scheme ; that the commissioners had not vested in them any such trust as could be performed or recog- nised by this court ; that they had no estate or interest in the matters in question, and no right to be treated as independent parties in the infor- mation, or to appear as such, and, therefore, that they could not sustain such a petition. — Att. Gen. V. Wimborne School, 10 Beav. 209. VI. — Churohwahdens and Church. A lease of a meeting-house was wanted in trust, for a congregation of Protestant Dissenters, who then met in a house belonging to J. A., in the town of S. The congregation was then in con- nexion with the Secession Church of Scotland, and consequently professed the same doctrines, and adopted the same form of worship, govern- ment, and discipline, as that church. Some years afterwards, the minister and a large major- ity of the congregation separated from that con- nexion, and joined another religious body, which professed the same doctrines and used the same form of worship, but not the same form of gov- ernment and discipline as the Secession Church. They, however, retained possession of the meeting house. Held, that in their separation they ceased to be objects of the trust, and therefore were not entitled to keep possession of the meeting-house. — Broom v. Summers, 11 Sim. 353. A suit in this court, by the churchwardens of a parish, to restrain a person from pulling down the church-yard wall, is maintainable. The churchwardens, notwithstanding their oSice has ceased, may file a supplemental bill for the pur- pose of stating facts occurred since the fUing ot the original bill, and may join their successors as co-plaintiffs with them, on the supplemental suit. — Marriott v. Tai-pley, 9 Sim. 279. VII. — Excommunication. The admission of a witness that he is a mem- ber of a religious sect, who hold a certain princi- ple as a body, which, if acknowledged individu- ally, would subject him to excommunication ipse facto, by the 12th canon of 1603 ; Held, insuffi- cient to disable him from giving evidence in the suit; and gwcei-e, if excommunication ipse facto, (if not absolutely abolished by statute 53 Geo. 3, c. 127) disables a party from being a witness un- til absolved.— £j!(;o« v. Uastin, 4 Mo. 104. VIII. — Practice under Ecclesiastical Law. AVhen a party objecting to a paper, annexed to letters of administration, has been by the court assigned to declare whether he propounds another instrument, it is irregular and inconclusive, in- stead of following up file assignation, to have the question decided upon paiition. But such pro- cedure estoppes the parties from further litigation. — Henfrey v. Henfrey, 4 Mo. 29. A subscribing witness, produced by the execu- tor, was examined on an allegation to prove the wOl. Upon his answer to the interrogatories he admitted that he was the solicitor to the executor (the promovent), and that he had employed the proctor in the suit, and that if tlie executor failed in paying the costs he would himself be legallv liablq to the proctor. Publication passed, and the cause was assigned for hearing. Upon mo- tion the Prerogative Court rescinded the conclu- sion of the cause, and granted the promovent leave to re-examine the witness, after a release of of his liability. Affirmed on appeal, by the Ju- dicial Committee of the Privy CouncU, — Clark v. Carter, 4 Mo. 207. The rejection of a witness in the course of the hearing of a cause in the Ecclesiastical Court, on the ground of interest, is not of itself an appeal- able grievance, the hearing being one continuous 120 ECCLESIASTICAL L AW.— EJECTM EXT. act, and an appeal being competent after sentence from any compartment of the cause. — llandley v. Edwards, 4 Mo. 407. Pi actice as to settling a case involving a ques- tion of Ecclesiastical Law. — Hogg v. (Sarrett, 3 Dru. & W. 409. IX. — ^Bishop. By the letters patent erecting the See of Ja- maica, the bishop is empowered to exerc-ise spiri- tual and ecclesiastical jurisdiction, and among other things to punish rectors, &c., according to the laws and canons of the Church of England. — Bowerbank v. The Bishop of Jamaica, 2 Mo. 449. A Roman Catholic bishop, holding the office of coadjutor to a vicar apostolic in this country, is, in virtue of that office, to be considered as a person skilled in the matrimonial law of Rome ; and, therefore, admissible as a witness to prove that law. — Sussex Peerage Case, 11 Clk. & Fin. 85. Where a sub-tenant, holding only a part of the Innds originally demised by the see, wishes to purchase the fee, (the landlords intermediate be- tween him and the see refusing to purchase) and the fines have not been regularly paid, the amount of the fines to be paid before the pur- chase is completed is to be calculated according to the value of the part held by the purchasing sub-tenant, irrespectively both of the value of the rest of the land originally demised by the see, and of any covenant as to renewing at a lower rate of fine entered into with the sub-tenant by his immediate landlord. — Betty v. The Ecclesias- tical Commissioners, 2 Con. & L. 520. In a suit for the specific performance of an agreement for the sale of next presentation to a living, the court will restrain the bishop of the diocese from taking advantage of a lapse pend- ing the suit. — Nicholson v. Knipp, 9 Sim. 326. X. — DiSAPPKOPEIATION. The 3 & 4 Will. 4, c. 37, s. 124, empowers the Lord Lieutenant and Privy Council in Ireland to " disappropriate, disunite, and divest any rec- tory, vicarage, tithes, or portions of tithes, and glebes, or part or parts thereof, from and out of any archbishopric, bishopric, deanery, or arch- deaconry, dignity, prebend, or canonry ; and to unite every such recton^ vicarage, tithes, or por- tions of tithes, to the vicarages, and perpetual or other curacies, of such parishes respectively, so that each such rectory, vicarage, tithes, or por- tions of tithes, and glebes, or part or parts thereof, shall, with its respective vicarage, per- petual or other curacies, form a distinct parish or benefice." Held, that the Lord Lieutenant and Privy Council have authority to disappropriate any part or portion of the tithes of a rectory j that the word rectory in the statute must be applied in its widest legal sense, and therefore included the glebe j and that an order of disap- propriation of " the rectory " made by the Lord Lieutenant and Privy Council could not be re- stricted to the tithe rent charge, unless on the face of the order of disappropriation such restric- tion was manifested, — Wilson v. Loveland, 12 Clk. & Fin. 677. In an order of the Lord Lieutenant and Privy Council, made under this act, there was a state- ment of the revenues of three rectories belonging to a cathedral treasurership. The order then went on to say, " There is a further income be- longing to the said treasurership arising from de- mised lands, amoimting to the yearly sum of £80 6s. Ijd." The glebe lands, which were not in express terms mentioned in the order, did amount to nearly the sura thus stated, A small piece of land, called the Treasurer's Garden, made up the rest. After this statement of the revenues, the order went on to appropriate the " rectories, together with the rectorial tithes thereiuito belonging," in pursuance of the power given by the act ; but said nothing about the glebe. Held, that the glebe lands were, under this order, disappropriated from the treasurership. —Id. XI. — Non-Residence within Benefice. The proceeding under the statute (1 & 2 Vict., 106, see. 32,) against a beneficed clergyman, for penalties for non-residence on his benefice, with- out licence or exemption, is m the nature of a civil and not a criminal proceeding. In con- demning the defendant for non-residence, in the penalty of one-third of the annual value of his benefice, the court below did not decree a specific sum, but referred the matter to the registrar of the court, to ascertain the same. Held, on appeal, that such course was regular. It is not necessary, for the promoter of such a suit, to allege or prove that the defendant had not a licence, or was not resident on another benefice ; those facts being within the defen- dant's own ' knowledge, are capable of being alleged and proved by him in defence. — Bluck v. Rackham, 6 Mo. 305. The rector of a parish, within which there is not any house of residence belonging to the bene- fice, and who, by the licence of his bishop, re- sides at a distance from the parish, but not in a house allowed by the bishop as the house of resi- dence thereof, is not entitled to the allowance for the rent of a residence given by the 3 & 4 Will. 4, c. 37, s. 20. — Ecclesiastical Commissioners v. Delmege, 3 Jon. & L. 325. EJECTMENT. See Pe. Deokee. — Ph. Suit. Act for the more speedy recovery of lands and tenements unlawfully held over by tenants, by action of ejectment, 1 Geo. 4, c. 87. Further provisions made by 1 1 Geo. 4 & 1 W. 4, c. 70, ss. 36, 38. Limitation of action of 3 & 4 W. 4, t. 27 ; 7 W. 4, and 1 Vic. c. 28. A lessee having been evicted for non-payment of rent under the ejectment statutes in Ireland, an equitable mortgagee of his interest filed a bill for redemption agamst the landlord. Held, first, that the mortgagee was entitled under the ear- liest of these statutes (11 Anne, c. 2,) to redeem the evicted premises ; and, secondly, that trus- tees of a settlement to whom the lease had been assigned were not necessary parties to the suit. — Geraghty v. Malone, 1 Clk. & Fin. N. S. 81. Where a lease has been evicted for non-pay- ment of rent, under the ejectment statutes in Ire- land, and an equitable mortgagee of the tenant's interest, filed a bill for redemption against the landlord. Held, that he was entitled to redeem Generally. ELECTIOX. Generally. 121 the premises evicted under the earliest of those statutes, the 11 Anne, c. 2. The general rule is to make the party seeking a redemption pay the costs of a suit, but the court has jurisdiction to throw the costs on the landlord, and the question depends on its own discretion. — Malone v. Ge- raghty, 3 Dru. & W. 239. This court has an original jurisdiction for the relief of tenants whose leases have been evicted for non-payment of rent, and this ancient juris- diction has not been destroyed, but merely re- stricted, by the Irish ejectment statutes, which operate as a statute of limitations, and oblige the tenant, if he thinks fit to have recourse to a court of equity, to do so within the particulai' times specified in those statutes. The words of the fourth section of the 11 Anne, c. 2, cannot be limited to mean assignees at law, but must be held to include every interest under the lease. SembU, where a bill for redemption is filed within the time prescribed by the statute, by the parties who are entitled to redeem, the court has juris- diction to allow the cause to stand over in order that fcrraal parties may be added. — Id. 250. In cases where there are outstanding terms which may be setup in defence to the action, and prevent a trial of the real merits of the case, or where the facts are such, and of a nature so com- plicated, that complete and effectual relief can only be given in equity, this court will afford its assistance, and will, if the circumstances require it, first see that the legal requisites to the plain- tiff's title are established, and then give the ne- cessary relief; but this must be upon a bill framed for the purpose, stating the difficulties, and praying the co-operation of the court to re- move them. The cases of dower and partition are, however, exceptions to the rule. — Strickland V. Strickland, 6 Beav. 77. Where a party sought in this court to recover a real estate, on the ground of his interest being equitable, but did not ask relief against any im- pediment to a trial at law, and it turned out at the hearing that his title was a legal title, the court refused to retain the suit to enable the plain- tiff to establish his right at law by an action or issue, and dismissed the bill. — Id. Where a bill is filed to restrain an ejectment, the tenant must be made a party, unless the land- lord has been admitted to defend the action, — Poole V. Marsh, 8 Sim. 528. Semble, that the interest of an owner of tin bounds in Cornwall, is a mere easement or incor- poreal hereditament, but may be the subject of an action of ejectment, even where he is not in actual possession at the time of the wrongful entry of the defendant, — Vice v. Thomas, 4 Y. & C. 538. ELECTION. See HusB. a»d Wife. I. Generally 121 II. Construction 122 III. Election to Sue 122 IV. When Wife bound to 123 I. — Generally. A., seised of an undivided moiety of White- acre, convey* it on his marriage in 1775 to the use of his first and other sons, reserving to him- self a pnwer of leasing for three lives. A., hav- ing subsequently purchased the other undivided moiety of Whiteacre, in 1785, leased the entire of Whiteacre to B., for lives renewable for ever. In 1797, on the marriage of G., A.'s eldest son, Whiteacre was conveyed by A, to the use of A. for life, remainder to the use of G. for life, re- mainder to the use of such of the sons of G. as G. should appomt to, and A., in his covenant against incumbrances, excepted leases bona fde made by him. G., having appointed Whiteacre to his son W., died in the lifetime of A., leaving W., his eldest son, him surviving. On the death of A. , W. filed his bill to set aside the lease of that moiety of Whiteacre, comprised within the settlement of 1775, as contrary to A.'s leasing power. Held that W., as claiming under the settlement of 1797, was bound by the lease of 1 785, and could not set it aside. — Steele v. Mitchell, 2 Dru. & Wal. 668. The testator, by his will, devised and be- queathed all his real and personal estate to trus- tees, subject to debts, &c., upon trust, by and out of the rents, issues, and profits thereof, to pay an annuity of £100 to his wife during her life or widowhood, and subject thereto, upon trust, for his daughter for life, with remainder to her chil- dren, remainder to his brother. And the testator empowered his trustees at their discretion, during the continuance of the trusts, and, notwithstand- ing the same, to continue and carry on all or any of the farms, or other concerns, in which he might be engaged at the time of his decease, and to restrict or increase any such concerns, and to demise, mortgage, or sell, all or any part of his real estate, or chattels real. Held, that the widow was not entitled both to the annuity given to her by the will, and to her dower out of the real estate. — Lowes v. Lowes, 5 Hare, 601. A. B. on his second marriage executed a deed of settlement, whereby certain lands were vested in trustees to the use of the settler for life, then to secure a jointure for his intended wife, and, subject thereto, to the use of the first and every other son of the said settler by his said intended wife, and in the same deed there was contained a power that if the settler should have more than one son, he should have full power and authority, by deed or will, to prefer such son to the whole or part of the said fiiereby settled lands, subject to the jointure for his said wife, and also subject to all such sums of money, not exceeding £4,000, as the said settler might think proper to charge thereon by deed or will. Shortly after the execu- tion of tms settlement the settler executed this power, and charged the said lands with the sura of £4,000, in favour of the children of his former marriage, and subsequently made his will, and thereby devised certain estates, of which he was seised, to the minor defendant, his only son then living by his second marriage, and reciting " that by the settlement the said settled lands were chargeable" as aforesaid, and "that he had ac- cordingly charged them," &c., and also that he had power to prefer any son to the said lands, he devised the same to any after-bom son he might have by his said wife, A bill having been filed by the assignee of the share of one of the children of the first marriage. Held, that there was a distinct case of election created by tlie will. — Cooke v. Briscoe, 1 Dru. & Wal. 596. A testator gave a legacy to his daughter, a married woman, on condition that she should re- linquish her claim to a reversionary chose in action under his marriage settlement. Quieie, 122 Constructs KT.RCTION. Election to sue. ■whether she could elect to take the legacy against the will of her husband. — Wall v. XVall, 15 Sim. 513. Where the intention to dispose was clearly ex- pressed on the face of the will, and parol evidence was tendered for the purpose of shewing that the testatrix had mistaken the amount of the property which she was capable of bequeathing, supposing certain property, in which she had only a life in- terest, to be her own, and that a legatee under the will, who also took interest in such supposed absolute property under a settlement made by the testatrix, ought in order to enlarge the residuary bequest, to be put to his election, such evidence was held to be inadmissible. — Clementson v. Gandy, 1 Keen, 309. II. — CoNSTaDCTION. . Where a party has notice that he is botmd to elect to take under, or against a will, and deals with the property given to him by the will as his own, that is a clear deliberate act of election to take the property given to him. — Briscpe v. Bris- coe, 1 Jon. & L. 334. A testator directed certain of his own monies, together with monies belonging to his daughter, to be settled on her marriage upon trusts specified in his will. On the marriage of the daughter the entire funds were settled upon trusts not in ac- cordance with the directions of the will. Held, that the settlement was an election to take under the will, but that the funds were bound by the trusts of the will, and not of the settlement. — Id. The doctrine of election does not arise except where the testator having something of his own devises it to a person whose property he devises to some other person, and could not arise here where all the testator's property was bound by his marriage settlement. — M' Donnelly. M'Donnett, 2 Con. &L. 481. By a marriage settlement real estates were con- veyed to trustees, in trust to sell, and to hold the proceeds in trust for the husband and wife for their lives successively, remainder in trust for their children, remainder in trust for the survivor of the husband and wife absolutely. There was no child of the marriage. The husband survived his wife, and after her death consulted his solici- tors upon his rights under the settlement, and they having advised him that he was entitled to the whole beneficial interests in the estates, he got possession of the settlement and of the title deeds, and remained in possession of them and also of the estates until his death. Held, that thereby he declared his election to take the estates as land. — Davies v. Asfiford, 15 Sim. 42, An unmarried lady being entitled to £5,000, charged upon a real estate of which she was the tenant for life, with remainder to her children in tail, and being entitled also to a sum of stock for her life, with remainder to her children absolutely, by the settlement on her marriage released the real estate from the £5,000, and supposing that the stock was her absolute property, settled it on her husband for life, with remainder to her child- ren. After the marriage the parties to the settle- ment having discovered the mistake as to the stock, made an indorsement on the settlement, by which, after reciting that they had so discovered, they declared that thenceforth the stock should be held by the original trustees thereof, (in whose name it was still standing,) upon the trusts to which it was subject before and at the date of the settlement. Held, that the children of the mar- riage could not claim the benefit of the release of the £5,000, and also the sum of stock to the pre- judice of their father's interest therein, under the settlement, but that before the indorsement was made he was entitled to put them to their elec- tion, and that he had not lost that right by being a party to the indorsement. — Seton v. Smith, 11 Sim. 59. III. — Election to Sue. Plaintiff proceeding at law and in equity put to his election if answer excepted to, but plaintifi' fails in procuring the report within four days, pursuant to notice by defendant or if exceptions not allowed, but plaintiff may discharge order on merits confessed. — 61st Gen. Ord. 8 May 1845. Eel wards ed. 174. Although the time for excepting the answer to the bill may have expired, yet if the plaintiff amends his bill the defendant cannot obtain an order for the plaintiff to elect whether he will proceed at law or in equity, tuitil the time for ex- cepting to the answer to the amendment has ex- pired. Whether that time is to be computed ac- corijing to the old practice or the new orders, quarel — Leicester \. Leicester, 10 Sim. 87. Where a party claiming to be entitled to real estate, but being uncertain whether his title was a legal or an equitable one, was proceeding for the recovery of it by action at law and biU in equity at the same time ; Held, that he was bound to elect either to suspend his proceedings at law or to have his bill dismissed, although the relief prayed by the bill, embracing an account of rents and a delivery of the title deeds, was more exten- sive than that which was sought by the action. Where a party is proceeding at law and in equity at the same time for the same cause of suit, the court has no jurisdiction to retain the suit if the plaintiff proceed with his action, except in cases where the proceeding at law is ancillary to that in equity, in which case the court has the power to mould the proceedings with a view to its own decree, and for that purpose may allow the action to proceed, retaining the bill in the meantime. — Royle V. Wynne, 1 Cr. & Ph. 252. "The side bar rule to elect applies only where the proceedings at law appear on the face of the pleadings. Where the plaintiff commenced an action at law in which he could obtain part only of the relief prayed by the bill, the court allowed him to proceed at law, upon the terms that the bill so far as It related to the relief sought at law, should be dismissed at the hearing with costs. — Donellan v. Wallace, Fl. & K. 511. A. agreed to grant a lease of a vault to B., and also to erect a crane, &c., and do, within a given time, certain other acts, which this court could not decree to be specifically performed. A. having made default, B. sued in this court for a specific performance, but did not pray that the above stated acts should be specifically per- formed. Pending the suit B. also commenced an action at law against A. for damages suffered in consequence of the non-performance of the acts. Held, that the suit and action were not fur the same matter ; and an order to elect obtained by the defendant was discharged. — Fennings v. Humptiery, 4 Beav. 1. A plaintiff served with an order to elect be- tween proceedings at law and in equity, after- wards took a step in the action at law. Held, ELEGIT.— EQUITABLK WASTE. 123 that he might, nevertheless, apply to Cisehaige the order for election. Whether a:i order to elect stays all proceedings ; qvm'e. — Id, IV. — When Wife bound to. Testator having contracted to sell part of his fee simple estates, devised all his real and per- sonal estates to trustees, and directed them to complete his contract with the purchasers ; and to sell and convert into money all his real and personal estates, and out of the interest of the monies to arise from the sales to pay an annuity to his wife for her life ; and he empowered his trustees to lease such part of his real estate as should not be sold. Held, that the widow was bound to elect between the benefits given her by the will and her dower. — O'Hara v. Chaine, 1 Jon. & L. 662. A tenant in common agreed to make a parti- tion, and by his will he confirmed the agreement ; and devised the estate to trustees, to convey the part agreed to the other tenant in common and his heirs, and to receive a conveyance of the other part ; and ho devised it and all, his real and personal estate to the trustees, to receive the rents, and pay an annuity to his widow, &c., &c. Held, that the widow was bound to elect. — Reynard v. Spence, 4 Beav. 103. A widow, in a case in which she was bound to elect between her dower and an annuity given by her husband's wiU, received the annuity for five years. Held, that she had not, under the circumstances, elected. — Id. A testator, having freeholds and copyholds, in fee, gave an annuity to his wife, in lieu and satis- faction of all dower and thirds, or other claims and demands which she might otherwise have had upon his estate, and died intestate as to his real estates. His widow was his customary heir. Held, that she was not bound to elect between the annuity and the copyholds, but was entitled to both. Held, also, the assets being deficient, that the annuity was to be paid in priority to the pecuniary legacies given by the will. — l\'orcott v. Gordon, 14 Sim. 258. ELEGIT. See Judgment. — Pb. Fieri Facias and Elegit. Notwithstanding the stat. 1 & 2 "Vict. c. 110, which gives to a judgment the efiect of an equi- table charge upon the land of the debtor, an equitable mortgagee retains his right in equity to enforce his security against the title of a creditor under a subsequent judgment, although the latter may have acquired the legal seisin and possession of the land under an elegit, without notice of the mortgagee. — WAitworth v. Gaugain, 1 Phil. 728. Whether a court of equity will interfere in favour of an equitable mortgagee against tenant, by elegit, who has got possession of the land, without notice of the mortgage, under a judg- ment obtained against the mortgagor subse- quently to the mortgage ; guaire, — Id. In a suit by judgment-creditor, who had been in possession, under an elegit, to have the real estates of the debtor sold, under 1 & 2 Vict. c. 110, the plaintiff must account in the same manner as a mortgagee in possession. — Bull v. Falkner, 1 De G. & S. 685. ENGLISH CONTRACT. J. F., being resident in Ireland, enters into a contract for the purchase of two annuities from L. and his wife, the defendants, who were resi- dent in England. The security for the payment of the annuities was a joint and several covenant on the part of the defendants, and a joint warrant of attorney to confess judgment in the Court of Queen's Bench in Ireland, and a policy of insur- ance on the life of one of the defendants, at an otSce in London or Westminster. The only pro- perty pledged for the payment of the annuities was an annuity, to which the wife was entitled for her separate use, charged upon property situated in Ireland, and which she assigned to the plaintiff, and appointed him her attorney iu relation thereto. It appeared that the deeds were prepared in Ireland, and on Irish stamps, and sent to England to the defendants, where they were executed by them, and the considera- tion money was paid to the defendants in England, but the deed was executed by the plaintiff in Ireland. Semble. That such a trans- action is an English one, and the security, there- fore, within the meaning of the Annuity Act, 53 Geo. 3, c. 141, and, consequently, void for want of enrolment ; but as the question was a legal one, a case was directed to a court of law. — Fergitson v. LomaXy 3 Dru. & W. 120. ENLARGING PUBLICATION. See Pb. Publication. ENROLMENT. See Pb. Enbolment.— Pb. Decree. — Pb. Appeal. See 3 & 4 AVUl. 4, c. 74. The enrolment of the deed of disposition, under the stat. 3 & 4 Will. 4, c. 74, may be made imme- diately upon the execution of the deed, and may be effected either by vendor or purchaser ; and as the enrolment relates to the execution of the deed, it follows that a tenant in tail, who has not barred the entail under the statute, can, never- theless, make a good title in fee simple. — Cattell V. Corrall, 4 Y. & C. 22 i. ENTERING APPEARANCE. See Pb. Appearance. ENQUIRY. See Pb. Master's Office. EQUITABLE WASTE. Tenant for life committed equitable waste in 1809, daring the iniancy of his eldest son, the first tenant in tail in remainder. The son canie of age in 1819. In 1828 he was cognizant of the acts of waste committed by his father, but did not institute any suit on account of them until 1S40, which was two years after his lather's 124 RQUITY. death. Held, that the suit was not barred by length of time. — The Duke of Leeds v. Lord Am- herst, 14 Sim. 357. The statutory rule which gives to a remainder man twenty years from the time when his title accrues in possession, for bringing an action or suit for the property, applies to a claim for com- pensation for equitable waste as well as to a claim to the land itself ; and, therefore, an ac- count of equitable waste was decreed against the estate of the tenant for life thirty-eight years after the waste was committed, the title of the plaintiff, as remainder man in tail, having ac- crued within twenty years before the filing of the bill. Upon a claim to compensation for equi- table waste, the court does not consider whether the act complained of was or was not a sound exercise of discretion, with reference to the state of the property and to the interests of the family to which it belongs ; for a tenant for life has no light to alter the nature of the property belonging to another person. Distinction between ac- quiescence and the release of a right. — Id. 2 Phil. 117. Ornamental timber protected, though the man- sion-house had been pulled down, and the bill did not complain of tiiat act. — Morris v. Morris, 15 Sim. 505. EQUITABLE -JURISDICTION. See Jurisdiction. EQUITABLE MORTGAGE. See Mortgage. EQUITABLE SET-OFF. See Set-off. EQUITY. See Agreement— HusB. & Wife — Lien — Mortgage. A representation made by one party for the purjiose of influencing the condition of another, and acted on by the latter, will in general bo suflicient to entitle him to the assistance of a court of equity, for the purpose of realising such rejjresentatioiis. — liammersley v. De Bid, 12 CDs. & Fin. 46. Tlie 6 & 7 W. 4, c. 115, (extended by the 3 &4 "Vict. c. 31,) authorizes exchanges of lands on conditions therein prescribed, one of these is the wiitten consent of the owner of the lands intended to be exchanged. The land-owners, of a parish, detei-mined to carry this act into execution, and appointed a commissioner for that purpose. B., one of the land-owners, authorized his agent to attend for him, at the meetings held for the pur- pose of carrying the act into execution, but de- sired him not to exchange a particular wood, ex- cept for wood laud. N. s lands were to be ex- changed against those oi B., and this restriction was communicated to N.'s agent, who was asked to exchange another wood against the wood in question, but who said that his principal had no power to do so. This answer was communicated to B., who took no further notice of the matter. The restriction on theauthority olB'sagent, didnot appear to have been brought to the knowledge of the commissioner. B. signed and sent to the com- missioner a written consent to ratify the exchange of certain closes belonging to him, and designated in the consent by numbers. Among the closes thus designated, was the wood in question, but the number by which it was referred to in the con- sent, and in a map and plan previously submitted to B.'s inspection, was not the same as that which it bore in B.'s private map of his own estate. A comparison of the two maps, or the reading of the plan sent with the commissioner's map, would have shewn A. that the wood in question was in- cluded in his consent. The commissioner allotted the lands to be exchanged, and among others in- cluded this wood, but did give wood land for it. Possession of the exchanged lands, and of the wood among the rest (although the award of the commissioner had not been formally executed) was deUvered by B.'s agent to N., who imme- diately began to exercise acts of ownership over it. B. sometime afterwards discovered what had been done, and brought an ejectment against N. for the wood. N. filed his bill in chancery to re- strain B. from proceeding with the action, and to compel him to perfect the exchange, and B. filed his bill to prevent the commissioner from execut- ing the award, alleging that the consent given to him had been signed in mistake. Held, that N. was entitled to an injunction as prayed by the bill, and that B. had no equity on wluch to ask for the interference of the court in his favour. — Beaufort (Duke) v. Neeld, 12 Clk & Fin. 248. The statute 6 & 7iW. 4, c. 115, gives to persons dissatisfied with anything that has been done under its provisions, an appeal to the quarter ses- sions. Semble, that this would not deprive a party aggrieved of his right to apply for the interfer- ence of a court of equity, if he was in other respects entitled to that interference. — Id. K. holding lands under the see of N, for a re- newable term of twenty-one years, demised them in 1 787 to two persons for a like term, with a toties guoties covenant for a renewal. These persons sold their interest in part of the lands, and divided the rest equally among them. On the death of one, his share passed to his two sons A. and A. Lowry, the share of the other was sold to P. The two Lowrys obtained a renewal of the lease of all the lands to themselves in 1822, without P.'s knowledge, and then mortgaged them to M., and obtained a judgment in ejectment against P., who thereupon filed a bill against them and M., and obtained in 1826, a decree for an account and r conveyance of his part, on payment of his pro- portion of the renewal fines and costs. W. who had been the attorney of the Lowrys in all these matters, obtained an assignment of their mterest in 1829. P. did not make up the decree of 1826, but made several payments to W. in respect ot the renewal fines and costs, and urged him to reconvey to him his part of the lands, and grant a renewal, but being in distress he signed an agreement to surrender his land to W. and take part of them as his tenant. Held, upon a bill, filed by P. in 1842, that he was entitled to the benefits of the decree of 1826 against W., that the accounts thereby directed ought to be then taken, that the agreement signed by P. to surrender was without consideration and void, and that he was entitled to the value of his lands while they were in possession of W., and to a reconveyance and renewal upon the payment of the balance found EQUITY.— ESTATE, 125 due IVom him. — Wallace v. Patton, 12 Clk. & Fin. 491. Any equities between grantors of an annuity, are not to affect the grantee, unless they have dis- tinct notice of tliein at the time of the grant. — HoUier v. Eyre, 9 Clk. & Fin. 1. Lands were subject to a lease of a way-leave, at a certain rent, for sixtj'-three years, which the lessee hadthepowerotdetermining. Thelandand rent were sold separately by auction, in two lots, and were purchased by two different persons. After some time, tlie purchaser of the land en- tered into an arrangement with the lessee, to put an end to the lease, and entered into a diflFerent one, in order to defeat the right of the purchaser of the rent. Held, that this was contrary to equity, and the right of the purchaser of the rent was made good out of the new contract. — Wood V. The Marquis of Londonderry, 10 Beav. 465. In equity there is a marked distinction be- tween what is necessary to resist a suit for specific performance of a contract, and a suit founded on a contract executed. — Vigers y. Pike, 8 Clk. & Fin. 645. Observations on the nile, that the plaintiff seeking equity must do equity. — Hanson v. Keat- ing, i Hare, 4. The iTile applies only to the one matter which is the subject of a given suit. — Id., 4 Hare, 5. The fact, that the legal remedy which existed, is obsti-ucted or lost by lapse of time, is no ground for the interposition of a court of equity. Ferrand t. Wilson, 4 Hare, 384. The court will neither sillow the form of a tran- saction to protect a fraud, nor set aside a transac- tion otherwise valid, merely on the ground of form. —Id. 386. This court, when it can consistently with the instrument executed by the parties, wiU do that which is the highest equity, make an equality between parties who stand in the same relation, but it cannot do that contrary to the plain mean- ing of a deed. — Ilulme v. Chilty, 9 Beav. 437. ERROR. See Fb. Eubob, ESCHEAT. Empowering the king to grant, 47 Geo. 3, c. 24. Fewer of making grants of escheated lands in Ireland, 10 Geo. 4, c. 50, s. 127- Amendment of the law relative to escheat and forfeiture of real and personal property holden in trust, 4 & 6 W. 4, c. 23. In the year 1827, letters of preference of es- cheated property in the island of Jamaica, were granted under the great seal of the island, by the terms of which it was provided that the grantee should, within twelve montlis from the date thereof, or for such further time as the governor of the island should limit and appoint, take the necessary steps to prosecute the rights of the crown to the escheated property, otherwise the preference thereby given was to be void. The grantee entered into possession and received the rents and profits, but took no further steps to prosecute the escheat to final judgment for the trown. Upon an information filed in 1835 by the Attorney General of Jamaica, praying that the grantee might be declared accountable to the crown, in respect of the rents and profits received by him since he had been in possession j Held, by the Court of Chancery of Jamaica, and af- firmed on appeal by the Judicial Committee, that the grantee was bound to prosecute the escheat to filial judgment for the crown within a proper time, and that he was liable to account to the crown for the rents and profits received by hira from the time of entering into possession. — Mason V. The Alt. Gen. of Jamaica, 4 Mo. 228. A testator died without heirs, seised of free- holds, which he had not charged with his debts. Held, that as against the lord claiming by escheat they were assets for the payment of the testator's debts. — Evans v. Brown, 5 Beav. 114. Whether such freeholds are liable to the debts in priority to, or pari passu with, lands specifically devised ; quasre. — Id. The lord of a manor taking by escheat, on the death of a tenant without heirs, the fee simple of lands holden of the manor, but subject to a de- mise by way of mortgage, for a term of years created by the tenant, is entitled in equity as against the mortgagee to redeem the term. — Vis- count Downs V. Morris, 3 Hare, 394. If the lord taking lands by escheat on the failure of heirs of his tenant, is liable under the statute 3 & 4 W. 4, c. 104, out of such lands to pay a mortgage debt of the tenant charged thereon, he is entitled to redeem the lands, and get in the securities which the creditor held for the debt. —Id. ESCROW. It is necessary in delivering an instrument as an escrow, to say that it is delivered as an es- crow, if it be delivered upon a condition that con- stitutes an escrow. — Nash v. Flyn, 1 Jon. & L. 162. ESTATE. See Absolute Inteuest — Issue — Vend. & PuRGH — Fine — Will — Pn. Sales Judicial — ^Intekest, Vested — Residue. I. In Fee 126 1. How created 127 2. Equitable 128 H. Tail 128 1. Words which create 129 2. Equitable Estate 130 3. Quasi 130 4. By Implication 130 5. Tenant in tail and remainder man . . 131 6. Investment of money in purchase of \Zl III. For Life 131 1. In Personalty 134 2. By Implication 135 3. Whenpurchaser of, not bound to take 136 4. Statutable conveyance by Tenant ... . 136 6. Jointuring power by Tenant 136 6. Tenant for life not protector of set- tlement 13(5 7. Equitable Tenant for Life 136 8. Purchasing charges by Tenant .... 136 9. Tenant for Ltfe and remainder man 137 IV. By Coubtest 138 V. In Joint Tenancy 139 VI. By Survivorship 139 VTI. In Common 141 VIII. In Remainder 144 126 In fie.. ESTATE. In fee. IX, Ail Estate 146 X, Peiisonal 146 XI. By Implicatiok 146 XII. Chabgks on Real Estate 146 XIII. Application of PuivOhase-Mo.ney . . 149 XIV, ExoNEHATioN or 149 XV. CONVEIISION OP 150 XVI, Waste 151 I. In Fee. Freehold estates, regulating the conveyance of, 4 & 5 Vic. c. 21, E. ; 7 & 8 Vic. c. 76, s. 2, E. & I. Freehold and copyhold estates rendered assets for payment of simple contract debts, 3 & 4 W. 4, c. 104, E. An act for removing doubts respecting convey- ances by mortgagees of estates vested in heirs and devisees of, executors, or administrators, 1 85 2 Vic. c. 69, E. & I. An act for conveying the real estate vested in the heir or devisee, 7 & 8 Vic. c. 76, s. 9, E. & I. An act for consolidating the laws for the payr mcnt of debts out of real estates, 11 Geo. 4, & 1 W. 4, c. 47 ; amended by 2 & 3 Vic. c. 60. An act to remedy injury to real estates by and against executors, 3 & 4 W. 4, c. 42, s. 2, E. An act to enable the owners of settled estates to defray the expense of draining the same by way of mortgage, 3 & 4 Vic. c. 65. An act amending the laws relating to convey- ances, and trustees of estates, vested in trustees and mortgagees, 11 Geo. 4, & 1 W. 4, c. 60 ; 1 & 2 Vic. c. 69 i 7 & 8 Vic. c. 76. An act for the limitations of actions and suits relating to real property, and for simplifying the remedies for trying the rights thereto, 3 & 4 W. 4, n. 27 ; amended by 7 W. 4, & 1 Vic. c. 28 ; 6 & 7 Vic. c. 54. An act for extending to Ireland certain pro- visions of 3 & 4 VV. 4, c. 27 ; 6 & 7 Vic. c. 54 ; explained and amended by 7 & 8 Vie. c. 27. Removing difficulties in disposing of copyhold estates by will, 7 W. 4 & 1 Vic. c. 26. R. P. K. being entitled under a settlement and will of his grandfather to real estates in tail male, with remainders to his cousin in tail, with re- mainder to himself in fee, as right heir of the settlor, suifered a recovery, and acquired the fee simple. He had other estates in fee simple by purchase, and considerable personal estate. He by his will gave all his estates, real and personal, to his brother T. A. K., if living at his own de- cease, and if not, to T. A. K.'s son T. A. K., the younger, and in case ne should die before the tes- tator, to his eldest son, or next descendant in the direct male line, and in case he should leave no such descendant, to the next male issue of his said brother, and his next descendant in the di- rect male line ; but in case no such issue or de- scendant of his said brother or nephew should be living at the time of the testator's decease, to the next descendant in the direct male line of his said grandfather according to the purport of his will, under which the testator inherited those estates, subject in every case to certain reserva- tions out of the rents ; and he appointed the per- son who should inherit liis said estates under his will his sole executor " and trustee to carry the same and everything contained therein duly into execution, coniiding in the approved honour and integrity of his family to take no advantage of any technical irregularities, but to admit all the comparatively small reservations which he made out of so large a property, according to the plain and obvious meaning of his words." He then, after giving some legacies, bequeathed his gems and other articles to the British Museum, " on condition that the next descendant in the direct male line then living of his said grandfather, should be made an hereditary trustee, to be con- tinued in perpetual succession to his next descen- dants in the direct male line ;" and he concludes thus, " I trust to the liberality of my successors to reward any others of my old servants and tenants according to their deserts, and to their justice, on continuing the estates in the male suc- cession, according to the wiU of the founder of the family, my above named grandfather." T. A. K. survived the testator, and died without leaving any son. Held, that T. A. K. took the estates in fee absolutely, and that no trust was, or was intended to be, created by the will ; a dis- cretion being left to the devisees to defeat the testator's express desire. — Knight v. Boughton, 11 Clk. & Fin. 513. Semble, that the property to which the words of desire applied, and the nature of the estate to be taken in it, were too imcertain to raise a trust. — Per the Lord Cha7icellor, Id. Testator gave all his real and personal estate to trustees, their heirn, executors, &c., in trust, to pay, divide, and distribute the income, rents, in- terest, and profits, unto, and equally amongst all his children, whose names he mentioned, and such other children as he might have, or as should be in ventre de sa mere, at his death, share and share alike ; the shares of his daughters to be paid to them half-yearly for their separate use; and if any of his children should die in his life- time without leaving issue, he gave their shares to the survivors, but, if leaving issue, then to their issue ; and in case any of his children and their issue should die in the lifetime of any hus- band or wife with whom his children should have intermarried, he gave their shares to his surviv- ing children, and to the issue of such of his chil- dren as should be then dead ; it being his will that none of his sons', wives, or daughters' husbands should become heirs to their children's property : some of the testator's children died in his lifetime, but without issue. Held, first, that each of the surviving children was entitled to a share of his property, not for life only, but in fee. Secondly, that the gift over, in case any of his children and their issue should die in the lifetime of any husband or wife with whom his children should have intermarried, was too remote. — Hodson V. Ball, 14 Sim. 558. Testator gave all his estates, real and personal, to his executors in trust, to be disposed of by them as after-mentioned. He then gave all his real estates, houses, and lands, to his wife for lif ), " and, after the decease of my wife, I give my houses, lands, and estates in B, to J. B., but at his death I will that the whole shall be for the use of the said J. B.'s wife and children, and which children, at the death of their mother, shall inherit the same jointly duiing their lives, and if the said children shall die before they ar- rive at the age of 21, I will that my houses and estates at B. go to H. S," who was the testator's heir. J. B. and his wife had three daughters and one son. The daughters were living at the date of the will, and at the testator's death. The son was born afterwards. After the death of J. B., but in the lifetime of his wife, two of the daugh- ters died intestate and unmarried, one before and the other after attaining 21, leaving their brother In Fee. ESTATE. How Created. 127 their heir. After the deaths of the prior devisees, the son and the surviying daughter, both of whom had long attained 21, executed a deed in the na- ture of recDvery, by which they limited the lands in B. to theMse of themselves and their heirs as tenants in common. Held, that they took an estate in foe simple as tenants in common in the lands of B. — Spry v. Bromfield, 10 Sim. 94. Testator devised his estates to his son if he shovdd attain the age of 23 years, or should be married witli the consent of his trustees, which should iii'st happen, and to his heirs and assigns absolutely for ever. And in case his son should die without attaining such age, or being married with such consent as aforesaid, should die with- out lawful issue, or such issue should die under the age of 21 years, then to the testator's daugh- ters, as tenants in common, and the heirs of their bodies. The son married under the age of 23, with the consent of the trustees, and aiterwaids attained that age. Held, that the son was seised of an absolute estate in fee ; or, if not, that under the words of the gift over, " shall die without law- ful issue," he was seised of an estate tail, those words not being confined by the words " or such issue as shall depart this life under the age of 21 yeai-s," to dying without issue, living at his death ; and, consequently, that he could make a good title to the devised estates. — Grimshaw v. Pickup, 9 Sim. 591. Testator devised all his property to his wife, her heirs, &c., for all his estate and interest therein for her own absolute use and benefit, and to be disposed of by her by deed or vrill, as she might think fit. Held, that a freehold estate in fee, of which the testator was a trustee, passed by the devise. — Ex parte Shmo, 8 Sim. 159. I, 1. How Created. Learning as to the nature and quality of es- tates, pur auter vie, a tenant quasi in tail, in pos- session of such an estate, has full power over, and may by any act, inter vivos, deal with the estate precisely as if there never had been any settle- ment ; but a qiuisi ■ tenant in tail in remainder cannot, without the concurrence of the tenant for life, defeat the subsequent remainders. But if he aHen, with the consent of the tenant for life, or obtain a renewal with his concurrence, or if the tenant for life procures a renewal, and then conveys to the quasi tenant in tail, this wiU be suflicient to bar the quasi entail. If a tenant quasi in tail in remainder executes a conveyance for valuable oonsideration, but without the con- currence of the tenant for life, and surviving the tenant for life, lives until a period at which he was clearly capable of barring the entail, whether such alienation shall operate to bar the remain- ders over ; qucere. A father, tenant for life of an estate, pur auter vie, and his son, tenant quasi in tail in remainder, under a marriage settlement of the year 1767, join in executing a deed of the year 1792, the son being at the period of the exe- cution of such deed under age, whereby the lands were conveyed to a trustee, upon trust, for the father for life, remainder to the son, if he sur- vived his father, absolutely ; but if he died in the lifetime of his father without issue, then to the father absolutely. In this deed there was con- tained power enabling the father and son to re- voke the uses and declare new ones. The father, in three years after, executes a deed, by which he purported to convey all his interest to the son but still remained in possession ; and subse- quently obtained a renewal to himself from the head landlord. The father and son subsequently join in selling part of the lands comprised in the original settlement creating the quasi entail, and on that occasion exercised the power of revocation which was contained iii the deed of 1792, The son in 1815 executes a settlement upon the occa- sion of his marriage (his father being then alive, but not a party to the deed) , by which deed he conveys the lands to trustees, upon certain trusts, for himself fjr life, for his intended wife, and the issue of the marriage ; and in defatdt of issue, for himself absolutely. The son survived the father, and died in 1832, leaving issue one daughter only. The next tenant quasi in taU, under the original settlement S( 1767, filed his bill, claim- ing under the entail as still subsisting. Held, that by the operation of the deed of 1792, which was voidable only and not void, and which had been afterwards confirmed by the son, by the effect of subsequentdealingswiththeproperty, that the qxMsi entail had been effectually barred. — Allen V. Allen, 2 Dru. & W. 307. In 1773 A. maiTied B., who was seised in fee of an estate in Denbighshire. By their marriage articles they covenanted that M. and X. should stand seised of B.'s estates (which were men- tioned by their names), to the use of A. and B. for their lives, and for the life of the longer liver of them, remainder to the use of their first and other sons in taU. B. had an estate in Denbigh- shire, called Plas Madoc, which was not men- tioned in the articles. A. and B. had two sons. In 1802 they and their elder son conveyed all their estates, including Plas Madoc, to a tenant to the praecipe, and afterwards suffered recoveries of them for the purpose of barring all estates tail, reversions, and remainders in the estates, and re-settling them to such uses as A. and B. and their elder son should appoint ; and in de- fault, to A. and B. for their Uves, and the life of the longer liver of them, remainder to such uses as the elder son should appoint ; and in default, to such uses as the said estates were and stood limited to by the aiticles. Held, that the idti- mate limitation was wholly inoperative at law, and that it had no effect in equity, upon Plas Madoc ; and that, subject to the powers and life estates, there was a resulting use, as to it, for B. in fee. — Youder. Jones, 14 Sim. 131. In 1809 (at which time A. was dead) B. and her elder son executed deeds and suffered reco- veries, by which (after reciting that the sou had contracted for the purchase of B.'s life interest in the estates, except as thereinafter mentioned,) they appointed the estates, except Plas Madoc, (which was mentioned to be, but was not, thereinafter more particidarly described) to the uses after ex- pressed ; and they granted the estates to E. J. and his heirs, save and except to B., during her life, out of the grant, the estate called Plas Madoc, to hold the premises thereby granted (except as hereinbefore excepted) to E. J. and his heirs, subject as to Plas Madoo to a mortgage thereon, to uses, which were declared of alTthe estates, the last being for the elder son in fee. Held, at law, that he took an estate in fee in possession in Plas Madoo. Held, in equity, that he took, at the least, an estate in foe in re- mainder, expectant on B.'s death, in Plas Madoc. —Id. Devise to trustees and their heirs, upon trust, for the use and benefit of A., B., and C, (witli- out words of limitation). Held, that A., B., and C. took in fee. — Moore v. Cleghm-n, 10 Beav. 423. 12? Equitahle. ESTATE. In Tail Devise to trustees in fee, upon trust, for the use and benefit of A., B„ and C. ; the rents to be paid for their maintenance and education, " or to the survivors or survivor of them, share and share alike." Held, that they took equitable estates in fee as joint-tenants. — Id. Testator gave a freehold house to his wife for her sole use and benefit, and another freehold house to her for life ; and he also gave to her all his household goods, plate, &c. But if she mar- ried again, the whole of the above property was to become the property of his daughter ; and in case his wife should remain unmarried, then he gave the second mentioned house to his daughter for her life, and to her children, after his wife's death. "I also appoint my wife, provided she remains unmarried, sole executrix and residuary legatee to all other property I may possess at my decease." Held, that the fee simple in the first mentioned house passed to the wife. — Day v. Daveron, 12 Sim. 200. The testator bequeathed his residuary estate, upon trust, for his son for life, and after his decease for the children of his said son ; and he directed that in case his said son should, at any time thereafter, come into the actual possession of an estate entailed upon him (the testator) and his issue by his late uncle, R. D., of B., then and in such case the provision which he had therein- before made for his said son, and all and every the trusts thereof, should cease, determine, and be void ; and the trustees should thenceforth stand possessed of the said trust monies for the benefit of his other children, exclusive of his said son. R. D'., of B., the late uncle of the testator, had settled three estates to uses, which included, after several estates for life and in tail, a limi- tation in remainder, to his nephew (the testator) for his life, with remainder to trustees, upon trust, to preserve contingent remainders ; with remainder to the first and other son and sons of the body of his said nephew, severally and suc- cessively in tall male, with divers remainders over. Before the date of the will, a tenant in tail, who had the then first expectant estate tail, joined with the first tenant for life in recovery, whereby such tenant in tail had acquired the fee as to one of three estates, but whether that fact was known to the testator did not appear. After the death of the testator the same tenant in tail came into possession of the property, and suffered recoveries, whereby the entail as to the two re- maining estates was barred ; and he then devised the three estates to the son of the testator, in fee, subject to certain charges, under which devise the said son afterwards entered into possession of the same three estates. Held, that the pos- session thus acquired was not an actual possession of the estate entailed upon the testator and his issue within the meaning of the will. — Taylor v. Harewood, Earl, S Hare, 372. A bequest of " all my goods, chattels, estate, and estates, whatsoever," will pass real as well as personal property. — Churchill v. Dibben, 9 Sim. 447. A bequest of " money, goods, chattels, estates, and efieets," held to pass real estate. — Midland Counties Railway Co, v. Oswin, 1 Coll. C, C. 74. I, 2. Equitable, A testator gave all his real and personal estates to trustees, and as to his lands at W, which he held in fee simple, he directed that the trustees should stand seised thereof, in trust, to convey the same to G. H. A. " when and as soon as he should attain his age of twenty-one years," but in case he should die before he attained that age, without leaving issue of his body, then that the said lands at W., given and devised to him should sink into the residue of the testator's real and personal estates, and he gave the residue to G. C. At the testator's death, G. H. A. was only twelve years of age. Held, that an equitable estate in fee, in the lands at W., vested in G. H. A., im- mediately on the testator's death, liable to be divested in the event of his dying under twenty- one without leaving issue of his body. — Phipps V. Ackers, 9 Clk. & Fin. 583. A testator devised and bequeathed his real and personal estate to his wife and three other per- sons, and their heirs and executors, &c. for ever, upon trust, to receive the rents for life ; and after her decease upon trvist, to pay and divide the rents amongst his children, as they attained twenty- one, and after their decease to pay the principal of their respective shares unto their legal representatives, their executors, adminis- trators, and assigns. He gave power to the trustee to sell, with power of maintenance, out of the rents and advancements, out of the principal of their shares ; and in case any of his freehold estates should not be sold by his said trustees, then from and after the decease of his said chil- dren, he devised the same unto their respective heirs and assigns as tenants in common. And he directed that the receipts and conveyances of his said trustees, to any purchasers of any part of his estate and effects, should be good discharges and assurances. Held, that the trustees took the legal fee, and that the children were entitled to equitable estates for life, with equitable re- mainders to their heirs, which, united", gave them equitable estates in fee simple. — ReyneU v. liey- nell, 10 Beav. 21. II.— In Tail, 1. Words which create 129 2. Equitable Estate 1.30 3. Quasi 130 4. By Implication 130 5. Tenant in tail and remainder man 131 6. Investment of money in purchase of 131 3 & 4 W. 4, c. 74, with respect to dispositions of estates tail under bankruptcy extended by Bankrupt Law Consolidation Act to petitions for adjudication. Acts for the relief of persons entitled to entailed estates to be purchased with trust monies, 3 & 4 W. 4, c. 74, E. ; 4 & S W. 4, o. 92. 1. Granting powers to heirs of entail, and authoriz- ing the sale of entailed lands for the payment of debts, affecting the same in Scotland, 6 & 7 W. 4, c. 42, amended by 4 & 5 Vict. c. 24, which ex- tends the provisions of 6 & 7 W. 4, c. 42, in rela- tion to granting Tacks and making Excambions by heirs of entail, 1 & 2 Vict. c. 70. An act authorizing propiietors of entailed estates in Scotland, to grant provisions to their wives or husbands, tind children, 5 Geo. 4, c. 87. An act to enable proprietors of land in Scotland to fee, or lease, on long leases, portions of entailed estates for the building of churches and schools, and for dwelling-houses and gardens for the ministers and masters, 3 & 4 Vict. e. 48. In a suit to raise a charge affecting the inheri- tance, the tenant in taU consented to an interlo- cutory order, referring it to the master, to take the In Tail. t:STATE. Words which create. 129 hccount prayed, ancl died after the report was mude, but before certain objections taken to it by the tenant in tail were disposed of. Held, that the proceedings had under the consent order were binding on the issue in tail ; but that he was en- titled to be placed in the position of the tenant in tail when he died, and liberty was given to him to argue the objections. — Creagh v. Creagh, 3 Jon. &L. 485. Testator gave in trust to his brother E. the re- mainder of his property, of whatsoever kind, to assist him to bring up, educate, and provide for the children of his late brother J. whom he named : '• When my youngest nephew attains his age of twenty-one years, it is my will that all my pro- perty be equally divided amongst my nephews, or their lawful issue, share and share alike ; the division however is not to take place, although my youngest nephew have attained the age of twenty-one years until the decease of my wife, my sister J., and my brother E." Held, that the interest of the nephews were not tontingent on thrar living until the youngest of them should attain twenty-one, but vested on the testator's death; and that the word "or" was to be con- strued conjunctively, and consequently that the nephews took estates tail in their shares of the testator's real property, and absolute interests m the shares of his personEil property. — Parkinx. Knight, 15 Sim. 83. Devise of real estate to trustees upon trust to raise by sale or mortgage thereof, sufficient to pay the debts and legacies of the testatrix, and sub- ject thereto to theuseof Ai for life, with remainder to her first and other sons in tail male, with re- mainders over. In a suit instituted in the Court of Exchequer, for the payment of the debts and legacies of the testatrix, a decree for a sale was pronotineed, under which accordingly a sale was had, but pending the proceedings in the suit, A. the tenantfor lifedied,leavinghimsurvivingtliree Eons, of whom S. the eldest and first tenant in tail under the will of the testatrix was a lunatic, and so found by inquisition. Upon an application in the matter of the lunacy on the part of the pi aintiffe in the Exchequer suit, that the committee should be directed to execute the necessary deed, to bar the estate tail of the lunatic, the court re- fused to make the order. Semble, that if the legal fee was in the trustees, the concurrence of the committee of the lunatic was not necessary. — In re Skerrett, 2 Dru. & W. 586. Testator made two wills, one of his estates in Sussex, and the other of his estates in Bedford- shire. By the latter he devised those estates to trustees, in trust, to settle them on G. R., (who was heir to the Barony of D.) for life, with re- mainder to his issue in tail male in strict settle- ment, " upon the like condition to that I have made in my wiU of my Sussex estates, so far as the change of circumstances will permit, that the said estates shall go over to the party next en- titled, the person for the time being possessed becoming entitled to the Barony of D." Held, re- gard being had to the will of the Sussex estates, that the succession of a child, or any male issue of a child of G. K., to the barony, ought not to exclude that child or his issue male from the en- joyment of the Bedfordshire estate, unless some other child or the issue male of some other child of G. E. were in existence, to whom those estates might go over. — Trevor v. Trevor, 13 Sim. 108. Ifestator directed his estates to be settled on G. R. for life, with remainder to his issue in tail male, in strict settlement, upon condition that all persons from time to time to come into possession of the estates, should take and use his name and arms. Held, that the estates ought to be settled on G. R. for life, with remainder to his sons suc- cessively in tail male, with remainder to his daughters, as tenants in common in tail male, with cross remainders in tail male, and that the proviso to be inserted in the settlement, as to tak- ing the name and arms, and for giving over the estates on default, ought to be so expressed as to talce away the estates from the defaulting party and his descendants only; that is, if a grandson of G. R. were the defaulting party, the conse- quence ought not to extend to hia younger brother. — Id. An heir-at-law taking an entailed estate upon his father's death, caimot, by the law of Scotland, claim his share of his father's personalty, as next of kin, without first collating the entailed estate, though the entail was not created by his father but by a more remote ancestor. — Anstruther v. Anstruther, i Clk. & Fin. 33. Where by a deed of settlement after marriage, certain premises were conveyed to trustees to the use of A., the husband, for life, remainder to trustees to preserve contingent remainders, re- mainder to the use of B. (the eldest son of A.), and the heirs of the said B., and for default thereof to the use of C. the second son, and all and every the other sons, severally and successively in tail male, remainder to the use of the daughters, share and share alike, as tenants in common in tail male, with remainders over ; B. having died without issue. Held, that B. having been only tenant in tail, under the limitations in the settle- ment, on his decease without issue male, C. the second son was entitled but to an estate in tail male, and did not take as heir-at-law to hia brother S.—Wally. Wright, 1 Dru. & W. 1. Testator gave all his real and personal property to his daughter for her separate use for life, "at her decease she shall be at liberty to will the same to her issue, but in case of her dying with- out issue, I wish the property to go to my brother and sister, for their lives ; in the event of my brother's death prior to the death of my daughter, then to the children of my brother." Held, that the daughter took an estate taU in realty and no absolute interest in the personalty. — Simmons v. Simmons, 8 Sim. 22. A decree directing the owner of a legal estate to do such acts as are requisite to bar the estate tail, but which are incomplete at his death, is not binding on the succeeding issue in tail. — Frank v. Mainwaring, 2 Beav. 115. An infant tenant in tail may be ordered to con- vey under the 1 Will. 4, c. 47, s. 11. — Radcliffey. Eecles, 1 Keen, 130. The testator directed the residue of his pro- perty to be invested in land and given to S., who was not to be of age to receive this until he at- tained his twenty-fifth year, and to be entailed to him and his heirs male. Held, that S. took a vested estate tail in the land, subject to be di- vested if he should not attain twenty-five, and that the rents and profits were applicable to his benefit during his minority. — Snow v. Poulden 1 Keen, 186. II, 1 . Words which create. Testator gave in trust to his brother E. the re- mainder ofhisproperty, of whatsoeverkind,to assist him to bring up, educate, and provide for the chil- dren ofhislate brother, J., whomhenamed;"AVhen K 130 Equitable Estate, ESTATE. By Implication. my youngest nephew attains his age of twenty- one years, it is my will that all my property be equidly divided amongst my nephews or their lawful issues, share and share alike ; the division however, is not to talie place, although my young- est nephew have attained the age of twenty-one years, until the decease of my wife, my sister J. and my brother E." Held, that the interests of the nephews were not contingent on their living until the youngest of them should attain twenty- one, but vested on the testator's death ; and that the word " or " was to be construed conjunctively, and consequently that the nephews took estates tail in their shares of the testator's real property, and absolute interest in their shares of his per- sonal property. — Parkin v. Knight, 15 Sim. 83. Testator devised his estates to trustees in trust to settle and convey the same to the use of, or in trust for, G. R. (who had then no issue) for life, without impeachment of waste, with remainder to his issue in tail male, in direct settlement. Held, that the words, "in tail male," were de- scriptive not of the issue, but of the interest that they were to have, and that the estates ought to be settled on G. R. for life without impeachment, &c., with remainder to his sons successively, in tail male, with remainder to his daughters as ten- ants in common in tail male, with cross remain- ders in tail male. — Trevor.y. Trevor, 13 Sim. 108. Devise and bequest of residuary real and per- sonal estate to the testator's son, and the heirs of his body for ever, and in case the son should die without children, the whole to be divided amongst the testator's surviving grand-children, share and share alike. The son takes an estate tail in the freehold part of the property. — Abram V. Ward, 6 Hare, 165. The words " lawful heirs " held, upon the con- struction of a wUl, to mean " heirs of the body." — Simpson v. Ashworth, 6 Beav. 412. A testator having several children directed the purchase of an estate for one of his daughters, " for her use, and her lawful heirs," to be returned if she died without lawful heirs," to the other children thathad heirs. Held, upon the context, that " lawful heirs " must be construed " heirs of the body," that the daughter took an estate tail, and that the gift over was also an estate tail — Id. Testator devised to his son Joseph for life, but if Joseph should die without issue, not leav- ing any children, then he directed that the lands should be sold, and the proceeds divided amongst his three other sons, and if any of them should die before Joseph, then that their shares should be divided amongst their children. Held, that Joseph took an estate tail. — MacheU v. Weeding, 8 Sim. i. A. devised to B. an estate during the life of herself and her husband, and after their deceases tothelawfulissueofB.'sbody forever. Held, that B. took anestatetail. — Griffiths. Evan, 6 Beav. 241 . A testator gave his real and personal estate to his wife for life, and after her decease '* unto and amongst his three children. P., E., and T., and their lawful issue, in such proportions, manner, and form, subject to such charges, &c., as his wife should appoint." Held, that in default of appointment, the children took estates tail, and that an appointment to a deceased child, and the heirs of her body was invalid. — Martin v. Swaii- nell, 2 Bear. 249. II, 2. Equitable Estate. Devise of a copyhold to trustees and the sur- vivor of them, and the executors and administra- tors of such survivor for ever, upon trust, out of the rents and profits to pay certain yearly charges, and the residue to T. for life, and from and after his decease to pay the residue as aforesaid to T.'s children, and so on for ever, and for want of chil- dren lawfully begotten, to the testator's daugh- ters. Held that T. took an equitable estate under this devise. — Trash v. Wood, 4 Myl. & Cr. 324. T. received the rents during his life, but having an equitable estate only, was not admitted tenant of the copyhold, and died, leaving several sons. The custom proved with respect to the descent of copyholds within the manor was, that upon the death intestate of a tenant, seised of an estate of inheritance, his younger son was his customary heir. Held, that the youngest son of T., and not the eldest, became entitled on his father's death to call for a conveyance of the copyhold as tenant in tail under the devise. — Id. II, 3. Quasi, A tenant in quasi tail in remainder, cannot, without the concurrence of the tenant for life, bar the remainders, though semble.he can bar his own issue, but the tenant for life merely executing a deed by which the remainder-man conveys, or vice versa, will bar the consequent remainders. — Allen V. Allen, 1 Con. & L. 427. If the tenant for life take a renewal to himself, and then convey to the remainder-man in quasi tail, the subsequentremainders wiUbebarred. — Id, II, 4. Sy Implication. A testator devised his real and personal es- tate to trustees, and gave his life estate therein to several persons, namely, A., B., &c., and after their deaths he directed the trustees to pay the income to Moses and NapthaU during their re- spective lives, share and share alike, and in case either of them should, after the death of A., B., &c., depart this life without leaving issue male of his body, in trust to pay the whole income to the survivor for life, and he directed that if Moses should, after the deaths of A., B., &c., die before Napthali, leaving issue male, then the trustees should convey a moiety of the real estate to the use of the first and other sons of Moses in tail male, with remainder to Napthali for life, with remainder to his first and other sons in tail, and in default to the testator's right heirs, and lay out a moiety of the personal estate in land, and convey the same to trustees to the like uses. The testator made a similar disposition mutatis mutandis of the other moiety in case of the death of Napthali, after the deaths of A., B., leaving issue male, and he provided that in case Moses and Napthali should die without leaving issue male, or if such issue male sho\ild die without leaving any issue male, the trustees should con- vey the property to such person as should, at the death of the survivor of Moses and Napthali, be the right heir of the testator. It wUl be seen that no provision was made for the event (which happened) of Moses dying without issue before the death of A., B., &c., Napthali survived Moses, and A., B., &c., and Moses died without issue. Held, first, that the words " after the deaths of A., B., &c.," did not import contin- gency, but were merely words of reference, shew- ing that the gifts then in course of expression were subject to the prior gifts, and were not to have effect in possession until those prior gifts were satisfied, or had become inoperative. Se- condly, that the words, "if Moses should die before the death of Napthali, leaving issue male," For Life. ESTATE. For Life. 131 must have their natural meaning, and be taken to provide only for the particular cases expressly described. Thirdly, that to effectuate the gene- ral intent, Napthali took an estate tail by impli- cation in both moieties of the realty, and an ab- solute interest in the personalty. And, fourthly, that the trusts in which the question arose were not executory so as to alter tiie construction as arising on an executed trust. — Franks y. Price, 3 Beav. 182. II, 5. Tenant in Tail and Remainder Man. A., on his father's death, became tenant in tail of estates in possession, with remainder to his younger brother in tail. After the father's death a suit was instituted on behalf of A. and his younger brother (both of whom were infants), and a receiver of the rents of the estates was appointed. The younger brother was made a party to that suit, as being entitled to a younger child's portion out of the estates. A. died under twenty-one, and without issue. At his death the estates were held, as they had been ever since his father's death, by yearly tenants, imder parol demises. Held, that A.'s administratrix was en- titled to a proportionate part of the rents which were accruing due at his death. — Kevill v. Davies, 15 Sim. 466. II, 6. Investment of Money in Purchase of, A testator, by his last will and testament, directed the trustees therein appointed to call in a certain sum of money to which he was entitled, and invest the same in the purchase of freehold estates, in lands or hereditaments, of a clear estate of inheritance, for use of his son A., for and during his natural life ; and after his death to the use of his first and other son, according to seniority of age and priority of birth; and in case the said A. should happen to die without issue male, then in trust for his second son B., and the heirs male of his body, according to seniority of age and priority of birth ; and de- sired that his said sons and the several persons who should be in possession of such estates should have a power to make leases not exceeding three lives, or thirty-one years, at the fuU im- proved value. Held, that A. was entitled to an estate tail in the lands to be jjurchased. — Herbert v. Blundell, 1 Dm. & W. 78. ni. — Foa Life. 1. In Personalty 134 2. By Implication 135 3. When Pwrchater of, not bound to take 136 4. Statutable Conveyance by Tenant 136 6. Jointuring Power by Tenant 136 6. Tenant for Lifenot Protector of Settlement 136 7. Equitable Tenant for Life 136 8. Purchasing Charges by Tenant 136 9. Tenant for Life and Remainder Man .... 137 A testator devised his estates to the second son of Edward Weld, of Lulworth, for life, with re- mainders to his sons, successively, in tail male, with like remainders to the third and other sons (except the eldest) of the said Edward Weld and their sons, with remainders to the first and other sons of each brother (except the eldest brother) of the said Edward Weld, successively, in tail male; with like remainders to the second and other sons (except the eldest) to Lady Stourton, one of the sisters of the said Edward Weld. There was not, at the date of the will or death of the testator, any such person as Edward Weld, of Lulworth ; but it appeared, from evidence re- ceived as to the state of the Weld family, that Joseph Weld was then the possessor of Lul- worth ; that he had an eldest brother living, and had an eldest son, named Edward Joseph, and a second son, named Thomas, both unmarried, and that he was himself the brother of Lady Stour- ton. Held, that all the descriptions of the un- named devisee, taken with the context of the wiU and the evidence of the state of the Weld family, clearly designated Thomas, the second son of Joseph Weld ; and that he was entitled as tenant for life in possession to the devised estates. — Lord Camoys v. Blundell, 1 Clk. & Ein. N. S. 778. A testator gave and bequeathed to his son R. (who was his heir-at-law) his freehold land in D., and directed that the residue of the property which he might leave at his death should be divided between that son and his two sisters, in equal proportions ; vnth a direction that what- ever portion might devolve to him should be placed in the names of trustees, and the interest paid to him during his life, and that after his death his share should be divided between his children, and placed in the names of trustees, with a discretionary power to employ a portion of the capital for their advancement ; and on the children respectively attaining twenty-five, their shares to be transferred to them. Should his son die without issue, the whole of his propor- tion was to devolve to his two sisters during their lives, in equal proportions, and after their deaths to their children. Held, first, that under the terms of this devise, the son took only a life estate in the freehold land in D. ; and secondly, that under the residuary clause the reversion in fee of the land passed in equal undivided thirds, subject to the same trusts and limitations as the other residuary property, for the benefit of the testator's son and daughters and their respective children. — Saumarez v. Saumarez, 4 Myl. & Cr. 331. By a marriage settlement of the 9th of May, 1789, certain real estates, the property of the husband, were limited in trust for him for life, and after his decease to trustees, for a term of 1,000 years, and subject thereto to the first and other sons of the marriage, with remainder to the husband in fee. The trusts of the term, which were for raising a sum of £8,000 as portions for the younger children of the marriage, were de- clared to take eflect in case there should be one or more child or children besides an eldest or only son. There was no sou of the said mar- riage, but only two daughters. Upon the occa- sion of the marriage of one of the daughters the father covenanted to settle upon herself and her husband and their issue an annuity of £500 per annum, and subsequently conveyed, in fulfilment of this covenant, a portion of the lands which were the subject of the settlement of 1789, to trustees, for a term of 300 years, to secure same. Upon the marriage of the second daughter the father made a pecuniary provision for her, which was expressly declared to be in satis- faction of her portion under the settlement. The father by his will devised the estates which were the subject of the settlement of 1789, to his two daughters, in the same manner as they would have come to them if he had died intestate. Hold, 1S2 Por Life. RSTAtE. For Life. upon tlie true construction of the settlement, that as there waa no son of the marriage, the portions were not raisable. Semble, that even if the por- tions were raisable, the gift of the annuity to the daughter would have operated as a satisfaction of her share. Semtle, that after the descent of the estates upon the two daughters, neither could support a claim against her sister's lands for her share of the portions. The case of Church v. Ed- wards (2 Bro. C. C. 180) etpproxed of.— Wallcott V. Bloomfield, i Dru. & W. 211. Testator devised lands to his son A. T. for life, and after the decease of A. T., to his first son lawfully issuing, and for default of such first issue, to the use of the second, third, and every other son, and the heirs of his or their bodies, the elder to be always preferred before the younger of such sons and the heirs of his body ; and for default of such issue, then to the use of all and every the daughters of A. T. and the heirs of the body of such daughter and daughters, with remainders over. Held, that the first son of A. T. took neither by construction nor by im- plication an estate tail, but a life estate only. — Barnacle v. Nightingale, 14 Sim. 456. Lands were limited by deed to the use of the settlor for life, remainder to the use of his wife for life, remainder to the use of the heir female of the body of the settlor, on the body of his wife already begotten and now living, or which may be begotten hereafter, and in default of such issue to the use of the heir male of the body of the settlor on the body of his vrife to be begotten, re- mainder to the right heirs of the settlor. At the time when this deed was executed the settlor and his wife had issue, four daughters and no issue male, but at his death the same four daughters and also several sons of the marriage survived him. Held, that under the limitation to the heir female, the daughter took a life estate in the lands as purchasers. — Chamlers v. Taylor, 2 Myl. & Cr. 376. A testatrix bequeathed the "interest" of a sum of money to her eldest child for life, " and afterwards to devolve in succession on her (the testatrix's) remaining children." Held, on the death of the eldest that the others were entitled for life in succession according to their priority of age. — Young v. Shegpard, 10 Beav. 207. A testator seised of an estate pur auter vie, and possessed of personal property to the amount of about £45,000, by his will bequeathed the sum of £1,500, the other part of the £45,000, together with any fiirther property in trust for the use of his father, to be disposed of by him, share and share alike, as he by deed or will should appoint, among testator's brothers H. and J., and the daughter or daughters of his sister E. E. had several daughters. Held, that the testator's father took a "life interest in the £1,600, together with any further property," and that on his de- cease without having executed his power of ap- pointment, H., J., and each of the daughters of E. were entitled to equal shares. — Ac/ieson v. Fair, 3 Dru. & "W. 512. A testator devised lands of which he was seised pur auter vie, to his nephew J. C. for life, and then proceeded thus, "and from and after his de- cease I give and devise the same unto the issue male and female of the said J. C, now begotten or to be begotten on the body of his present wife, to be divided between and amongst them in such manner, shares, and proportions as the said J. C. shall by his last will limit and appoint, subject nevertheless to the provisions hereinafter parti- cularly mentioned, viz.— that the said J, C, his heirs, executors, administrators and assigns, and the persons who shall become entitled thereto under this my will, shall and will pay the head landlord's rent of the said lands, and shall and will yearly and every year during the continu- ance of the lease, pay or cause to be paid to S,, his heirs, or assigns, one yearly annuity or sura of £40, &c." J. C. did not duly exercise his power of appointment. Held, that J. C. took an estate for life only, and that his issue took abso- lute interests as tenants in common as purchasers, and that the words, "issue male and female," meant sons and daughters or the first line of issue. — Crozier v. Crozier, 3 Dru. & W. 373. Where the only gift to a class consisted of a direction to divide and pay upon the death of the tenant for life ; Held, upon the context, that those only took who survived such tenant for Ufe. — Beck V. Burn, 7 Beav. 492. By post-nuptial settlements, J. F., having then living two sons, H. and T.,and one daughter, M., covenanted with trustees to settle certain lands, of which he was seised infee, as counsel should direct, to the use of J. F. for Ufe, remainder to trustees to preserve, &c., remainder to the use of H., and to permit him to take the rents and profits for his life, remainder to the heirs male of the body of H., remainder to the use of T., and to permit him to take the rents and profits for his life, remain- der to the issue male of T., with remainders to the unborn sons of J. F. in tail male, in strict settlement, with remainders over. Held, that H. took an estate for life only, — Rochfort v. Fitz- maurice, 2 Dru. & W. 1. W. H. by his will, which was not attested so as to pass real estates, directed that his property should produce for his wife an annuity of £100, for each of his daughters M. and J. L. £100 per annum for themselves and their children, for his wife's mother £100 per annum. The annuities given to his wife and her mother, after the death of the survivor, to go to his three children W., M., and J. L., in equal shares, and bequeathed the residue of his property to W. Subsequently M. died, and by a codicil the testator directed the £100 per annum, &c., provided for M., to be equally divided between W. and J. L. ; by a second codicil W. H. directed that in the event of W.'s death without issue male, then after the decease of his (the testator's) wife and J. L., his remaining property should go over. J. L., had no children at the date of the will or at the time of the testator's death, nor did she take any other benefit under the will and codicils than those mentioned. Held, that J. L. took only a life in- terest in the respective gifts to her. Where an annuity is bequeathed without words of limita- tion, and unaccompanied by a reference to some fund for its payment, the legatee will not take more than a life interest. — Heron v. Stokes, 2 Dru. & W. 89 ; 1 Con. & L. 270. A testator devised the lands in question to trus- tees to the use of A. for life, remainder to the use of the first and other sons of A., and in default of such issue over. Held, that the words "in de- fault of such issue" did not operate to enlarge by implication A.'s life estate. — Purcell t. Purcell, 2 Dru. & W. 219. R. W., being tenant for life, with remainder to his first and other sons in tail male, remainder to his daughters in such shares as he should ap- point, and in default of appointment share and share alike, if only one daughter, to her in fee. Previous to the marriage of his only daughter For Life. ESTATE. For Life. 133 M. with G. P. W., articles were executed, which recited that M. was entitled to an estate in fee expectant upon the death of her father without other issue, which it was agreed should be settled to her separate use if she should ever become en- titled thereto, and on her issue, and that in case M. should die in the lifetime of G. P. W., he should receive the rents for his life, it being the intention of the parties that M., when, and so soon as she should become entitled to the lands, should receive the rents for her separate use, and in case G. P. W. should survive M, with or without issue, he should receive the rents for his life as aforesaid, provided the said M. should ever become entitled thereto as aforesaid, but not other^vise, and G. P. W. thereby covenanted by a formal deed to execute these limitations within six months after the celebration of the marriage. R. W. survived M., but had no other issue ; on the death of R. W., G. P. W. entered, but did not execute any deed in performance of his covenant. Held, that under the said articles, G. P. "W. took an estate for life, although M. never became entitled to the possession. Held, that the breach of covenant committed by G. P. "W. did not affect the estate for life so li- mited to him, — Wallacly. Wallace, 2 Dru. & W. 452. Testator devised lands, subject to an annuity to his wife, to his son for life, with remaiader to the son's first and other sons in tail, with re- mainder, subject to another annuity to his wife, to his grandson, and the grandson's first and other sons in like manner, with remainders over, and he gave his residuary personal estate to his son. The son died without issue, and thereupon the testator by a codicil charged the lands with three further annuities, one for his wife, another for his daughter, and the third for her husband, and gave his residuary personal estate to his wife. He aJEterwards made two other codicils, but they were not duly attested. He then made a fourth, which was duly attested, " revoking several of the dispositions heretofore made by me in my said vffll £ind codicils, of all my &eehold, copy- hold, and personal estate of every kind, and in- stead of such devise, disposition, and bequest thereof, I do give all my freehold, copyhold, and personal estate of every kind, and wheresoever situate, unto my daughter, for her life, and after the determination of that estate unto my grand- son, and his heirs, in strict entail as in my will directed." He then directed that his grandson, who was an infant, should not be put in posses- sion of his estate until he had attained thirty-one, and that, in the interval, the rents should be ac- cumulated for the benefit of his grandson and his heirs, " and in failure of issue of my said grandson, I order that my said estates and ef- fects shall go and descend as is by my said will directed." The testator then confirmed the se- veral annuities and donations bequeathed in his will and former codicils, and gave another an- nuity to his wife thereby, in all other respects but what was above mentioned, ratifying and con- firming his will and codicils. Held, that the grandson took not an estate tail, but only an es- tate f T life in the lands. If lands are devised in trust to be settled on A. and his heirs in strict fntail, the lands ought to be settled on A. for life, and on the persons designated as his heirs in succession. — Graves v. Bicks, 11 Sim. 536. Devise to A. for life, with remainder to her first child, and his or her heirs ; but if such child should die undur the age of twenty-one years. without leaving issue, then in like manner to the second, third, and every other chUd of A., regard being had to their seniority, and to their respec- tive deaths under age, without leaving lawful issue, but in case of issue, it was the testator's will that they should inherit the estate, and he thereby gave the same to him or her, and to his or her heirs accordingly. But in case A. died without leaving issue of her body, or having issue such issue should die under the age of twenty-one without leaving issue, then he devised the estate over, A. never had any issue. Held, that she took a life estate only. — Goymour v. Pigge, 7 Beav. 475. Testator gave all his estates, real and personal, to his executors, in trust, to be disposed of by them as aftermentioned. He then gave all his real estates, houses, and lands, to his wife for life, " and after the decease of my wife, I give my houses, lands, and estate in B. to J. B., but at his death I will that the whole shaU be for the use of the said J. B.'s wife and children, and which children, at the death of their mother, shall inherit the same jointly during their lives ; and if the said children shall die before they ar- rive at the age of 21, 1 will that my houses and estates in B. go to H. S." Held, that J. B.'s chil- dren took the B. estate for their lives only ; and they having attained 21, that the inheritance was imdisposed of. — Spry v. Bromfield, 9 Sim. 534. Devise to A. for life, and firom and after his decease " unto all and every the issue of the body of the said A., share and share alike, as tenants in common, and the heirs of such issue." Held, that A. took an estate for life only. — Greenaood V. Rothwell, 6 Beav. 492. The testator directed his real and personal estate to be converted, got in, and invested, in government or real securities, and the intere-st, dividends, and annual produce, to be paid to his wife for her life. The greater part of the testa- tor's property at his death consisted of capital in a partnership business abroad, to be withdrawn by instalments, in the course of three or five years, at the discretion of his executors, and bearing interest at five per cent, in the meantime. Held, that the tenant for life would be entitled to the income actually produced by such of the property of the testator as was invested accord- ing to ms will from the time of such investment, but that she was not entitled during the first year after the testator's death to a larger income m respect of such part of the testator's property as was not so invested, than the property would have produced if invested accordiiig to the will. —Taylor v. Clarke, 1 Hare, 161. Bequest of leaseholds to A. her executors, administrators, and assigns for her life. Held, on the context to give a life estate only. — Mor- rall V. Sutton, 5 Beav. 100. Part of a residuary estate, settled on one for life, with remainder to her issue, consisted of life annuities and policies on the lives for securing the principal money. The court seeing it for the benefit of all parties, refrained from ordering a sale, but directed the policies to be kept up, so as to secure the principal, and that the surplus annuities should be paid to the tenant for lil'e. Glengall v. Barnard, 5 Beav. 245. By marriage articles, a husband covenanted in consideration of his wife's portion, to settle an estate to his own use, and after his decease to the use of his heirs, on the body of his intended wLd, and for want oi such issue to his own right heirs for ever. The articles did not express any further 1S4 For Life. ESTATE. In Personalty. intention of providing for the children of the mar- riage, and made a provision for the intended -wife in lieu of dower. No settlement was executed, and the husband mortgaged the estate, and at the same time delivered the articles to the mortgagee. Held, on his death, that under the articles he was entitled to a life estate only, and that the mortgagee took with notice, and could not there- fore hold as against the issue of the marriage. — Davies v. Davies, 4 Beav. 64. Bequest of leaseholds after prior life estates to A. B., her executors, administrators, and assigns, during the term of her natural life. Held, on the context to give a life estate only, — Morrallv. Sut- ton, 4 Beav. 478. A testator possessed of personal property, gave a beneficial and apparently absolute interest in it to his wife, whom he made his sole executrix, but with a direction that in case his property should be more than she wanted to live on for her lifetime, she was to give weekly the remainder to the testator's two daughters, so long as she lived, and he directed the whole of his property to be sold, and the money to be put into the Bank of England, in trust, as might be thought best for her and those in trust. Held, that the wife took beneficially an interest for life only, and the gift to the daughters was invalid, and that there was an intestacy as to the beneficial interest in the capital after the widow's death. — Hudson v. Bry- ant, 1 Coll. C.C. 681. A. having a power of revocation, and new ap- jiointraent over an estate of which B. liis heir was tenant in taU, by his wUl directed the estate " to be attached to his title as closely as possible." Held, that the estate of B., and all other tenants in tail, in esse at A.'s death, (being in the line of the title) were abridged to estates for life only. — LordJDorchestery. The Earl of Effingham, 3 Beav. 180 n. Bequest of money and leaseholds to a. feme sole " for her own absolute use, without liberty to sell or assign during her life." Held, that she took the property absolutely without power of disposi- tion during her life. — Baker v. Newton i Newton V, Richardt, 2 Beav. 112. A testator gave a rent charge to trustees during thelife of A. B . and her five daughters, in trust, to pay it to A. B. for life, and after her death " upon trust for her said daughters, and the survivors and survivor, and while more than one should be living, to be divided between them in equal shares." A. B. had five sons and one daughter, only. Held, that subject to the life interest of A. B., her only daughter was entitled to the rent charge of £200 for life. — Lord Selsey v. Lord Lake, 1 Beav. 146. A testatrix made the following bequest: — ^I give to A. A. the sum of £400, to be paid at and after my decease, and vested in the public funds, the interest whereof she shall receive when she attains twenty-one. In the event of her decease at, before, or after the said period, the sum so bequeathed to be divided between E. M. and A. M. A. A. took a life interest only in the legacy. — Miles v. Clark, 1 Keen, 92. The testator devised and bequeathed the residue of his estate and effects, real and personal, to trustees upon trtist, to convert the same into government securities in their own names, and to pay the interest and dividends thereof to M. S. for her life, and after her decease to pay and transfer such residue in equal moieties to the per- sons therein mentioned. Held, that the tenant for life was entitled to the interest of the i-esidiie, making interest as it stood at the time of the testator's death, until the end of one year, or so much of that year as should elapse before the con- version of the residue, according to the direction of the will. — Doughlai t. Gongreve, 1 Keen, 410, HI, 1, In Personalty. A testator began his will by bequeathing the vchole of his property to his wife for life, and afterwards to be equally divided between his ; children. He then gave to each of his children and to his wife some pecuniary and specific legacies, and afterwards bequeathed as follows ; " The property, my house, 21 North Ariet-street, Marylebone, let on lease at £48 a-year, £1,000 new 4 percent., £1,500 in the 3 per cent, consols, £645 in the threes reduced, and £20 per annum in the long annuities, all this I give to my wife, with the residue and interest, should there be any." Held, that the widow took a life interest only in the general residue, including the parti- culars enumerated in the concluding clause, but that of those particulars she was entitled to the enjoyment in specie. — Vaughart v. Btuk, I Phil. 75. A testator bequeathed ten Pelican shares to his son, and his heirs, executors, administrators, and assigns for ever, " he paying the profits of eight to the testator's daughters for life ; and after their decease the daughters' shares were to return to his son and his issue," and " in default of such issue" there was a gift over to the " daughters and their issue." Held, that subject to thelife interest of the daughters, the son was absolutely entitled to the shares. — Sedges v. Marpwr, 9 Beav. 479. Testator bequeathed to G. two sums of stock, and in case of his death in the testator's lifetime, without issue, the two sums were to be equally divided among the testator's nieces thereinafter named, under the same conditions and restrictions as were thereinafter mentioned, respecting the several bequests therein after mentioned to them respectively given. The testator then gave £12,000 stock to trustees upon trust, to pay the dividends (in thirds) to the testator's three nieces A. B. and C. for their lives, and after their re- spective deaths to transfer the capital (in thirds) to the children of the nieces, with Umitations over, in the nature of cross remainders, in the event of any of the nieces dying without leaving children ; with an ultimate limitation in the event of all the nieces dying without leaving children, in favour of the residuary legatee a stranger. G. died without issue in the testator's lifetime. The nieces had children. Held, that the childien took the same interest in the stock given to G., as they did in the £12,000 consols. — .Ross v. Boss, 2 CoU. C. C. 269. A testator directed his residuary personal estate to be invested in land, from time to time, and at all convenient opportunities, and in the meantime to be accumulated. Held, that the tenant for life of the land, was entitled to the in- terest of the uninvested personalty, as fi-om a year from the testator's death, — Tucker v. Bos- well, 5 Beav. 607. In the same case, the testator gave £400 a-year to his wife, if she recovered her mental faculties, olhvrwise £200 a-year, and to be paid- out of his govpinment stock, and he directed, as soon as conveniently might be after her death, the invest- ment of the stock, out of which the annuity was payable, in land, to be conveyed in strict settle- ment. The wife did not recover. Held, that the For Life. ESTATE. By Implication. 135 extra £200 a-year became part of the residue to be invested, and did not belong to the tenant for life.— /d. ^ , „ By the marriage settlement of A., b sum ot £8,000 stock -was settled upon himself and his in- tended wife, for their joint lives, and the life of the survivor, and then for the benefit of their children, and if no children, in trust for the set- tlor, his executor, administrators, and assigns. After his marriage A. made his will, and thereby gave his real estate to P. and his heirs, upon the same trusts as near as could be, as were de- clared of the stock by the settlement, and after giving certain pecuniary legacies, he bequeathed all the rest of his monies and property of any kind to P., his executors, administrators, and assigns, upon trust and for the benefit of the objects of his settlement as he might think best. A. died, leaving his -widow, but no issue of the marriage. P. declined to take probate of the will. Held, that whether the course taken by P. had or had not the effect of depriving him of the discretionary power given to him by the will, he could not in the events that had happened, ex- ercise that power so as to assert the rights of the parties interested under the will and settlement, and that the effect of these instruments was to give a life interest to the widow, in the real and residuary personal estate impeachable of waste as to the real estate with the remainder, as to the real estate of the testator's heirs, and as to the residuary personal estate to the next of kin. — Ford V. Buxton, I CoU. C. C. 403. A man settles personal estates upon himself and his wife, for their lives, and then upon their children, and in default of children upon himself, his executors, administrators, and assigns, and afterwards directs real estates to be settled upon the same trusts as near as can be as affect the per- sonalty. Upon the death of the settlor without children, the real estate, subject to the life in- terest of the widow, goes to his heirs. — Id. Testatrix gave the residue of her personal estate to twelve persons, or such of them as should be living at her decease. She then directed her real estate to be sold at a certain time, and gave the produce to the same twelve persons, and three others, or such of them as should be then living. She then added a proviso that the " share or pro- portion" of S., one of the twelve legatees should be settled to her separate use for life. Held, upon the construction of the whole wUl, that the proviso applied as well to S.'s share in the residue of the personalty, as to her share in the produce of the realty. — Cockrill v. Pitchforth, 1 Coll. C, C. 626. A testator directed his widow " to be in pos- session of all his furniture, plate, glass, and books, and for the time of her natural life, to receive the yearly interest and profits of all his property that he was in possession of at his death." Held, that the widow took a life interest only in the furniture, &o. — Low v. Carter, 1 Beav. 426. A testator directed that after his wife's death, part of his stock should be transferred to Johanna G. for her sole and entire use, during her life, that she should not aUenate it, but enjoy the in- terest during her life, and that at her decease she might dispose of it as she thought fit. Held, that J. G. took an interest for life with a power to dispose of that stock by her will. — Archbold v. Wright, 9 Sim. 161. A testator gave to his brother £300 per annum, during his life, and to each of two nephews £160 during their lives, but if either of the nephews died, the other to inherit the whole £300, and if the brother died without issue, the two nephews to inherit from the brother ; and he then stated, that the reason why he left only the interest to his brother and two nephews, was, that if they died with issue, the money might go to his three cousins. He desired his legatees to be paid within twelve months, and proceeded :--" It is to be understood, I leave it to them and their heirs. The brothers and nephews died without issue. Held, that under the wiU, the brother took an annuity for life only, and was not interested in the fund set apart to answer the annuity of £300.— Ferard v. Griffin, 2 Keen, 615. A testator gave to his wife F. H. the interest of all his property in [the public funds during her life, the principal being placed in the names of the imdermentioned trustees for that purpose, and he also gave to his wife all his other property which he might be possessed of at his decease, after paying his funeral expenses and debts, part of his funded property being applied for that pur- pose if necessary. On the death of his wife he gave to his daughter J. H. £200 stock, 3 per cent. reduced annuities, and to two other persons £50, 3 per qent. reduced annuities, respectively, and to his son the residue of his property, after paying those legacies, and he appointed two persons his executors and trustees. At the date of his will, the testator had £700 3 per cent, reduced annui- ties, but he afterwards sold out that stock, and vested part of the produce on mortgage. Held, that the gift of F. H. of the testator's property in the funds was specific, and was consequently a- deemed by the sale of the stock, but that the other legacies were general, and that F. H. took only a life interest in the testator's residuary estate. — Hayes v. Hayes, 1 Keen, 97. HI, 2. By Implication, A testator willed that certain property should be vested in a manner most secine, and least liable to fluctuation and risk; and that £3 000 should be at the will of his wife at her death, but the residue he vrilled his wife should distribute to his relations. He made his wife residuary le- gatee. Held, that the distribution to the rela- tions was not to take place until the wife's death, and the court inclined to the opinion that the wife took a life estate by implication, but held that at all events she was entitled for life under the residuary gift to her. — Euddlestone v. Goul- dsbiiry, 10 Beav. 547. A will contained a devise of realty, in trust, for A. for life, remainder to B. his wUe, for life, and after the death of the survivor to sell and di- vide the proceeds equally among the children, whose shares were to be vested at twenty for sons, and twenty-one or marriage for daughters, with a proviso postponing payment in the event of any shares vesting in the lifetime of either tenant for life. The will also contained a bequest of stock, in trust, to pay the dividends to A. for life, and on his death to divide the principal among his children equally, the shares to vest at the same times as were before provided as to the proceeds of the realty, and there was a pro- viso that in the event of there being no child of A. and B., or all the children dying before twen- ty-one, or if daughters before that age or mar- riage, the proceeds of the realty, and the sum of stock, should be divided equally among the mem- bers of a defined class of persons who should be living at the death of the survivor of A. and B., or A.'s children or child, as according to the 136 For Life. ESTATE. Purchasing Charges S[C. trusts thereinbefore declared, the case might re- quire. Held, that the last of these clauses must be read distributively, and that it did not give to B., by implication, a life interest in the stock, — Drew V. Killick, 1 r>e G. & S. 266. A testator bequeathed a moiety of personal es- tate to his daughter for life, with remainder to her children, with remainder to the children of such children as should die in the life of the daughter; he gave the other moiety to his son for life, with remainder to his children, but if his son died without issue, him surviving, he gave the last-mentioned moiety to the children of the daughter, " in such shares and proportions, and in such manner as was thereinbefore directed and appointed for the payment and division of their shares in the other moiety;" the son died with- out issue. Held, that the daughter took a life interest in the second moiety by implication. — Davies v. Sopkins, 2 Beav. 276. The word " family " admits of a variety of ap- plications, and the construction to be put upon it in a particular will must depend upon the inten. tion of the testator to be collected from the whole context of the will. Where a testator directed his business to be carried on by his wife and son for the mutual be- nefit of the family, and devised his property, in trust, that at his wife's decease the whole of it, as well freehold as personal, should be equally di- vided among his children ; it wa^ held, that the testator in the words " my family " intended to comprise his wife ; and as to the testator's pro- perty devised after his wife's decease to his chil- dren, it was held upon the whole will, and what appeared to be the evident intention of the testa- tor, that the wife took a life interest by implica- tion as well in the real as in the personal estate. As to the effect of a devise to the heii', and ano- ther person, or to the heir and other persons on the death of A., where there is no explanatory context, quare.—Bla-ckbuU-v. Bull, 1 Keen, 176. act of parliament, vesting the estates in trustees, in trust, to sell. Held, that A. and B. must co- venant with the purchaser for the title. — In re London Bridge Acta, 13 Sim. 176. If settled estates are sold imder a power to sell them with the consent of the tenant for life, he must covenant for the title. — Id. Ill, 3. When Purchaser of, not bound to take. The purchaser of an estate pur auter vie, sold under a decree of the Court of Chancery, Held not to be entitled to be discharged from his pur- chase in a case in which the sole cestui que vie died subsequently to the bidding, and before the master's report could have been confirmed ac- cording to the practice of the court, — Vesey v. Elwood, 3 Dru. & W. 74. "Where a life estate was sold under a decree, and the tenant for life died, and, subsequently to the lodgment of one-fourth of the purchase- money, and the obtaining of rule nisi, but prior to the confirmation of the sale ; Held, that the contract was not complete until the sale was con- firmed by the order of the court, and that the purchaser was not bound to complete his pur- chase. — Vincent y. Going, 3 Dru. & W. 75, n. Ill, 4. Statutable Conveyance by Tenant. Although, where an estate devised in settle- ment is ordered to be sold for payment of debts, an infant remainder-man may be ordered, under 11 Geo. 4 & 1 Wm. 4, c. 47, s. 11, to join with the tenant for life, in conveying the estate to the purchaser, yet an effectual conveyance may be made by the tenant for life alone, under the 12th section of the act. — Walker v. Aston, 14 Sim. 87. Estates were devised to A. for life, remainder to his sons successively, in tail male. A. and B., during the infancy of IJ.'s eldest son, obtained an III, 5. Jointuring Tower by Tenant, Whether a general power to jointure by deed or will, without any restriction or limitation, is well exercised by limiting a jointure with a di- rection that the first gale should be paid on the day following the decease of the testator, the donee of the power, quiere. — Fwrcell v. Purcell, 2 Dru. & W. 217 ; 1 Con. & L. 371. P. L. being seised for life of Blackaore, with a power of jointuring to the extent of one-third of the clear yearly rents and profits thereof, and being also seised of Whiteacre in fee simple by marriage articles, reciting that he was seised of Blackacre, but not specifying for what estate, agreed to charge, and thereby charged Blackacre vrith a jointure of £500 per annum, in favour of his then intended wife M., with the usual power of distress, and the articles further provided that if such distress on Blackacre should be ineffectual, M. should, in that event, enter into and distrain Whiteacre for the arrears of said jointure. P. L. died, leaving his wife M. surviving, and having devised Whiteacre to D., M.'s jointure fell into arrear ; a distress on Blackacre proved unavail- ing, the amount of the jointure of £5Q0 consider- ably exceeding one-third of the clear yearly value of Blackacre. Held, that Whiteacre was liable to the difference between the said one-third and £500 per annum. — Lock v. Darley, 2 Dru. & W. 256 ; 1 Con. & L. 406. Testator du-ected a settlement to be made of his estates, and a power to be inserted in it en- abling the tenant for life to jointure any wife or wives at one or several times, to the extent of one-fifth part of the then ordinary annual rental of the estates. Held, that the settlement ough^ to authorize the tenant for life to charge the es- tates with a yearly rent charge not exceeding one fifth of the yearly rent of the estates payable at the time of creating the charge. — Trevmr v. Trevor, 13 Sim. 108. m, 6. Tenant for Life not Protector of Settlement. Where the tenant for life is a married woman whose husband has been convicted of felony, the Court of Chancery is the protector of the settle- ment, though the life estate is not her separate property. — In re Waineright, 13 Sim. 260. m, 7. Equitable Tenant for Life. Upon the construction of a devise of real pro- perty, Held, that an eqitable tenant for life was entitled to the personal enjoyment of the property, upon giving security for the due fulfilment of the objects of testator's will. — Baylies v. Baylies, 1 Coll. C. C. 537. In order to give effect to the claim of the ten- ant for Hfe, the court (in contravention of a previ- ous letting, by the trustees of the will, to a person who had notice of the trusts,) granted a receiver of the property, with a direction to let it to the tenant for life, upon the terms of giving such se- curity. — Id. Ill, 8. I'm chasing Charges by Tenant. Tenant for life paying off charge on eettleJ cs- For Life. ESTATE. Tenant for Life, Sfc. 137 tate, entitled to the benefit of charge. — Bitrrell v. The Earl of Egremont, 7 Beav. 206. Tenant for life paying off charge on settled es- tate, but taking no steps for more than twenty years to keep it alive, the Statute of Limitations held not to apply. — Id. m, 9. Tenant for Life and Remainder Man. Tenant in fee borrowed money, to secure repay- ment whereof with interest, he confessed a judg- ment in double the amount, and put his creditor into the receipt of a fee farm rent, which was •equal in amount to the annual interest, and after- wards devised all his estates to A. for life, re- mainder to B. for life, remainder to the first and other sons of B. in tail. A. died in 1802, the full amount of the judgment being then due to the creditor, who had been paid interest since 1786. B. died in 1824, never having received any part of the fee farm rent, but his executors were paid twenty-one and a half years' arrears of the rent. B. having in 1824 paid off the judgment, and taken an assignment of it to a trustee for himself. Held, that his executors were not at liberty to retain, as against the remainder man, the arrears of the fee farm rent received by them, and to leave the arrears of the interest a charge upon the estate, particularly as B. in 1803 and 1821 became a party to family settlements, in which the es- tate was dealt with as if the fee farm rent had been applied in payment of the interest, and be- nefits were given to hiin by those settlements. — Caulfield V. Maguire, 2 Jon. & L. 141. Where an estate, subject to a charge bearing interest, is limited to several persons in succes- sion as tenants for life, the conclusion to be drawn &om the authorities appears to be, that each tenant for life is liable only for the interest for his own time, but that to liquidate the arrears during his own time, he must furnish aU the rents if necessary during the whole of his life. — Id. A testator by his last will and testament, be- queathed " one half of the property he left to his executrix, to be disposed of, at her death, to his nearest relation in law, provided he or she pro- fessed the established religion," and concluded by appointing his widow Ms executrix, and be- queathing to her all his worldly substance, of what nature and kind soever, except such part as was before devised for her sole use and purpose. At the period of his death a part of the testator's property consisted of two annuities and two policies of insurance, effected by the testator in his lifetime, on the respective lives of the cestui que vies named in the said deed of annuity. The executrix during her life having continued regu- larly to receive the annuities and pay thepremiums as they fell due on the respective policies of insur • ance, on the dropping of the lives received from the respective insurance offices the amount of sums so insured on each life. Held, on a bUl filed after the decease of the executrix and tenant for life of the property of the testator, by the testator's nearest relation in law, and a professing protestant, to recover the moiety of the property so bequeathed, that the tenant for life being a specific legatee of those annuities which were freehold was not bound to keep up the insurances, but having done so she was entitled to be repaid out of the plain- tiS's share a moiety of the sums so advanced, with interest ; and as the moiety to which the plaintiff would be otherwise entitled was thereby exhausted, that the bill should be dismissed, and from the manner in which the cause had been conducted by the plaintiff, with costs. — Money y, Gibbs, 1 Dru. & W. 394. A. B. bequeathed certain leasehold interests, held by liim under the See of Waterford and Lis- more, and other property, to trustees upon trust for the sole use and behoof of his daughter, for and during his natural life, and from and after her decease to the use and behoof of the first son which might thereafter be lawfully begotten on the body of his said daughter, and her heirs for ever. These leasehold interests were renewed by the trustees until the testator's daughter reached her fiill age, and from that period continued from time to time to be renewed by the tenant for life, and large fines were accormngly paid for that purpose. A bill having been filed by the husband of the tenant for life, after her decease, against the remainder man, for contribution towards the fines so paid ; Held, that as upon the true con- struction of the will the tenant for life was bound to keep these interests renewed, and was only en- titled to ;the surplus rents and profits which re- mained after paying the head rent and renewal fines, such biB. could not be sustained. — French V. St. George, 1 Dru. & W. 417. A testatrix gave her property, with certain ex- ceptions, to her granddaughter, and afterwards stated, " that herproperty was in the Bank and India House." Held, (assuming her to take for life) that she was entitled to enjoy the Bank and India stock in specie, and that it was not liable to be converted into consols. — Hubbard v. Young, 10 Beav. 203. Upon the sale of lands which were subject to an annuity, the vendor covenanted that cer- tain other lands should be an indemnity against the annuity. He afterwards, on his marriage, settled the indemnity lands upon himself for life, with remainder over, and covenanted that the settled lands were free from incumbrances. The tenant for life having suffered the annuity to run in arrear, the arrears were raised by a sale of part of the settled lands. The remainder man has an equity against the tenant for life and his assignee, under the Insolvent Act, to be recouped the arrears so levied out of the produce of the life estate. — Coote v. O'Reilly, I Jon. & L. 455. Where the general intention is to ^e a tenant for life interest upon the entire amount of a residue, the court has given him the benefit of property which never was realized during his life. In the same manner the court wiU make proper arrangements, so as to make available for the remainder man the property which the testator intended for him. — Coote v. Lord Mill- town, 1 Jon. & L. 501. Testator devised real estate to the use of trus- tees, for a term of years, upon trust, that in case his personal estate should be found insufficient for the payment of his debts and legacies, they should, after the decease of his wife, by sale or mortgage, raise such sums of money as should be sufficient to discharge his legacies, for the dis- charge whereof his personal estate should be found insufficient ; and subject thereto he de- vised the estates to his issue, and for want of issue living at the time of his decease to bis wife, for her life j remainder to the use of E. C, for his life ; remainder to the first and other sons of E. C. in tail male, and died without issue. The tenant for life must bear the interest on the de- ficiency, to be ascertained either within a reason- able time after the death of the testator, or to be ascertained by the actual result of the accomit ; 138 For Life. ESTATE. By Courtesy. and the estate is to bear the capital only of the deficiency ; and if the personal estate be got in in sums composed partly of capital money and partly of interest, the interest -will be applied in payment of the interest on the legacies, and the capital will be attributable to the capital of the legacies, in ease of the term of years. — Id. Tenant for life not entitled to get stone from quarries on the settled estates (except for repairs, &c.), nor to open or work any mines of coal or minerals, not opened or in work at the death of the testator. Tenant in tail entitled to the monies realized by the tenant for life from stone not used for repairs, and minerals from newly opened mines. — FerranA v. Wilson, i Hare, 388. Inquiries and accounts as to mines and mine- rals, as between such parties. — Id. Tor several years prior to 1846 an assurance company declared half-yearly dividends of £2 10s. per cent, on their stock, but in that year they declared a half-yearly dividend of £12 10s. per cent. Held, that a tenant for life of their stock was entitled to the whole amount of that divi- dend. — Price V. Anderson, 15 Sim. 473. Ornamental timber protected, though the man- sion house had been pulled down, and the bill did not complain of tiiat act. — Morris v. Morris, 15 Sim. 505. Testatrix bequeathed her personal estate to A. for life, remainder over. The estate consisted, in part, of a sum recovered in respect of principal and interest, due from a deceased debtor to the testatrix ; but as the debtor died partially insol- vent, the sum recovered was less than the prin- cipal of the debt. Held, that A. was not entitled to a portion of that sum, in respect of the interest of the debt accrued since the testatrix's death ; but that the whole of it was part of the capital of the testatrix's estate. — Turner v. Ne%oport,\i Sim. 32. The proceeds of timber cut and sold by order of the court, during the life of a late tenant for life, who was impeachable of waste, ordered to be paid to the tenant for life in possession, who was unimpeachable of waste. — Phillips v. Barloio, U Sim. 263. Where leasehold, or other perishable property, is included in a gift of all the testator's estate and efl'ects, to one person for life, with remainder over, after his decease the property is not to be converted into money at the testalor's death, if the will contains indications of an intention that the tenant for life should enjoy the property in its existing state. — Pickering v. Pickering, 4 Myl. & Cr. 289. A testator devised his real estates to trustees in fee, on trust, " out of the rents, issues, and profits," to pay certain life annuities, and by sale or mortgage, to raise money for payment of his debts, &c. ; and then to settle the estates, &c., to the use that the annuitants should receive their annuities out of the same premises, with powers of distress and entry ; and subject thereto to one for life, with remainder over. Held, that the annuitants were not entitled to be paid the arrears out of the corpus, though the rents were insufficient to keep down all incumbrances. — Phillips V. Phillips, 8 Beav. 193. Estates were devised to A. in fee, in trust, to settle them on B. for life ; remainder to C. for life, without impeachment of waste ; remainder to C.'s first and other sons in tail. Soon after the testator's death. A., with the consent of B. and C, cut and sold some timber on the estates which was going to decay, and invested the pro- ceeds in consols. Afterwards a suit was insti- tuted by C. against A., B. and C.'s infant eldest son, in which the stock was ordered to be trans- ferred into court. The court, having ascertained the circumstances under which the timber had been cut, ordered the dividends of the stock to be paid to B. for life ; and afterwards B. having died, the capital to be transferred to C. — Waldo v. Waldo, 12 Sim. 107. A testator gave his real and personal estate to trustees in trust, to permit his wife to receive " the annual produce, interest, rents, and profits thereof" for life, and after her death, intrust, to stand seised and possessed of the said real and personal estate for A. and B. ; and he directed , his trustees to carry on his partnership trade in which he was engaged, or such part as they should think proper, for the benefit of his wife and those in remainder. Sir John Leach held that the widow was entitled to any increase in the value of the testator's capital which took place between the death and the expiration of partnership ; but the decision was reversed by Lord Brougham. — Mousley v. Carr, 4 Beav. 49. A tenant for Ufe of stock, died on the day on which a half-year's dividend became due ; Held, that they belonged to his personal estate. — Paton V. Sheppard, 10 Sim. 186. Charges paid off by the tenant for life, prima faeie, kept alive and not merged in the inherit- ance. — Faulkner v. Daniel, 3 Hare, 217. As between tenant for life and remainder man, the thinnings of fir trees under twenty years of age belong to the tenant for life. — Pidgeley v. Rowling, 2 CoU. C. C. 275. Estate for life by implication real and personal estate.- -CocAsAott v. Cockshott, 2 Coll. C. C. 432. Amount of the expenses of draining ordered to be paid out of a fund to which the infant tenant for life was absolutely entitled in lieu of charging the land. — Stanhope v. Stanhope, 3 Beav. 547. A tenant for life cannot lay out monies in buildings or improvements on the estate, and charge them on the inheritance ; and therefore the court will not direct an enquiry what sums were expended by the tenant for life in substan- tial improvements beneficial to the inheritance. — Caldecott y. Brown, 2 Hare, 144. A tenant for life has no right to open mines or clay-pits, but where the author of the settlemint has previously worked them, the tenant for life may continue. Whether a tenant for life can work mines or clay -pits, the working of which had been abandoned by the author of the settle- ment, qutsre. — Viner v. Vaughan, 2 Beav. 466. IV. — By Couktest. By a marriage settlement, the wife's freehold estates were vested in a trustee, in trust, for her separate use during her life, remainder for such persons as she should appoint by deed or will, and, in default of appointment, in trust, for her right heirs. The wife died without having made any appointment, leaving her husband and a son surviving. After her death the trustee sold the estates, under a power in the settlement which directed the proceeds to be invested in the pur- chase of other lands, or on mortgage, or in the funds, and the securities to be held on the trusts aforesaid. Held, that on the wife's death the husband became the equitable tenant by the com t- esy of the estates, and, therefore, was entitled to " the interest of the purchase money during his life. — Follett V. Tgrer, 14 Sim. 125. In Joint Tenancy. ESTATE. By Survivorship. 139 Although, the right of the husband, as tenant by the courtesy of an equitable estate of the wife, may perhaps be excluded by a possession of the estate strictly adverse to the husband and wife, and to all other parties interested under the settle- ment, during the whole period of coverture, yet the possession of the estate in conformity with the equitable interest of the cestui que trust, for however short a time duiing the coverture, and sifter the interest of the wife has become vested in possession, will support the title of the husband as tensmt by the courtesy. — Parker v. Carter, i Hare, 400. The possession of the cestui que trust under the trusts of a settlement, is the possession of the trustee, and gives the trustee a seisin of the es- tate which is not interrupted by the death of the cestui que trust, but immediately enures for the benefit of the person next entitled to the equit- able interest, and notwithstanding the adverse possession of another party soon afterwards com- menced, the court cannot presume such adverse possession to have commenced so instaneously on the death of the first cestui que trust as wholly to exclude the equitable seisin of the parties next entitled to the beneficial interest. — Id. To a bill by the heir at law, of a married woman, to recover lands to which she was equitably en- titled in fee, the husband who is sui'viving, and would have been tenant by the courtesy if the wife had been seised of the estate, is a necessary party, although the wife was never in actual possession. —Id., 4 Hare, 405. If the coverture begins after an adverse pos- session has commenced, and terminates during the continuance of such adverse possession, or if both the trustee and the cestui que trust, are dis- seised before the equitable estate of the wife be- gins, by a party claiming by a title paramount to the trust who retains possession until after the death of the wife, the hu^sband would not acquire any title as tenant by the courtesy. — Id., 1 Hare, 416. V. — In Joint Tenancy. A testator by his will charged his estate with £6,000, and directed "same to be paid to and among such of my younger children as shall sur- vive my said wife, in such shares and proportions and at such times after her death as she shall di- rect by her will or deed." His wife, by her will, directed as follows, "Kobbert (the inheritor) give 3 of the £6,000, 1 wish to have given to the two elder girrels." Held, that the appointees of the £3,000, took as tenants in common, and not as joint tenants. The power in this case was not a mere power of selection; the donee had the power of settling the fund to and amongst the children in any way she thought proper, and if she had intended to create a joint tenancy she had the power to do so. — Allmoay v. Attoway, 4 Dru. & W. 380. Devise to trustees and their heirs "upon trust for the use and benefit of " A., B., and C, (with- out words of limitation). Held, that A., B., and C, took in fee. — Moor v. Cleghorn, 10 Beav. 423. Devise to trustees in fee, upon trust, for the use and benefit af A., B., and C, the rents to be paid for their maintenance and education, "or to the survivors or survivor of them, share and share alike." Held, that they took equitable estates in fee, as joint tenants. — Id. Testatrix willed lliat after payment of her legacies the whole of her property should be given to her sister Mary, to be hers Independent ol any husband, and earnestly recommended her to take such measures as she might deem best for making it sure that whatever she might inherit might go at her decease to her children. Held, that the children, on their mother's death took the property as joint tenants absolutely. — Cholmon- dely V. Cholmondely, 14 Sim. 690. Two women being joint tenants of copyhold lands, one of them and her husband surrendered their estate and interest to the intent that the lord should regrant the same to such person or per- sons as the husband should by vrill appoint. The wife died in the lifetime of her husband and sis- ter ; the husband afterwards died, having by will appointed the surrendered share to his executors. Held, that there was a severance of the joint tenancy. — Edwards\. Champion, 1 De O. & S. 75. A bequest of property to be at the disposal of the testator's wife, for herself and children, does not give the widow a power of appointment, or make the widow and children tenants in common, but creates a joint tenancy. — Crockett v. Crockett, 6 Hare, 326. Gift to A. for life, with remainder to daughters of B., " and their descendants, per stirpes, to hold, them, their heirs, and assigns, for ever." The daughters had children at the death of the testa- tor and of the tenant for life. Held, that the daughters took absolute interests, and in joint tenancy, and that the issue could only take by substitution. — Dick v. Lacy, 8 Beav. 214. A testatrix in her will used the following ex- pression, " observing that F. Beales and his family are my residuary legatees, for all but cash or monies so called. ' F. Beales had nine children living at the date of the will, and at the testa- trix's death, and the testatrix died possessed of a promissory note, payable to herself or order, some long annuities, Columbian bonds, and money in her house, and at her bankers. Held, that by " Francis Beales and his family," the testatrix meant Francis Beales and his children, and that they took the note, annuities, and bonds, as joint tenants, these articles being neither cash nor monies so called. — Beales v. Crisford, 13 Sim. 692. A sum of money was remitted to England to be secured for the benefit of a married woman and her children, so that the same might not come to the hands of her husband. Held, that they took as joint tenants. — Bustard v. Saunders 7 Beav. 92. Testator gave one-fourth of his residuary estate to trustees, in trust, for his wife for life, and after her decease, in trust for, and to be equally di- vided amongst, all his children who should be then living, and the issue of such of them as should be then dead, such issue taking only the part or share which his, her, or their deceased pa- rent or parents, would have been entitled to if living. Two children and two grand-children, the issue of a deceased child of the testator, were living at the death of the widow. Held, that the two grand-children took as between them- selves as joint tenants, and not as tenants in common. — Bridge v. Yates, 12 Sim. 645. Severing joint tenancy.— Wood v. Wood, 3 Hare, 67. VI. — By SuRvivonsHip. By a settlement lands were limited to trustees. 140 By Survivorship. ESTATE. By Survivorship. to the use of the settler for life, with remainder, subject to a term of ninety-nine years, to the use of his three daughters for their lives, as tenants in common, with remainder to trustees during the life of each daughter, to preserve contingent remainders, with remainder as to the share of each daughter at her death, to the use of the first and other sons successively in tail male, with remainder in case of the death of any one or more of the daughters without issue male, to the use of the survivor or survivors during their or her respective lives and life, with remainder in like manner as to the original share to the use of the first and other sons of such surviving daugh- ters or daughter in tail male, with remainder, in case all the daughters should die without issue male, as to the share of each, to the use of the daughters as tenants in common in tail, and in case one or more of the daughters should die without issue, it was provided that the share or shares of such daughter or daughters should go to the use of the daughters of such survivors or survivor, as tenants in common in tail general, the ultimate remainder was limited to the use of the settler in fee. Held, that the limitation, in case of the failure of issue generally of any of the daughters to the daughters of the survivors or survivor, was a good contingent remainder, and not void for remoteness. Held, also, that the words " survivors or survivor " were to be read " others or other," and, consequently, that the limitation over to the daughters of one of the settler's daughters, who had issue, was not de- feated by the death of that daughter in the life- time of another who subsequently died without issue, but that the limitation took effect as a good cross remainder. A limitation, by way of remainder, cannot be void for remoteness. Ge- neral powers of sale and exchange in a settle- ment are good. — Cole v. Sewell, 4 Cru. & W. 1. The wife of F. Shuttle worth was the only child of a person who was entitled to certain shares in the Nottingham Canal, which, upon that person's death, were transferred into the names of " P. Shuttleworth and wife ;" the wife having been her father's administratrix. F. S. was ever afterwards untU his death treated by the Canal Company as proprietor of the shares, and re- ceived the dividends upon them, and was elected to be and acted as a member of a committee, which, by the company's act of parliament, was required to consist of proprietors of two or more shares. F. S. by his will bequeathed what he called " all my shares in the Nottingham Canal Navigation," and all other his personal estate, to trustees, in trust, for his wife for life ; and after her death, if he should leave no issue, (which happened) in trust to pay and apply the same equally between all and every his brothers and sisters, their respective executors, administrators, and assigns, absolutely and for ever. The tes- tator had no canal shares at all, unless those so transferred into the names of himself and his wife could be considered his. Two of his bro- thers and a sister who were all living when he made his will, died in his lifetime. Held, first, that the words of the will amounted to a bequest of the particular shares before mentioned, and that the widow was bound to elect. Held, also, that the representatives of the brothers and sister, who died in the testator's lifetime, were not. entitled to any share of. his personal estate tinrler his will ; but that the whole vested in the brother who survived him. — Shuttleworth v. Greavea i Mvl. & Cr. 35, At the death of a testator two sums of stock, which had been purchased by him and his sister, were standing in their joint names. One had been purchased by them equally, but much the greater part of the other had been purchased by the sister, who was stUl living. Held, that the sister was entitled by survivorship to bath sums. — Harris v. Fergusson, 16 Sim. 308. Bequest to one for life, with remainder over to two others, with a clause of survivorship, " If one or the other (of the latter) should die." Held, that the survivorship had reference to the death of the tenant for life, and not to that of the testator; and one of the remainder men having survived the testator, but pre-deceased the tenant for life, the survivor was held entitled to his share by survivorship. — Whitton v. Fieli, 9 Beav. 369. Testator bequeathed a fund, in trust, for Eliza- beth D. for her life ; and after her decease, in trust, for foiu: of her children, whom he named, " or the survivor or survivors of them, for theii maintenance, until they severally attain the age of twenty-one years, when each of them will be entitled to claim a fair proportion of the prin- cipal." Only one of the children survived the mother. Held, that that one was entitled to the whole fund, though two of the deceased children attained twenty-one. — Darville y. Wolff, 15 Sim. 510. Testator bequeathed £50,000 to trustees, in trust, for his wife for life j and after her death he gave one-fifth of that sum to the same trustees, in trust, to invest it, and pay the interest to his daughter for her life ; and upon her demise to appropriate the interest for the use of every of her child or children, until they reached the age of twenty-one ; and then the principal to be paid to the survivor or survivors of the children of the said daughter, share and share alike. The tes- tator also gave £2,000 to the same trustees, in trust, to invest it, and pay the interest to his daughter for her life ; and after her decease to appropriate the interest for the use of her child or children, until they reached the age of twenty-one years, when the £2,000 was to be paid to the survivor or survivors of the said chil- dren of his said daughter. The daughter had two children, who attained twenty-one, but only one of them survived her. Held, that the child became entitled, on her death, to the whole of the trust funds in which she had a life interest. — Turing v. Turing, 15 Sim. 139. A married woman, having power to dispose of £1,500, by her will gave the interest of it to her husband for his life ; and directed that after his decease the principal should be equally divided between the five daughters of her sister B. ; and if any of them should die during her husband's lifetime leaving issue, that the respective issue of such deceased daughters should have equally divided among them their mother's share ; but in case any of them should die during her hus- band's lifetime without lawful issue, that the £1,500 should be divided, share and share alike, among the surviving said daughters. Held, that the word "surviving" had reference to the testa- trix's husband ; and therefore, as all the daughters died in his lifetime, and only one of them l?ft issue, the four-fifths of the £1,600 were undis- posed of. — Watson v. England, 15 Sim. 1. Bequest to A. for life, and after his decease to the testator's " four children, the survivor or sur- vivors of them equally, or to their heirs lawfully I begotten." One of the four children died in the By Survivorship. ESTATE. In Common. 141 life of A. Held, that his children took one-fourth by way of substitution. — Price v. Lockley, 6 Beav. 180. A. and B. were obligors in a joint bond. A., ■who was alleged to be the principal debtor, died. Held, that his assets were not in equity liable upon the bond ; but that the liability survived to B. — Richardson v. Horton, 6 Beav. 185. Devise and bequest of real and personal estate to trustees, upon trust (subject to certain legacies and annuities), for A. for life ; and after his de- cease, upon trust, to convey, assure, and pay the whole of the said real and personal estate to and amongst the children of A. and the issue of any such children. But in case A. should die without issue, then to pay and distribute the same equally amongst all and every the children of B. and C, and the survivors of them ; but in case any of such children should be then dead, leaving issue of his, her, or their body or bodies, lawfully begotten, then such issue to have, as weU as such original share or shares as the father or mother of such issue so dying would have been entitled to if then living, as also such other share or shares thereof as the father or mother of such issue so dying might have been entitled to by survivorship or otherwise. A. survived the tes- tator, and died without issue. Held, that the period of the survivorship of the children of B. and C. is not to be referred to the time of the death of the testator, but to that of the death of A., being the period of distribution ; and that the children of B. and C. living at the date of the will, and those born after that date, and before the death of A., were entitled to the real and personal estate, with survivorship, between them. In case of the death of any such children without issue before the death of A., the children of such of the said chUdreu as died before A., leaving issue, being substituted for the original legatees. — Buclcle V. Fatecett, 4 Hare, 636. A testator gave JE800 to four children of H. R., to be divided into equal shares, and paid to them at twenty-one, and the interest of their shares to be paid to their parents in the mean- time ; and in case any of the legatees dying under twenty-one, then his, her, or their shares were to be equally divided amongst the sxirvivors. Two of the children died under twenty-one in the testator's lifetime. Held, that the two survivors were entitled to the original share only of the child who died last. — Ricketty. Guillemard, 12 Sim. 88. By the custom of London, if a freeman dies intestate, leaving several children, and one of them dies an infant, his orphanage share survives to his brothers and sisters ; and if another child dies an infant his accrued as well as his original share survives in like manner ; and the accumula- tions accompany the shares from which they arose, — Bruin v. Knott, 12 Sim, 436. A book produced from the muniment-room of the corporation of London, was held to be receivable as evidence of the custom. — Id. A testatrix gave unto A. and B. a sum in the long annuities, to be equally divided during their lives, after which she gave the said sum to C. Held that the survivor of A. and B. took for life. — M. DermoH v. Wallace, 5 Beav. 142. Bequest of £500 to A., and in case of her death, either before or after the testator, to de- volve to her child or children, or in the event of their being also dead at her decease to B. There were three children, one of whom only survived. Held, that he was entitled to the whole fUnd. — Cnrriey. Gould, 4 Beav. 117. Bequest " to A. and B. of the sum of £25 pet annum each, for and during the term of their natural lives, or the lile of the longest liver of them, for their or her own absolute use and benefit." Held, that on the death of A., her annuity survived to B. for her life. — Hatton v. Finch, 4 Beav. 186. Bequest of pecuniary legacies to each of four persons for life, interest at £6 per cent., to be paid till the heir attained twenty-one, and " in case of the demise of any of the above parties, without legitimate issue, then his, or her proportions to be divided equally amongst the survivors." After the testator's death, one of the legatees died with- out having been married. Held that the sur- vivors were absolutely entitled to the legacy. — Ranelagh v. Banelagh, 4 Beav. 419. Testator gave his real and personal property to trustees, their heirs, &c., upon trust to pay and divide the same unto, and amongst all and every his children, who might be living at his decease, share and share alike, for their lives, " and in case any of my said children, being daughters, shall marry, and shall happen to depart this life, in the lifetime of their husband or husbands, I direct that the share or shares of her or them so dying, shall go to her or their respective husband or husbands, for his or their life or lives, and from and after his or their decease, then to be equally divided amongst all and every the child and children of my said daughter and daughters then living, and in default of any such child or children, then I direct such share or shares shall go and be divided equally to and amongst all, and every my said children, who shall be then living." The testator left a son and seven daughters. One of the daughters died a spinster. Held, that on her death, her share in the testator's property, did not go to her surviv- ing brothers and sisters, but became undisposed ot— Lett V. Randall, 10 Sim. 112. Testatrix gave to her servants Samuel Eales, and Charlotte his wife, an annuity of £200 a-year each, for their lives, and the life of the survivor. Held that each of the legatees was entitled to an annuity of £200, during their joint lives, and the life of the survivor of them. — Ealea y. The Earl of Cardigan, 9 Sim. 384. Testator bequeathed his residuary estate to his vnie for life, and after her death, to his son and daughter share and share alike, and their respec- tive issue, with benefit of survivorship between his said children or their issue respectively. Held, that the survivorship was to take place only in the event of the issue of a child living in the lifetime of the testator's widow. — Turnery, Capel, 9 Sim. 158. Bequest of chattels to two legatees, share and share alike, and upon the demise of either of them, without lawful issue, the share of her so dying to go to the other. One of the legatees died in the testator's lifetime. Held that the other was absolutely entitled by survivorship. Mackinnon y. Peach, 2 Keen, 655. Til. — In Common. A testator devised freehold estates to trustees in trust, to settle and convey them to the use of G. B. for life, with remainder to his issue in tail male, in strict settlement, and in default of such issue, the estates to go over ; G. R. had no son, but had several daughters, all born after the testator's death. Held, that the words in " tail 142 In Coi ESTATE. In Common. male" were descriptive not of the issue, but of the interest they were to take, and that the daughters were entitled to take under the limita- tion in remainder as tenants in common. — Trevor y. Trevor, 1 Clk. & Fin. N. S. 239. A testator, by his will, charged his estates with £6,000, and directed " same to be paid to, and among such of my younger children, as shall survive my said wife, in such shares and propor- tions, and at such times £ifter her death, as she shall direct by her will or deed," his wife, by her will, directed as follows : — " Robbert (the inheri- tor) give three of the £6,000, 1 wish to have given to the two elder girrels." Held, that the ap- pointees of the 3,000 took as tenants in common, and not as joint tenants. The power in this case was not a mere power of selection. The donee had the power of settling the fund to and amongst the children, in any way she thought proper, and if she had intended to create a joint tenacy, she had power to do so. — Alloway v. Alhway, i Dru. & W. 456. A testatrix bequeathed a sum of £300 to her exe- cutors in trust, to place the same out at interest, and pay thesame as itshouldfall due to her nephew for life, and at his decease, " to divide the said sum, and any interest which might be due to her nephew for life, and at his decease, "to divide the said simi, and any interest which might be due thereon, amongst his children equally, and if he should have but one, then to give the whole to said one child." There were two children of the nephew, both of whom died in his lifetime. Held, that this was a gift to the father for life with remainder to the children, as tenants in common with a gift over, in case there should be but one surviving child, to that child, and that as that event had not happened, the representative of the deceased chUcfien was entitled to the fund. — Kimberly v. Tew, i Dru. & W. 139. Where there is a power to appoint to and amongst children, though there is no appoint- ment, nor any gift in default of appointment, yet by an implication arising from the terms of the power, there is a gift to the children living at the death of the donor as tenants in common. — Alloway v. Alloway, 4 Dru. & W. 380. Mere occupation by one of several tenants in common of an estate, if unaccompanied by exclu- sion, does not make him liable for rent to his co- tenants. — M'Mahon v. Bwehill 2 Phil. 127. Whether one tenant in common of a farm, who has alone occupied and cultivated it, is liable, in- dependently of contract, to account with his co- tenant for a moiety of the profits. — Qucere, An executor who had been tenant in common with his testator, of a farm, which the latter had alone cultivated, claiming to be a creditor of the estate for a moiety of the profits, the court di- rected an action to be brought to try the right. — Senderson v. Eason, 2 Phil. 308. Gift in trust to be equally divided between A., B., and C, separate from "their" husbands, and for "their" sole use, and at "their" decease to be divided amongst "their" daughters. Held, that A., B., and C., each took one third for life, with remainder as to her one third to her daugh- ters. — Willes V. Douglas, 10 Beav. 47. One of two tenants in common of a farm, per- mitted the other to occupy and cultivate it with- out demanding any rent or other remuneration &om him, but after his death claimed compensa- tion out of his estate. The Vice Chancellor al- lowed the claim ; but the Lord Chancellor on appeal, doubted whether it could be maintained. and directed an action to be brought. — Henderson V. Eason 16 Sim. 303. A testator devised lands, of which he was seised pur auier vie, to his nephew J. C. for life, and then proceeded thus, " And from and after his decease, I give and devise the same unto the issue male and female of the said J. C, now be- gotten or to be begotten on the body of his pre- sent wife, to be divided between and amongst them, in such manner, shares, and proportions, as the said J. C. shall, by his last will, limit and appoint, subject nevertheless, to the provisions hereinafter particularly mentioned, viz., that the said J. C, his heirs, executors, administrators, and assigns, and the persons who shall become entitled thereto under this my will, shall and will pay the head landlord's rent of the said lands, and shall and will yearly and every year during the continuance of the lease, pay or cause to be paid to S., his heirs or assigns, one yearly an- nuity or the sum of £40, &c." J. C. did not duly exercise his power of appointment. Held, that J. C. took an estate for life only, and that his issue took absolute interests as tenants in common as purchasers, and that the words "issue male and female" meant sons and daughters, or the first line of issue, — Crozier v. Crozier, 3 Dru. & W. 373. A testator devised his copyhold and leasehold estates, in trust for his son for life, and after his decease, in trust to assign and surrender the same unto and among the person or persons who, at the son's death, would be entitled to his per- sonal estate, in case he should die intestate. The son died leaving a widow and four children. Held, that they took the estates in equal fifth parts as tenants in common. — Richardson, v. Richardson, 14 Sim. 626. Testator bequeathed £10,000, in trust, for his son J. L. J. for life, remainder in trust for the children of J. L, J., when and as they should at- tain twenty- one, as tenants in common, and if any of them should die before their shares be- came payable, leaving issue, their shares to be paid to their issue, but if any of them should die before their shares became payable, and if J. L. J. leaving no issue, their shares to be paid to the survivors at the same time as their original shares should become payable, and if J. L. J. should have no child, or having such they should all die under age, and without issue, then the trust fund to sink into the residue, which the testator gave to two of his other children. J. L. J. had four children all of whom attained twenty-one, one of them died in his life without issue. Held, that payable meant attain twenty-one, and conse- quently that one-fourth of the fund vested in the deceased child. — Jones v. Jones, 13 Sim. 561. Testatrix gave an annuity of £60 to her son-in- law for his life, provided he remained unmarried, but if he should marry the annuity to cease : and after his death or second marriage, whichever should first happen, she gave £1,000 to be equally divided between her brother and sisters ; and if they should not all be then living, she gave the share of him, her, or them, so dying, to be equally divided between them, her surviving brothers and sisters. The testatrix's brother and sisters all died in her son-in law's lifetime, and he died un- married. Held, that the brother and sisters took a vested interest in the £1,000, as tenant in com- mon. — Peters v. Dipple, 12 Sim. 101. Testator gave one-fourth of his residuary es- tate to trustees in trust for his wife for life, and after her decease in trust, for and to be equally In Common. ESTATE. In Common. 143 divided amongst all his children who should be then living, and the issue of such of them as should be then dead, such issue taking only the part or share which his, her, or their deceased parent or parents would have been entitled to if living. Two children and two grandchildren, the issues of a deceased child of the testator, were living at the death of the widow. Held, that the two grandchildren took as between themselves as joint tenants, and not as tenaiits in common.— Bridge v. Yates, 12 Sim. 645. A wEl contained the following clause, "I re- commend that the house and premises may be disposed of as soon as possible, and, after paying all just debts, may be equally divided share and share alike, Mrs. M., Mr. and Mrs. W., and chil- dren, likewise H. H." Held, that Mrs. W. was entiUed to an equal share of the proceeds of the house and premises as tenant in common with her husband, and her children living at the tes- tator's death, and with Mrs. M. and H. H. — Payne v. Wagner, 12 Sim. 134. Atenant in common occupying thepremises held in common, not excluding his co-tenants in com- mon, is not chargeable by such co-tenants with an occupationrent.--ikf' JlfoAora V. Burchell, 5 Hare 322. Devise and bequest of residuary, real, and per- sonal estate to trustees, upon trust, with all conve- nient speed to sell the real estate, and such part of the personal estate as was in its nature saleable, but the mode and time of sale, and of settling and adjusting accoimts, and of requiring payment of what should be due to the testator tobeleft entirely to the discretion of the trustees, and until such sale and the final adjustment of his co-partnership ac- counts, the rents, and income of the real and per- sonal estate remaining unsold, and the interest on any debt or debts owing to the testator to be paid to the same persons and in the manner di- rected with respect to the income of the estate, when invested. The testator gave the produce of his real and personal estate to his two daughters for their lives, with remainder over ; and he re- commended each of his two daughters to pay £25 a year out of her moiety of the income of his estate, for the education and maintenance of his nephew, until thenephew attained twenty-oneyears. Held, that (there being no improper delay in the conver- sion of the estate) the daughters of the testator as tenants for life were entitled to theincome actually produced by the residuary estate, during the in- terval before the sale or realization of the whole of such estate, and the investment thereof, ac- cording to the directions in the will; but that they were not entitled, during that interval, to any interest upon such parts of the residuary pro- perty, or on the value of such parts thereof as were unproductive.— Afaciie v. Mackie, 5 Hare, 70. That the two sums of £25 were only to be al- lowed by the daughters to the nephew yearly, out of their income during their lives, and that such sums did not constitute a charge upon the life interests of the daughters for the whole period of the minority of the nephew. — Id. Bequest of personal estate, upon trust, to as- sign the same to four persons, " and to each of their respective heirs, executors, administrators, and assigns." Held, to create a tenancy in com- mon. — Gordon v. At/cinson, 1 De G. & S. 478. There can be no ouster between tenants in common in possession ; and therefore if one takes more than his share of the rents, the only remedy is account, either by action under the statute of Anne, or by bill in equity. — Denya v. Shiiokburgh, 4 Y. & C. 42. Testator gave amiuities to three of his rela- tions, and directed that if the annuities were paid by the interest of money in the stocks, at the death of the different parties the principal should be divided between the children of the deceased. One of the annuitants had five chil- dren living at the testator's death, but only one of them survived the annuitant. Held, that the capital of the stock, which had been provided to answer the aimuity, did not vest in the surviving child on the annuitant's death, but vested, on the testator's death, in all the children then living, as tenants in common. — Watson v. Wat- son, XL Sim. 73. Testator bequeathed his residue to the children then living of T. B. and W. C, and the lawful issue then living of such of their children as were dead, as tenants in common, so, neverthe- less, that such issue should, as amongst them- selves, take as tenants in common and per stirpes, and not per capita ; it being his intention that such " issue " should have only the shares which their respective parents would have been entitled to if living. Held, that the word " issue ' ' must be taken in the restricted sense of children. — Pruen v. Osborne, 11 Sim. 132. Bequest of residuary estate to accumulate for ten years, and then to be distributed in seven equal shares among seven persons named in the will J and appointment of the same seven persons residuary legatees creates a tenancy in common ; and the share of one dying in the testator's life- time belongs to the next of kin of the testator. — Norman v. Frazer, 3 Hare, 84. Testator gave all his estates, real and personal, to his executors, in trust, to be dibposcd of by them as after mentioned. He then gave all his real estate, houses, and lands, to his wife for life, " and after the decease of my wife, I give my houses, lands, and estates in B. to J. B. ; but at his death I will that the whole shall be for the use of the said J. E.'s wife and children, and which children, at the death of their mother, shall inherit the same jointly during their lives ; and if the said children shall die before they arrive at the age of twenty-one, I wQl that my houses and estates at B. go to H. S.," who was the testator's heir. J. B. and his wife had three daughters and one son. The daughters were living at the date of the will and at the testator's death. The son was bom afterwards. After the death of J. B., but in the lifetime of his wife, two of the daughters died, intestate and unmar- ried, one before and the other after attaining twenty-one, leaving their brother their heir. After the deaths of the prior devisees, the son and the surviving daughter, both of whom had long attained twenty-one, executed a deed, in the na- ture of a recovery, by which they limited the lands in B. to the use of themselves and their heirs, as tenants in common. Held, that they took an estate in fee-simple as tenants in com- mon in the lands of B. — Spry v. Bromfield, 10 Sim. 94. The court will restrain one tenant in common from the wilful destruction of the common pro- perty ; but where a railroad company had ob- tained a lease from five out of six tenants in common, and had, contrary to the wishes of the remaining tenant in common, constructed a rail- road on the property, which at law had been held to be an ouster, the court refused to interfere by injunction to prevent the dissenting tenant in common removing the rails, &c., though the rent agreed to be paid by the company was three 144 In Remainder. ESTATE. In Remainder. times the former rent. — Durham and Sunderland Railway Co, y, Wawn, 3 Seav. 119, VIII. — ^In Remainder, E, C, by his will, dated in 1786, gave hia estate of T. to certain persons for life, and after their decease to his kinsman, J. C, or his male heir ; and if no male heir lawfully begotten by the said J. C, then the above lands to fall to the first male heir of the branch of his uncle R. C.'s family, yielding and paying to such of the daughters of the aforesaid R. C. which should be then living the sum of £100 each at the time of the taking possession of the aforesaid estates. The testator died in 1787. R. C. died six years before, having left five daughters only, all mar- ried. The eldest had several daughters, but no son ; each of the others had sons. AJl these peifsons were known to the testator. J. C. died in 1808, without leaving a son lawfully begotten. Tha eldest daughter of R. C. died in 1799, hav^ng no son, but leaving a daughter, who had a sor> born in 1795, both still living. The second died in November, 1820, having had two sons, one horn in 1763, who died in 1817 ; the second, born in 1770, stiU living. The third died in 1813, leaving two sons; one bom in 1771, who died in 1813 ; the other, bom in 1773, still living. The fourth died in 1804, leaving a son, born in 1768, who died in 1819, having devised to his wife in fee. The fifth, still living, had a son, born in 1772, who is still living. I'he life estate in the devised lands expired in July, 1820. Held, first, that the remainder devised to the first male heir of the branch of R. C.'s family was a con- tingent remainder in fee-simple ; second, that such remainder, if once vested, could not become divetted, so as to admit another in preference to him in whom it was vested ; third, that the said remainder did not vest in R. C.'s second daugh- ter's son. Qucere, as between the titles of the grandson of R. C.'s eldest daughter and the son of K. C.'s fourth daughter. Lord Brougham was of opinion, supported by five judges, first, that the words " first male heir " were not used by the testator to denote a person of whom an an- cestor might be living, but meant an heir of a deceased ancestor in the technical sense ; second, that the said remainder first vested in interest on the death of R. C.'s fourth daughter, in 1804, in her son. Lord Cottenham, supported by six judges, was of opinion, first, that the words "first male heir" were used to denote a person of whom an ancestor might be living ; second, that the said remainder did not vest in interest in R. C.'s fourth daughter's son. His lordship did not say when or in whom it vested. Two of the judges said it vested in the first daughter's grandson. On that daughter's death,- in 1799, two others said it then vested in R. C.'s second daughter's son ; and the remaining two said that the will was, in that respect, void for uncertainty. —Doe d. Winter, v. Perratt, 9 Clk. & Fin. 606. Testator devised to his son W, (testator's) part of the lands of A., describing them as "being lately part of the estates of J. K., and purchased by me and in which X. is jointly concerned with M.," to hold same to M., and his assigns, during his life and no longer, unless it should happen that W. should survive his then present wife, and marry a second time, by whom he should have issue living at the time of his death, and then and in that case he devised his said part of said lands upon the death of W., leaving issue mde of such second marriage, to such male issue share and share alike, and in case it should so happen that W. should die without leaving any such issue of a second maiTiage, then and in that case he devised said lands to his two grandsons, James and John, and their heirs, and the survi- vor of them, share and share alike, to hold to their own use, and benefit for ever, and in case James and iTohn should die without leaving issue, then he devised said lands to his grand- son M. M., and his heirs, and in case of his death without issue, he devised said lands to his grand- sons Robert and William, and their heirs, share and share alike for ever. W. having married a second wife, died, leaving issue male by her, but no issue of the first marriage. Held, that under a devise of the testator's part of the lands, the fee will pass, that W. took an estate for his life only, with concurrent contingent remainders in fee, first, to the sons, secondly to the daughters of W. by his second marriage, living at his deceasci and, thirdly, to the testator's grandsons in tail, of which one remainder only was to start. Re- view of the cases on the subject. — Montgomery t. Montgomery, 3 Jon. & L. 47. Construction of the words "heirs" and " family " as applicable to dispositions of real and personal estate respectively. A testator directed that upon the death of his wife, to whom he gave a life interest in all his property, both real and personal, his nephew, whom he named, should be heir to all his pro- perty not otherwise disposed of, but added that as he had little intercourse with his nephew, and was apprehensive that his habits might require some controul, whatever portion of the property might be possessed by him, was to be secured by the executors for the benefit of his family. Helc[, that the real estate was to be settled on the ne- phew for life, with remainder to his sons succes- sively in tail male, with remainder to his daugh- ters SIS tenants in common in fee, and the per- sonal estate upon the nephew for life, with re- mainder to all his children as joint tenants, with a proviso that in the event of all the children dying under twenty-one, and if daughters unmar- ried, or if sons without issue, the personalty should be held in trust for the nephew. — White V. Briggs, 2 PhU. 583. Testator gave one-third of his residue in trust for his sister, the interest to be paid to her during her life, and the principal, at her death, to go to the heirs of her body, share and share alike. The sister had five childi'en living at the testator's death. Held, from the context of the will, that she took for life, with remainder to her children, as tenants in common. — Symers v. Jobson, 16 Sim. 267. Testator being seised in fee of a house in tlie town of C, and of estates in the counties of H. and L., gave pecuniary legacies to his two sons, (one of whom was his heir,) and also to his two daughters M. and C. He then gave to his wife for hei life the possession of his house, together with the use of his ^late, furniture, &c., and the interest of his stock m the funds during hei- life ; save and except the clauses in favour of my daughters as already mentioned ; at her decease, it is my will and pleasure that M. and C. shall divide equally between them as residuary lega- tees, whatever 1 may die possessed of, except what is already mentioned in favour of others. Held, that M. and C. took an estate in fee, in remainder expectant on the death of the testator's In Eemainder. ESTATE. In Remainder. 145 widow, in the house in C. ; and an estate in fee, commencing on the widow's decease, in the estates in H. and L. ; and that the widow did not take a life interest by implication in those estates, but that the heir took them by descent, during her life. — Davenport v. Coltman, 12 Sim. 588. Devise of real estate to trustees upon trust for the testator's son W., for life, and after his de- cease, to the heir male of his body begotten of an European woman, and the heirs of such heir male, and in case his son should die without leaving such heir male of his body, the trustees to pay the rents equally between the testator's daughters M. and A., for their lives, and the whole to the survivor, and after the decease of the survivor, upon trust, for the heir male of the body of M., and the heirs of such heir male, and in default of such heir male of her body, upon trust for the heir male of the body of A., and the heirs of such heir male. AV. and M. both died without issue, and A., having a son, suffered a recovery of the devised estate, and resettled it to new uses, under which a remote interest was limited to the surviving trustee, and died, leaving her son sur- viving, who thereupon filed his bill against the surviving trustee of the will for a conveyance of the legal estate. Decree made against the trus- tee vrith costs, the court holding clearly that under the devise A. took a life estate only, with remainder to her son in fee. — Willis v. Hiscox, 4 Myl. & Cr. 197. Testator gave £5,000 to his sons, in trust, for his daughter, Mrs. W., so as not to be subject to the debts, acts, or control of her husband ; and he gave the like sum to his daughter, Mrs. A., in trust, as aforesaid, for the use of herself and children. Mrs. A. had two children living at the testator's death. Held, that they did not take cither as joint tenants or tenants in com- mon with her ; but that she was entitled to the whole income of the fund for her life for her separate use, with remainder to her childi'eu. — French v. French, 1 1 Sim. 257. Testator directed his residue to be divided amongst the children of L. D. ; to wit : J. D., E. D., and A. D. Held, that the gift was not made to the children as a class, but as indivi- duals ; and that one of them having died in the testator's lifetime, the share intended for that child was undisposed of. Testator directed that the legacies given by his will to females, married or single, should be for their own benefit and their children, and should never be subjected to the control of their respective husbands. Held, that the females took for their lives for their separate use, with remainders to their children. — Bain II. Lescher, 11 Sim. 397. Testator bequeathed £40,000 to Lord H. and his children, to be secured for their benefit. Held, that Lord H. took for life, with remainder to his children. — Vaughan v. The Marquis of Headfort, 10 Sim. 639. The testator devised his residuary freehold, copyhold, and leasehold estates to his son and four daughters, " and their lawful issue respec- tively, in tail general, with benefit of survivor- ship to and amongst their issue respectively, as tenants in common ;" but such issue, " being sons," not to have vested interests until they at- tained twenty-one ; or being daughters, until twenty-one or marriage ; with power to the trustees, after the death of his son or daughters, respectively, to advance such issue during mino- rity to the extent of one-half of the presumptive share of " each child ;" and in case his son or daughters, or any or either of them, should die without leaving lawful issue, or with lawful issue, and such issue, being a son or sons, should not attain twenty-one, or being a daughter or daughters, should not attain that age or be mar- ried, then the part or share of him or her so dying to be for the benefit of the survivors and their issue, in the same manner as their original shares. Held, that the testator's children took estates for life, as tenants in common, in the free- holds and copyholds, with remainder to the grandchildren, in tail general, in the shares of their respective parents, with cross-remainders in tail between such grandchildren, respectively; and with remainder for life to the survivors or survivor, others or other of the parents, in equal shares, for life ; with remainder in tail to their children ; the shares accruing to such sur- vivors, &c., to be subject to the same limitations and such benefit of survivorship as the original shares. — Curaham v. Newland, 2 Beav. 145. A testator devised his real estates to his first ciiusin, Thomas Pearce, for life ; and after T. P.'s decease, he devised and bequeathed all his real and personal estates, in trust, for such of his re- lations, of the name of Pearce, being a male, as T. P. should, by deed or vrill, appoint ; and in default of such appointment, for such of his rela- tions, of the name of Pearce, being a male, as T. P. should approve of or adopt, if he should be living at the death of T. P., and his heirs, exe« cutors, &c. ; and in case T. P. should not adopt such male relation, or no such male relation should be living at the death of T. P., then to the next and nearest relation, or nearest of kiri of him (the testator), of the name of Pearce, being a male ; or the elder of such male relations, in case there should be more than one of equal degree, who should be living at the testator's decease, his heirs, executors, administrators, or assigns, for ever. The testator had a brother, Z, P., who had gone to sea, and had not been heard of for many years ; and supposing Z. P. to have died without issue, the nearest relation of the testator, answering the description in the ultimate limitations at his decease, was the tenant for life, T. P., and next to him, K. P., the plaintifi'. T. P. died without issue, and without having exercised the power of appointment or adoption given to him by the will. Held, that T. P. took under the ultimate limitation. — Pearce V. Vincent, 2 Keen, 230. A testator, by his will, gave £3,000 to his brother B. for his life, with remainder to his wife for her life ; remainder to his children ; and gave £6,000 to his sister S. for her life, re- mainder to her husband for life, remainder to her children; and after giving £10 a-year to each of his said servants for their lives, he gave his real estate, and the residue of his personal estate and effects, to his sister H. By a codicil, described as a codicil to his will, he left his brother B. an equal share of his effects with his sisters, to have the interest for his life, with limitations after his decease for the benefit of his wife and children ; and his sister S. was to have an equal share with his sister H. By a second codicil, he left to his two maid servants £10 a-year each for their lives. The testator's sister S. survived her husband, and died, leaving two children. Held, that S. was entitled, under the first codicil, to one-third share of the testator's personal estate, subject to the limitations declared by the testator with re- spect to the legacy of £6,000, which had. been givenby the will. — Cooksony. Hancock, 1 Kceil, 816, L 146 Personal, ESTATE, Charges on Real Estate. IX. — All Estate. Where a person having several estates or inte- rests in land, joins in conveying all his estates and interest in the lands to a purchaser, every estate and interest vested in him will pass by the conveyance, although not vested in him in the character in which he became a party to the deed. — Drew v. Lord Norlury, 3 Jon. & L, 267. X. — Peiisonal. . Under a bequest of real and personal estates, upon trusts, to receive the rents and profits, and to pay legacies and annuities, and vest the sur- plus rents, &c., for other purposes, the personal estate is the primary fund liable to the payments, there being no direction to discharge it, or to sell the real estate, so as to constitute a mixed fund. — Boughtun v. Boughton, 1 Clk. & Fin. N. S. 407. A testator, after devising real estates to trus- tees, to the use of J. D. P. for life ; remainder to his first and other sons in tail male ; and to several others bequeathed real and personal chattels, to the same trustees, to permit the said J. D. P. to receive the profits for his life ; and from his decease to permit each of the several other persons, to whom an estate for life in the real estates was before limited, as each of them should become seised of the said real estates, under the aforesaid limitations, to receive the rents thereof for his or their life and lives, re- spectively ; and from and after the decease of the last of the said tenants for life as should become seised in manner aforesaid, or if none of them ehould so become seised, then from the decease of the said J. D. P., upon trust, to assign and convey the chattels to such person or persons as should then become seised of the said real estates, under any limitations aforesaid. Held, that the chattels vested in an infant grandson of J. D. P., who was tenant in tail of the real estates on J. D. P.'s death, and not in his eldest son, a prior tenant in tail, who died in J. D. P.'s lifetime.— Po«s v. Potts, 1 Clk. & Fin. N. S. 671. Personal property having no situs of its own, follows the domicile of its owner. The law of the domicile of a testator or intestate, decides whether his personal property is liable to legacy. ^ A British born subject died domiciled in a British Colony, at the time of his death he was possessed of personal property locally situate in Scotland. Probate of his wiU was taken out in Scotland, for the purpose of there administering this property, and out of the funds thus obtained by the execu- tor, legacies were paid to legatees residing in Scotland. Held, reversing the judgment of the Court of Exchequer in Scotland, that legacy duty was not payable in respect of these legacies. — Thompson v. The Advocate General, 12 Clk. & Tin. 1. Semble, That the rule in Wild's case, (6 Rep. 17) that "if A. devises his lands to B., and to his children or issues, and he hath not any issue at the time of the devise, the same is an estate tail," is applicable to personalty. — Stokesv. Heron, 12 Clk. & Fin. 161. The expression money, may represent the en- tire personal estate. — Stratton v. Hillas, 2 Dru. & W. 51. A gift of "household furniture, plate, house linen, and all other chattel property," is not a general bequest of the entirepersonal estate, for the words "all other chattel property" must be re- stricted by the principle "ejusdem generis". — Lamphier v. Despard, 2 Di-u. & W. 69. Semble, The rule in Wild's case is inapplicable to bequests of personal estate. — Heron v. Sto/ces, 2 Dru. & W. 89. A perpetual annuity was granted by king Charles 2. to A. and his heirs, payable out of the coal duties. Held, that though descendable to the heirs, it was personal and not real estate. — liadburn v. Jerois, 3 Beav. 450. XI. — By Implication. By a codicil a testator gave to A. B. £500, in addition to £1,500, which he had before be- queathed to him. 'The testator had previously bequeathed two legacies only of £500, and £500 each. Held, that by implication the legatee was entitled to £2,000. — Jordan v. Fortescue, 10 Beav. 259. Testator being seised in fee of a house, in the town of C, and of estates in the counties of H. and L., gave pecuniary legacies to his two sons, (one of whom was his heir,) and also to his two daughters, M. and C. He then gave to his wife for her life, the possession of his house, together with the use of his plate, furniture, &c., and the interest of his stock in the funds, during her life, "save and except the clauses in favour of my daughters, as already mentioned ; at her decease it is my will and pleasure that M. and C. shall divide equally between them, as residuary lega- tees, whatever I may die possessed of, except what is already mentioned in favoxir of others." Held, that M. and C. took an estate in fee, in remainder, expectant on the death of testator's widow, in the house in C, and an estate in fee, commencing on the widow's decease, in the es- tates in H. and L. ; and that the widow did not take a life interest by implication in those estates, but that the heir took them by descent during her life, — Davenport v. Coltman, 12 Sim. 588. A devise and bequest of real and personal es- tate, upon trust, for the children of the testator, subject to the dower and thirds, at common law, of his wife, followed by a direction to apply the rents, issues, and profits, after deducting the dower and thirds of his wife, to the maintenance of the children, is not, by implication, a gift of any interet in the estate to the wife. — Adams v. Adams, 1 Hare, 537. XII. — Charges on Real Estate. A testator began his will by directing all his just debts, funeral, and testamentary expenses, shoidd be fully paid and satisfied. He then de- vised aU his real estate to his daughter, and her issue in strict settlement, and after giving one specific and one pecuniai-y legacy, he gave all the residue of his personal estates, (after and subject to the payment of all his just debts, funeral and testamentary expenses, and the legacies before bequeathed,) to his said daughter. Held, revers- ing the judgment below, that the concluding clause of the will was not sufficient to rebut the presumption arising from the first, of an intention to charge the real estate in aid of the personalty, with the debts.— Pnce v. North, I Phil. 85. A. B. being indebted to her law agent in a considerable sum for costs, and also on a promis- Charges on Real Estate. ESTATE. Charyes on Real Edute. 147 sory note, by her will ordered in the first instance her debts to be paid, as soon as conveniently might be, after her decease, she then devised her real estate to her brother, and directed "that all costs and charges which might be due to her law agent" at the time of her decease, should be paid by her brother, out of the rents of the real estate. A. B. died in 1813. Held, that the real estate was charged with the amount of the promissory note as well as the costs. — Forster v. Thompson, i Dru. & W. 303. P. by his will directed that his widow and second son, who were the devisees of his estates, should apply a sam, not exceeding £400 per an- num, to the maintenance and care of his son John, who was a lunatic, and that whosoever should at any time be in possession of his L. es- tate, should, during the life of his said son, apply the said sum should be deemed taken and con- sidered as a charge thereon. The L. estate was sold, after the death of the testator, under a de- cree in a creditor's suit, and a sum of £10.5S5 of the purchase-money was invested in steck, to the credit of the cause, to secure the payment of the lunatic's allewance, which, under an order of the court, was fixed at £280 per annum. At the death of the lunatic in 1842, the surplus of tha di- vidends upon the stock amounted to £812 12s. 9d, TJpon an application by the personal representa- tive of the lunatic claiming this sum as part of his personal estate, and a cross claim on the part of the owners of the estate, claiming under the second son. Held, that upon the true construc- tion of the will there was no greater charge upon the estate than what was actually required, and applied for the maintenance and support of the lunatic, and that consequently, the sum in ques- tion did not form any portion of the personal estate of the lunatic. Held, also, that even if it did, yet that as the savings of the hmatic's maintenance, it belonged to the parties claiming under the widow, and second son, who were in the situation of committee of the person of the lunatic, and that in any view of the case the personal representative of the lunatic had no claim upon it. Semble, The question had been disposed of by the decree in the suit in 1837. — In re Ponsonby, 3 Dru. & W. 27. A testator devised certain real estates to his executors as such, in trust, for his wife and chil- dren, and bequeathed everything else tn his wife, and he stated as follows " My executors are charged with the payment of my ju5t debts of which I shall leave an account, with the letter to my wife." Held, that the testator's debts were charged on these real estates ; and secondly, that the charge was general, and not limited to those enumerated in the account. — Dormay v. Borra- daile, 10 Beav. 263, The court has jurisdiction to order the real estates of a deceased debtor, to be sold for pay- ment of his debts, in a- suit, for the administration of his estate, though it bo instituted, not by a creditor, but by the heir and the next of kin of the deceased. — Price v. Price, 15 Sim. 484. A testator by his will, directed that his debts and legacies should be paid by his brother whom he appointed his executor and residuary legatee, he then charged two legacies of three given by his will on the timber growing on his estate at rinane, and bequeated that timber to the same brother — Held, that the general personal estate of the testator was exonerated from the payment of those legacies. — Lamphier v. Despard, 2 Dru. & AV. 59. A testator gave legacies, and charged his exe- cutors, to whom he devised real and personal estate, with the payment thereof. 'Held, that the legacies were charged on the real estate. — — Crossy. Kenniiigton, 9 Beav. 1.50. Testator gave to his wife, all his goods, chat- tels, and personal estate whatsoever, and charged his real estates with the payment of his funeral and testamentary expenses, and debts, and ex- empted his personal estate from the payment thereof. He then gave pecuniary legacies to two of his children, and charged his real estate with the payment of them, and directed that during the minority of the legatees, his trustees, their heirs, and assigns, should raise out of the rents of his real estate, or by any other means they might deem expedient, annual sums for the maintenance of the legatees not exceeding four per cent, per annum, upon their respective legacies. Some years afterwards, the testator was found a lunatic, and by an order in the lunacy £4,250 was allowed yearly for the maintenance of him and his family, and such allowance was to be made from the 6th of April, 1834, and to be continued from time to time, until further order, and to be paid to his wife by the committees of his estate, out of the rents and profits thereof. The testator died on the 6th of October, 1839. His wife had received all that was due in respect of the allowance down to the 6th of April, 1839, but nothing afterwards. She claimed under his will, his personal estate, including the rents of his real estates due at his death, free from the payment of his funeral and testamentary expenses, debts, and legacies ; and she also claimed one moiety of the £4,2.50, for the last six months of the testators life, and in- sisted that it ought to be raised as a debt, out of the real estates. Held, that the funeral and testa- mentary expenses, debts, and legacies were pay- able out of the real estates only, and that the widow was entitled to the whole of the personal estate, including the arrears of rent, but that she was not entitled to the moiety of the £4,250, that sum being payable only out of the rents, and there being in consequence of her claim before- mentioned, no rents to pay it with, — Jones v. Bruce, 11 Sim. 221. A testator by his will, which was confined exclusively to real estates, after devising some among the several members of his family, con- cluded by "desiring that all his just debts'should be paid, as soon as convenient after his decease." Held, that under this will, the debts of the testa- tor were charged ge}ierally upon his real estate. Whenever debts are directed to be paid, they become a primary charge on the fund, out of which they are so directed to be paid unless there is soraeting in the will to confine the generality of of the charge. — Harding v. Grady, 1 Dru, & W. 430. The testator devised his estate to a trustee, upon certain uses, and directed to raise, by sale of the timbi.T and other trees growing thereon, £1,000, which he bequeithedto the plaintiff, to be paid at his age of twenty- four, without interest in the meantime ; and after giving other pecuniary legacies, the testator bequeathed the residue of his personal estate, subject to the payment of his legacies, debts, funerel, and testamentary ex- penses so certain legatees therein named. Held, on demurrer by the executor to a bill by the plaintiff to have the legacy of £1,000, raised by sale of the timber, and if the came should be in- 118 Charges on Real Estate. ESTATE. Charges on Real Estate, Bufficient, out of the personal estate, that the legacy of £1,000 was not charged upon the personal estate. — Dickin v. Edwards^ 4 Hare, 273. By a marriage settlement, in 1779, lands were conveyed to the use of the husband (the settlor) for life ; remainder to the wife for life ; remain- der to the children as they or the survivor should appoint, and in default of appointment, to the heirs of the body of the wife, by the husband ; and in default of such issue, the lands to stand charged with a sum of £2,000 to the wife's father, his heirs, and assigns. In 1798, the hus- band and wife, by a deed reciting the first deed, that there was no issue of the marriage, and that they intended to bar, all the estates and provisions in the former settlement, and to settle the lands to new uses, thereby declared, covenated to levy a fine for that purpose, to enure to such uses as they should appoint ; and in default of such appointment to the use of the husband for life ; remainder to trustees for a term of years ; re- mainder to the wife for life ; and after the decease of both, to the use of the heirs and assigns of the husband ; and as to the term upon trust to raise £2,000, and pay the same to the wife, or as she should appoint, and in case of her death, without appointment to her next kin. The fine did not bar the first charge, on a bill by the re- presentative of the wife's father, who was also one of the next of kin of the vrife, (after the death of the husband and wife, without issue or appoint- ment) to procure both sums of £2,000 to he raised out of the settled lands. Held, that notwith- standing the recital in the deed of 1798 of the intention of the parties, that the first charge of £2000 should be extinguished, and although such charge still remained, yet the trusts of the term for raising the second charge of £2,000 was not therefore inoperative, but the same must still be carried into execution, and that both sums of £2,000 must therefore be raised. — Farr v. Sheriffe ; Dykes v. Farr, i Hare, 512. Additional pecuniary portions held, on the con- text of the will, to be primarily charged on the real estate. — Burrell v. The Earl of Egremont, 7 Beav. 205. Testator expressed an intention to dispose of all his wordly efiects, and directed all his just debts and funeral expenses to be fully discharged by his executor thereinafter named, and after giving several legacies, he devised all his copy- hold lands to his son John, and left all the rest and residue of his estate and effects unto, and to the use of his son John, whom he thereby ap- pointed sole executor and residuary legatee. Held, that, taking the whole of the will together the words were sufficient to pass the fee in the copyholds, and to charge them with the testator's debts. — Dover V. Gregory, 10 Sim. 393. A testator directed his debts to be paid out of his real and personal estate, and he afterwards provided that if his personal estate should fall short in paying his debts, then he empowered his executors to enter into the receipt of the rents of his freeholds, until the same should be wholly paid off. The personal estate was sufficient for the payment of the debts. Held, nevertheless, that a trust had been created for payment of the debts out of the realty, so as to prevent the oper- ation of the Statute of Limitations, and that the real estate remained liable to pay a simple con- tract jlebt which had been left unpaid after dis- tribution of the residuary personal estate. — Crallan V. Oiillon, 3 Beav. 1. A testator devised a portion of his real estate to trustees for sale, and directed them to apply the proceeds and his personal estate in payment of the legacies and annuities thereby bequeathed ; and in case the same should be insufficient he charged all his real estate with the payment thereof. By several unattested codicils, he gave further legacies and annuities, and subsequently he executed a duly attested codicil, whereby he varied the appomtment of trustees and executors. Held, that the legacies and annuities bequeathed by the unattested codicils were not charged on the real estate. — Eadburn v. Jervis, 3 Beav. 450. Testator charged his real estates with his debts, held that the real estate was subject to damages, accrued after his death under an equitable liabi- lity to indemnify, — Willson v. Leonard, 3 Beav. 373. Testator directed aU his debts, legacies, and fiineral expenses, to be paid as soon as conveni- ently might be after his decease. Afterwards he devoted a particular estate to the payment of his debts, legacies, and funeral expenses, in aid of his personal estate, and devised the rest of his estates in strict settlement to his children. Held, nevertheless, that all his real estates were charged with his debts. — Graves v. Graves, 8 Sim. 43. Testator devised his estates, subject to debts, to a trustee, in trust, for several persons in suc- cession, and appointed the trustee and his widow his executor and executrix. Held, that the trustee had power to mortgage the estates to secure money which had been borrowed tor the purposes of the will. — Ball v. Harris, 8 Sim. 485, The trustee, under a power of sale in the will, sold part of the estates, and invested the proceeds in the purchase of another estate which was con- veyed to him, to the uses upon and for the trusts, &c., of the will. Held, that the purchased estate must be taken for all intents and purposes as if it had been devised by the wiU, and, conse- quently, that the trustee had the same power to mortgage it, as he had to mortgage the devised estates. — Id. The testator commenced his will with the words, " In the first place I direct my just debts, funeral expenses, and the charges of proving this my will, to be duly paid." He then made seve- ral devises, and he gave to J. G. a small quantity of plate, together with the rents and profits of his freehold and leasehold premises due and accruing up to the quarter day next after his decease, which rents and profits he charged with the pay- ment of his said debts, funersd expenses, and the charges of proving his will. Held, that the tes- tator had not charged his real estates generally with the payment of his debts, — Falmer v. Graves, 1 Keen, 645. Mortgagees, with notice of a specific charge, for payment of debts upon devised estates, were held, notwithstanding releases of the executors to the devisees, (such devisees being themselves two of the executors, and the releases not shewing that the charge had been raised and paid), to be bound to see the application of the mortgage- money. — Braithxoaite v. Britain, 1 Keen, 206. Where introductory words in a will, du-ecting payment of all the testator's just debts, were fol- lowed by specific devises to two of the executors, it was held, upon the whole context of the will, that the testator had not charged his real estates generally with the payment of debts. — Id. Exoneration of. ESTATE. Exoneration of. 149 XIII. — ^Application op Puuohase-Money. "Where a testator has charged his real estate ■with his debts, and the executor proceeds to sell the estate, the purchaser has a right to ask him •whether all the debts are paid or not, and if he declines to answer, the purchaser will be consi- dered to have had notice that all the debts have been paid, and will be answerable for the appli- cation of his purchase-money. — Forbes v. Pea- t cock, 12 Sim. 528. XIV. — Exoneration of. A testator, by his will, directed that his debts and legacies should be paid by his brother, whom he appointed his executor and residuary legatee. He then charged two legacies of three, given by his will, on the timber growing on his estate of Pinane, and bequeathed that timber to his same brother. Held, that the general personal estate of the testator was exonerated from the payment of those legacies. — Lampier v. Despard, 2 Dru. & "W. 59 ; 1 Con. & L. 200. A testator devised all his real property to trus- tees, upon trust, in the first place subject to the payment of his funeral expenses, of any debts, and of the annuities and pecuniary legacies there- inafter bequeathed, for his son for life, &c. &c. And after giving certain annuities and legacies, and after giving his furniture, wines, and stores, to his wife for Hfe, and an annuity of £440 out of his real and personal estate, he bequeathed to his son " all his personal property after his mother's decease, except some plate." Held, that the per- sonal estate was not exonerated from the pay- ment of the debts, &c. — Ouseleyy. Anstruther, 10 Beav. 453. A testator directed all his debts in the first place to be paid out of his personal estate, except his leaseholds, if suificient, and if not, he charged his real estate therewith. Held, that the specific legacies were liable to the payment of the debts in priority of the real estate. — Bateman v. Hatch- kin, 10 Beav. 426. P. H. purchased the lands of R., which, at the time, were subject to a mortgage for a term of years. The deed of conveyance in which the mortgagee (who did not execute it) was named a party, recited the mortgage, and that P. H. had agreed with the mortgagor to purchase all his estate, interest, and equity of redemption in and to the lands of R., and also all the estate and interest of the several other parties to the deed thereto ; and in consideration of a sum of money paid, and an annuity granted to the mortgagor, and of the sum due on foot of the mortgage therein expressed to be paid to the mortgagee, the mortgagor and mortgagee conveyed the lands to P. H., and his heirs freed and discharged of the mortgage term. The mortgage money re- mained unpaid at the death of P. H. Held, that the devisee of the lands was not entitled to have the mortgage paid oif out of the general personal estate of P. H. — Barry v. Harding, 1 Jon. & L. 475. Testator directed that his simple contract debts be immediately paid, in the first instance out of his personal estate, and if that were not sufficient, out of the produce of the sale of the lands of C. He then gave all his real and personal estate, in- cluding C, upon trust, to pay out of his personal estate, in six months after his decease, all his debts and legacies, and to raise out of the lands of C. £2,000, to be invested, upon certain trusts, for his daughter B. and her issue; and, upon failure of the trusts, to sink into and become part of the residue of his personal estate j and after reciting that on the marriage of his daughter H. he had perfected two bonds to the trustees of her settlement for the sums of £4,000 and £2,000, payable the day after his death, and that it was his intention that the £2,000 bequeathed to the use of B. and her issue, and the £6,000 so due to the trustees of H.'s settlement, should be paid out of the lands of C, he directed same to be sold, and the produce applied in payment thereof; and if C. should not produce a sum sufiicient to pay off " said respective sums of £2,000, £4,000, and £2,000, making in the whole £8,000, he directed the deficiency to be raised by sale or mortgage of his Cavan estates ;" and he be- queathed all the residue of his personal estate, after payment of his debts, in trust for B. for life, and then upon the trusts before declared as to the £2,000. Held, that the bond debts of £4,000 and £2,000 were charged on C. and the Cavan estates, in exoneration of the personal estate of the testator. The whole will must be looked at for the intention of the testator ; and though there is a direction to pay all debts or legacies, yet if there is an intention shown to throw a particular debt or legacy on the real estate, the court is bound to give effect to it. — Bateman v. The Earl of Roden, 1 Jon. & L. 356. Testator devised his estates in B. to the same uses as the estates comprised in his eldest son's marriage settlement were thereby limited to ; and he devised his estates in M. to trustees, in trust, by sale or mortgage, to raise portions of £3,000 each for his youngest children ; and from and after the performance of that trust, and subject thereto in the first instance, and subject to the payment of such of his debts as his personal estate should be insufiicient to satisfy, he devised those estates to his eldest son, in fee, and appointed him his executor. The testator died indebted by spe- cialty as well as simple contract ; and his per- sonal estate being insufficient to pay his debts, his eldest son, with the concurrence of the trustees of the estates in M., sold those estates, and ex- hausted the proceeds in making good the de- ficiency of the personal estate to pay the tes- tator's debts. Held, that his younger children were entitled, in respect of their portions, to a charge on the estate in B. equal in amount to the proceeds of the estates in M., which had been applied to pay the specialty debts. — Legh v. Legh, 15 Sim. 135. Testator, after giving an annuity to his wife, devised his real estate to trustees, in trust, to pay the annuity thereout, and gave his wife powers of distress and entry on his estates. He then devised his estates in strick settlement, sub- ject expressly to the annuity, and to the powers of distress and entry. Held, nevertheless, taking the whole of the will together, that the testator's personal estates was primarily liable to pay the annuity. — Roberts v. Roberts, 13 Sim. 336. A simple declaration that charity legacies are to be paid out of pure personalty will not give to such legacies a priority upon the pure personalty over other legacies and charges, nor exempt any part of the estate from the ordinary rules of applying and distributing the assets. — Sturge v. Dimsdale, 6 Beav. 462. A testatrix created a mixed fund of realty and personalty, for payment of her debts and legacies ; 150 Exoneration of. ESTATE. Conversion of. but she directed the charity legacies to be paid out of pure personalty. She afterwards directed her trustees to set apart a sum of stock sufficient to provide for a number of annuitants ; and as the annuitants died, the stock let loose was to be applied to the payment of the charity legacies. Semble : That the direction alone was not of itself sufficient to exempt the charity legacies from being payable out of the realty in the proportion of the realty to the personalty ; but held, that the second part created a demonstrative fund of pure personalty, out of which the charity legacies were to be paid.— 7d. A., by his marriage settlement, after reciting that he was seised in fee of certain estates, sub- ject to mortgage debts, the amount of which was mentioned, and which he had contracted, settled the estates, subject expressly to the debts, on himself for life, remainder to secure a jointure for his intended wife ; remainder to the first and other sons of the marriage, in tail male ; re- mainder to himself in fee ; and covenanted for the title, excepting the debts ; and he reserved to himself power to raise £10,000 by mortgage of the estates, the mortgage to be made redeemable by the person, for the time being, entitled to the freehold or inheritance. A. exercised the power, reserving the equity of redemption to himself, his heirs, executors, &c., or the person for the time being entitled as aforesaid, and covenanted for payment of the mortgage money. He then died without issue, having, by his will, charged his real and personal estate with his debts ; and bequeathed the residue of his personal estate, after payment of his debts, to B. ; and having devised his remainder in fee, expectant on the failure of his issue male, to his brother and his brother's sons, in strict settlement. Held, that they were not entitled to have the personal estate applied to exonerate the devised estates from any of the mortgaged debts. — Ibbetson v. Ibbetson, 12 Sim. 206. Testator gave his estate, called F., to his wife, during his eldest son's minority, for the support of herself and children, in such manner as, in her discretion, she should think proper ; with an in- junction that the dwelling-house and premises should be kept in tenantable repair during his said minority ; and he authorized and empowered his said wife to raise £200 for each of his daughters as they should respectively attain the age of twenty-one years, by way of mortgage or otherwise, on the security of his said F. estate ; and he thereby charged, and made chargeable, his said estates for the repayment of the said sums of £200 to each of his said daughters, as aforesaid, and also for the payment of any sum or sums of money on the security of his said estate at his death. The testator, at the date of his will, and at the time of his death, was seised of the F. estate, which had been mortgaged for a debt of his own, and an unincumbered estate, called H. Held, that the F. estate was the pri- mary fund for the payment of the mortgage debt in exoneration of the personalty and the H. estate. — Evans v. Cockeram, 1 Coll. C. C. 428. The testator mortgaged two estates ; by demise he speciiically devised one of them (the Bluns- den), while the other (the Marston), descended on his heir, and he devised all his estates (except the Blunsden and Marston,) and bequeathed his personal estate to his heir, subject to the payment of his debts. The heir afterwards covenanted to exonerate the Blunsden estate from the mortgage, and he subsequently Joined in a deed, whereby. with the concurrence of the mortgagee, who was satisfied that the Marston estate was a sufficient security, the term as to the Marston estate alone, was transferred to trustees, to secure the mortgage money. The heir, by his wiU, devised the Marston estate specifically upon certain trusts, and he gave all his other real and personal estate to his eldest son, "subject to the payment ofhis debts, and the fulfilment of all his contracts and obligations." Held, that the devisees of the Marston estate took it, subject to the mortgage, and were not entitled to have it exonerated out of the personal estate of the second testator. — The Earl of Ikhester v. The Earl of Carnarvon, 1 Beav. 209. Personal estate held upon the context of a will not exonerated from the payment of the debts and legacies, where a real estate devised for the payment thereof, in exoneration of the personal estate, proved to be insufficient. — Colville v. Middleton, 3 Beav. 570. A testator devised his freehold, customary free- hold, copyhold and leasehold estates, for the be- nefit of his seven children, and he gave his re- maining personal estate to A., exonerated from his debts, and he declared that his freehold cus- tomary freehold and copyhold estates should bethe primary fund, and that his leaseholds should be the secondary fund for the payment of his debts. Joseph, one of the children, died in the testator's lifetime, whereby his share lapsed. Held, as be- tween the heir-at-law and the next of kin of Joseph, and the residuary devisees and legatee under the will of the testator, that the share in- tended for Joseph, of the freehold, copyhold, and leasehold estate, was to be applied in the same order and manner, and to the same extent as if Joseph had survived, and that the next of kin of Joseph were respectively entitled to what re- mained after such application. — Fisher v. Fisher, 2 Keen, 610. XV. — CONVEESION OF. Where money is directed to be vested in land or other security, but the conversion has not ia fact taken place, until the whole interest, whether in land or money, has become vested absolutely in one person, any act of his, indicating an option, in which character to take or dispose of it, will determine the succession as between his real and personal representatives. — Cookson v. Cookson, 12 Clk. & Fin. 121. A testator gave his residuary estate to his wife, and appointed her his executrix with the tuition of his younger children, and to provide for them vrith regard to their fortunes, and he advised hei thus, " As to my son John, I would have £250 a year paid him, until a sum of £10,000 can be in- vested in land or some other securities, which is to be invested in trustees for his use, as to the interest of such money or produce of such lands, for his natural life, and if he marries with con- sent, and that he may make such settlement on such wife, &c., as you may judge proper, and that the remainder may go to such child or children he may have lawfully begotten, but in failure of these, to my eldest son Isaac and his heirs for ever." The sum of £10,000 was vested partly in personal securities, and partly on mortgage of real estate, and, on the death of John vnthout any child, his widow being entitled to the intei'est for life, and Isaac entitled to the principal on her death, by their acts indicated their intention to take the fund as money, Isaac died intestate. Waste ESTATE.— ESTOPPEL. 151 Held, that even if the fund had been impressed by the will Tvith the character of real estate, which was doubtful, it was re-converted into personalty by the subsequent acts of the party absolutely entitled, and, therefore, it belonged to the next of kin of Isaac, and not to his heir. — Id. The absolute owner of land, for the purpose of better using that land, erected upon and affixed to tlie freehold certain machinery. Held, that in the absence of any disposition by him of this machinery, it would go to the heirs as part of the real estate. If the corpus of such machinery be- longs to the heir, all that belongs to that machi- nery, although more or less capable of being de- tached from it, and more or less capable of being used in such detached state, must be considered as attached to the freehold. No distinction arises in the application of the rule from the circum- stance that the land did not descend to, but was purchased by, such owner — Fisher v. Dixon, 12 Clk. & Fin. 312. Hesiduary devise and bequest, on trust, to pay the dividends, interest, and annual produce of the testator's real and personal estates, to the separate use of his daughter or daughters for life, and after her or their decease, to pay, transfer, and equally divide the whole of his real and personal estate among the issue of his daughter or daugh- ters, and for want of such issue, to pay certain legacies, and to sell the residue of the real and personal estate, not consisting of money. Held, to entitle the tenant for life to the enjoyment of the personalty in specie. — Hunt v. Scotf, 1 De G. & S. 219. A' testator gave his daughter a sum of money, and directed his executors "as soon as convenient after his decease, to purchase an estate," and when she attained twenty-one, she was to re- ceive the money if the land was not bought. There was a gift over ; the estate was not pur- chased, and she invested the money in the funds. Held, on the daughter's death, that the money was impressed with the character of realty, and passed as such. — Simpson \. Ashworth, 6 Beav. 412. Personal estate bequeathed by the will, though not actually converted, must be deemed to be converted into, and have descended as leal estate. — Wrightson v. Macauly, i Hare, 487. XVI.— Waste. A lessee for lives renewable for ever, will, unless under special circumstances, be restrained from committing waste. The cases on this subject reviewed. — Coppinger v. Gubbins, 3 Jon, & L. 397. A mere devise of a bog, as such, will not give the lessee a right to cut turf for sale, particularly where the devise is of the bog together with other property. But if nothing but the bog be de- vised, and it is not convertible to any other use save being cut for sale, or if it were at the time of the devise used by cutting it for sale, the lessee may cut turf for sale. — Id. The court will not refuse to restrain waste by which the estate is not necessarily and perma- nently improved on the mere ground that the party has done other acts which will benefit the estate, therefore an injunction to restrain cutting turf will not be refused on the ground that the tenant has converted the cut-out bog into arable land. — Id. Qiiaire, whether the court will restrain acts of meliorating waste. — Id, A lady tenant for life of an estate, subject to a condition not to commit waste, married, and dur- ing the coverture her husband cut and sold timber on the estate. Held, (in opposition to the doc- trine in Lord Ormond v. Kynnersley, 5 Madd. 369,) that the condition was not in the nature of a trust, and, consequently, that neither the wife nor her estate, but the husband alone was an- swerable for the waste. — Kingham v.iee, 16 Sim. 396. It cannot be decided as a general proportion without any exception, that the conversion of an ancient meadow into arable is to be treated as waste. — Duke of St. Albans v. Skipworth, 8 Beav. 354. In respect to waste, a parson or vicar is not to be considered as merely lessee for years, or as tenant for life, under a will or settlement. — Id. The court will not restrain an incumbent from ploughing up meadow infested with moss and weeds for the purpose of laying it down again in grass when properly cleaned. — Id. Whether a patron is in any case entitled to an injunction to restrain the incumbent from plough- ing up ancient meadows. — Id. The court will, upon motion by the receiver, grant a conditional order to restrain tenants under the court from committing waste, without a bill being filed for the purpose. — Cronin v. M'Carthy, Fl. & K. 49. Semble, that although a man in full and com- plete possession of an estate by a title adverse to another who claims it against him, and there be no privity between the parties and the party in possession, swear that his own title is just and valid, or that the title of his adversary is unjust and invalid, that state of things does not prevent a court of equity from interfering (before judg- ment at law or decree in equity,) to restrain the party in possession from committing waste upon the inheritance. — Haigh v. Jaggar, 2 Coll. C. C. 231. QucBre, what is the present extent and effect of the writ of estrepement. — Id. Where a testator devises the legal estate to trustees, and gives to a tenant for life an equit- able estate only, with remainders over, such tenant for life ought not to cut timber without the con- sent of the trustees. — Denton v. Denton, 7 Beav. 388. Form of the reference to enquire whether it ia proper to cut timber during the continuance of the estate of a tenant for life of the lands im- peachable of waste. — Tollemache v. Tollemache, X Hare, 456. Where strips of land lie between the highway and the adjoining enclosure, the legal presump- tion is that the land belongs to the owner of the adjoining old enclosure. — Scoones v. Morrell, X Beav. 251. An injunction to restrain the pulling down of houses granted on an ex parte motion, although the defendants had appeared. — Petley v. The Eastern Counties Railway, 8 Sim. 483, ESTOPPEL. A lease and release does not operate as an estoppel.— ifoyrf V. Lloyd, 2 Con. Sc L. 592. 152 EXECUTORS AND ADMINISTRATORS. Liability of. EVIDENCE. See Pk. Evidence. EXAMINATION. See Pr. Commission to Examine.— Pa. Evidence. EXCEPTIONS. See Pk. Exceptions. EXCHANGE, RATE OF. See EoKEioN and Colonial Law. EXCHANGE OF LAND. An act for facilitating the exchange of lands, lying in common fields, 4 & 5 W. 4, c. 30. Exchange of freehold or leasehold lands, not valid unless made by deed, 7 & 8 Vict. c. 76, s. 3. No implied warranty to be created by the word " Exchange," in a deed, 7 & 8 Vict. c. 76, s. 6. The statute 6 & 7W. 4, c. 115, gives to per- sons dissatisfied with any thing that has been done under its provisions, an appeal to the Quar- ter Sessions. Semble, that this would not deprive aparty aggrievedof his rightto the interference of a court of equity. — Beauford,(DuU of, Jr. Neeld, 12 Clk. & Fin. 248. An exchange of lands, or an exchange of lands where a sum of money forms part of the consider- ation, by way of equality of exchange is not within the 1 W. i, c. 60, Turner v. Edgell, 1 Keen, 502. EXCHEQUER. See Jurisdiction. EXCHEQUER BILLS. "When Exchequer Bills deposited in court, the Bank of England may receive the interest thereof and exchange the same for new bills, or receive the principal without any direction from the Ac- countant General, Gen. Ord. 28th August, 1828, —Beav, ed. 31. The amount or new bill to be deposited to the credit of the cause. — Id. 32. Bank to certify theparticulars to the Accountant General. — Id. A trustee properly invested trust money in exchequer bills, but he left them unmarked and undistinguished in the hands of a broker ; upon a misapplication of them by the broker. Held, that the trustee was personally liable. — Matthews v. Brise, 6 Beav. 239. A trustee was empowered to invest in the pub- lic funds, or on real security. He had in his hand a sum which, in the interval between receiving and investing, in a contemplated real security, he invested in exchequer bills, which he left in the hands of a broker, who misapplied them. Held, that the trustee was liable for the value of the exchequer bills at the time of the loss, and not for the stock which the money would have purchased — Id, EXECUTORS & ADMINISTRATORS. I. II. III. IV. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII, XVIII. XIX. XX. XXI. XXII. See Distbibution — Will. Liability of 152 Rights of 154 Right to retain THEIR OWN Debts. 154 Refusal of, to Execute Convey- ance 164 Not Bound to Continue Policy OF Insurance 154 Taking Beneficially 154 Compensation to 155 Allowance to 155 Assent by 155 Substitution of Debts by 156 Renunciation and Non-Peoof op Will 156 Generally 156 Limited Administration 157 Ad Litem 157 De Son Tort 158 Bona Notabilia 158 Devistavit 158 Administration Bond 158 Administration Suit 1 58 Parties to Suit 159 Costs 160 Assets 160 1. Administration of 160 2. Admission of 16^ 3. Marshalling 164 I. — Liability op. Letters of administration, stamp duties on, 55 Geo. 3, c. 184, E. 5 & 6 Vict. c. 82, L Actions by administrators, 3 & 4 W. 4, c. 42. Claim to chattels real by administrators, 3 & 4 W. 4, c. 27. s. 6. Conveyance of estate by administrators of mortgagees, 7 & 8 Vict. c. 76. s. 9. Actions by and against executors, for injury to real estates, 3 & 4 W. 4, o. 42. Distress by executors for arrears of rent due in lifetime of testator, 3 & 4 W. 4, o. 42. s. 37 & 38. An act to extend to Ireland the provisions of 38 Geo. 3, c. 87, as to executors under twenty- one years of age, 53 Geo. 3, c. 81. Executors, whose testator was the assignee of a leasehold estate, of which the rent was greater than its yearly value, were ordered by the court to talie such steps as might be necessary to re- lieve the testator's estate from liability, in respect of the rent and covenants of the lease. The executors endeavoured to prevail upon the lessee to accept a surrender, but he refused to do so, and they took no other steps towards complying with the order. Held, that the executors ought to have assigned the lease to some other person, and that not having done, they were bound them- selves to exonerate the testator's estate from the- liabilities to which it had been subject in respect of the lease since the time at which they might have made such an assignment. — Rowley v. Adams, 4 Myl. & Cr. 634. An executor bona fide, invested part of the UaUlityof. EXECUTORS AND ADMINISTRATORS. Liability of . 153 a=isets in the purchase of Bank Stock. He is not answerable for any further loss than was oc- casioned by his buying Bank Stock, instead of three and a half per cent, government stock. — Hynes v. Redington, 1 Jon. & L. 589. By the decree, in a suit, ijistituted by persons beneficially interested under a will, one object of which was to charge two of the executors with a debt, which the third (who had become in- solvent owed to the testator at his decease an inquiry was directed at the suggestion of the solvent executors, whether, if they had taken measures to call in the debt, it could have been recovered, but neither they nor the plaintiffs prosecuted the inquiry. On the hearing further directions, the court held, that the solvent exe- cutors ought to have prosecuted the enquiry, notwithstandingtheymusthaveproveda negative, and as they had not done so, it ordered them to pay the amount of the debt into court, with in- terest from the testator's death. — Stiles v. Guy, 16 Sim. 230. Part of a testator's assets consisted of a pro- missory note. The executor, though requested by the parties interested so to do, neglected to get it in, and about two years afterwards it was lost by the insolvency of the debtor. Held, that the executor was personally liable. — Caney v. Bond, 6 Beav. 486. On the death of an intestate, administration to her estate was granted to her son and daughter, the daughter being then under coverture, the assets were, in May, 1831, paid into a banking house to the joint account of her husband and her brother, the administrator, and the whole of the fund, with the exception of the share of one of the next of kin who was abroad, was soon afterwards paid away among the several parties entitled by means of cheques signed by the two persons in whose names the account stood. The husband of the administratrix died in December, 1831, and ten months afterwards her brother and co-administrator drew out the balance, and, hav- ing applied it to his own use, absconded. Held, that the estate of the husband of the administra- trix was answerable for the loss. — Clough v. Bond, 3 Myl. & Cr. 490. An executor held, chargeable with interest upon certain sums which he retained, and mixed with his own monies at his bankers, the sums being retained out of the income of the testator's residuary estate, in order to satisfy a debt which there was no probable ground to believe was due to the testator's estate, from a person entitled to a share of such income, but which turned out not to be due to the extent supposed. — Melland v. Gray, 2 Coll. C. C. 295. To an action brought by a creditor of a testator, the executors pleaded the decree in a suit for the administration of the testator's assets. The plea was held to be bad in law, and judgment was given for the plaintiff at law. The court restrained him from enforcing his judgment against the testator's assets, but not against the executors personally. — Buries v. Popplewell, 10 Sim. 383. Executors held personally liable, in respect of the loss to the testator's estate of a sum outstand- ing on personal security, although the security was that of the bond of the testator's soUcitor, and the money had been invested in that security by the testator some years before his death, and, by his wUl, he directed that his trustees shotdd get in his outstanding personal estate "as soon as conveniently might be " after his decease. — Bul- lock V; Wheatly, 1 Coll. C. C. 130. Liability of the executors for the acts of their co-executors after proving the will. — Stiles v. Guy, 4 Y. & C. 671. A testator resident in India directed his trus- tees and executors to invest his residue in govern- ment and other good securities, and then de- clared trusts of it for the benefit of his children, and other persons, all of whom were resident either in England or Ireland, and were mentioned so to be in the will. The residue was allowed to remain in the hands of the testator's bankers and agents in India, who ultimately failed. Held, that the acting executor and trustee was respon- sible for the loss thereby occasioned to the estate. — Lowry v. Fulton, 9 Sim. 115, An executor who does not prove, but acts, is answerable only for what he actuaUy receives. —Id. A., and B., the wife of C, took out administra- tion to an intestate. A. and C, with the know- ledge of B., and for the purpose of distribution amongst the next of kin, sold out stock belonging to the intestate, and paid the proceeds into a bank to their joint account, and they agreed that all cheques on the bank should be signed by them jointly. Soon afterwards all the next of kin (ex- cept one who was abroad and expected to return shortly) were paid their shares, and a sum was reserved in the bank to answer the share of the absent party. C. died, and ten months after- wards A. drew out the reserved sum and ab- sconded. Held, that G.'s estate was answerable for the loss, but the question as to B.'s liability was reserved. — Clough v. Dixon, 8 Sim. 594. In an administration suit it appeared that the testator and his surviving partners were lessees of certain iron works and premises, for a term of years of which eleven were unexpired, and as such lessees were subject to covenants for rent, repairs, insurance, &c., and that by the articles of partnership, the executors of a deceased part- ner might elect to become partners in the con- cern, or to withdraw the capital of deceased therefrom. — Held, that although the executors had elected not to become partners, and no breach of the covenants appeared to have hap- pened, yet as such covenants, if broken, might leave the estate of the testator liable to demands, sufficient to absorb it, the interest as well as the principal of the residuary estate must be retained to answer any such possible demands, until the extent of the liability could be ascertained, or if any part of the interest or income should be paid to the tenant for life, it could be only on security to refund the same, if required to satisfy any such future demand, — Fletcher v. Stevenson, 3 Hare, 360. In a suit for administration instituted by the administrator, who was also the first tenant for life of the estate, under the will, orders were made for the sale of bank stock and East India Stock, and for the realization of other funds and secu- rities and the investment of the proceeds in Con- sols, but such orders were not prosecuted. Held, in a suit by the next tenant for life, that the es- tate of the administrator, (plaintiff in the first suit) was liable for the loss or damage occasioned to the estate of the original testator by the neglect or omission to carry into effect the directions of the said orders. — Sowerby v. Clayton, 3 Hare, 430. Direction by will to lay out personal estate con- sisting of Bank and East India Stock, and monies standing on other funds and securities, in the purchase of land to be settled to certain uses : — whether the stocks and funds, not being Consols, 154 Rights of. EXECUTORS AND ADMINISTRATORS. TaMny l>,e. onglit to be sold and invested in consols during the interval which elapsed before the purchase of lands was made. — Quare 1 — Id. Executors, whose testator died in 1827, adver- tised for persons having claims or demands on the estate of their testator, and having provided for all that appeared, -they, in 1829, distributed the estate amongst the legatees, and took from them an indemnity. A demand, previously un- known both to the claimant and the executors, was made against the estate in 1836, and a bill filed to enforce it. Held, that if the claims were valid, the executors were still personally liable to the plaintiff. — Hill v. Gomme, \ Beav. 640. A testatrix bequeathed the residue of her pro- perty to certain persons, some of whom lived in the "West of England, and others in Norfolk, and she appointed two persons to be her executors, one of whom lived at Clifton, and the other at Diss. The executors having paid all the debts and specific legacies of the testatrix, entered into an arrangement by which the Clifton executor viras to pay the residuary legatees in the West of England, and the Diss executor those in Norfolk, and the residuary funds were apportioned between them for that purpose. The Diss executor having made default in payment of one of the legatees in that neighbourhood. Held, that the other exe- cutor was responsible for the default. — Moses v. Levi, 3 Y. & C. 359. Paymentof interest by an executor, commencing six years after the testator's death, and conti- nuing seven years. Held, to be such an admission of assets as to make the executor personally liable. — Alt, Gen. v. Chapman, 3 Beav. 255. II. HlGHTS OP. The ultimate trust in a marriage settlement of a fund belonging to the wife was to her executors or administrators. Held, first, that the surviving husband, who was her administrator and not her next of kin, was entitled ; and, secondly, that if, by those words, her next of kin were intended, then the next of kin at the death of the wife, and not of the husband, (who was tenant for Ufe,) •were entitled. — Allen v. Thorpe, 7 Beav. 72. An executor is entitled to a residue or share of a residue bequeathed to him, although he has not proved the wiU. — Christian v. Devereiix, 12 Sim. 264. Testator, after reciting that his property con- sisted of a house at C. (which was freehold), and of mortgages, &c., directed the house to be sold, and then gave several pecuniary legacies, and amongst them £300 to G., and £100 to P., whom he appointed his executors. The will concluded thus : — " and to Mr. G., who is likewise my execu- tor, any sum then appearing after the contents of this my will, are fully complied with and ful- filled." G. died the day afterthe testator, without having proved the will. Held, in a suit by his executors against the testator's heir and next of kin, that the plaintiffs were entitled to the residue of the testator's estate, including the pro- ceeds of the house. — Griffiths v. Pruen, 11 Bim. 202. If an executor is also the residuary legatee, he is entitled to the residue, although he does not prove the will. — Id. Although a court of equity will give protection to an executor who hands over his testator's assets to his co-executor for the payment of the testa- tor's debts in a due and ordinary course of ad- ministration, the principles upon which that pr^- teetion rests do not apply to the case of an executor handing over the assets' for the payment of the testators residuary legatees. — Moses v. Levi, 3 Y. & C. 359. Executors held, under the circumstances, jus- tified in appointing an agent to get in the testator's debts, and in allowing him a salary for his trouble. — Hopkinson v. Roe, 1 Beav. 183. III. — Right to betain theie. own Debts. A trustee of real estates sold for paj-ment of the testator's debts, is entitled to retain a debt due to him from the testator out of the proceeds ; and his right is not prejudiced by the proceeds having been paid into court. — Uall v. Macdonald, 14 Sim. 1. The court will not order any executor to pay money into court which he states by his answer to have retained in satisfaction of a debt due to him from the testator. — Middleton v. Poole, 2 Coll. C. C. 246. One of two executors had a right to retain his own debt out of a balance due from both to the testator's estate. — Kent v. Pickering, 2 Keen, 1. The representative of a deceased executor, in accounting for the executor's receipts of the trust estate, held, not to be entitled by way of discharge to the amount of a debt owing to the executor from his testator without evidence of retainer of the debt by the executor in his lifetime ; the amount can only be claimed as a debt against the estate. — Barge v. Brutton, 2 Hare, 373. The personal representative of A. has a re- tainer, in respect of a sum due to him from A.'s estate as personal representative of B. — Thompson v. Cooper, I CoU. C. C. 85. IV. — ^Refusal of, to Execute Conveyance. Where by a decree all parties are directed to execute, and some who are within the jurisdiction, refuse to do so, the court will not in the first instance direct the master to execute under the 4 & 5 Wm. 4, c. 78, but will issue an attachment against them. In such cases, a creditor who has proved his charge under the decree, is as much bound as if he were a party to the cause. — Usher V. Hcunlan, Fl. & K. 243. V. — ^NoT BOUND to continue Policy op Insueancb. An executor is not bound to insure or continue the insurance of his testator's property against fire.— Boifey v. Gould, 4 Y. & C. 221. VI. — ^Taking Beneficially. Where debts and legacies are directed to be paid by a person to whom property is devised, and who is named executor, the debts and lega- cies must be paid before he can take beneficially. — Lamphier v. Despard, 1 Con. & L. 200. Under a limitation by deed of a fund to the executors or administrators of the settlor, to and for his and their own use and benefit." Held, under the circumstances, that the fund belonged Allowance to. EXECUTORS AND ADMINISTRATORS. Assent by. 156 to the next of kin, and not to the administrator. — Meryon v. Collett, 8 Beav. 386. A testator appointed A. and B. his executors, and he gave them all his personal estate, " that is to say, for you to pay all as follows." He then gave several legacies, and afterwards said, " I wish all this to be paid in six months after my death." Held, xmder 1 Wm. 4, c. 40, that the executors did not take the unexhausted residue beneticially, but in trust for the next of kin. — Love V. Gaze, 8 Beav. 472. The 1 W 4, c. 40, requires that the intention that the executor should take beneficially should appear by the will. — Id. A testator bequeathed all his property to A. upon certain trusts, (but which were not co-ex- tensive with his interest in the property,) and, by a clause at the end of his will, appointed A. exe^^or of it. Held, that A. was not a trustee of 4^ interest undisposed of for the testator's next of kin ; but was entitled to it beneficially. — ilapp V. Elcock, 15 Sim. 568. Upon the construction of a will. Held, that executors were entitled as against the crown, claiming, in default of next of kin, of the testa- trix, to the surplus proceeds of certain leaseholds which were bequeathed to be sold for payment of the testatrix's debts and legacies. — Russell v. Clowes, 2 Coll. C. C. 648. Executors having legacies under the will, held not to be precluded from taking property undis- posed of by the will to their own use, the legacies being unequal in amount. — Id. A testator gave a legacy of £400 to his wife, and after her decease to G. "W., and if G W. should die in her lifetime, to such person or per- sons as he should by will appoint, and in" default of appointment after the death of his wife, to the executors and administi'ators of W. G. absolutely. W. G. died, having made a will, by which he ap- pointed an executor, but made no appointment of the legacy. The executor did not take a beneficial interest in the legacy. — Wood v. Cox, 1 Keen, 317. VII. — Compensation to. A surviving partner being the executor of his deceased partner, is not entitled to an allowance for carrying on the business after his partner's decease, for the benefit of the estate, nor is an executor and legatee of such surviving partner. — Stocken v. Davison, 6 Beav. 371. A testator, a victualler, directed his trade to be carried on by his executors brewers and spirit merchants who had been in the habit of serving him in his lifetime, and supplies were furnished for that purpose by them. The court would not declare that the executors were entitled to re- ceive the cost price only for these supplies, but directed an inquiry whether the supplies were proper, and furnished at the ordinary market price. — Smith v. Langford, 2 Beav. 362. VIII. — Allowance to. An executor, upon transferring stock to a legatee, paid one sixteenth per cent, to a stock broker for identifying him at the bank. He was allowed the payment in passing his accounts. — Jonas V. Powell, 6 Beav. 488. If an executor in India collects part of the assets there, and then comes to England, and has the remainder remitted to him by his agent, he is entitled to commission on that part only which he collected in Iiid'a. — Campbell v. Campbell, 13 Sim. 168. Testator directed that £ 1 00 should be annually paid to one of his executors, for his trouble in superintending his concerns, until a final settle- ment of his affairs should take place. The exe- cutor proved and acted. Some time after the testator's death a suit was instituted for the ad- ministration of his estate, but no receiver was appointed, and some of the assets were still out- standing. Held, that the annuity did not cease on iiccount of the institution of the suit. — Baker V. Martin, 8 Sim. 25. The sum to be allowed executors for the ex- penses of transferring a large sum of money into court is one guinea ; and extra brokerage was, therefore, disallowed. — Ilopkinson v. Roe, 1 Beav. 183. The costs of transferring funds from the name of a testator into the names of executors dis- allowed. — Id. Sums paid by an executor out of an infant's property for his maintenance cannot be allowed by the master, under a direction " to make all just allowances." — Cotham v. West, 1 Beav. 380. The only way in which executors can obtain complete exoneration is by passing their accoimts in a court of equity ; and the court is, conse- quently, anxious not to deter them from so domg by visiting them with the costs. — Low v. Carter, 1 Beav. 426. IX. — Assent by. A testator bequeathed a leasehold and his re- siduary estate to A., B., and C, (his executors) on trust, to permit A. to receive the rents and profits for life, and afterwards to pay certain legacies ; and the residue to such of three per- sons (D., E., and F.,) as should be living at A.'s death. The executors pennitted A. to retain possession of the leasehold during her life ; and D., E., and F. executed a deed (which was also executed by B., the husband of D.), and whereby they agreed to take as tenants in common. A. died. Held, that the executors had not assented to the legacies, either by permitting A. to retain pos- session of the leasehold, or by the execution of the deed by B. ; and that the executors could make a goo'd title to the leasehold. — Att. Gen. v. Potter, b Beav. 164. An executor who has assented, uncondi- tionally, to specific bequests of the testator's leasehold estates, is not entitled to an indemnity out of the testator's general estate, in respect of his covenant contained in the lease. — Shadbolt v. Wood/all, 2 Coll. C. C. 30. Testator bequeathed all his personal estate to his wife, with the exception of two leasehold houses, the rents of which he gave to her during her life ; and, after her death, directed that they should be sold, and the produce divided between his four children ; and he appointed his wife and another person his exeeutri,x and executor. Upon the death of the testator the wife entered into possession of his personal property, including the leasehold houses, and paid all the testator's debts. Held, under the circumstances of the case, that she had assented to the legacy to the testator's children.— Trail v. Bull, 1 Coll. C. C. .352. 156 Generally. EXECUTORS AND ADMINISTRATORS. Generally. It is not essential to the efficacy or validity of an assent to a bequest that it should confer a legal interest, or affect the mere legal title to the- subject of the bequest. — Id, X. — Substitution of Debts bt. An executor having assets of his testator, either in money or goods, before any bill had been filed for the administration of the estate, applied to a creditor of the estate for a loan of a sum of money, equal in amount to the debt, and the creditor accepted the personal security of the executor for the amount, and released his debt against the estate. Held, that the executor having, by such substitution of his own security for that of the estate, discharged the debt as against the estate, should not be treated as a mere purchaser of the debt of the creditor, and as such entitled only to stand in the place of the creditor ; but that the executor was entitled to be allowed, in his own discharge, the amount of the debt, as a debt of the testator preferred and paid. — Hepworth v. Heslop, 6 Hare, 661. XI. — Henunoiation and Non-Pkoop op Will. Probate to one of several executors, the rights of the other being reserved, enures to the benefit of all, and upon the death of the executor to whom probate has been granted, the other may accept the office ; and, upon doing so, fully represents his testator without further probate. — Cummins v. Cummins, 3 Jon. & L. 4. A slight acting with the assets by the surviving executor, who had not joined in proving the will, will amount to an acceptance of the ofiice of exe- cutor, and will preclude him from afterwards refusing to act. — Id. If an executor does an act, and dies, without proving the will, the act will be valid if the wUl is afterwards proved. — Brazier v. Hudson, 8 Sim. 67. An aged executor, who was incapable, by bodily and mental infirmity, of proving the will, Held, not entitled to a legacy given by the tes- tator's will to him, as executor. — Hanbury v. Spomier, 6 Beav. 630. A testator appointed A. and B. executors ; and, after giving certain legacies, he gave A. £500 and B. £500. The executors renounced. Held, that they were not entitled to their lega- cies. — Calvert v. Sebbon, i Beav. 222. XII. — Generally. On a demurrer to a biU seeking payment of a legacy out of assets, come to the hands of the de- fendant, who was the husband of the sole execu- trix deceased. Held, that an allegation, that all the testator's debts, and the other legacies be- queathed by his will had been paid, and that there were assets ultra in the hands of the defendant to • to satisfy the plaintiff's demand, was not suffici- ent with the presence of a personal representa- tive of the testator; the allegation bein^ one which even if admitted by the defendant, the court would not take his word for. — Penny, v. Watts, 2 Phil. 149. The expressions " personal representatives," and " legal representatives" have in some cases been held to be of identical meaning, but they are not necessary so. — Kilmer v. Leach, 10 Beav. 362. By a marriage settlement, trusts were declared of a sum of money, the wife's property, for her separate use, for life, for her husband for life, for their children, as the wife should by deed or w ill appoint, and in default of appointment, for the children equally, if their should be no child, then for such persons as the wife should appoint by deed, or will, and in default thereof for the exe- cutors or adminstrators of the wife. The ultimate trust took effect. Held, that by the executors or administrators of the wife, her next of kin at her death were meant, there being throughout the settlement an evident intention to exclude the husband from taking more than a life interest. Reversed, see 1 PhiUips, 1 ; Daniel v. Dudley, 11 Sim. 163. £^ Administration of an estate, where a cnjjpoT had obtained judgment upon a plea of plene ad- ministravit by two of the executors, and a con- fession of assets to a certain amount by another executor ; such assets, consisting of money in the hands of bankers not reached by the execution, which the two executors prevented firom being paid, upon the cheque of the then executor to the judgment creditor, and which was afterwards paid into court. — Gaunt v. Taylor, 2 Hare, 413. An executor, who, in an action at law by a creditor of the testator, has pleaded according to the truth of the case, is, when the assets are taken from him, and administered in equity, entitled to the protection of the court against any personal liability in respect of such plea. — Id. A testator directed his debts to be paid, and appointed executors in England, and other exe- cutors in Italy, directing the English executors to transmit the residue to the Italian executors, and bequeathing such residue amongst classes of persons alleged to reside in Italy. Held, that the sum to be paid over, being the residue after the payment of debts, the Italian executors must be regarded as simply trustees of that fund, and not as executors holding it charged with debts ; and that therefore enquiries must be directed to ascertain the persons beneficially entitled to the fund under the bequest. — Weatherby v. St. Giorgio, 2 Hare, 624. In a marriage settlement, the ultimate trust of the wife's chattels, was for the executors or ad- ministrators of the wife of her own famUy, and the ultimate trust of the husband's chattels, was for his executors or administrators of his own family. Held, that, though the same words were used, mutatis mutandis, in both limitations, yet the court was justified in holding, that, withrespect to the wife's chattels, they meant her next of kin at her death, and with respect to the husband's chattels, his executors and administrators simply. — Smith V. Dudley, 9 Sim. 125. Testator after giving a general direction for payment of his debts, gave and bequeathed all.hia real and personal estate to his ^^ ife for life, and after her decease, he directed all his real and per- sonal estates to be sold, and the produce to be divided between the children of certain persons named in the will, and he directed that the pur- chaser or purchasers of any part of his real or personal estate, should not be liable to see to the application of the purchase money, and that the receipt or receipts of his executor, his heirs, exe- cutors and administrators, should be a sufficient dischai-ge or sufficient discharges to the pur- chasers, and he appointed his wife and A. B. his Limited, Sfc. EXECUTORS AND ADMINISTRATORS. Ad Litem. 167 executrix and executor. Held, first, that the executrix and executor, or one of them, had an implied power (in case the testator died indebted) to sell the real estate for payment of the debts : — Secondly, that the executrix and executor, hav- ing entered into a contract for the sale of parts of the estate, and it being shewn, that at the time of the contract, there were unsatisfied debts of the testator, the contract was valid : — Thirdly, that the purchaser was not bound to take the title without the concurrence of the heir-at-law. ■—Gosling v. Carter, 1 Coll. C. C. 646. The words " executors and administrators," have in some cases been construed to mean next of kin, but the words " executors, adminis- trators, and assigns," do not admit of that inter- pretation. — Grafftey v. Humpage, 1 Beav. 52. A testator bequeathed leaseholds to his son, and appointed him and another person his executors. Three years after the testator's death, the son settled the leaseholds on his marriage. Held, that as against the son's wife and children, the property was not liable to the testator's creditors. — Spackman v. Timhrell, 8 Sim. 260. XIII. — Limited Administration. By a decree a bill was dismissed as against A., one of the defendants, and he was to be paid his costs. A bill was afterwards filed, to set aside that decree, and A., being dead, letters of admi- nistration, limited to the purposes of the suit, were taken out, and the limited admhiistrator was made a party to the suit. Held, that A. was properly represented, for the purposes of the suit, by virtue of those letters of administration. — Davis V. Chanter, 15 Sim. 300. _A. devised his real and personal estate, charged with the payment of his debts, to B., whom he appointed his executor, and B. devised them to C, whom he appointed his executor, upon trust, for the payment of his own and A.'s debts. After the death of A. and B., a bill was filed on behalf of the creditors of A., against G. and D., charg- ing that, by collusion between C. and D., the latter had fraudulently obtained large sums of money arising from the real and personal estate of A., and praying that the transactions between C. and D. might be set aside, and for the due ad- ministration of A.'s estate. There were also some charges of misapplication of A.'s assets by B., and the bill prayed that B.'s estate might be charged with the losses occasioned thereby. To this bill (D. having refused probate of B.'s will,) a person was made a defendant who had obtained a grant of letters of administration of B.'s estate, authorizing him to attend, supply, substantiate, and confirm the proceedings which had been al- ready had, or which might be had in the suit, until a final decree should be had. Held, that B.'s estate was suificiently represented in the suit by this administrator. — Ellice v. Goodson, 2 Coll. C. C. 4. By a decree the bill was dismissed as against A., one of the defendants, and he was to be paid his costs. A bin was afterwards filed to set aside that decree ; and A. being dead, letters of ad- ministration to him, limited to the purposes of the suit, were taken out, and the limited adminis- trator was made a party to the suit. Held, first, that A. was not properly represented in the suit, as it sought to deprive his estate of a benefit ; secondly, that the administrator could not re- linquish the costs of a former suit, for a limited administrator cannot renounce any benefit to which his intestate's estate is entitled. Semble, That the Ecclesiastical Court will not grant full letters of administration of an intestate's effects to any person, unless he is either a creditor of the intestate, or is interested in the estate under the Statutes of Distribution. — Davis v. Chanter, 14 Sim. 212. The administrator under a limited administra- tion, granted by the proper Ecclesiastical Court, represents the estate of the deceased, to the ex- tent of the authority conferred by the letters of administration, but if the administration granted be more limited than the purposes of the suit re- quire, and it is in the power of the plaintiif to obtain a more general administration, the court mav require him to do so. — Faulkner v. Daniel, 3 Hare, 207. A party, to whom letters of administration have been granted, as the attorney of the person en- titled to the grant, and for the use and benefit of such person, is liable to be sued in respect of the estate, by the parties beneficially interested in it, in the same way as if he had obtained letters of administration in his own right. — Chambers v. Bicknell, 2 Hare, 536. A bill was filed by a residuary legatee against A. and B., the administrators of the deceased's effects, for an account of the assets received by them. A. died without having appeared to the bill, and C. obtained letters of administration of his goods, limited for the purpose only to attend, supply, substantiate, and confirm the proceedings in the suit, until a final decree should be made and executed, and C. was brought before the court by a supplemental biU. Held, that owing to the limited nature of those letters of adminis- tration, an account of A.'s receipts could not be taken, but that a general administrator to A. must be brought before the court. — Clough v. Dixon, 10 Sim. 564. Pending a litigation in a Spanish court as to which of two testamentary papers of a deceased Spaniard ought to be established, the plaintiff, who was resident in Spain, was appointed by the Spanish court the judicial administrator of the deceased's goods, and the plaintiff, under the authority of that court, afterwards appointed the defendant to be his attorney, to recover and re- ceive £10,000, due to the deceased's estate from C. and Co., of London. The defendetnt, after liti- gation in the Prerogative Court of Canterbury, with one of the parties to the Spanish suit, ob- tained letters of administration to the deceased, to be granted to him, as the plaintiifs attorney, limited to receive the £10,000 until the plaintiff should obtain administration to the deceased. The defendant afterwards received the £10,000, Held, that he might safely pay it over to the plain- tiff, although he had not obtained administration to thedeceased. — De la Viescav. Lubbock, lOSim.629. XIV. — Ad Litem. The grant of letters of administration, ad litem, makes the grantee complete representative of the estate, to the extent of the authority which the letters purport to confer, and a decree obtained against such grantee is therefore binding upon any one who may afterwards take out general administration to the estate. — Davis v. Chanter, 2 Ph. 545. 158 Admin. Bond. EXECUTORS AND ADMINISTRATORS. Admin. Suit. The court will not decree a general account and administration of assets, in a suit in which the deceased is represented by an administrator ad litem merely. — Vroftv. WatertoUf 13 Sim. 653, XV.— De Son Tout. The widow of the testator employed A. to col- lect some of the debts due to the testator's estate, which A. accordingly collected and paid over to the widow, believing that she was tiie adminis- tratrix. The widow subsequently died without having obtained letters of administration. Held, that A., having received monies which he knew to be part of the estate of the testator, and not having accounted for such monies to such legal personal representative of the testator, was liable to be sued as executor de son tort. — Sharland v. Mildon. — Sharland v. Loosemore, 5 Hare, 469. That the liability was not avoided by the sug- gestion that A. acted as the agent of the widow, inasmuch as the acts of the widow and A., in reference to the testator's estate were the acts of wrong doers, and the law does not recognize the relation of principal and agent as existing amongst wrong doers. — Id. That A. was liable, as executor de son tort, to account to a party interested in the testator's es- tate in suit for that purpose, without any charge of collusion between such executor de son tort and the legal personal representative. — Id. XVI. — ^BONA NOTABILIA. A. died intestate, having bona notabilia in two dioceses, and B. took out a prerogative adminis- tration to him. One of A.'s next of kin after- wards died intestate, and C. took out adminis- tration to him in the diocese of P. Held, on demurrer, that a bill by C. against B., relating to A.'s estate, was sustainable, as it did not appear that B. was not residing within the diocese of P. —Beadles v. Burch, 10 Sim. 332. XVn. — ^Devastavit. On the death of an intestate, administration to her estate was granted to her son and daughter. The daughter being then under coverture, the assets were, in May, 1831, paid into a banking- house, to the joint account of her husband and her brother, the administrator ; and the whole of the fund, with the exception of the share of one of the next of kin who was abroad, was soon afterwards paid away among the several parties entitled, by means of cheques, signed by the two persons in whose names the account stood. The husband of the administratrix died in December, 1831, and ten months afterwards, her brother and co-administrator drew out the balance, and, having applied it to his own use, absconded. Held, that the estate of the husband of the administratrix was answerable for the loss. — Clough v. Bond, 3 Myl. & Cr. 490. XVIII. — Administration Bond. Where no proceedings have been taken to put an administration bond in suit, a sum due from the administrator at his death to the estate of the intestate, is not a specialty debt. — Parker x. Young, 6 Beav. 261. In the administration of assets, a voluntary bond is to be preferred to interest upon debts, not by law carrying interest payable under the 46th order of August, 1841. — Garrard v. Lord Dinorben, 5 Hare, 213. Claim by a creditor in an administration suit, to prove the penalty of a bond as damages for the non-performance of a contract. The master re- ported the claim. On exceptions, the court gave the creditor liberty to bring an action on the bond. The action was brought, and the jury found a verdict for the plaintiif (the creditor), but with nominal damages. The court, upon this result, refused the creditor the costs of making the claim before the master and the costs of the action, but gave him the costs of the ex- ceptions. — Morgan v. Elstob, i Hare, 477. XIX. — Administration Suit. In an administration suit in the Court of Chan- cery in Jamaica, it ■was, referred to the master to inquire and report what was due and owing to the respective parties to the suit. The master made his report, and no exceptions were taken to it, but a petition was subsequently presented to the court by a party claiming a sum of money for advances to an infant, a party in the cause, and objecting to the iinding of the master, in not allowing for such advances. The court, without pronouncing an opinion on the merits of the peti- tion, simply referred it to the master to inquire whether any and what sum ought to be paid for the advances. Held, on appeal by the judicial Committee, that the order of the petition was irregular, and ought to be reversed with costs in the court below, but as the same relief might have been obtained on a re-hearing of the petition in the court below, no costs of the appeal here were allowed. — Thompson v. Cartwrighl, 3 Mo. 421. The rule which prevents a creditor from pro- ceeding with an action for the recovery of his debt after a decree in an administration suit, is applicable to the case of a creditor proceeding in a foreign court, and will render him liable to the costs of an application to restrain him after he has received due notice of the decree. — Graham v. Maxwell, 1 Mac. & Gor. 71. Where an entry in an administrator's account which had been settled, was shewn to be fraudu- lently made, the whole account was opened, not- withstanding the lapse of forty years since the death of the intestate, seventeen since the settle- ment of the account, and more than two since the discovery of the entry complained of. Special directions inserted in the decree for the protection of the accounting party. It is competent for the plaintiff, on appeal to the Lord Chancellor to withdraw &om the evidence any portion of the answer which may have been read in the court below. — Allfrey v. Allfrey, 1 Mac. & Gor. 87. In April, 1843, a creditor obtained a judgment by default, against an executrix. A decree in a creditor's suit was obtained in April, 1844, and on the 25th May following, the judgment was set aside, on the terms of the executrix pleading pfene administravit. On the 3rd of June, on the eve of the trial, the executrix moved for an injunction, which the court granted, to stay the execution only, and afterwards refused to permit the cre- ditor to proceed against the executrix for the purpose of charging her personally.— XjViy v. Barton, 8 Beav. 45. Admin. Suit. EXECUTORS AND ADMJNISTRATORS. Parties to Suit. 150 In a suit for administering the estate of one •who had been the personal representative of another, the party entitled to a share of the residuary estate of such other person carried in a claim for such share as a debt before the master, but the master disallowed the claims on the ground that such residuary share could not be allowed as a debt, unless it appeared that the clear residue, after payment of debts, &c., had been ascertained. Held, that in such a case, the claimant ought to have forthwith applied to the court for a direction to the master to receive the claim, or to be examined pro interesse suo, or for leave to file a bill for the administration of the estate in question, or take some such proceeding, and to stay the distribution of the estate of the representative in the meantime, and that he ought not to have delayed his claim until after the master's report, and the order on further directions. That where, after such delay, the claimant of the residuary share filed his bUI against the parties in the administration suit, the court, though it stayed the general distribution of the fund, would not stay the payment of the costs under the order on further directions. — Barker v. Sogers; Rogers v. Sogers, 7 Hare 19. A person, at his death, -was member of a bank- ing company, established under the 7th Geo. 4, c. 46, and subject to its liabilities. After the expiration of three years, a suit was instituted for the administration of his estate, and the com- mon decree was made for taking an account of his debts. Persons who were creditors of the banking company, at the testator's death, claimed before the master. Held, that their claims did not come within the scope of the decree ; secondly, that their claims were barred by the lapse of three years ; and thirdly, that the proper way of bringing their claims before the court was by petition and not by exceptions. — Barker V. Buttress, 7 Beav. 134. After an estate has been fully administered in this court, the executor will not be permitted, without the leave of the court, to prosecute an action to recover part of the testator's property from a party to tiie suit. — OldfieldY. Cobbett, 6 Beav. 515. Under a decree in an administration suit, cer- tain parties only were allowed to attend before the master. The master approved of some suits being instituted by the receiver, who was to be indemnified out of the estate. The funds appear- ing by affidavit to be "abundantly ample," the court ordered the institution of the suits, and the payment of costs out of the fund standing to the general credit of the cause upon service, on those only whom the master had authorized to attend him on the reference. — Lockhart v. Hardy, 6 Beav. 267. If a defendant dies, having appointed two or more executors, and all of them do not prove the will, it is sufficient for the plaintiff' to revive the suit against those who prove. — Strickland v. Strickland, 12 Sim. 463. A party entitled to, or taking by, assignment, a legacy, or a share of a residuary estate, may institute a suit for the administration of such estate, at any time before he complete adminis- tration of the assets, or before such legacy or residuary share is withdrawn from its position, as assets unadministered and constituted a trust fund applicable to the specific trusts of the will ; but, Semble, where the right is unnecessarily ex- ercised, the court may make the decree without costs. -Cafe v. Beni, 5 Haie, 24 A creditor recovered judgment and sued out a writ of ^eri facias thereupon, in the lifetime of his debtor, and placed the writ in the hands of the sheriff, on the day after the debtor died. A decree was afterwards made in the suit of an equitable mortgagee of certain parts of the real and personal estate of the debtor against his devisee and executor, for the sale of the mortgaged property ; and if the proceeds of such sale should be insufficient to satisfy the plaintifTs debt, then for an account and application of the general personal and real estate of the testator, in a due course of administration. After this decree the judgment creditor levied, under ids fieri facias, oa goods left by the debtor. The executor there- upon moved for an injunction to restrain execu- tion, which the court refused on two grounds :— first, because the decree for an account and ad- ministration of the general estate was not abso- lute, but was conditional on the mortgaged property, proving insufficient to satisfy the plain- tiff"s demand; and secondly, because the judg- ment creditor acquired a right to the goods of the debtor by virtue of the writ oi fieri facias from the teste of the writ, and therefore paramount to the right of the executor. — Ranken v. Harwood; Sanken v. Boulfon, 5 Hare, 215. An estate was administered under the court, and all claims being provided for, the devisee was let into possession. A further claim was afterwards made against the estate. Held, that the trustees of the will were not justified, of their own authority, in taking possession to provide for it. — Underwood V. Hatton, 5 Beav. 36, Where the court administers the assets, the trustees are protected against all claims on the testator's estate ; but legatees still remain liable, in respect of their beneficial interest. — Id. The 32nd order of August, 1841, enabling a plaintiff to proceed against one or more persons, severally liable, does not apply to the case of an administration suit, in which a complete decree cannot be made unless all the persons liable are parties. — Biggs v. Penn, 4 Hare, 469. In an administration suit, a party interested in the residue by his answer, averred that, according to his information and belief, the suit was collu- sive, as between the plaintiffs and the executors and other parties ; there being no replication, the allegation was taken as proof of the fact ; and it was held that the fact was no objection to the making of the decree. — Humble v. Shore, 3 Hare, 119. XX. — Parties to Suit. Testator devised all his real estate to his widow. Held, (overruling Brovm v. Weatherby, 12 Sim. 6,) that his heir was not a necessary party to a suit to administer his real estates, under 3 & 4 Will. 4, c. 104. — Bridges v. Hinxman, 16 Sim. 71. Persons who claim specific portions of pro- perty, in the possession of another at the time of his death, are not necessary parties to a suit for administration of the estate of the deceased per- son. A submission by the defendant " to the judgment of the court, whether " certain per- sons " ought to be made parties to the suit," may be properly set down as an objection for want of parties, under the 39th order of August, 1841. — Barker v. Rogers ; Sogers v. Sogers, 7 Hare, 19. After an estate has been fully administered in this court, the executor will not be permitted. 160 Costs. EXECUTORS 'AND ADMINISTRATORS. Assets. without the leave of the court, to prosecute an action to recover part of the testator's property from a party to the suit. — Oldfield v. Cohbett, 6 Beav. 616. A. purchased a leasehold of B., and paid the purchase-money ; but no conveyance was exe- cuted. A. bequeathed it to B. for life, with re- mainder over. A.'s executor filed a bill against B. alone for a conveyance of the property, upon the trusts of the will, not, however, seeking to recover it as assets, for the purposes of the exe- cutorship. Held, that the other cestui que trusts ■were necessary parties, and, Semble, that such a suit might be maintained. — Josling v. Sarr, 3 Beav. 494. Bill by a lessor against an equitable mortgagee of the lease, and a third party, to whom letters of administration to the deceased lessee limited to attend, supply, substantiate, and confirm the proceedings in the suit, or in any other suits con- cerning the premises, until a final decree should be made and fully completed, praying that the depository might be decreed to take an assign- ment of the lease. Semble : That the letters of administration did not give the third party any interest in the term or in any of the assets of the deceased ; and, con- sequently, that the suit was defective in respect to parties. — Moores v. Choat, 8 Sim. 508. XXI.— Costs. Mere neglect of duty in an executor — as, for instance, the omission to invest balances, pua-- suant to a direction in the will — if unaccom- panied by fraud, is not such misconduct as to disentitle him to the general costs of a suit for the administration of the estate ; although it may suliject him to so much of the costs of the suit as was occasioned by such neglect. — Heighington v. Grant, 1 Phill. 600. The representative of a defaulting executor, fairly accounting, is entitled to deduct his costs of suit out of the assets, though they may be in- sufficient to repair the breach of trust. — Baldenby T. Spofforih, 9 Beav. 195. When a legatee is admittedly entitled to a cer- tain fund under a wiU, but claims more than his title to is admitted, and threatens a suit for payment, the executors are entitled to retain, to meet the costs of the suit, the fund to which the legatee's title is admitted. — Ridge v. Newton, 1 Con. & L. 381. A married woman, being entitled to a share of a residue for her life, with remainder to her chil- dren, who were infants, a bill was filed by her and her husband, and their children, by their father, as their friend, against the executor and the co-residuary legatees, for the administration and distribution of the testator's estate. When the executor put in his answer a balance was due from him, and he paid it into court. Afterwards he paid the whole of testator's debts remaining unsatisfied, some of them before, and the rest after, the usual decree ; whereby a balance greater than the fund in court became due to hira ; and the master so found. After the report had been absolutely confirmed the husband died ; and his widow having declined to take any step towards the further prosecution of the suit, the executor filed a supplemental bill, praying to have the fund in court, exempt from all costs, paid to him, in part of the balance found due by the master. The court ordered the executor's costs of both suits, as between solicitor and client, to be first paid out of the fund ; then the costs of the defendants, the co-residuary legatees, of both suits ; and, lastly, the costs of the widow and children of the supplemental suit, but not of the original saiX.— Jackson v. Woolley, 12 Sim. 12. A party was unable to obtain payment of his legacy, and his portion of the residue without suit. The case being clear, and the remaining portion of the residue having been paid by the executors, he was charged with costs. — Curtis v. Robinson, 8 Beav. 242. Executors not allowed the costs of an action which had been successfully brought against them by a surgeon for medicines and medical attendance furnished to the testator. — Chambers v. Smith, 2 Coll. C. C. 742. Executors of trustees decreed to pay the costs of a suit rendered necessary by their having re- fused to pay over the trust fund on reasonable evidence of a person's death, but, inasmuch as the trustees had been guilty of a breach of trust in relation of the fund, such costs were decreed to be paid out of the assets of the trustees, and not personally by the executors, — Lyse v. King- don, 1 Coll. C. C. 184. , A residuary estate was divisible amongst several persons. An account was made up, and the adults received their shares. The infants filed a hill for an account against the executors and the other residuary legatees. The latter, being satisfied, deprecated the proceedings. The accounts turned out to be substantially correct. Held, that the costs were payable out of the plaintiff's share alone. — Mackenzie v. Taylor, 7 Beav. 467. An executor in a suit for the arrears of an an- nuity under a will, disputing the title of the plaintiff to the annuity as a question of law, but admitting assets sufficient to pay funeral and tes- tamentary expenses and legacies, may be decreed to pay the costs of the suit, in addition to the arrears, and is not entitled to a decree for an ac- count of the assets prior to any decree being made for costs. — Roch v. Callen, 6 Hare, 501. Executors, against whom an enquu-y has been directed, as to what part of the testator's assets might, but for their wilful default, have been got in, and who have been guilty of some acts of negligence, may, nevertheless, be entitled to their costs of an administration suit brought against them.— Bailey \. Gould, 4 Y. & C. 221. An executor, having been ordered to pay money into court, is not thereby deprived of his lien on the fund for his costs, — Blenkinsop v. Foster, 3 Y. 8: C. 207. XXII.— Assets. 1. Administration of 160 2. Admission of 164 3. Marshalling Ifil XXn. 1. Administration of. The persons named as trustees and executors in the will of a domiciled Scotchman, having de- clined to act, his next of kin obtained letters of administration of his personal estate in England from the proper Ecclesiastical Court there, and afterwards consented to the appointment by the Court of Session in Scotland, of other persons as Assets. EXECUTORS AND ADMIJ^ISTRATORS. Assets. 161 trustees and executors, in place of those named in the will, with all the powers that had been thereby given to them. These trustees, so appointed, raised an action in the Court of Session against the administratrix, calling on her to transfer to them the personal estate possessed by her under the administration, and offering her a full release from liability. Held, by the lords, (reversing the decree of the Court of Session), that the personal estate in England must be administered there by the administratrix, by virtue of the letters of ad- ministration. — Preston (Lady J v. Melville ( Vis- count), 8 Clk. & Fin. 1. The law of the domicile of a deceased person governs the succession to his personal estate wherever situate, but the estate itself must be administered in the country in which possession is taken of it under lawful authority. — Id. The courts in Scotland have no power to ap- point persons to administer property in England, that power being exclusively vested in the En- glish ecclesiastical courts, and of that the Scotch courts are bound to take notice. — Id. A party beneficially entitled to one-fourth of a fund belonging to the estate of a testator who had been dead 150 years, having obtained letters of administration de bonis non to the testator, filed a bill for an account and payment of the whole fund. It appearing that no part of the fund in question was required for the payment of the testator's debts, but that the beneficial in - terest in the other three-fourths had passed under the residuary bequest in his will, and had belonged successively to the estates of several persons who were named in the proceedings, but who were not represented on the record, the court ordered one-fourth only to be paid to the plaintiff, and the other three-fourths to be paid into court, with liberty to any party interested to apply, giving notice to the Attorney General. — Loy V. Duckett, 1 Cr. & Ph. 305. A testator directed his debts to be paid out of his personal estate, and in a subsequent clause, out of a mixed fund composed of realty and per- sonalty. Held, onthe context, that the 1 atter direc- tion prevailed. — Hopkinson-v. Ellis, 10 Beav. 169. Specific legacies, and devised real estates, must contribute rateably to the payment of specialty debts. — Cornewall v. Cornewall, 12 Sim. 298 ; overruled, Gervis v. Gervis, 14 Sim. 654, A., the executor of B., dealt with canal shares (which had belonged to B.), as his own property, and ultimately bequeathed them specifically to C, and he gave certain other chattels which always had been his own property, to C, and died possessed of but very little other property, leaving some of B.'s debts unpaid, and a balance due from him in respect of his receipts and payments on account of B.'s estate. At his death the canal shares remained standing in B.'s name. Held, that those shares were not exclusively applicable to pay B.'s unsatisfied debts, but that A.'s general personal estate must be applied first, and that C. and D. must contribute to make up the defi- ciency in proportion to the value of the articles bequeathed to them respectively. — Ibbetson v. Ibbeison, 13 Sim. 544. A testator bequeathed specific chattels, charged with the payment of a pecuniary legacy, and of all the testator's just debts, and funeral and tes- tamentary expenses, and he bequeathed other specific and pecuniary legacies, but made no residuary bequest. Held, that, notwithstanding the charge, the general undisposed of residue was first applicable. — IIewettY.Snare,lJ}aG[. &S. 333. A testator devised his real estates to trustees, in trust for sale, and out of the proceeds and out of the rents till sale, to pay his debts and the trustees' costs, charges, and expenses, and then upon trust, to pay three legacies of £600 each ; and, as to aU his personal estate and effects, the testator gave the same to T. 11., his executors, administrators, and assigns. Held, first, that the will did not givJ3 to T. K., nor dispose of the sur- plus of the beneficial interest in the produce of the testator's real estate, after paying the charges which ought to be considered as imposed thereon, and that such surplus belonged to the heir-at-law. Held, secondly, that a3 between the heir and T. B., the j)ersonal estate was the fund first ap- plicable to the payment of the testator's debts. Semble, that the 3 & 4 Will. 4, c. 104. ought to have some influence in favour of the exoneration of the personal estate. It was conceded, arguendo, that funeral expenses and costs of probate were not included in the costs, charges, and expensesofa tes- tator's trustees. — Collis v. Robins, 1 De G. & S. 131. Where a testator's effects are insufficient to satisfy an annuity, bequeathed by the will, and the pecuniary legacies. Held, that an annuity ought to be valued, and that the annuitant was entitled at once to the amount of the valuation, subject to an abatement in proportion to the abatement of the pecuniary legacies, and that although the annuitant died before the payment of the annuity in full would have equalled the abated amount of the valuation, the other lega- tees would have no claim to the surplus of that amoiuit. In a suit, instituted by a re^iiduary legatee, the assets proved insufficient for the payment of the expenses and the general legacies. Held, that the plaintiff was not entitled to his costs, as between solicitor and client, except so far as the general estate had been increased by the proceeding. The costs incurred by a legatee wlio has instituted an administration suit, in attending before the master, by counsel, in support of his state of facts. Held, not to be within the 120th order of May, 1845, as incurred upon a question relating to title. — Wrottghton y . Colquhoun, 1 De G. & S. 357. Where a testator bequeathed to his widow, two annuities, one payable to her so long as she should continue his widow, provided she should not per- manently quit England before her daughter's marriage, and the other payable to her generally for life, and the assets were insufiicient to pay the annuities and legacies in full ; the coui-t ordered the annuities to be valued, and to abiite proportionally with the legacies, and directed the amount of the apportionment in respect of the former of the annuities to be laid out in the pur- chase of a government annuity, and the amount of the apportionment of the latter of the annuities to be paid out to the annuitants. — Carr v. Inglebv, 1 De G. & S. 362. Form of decree where an annuity abates by reason of a deficiency of assets. Amount of abated valuation ordered to be paid to rei)rebcn- tatives of deceased annuitants. — Long v. Hughes, 1 De G. & S. 364. The circumstance that a fund in which a party takes a life interest, under a will, is transferred by the executor to the trustees of that fund, ap- pointed by the will, is not necessarily and con- clusively a severance of the fund from the bulk of the estate, unless the executor has, by such transfer, done all that is incumbent upon him to do in the administration of the fund. — Penning- ton V. Buckley, 6 Hare, 451, 162 Assets. EXECUTORS AND ADMINISTRATORS. Assets. Upon a transfer to trustees of a fund, bequeathed to them, upon trust, to pay the interest to a tenant for life, without any bequest of the corpus, or with a iDequest thereof of doubtful validity, and which, upon construction, might fail, so that the corpus would ultimately become part of the resi- duary estate, the trustees of such fund are not, ipso facto, trustees for the residuary legatees or the next of kin, but the corpus of the fund must be regarded as assets of the testator's estate un- adraiuistered ultra the life estate. — Id. The circumstance that the residue of the estate (omitting the fund so vested in trustees for the benefit of the tenant for life,) has been adminis- tered in equity, does not afifect the principle, nor is it less applicable, because, from the time which lias elapsed since the death of the testator, the executor is not a necessary party in the adminis- tration of the particular fund, and has not been made a party to the suit. — Id. The admission of an executor, by his answer in a creditor's suit, that he had paid certain legacies bequeathed by the testator, is not an admission of assets, entitling the plaintiff to a decree against the executor for payment of his debt without taking the account, when the bill does not speci- fically charge the defendant with having made himself personally liable, but prays that an ac- count may be taken, and the estate administered in a due course of administration. — Savage v. Lane, 6 Hare, 32. Where a testator in his life-time conveyed to trustees the mines and minerals under certain lands, upon trust for himself (the testator,) for life, and, after his death, upon trust for sale, and out of the proceeds, first, to pay all his debts, so as to discharge his real and personal estate there- from ; secondly, to apply £3,000 for the purposes of his will ; and lastly, to divide the surplus amongst certain persons therein named, the per- sons to whom the surplus is thus given, are proper parties to a creditor's suit, seeking to follow the real as well as the personal estate of the testator, but the court may, in its discretion, make a decree for administration in their absence. — Id. Notwithstanding West India estates are made legal assets by 5 Geo. 2, c. 7. s. i, they may be devised so as to make them equitable assets. — Charlton v. Wright, 12 Sim. 274. Testator gave all his real leasehold and per- sonal property, to trustees upon the trusts after- mentioned ; and to effect those trusts, he directed them to sell all his property, in order to form a fund to pay his debts and legacies, and then to dispose of the residue as after directed. The tes- tator next gave several legacies, and then gave the residue of his property remaining in the hands of his trustees, to trustees for a charity. The Vice Chancellor held, that the leaseholdand other personal property were alone liable to the payment of the debts and legacies ; but, the Lord Chancellor, on appeal, differed from His Honour, and held, that the debts and legacies were payable out of the mixed fund, composed of the produce of the real as well as the leasehold and other personal estates, in proportion to the relative values of those three estates. — Att. Gen. V. Southgate, 12 Sim. 77. In the administration of assets in a court of equity, a debt for arrears of rent has priority over simple contract debts ; but an executor or ad- ministrator will not be personally responsible for payment of simple contract debts in priority to a debt for arrears of rent, of which ho has no no- tice.— CTum^/j V. French, 2 Coll. C. C. 277. A testator having made a particular devise of all his real estates, and having bequeathed several specific legacies, dies indebted by specialty and simple contract. His personal estate, not specifically bequeathed, is more than sufficient to pay his simple contract debts, but not sufficient to pay his specialty debts. Held, that the amount necessary to complete the pay- ment of the specialty debts, must be contributed rateably by the specific legatees and devisees. — Tombs V. Roch, 2 Coll. C. C. 490. A trader devised his real estate to a person whom he also appointed his executor upon trust for sale, and he, by his will, declared that the monies arising from such sale, should be deemed part of his personal estate ; he then directed that his personal estate, which should be remaining after payment of his debts, should be collected, and the convertible part of it converted into money ; and that all the monies arising from the said real and personal estates, should be invested in the funds, or on real securities. Held, that the real estates were equitable assets for the pay- ment of the testator's debts. — Shakles v. Richard- son, 2 CoU. C. C. 31. In order to obtain a decree for the sale of a testator's real estate for payment of his debts under the Stat. 3 & 4 Will. 4, c. 104, it is not necessary that the bill should be filed by a credi- tor. — Dinning v. Henderson, 2 Coll. C. C. 330. In a suit by a simple contract creditor whose debt was secui'ed by a deposit of deeds, by way of equitable mortgage against the executors and devisees of the debtor, the mortgaged premises were sold, and were not sufiicient to pay the plaintiff's debt. The general assets of the testa- tor w^re insufficient to pay his debts and the costs of suit. The parties beneficially entitled under the devise by their answer disclaimed, but the bill was not dismissed against them. Held, that the plaintiff, as equitable mortgagee, was en- titled to the proceeds of the sale of the mortgaged premises, and the executors of the testator were entitled to retain in full out of the general assets, the debts owing to them by the testator, and that the residue of the assets should be applied in the following order: — in payment, first, of the cost of the executors, as between solicitor and client j secondly, of the costs of the plaintiff (including those of the purchaser), which the plaintiff was ordered to pay ; thirdly, of the costs of the de- fendants beneficially entitled under the devise; and, fourthly, of the debts remaining due to the plaintiff and other creditors. — Tipping v. Power, 1 Hare, 405. A bill was filed by a creditor, claiming, in respect of an admitted breach of trust against B , and the representatives of S. deceased, and it prayed that the accounts might be taken, and the real estate of S. sold and applied in paying the amount due to the plaintifi', and the other debts. A sum of money was paid into court, in this suit, and a decree was made against the assets of S. only, and accounts and enquiries were directed. A creditor's suit was subsequently instituted against the representatives of S., and the common decree made. The plaintiff, in the first suit, claimed the fund in coui't in priority of the credi- tors in the second. Held, however, that after payment of the costs of the first suit, it ought_ to be applied in a due coarse of administration towards payment of all the creditors of S. — Smith V. Birch, 3 Beav. ] 0. In an administration suit, the court authorized the legal personal representative to carry on Assets. EXECUTORS AND ADMINISTRATORS. 163 newspapers, which formed part of the assets, and a stationer for that purpose furnished paper on credit. Held, that he was entitled to be paid out of the fund in court, forming part of the testator's estate, though svich estate was insufficient to pay the testator s debts. — Tinkler v. Hitidmarsh, 2 Beav. 348. Testator by his will gives the rents of his real property to his wife for life, and bequeaths the buUv of his personal property to her absolutely, constituting her sole executrix, and directs that certain trustees shall, as soon as conveniently may be, after his decease, convert all the con- vertible residue of his personal estate into money, and invest it in government or real securities, and pay the dividends to his wife for life. The ultimate trusts both of the real and residuary personal property, are in favour of persons who are not in esse, or not ascertained. Twenty years elapse, during which the trustees leave the widow in possession and management of the whole property, and then the surviving trustee files a bill against her for an account. It appears in the suit, that she has paid all the testator's debts, to an amount exceeding the amount of personalty not specifically bequeathed, but that she has left some of the assets outstanding, and claims to be a purchaser of those assets in part satisfaction of the monies which she has over- paid. Held, that whatever might be her right at law, as a purchaser of those assets, upon a plea of plene administravit, her right as a purchaser in equity is not absolute, but subject to the rules of equitable administration, and consequently, that the bill being filed on reasonable grounds, the sur- viving trustee is entitled to the costs of the suit, but. Held, under the circumstances of the case, that he is not entitled to costs, as between solicitor and client. — Hearn v. Wells, 1 Coll. C. C. 323. Semble, that a mortgage for years, of which a testator has been in possession for upwards of twenty years without receiving interest, and without any claim being made in respect of the equity of redemption ought, in the administration of assets, to be considered as leasehold.^/d. By the marriage settlement of W., an annuity of £800, Jamaica currency, was settled on his wife for life, and was subsequently charged on an estate of W. in that island. W. afterwards made his will, whereby he charged his estates in a cer- tain manner, with the payment of his debts, and then, after reciting the settlement, and that he was desirous of making a large provision for his wife, he gave her a renteharge of £2,000 per annum for life, wliich he charged on the R. estate, and which was to be in lieu of all dower and thirds ; upon the death of W. the ^vidow released her title, if any, to dower, and elected to take the £2,000 annuity, and payments were made to her on accoim't of it by the executors, W., however, being at his death largely indebted to the firm of AV. and Co., of which he was a partner, that debt was paid by his executors, by means of a mortgage of the R. estate, and by the terms of the mortgage deed, the moitgagee was to hold the estate subject to the several annuities given by the will of W., but fireed and discharged of and from the debts and legacies charged upon the premises by the will, and of and from all other chargesand incumbrances whatsoever. The a.s.'^cts of W. turned out to be insufficient for pay- ment of all his debts. Held, that a portion of the payments made by the executors to the widow must be ascribed to the annuity of £800 Jamaica currency, and were to that extent good, but that the residue of such payments were not good against the creditors of W. Held, also, there being certain arrears of the annuity of £2,000, and a fund in court arising from the produce of the R. estate, that, as to that part of the fund which was not aijplic able to the portion of the annuity representing the annuity of £800 cur- rency, the creditors of W. had priority over the mortgagee as well as over the executors of the widow. — Lyon v. Colvile, 1 Coll. C. C. 449. The owner in fee of two freehold estates largely indebted by specialty and simple contract, devises one to A. B., in fee, charged with the payment of one-fifth, but only one-fifth of all his debts, and devised the other to C. D., in fee, charged with the payment of the other four-fifths, but no further part of those debts. These devises are not within the proviso of the statute of fraudulent devises.— /rf. The compensation fund for slaves in Jamaica is legal assets for payment of creditors. — Id. A receiver has been appointed of the testator's estate, part of which was in India, and it having become necessary to have it remitted. Held, that the proper course was to refer it to the master, to inquire what would be the most ad- vantageous course for receiving and remitting it to England. — Keys v. Keys, 1 Beav. 425. Executors, before suit commenced, paid some of the testator's creditors a certain proportion of their debts. Held, that they were not entitled to any further payment until the other creditors had been paid proportionably. — Wilson -v. Paul, 8 Sim. 63. A. who was a trader at his death, and indebted by specialty and simple contract, devipcd freehold estates to his son in fee. The son, on his mar- riage, settled the estates on his wife and children, and afterwards died. Held, that 3 & 4 AV. & M. c. 14, and the 47 Geo. 3, c. 74, s. 2, do not charge the real assets descended or devised, with the ancestors' debts, but make the heir or devisee personally liable to the value of the assets, and, therefore, that the son's widow and children were entitled to hold the estates discharged from the debts of the father. — Spaokman v. Timbrel!, 8 Sim. 253. Executors will not be allowed payments to creditors made after a decree for administering the debtor's estate. — Michelson v. Piper, 8 Sim. 64. AVhere an executor has paid a creditor part of his debt, the court will not malte any further pay- ment to him out of either the legal or the equit- able assets of the debtor, until all the other debts are paid proportionately. — Id. A testator, after commencing his will with words amounting to a charge of his real estate, with the payment of his debts, devised an advow- son to trustees, upon trust, to present his younger son to the living when vacant, and subject thereto in trust to sell and apply the produce of the sale for the special purposes therein men- tioned, and ho devised his residuary real estate upon certain trusts to other trustees, and ap- pointed three executors, (who proved his will) one of whom was his younger son, and another one of the trustees of the advowson. The p: r- sonal estate being insufficient for the payment of his debts, the trustees of the advowson, one of whom wasan executor, at the instance of tlic other executors, contracted to sell the advowson before any vacancy had occurred in the living. In a suit for specific performance by the trustees of the advowson and executors against the pur- 164 Assets. EXECUTORS AND ADMINISTRATORS. Marshalling. chaser, it was held, that the charge being in effect a devise of the real estate in trust for the pay- ment of debts, a good title could be made by the plaintiffs withoat the institution of a suit to as- certain the deficiency of the personal estate, and that the purchaser was not bound either to inquire whether other sufficient property ought first to be applied in payment of debts, or to see to the application of the purchase-money. — Shaw V. Borrer, 1 Keen, 559. _ On appeal, an inquiry was directed in the par- ticular- case, whether the plaintiffs were in fact some of the next of kin, and, if so, whether they had notice of the suit in which the fund was dis- tributed. — Sawyer v. Brichmore, 1 Keen, 825. Though the distribution of an intestate's estate, under a decree of the court, among persons found to be the next of kin, does not conclude the rights of persons who may have an equal or paramount title, yet the court will not assist other next of kin, who, with full notice of the proceedings in the suit wherein the fund was dis- tributed, have neglected to prosecute their claims. —Id. 1 Keen, 391. SXII, 2. Admission of. Decree for payment of legacies made against an executor, without reference to the state of the assets, upon the ground of his having, by his acts and ad- missions, rendered himself personally liable for the ^•dyTaent.— Barnard v. Pumfrett^ 5 Myl, & Cr. 6.3. After the death of the testator, his executrix, being sued by a creditor, entered into an arrange- ment with him, pursuant to which she gave a consent for judgment at law. The demand, which had been ascertained by the report of the master in an equity suit, was transferred to A., who paid off the creditor and the executrix, in order to secure the debt, assigned her jointure to A., upon trust, to pay himself the interest on the debt, and to pay the premiums on a policy of assurance effected in his name on the life of the executrix ; and she covenanted that whichever of her sons (who were entitled to the real estate) should first come of age, should execute a mortgage of the real estate to A., for the amount of his demand. The personal assets of the testator never were sufficient for the payment of his debts. The policy was suffered to expire, and the mortgage was not executed. Upon a suit instituted by A., to raise the demand out of the real estate of the testator ; Held, that the . effect of these transac- tions was not to discharge the real estate from the payment of A.'s demand, and that, under the circumstances, the consent for judgment and report, was not an admission of assets by the exe- cutrix. — Pitrcell V. Blenerhassett, 3 Jon. & L. 24, Upon an application to beielieved from a decree, containing an admission of assets. Held, that whether fraud or mistake had been committed, yet that, under the circumstances of the case, justice could not be done upon a mere re-hearing of the cause. — Davenport v. Stafford, 8 Beav. 503. An executor, charged with the receipt of rents, stated, in the schedule to his examination, that he had received in respect of rents, after deduc- tions to a certain amount for bills due from the testator to the tenants, so much. The master charged the executor with the whole amount, in- cluding the alleged deduction. Held, on excep- tions, that, although the executor had, by this form of admission, charged himself with the ag- gregate sum, yet as the whole e,tatement must be read, he had also discharged himseii prima faciw, by the evidence which it contained of the repay- ment to the tenants ; which repayment it was open to the other parties to impeach. — Irye v. Kenny, i Hare, 452. Executors having for about three years paid interest on the plaintiff's legacies, the court, at the first hearing, directed accounts, with a view of determining from the state of the assets the liability of the executors to pay the legacies. The court, on further directions, refused to hold, that, by payment of interest the executors had admitted assets, such a conclusion being wholly at variance with all that had been previously done in the suit. — Rowly v. Adams, 7 Beav. 395. Executors paid some interest on a legacy, and about nine years after the testator's death, passed their accounts at a legacy duty office, shewing a considerable residue. Held, that the legatee was entitled to an immediate decree for the payment of the legacy, without first taking the accounts of the testator's estate. — Whittle v. Henning, 2 Beav. 396. XXIT, 3. MarshnlUng. Where there are two creditors who have taken securities for their respective debts, and the se- curity of the first creditor ranges over two funds, while the security of the second is confined to one of those funds, the court will marshal the assets, so as to throw the person who has two funds liable to his demand on that which is not liable to the debt of the second creditor. The bankruptcy of the debtor will not prevent the application of the general rule, for the assignee stands in the position of the bankrupt. — Baldwin V. Belcher ; In re Cornwall, 3 Dru. & W. 173. Under a decree to account in a judgment cre- ditor's suit, the master found that the assets consisted of real estates and of a certain mortgage, which was irrecoverable. Under the final decree the real estates were sold, and the produce was distributed amongst the judgment creditors, ac- cording to theirpriorities.the fund being sufficient to pay the three first judgments and a portion of the fourth, leaving several unpaid. The sum due on the mortgage having been subsequently realized, Held, that the sum should be dis- tributed rateable amongst the unpaid judgment creditors. — Averall v. Wade, El. & K. 325. Specialty creditors having exhausted their debtor's personal estate, a decree was made for marshalling his assets. A considerable time elapsed before the real estates could be made available for the purpose of the decree. HelJ, that the simple contract creditors were not en- titled to have the interest, which would have accrued on the specialty debts if they had re- mained unsatisfied, as well as the amount of the personal estate, raised out of the real estates, and applied towards satisfaction of their debts. — Cradock v. Piper, 15 Sim. 301. The testator, by his will, bequeathed an an- nuity to his wife for her life, and made it a primary charge, in preference to all other legacies, on a leasehold estate, which was (together with certain policies of insurance on the life of the testator,) subject to two mortgages, and he directed that if the rents and profits of such leasehold estate should be insufficient to pay the wife's annuity, then the same should be paid out of his [other] personal estate. The mortgages were paid off by the executors, out of the produce of the policies and the general personal estate. Assets. EXECUTORS AND ADMINISTRATORS. Marshallimj. 165 Held, that the wife's annuity, so far as it fell upon the personal estate, other than the leasehold estate specifically charged, was not entitled to priority over the other legacies. — Johnson v. Child, 4 Hare, 87. That the mortgage debts, to which the lease- hold estate specifically charged with the annuity was subject, should be apportioned rateably upon the leasehold estate, and the policies of insurance according to their respective rates and amount ; and that the legatees (other than the wife,) were entitled to have the assets marshalled, and to stand in the place of the mortgagees of the lease- hold estate, to the extent of that part of tlie mortgage debts which should be apportioned thereupon. — Id. R. being indebted to A. by specialty and simple contract, and being sued in equity for the amount, executed a deed in 1816, whereby he purported to convey certain real estates to his daughter W. and her heirs. In 1817, A. obtained a decree against K. for payment of the money due to him, and thereupon issued a sequestration, and the sequestrat "rs entered into possession of the lands comprised in the deed of 1816, and so continued until the death of E,. in 1834. In 1826 W. sold and conveyed the lands to li., who had notice of the circumstances under which the deed of 1816 was executed. Afterwards, and after the passing of the 3 & 4 Will. 4, c. 104, 11. died. Tlie court were of opinion that the deed of 1816 was void, for actual fraud ; and Held, that K. died seised of the lands comprised in it, and that they were assets for the payment of his simple contract debts. — O'Connor v. Bernard, 2 Jon. 654. Under the 3 & 4 "Will. 4, c. 106, s. 3, an heir to whom lands are devised by his ancestor, takes tliem as devisee to all purposes ; and, therefore, the pecuniary legatees are not entitled to have the assets marshalled against him. — Strickland v. Strickland, 10 Sim. 374. A. agreed to purchase an estate, and died, leaving the greater part of the purchase money unpaid. The court, at the suit of a legatee under A.'s will, ordered his assets to be marshalled, on account of the vendor's lien for the unpaid pui-- chase money. — Sproule v. Prior, 8 Sim. 189. The court will not marshal assets, in favour of a charitable bequest, given out of a mixed fund, whether the bequest be particular or residuary. — Hobson V. Blackburn, 1 Keen, 273. DISTRIBUTION OF AN INTESTATE'S PERSONAL ESTATE, ACCORDING TO THE STATUTE OF 22 & 23 Car. H., c. 10, EXPLAINED BY 29 Car. H., c. 30. If an intestate dies, leavii\g A wife and child, or children. A wife only. No wife or child. A child, children, or representatives of them. Children by two wives. If no child, children, or representatives of them. A child and grandchild. An husband. A father, and brother, or sister. A mother, and brother, or sister. A wife, mother, three brothers, a sister, and ieces. A wife, mother, nephews and nieces. the A wife, brothers or sisters, and mother, \ A mother only, < A wife and mother. A brother or sister of the whole blood, and brother \ r sister of the half blood. ' ( His personal representatives shall take \ proportions following : One-third to the wife, the rest to the child or children ; and if the children are dead, then to their representatives (that is, their lineal de- scendants), except such child or children, not heirs at law, who had an estate by st ttlement of the intestate, in his life-time, equal to the other shares. Half to the wife, rest to the next of kin in equal degree to the intestate, or their legal repre- sentatives. i All to the next of kin and their legal repre- \ scntatives. All to him, her, or them. Equally to all. J All to the next of kin in equal degree to the \ intestate. I Half to the child, half to the grandchild, who \ takes by representation. The whole to him. The whole to the father. The whole to them equally. ( Half to the wife, residue to the mother, I brothers, sister, and nieces. ^ Two-fourths to the wife, one-fourth to the ■s mother, and the other fourth to the nephews t and nieces. ( Half to the wife, (under the Stat, of Car. II.) \ half to the brothers or sisters, and mother. ( The whole, (it being then out of the statute of I 2 Jao. n., 0. 17.)* Half to the wife, half to the mother. Equally to both. * By Statute Jac. II., c. 17, s. 7. If, after tlie death of the father, any of his children shall die intestate, without wife or children, in the life time of the mother, every brother and sister, and the representatives of them, shali have an equal sharo with the mother. 16f5 EXECUTORS AND ADMINISTRATORS. A posthumous brother or sister, and mother. Equally to both. A posthumous brother or sister, and brother or \ -p n + v i, sister born in the lifetime of the father. f -L^qually to both. A father's father, and mother's mother. Equally to both. Uncle or aunt's ddldren, and brother or sister's \ i? n * n grandchildren. S ^1"ally to all. A grandmother, uncle, or aunt. All to the grandmother. Tioo aunts, a nephew, and a niece. Equally to all. An unc,e and deceased uncle's child. All to the uncle. An uncle by the mother's side, and deceased uncle > a n *„ <.i,„ „„„i„ or aunt's child. \ ^^ ^° "^"^ '^'^'■^^• sistn"''^''" *^ " *''°'^"'' ""'^ " "'•^^'"'" *^ " ^"'-^ I Equally ^.r capita.^ A brother or sister's nephews or nieces. I '^^'^ whole, the nephews or nieces taking per \ stirpes'^, and not per capita. A nephew by a deceased brother, an I nephews Each an equal share, per capita, and not per and nieces by a deceased sister. stirpes. A brother and grandfather. The whole to the brother. daighter*'"''''' ^'''""^™"' """^ *"*^" "'' '"'"'''' } AU to the daughter.^ A brother and two aunts. All to the brother. A father and wife. Half to the father, half to the wife. t Per Caj>iia is where all the claimants claim in their own right, as in equil degree of kindred, and not jure repre- st'titationis, as if the next of Itin be the intestate's three brothers. A., B., and C. ; here his effects are divided into three equal portions, and distributed per capita, one to each. t When persons take by representation, it is called succession in stirpes ; as if A. dies, leaving three children, B. leaving' two, and C, the brother of A. and B., surviving ; then one-third to A.'s three children, one-third to B.'s two children and the remaining third to C, the surviving brother. ' § If the grandson's father survived the intestate, but died before distribution made, then his son becomes entitled in dihtribution with the sister's daughter, to a moietv, but not otherwise ; because the son becomes the representative of hia fatlier, it being a vested interest in him, but he must take out administration. If after the death of the intestate, his daughter marries, and dies before distribution made, her husband shall have the whole of the share to which he would have been entitled in right of his wife had she been living. But he must first take out administi'ation to his wife's effects. If A. was to die intestate, and the only issue he ever had were a son and a daughter, both of whom had married and died before him, leaving a wife and husband who had survived A., neither this wife or husband would have any part of A.'s personal estate, though the issue of his son and daughter, with the wife, (if such were living) would have the whole; it, therefore, must go to the next of kin. If A. dies intestate, without wife or child, having had only a brother and sister, both of whom had married and died before him, leaving a wife and husband, who survived A., neither this wife or husband would be entitled to any part of A.'s estate ; for, in this case, he would die without kindred, and his personal estate would vest in the crown ; and thus it would be in respect to the husband of A.'s mother, and the husband and wife of any one that were his next of kin, and had married and died before him. If a person be a subject of another country, and at his death had personal property in England, distribution is to be made according to the law of that country of which tire owner was a subject. DISTEIBUTION OF PERSONAL PROPERTY, ACCORDING TO THE CUSTOMS OP LONDON AND YORK. The fourth section of the Statute of Distributions prevents the Customs of the City of London and Province of York from being in any manner prejudiced by the Act ; and, though the restraint on dispositions by « ill made in those places is at an end, and the customs need no longer be observed by a testator, yet in case of an intestacy they remain still in force. EXECUTORS AND ADMINISTRATORS. 167 According to the Customs of London and York, if a Freeman of London, or an Inhabitant of York dies intestate, leaving more personal property than is sufficient to pay his debts and funeral expenses— The widow has a right to Then the property is divided into three equal parts If only a widow or only children If neither widow nor child If a widow and two children If widow and one child If only a widow If a child or children are left, and no widow Her apparel and the furniture of her bed- chamber. One part goes to the widow, another to the children, and the third to the administrator. I They take one moiety, and the other shall go ■j to the administrator. r All shall go to the administrator, who applied \ it to his own use until the statute of 1 James II., ■s c. 17, which enacts, th;it it shall be subject to f the statute' of distributions. f The property is divided into eighteen parts, of which the widow takes eight, six by the custom, < and two by the statute, and each of the children five parts, three by custom, aud two by the (^ statute. i The widow shaU have eight parts, as above, < and the child ten, six by custom, and four by the t statute. i The widow shall have three-fourths, two by •s the custom, and one by the statute, £md the other t quarter shall go by the statute to the next of kin. $ The child or children shall take the whole half J by the custom, and half by the statute. EXHIBIT. See Pr. Evidence. EXTENT. A. and B. carried on business in partnership ; they were also members of a firm which traded as C. and Co. A. and B., for the purpose of paying ofi' certain of their debts, assigned, in trust, to the other members of the firm of C. and Co., portions of their shares in that firm. The assignment, which was bmia fide, was regularly intimated, and it was duly entered on the books of the firm. An extent, at the suit of the crown, was afterwards issued against A. and B. Held, that the portions of shares thus assigned could not be seized under the extent. — Spears v. The Advocate General, 6 Clk. & Fin. 180. FAMILY ARRANGEMENT. FACTOR. See Pkincipal and Agent. FAMILY ARRANGEMENT. Deeds, in the nature of family arrangements, are exempt from the rules applicable to ether deeds ; the consideration for the former being partly value, and partly love and affection. — Persee v. Persee, 7 Clk. & Fin. 279. Circumstances to be taken into consideration in judging of the fairness of an arrangement between a father, tenant for life, and son, tenant in tail, for barring the entail. Where the main consideration, moving from the son, was an undertaking to pay the father's debts, even the circumstance of several of the most important items being left in blank was held insufficient to set the transaction aside as against the father, though the son was only just of age ; as a family arrangement of that description cannot be sup- posed to have depended upon any very exact calculation as to the amount of the debts. An agreement between a father, tenant for hfe, aud an eldest son, tenant in tail, for certain conside- rations, to bar the entail, and convey the estate to the son, was followed, within a fortnight, by the sale of the estate by the son, to the solicitor who had acted for both parties in the agreement. In a suit, after the death of the son, without issue, by the next remainder man in tail, who was also heir-at-law of the son, to set aside both transactions, and to have the estates re-settled to the former uses, the court was of opinion, upon the evidence, that both transactions were but parts of one scheme, continued by the solicitor, for his own benefit ; but being also of opinion, that, on the principle of family arrangements, the agreement between the father and the son was not, necessarily, an unfair one in itself, the court set aside the second only ; and, dismissing the biU as to the first, decreed the solicitor to convey the estate to the plaintiff in fee. On a bill being subsequently filed, by the father, against the plaintifi' in the former suit, com- plaining that suice he had got into possession of the estates, under that decree, he ha'l refused to perform the stipulations, in the father's favour, in the first agreement, and praying specific per- formance thereof, the Vice Chancellor, being of 168 FAMILY ARRANGEMENT. opinion, at the hearing, that the plaintiff had no equity for such relief, but that he had a right to be restored, as far as possible, to the condition in which he stood at the time of that agreement, gave him leave to insert, by amendment, an alternative prayer, for. relief of that kind; and, on the amended record, directed certain enquiries on that footing, conceiving that such decree was not inconsistent with that in the former suit. But on appeal by the plaintiff, the Lord Chan- cellor held the contrary ; and that, whether the present plaintiff was or was not entitled originally to enforce the first agreement, the present defen- dant, by taking a conveyance of the estate, under the former decree, had waived any equity he nright have had to resist such a claim ; and his lordship made a decree for specific performance ; at the same time disapproving of the order for amending the prayer which had not been appealed from. — Bellamy v. Sabine, 2 Phil. 425. The provision in the seventeenth section of the Marriage Act (4. Geo. 4, o. 76), does not apply to the case of a father who is beyond the seas, or imreasonably withholds his consent, but only to a case in which he is non compos mentis ExjJarte. —J. C. 3Myl. &Cr. 471. Bill by a son, tenant in tail in remainder, to set aside a lease executed to the defendant by the father in his lifetime, and the son within a few months after the son's attaining his full age, the estate having been opened on that occasion, and the uses of the recovery declared to be to such uses as the father and son should jointly appoint, and in default of appointment, to those to which the estate had formerly been settled. Dismissed, no case of undervalue, or undue influ- ence exercised by the fatlier over his son, the plaintiff, having been established. When a father and son are dealing with a third person, there is no rule which requires that the father and son should act by separate solicitors. — Cook v. Bur- thaell, 2Dru. & W. 166. R. W. being tenant for life, with remainder to liis first and other sons, in tail male, remainder to his daughters, in such shares as ho should appoint, and in default of appointment, share and share alike, if only one daughter, to her in fee. Previous to the marriage of his only daughter M. with G. P. W., articles were executed, which recited that M. was entitled to an estate in fee, expectant upon the death of her father without other issue, which it was agreed should be settled to her separate use, if she should ever become entitled thereto, and on her issue, and that in case M. should die in the lifetime of G. P. W., he should receive the rents for his life, it being the intention of the parties, that M., when and so soon as she should become entitled to the lands, should receive the rents for her separate use, and in case G. P. W. should survive M. with or without issue, he should receive the rents for his life as aforesaid, provided the said M. should ever become entitled thereto as aforesaid, but not otherwise ; and G. P. W. thereby cove- nanted by a formal deed to execute these limita- tions ivithin six months after the celebration of the marriage. R. W. survived M., but had no other issue on the death of R. W. ; G. P. W. catered, butdid not execute, any deed in perform- ance of his covenant. Held, that under the said articles, G. P. W. took an estate for life, although M. never became entitled to the posbession. .Held, that the breach of covenant committed by G. P. W, did not affect the estate for life so limited to him. — Wallace v. Wallace, 2 Dru. & W. 4,52. N, W. under the will of an ancestor, was en- titled to an estate in remainder, in Blackacre, expectant upon the decease of his uncle E. W., without male issue, and had also a remote interest in Whiteacre, expectant upon the same event, E. \V. was twice married, by his first wife he had issue, only two daughters, by his second, who was sister of his first wife, he had several issue, both sons and daughters ; under these circum- stances in 1817, N. W. threatened and attempted to institute proceedings of a civil character in the ecclesiastical court against E. W. and his second wife, for the purpose of annulling their marriage, and rendering their issue illegimate. A com- promise was proposed, and after much delibera- tion, carried into effect by articles of agreement. By these articles E. W. agreed to secure certain provisions for the female issue of N. W., and, in consideration thereof, N. W. covenanted not to impeach E. W.'s said second marriage, the' articles also contained a proviso, that in the event of the successful impeachment of E. W.'s mar- riage, by any person, all the agreements of the articles should be void. In 1838, El. W. died, and his marriage was never disturbed. On a bill filed by his executor and eldest son to set aside the deed of compromise of 1817. Held, that the arrangement was a fair family transaction, neither inconsistent with public policy nor the principles of this court, and the bill was dis- missed with costs. This court will endeavour to support arrangements by which family differ- ences (especially when those differences relate to questions of legitimacy) even where resting upon grounds which might not be considered satisfac- tory if the transaction had occurred between strangers.— J-resiJy v. Westby, 2 Dru. & W. 502. Testator gave all his property, both real and personal, to his wife for life, " and after the death of my wife, my nephew is to be considered as heir to all my property ; but I direct that, what- ever portion of my property may hereafter be possessed by him, shall be secured by my execu- tors for the benefit of his family." Held, taking the whole of the will together, that the testator, by the word " family," meant the children, but not the wife of his nephew ; and that the pro- perty ought to be settled on the nephew for fife, and on his children after his death. — Whiter. Briggs, 15 Sim. 300. The 204th general rule, regulating the court rate of interest, held not to apply to a charge created under a family settlement ; there having been a course of dealing for many years, which, with other circumstances, the court thought suffi- cient to enable it to imply a contract between the successive owners of the estate on which the money was charged, and the party beneficially entitled to charge. — Rultledgey. Ruttledge, 1 Dru. & Wal. 243. The testator bequeathed several legacies ; and, among others, to S. W. £14,000, "and to the latter gentleman's family £6,000." S. W. had six children, all living at the date of the testa- mentary instrument and at the death of the tes- tator, and no other issue. Held, that such six children were, as joint tenants, exclusively en- titled to the legacy of £6,000. — Wood v. Wood, 3 Hai-e, 65. A. and B., having an apparent title to copy- hold lands, as tenants in common, in fee, under the will of their father, entered into a parol agreement to make a partition of the devised Statute of. FINES AND RECOVERIES. Effect of. 169 land, and divided them accordingly ; A., the elder brother, taking somewhat the larger share ; a doubt being then entertained whether their father had a right to devise the lands. A. was, in fact, at the time of this agreement, tenant in tail, under the limitations of a surrender made by his grandfather ; and after A.'s dealh, without issue, B. having discovered his own title as tenant in tail, repudiated the agreement, and brought an action of ejectment to recover the whole estate On a bill, filed by the devisee of A., the court, upon the principle on which it supports family arrangements, decreed B. to do all necessary acts to bar the entail, and vest the parts of the lands allotted, under the agreement, to A. upon the trusts of A.'s yiiW.—Neale i. NeaU, 1 Keen, 672. FATHER AND SON. See Pamily Arrangement. PEES TO COUNSEL. See Pr. Counsel. PELONY. See Jurisdiction. — Forfeiture. PEME COVERT. See HusB. and Wife. FIERI FACIAS. See Pr. Writs of. FINES AND RECOVERIES. I. Statute of 167 II. Effect of 167 III. Protector of Settlement 168 IV. Fraud 168 I. — Statute of. Fines and recoveries abolished, and more simple modes of assurance substituted, 3 & 4 W. 4, c. 74 ; 4 & 5 W. 4, c. 92. Abolishing certain offices connected with fines and recoveries in England, 5 & 6 W. 4, c. 82. For better recording in Wales and Cheshire, 5 & 6 Vic, c. 32. A person being in prison for contempt, in not executing a deed, making a surrender, or levying a fine, according to decree, the court may, after two months, order a master to execute same. — 1 W. 4, c. 36, s: 15. Such acts of the master to have the same force and validity as if done by the party himself. — Id. Notice of execution to be given to the party. —Id. Contempt cleared, except as to costs. — Id. In 1770 the lands of X. were, by deed, con- voyed t? Y., his heirs and assigns, upon the trusts therein mentioned ; that is to say, to the owner thereof, G. T., for life ; remainder to n. T., his heirs and assigns. In 1771, upon the marriage of H. T. with L. N., he covenanted to convey the lands of X., amongst others, within six months after the celebration of the marriage, upon trust, that the same should go and be vested in the issue of the said H. T. by the said L. N. ; and that such issue should also be en- titled to a further sura of £1,000, to be charged on all the real and personal estates of the said H. T. not therein comprised, but in such shares and proportions as the said H. T. should, by deed or will, appoint ; and, in default thereof, as the said Ij. N., in case she survived H. T., should, by deed or will, appoint ; and failing such direction, in equal shares. Inl780, G. 1. died. In 1793, J. T. and L. N. levied fines of the lands of X., in which F. M. was demandant. In 1794, H. T. and the co-heirs of Y. levied fines against those lands, in which P. M. was also demandant. In Hilary Term, 1794, recoveries WL-re suffered of the same lands. P. M. being the tenant to the prcecipe, and H. T. and his eldest son and heir-at-law, R. T., who had attained his age of twenty-one years, wore both vouched. In April, 1794, a deed was executed between H. T., of the first part, P. M., of the second, and T. S., of the third part, whereby H. T. and P. M. sold and conveyed, in conside- ration of £1,000 the lands of X. to T. S., his heirs and assigns, for ever. Subsequent to tliis sale, R. T., the eldest son of H. T., died, having survived one of his brothers, another of the chil- dren of H. T. by L. N. In 1824, T. S., who had been in possession of the land of X., under the deed of 1794, died, leaving those lands to his son John, his heirs and assigns. In 1820, H. T., who survived L. N., died, without having executed his power of appointment, leaving M. N. T., his eldest surviving son, liis heir-at-law, and several younger children, issue of the said L. N. In 1837, M. N. T., and the other younger children of H. T. and L. N., filed their bill, praying an execution of the articles of 1771, as to the lands oi X., and seeking to set aside the sale so made to T. S. The fine was held to have no operation in equity to protect the purchaser. Held, also, that H. T. was a trustee for his children, and that the fine could not give to the purchaser a benefit which the father himself could not take. The statute of fines is not in pan materia with the Registry Acts ; for fines operate adversely against every one which is not so as to the Registry Acts. — Thompson v. Simpson, 1 Dru. & W. 459. II. — Effect of. D., being tenant for life in 1799, demised all the lands and premises of which he was so seised for life, to certain trustees, for a term of ninety- nine years, if he should so long live, upon trust, to pay D. an annuity of £10,000 per annum, and to apply the residue in payment of his creditors, who should come in and avail themselves of the benefit of that deed. In 1819, D. joined with ^^■ith his eldest son B., the tenant in tail, in open- ing the estates, and the recoveries having been accordingly suffered, a re-settlement of the estates took place by a deed executed in the year 1822, whereby, after giving D. a power of charging the estates with the sum of £217,000, and B. the 170 Effect of. FIXES AND RECOVERIES. Fraud. power of charging the estates likewise, upon the death of D., with the sum of £100,000, those estates were limited, amongst other uses, to certain trustees, upon trust, to pay to B. an an- nuity of £5,000 per annum, immediately, with an additional £1,000 per annum, upon his marriage. B. having subsequently married, and being thus entitled to an annuity of £6,000 per annum, mortgaged to the plaintiff, W., this annuity, together with the £100,000, which he was en- titled to charge as aforesaid, for the purpose of securing certain large advances, made to him from time to time by the plaintiff, W. On a bin filed by the plaintiff for the purpose of ob- taining the benefit of these securities, to which biU certain of the creditors, who claimed under the trust-deed of 1799, were made parties, they being in possession, by a receiver appointed by this court, in a cause instituted for the purpose of carrymg the trusts of the deed of 1799 into eflect, and who, by their answers, alleged that the plaintiBf was not entitled to any portion of the relief, prayed in respect of the annuity of £6,000 per annum, until the creditors had been repaid the amount of the sums received by D., over and above this annuity of £10,000, the same having been received in violation of the trusts of the deed of 1799. Held, that the creditors never having raised this equity in any of the various proceedings, which, from the year 1803, had been taken, from time to time, on foot of the trust deed, but, on the contrary, having in all such proceed- ings confined their relief to the carrying the trusts of that deed into effect, were not entitled to rely upon it now, as against the plaintiff, the assignee of B., who was a purchaser for valuable consideration. Semble, That the trusts of the deed of 1799 were not extinguished by the re- coveries in 1819. — Wallace v. Donegal, (MarquisJ 1 Dru. & Wal. 461. If a tenant in tail create an incumbrance, or convey his estate by a voidable conveyance, and afterwards levy a fine, though for a different pur- pose, the first operation of the fine will be to give effect to the antecedent act. The same rule has been extended to the case of an equitable charge. —Lloyd V. Lloyd, i Dru. & W. 35i ; 2 Con. & L. 692. A., tenant for life-remainder to B., in tail. A. and B. suffer a recovery, and declare the uses, as to Blackacre, that the recoverers should stand seised thereof, in trust to sell, and apply the money in discharge of incumbrances affecting Blackacre and Whiteacre, and then of incum- brances affecting the estate or person of A., and, subject thereto, to the use of A., in fee. The re- coverers take the legal estate in Blackacre, and there is not a momentary seizin thereof in A. — Browne v. Cavendish, 1 jon. & L. 606. Observations as to the legal and equitable right of parties to bar known existing adverse claims, by fine and non-claim. — Langley v. Fisher, 9 Beav. 90. A fine operates on all the cognizor's interest, and would pass contingent as well as vested rights, if the intention were so, and the use of the word "vested" does not show a contrary intention, when there are also the words "all estate," &c. — Cole v. Sewell, 2 Con. & L. 344. Under the circumstances of this case, a share of the estate of which the fine had been levied which descended to the cognizor as heir-at-law, after the levying of the fine and the execution of the deed, declaring the uses thereof, was held to be included in the fine, and subject to the uses thereof by a deed, executed subseqviently to the descent, for the purpose of confirming the deed declaring the uses of the fine. — Id. By a marriage settlement, a Jamaica estate was limited to trustees, for a term of years, in trust, to raise £18,000, to be laid out in land in Great Britain, of the value of £600 a year ; and the land, when purchased, was to be settled on the husband for life, the remainder to the wife for life, with an option to have her annuity of £600 a year out of the land, in lieu of her life es- tate. Before the £18,000 was raised, the wife joined vrith her husband (both of them being resident in this county) in mortgaging the Ja- maica estate, in fee, and the wife acknowledged the mortgage-deed before a magistrate, which, by the laws of Jamaica, was equivalent to levying a fine. The husband afterwards died. Held, that the wife had barred herself of all claim to the provision made for her by the settlement. — Forbes V. Adams, 9 Sim. 462. III. — Protectob. op the Settlement. On the husband of a married woman, tenant for Hfe under a settlement, being convicted of felony, the Court of Chancery becomes protector of the settlement. — In re Wainwright, 1 Phil. 258. Where the tenant for life is a married woman, whose husband has been convicted of felony, the Court of Chancery is the protector of the settle- ment, though the life-estate is not her separate property.— /d., 13 Sim. 260. The petition in this matter, reported in 11 Sim. 352, was heard by the Vice-Chancellor, who re- fused the application, but granted, on appeal by L. Oh., on the construction of 3 & 4 "W. 4. c. 74. —Id. Under the act 3 & 4 W. 4, c. 74, for the aboli- tion of fines and recoveries, the Lord Chancellor is not the protector of the settlement in the place of a Imiatic, when the lunatic is tenant in tail in possession. Semble, That where a lunatic has a particular estate in respect of which the Lord Chancellor is protector of the settlement, and has also the re- mainder or reversion, in fee, subject only to an intervening estate tail. His Lordship will not con- cur in any deed for barring the estate tail. — In tlie matter of Wood, 3 Myl. & Cr. 266. Porm of petition, evidence, and order, on an application to the court to consent, as protector of a settlement, to the barring of an entail. — In re Gravenor, 1 De G. & S. 700. IV.— Praud. If, in levying a fine, a direct fraud is practised, this coiut has undoubted jurisdiction to give relief, but the mere fact that a party levying a fine has good reason to believe, that if he £d not do so, an adverse claim might or would be esta- blished against him, has never been considered as sufficient evidence of a gross fraud to induce this court to grant relief. — Langley v. Fisher, 9 Beav. 90. An estate was settled on husband and wife for life, with a limitation to their issue, and in default, a power of appointment was given to the wife. There was one child only of the marriage who died an infant. The wife survived the husband, and appointed the estate to G. D. P., who was the releasee to uses, and had possession of the settlement. G. D. P., shortly after the wife's Generally. FOREIGN AND COLONIAL LAW. Generally, 171 death, made a feoffment, and levied a fine with proclamations. After the expiration of the five years the heir of the child claimed the estate, in- sisting that, under the terms of the settlement, the child took the e&tate in fee, and that the power of appointment had never arisen. He filed a bill against G. D. T. to avoid the fine, alleging that it had been levied with full know- lege of the plaintifTs rights, and with a fraudulent view to bar them. Held, that the act of G. D. F. did not constitute a fraud, that G. D. F. stood in no fiduciary relation towards the plaintiff, and the bill was dismissed with costs. — Id. FIXTURES. See L.4.NDL0IID and Tenant. FORECLOSURE. See Mortgage. FOREIGN AND COLONIAL LAW. I. 11. III. IV. V. YI. VII. vni. IX. X. XI. XII. XIII. Generally 169 Proop op, in English Courts .... 171 Foreign Judgments 171 Attachment 171 Courts 172 Contract 172 Registration of Foreign Deeds . . 173 Debts and Interest 173 Construction op Charter 173 House op Assembly 173 Prerogative op the Crown 174 Extension op Interpleader Act . . 174 Appeal 174 I. — Generally. Unsworn testimony is certain cases admitted from colonies, 6 & 7 Vic. c. 22. Jurisdiction of Her Majesty in foreign countries, 6 & 7 Vic. c. 94. By the treaty of Paris of the 10th February, 1763, the Island of Cape Breton (which had been invaded and taken by the British forces,) was ceded by France to the king and crown of Great Britain. By a proclamation, issued by the king in October, 1763, the Island of Cape Breton and St. John's were annexed to the government of Nova Scotia, and the proclamation authorised the governor to call general assemblies in the said governments respectively, as soon as the circum- stances of the colony would admit. In the year 1784, the crown, by a commission to the governor in chief of Nova Scotia and the Islands of St. John's and Cape Breton, granted a constitution to the Island of Cape Breton, to consist of a lieu- tenant-governor, council, and assembly, distinct from that of Nova Scotia. The government of the Island continued, however, to be regulated by a lieutenant-governor, and council, but no general assembly was convened as directed by the commission of 1784. In the year 1820, the crown, in the commission to the go vernor-in- chief of Nova Scotia, annexed Cape Breton to Nova Scotia. The inhabitants of Cape Breton peti- tioned the crown, complaining of the illegality of the re-annexation by the act of the crown alone, without their consent, or by an act of the imperial parliament, as contrary to the proclamation of 1763, and the commission of 1784. Held, by the Judicial Committee of the Privy Council, that such re-annexation was legal, and that the peti- tioners were not entitled to a separate constitution under the commission of 1784. — In re The Island of Cape Breton, 5 Mo. 259. By Stat. 33 Geo. 3, c. 62, s. 168, (for among other things, making better provisions for the good order and government of the towns of Cal- cutta, Madras, and Bombay,) assessments are directed to be made on the owners or occupiers of houses, buildings, and grounds, " according to the time and real annual values thereof." Upon a rate, made in pursuance of this statute, the quarter sessions at Bombay assessed the annual value of a cotton pressing factory, having fi.ted machinery, upon the gross receipts, after making an allowance of ten per cent, for the tenant's profit. Held, by the Judicial Committee, re- versing the order of confirmation of the sessions, by the supreme court, and quashing the rate, that the principle of assessment was erroneous, the proper measure of rateable value of the build- ing being the rent (subject to deductions required by the statute 6 & 7 Wm. 4, c. 96,) that the building might reasonably be expected to let for to a yearly tenant. — Faiacett v. The Justices of Bombay, 5 Mo. 143. The British parliament has no power to legis- late for foreigners out of the dominions and beyond the jurisdiction of the crown, yet it can by statute fix the time within which application must be made for redress to the tribunals of the empire. This being matter of procedure, be- comes the law of the forum, by which all man- kind are bound. — Lapez v. Buzlem, 4 Mo. 300. The firm of S. & W. H., in Lower Canada, being indebted to J. W., transferred seventy five promissory notes to a factor on his account. At the time of the transfer, S. & "W. H. were en deconfiture. A saisee arret having subsequently issued by other of the creditors of S. & W. H. the seventy-five notes in the hands of the factor were attached. Held, by the Judicial Committee, that the transfer having taken place before the execution of the saisee arret was valid by the French law in force in Lower Canada. By the old French law prevailing in Lower Canada all ordonnances not registered are void. — Hutchinson y. Gillespie, 4 Mo. 378. In an action brought in the Supreme Court of British Guiana, the plaintiff obtained an interdict restraining the defendants, the managers of a plantation, from selling or consigning any portion of the proceeds of the plantation. 'This interdict remained in force until the cause came on for hearing, (ten months afterwards) when the court discharged the interdict as having been obtained per sub et ob reptionem, and condemned the plaintiff " to make good to the defendants all losses, costs, and damages by them already had and suffered, or yet to be had or suffered in consequence." An appeal was entered against this decree, but not prosecuted. The defend- ants to the previous action, then brought an action in the same court, to assess the lease.7. Although the 3rd section of 1 & 2 Vic. c. 69, provides that the 11 Geo. 4 and 1 W. 4, c. 60, and 4 & 5 W. 4, o. 23, shall not be construed to extend to any case of a person dying seised of any land by way of mortgage, other than such as are in that act expressly provided for, yet that section does not repeal any part of the two other acts, and therefore the cases of a mortgagee dying, leaving an infant heir, or where it is uncertain whether he left an heir, are not affected by the first mentioned act. — In re Wilson's Estate, 8 Sim. 392. VI. — CONTETANCE BY Infant Trustee. At the hearing of a cause, to which an infant, who was the first tenant in tail, under a settle- ment, was a defendant, the court made a declara- tion as to the intention of the parties to the settle- ment which bound the infant's inheritance, and sent a case for the opinion of a court of law, as to the true construction of the settlement, but it re- fused to give the infant a day to shew cause against the decree, until the hearing on the equity reserved, when it would appear, whether the infant would be required to execute a convey- ance ornot. — Walsh v. Trevannion, 16 Sim. 180. Four co-partners purchased an estate out of the partnership assets, and took a conveyance themselves as tenants in common in fee. One of them died intestate, as to his real estates, leaving an infant heir. The survivors settled with his executors for the value of one-fourth of the estate, and then petitioned under the 11 Geo. 4, and 1 Will. 4, c. 60, that the infant might be declared a trustee of one-fourth of the estate, and might join in conveying the estate to a purchaser. The court refused to make the order, and said that a bill must be filed. — Ex parte Williams, 11 Sim. 64. Where an infant heir is declared by the decree of the court to be a trustee for a purchaser, the court will direct a conveyance to the purchaser by the same decree, a petition for that purpose being unnecessary.' — Miller v. Knight. 1 Keen, 129. VII. — ElOHTS OP, AGAINST PERSON WHO ENTERS ON HIS Estate. An infant is entitled to treat a person who enters on his estate during his infancy as his bailiff, who is accountable as such. — Blomfield> V. Eyre, 8 Beav. 250. A party entering upon and taking the rents and profits of an infant's estate, may be sued at law as a trespasser, or in equity as the bailiff, guardian, and trustee of the infant, at the election of the plaintiff. — Wylliev. Ellice, 6 Hare, 505. Where it appears that several persons entered on and held the estate of an infant, one of such persons cannot be sued by the infant in equity as his bailiff, guardian, or trustee, for an account of the rents and profits of the estate, wilhout making parties to the suit, the others of such persons. — Id. Vm. — When Conthact by, enforced. A man cannot be charged in equity after his majority, on a purchase, or sale, or contract made during his minority, on the mere ground that, without any false assertion by the infant, the other party believed he was a minor, and dealt withhim on the supposition that only adults could enter into such transactions. The court there- fore refused to entertain a bill for an injunction to restrain an action brought to recover certain railway shares, which had been sold and assigned by deed, to the plaintiff at law, during the in- fancy of the plaintiff at law, there being no evi- dence against the plaintiff at law of misrepresen- tation as to his infancy. — Stikeman v. Dawson, 1 De G. & S. 90. The guardian of A. B. (an infant), appointed by the ecclesiastical court, grants a lease of the infant's lands, receiving a premium, and at the time of granting the lease the infant is present, and represents to the lessee, that the lessor is his guardian. The infant is also an attesting witness to the lease. He attains his majority, and then grants a lease of the same lands to another lessee. On a bill filed by the former lessee against A. B. and the new lessee, to have the first lease con- firmed, or the premium refunded with interest, a decree made according to the latter alternative of the prayer. — Esromy. Nicholas, 1 De G. & S. 118. IX. — Next op Kin op. Where the personal estate of an infant seised in fee of a real estate, was applied in payment of charges affecting his real estate, the infant having died under twenty-one ; Held, that the next of kin were entitled to claim those charges as part of his personal estate. — Bowling v. Belton, Fl. & K. 463. X. — How AFFECTED BY StAT, OF LIMITATIONS. There is no saving of minority, given in the fifteen section of the Statute of Limitations, 3 & 4 214 Next Friend of. INFANT.— INFERIOR COURT. Will. 4, c. 27, and therefore the period of five years given by the section, cannot be extended by reason of the infancy of the claimant. — Scott V. Nixon, 3 Dm. & W. 389. XI. — Next Feiend op. DiiRculties in dealing with suits filed by strangers on behalf of infants : on the one hand you may encourage useless and expensive litigation, on the other you may discourage interference very often necessary for their protection. — Cross v. Cross, 8 Beav. 455. Where the next friend of an infant plaintiff dies, the proper order for the defendants to obtain is, not that the infant may appoint a new next friend within a given time, or that the biU may be dismissed ; but that the master may approve of a new next fiiend ; and four days' notice of the order must be given to the plaintiff's solicitor. — Glover v. Webber, 12 Sim. 351. Two suits were instituted on behalf of infants, but it was found that it was most for their benefit to prosecute the second. The first suit was pro- perly instituted; but there being some impro- priety of conduct on the part of the solicitor, who instituted it on his ovra authority and nominated his brother as next friend, the first bill was, upon an interlocutory application, dismissed without costs. — Starteny. Bartholomew, 6 Beav. 143. The name of a person who had been made the next friend of an infant plaintiff without his authority ordered to be struck out, but liberty was given to the co-plaintiffs to amend by naming a new next firiend. — Ward v. Ward, 6 Beav. 251. As to the liability of next friend in such a case as regards the defendant. — Id, The next friend of a sole plaintiff, an infant, ought not to take proceedings in the cause in the name of such plaintiff after the plaintiff has attained the age of twenty-one. — Brown v. Wea- therhead, 4 Hare, 122. The costs of the next friend of the infant, to the time the infant attained twenty-one, allowed as between solicitor and client ; but no costs allowed of proceedings subsequently taken with- out the authority of the plaintiff, although such proceedings were merely consequential on former proceedings, if the suit were to be prosecuted. — Id. Pending the examination of witnesses, a new next friend of the infant plaintiff was appointed. Held, that it was not necessary to notice the alteration in the proceedings, under the com- mission. — Lincoln v. Wright, 4 Beav. 166. On a motion to substitute a new next friend of an infant plaintiff, the court must be satisfied, by affidavit, of the circumstances and Tespectability of the party proposed to be substituted, although all the other parties to the cause consent to the substitution. — Harrison v. Harrison, 5 Beav. ] 30. The court will not remove a next friend merely because he is nearly related to or con- nected with the defendant ; but it must see that there is a probability that the infant's interest will be prejudiced if the next friend is allowed to remain. — Bedwin v. Asprey, 11 Sim. 630. The next friend of the infant plaintiff was insolvent, and had been indemnified from the costs of the suit; and, for those reasons, the defendant moved that the proceedings in the suit might be stayed until the next friend was changed, or had given security for costs. Motion refused. — Mttrrell v, Clapham, 8 Sim. 74. The master reported that a suit, instituted on behalf of infants, was improperly instituted, and ought not to be prosecuted. It was dismissed with costs, to be paid by the next friend, — Fox v, Suwerkrop, 1 Beav. 583. In a clear case, the court, being of opinion that a suit had been commenced by the next friend of infanta, to promote his own views, and not for the benefit of infants, summarily, and without a reference to the master, dismissed it with costs, to be paid by the next friend, — Sale v. Sale, 1 Beav. 586. The court will not compel the next friend of an infant, on the ground of poverty, to give security for costs. — Fellows v. Barrett, 1 Keen, 119. XII. — ^Teansfeb op Stock to. A female infant, entitled to a fiind in court, was resident abroad, with a guardian, appointed by a foreign court. The Vice-Chancellor ordered the dividends of the fund to be paid to her solicitor, he undertaking to remit them to the guardian. — In re Morrison, 16 Sim, 42. Testator gave £5,000 stock to a female infant, to be paid or transferred to, or settled on her, by his executors, by such deed or instrument, in writing, as they should think most prudent and proper, on her attaining twenty-one. The infant married in the testator's lifetime, and afterwards attained twenty-one. The court ordered the stock to be transferred to her, on her sole receipt. — LaiTig V. Laing, 10 Sim. 316. INFERIOR COURT. When a case involves a clear principle, which has been the subject of decision by the House of Lords, that decision must be followed by this court, and every other inferior court. — French v. Macale, 2 Dru. & W. 269. INFORMATION AND BILL. See Charity. INJUNCTION. See Ph. Injunction. INQUIRY. See Pe. Master's Opfioe. INQUISITION. See LuNACT. — Railway. INROLMENT. See Pr. Inrolment. Assignee. INSOLVENT. Assignee. 215 INSOLVENT. See HusB. and Wipe, — Tbdst, Breach op.- Settlement, I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. Assignee 215 pnopeett op, how distkibutablb . . 216 Voluntary Preference 216 Restraint op Alienation 216 Afteb-Acqtjired Property 217 Creditors who may Participate in Estate op 217 Sdits by and on Account op 217 Construction 217 Jurisdiction op Courts op Equity OYER Insolvent Debtors' Court.. 218 Jurisdiction op Insolvent Deb- tors' Court 218 Sales op Property op 218 Under Protection Statutes 218 I. — Assignee. See 1 & 2 Vic, o. 110 ; 5 & 6 Vic, c. 116 ; 7 & 8 Vic, 0. 96 J 8 & 9 Vic, c 127 ; 10 & 11 Vic, c 102 ; and 12 & 13 Vic, c 101. The provisional assignee of an insolvent debtor is not entitled to his costs against the plaintiff. — Hughes v. Kelly, 3 Dru. & W. 482. In a suit by an insolvent and his assignee, where it appeared, at the hearing, that the deed of assignment to the latter was not executed vintil immediately before the hearing of a cause, an objection to the suit, that the assignee had no interest when the biU was filed, weis overruled ; the court holding that, by the operation of the Statute 3 Geo. 4, c. 126, s. 16, the estate and effects of the insolvent vested back by relation. Held, also, that an objection to the joining of the insolvent as co-plaintiff with the assignee could not be maintained at the hearing. — Cashel v. Kelly, 2 Dru. & W. 181 ; 1 Con. & L. 246. B. was declared an insolvent in 1818, and assignees were appointed ; they never acted, and B. remained in vmdisturbed possession of all his estate and effects. The plaintiff, who, in 1818, was one of B.'s creditors, in the year 1840, ob- tained an order &om the Insolvent Court, re- moving the surviving assignee, and appointing himself the sole assignee of B. ; and, thereupon, he filed a bill against B. and the former assignee, for an account. An order for a receiver, upon answer, having been obtained at the RoUs ; Held, upon appeal, that, notwithstanding the appointment of the plaintiff as assignee by the Insolvent Court, as the existence of any debt due by the insolvent was positively denied by the answer, that the order for the receiver could not be supported. — Fogarty v. Bourke, 3 Dru. & W. fi80. A suit was instituted by the creditors and official assignee of a bankrupt. The creditor's assignees died before decree, the official assignee died after decree ; and a new official assignee being appointed, his name was, on motion, sub- stituted, under the 6th Geo. 4, c. 16, s. 67, as plaintiff in the suit. — Mann v. Ricketts, 7 Beav. 484. A married lady filed a bill against her husband (who had become bankrupt) and his assignee, alleging that a sum of stock, which had fallen into possession after the baiikruptcy, was subject, under the circumstances stated in the bill, to the trusts of her settlement, and did not belong to the assignee. The assignee submitted the ques- tion to the court. The court decided that the fund was subject to the trusts of the settlement ; and refused to give the assignee his costs, as he ought to have disclaimed. — Blythe v. Granville, 13 Sim. 190. The provisional assignee of an insolvent defen- dant is not entitled to a fee for counsel, to ap- prove of a deed which he is called upon to exe- cute under a decree. — Wallace v. Macan, Fl. & K. 664. The 4l8t section of the 3 & 4 Vic, c. 107, applies to plaintiffs only ; and, therefore, where an assignee, a defendant, dies, a supplemental bill is necessary to bring the new assignee before the comt.— Meagher v. O'Mara, Fl. & K. 269. The dividends of a fund were directed to be paid to A. for life ; but if he assigned, or other- wise disposed of them, they were to go over. A. being in prison, and charged in execution ior debt, the creditor obtained an order, under 1 & 2 Vic, c. 110, 8. 36, vesting all his property in the provisional assignee of the Insolvent Debtors' Court. Held, that the dividends of the fund did not go over, but vested in the assignee. — Pym v. Lockyer, 12 Sim. 394. The assignee of an insolvent debtor, under 1 & 2 Vic, c 110, being unable to recover an estate, belonging to and in the possession of the insol- vent, owing to an existence of an old commission of bankruptcy against the insolvent (which, however, had long since been abandoned, in con- sequence of all the creditors vmder it having compromised, and released iheir debts,) is en- titled to maintain a suit in chancery against the insolvent and the assignee in bankruptcy, for the recovery of the estate, and for a receiver of the rents in the meantime. — Hollia v. Bryant, 12 Sim. 492. Where a creditor puts in force against his debtor the compulsory clauses of 1 & 2 Vic, c. 110, the Insolvent Debtors' Court has no power to compel the debtor to file a schedule of his property. — Id. A., who possessed a real estate, committed an act of bankruptcy. He afterwards took the benefit of the Insolvent Debtors' Act ; and was subsequently declared bankrupt. Held, that the assignees in bankruptcy could not make a good title to a real estate of the bankrupt ; that the estate was vested in the assignees of the in- solvency ; and that the objection was one of title, and not of conveyance. — Sidebotham v. Barring, ton, 3 Beav. 624. Although, on the death of the assignee of an insolvent's estate, any creditor of the insolvent may get a new assignee appointed by the Insol- vent Debtors' Court, and all the insolvent's pro- perty which was vested in the deceased will immediately thereupon become vested in the new tissignee ; yet where no new assignee has been appointed, a party having a demand against the insolvent, but not having proved under the insolvency, may sue the executors of the de- ceased assignee. — Fulchery. Howell, 11 Sim. 100. An insolvent debtor and his wife conveyed estates, belonging to the latter, to trustees, to raise and pay £36,000 to the assignees (who were parties to the deed), for the benefit of the cre- ditors. The insolvent died before that sum was raised ; and after his death the assignees made a compromise with his widow, by which they agreed to accept from her a smaller sum. One of the creditors filed a bill against the assignees, the trustees, and the widow, charging them with 216 Praperty of, Sfc. INSOLVENT. Restraint of Alienation. collusion, and praying that the trusts of the con- veyance might be performed, and that the de- fendants might be restrained from carrying the compromise into effect. A demurrer by the assignees, for want of equity, -vras allowed, as the plaintiff ought to have applied to the Insolvent Debtors' Court to remove the assignees. — Yewena V. Bobinson, 11 Sim. 105. The omission of the assignees of an insolvent debtor to sell or take possession of the copyhold estate of the insolvent, or to cause an entry of the assignment, or copy of the appointment of the assignee, to be made on the court rolls, or to possess themselves of the copies of the court roll, for a period of nineteen years after the insol- vency, whereby the insolvent is enabled to retain the property, and hold himself out as the owner, and mortgage it for value to a person who had no actual knowledge of the insolvency, does not constitute an equitable ground for giving such mortgagee a charge in priority to the title of the assignee. — Cole v. Coles, 6 Hare, 617. An appointment of a person, claiming to be a creditor of an insolvent debtor, assignee of his estate and effects, in the place of a deceased assignee, on condition that the person so ap- pointed shall prove his debt, by affidavit, on taking out his appointment ; such debt having been afterwards proved, accordingly, is a valid appointment, entitling the party so appointed to sustain a suit for the purpose of recovering pro- perty claimed as part of the estate gf the insol- vent.— /(?. The provisional assignee of an insolvent debt- or, having been made a defendant to a suit by a mortgage to foreclose. Held, to be entitled to his posts, to be paid by the plaintiff, who was to add them to his security. — JParker v. Bwrney, 1 Beav. 492, II. — PnOPERTY OP, HOW DiSTBIBUTABLE. A. filed a petiton in the Insolvent Debtors' Court, with a view to obtaining the benefit of the act. Shortly afterwards an order was made, in a suit, for payment of a sum of money to her out of court. After the Insolvent Court had made an order, vesting all her property in the pro- visional assignee, but before it had made any ad- judication respecting her, she died. After her death a creditors' assignee was appointed. Held, that, notwithstanding there had been no adju- dication, the assignee, and not the administrator of A., was entitled to the sum in court. — Bruce V. Charlton, 15 Sim. 562. A fund in court, amounting to £1,000, the property of a married woman, whose husband had been discharged as an insolvent, ordered to be applied in the following proportions : — £600 to the wife and children, and £400 to the assignee, for the benefit of the creditors ; the court declining to follow the rule as laid down in Brett V. Greenwell, (SYounge & C. 230.)— iVopier y. Napier, 1 Dru. & "W. 407. Where a person has twice taken the benefit of the Insolvent Debtors' Act, a chose in action, to which he became entitled between his first and second insolvencies, passes to the assignees under the second. — CvHis v, Sheffield, 8 Sim. 176, m. — VoLrNTARY PbEFERENOE. A., being entitled to three debts, covenanted with B. that, in case he received them in full, he •would pay him £1,000 ; but in case he should receive part only, he would pay one-third of the sum recovered. A, received one of the debts, which he wholly retained. Afterwards, and within three months before A.'s imprisonment, and taking the benefit of the Insolvent Act, he (without pressure) assigned one of the debts to B., to secure one-third of the debt recovered, and those still unpaid. It was set aside as fraudu- lent, under the act. Held, also, that B. had not, as against the insolvent's assignees, any lien on the remaining debts for the one-third of the first debt, improperly retained by A. — Harries v. Lloyd, 6 Beav. 426. IV. — Restkaint op Alienation. Testator gave the dividends of £3,000 stock to A. for life, and if A. should die, then to A.'s wife for life, she to lay it out for the good of A.'s children, but if she should marry again, she should have nothing more to do with the money, but the executors should have fuU power over it, and lay it out as they should think best for such of the children as should remain under age, " and when the youngest child becomes of the age of twenty- one years, then this said £5,000 stock shall be sold, and the money shall be then equally divided between such of the said children that shall be then living, equally, share and share alike. No one of the said children shall be allowed, or shall ever sell or part with his or her share or interest in this said money until it shall be divided. If no proof of any one or more of them having done so, then his or her share will from that time become the property of the other children, This said stock to stand in the names of my executors." The testator died in 1831. A. died in 1836 ; A.'s wife died in 1843, without having married again. The youngest child of A. came of age in 1844. In 1841, .T.,who was one of the children of A., and who was afterwards living when the youngest came of age, having been arrested for debt, pre- sented his petition, and obtained his discharge under the Stat. 1 & 2 Vic c. 110, foL the relief of insolvent debtors. Held, that this was a " parting with " J.'s contingent reversionary interest in the capital stock within the meaning of the expression contained in the will, and further, that the re- straint against alienation contained in the will was valid, consequently that the interest so parted with devolved to the other children of A. who were living when the youngest attained twenty- one. — Churchill V. Marks, 1 Coll. C. C. 4il. Property was settled on J. R., by liis father, until he should take the benefit of the Insolvent Debtor's Act, and then the trustees were, during his life, to apply it in such manner, and to such persons, for the board, lodging, and subsistence of J. R., and his family, as the trustees should think proper, euid after his decease, upon trust, for suiSi persons as S. R. should appoint, and in default of appointment, in trust, for his children. J. R. took the benefit of the Insolvent Debtor's Act; he had three children, but his wife was dead. Held, that his childien, who were all infants, became entitled to three-fourths, and the assisnees to one-fourth of the life-interest of J. R. — Rippon v. Norton, 2 Beav. 63. Suits by, ifC, INSOLVENT. Construction. 217 V. — AFTEE-AoaClKED Projerty. Where a debtor has taken the benefit of the Insolvent Acts, his creditors, anterior to the in- solvency, have such an interest in his after- acquired property as will enable them to maintain a suit in this court after his death, against his legal personal representative, for the purpose, at least, of realising and protecting such after-ac- quired property.— Word v. Painter, 5 Myl. & Cr. 300. In May, 1819, a party took the benefit of the Insolvent Act then in force, he subsequently ac- quired property, and died, leaving more than sufficient to pay his debts contracted after his insolvency. The scheduled creditors remaining unpaid. Held, that a bill might be maintained "by one of such creditors against the personal re- presentatives of the insolvent, without the previous sanction of the Insolvent Debtor's Court, for pay- ment out of the surplus assets of the scheduled debts — Ward v. Painter, 2 Beav. 85. VI. — Creditors who may participate in Estate oi'. Under the Statute 7 Geo. 4, c. 57, all persons who are creditors of an insolvent debtor at the time his petition for discharge is filed in the court for the relief of insolvent debtors, are entitled, taking proper steps for that purpose, to participate in his estate, whether the same have or have not been inserted by the insolvent in his schedule. — Borell V. Dann, 2 Hare, 440. Although a creditor, whose debt has been in- serted in the schedule of a party taking the benefit of the Insolvent Debtor's Act, is not pre- vented from proving for the balance of his debt under a subsequent fiat against the insolvent, yet ■where the debt is founded on a warrant of attorney given by the insolvent, and a judgment thereon is entered up by him in fraud of his creditors, the creditor cannot then prove for the balance under a subsequent fiat. — Ex parte Rorie, 2 M. D. & D. 631. Assignment under, overreached by fiat. — Side- botham v. Barrington, 3 Beav. 524. VII. — Suits by and on Account op. B. was declared an insolvent in 1818, and as- signees were appointed ; they never acted, and B. remained in the undisturbed possession of all his estate and effects. The plaintiff, who, in 1818, was one of B.'s creditors, in the year 1840, ob- tained an order from the Insolvent Court, re- moving the surviving assignee, and appointing himself the sole assignee of B., and thereupon he filed a bill against B. and the former assignee for an account. An order for a receiver upon -answer having been obtained at the Kolls, Held, upon appeal, notwithstanding the appointment cf the plaintiff as assignee by the Insolvent Court, as the existence of any debt due by the insolvent was positively denied by the answer, that the order for the receiver could not be supported. — Fogarty v. Bourke, 2 Dru. & W. 680. In a suit by an insolvent and his assignee, where it appeared at the hearing that the deed of assignment to the latter was not executed till im- mediately before the hearing of the cause, an objection to the suit that the assignee had no interest when the bill was filed, was overruled, the court holding that by the operation of the Stat. 3 Geo. 4, c. 126, s. 16. the estate and effects vested back by relation. Held, also, that an ob- jection to the joining of the insolvent as co-plain- tiff with the assignee, could not bo maintained at the hearing. — Caahel v. Kelly, 2 Dru. & W. 181. A bill was filed by an insolvent debtor against A., (who was in possession of an estate claimed by him,) and his assignees, alleging that the assignees had refused to sue for the estate, because they were apprehensive of incurring personal expenses, but that they were willing to concur in a sale of it for the benefit of the plaintiff and his creditors, and that if the estate were sold the pro- ceeds would be sufficient to pay the creditors, and to leave a considerable surplus, and praying that A. might be declared to be a trustee of the estate for the plaintiff and his creditors, and that it might be sold and the proceeds paid to the as- signees, and that A. might be restrained from proceeding with an action which he had brought against the plaintiff A demurrer to the bill was allowed. — Kaye v. Foshrooke, 8 Sim. 28. An insolvent debtor cannot, on the mere alle- gation that the assignee in the insolvency colludes with a debtor to the estate, and refuses to sustain a suit for a legacy which passed by the assign- ment of his estate and effects under the insol- vency, although charging that legacy, if recovered, will afford a balance after satisfying all his debts, and praying that the legacy may be paid either to the assignee or to himself, nor can the suit be sustained, even if the provisional assignee appear and submit to be bound by the decree, for the pro- visional assignee cannot empower another party tosuefor the insolvent's estate, except by allowing such other party to sue in his (the assignee's name). — Major v. Aukland, 3 Hare, 77. Whether if the alleged collusion or refusal to sue were proved, the insolvent could sustain such a suit — Qtuere. — Id. The assignee of an insolvent debtor is a neces- sary party to a bill by the insolvent, praying that an instrument which belonged to him prior to his insolvency, may be delivered up to luin, and an injunction to restrain proceedings upon it.— Balls V. Strutt, 1 Hare, 146. VIII. — Construction. The Commissioners of Customs, by direction of the Lords of the Treasury, granted to A., as a compensation for the loss of an office which he had held in the Custom-house, £500 a-year, pay- able quarterly by the Receiver-General of Cus- toms. A. assigned the allowance to B. for a valuable consideration, and subsequently took the benefit of the Insolvent Debtor's Act. The court in a suit by B. against A., and the assignees of his estate, but to which neither the Lords of the Treasury nor the Commissioners of Customs were parties, restrained the Receiver- General from paying over to the defendants monies in his hands on account of the arrears of the allowance, urdess the Lords of the Treasury or the Commis- sioners of Customs, should order the contrary. Semble : that such compensation allowance, though revokable at the pleasure of the government, is assignable. — Turnstallv. Boothby, 10 Sim. 642 Where a creditor puts in force against his debtor the compulsory clause of 1 & 2 vie. c. 110, the Insolvent Del tor's Court has no power to 218 Jurisdiotion, Sfc. INSOLVENT.— IXSURANCE. compel the debtor to file a schedule of his pio- perty. — Holies v. Bryant, 12 Sim. 492, The clauses of the Statute for the relief of in- solvent debtors, which provide that, in case the insolvent shall be entitled to any copyhold or customary estate, the assignmeikt to or certified copy of the appointment of the assignee shall be entered on the court rolls of the manor, and that the assignee shall, with all convenient speed, make sale of all the estate and eifects of the in- solvent, are not mandatory, but are directory only. — Cole v. Coles, 6 Hare, 617. Principles upon which the meaning of the term " insolvent," in the 46 Geo. 3, c. 135, s. 1, is to be determined. Embarrassment is not to be con- founded with insolvency, but where a man's means of present payment are so crippled and his embarrassment is so great that he cannot pro- ceed with and carry on his business in the usual course of trade, he is insolvent, without reference to the consideration whether the whole of his property when converted into money, andrealised, would be sufficient to pay his debts ; and notice of such a state of circumstances is notice of insol- vency. — De Tastet v. Le Tavemier, 1 Keen, 161. Insolvency is a ground upon which the court wUl refuse specific performance of an agreement to grant a lease, but there must be proof of general insolvency ; and a particular default in the payment of rent to the landlord of the premises last occupied by the person contracting for the lease, will not disentitle him to the performance of the contract, where there is the testimony of unexceptionable witnesses to his responsibility. — Neale V, Mackenzie, 1 Keen, 473. IX, — JuHiSDicTioN OP Courts of Equity over Insolvent Debtok's Court. The jurisdiotion of this court, to administer the subsequently acquired property of an insolvent, is not ousted by the operation of the Insolvent Act, S3 Geo. 3, c. 38. — Burne v. Byrne, 2 Dm. & W. 71. Upon demurrer to a bill filed by the assignee of the deceased insolvent discharged under the 53 Geo. 3. Held, that a court of equity had juris- diction to administer the after-acquired property. The Statute of Limitations is not a bar to relief in such a suit. — Byrne v. Byrne, Fl. & K. 436. A plaintiif having been appointed the assignee of an insolvent, a considerable time after the in- solvency, is not sufficient proof of there being debts to justify the court in granting a receiver over the insolvent's property upon bill and answer, when it is sworn by the answer that the plaintiff and all the creditors have been paid. — Fogarty v. Burke, 1 Con. & L. 565. The Insolvent Act, 63 Geo. 3, c. 138, does not deprive this court of jurisdiction to direct an account of an insolvent's future acquired pro- perty, which has come to the hands of a default- ing executor. — Byrne v. Byrne, 1 Con. & L. 189. In a suit for that purpose, the debts remaining unpaid, ought properly to be specified in the bUl. X. — Jurisdiction op Insolvent Debioes' Court. If the insolvent court has jurisdiotion to grant the relief sought, a creditor of the insolvent ought not to institute a suit in equity to obtain the same relief ; therefore, a bill filed by a creditOT to re- strain the assignee selling the insolvent's estate, on the ground that his conduct in relation to the intended sale was fraudulent, was dismissed with costs, — Maguire v, O'Reilly, 3 Jon. & L. 224. XI. — Sales op Property op. Although the Insolvent Debtor's Act (7 Geo. 4, c. 57, s. 20) directs the assignees to sell the insol- vent's real estate by auction, yet, if they have tried to sell them by auction and failed, a sale by private contract will be good. — Mather y. Priest- man, 9 Sim. 352. The forty-seventh section of the Insolvent Debtor's Act (1 & 2 Vict. c. 110) is durectory only. So that although the assignee does not strictly comply vrith the manner, &c., of selling real estates, as directed by the creditors, the con- tract is not void.— Wright v. Maunder, 4 Beay. 512. XII. — Under Protection Statutes. The plaintiff filed his petition in the Court of Bankruptcy, under the provisions of the Act, 5 & 6 Vict. c. 116, for the relief of insolvent debtors not owing more than £300, and passed his ex- amination and obtained his interim and final orders for protection. He then filed an affidavit in the Court of Bankruptcy, stating, that he had satisfied and obtained a discharge from all the creditors named in his schedule ; and that he had notified such satisfaction and discharge by public advertisement. The plaintiff then applied to the official assignee for a release of his estate, which, according to the provisions of the act, vested in such assignee on the presentation of the petition ; but in the absence of any proviso in the act for determining the duties of the official assignee in such a case, the plaintiff was unable to obtain any release or reconveyance. The plaintiff then filed his bill against the defendant as mortgagee, for the redemption of an estate which had been mortgaged before he presented his petition to the Court of Bankruptcy. Upon the objection of the defendant, that the estate of the plaintiff (if any) was vested in the official assignee. Held, that in the absence of any statuary jurisdiction on the subject in the Court of Bankruptcy, and upon the submission of the assignee, the plantiff was entitled to sustain the suit at the hearing. — Preston v. Wilson, 5 Hare, 185. Whether, if the defendant had demurred, the bill woiild have been sustained. — Quai-e. — Id. INSUFFICIENCY. See Pl. Answeb. INSURANCE. Altering the mode of collecting the duty on Fire Insurances in the West Indies and otherwise beyond the seas, 65 Geo. 3, c. 184. Other provisions made by repealing former and granting new Stamp Duties on Fire Insurances, 66 Geo. 3, c. 56, 1. Amended by 9 Geo. 4, c. 13, and 3 & 4 W. 4, c. 23, U. K. Repealed as to Ireland by 5 & 6 Vict, c, 82. INSURANCE. 219 Amending the laws in force relating to Stamp Duties on Sea Insurances, 9 Geo. 4, c. 49, s. 1, G. B. ; 3 & 4 W. 4, c. 23, U. K. j 6 & 6 Vict. c. 82, I. ; 7 & 8 Vict. c. 21, U. K. A vessel is totally lost within the meaning of a policy when it becomes as a ship of no use or value to the owner, and is as much lost as if it had gone to the bottom of the sea, or had been broken to pieces, and the whole or greater part of the fragments had reached the shore as wreck. — Irving v. Manning, 1 CUc. & Fin. N. S. 287. A loss is to be considered as total where a pru- dent owner, if uninsured, would not have re- paired. — Id. In a valued policy the agreed total value is conclusive. — Id, A policy of insurance is not a perfect contract of indemnity ; it must be taken with this quali- fication, that the parties may agree beforehand in estimating the value of the subject assured, by way of liquidated damages. — Id. A ship was insured in a policy, in which the value was stated at £17,500. The ship was in- jiired by storms, was surveyed, and the repairs were estimated at £10,500. When repaired the vessel would have been of the marketable value of £9,000. The assured abandoned, and claimed as a total loss. The jury found that, under the circumstances existing in the case, a prudent owner, uninsured, would not have repaired the vessel. Held, by the Lords, affirming the judg- ment of the court below, that the assured could recover as for a total loss. — Id,, 1 Clk. & Fin, N. S. 287. A vessel insured under a time policy, from August, 1841, to August, 1842, encountered very severe weather in the Indian Seas, and was com- pelled, in May, 1842, to put into the Mauritius. The master wrote to the owners, telling them of the injuries which the vessel had received, of the necessity to make extensive repairs, of his inten- tion to borrow the money on bottomry for that purpose, of the sum required, and of the impossi- bility of getting the money, except on the under- taking to return direct to England, instead of proceeding to Bombay, as originally intended. He further stated that, on account of the very low state of heights in India, this would be better for their interests, which he said he consulted in every thing he did. The agents for Lloyds, at the Mauritius, who were employed by the cap- tain to act for him, wrote letters to the same effect. These letters were received at intervals between September and December, 1842, and in the latter month the owners wrote to the agents, expressing their surprise at the amount required, but saying at the same time that they supposed what was done was the best that could be done, under the unfortunate circumstances in which the ship was placed. The owners wrote to agents, in London, apprising them of the expected arrival of the vessel, and directing them to do what was needful. The vessel did arrive on the 27th of March, and was at first taken possession of by the agents for the owners. On the 30th of March the owners abandoned to the underwriters. Held, that mider these circumstances they were not entitled to recover as for a total loss : for first, as- suming notice of abandonment to be necessary in case of constructive total loss, the notice here had not been given in time ; and secondly, the conduct of the owners on the receipt of the letters, amounted to an election to treat this as a partial loss, and they could not afterwards, on the arrival of the vessel, when they found that the cost of repairs much exceeded the market value of the vessel itself, convert this partial into a total loss, —Fleming v. Smith, 1 Clk, & Fin. N. S. 613. Though the master may, by an ordinary rule of law, be considered, whenever the vessel is by capture or other detentions and casualties pre- vented from continuing the voyage, as the agent for all parties concerned, yet the owners, even under such circumstances, may, by their conduct, make him their sole agent, so as to be bound by his acts. — Id. Per Lord Campbell : Notice of abandonment is necessary in order to convert a constructive into an absolute total loss. — Id. The cases of Cambridge v, Anderton, and Soux V. Salvator, shew that where a ship, in conse- quence of the inability of the master to get it off the rocks where it has struck, has been actually sold, or where a cargo of a perishable nature has been so damaged by the sea that its substance is gone, and it can never reach the destined port in specie, the loss in each of such cases is actual, and not constructive, total loss. — Id. Where a prudent owner, uninsured, would have sold, the case amounts to one of total loss. — Id, Upon the purchase of an annuity granted for two lives and the life of the survivor, and made redeemable upon six months' notice, a policy of insurance which had been effected upon the Ufe of one of the grantors, was assigned to the annuitant, and was subsequently kept up by her at her own expense. The life having dropt, the company paid the amount of the insurance to the annui- tant. The annuity having subsequently fallen into arrear, upon a bill filed by the annuitant to raise the eirrears ; Held, that the annuitant was not bound to give credit for the amount received on the foot of the policy as against the arrears of the annuity, but was entitled to retain same as compensation for the diminution in value of the annuity. — Miliiken v. Kidd, 4 Dru. & W. 274. A. effected two policies of insurance upon his life, one in his own name for £425, and the other for £1,700, in the name of J. In the year 1808, he assigned by deed these two policies to J^., upon certain trusts, which were declared in a second deed of the same date, and which was re- ferred to in the deed of assignment ; these trusts were, first, to pay certain trusts of A., and to reimburse J. advances which he from time to time had made to A., and, subject thereto, to hold the residue to form a fund for the daughters of A., in such shares as he should appoint. Upon the death of A., the amount of the policies was claimed by the executor of J., and at the same time notices were served upon the company by the administrator of A., by one of his daughters, and by the husband of another daughter, caution- ing the company against paying the amount of the policies to L. Held, upon a bill of inter- pleader thereupon filed by the company, that as to the policy of £1,700, there was no case of interpleader established, for that although there was no declaration in the deed of 1808, that the receipt of the trustees should be a discharge, yet that the nature of the trusts of the deed was sufficient to absolve the company from seeing to the performance of the trusts, or the application of the money. Held also, that with regard to the policy of £425, the suit was maintainable by reason of the claim of the administrator of A., but that as it appeared that within a few days after the bill was filed, a second notice was served by the same party withdrawing his demand, the plaintiff was not justified in persisting any further 220 INSURANCE. in the suit, and ought to have discontinued. Disposition of the costs of the different parties.-i— Glynne v. Looke, 3 Dru. & W. 11. H. being a trader, and the local agent of an in- surance company whose head office was in Dub- lin, effected two policies of insurance with the company, upon his own life, and subsequently assigned these policies over to a banking firm, to whom he was largely indebted. At the time of the assignments respectively, a formal notice was given to him as agent of the company. H. sub- sequently became bankrupt and Jifterwards died. On a contest between the assignee of the policies and the general body of creditors ; Held, that the notice was insufficient, the transaction being a Dublin one, there being nothing on the face of the policies to show that they were effected in the place for which H. was agent. Semble : when the agent and assignor were the same person, notice to the agent is not sufficient. — In re Hen- nessy, a Dru. & W. 555 ; 1 Con. & L. 559. A party covenanted " to do and perform all ^uch acts, matters, and things, as should be requisite for continuing and keeping on foot" a policy ; Held, that this covenant could not be read negatively, as if he had covenanted to do no act whereby it would become void, and therefore, that the covenant was not broken by the suicide of the covenantor, whereby the policy became forfeited. — Dormay v. Borradaile, 10 Beav. 335. A.'s ship damaged B.'s. B., after he had re- ceived a sum of money, under a policy, which he had effected on his ship, brought an action against A. and recovered damages for the injury done to his ship. Held, that the underwriter had a lien on the amount recovered for the sum paid on the policy. — White v. Dohinson, 14 Sim. 273. Actual notice of the assignment of a policy effected with the Equitable Insurance Society is necessary to take the policy out of the order and disposition of the assured. — Duncan v. Chamber- layne, 11 Sim. 123. Overruled, Thompson v. Speirs, 13 Sim. 469. Notwithstanding a policy of insurance may have been effected with a mutual insurance com- pany, express notice of a deposit of it by way of equitable mortgage must be given to the company in order to take it out of the order and disposition of the depositor. — Ex parte Wilkinson, 13 Sim. 475. A debtor and his wife joined in an assignment of the chose in action of the wife, to the creditor of the husband, to secure £300 owing by the hus- band. The creditor afterwards insured the life of the wife in a sum of £200. The chose in ac- tion was not reduced into possession in the life- time of the wife. The wife died, and creditor re- ceived from the insurance office the £200. Held, in a suit for redemption, that if the creditor had no insurable interest in the life of the debtor's wife, the debtor could have no claim to the ap- plication of the sum assured towards the pay- ment of his debt ; that here the creditor had such insurable interest, but the risk ceased at the death of the wife, and that the money afterwards paid by the insurance office, being paid in their own wrong, the debtor was not entitled to have it applied in reduction of the Aehl.—Henson v. Blachoell, i Hare, 434. All the assured in the Equitable Assurance Office are partners in the society, and therefore express notice of an assignment of a policy effected with that society need not be given, in order to take the policy out of the order and dis- position of the assignor. The report of Bozon v. Bolland, in 1 Mont & Bligh's Reports, corrected. Duncan v. Chamberlayne, 11 Sim. 123. A marriage settlement recited, that it had been agreed on the treaty for the marriage, that the intended husband should insure his life in the Rock Insurance Office, in the names of trustees, in the sum of £3,000 ; that the dividends of cer- tain canal shares should be applied in keeping the policy on foot ; that the said sum of £3,000 under the policy, should be settled in manner thereinafter-mentioned : and that in pursuance of the agreement, the intended husband had made an insurance on his life in the Rock Office, in the sum of £3,000, in the names of the trustees of the deed ; and it was declared that the trustees should stand possessed of the policy in trust for the intended husband until the mar- riage, and that upon the solemnization thereof, they should stand possessed of the same sum of £3,000, when received imder the policy, upon certain trusts, for the benefit of the intended wife, and the children of the marriage. The husband became bankrupt, and afterwards died. On his death a considerable bonus was payable on the £3,000. Held, that the husband's assignees were not entitled to the bonus, but that that sum as well as the £3,000 belonged to the trustees of the settlement. — Parlies v. Bott, 9 Sim. 388. In 1816, D. assigned a policy of insurance on his life to a trustee to secure a sum of money owing to W., and soon afterwards the solicitor of W. caused a memorandum to be entered in the office of the insurance company, directing that all letters were to be sent to such solicitor, and the premiums were thenceforth paid by W. through the hands of such solicitor, but the in- surance company were not informed on whose behalf the solicitor acted. In 1826, D. became bankrupt, and his assignees declined to interfere respecting the policy. The premiums continued to be paid by W. through his solicitor during his life, and by the executors of W. through their bankers after his death. D. died in 1839. Held, that the policy was in the order and disposition of the bankrupt, and that there was not any notice given to the insurance office of the assign- ment of the policy to take it out of such order and disposition. — West v. B^id, 2 Hare, 249. That the conduct of the assignees did not amount to an abandonment of any right which they had to the benefit of the policy. — Id. That the executors of W. had a lien on the policy for the amount of the premiums which Itad been paid by W., and his estate, and the interest thereon ; and that they were entitled to payment of the amount thereof out of the monies payable under the policy. — Id. The bankrupts being mortgagees of various policies of life tissurance of which the respective insurance offices had notice, deposit them with theirbankers to secure the repayment of advances, but the bankers give no notice of such deposit to the diiferent offices. Held, that the policies must be considered as in the order and disposi- tion of the bankrupts within the 72nd section of the Eaiikrupt Act, and that the same principle applied to one of the policies which was effected with a mutual assurance company. — Ex parte Arkwright, 3 M. D. & D. 129. Generally. INTEREST. On Legacy. 221 INTEREST. See Money. — Vend, and Pukoh. — Moktoaob.- Stat. op Limitations. I. II. in. IV. V. VI. VII. VIII. IX. X. XI. xn. xin. XIV. XV. XVI. xvn. xvin. Generally 221 On Legacy 221 On Annuities, and on Arrears of Kent and Annuities 222 On Charqes created by Settle- ment 223 On Judoment 224 When Decree reversed 224 On Costs 224 On Sum Decreed 224 Order to Compute 224 How Far Back 224 Annual Uests 225 On Debt vexatiously withheld 225 On Money to be paid into Court 226 Between Vend, and Purch 225 Payable by Executors 226 Between Principal and Agent . . 226 On Partnership Transactions . . 227 In Case op Bankruptcy 227 I. — Generally. Se« 3 & 4 W. 4, c. 42, s. 28 ; 1 & 2 Vie. c. 110, sa. 17, 18. Requiring mortgagees to allow Property Tax payable upon, 5 & 6 Vic. c. 35, s. 60. Interest payable out of surplus debts not car- rying interest, 46th Gen. Ord., 26th August, 1841. Beav. ed. 177. A creditor, not establishing his debt in the master's office, but by an order of the court in another suit which arose out of the administra- tion suit, is not entitled to interest under this order. — Davis v. Combermere, 10 Jur. 959. A debt due upon a Toluntary bond is to be preferred to the claim for interest under this order. — Garrard v. Lord Dinorben, 5 Hare, 213, S. C. i 10 Jur. 772. The reference to compute interest on debts under this order may be properly made on further directions. — Flintoffy. Haynea, 4 Hare, 309. The Stat. 3 & 4 W. 4, c. 42, s. 28, givmg inte- rest on debts or sums certain, does not apply to cases under this order. — Crosse v. Bedingfield, 2 Sim. 35. By the decree the lands of the defendant were declared chargeable with £40 a-year, and the master was directed to take an account of the arrears, and the defendant was ordered to pay what should be found due. Held, that the de- fendant was not, under the 1 & 2 Vic. o. 110, ss. 17, 18, liable to pay interest on the amount found due from the date of the decree to the date of the master's report. — The Att. Gen. v. Lord Car- rington, 13 Law J. Rep. (N. S.), Ch. 453, 6 Beav. 454. Husband and wife mortgaged their respective estates for securing the husband's debt. Both estates were sold and conveyed free from the mortgage, and in 1832 the debt was paid out of the wife's estate. In 1841, a bill was filed to have the amount recouped out of the estate of the husband which was in court. Held, that the representative of the wife was not entitled to in- terest on the eimount paid. — Lancaster v. Evors, 10 Beav. 266. A testator having an estate subject to a mort- gage bearing interest at 6 per cent., devised it to B., "he paying the mortgage thereon," and he bequeathed to the mortgagee, through his execu- tor, £2,000 to exonerate the estate. The mort- gagee foreclosed, and it having been decided that the devisee was entitled to the £2,000, it was Held, that he was entitled to interest thereon after the rate of 3 and not 6 per cent. — Lockhart V. Hardy, 10 Beav. 292. By a deed between a father and son, reciting that the father was desirous of settling the pro- perty therein comprised, so as to make the same a provision for himself during his life, and for his wife and her children by her, after his decease, he assigned the same and every part thereof to their son, upon the trusts thereinafter mentioned concerning the same. The father proceeded to declare the trusts as to part of his property in. favotir of his wife, a daughter and a niece, but no trust was declared as to the surplus. Held, that the surplus did not result to the grantor, but belonged to the son ; and the father, having been maintained by the son for fifteen years, a bill filed after the son's death by the father, and revived upon the father's death by his represen- tative, was dismissed with costs, as to that part of it which sought an account of interest. — Cook v. Hutchinson, 1 Keen, 42. II. — On Legacy. A testator bequeathed legacies to his daughters, charged upon his real estates, to be paid with in- terest. Held, that the daughters were only entitled to interest at the rate of five per cent. If the circumstances of the gift are such that of itself it will carry interest, it is immaterial whether the testator is silent upon the subject of interest, or generally directs the payment of in- terest.— PwceK V. Purcell, 2 Dru. & W. 217. Interest on legacies is given for delay of pay- ment, and, consequently, until the day of pay- ment arrives, no interest is in general demandable. Donovan v. Needham, 9 Beav. 164. When a legacy is given by a parent to his child, interest is allowed thereon by way of main- tenance, though the day of payment has not arrived. But the rule does not apply where the testator has, by his will, made a provision for the child's maintenance. — Id. Legacy to A., on condition that she gave £3,000 to purchase an annuity for B. In consequence of a litigation between A. and the residueiry lega- tees, A. did not for several years obtain posses- sion of the legacy, and which did not in the mean while make interest. Payment to B., who elected to take the £3,000, in lieu of the legacy, was consequently postponed. Held, that interest on the £3,000 was payable by A. to B. from the end of a year after the testator's death. — The Marquit of Hertford v. Lord Lowther, 9 Beav. 266. A testator made a settlement on his daughter, who was adult, and gave her a legacy by his will. Held, that the legacy did not bear in- terest from the death of the testator, but only from the end of the first year after that event. — Wallv. Wall, 16 Sim. 613. Testator having three illegitimate children (two sons and a daughter), gave £18,000 to trustees, in trust, out of the interest to pay £100 a-year for the maintenance aud education of each of tiiem during their minorities, and to accumulate the residue and add it to the principal, and to pay 222 On Legacy. IXTEREST. On Annuities, 8(c. one third of the aggregate fund to each of the sons, on his attaining twenty-one, and out of the remaining third, to pay £1,000 to the daughter on her attaining twenty-one, or marrying under that age, with the consent of the trustees, and to stand possessed of the residue, in trust, for her separate use for her life ; and the testator directed all the legacies given by his will to be paid within three months after his death. The sons attained twenty-one in the testator's lifetime, and the daughter married under that age, with the testator's consent. Held, that the legacies to the sons and daughter became payable on the testa- tor's death, and, consequently, that they bore interest from that time. — Coventry v. Higgins, 14 Sim. 30. Where a will contains an implied but no spe- cific direction for conversion of the property, and by an innocent mistake it has been left upon the original security, and the income enjoyed by the tenant for life in specie, the court, upon the mis- take being rectified, will, at its discretion, allow the tenant for life interest at the rate of £4 per cent, per anuum, upon the value of the property, as taken at the expiration of one year from the testator's death. — Sutherland v. Cooke, 1 Coll. C. C. 503. Where a testator bequeathed an annuity to his granddaughter for her life, and directed that, if she should die during the lifetime of his widow, the annuity should be paid for the maintenance of the children of the granddaughter, and that from and after the decease of his widow and granddaughter, the value of the amount of the annuity (such a sum as would produce it accord- ing to the then legal rate of interest} should be paid to all and every the child and children of the granddaughter, if more than one to be equally divided amongst them when and as they should respectively attain the age of twenty-one years, and if there should be but one, then the whole to such one chUd, with a gift over, in case of the death of the granddaughter without issue who should attain the age of twenty-one ; the children of the granddaughter are not entitled to the an- nuity or interest of the fund after the death of the widow and their mother until they attain the age of twenty-one years. — Pesting v. Allen, 5 Hare, 675. Testator directed the interest of a sum of money to be applied for the maintenance and education of his infant nephew, but made no disposition of the principal. Held, that the nephew was en- titled to the interest during his life. — Soames v. Martin, 10 Sim. 287. A testator directed his trustees, as soon as con- venient after decease of his vrife, to raise £10,000 for his nephew, an infant, and to invest it, and to apply the income towards his maintenance. The testator had previously given his wife an annuity of £1,000 a-year, payable quarterly. The wife pre-deceased the testator. Held, that the infant was entitled to interest on his legacy from the testator's decease. — Pickwick v. Gibbes, 1 Beav. 271. The testator gave legacies out of a sum of stock to the grandchildren named in his vrill, on their attaining the age of twenty-one, and if any of them should die under twenty- one, their portion to be equally divided among such of them as should attain twenty-one, but if the whole of Ms said grandchildren should die under that age, then he gave the interest of the sum of stock to the father of the said grandchildren for his life, and after his decease the principal as therein mentioned. Held, that the grandchildren were entitled to the interest during their minority. — Boddy V. Dawes, 1 Keen, 362. The testator devised and bequeathed the resi- due of his estate and effects, real and personal, to trustees, upon trust, to convert the same into government securities in their own names, and to pay the interest and dividends thereof to M. S, for her life, and after her decease to pay and transfer such residue in equal moieties to the per- sons therein mentioned. Held, that the tenant for life was entitled to the interest, as it stood at the time of the testator's death, until the end of the one year, or so much of that year as should elapse before the conversion of the residue ac- cording to the direction of the will. — Douglat v. Congreve, 1 Keen, 410. III. — On Anni'ities, and on Arreabs op Rent AND Annuities. An owner of real estates in England and Ire- land granted a number of annuities, some of which were specifically charged, by the deeds, upon the grantor's English estates, with powers of distress and entry for recovering the amount, and all costs, losses, charges, damages, and ex- penses, occasioned by the same not being duly paid ; others were secured by the covenant of the grantor, and a surety, with a proviso for redemp- tion, on payment of a certain sum, and all costs, charges, and expenses ; all of them were further secured by warrants of attorney, to confess judg- ment, upon which judgments were entered up. Upon a bill, filed by an assignee of these an- nuities, after the death of the grantor, for pay- ment of the arrears of the annuities, together with interest, it was held that he was not en- titled to interest upon the arrears of any of the annuities, there being no proof that he had been delayed by the absence or conduct of the grantor. The assignee having afterwards instituted a suit, in Ireland, to recover the arrears of the an- nuities out of the grantor's estates in that country, an order was made directing that, upon payment of what was found due to him in the suit in this court, in respect of the annuities specifically charged, he should execute releases of those annuities, and enter up satisfaction on the judgments by which they were secured ; and be restrdned from prosecuting the suit in Ireland till further order. — Booth v. Leycester, 3 Myl. & Cr. 459. A testator, upon his marriage, covenanted to settle certain property, so as to secure a jointure of £400 per annum for his wife. This covenant the testator never performed ; but he directed the trustees of his vrill to pay the interest of £5,000 to his wife, for her life, in addition to the provisions made for her by the marriage articles ; and that £1,000 of said sum should be paid to such person as his said wife should, by deed or will, direct. There were several other legacies bequeathed by the testator. The £1,000 was paid to the widow during her life, but no portion of the interest which accrued upon the balance of £4,000, in consequence of the widow's claim under the covenant in the marriage articles, having exhausted the whole fund pro- perly applicable for that purpose. XTpon the widow's death, her personal representative claimed the arrears of interest out of the cotjms of the fund, which was insufficient to pay all the legacies bequeathed by the testator. Held, upon Oil Charges, 8^0, INTEREST. On, Charges, 8;e. 223 the true construction of the yrill, that the in- terest was given to tlve wife, in priority to the other legacies ; and that her personal repre- sentative was entitled to be paid the arrears of interest. The interest was directed to be calcu- lated at five per cent., according to the rule of the court, the testator not having fixed any rate of interest. — Pepper v. Bloomfield, 3 Dru. & W. 499. The established rule of this court (which, however, is only general, and not inflexible) is that interest cannot be recovered upon the arrears of an annuity. Interest will be given upon the arrears of an annuity where the person bound to pay it has been a party to the deed by which it was created, and his acts disclose a system of gross misconduct and opposition to the court, for the purpose of evading payment. Mere legal delay is not a sufficient ground to induce the court to give interest ; nor will a mere covenant to pay an annuity be sufficient to create an exception to the general rule. But if there is a covenant to indemnify an aimuitant against the efiect of incumbrances, and the per- ception of the annuity has been prevented by the claims of incumbrancers, and especially if this has occurred in consequence of the acts of the covenantor, a case for damages, under the cove- nant, is clearly shewn ; and this court, in order to prevent circuity of action, obtains jurisdiction to give interest upon the arrears of the annuity. —Martyn v. Blake, 3 Dru. & W. 125. Payment decreed on the arrears of an annuity, secured by bond, with interest, not exceeding, however, in the whole, the penalty of the bond. — Crosse v; Bedingfield, 12 Sim. 35. A mortgagee in possession, who becomes over- paid, pending a suit to redeem, will be charged with interest on the balance, from the date of the report, and on the rents subsequently received by him, from the respective times when those rents were received. — Lloyd v. Jones, 12 Sim. 491. The court will not give interest upon the arrears of an annuity, unless a special case be made. — Booth v. Leycester, 1 Keen, 247. IV. — On Chakges created bt Settlement. A testator gave all his freehold and leasehold estates to trustees, to the use of other trustees, for a term, on trust, if there should be issue of his mar- riage, to raise £2,000 a-^ear for his wife, for her life, in lieu of dower ; and, if there should be younger children, to raise portions for them, to be paid to them, in equal shares, in default of appointment by the wife, at the age of twenty-one, if sons ; and twenty-one, or marriage, if daughters ; but if these events should happen in the vrife's life- time, then the shares to be vested interests, pay- ment to be postponed till her death; and the trustees of the term to raise, in the meantime, out of the rents, &c., sums equal to interest on the portions, for their maintenance ; and on further trust, in case of the insufficiency of the personal estate for payment of debts and legacies, which should become payable under the wiU, to raise, after the wife's death, by sale or mortgage, or out of the rents, &c., of the premises com- prised in the term, a sufficient sum to pay said bequests or legacies. Subject to the term the testator limited the estates, to the first and other sons of his marriage, in tail male, remainder to daughters in tail ; and, in default of issue, to his wife, for life, in lieu and discharge of dower, and of all provision made for her by his own or his father's will ; with divers remainders over. He then gave a great number of pecuniary legacies, some to be paid in any event, and with interest ; others to be paid only in the event of his leaving no issue, and not expressed to bear interest ; and of these latter some were directed to be vested in stock, for the benefit of relations for life, re- mainder to their children ; and after directing that all the legacies should bear interest from the time they should become respectively payable, and be raised and paid accordingly ; he charged the estates and premises comprised in the term with payment of such debts and legacies, in case of the insufficiency of his personal estate ; and he directed the trustees to raise the same, pur- suant to the trusts vested in them for that pur- pose. The testator died vrithout issue. His personal estate was exhausted in paying debts, and the legacies that were directed to be paid in any event, and which were declared to have priority. The questions were : — When were the other legacies to bear interest, and how was it to be paid? Held, that the unpaid legacies were well charged on the lands comprised in the term, but not to be raised until after the death of the testator's wife ; and that interest on them should be paid during her life out of the rents and profits of the said lands Earl of Milltown v. French and others, i Clk. & Fin. 276. Where an equity of redemption is put in settle- ment, though the tenant for life is the party bound to pay the interest upon the mortgage, yet the mere laches of the mortgagee to demand such interest from the tenant for life, will not prejudice his claim against those in remainder, — Wrixony. Vize, 2 Dru. &W. 192. By deeds of settlement and appointment, a sum of £15,000 was charged for three daughters, and appointed to them in equal shares, payable at twenty-one, or day of marriage, with interest from the death of the father ; by a subsequent deed, whereby the estates were resettled, a term of five bundled years was created — one of the trusts of which was to raise in ease all the three daughters should attain the respective ages of twenty-one years, unmarried, a sum of £6000, and pay to each of the daughters a sum of £,2000 in addition to the portions provided for them by the previous deeds, with a proviso, that if any of them should happen to die before twenty-one or marriage, the said sum of £6,000, or any part thereof should not be raised. Held, upon the true construction of this latter deed, that interest on the additional portions thereby provided, was only payable from the time when the youngest daughter attained twenty-one years, the deed in ever^ other instance in which it was intended that interest should be given, having expressly provided for the payment of interest. In the construction of family deeds, when the intention is plain to give interest, the court is bound to effectuate such an intention, even though there are not express words to that efiect. An inten- tion, apparent on the face of a particular clause, that a sum given in addition to portions already provided should bear interest, may be controlled by the general intention, appearing on the entire instrument.— Ctoyton v. The Earl of Glengall, 1 Dru. & W. 1. By deed of settlement, £5,000 was charged upon the estates, comprised within the setSe- ment for the younger children of the marriage, and 224 On Sum Decreed. INTEREST. How far back. A. B., the husband, was given a power of ap- pointment amongst those children. A. B. by his will executed the power so given to him, by giving the £5,000 to his four younger children in equal shares but declared these shares should not vest till twenty-one, or mar- riage, and that, in case of any share not vest- ing, it should go to the survivors, and that the acuruing shares should in like manner as the original shares, go over to the survivors and sur- vivor. He also directed that interest, at six per cent, per annum, should be paid the said children, upon their respective portions, until the same became vested. By his will he gave a further sum of £3,000 to be equally divided between his said younger children, share and share alike, and subject to the same limitations in all respects as thereinbefore-mentioned, with re- spect to the said sum of £5,000. Held that the younger children were not entitled to interest upon their additional sum of £3,000, until they attained their ages of twenty-one years, or were married. — Bredin v. Bredin, 1 Dru. & W. 494. V. — On Judgment. On a judgment affirmed on writ of error, the House of Lords gives interest from the day of its affirmance by the Exchequer Chamber, pursuant to the provisions of the Statute 3 & 4 Wm. 4 c. 42, s. 30. — Garlands. Carlisle, 5 Clk. & Pin. 3'54. Interest on debts by judgment recovered against the Executor. — Gaunt v. Taylor, 2 Hare 414. ' VI.— When Decree Eeveesed. . A party recovered payment at law, but on equitable gi-ounds repayment was decreed. Held, that the plaintiff was also entitled to interest on the amount recovered from the time of its pay- ment. — Young V. Guy, 8 Beav. 147. Where a decree or order under which money has been paid, is reversed on appeal, the money is in general ordered to be repaid without inte- rest. — Parker v. Morrell, 2 Phil. 453. VII.— On Costs. Interest on a bill of costs while under taxation not allowed. — In re Smith, 9 Beav. 342 Under 1 & 2 Vic. c. 110, ss. 17, 18, interest is recoverable on costs which one party is ordered to pay to another, but not on costs directed to be raised out of an estate.— ^«. Gen. v. Nethercote, 11 Sim. 529. A party was directed to pay certain costs, and make other payments, but was declared to be entitled to be indemnified out of the funds in court. Held, that he was entitled to interest at 4 per cent, on all sums paid for costs or otherwise. — Wainman y. Bowker, 8 Beav. 363. VIII. — On Sum Decreed, By the decree, the lands of the defendant were declared chargeable with £40 a-year, and the master was directed to take an account of the arrears, and the defendant was ordered to pay what should be found due. Held, that the de- fendant was not, under the 1st and 2nd Vic, e. HO, ss. 17, 18, liable to pay interest on the amount found due from the date of the decree to the date of the master's report.— rAe Att. Gen. v. Lord Carrington, 6 Beav. 464. The purchaser of a reversionary interest under the decree of the court, is bound to pay interest at the rate of 3J per cent, on the three-fourths of his purchase-money from the date of the report of good title, (he not having been guilty of any laches up to that period), to the date of its lodg- ment. So, also, if the interest sold be in its nature reversionary, though there should be a small present profit arising from it. — Butchinson V. Cathcart, 1 Jon. & Ca. 260. IX. — Order to Compcte. Where one of two obligors in a joint and several bond had become bankrupt, and the obligee hav- ing, by several dividends in the bankruptcy, been paid 20s. in the pound upon the amount of prin- cipal and interest, due at the date of the commis- sion, also carried in a claim in respect of the same bond, under a decree in a suit for the adminis- tration of the estate of the co-obligor, who had died. Held, that the amount due to the obligee in respect of such claim was to be computed by treating the dividends as ordinary payments on accoimt, that is, by applying each dividend in the first place to the payment of the interest due at the date of such dividend, and tlie surplus, if any, in reduction of the principal. — And, Semble, the same principle of computation is applicable in bankruptcy, as between the bankrupt and the creditors, where there is a surplus of the estate after payment of 20s. in the pound upon all the debts proved.— jBower V. Harris, 1 Or. & Ph. 351. The reference to compute interest imder the 46th order of Augnst, 1841, on debts not by law carrying interest, may be made on further direc- tions, although not made at the hearing. — FlitUoff V. Haynes, 4 Hare, 309. Where the amount of principal and interest due upon a mortgage has been found by the master's report, the rule now is to compute subsequent interest upon the principal only, and the time for payment of the money found due upon a mort- gage is enlarged, upon the terms of paying the interest and costs lound due.— Whattony. Cradoek. 1 Keen, 267. X. — How Far Back. In the year 1818, A. entered into a contract with B. for the purchase of four denominations, and made an advance of £2,000 on account of the purchase-money. The treaty having been broken off, A. became an incumbrancer to the extent of the advance. In 1819, upon the occa- sion of the marriage of B., by indenture of settle- ment, the four denominations were conveyed to trustees, as to two of them to the uses of the mar- riage in strict settlement, and as to the remaining two upon trust, to sell whenever the settler should require the trustees so to do, and apply the pro- duce in pajrment of the several incumbrances enumerated in the schedule of the deed. A. was the third incumbrancer mentionedin the schedule, but neither her nor any of the incumbrancers were parties to the deed. There never was any sale pursuant to the trusts of the deed. Held, that the interest on A.'s incumbrance was to be com- Annual Rests. INTEREST. Between Vendor, Sfc. 225 putcd from the period of six years prior to the filing of the hill.— Low v. Bagwell, 4 Dru. & \V. 398. By deed executed in the year 1809, certain lands were conveyed, subject to the payment of a sum of money, which the grantee thereby cotb- nanted with the grantor to pay to third persons. Held, that notwithstanding the covenant, only six years arrears of interest could be recovered. — Hiiglies V. Kelly, 3 Dru. & W. 482. Debts secured by judgment are " sums of money charged upon or payable out of land," within the meaning of the Statute 3 & 4 Will. 4, c. 27, and only six years' arrears of interest can be recovered upon such debts. In relation to the statute of limitations, the rights of judgment, creditors for arrears of interest as against the real and personal estates of their debtor are equal and co-extensive as far as the bar of the statute ope- rates for the protection of the real estate, to the same extent the personal estate is protected. The Statute 8 & 4 Vict. c. 105, s. 26, enacts, " that every judgment due upon any judgment not con- fessed or recovered for any penal sum for securing principal and interest shall carry interest, &c. The interest thus given is subject to the limitations of the Statute 3 & 4 Will. 4, c. 27, 8. 42.— ITewry V. Smith, 2 Dru. & W. 381. A., who, under a settlement entered into upon the marriage of his father in 1783, was entitled to a younger child's portion, filed Us bUl in 1835 for the purpose of raising the same, praying at the same time an account of all prior incum- brances, the inheritrix having set up certain prior articles executed in the year 1765, upon the mar- riage of the plaintiflF's elder brother, and which articles had been duly registered in the year 1767. The plaintiff amended his bill in 1829, by bringing before the court B. and her husband, who were the only parties beneficially entitled voider these articles. B. having answered the bill, a decree was pronounced in 1834, according to the terms of the prayer, and the usual reference made. B. and her husband claimed before the master, in right of her charge, under the articles of 1765, the principal sum so charged by those articles, and sixty-eight years interest thereon, the master having made his report. Held, upon exceptions thereto, that the account of interest on foot of this charge should be confined to the filing of the bill,— Pcjio» V. iI'Dermott, 1 Dru. & Wal. 198. XI. — AirarAL Rests. _B. mortgaged certain premises to L. The pre- mises were required to be partly pulled down and rebuilt ; P. undertook to perform the work, but required security for the payment. An agreement was entered into between B., L. and P., by which L. consented to become tenant of part of the premises when rebuUt, and to take a lease of them from P., to whom B. had assigned his interest for a term of years, and to pay P. £1,000 for the lease, and £250 a-year for rent. The premises having been rebuilt, L. entered into possession, but as no lease was granted by P., did not pay the £1,000, nor the £250 a-year rentj in a suit afterwards instituted by P., and which both B. and L. were parties. Held, that the ac- counts of what was due to L. on the mortgage were not to be taken with annual rests, as the accounts on the other side could not be taken in the same manner, either as to the £1,000 or the the £250 a-year rent. — Page v. Linwood, 4 Clk. & Fin. 399. B., up to a certain period, made up half-yearly acknowledgments of the balances due from him* self to P. On one occasion he gave an acknow- ledgment of a gross sum due from himself to P. ; a part of the sum thus acknowledged to be due was formed of compound interest. B., by a sub- sequent agreement with P., bound himself to make up half-yearly balances, and to pay the sums found due in respect of the building as the different parts of the work were finished and valued : B. did not keep up these payments. Held, that when accounts were decreed, P. was not entitled to have them calculated with half- yearly rests, the agreement not necessarily giving him any such right, and the precedent of the ac- knowledgment not establishing this as a settled mode of dealing between the parties, if such a mode could be legal by agreement or practice.— Quare. — Whether it could be legal. — Page v. Broom, 4 Clk. St Fin. 436. Under a direction, in a decree, that the master shall ascertain balances in the hands of a party at the end of each year, and shall compute in- terest on such balances, and shall " in taking the said accounts" make annual rests, followed by a direction that the party shall be charged with interest " after the rate and in manner aforesaid upon such balances." The interest computed on the balance due at the end of the first year, is to form part of the balance due at the end of the second year, and upon interest is then to be com- puted, and so on from year to year to the end of the account. — HeigAington v. Grant, 5 Myl. & Cr. 258. Annual rests are directed in the accounts in this cause. — The Incorporated Society y. Richards, 1 Dru. & W. 258. Xn. — On Debt Vexatiouslt Withheld. Interest at 4 per cent, ordered to be paid upon a debt, not in its nature bearing interest, vex- atiously withheld by a husband from the exe- cutor of his deceased wife. — Meredith v. Bowen, 1 Keen, 270. Xm.— On Money to be Paid into CotjRT, A. B., on whose estate the plaintiff had a charge for principal and interest, being desirous of pav- ing it, instead of having it raised out of the estate, was ordered to pay it into court by a given day. He made default, and applied for an extension of the time, which was granted. Held, that the plaintiff was not entitled to subsequent interest on the aggregate of principal and interest due, but on the principal oiaXy.— Wilkinson v. Charles- worth, 2 Beav. 470. XIV.— Bbiween Vend. & Pcech. Under an Inclosure Act, an allotment had been made to the impropriator in lieu of tithes, and, by the act, the tithes were made to cease on the allot- ment being made ; but the act did not authorize the sale (rf allotments before the execution of the award. In the interim the impropriator agreed ^/u ir^^?""*'"^'^*^'"^ ^70"> *o te paid on the 25th March then next, on a good and valid title bemg made and executed. The award was not Q 226 Vendor §c. INTEREST. Principal and Agent. made until several years after the agi cement, but the purchaser had been all along in possession of the allotment. The court ordered him to pay i per cent, interest on his purchase money from the 25th March next, after the date of the agreement, although a good title could not be made until the award was executed. — Att, Gen. v, Christ Church, V3 Sim. 214. On a sale under the court in June, 1839, it was provided by the conditions, that the abstract should be delivered in twenty-one days, that the purchaser should be entitled to rents from October, and pay his purchase money in November j and if " from any cause whatever" it should not be paid at that time, he should pay interest at 5 per cent. The vendors were unable to deliver the abstract within the time, and there was great delay and difficxilty on their part in making out their title, which was not complete till 1845. The pur- chaser had entered into possession. On a motion made in 1845 to pay the purchase money and in- terest into court, the court Held, that it could not relieve the purchaser from payment of interest, but made the order without prejudice to any application for compensation, — Greenwood v. Churchill, SBeav. 413. On a decree for the specific performance of a contract for the purchase of a reversion expectant on a lease for lives, the vendor is entitled to in- terest on the purchase money from the day on which the master reports that a good title could have been made. — Enraght v. Fitzgerald, 2 Dru. & W. 43. A purchaser from the assignees of a bankrupt is entitled to receive interest upon his deposit, whether the purchase be proceeded with or not. —In the matter of Page, 1 Dru. & Wal. 29. By a decree of 1834, certain purchase money was ordered to be lodged in bank to the credit of the cause, " with interest thereon." This was not done, and, in 1841, a decree was made in a sup- plemental cause, declaring the plaintiif entitled to the benefit of the former decree against new parties and directing an account to be taken of the sums due on foot of the purchase money. The master made his report in 1844, and calculated interest on the purchase money at the rate of six per cent. Held, that the case did not fall within the operation of the 106th rule of March, 1834, and that the interest was correctly ascertained. — Baldwin v. Belcher, 1 Jon. & L. 18. The purchasers of certain mines having paid part of their purchase money, and having been let into possession, agreed to pay the residue of the purchase money by instalments, and, in the meantime to pay to the vendor half-yearly, inte- rest on what should remain due. Having paid one half-year's interest, but no portion of the re- maining purchase money, they filed their bill to set aside the contract ; the vendor then recovered the next four half-yearly portions of interest by several successive actions, but, upon bringing his action for the fifth, was restrained by an order for an injunction in the suit instituted by the plaintiff's. The terms of that order, dated the 28th of February, 1829, were, that, upon the plaintiff's paying into court the sum which was the subject of that action, the defendant should be restrained, &c., and that upon their continuing from time to time to pay in the like sums half-yearly, the injunc- tion should be continued to the hearing. Under that order, several half-yearly instalments of inte- rest were paid in and invested, and made to accu- mulate in the funds ; but, under two subsequent orders, made at the instance of the defendant, for the purpose of enlarging publication, all further payment into court of these half-yearly sums was suspended until the hearing. The cause was heard in November, 1831 ; and in the foUowhig November, judgment was given in favour of the plaintiifs, under which the accumulated stock was sold out, and paid to them, and the de- fendant was compelled to pay £9,766 for costs. In March, 1838, the House of Lords reversed this decree, and remitted the cause back to this court, to do therein as should be just and consis- tent with their reversal. Held ; — First, that the defendant was entitled to be repaid the sum of £9,766, but without interest. Secondly, that as to the instalments of interest which became due on the unpaid purchase money after the decree in the court below, the defendant had no remedy in this suit, but must be left to his remedy at law. Thirdly, that the defendant was entitled to be repaid, in this suit, the instalments of interest which became due between the orders for sus- pension and the decree of the court below, but that he was not entitled to interest on these instalments. Fourthly, that the defendant was entitled to the value of the accumulated stock sold out at the hearing. Fifthly, that if the stock had been merely transferred to the plaintiff, and not sold out, they would have been accoimtable to the defendant for the dividends since received upon it. — Small v. Altwood, 3 Y. & C. 105. Where money is paid out of court through the erroneous act of the court, the party who re- ceives it, and is called upon to refimd, is not liable to pay interest upon it. — Id. XV. — Payable by Executors, A. claimed a debt before the master in an ad- ministration suit. The executors resisted the claim and the master disallowed it ; but a suit was afterwards instituted. In which the claim was established, and liberty was given to A. to apply for payment of his debt in the administration suit. Held, that as he had not established his debt in that suit, he was not entitled to interest upon it, under the 41st. General Order of August, 1841, — Davis v. Combermere, 15 Sim. 394. A firm in India colleeted the estate of a de- ceased person in that country, under a power of attorney from the administatrix in England, and remitted the amount to their agents, a firm in London, with an order to pay it to the admi- nistatrix, upon receiving a proper discharge. The London firm declined to pay over the fund to the administratiix, on the ground that the letters of administration which she had obtained did not bear a sufiicient stamp, A suit was soon after- wards instituted by other persons claiming to be next of kin of the intestate, for the administration of the estate, and to restrain the payment to the testatrix, 'The London firm were defendants to the suit. No application was made to pay the money into court for upwards of ten years, and during the whole of this period it remained in the hands of the London firm, mixed with their own monies. Held, that the London firm was not liable to pay interest on such monies, — Wolfe, V, Findlag, 6 Hare, 66. XVI,— Between Principal and Agent, The defendant wrote to his receiver and pro- fessional agent as follows : — " If vou remit the Sankntpic'j. INTEREST.— INTEREST VESTED. 227 £400, 1 can give you a note for it when you come to London," The money was advanced, but no note was signed. Held, that a special contract must be inferred, and that interest was payable by the defendant. — Rhoades v. Lord Selsey, 2 Beav. 359. XVII. — On PAaTNEttSHXP Tuansactions. A Scotchman in Calcutta opened an account with a banking and agency house there, in 1786, and died in 1810, having been insane from 1793. A partner in the house being in Scotland in 1812, enclosed in a letter to the customer's rela- tives there, an account current with him fiom 1787 to 1810, signed by the firm, being annual balances in his favour, composed of annual accu- mulations of Indian interest; the last balance expressed " to bear interest at nine per cent, per annum." In 1835, the customer's relatives ob- tained administration of his estate, and prose- cuted actions which were before commenced in the Scotch courts on the account current, against another partner, who joined the firm in 1793, and continued a partner, through several changes, till 1820. And they claimed interest at nine per cent, upon the last balance in 1810, and upon the annual accumulations thereof since. Held, by the Lords first, (concurring with the court below) that a debt was sufficiently constituted against the firm, by the account rendered by them, together with interest at nine per cent, on the last balance in 1810,down to final decree, and that one partner was bound by the account so rendered. Secondly, (differing from the court below) that the debt did not carry compound interest &om ISlU.—Fergusson v. Fj/ffe, 8 Clk. & Fin. 121. There cannot be a title to compound interest without a contract, express or implied, or custom. —Id. By the law of England, a contract for com- pound interest is not valid, except in mercantile accounts current, for mutual transactions. — Id. A stipulation that interest should be allowed on the capital of partners, presumed under the circumstances. — Millar v. Craig, 6 Beav. 433. In a partnership between A. and B., interest was allowed on the capital. C, who was a clerk and relative, was cognisant of the terms on which this partnership was carried on. B. re- tired, and A. and C. continued the business ; the whole capital embarked therein belonged to A. There was an absence of all proof of any agree- ment between A. and C, in respect of interest on capital. D. and E. were afterwards admitted into the business, and an interest account of capital was then resumed. Held, under these circumstances, and from the knowledge that C. had of the terms on which the first partnership had been carried on, that it must be assumed that interest on capitiil was to be allowed in the second partnership. — Id, XVIII. — In Case op Bankbcptcy. Not paid to separate creditors out of separate estate till joint creditors have received principal. — Ex parte Wood, 2 M. D. & D. 283. Where one of two obligors in a joint and several bond had become bankrupt, and the obligee having, by sevt-ral dividends in the bank- ruptcy, been paid 20s. in the pound upon the amount of the principal and interest due at the date of the commission, also carried in a claim in respect of the same bond under a decree in a suit for the administration of the estate of the co> obligor, who had died. Held, that the amount due to the obligee in respect of such claim, was to be computed by treating the dividends as ordi- nary payments on account, that is, by applying each dividend in the first place, to payment of the interest due at the date of such dividend, and the surplus, if any, in reduction of the principal, and, Semble, that the same principle of computation is applicable in bankruptcy as between the bank- rupt and his creditors, where there is a surplus of the estate after payment of 20s. in the pound upon all the debts proved. — Bower v. Marria, 1 Cr. & Ph. 351. During the pending of an appeal by an equit- able mortgagee from the decree of the court, it was agreed between him and the bankrupt's assignees that the property should be sold, and the proceeds invested by the assignees, to abide the result of the appeal which was accordingly done. Three years elapsed before a final order was made in favour of the mortgagee. Held, that although he was entitled to the interest made by the assignees from the investment of the pro- ceeds of the sale of the property, he was not entitled to have interest calculated on his debt subsequent to the date of the fiat. — Ex parte Pollard, re Courtney, 1 M. D. & D. 264. INTEREST VESTED. See Settlement. — ^PoarioNS. A sum of money was bequeathed in trust for several tenants for life in succession, with re- mainder to such i)erson or persons as one of them, who was a married woman, should by wUl ap- point, and in default of such appointment, " to and for the benefit of her executors or adminis- trators." The lady died without making any appointment. Held, that her personal represen- tative took the reversionary interest in the fund, not beneficially nor in trust for her next of kin, but as part of her estate. — Att. Gen. v. Malkin. 2 Ph. 64. By articles of agreement, it was provided that the interest of a fund which was vested in trus- tees should be paid to Lady C, for her life, and after her death, the principal to go amongst the then unmarried children of herself and her hus- band, as her husband should by deed or wiU appoint, and in default of appointment, equally among the children who should be living at the death of the husband. The fund was invested in lands pursuant to a trust in the articles contained, and the testator, by his will, appointed the lands among his four sons, as follows : — ^A. to John, B. to George, C. to Henry, D. to Nelson, to go to them immediately from and after the decease of Lady C, with a clause of survivorship among the brothers, if any of them should die before they became respectively entitled thereto. The tes- tator, by two subsequent deeds of appointment, irrevocably appointed A. to John, and C. (before given to Henry,) to George, and by a codicil, (in which these two deeds were recited,) he revoked the appointment of C. to his son Henry in the will contained, and instead thereof appointed to him B. Henry died after the testator, but before the death of Lady C, having, by his will, devised 228 INTEREST VESTED. the lands of C. upon certain charitable trusts. Held, that, upon the true construction of the will of the testator, the lands of C. were to be considered as vested, when Henry made his wQl, the death of the sons there provided for, meaning a death in the lifetime of the testator, and not of the tenant for life. Lady 0., and that the gift over was only to take effect in such event. — The Com- missioners of Charitable Donations and Bequests v. Cotter, 1 Dru. & W. 498 ; 2 Dru. & W. 615. By a marriage settlement, lands were settled upon the husband for life, with remainder to the issue of the marriage in such shares, &c. , as the husband should, by will, appoint, and in default of appointment to the issue, share and share alike. Held, that the several children of the marriage, as they respectively came in esse, took immediate vested interests in the lands, liable to be divested by the husband's exercise of his power of appointment. — Heron v. Stokes, 2 Dru. & W. 89. A testator gave his real and personal estate, after paying four annuities, to one for life, and, after his death, he directed his personal and the produce of his real estate to be divided amongst the children of A., living at the testator's death, when the youngest attained twenty-one, if the annuitants should be then dead, but, if not, then his trustees were either to invest it and pay and apply the residue of the income in the mainte- nance, &c., of the children according to their dis- cretion, or accumulate such accumulations to be paid after the death of the surviving annuitants, with the original shares. There was a gift over in the event of the death of any child who should become entitled to a distributive share before his share became "payable." One of the children pre-deceased an annuitant. Held, nevertheless, that the bequest was vested, and that the gift over did not take effect. — Butterworth v. Harvey, 9 Beav. 130. Testator gave the residue of his real and per- feonal estate to trustees, in trust, for his three nephews, their heirs, &o., as tenants in common, with cross remainders, and benefit of survivor- ship, in case any of them should die before their shares in the trust property should become vested in them, which he desired might not be shared until his youngest nephew should attain twenty- four, and he directed his trustees to maintain and educate them out of the income of the property during their minorities. The nephews were in- fants at the testator's death. Held, nevertheless, that they took vested interests under the will. — yarkin v. Hodgkinson, 15 Sim. 293. Testator directed the dividends of two sums of stock to be equally divided between all his nephews living at his decease, and after the de- cease of any of them, the capital of his share to be sold, nnd the proceeds to be divided amongst his children ; and In default of such issue then to go and be divided amongst the children of A., and in case all A.'s issue should be dead, then to be divided amongst the children of B. A. had four children, 'I'hree of them died ; and then one of the testator's nephews died without issue. Held, that the three deceased children, as well as the 'surviving child of A., took vested and trans- missible interests in the deceased nephews' shftre of the stock. — Cohen v. Waley, 15 Sim. 318. Testator gave his residuary, real, and personal estate to trustees, in trust, to pay the rents, inte- rest, and dividends thereof to his wife for her life, and, after her decease, to sell, convert into money, collect, and get in the tame, and to pav and divide the monies to arise therefrom, unto, , and equally between, and amongst, such of the children of his sisters, Martha, Phoebe, Alice, &o. as might be living at the time of the decease of his wife, and the issues of such of them as might be then dead, in equal shares and proportions, such issue only to take the share which their re- spective parents would have taken if living ; provided such children or issue should then have attained twenty-one, otherwise to pay to them, the interests of their shares until they should attain that age, and then to pay them the prin- cipal. The testator's wife survived him. Each of his sisters had several children. A child of Martha died before the testator's wife, leaving children, and one of those children also died before the testator's wife. Held, nevertheless, that that one took a vested and transmissible interest in the testator's residuary estate. — Lyon V. Coward, 15 Sim. 287. Bequest of sums of consols and £4 per cent, annuities to the testator's wife, for her life, and at her decease, one-half of the produce of such sums to be received and divided amongst the testator's surviving brothers and sisters, and their issue, share and share alike. Held, that the brothers and sisters living at the death of the testator, took vested interests in the fund, liable to be divested by their death, leaving issue before the period of distribution, and that such issue took by substitution for their parents. — SImilery. Groves, 6 Hare, 162. By a decree of 1814, it was declared that the consolidated sum for principal and interest upon foot of a portion provided by settlement for younger children, was well charged upon the lands in the decree mentioned, and the said de- cree directed the interest to be thenceforth calcu- lated upon this consolidated sum upon a bill filed by the said plaintiff,, in whom the charge had become vested, the court refused to give him the benefit of the decree, unless he consented to "waive his claim to interest on the consolidated sum. — O'Connellv. M'Namara, 3 Dru. & W. 411. By indenture of settlement of the year 1808, and made on the marriage of A., certain premises which were chattel, were conveyed to trustees for the use of A. for life, and from and after his decease subject to a jointure for his intended wife, to the use of the issue of the said marriage, and for want of such issue, to the use of A. for ever, and a power was given to A. by the sad deed, " that he should be at liberty to raise by said deed, mortgage, or by any other writing, a sum of £1,000, to be applied to any purposes the said A. pleases, in case the said marriage shall take effect, but the said sum of £1,000 is not to be raised by the way of the sale of said lands." A. having become indebted to Q. H. in the sum of £1,500, assigned his life estate to the said Q. H. by way of mortgage, and for the more effectually securing the payment of the said sum of £1,500, he, by virtue of the power in the said settlement granted and appointed by way of mortgage the said sum of £1,000. In 1817, A. became bankrupt, and under an order made in the matter of the banltruptcy, all the estate and interest of the assignee, and also of Q. H., were purchased by the plaintiff, and assigned by deed of the 1st of October, 1818. A. subsequently died. On a bill filed by the plaintiff to have the benefit of his purchase, it was Held, on appeal to the House of Lords, that by virtue of this assign - ment, the plaintifFbecame entitled to this sum of £1,000, in addition to the life estate of the bank- INTEREST VESTED. 229 Tupt. The cause now coming on upon report of the master, ascertaining the amount due to the plaintiff for principal and interest, Held, that the settlement of 1808, under which the right to charge the sum of £1,000 arose, authorised the creation of that charge with interest. — Simpson V. O' Sullivan, 3 Dru. & W. 446. Testator gave his real and residuary personal estate, in trust, to pay an annuity to his nephew, and, subject thereto, in trust for his daughter for life, remainder in trust to pay the income for the maintenance of all and every such child and child- ren as she might leave at her decease, during his, her, or their minority, and when the youngest should have attained twenty-five, to pay, assign, and trans- fer the income, together with the principal, to the children, the same to be divided equally between them, share and share alike ; but if any of them should die leaving a child or children who should attain twenty-one, then to pay and assign the share of such child to such his or their child or children ; and then the testator expressed his further will to be, that his trustees should imme- diately after his nephew's decease, convey, re- lease and assign all his freehold and leasehold estates unto the heir or heirs who should be legally entitled thereto ; and in case his dau:;hter should leave no child or children, or they should die under age and unmarried, then in trust to pay and assign the income, together with the whole residue, unto and equally between his next of kin. The daughter left five children living at her death, all of whom attained twenty-five. Held, that the trust for them was not void for re- moteness, but that they took vested interests in the trust property on their mother's death. — Mil- roy v. Milroy, 14 Sim. 48. Testatrix bequeathed the residue of her funded property in trust for her niece for life, and after her death to be equally divided amongst all her children, whether sons or daughters, share and alike, in case it should happen that there was but one cliild at the niece's death, then to go to that one only child, and in case of failure of issue to go as the niece should appoint by her will. The niece had eleven children, three of whom died in her lifetime. Held, that all the children took vested interests, and as more than one survived their mother, there was no divesting of interests. — TempUman v. Warrington, 13 Sim. 267. Testator bequeathed £10,000 in trustfor his son J. L. J. for life, remainJer in trust for the children of J. L. J., when and as they should attain twenty- one, as tenants in common, and if any of them should die before their shares became payable, leaving issue, their shares to be paid to their issue, but if any of them should die before their shares became payable, leaving no issue, their shares to be paid to the survivors, at the same time as these original shares should become payable, and if j. L. J. should have no child, or having such, they should all die under age and without issue, then the trust fund to sink into the residue, which testator gave to two of his other children. J. L. J. had four children, all of whom attained twenty-one, one of them died in his life-time, without issue. Held, that "pay- able" meant, attained t\venty-one, and, conse- quently that one- fourth of the fund vested in the deceased child.— Joraes v. Jones, 13 Sim. 561. Testator bequeathed his residuary estate to ti'ustees, in trust, to pay the interest to his niece, for life, and directed that after her death, the trustees should pay, apply, transfer pud dispose of the residue amongst her children equally, to be divided between them, share and share alike, to be paid to sons at twenty-one, and to daughters at that age, or on their marriage ; and he em- powered the trustees, after his niece's decease, or in her lifetime, with her consent, to raise, pay, and apply for the preferment and advancement of her children, all or any part of the presump- tive piirtions, under the trusts aloresaid. Held, that there was no gift to the children, except, in the direction to pay them, and therefore their portions did not vest in them, until such of them as were sons, attained twenty- one, and such of them as were daughters, either attained that age or were married. — Chevaux v. Aislabie, 13 Sim. 71. Testator, directed his trustees to pay the interest of £,2500 to his daughter for life, for her separate use, and after her death, for the maintenance of all her children, until they should attain twenty-one, and then the principal to be equally divided amongst her said children, and if his daughter should die without leaving a child, then, that the principal should be divided amongst all his own children then living. The daughter had children, but they all died under twenty-one. Held, nevertheless, that the legacy vested in them. — Parker v. Golding, 13 Sim 418. Legacy to Anne, the wife of f'eter, for life, remainder to Peter, the husband, for liis life, and after the death of the husband and wife, upon trust, to pay the interest for the maintenance of such children of Anne as should be living at her death, until they should respectively attain twenty-one, and when and as they should severally and respectively attain their said ages of twenty-one years, upon trust, to pay and transfer the legacy equally unto and amongst all the children of Anne, when and as they should severally and respectively attain their said ages of twenty -one years ; and if any of the said children should die under twenty-one, then unto such as should attain that age, share and share alike; and in case all and every of the said children should die under age, then to pay the legacy to the testator's next-of-kin. The children of Anne who attained twenty-one years of age acquired vested interests in the legacy, notwith- standing the children died in the liietirne of Anne, the tenant for life. — Bradley v. Barlow, 5 Hare, 589. E.. W., by his vrill, gave to his daughter, R. W., £1,500; to his daughter, S. W., £1,000; and ta his daughter, C. W. £1, 200" the said respective- suras to be paid to my said daughters respect- ively, on their respective days of marriage, with lawful interest thereof, to be computed, from the- day of my decease, until the same shall be.. respectively, fully paid." Held, that the legacies, beuig to be paid, with interest, were vested, and only soimded in contingency, and, that the plaintiff, as the personal representative of K. W„ and C. W., who had both survived the testator, but died unmarried, was entitled, to then- res- pectivelegacies. — Vizey. Stoney, 1 Dru. & W 337 ■ 2 Dru. & Wal. 659. A testator gave specific legacies to three of his nieces, (daughters of his sister) by name, and the residue to his sister and her husband, for their lives, subject to an annuity to A. and after the death of the parents and A. he directed the residue to be "divided equally between the daughters of his said sister," and which ho bequeathed " to his said nieces." There was a gift over, if no daughter of his sister should then be hvuig. The sister had four (laughters born, at the date of the will and another born aitc^ 230 INTEREST VESTED. the testator's death ; some only survived the tenants for life. Held, that the residue was divisible among all the nieces, and that they took vested interests, subject to be divested in an event which had not happened. — Locker t. Bradley, 5 Beav. 593. Bequest of the interest of the residue to the ■widow for the maintenance of the testatator's children, and, after her decease, the property to be shared equally amongst all his children if they should have attained twenty-one, and if any had not attained that age, then that his executors should act as trustees until the eldest attained that age, and then to pay him his share, and each one, as he or she attained that age. A child who died under twenty-one, in the life- time of the widow. Held, not to have a vested interest. — Butcher v. Leach, 5 Beav. 392. Testator bequeathed the dividends of £10,000 stock to his wife for her life, and after her decease he gave and bequeathed the principal unto and amongst A., B., C, and D., and all and every other, the child and children of W., that might be living at the decease of his said wife, to be transferred and paid to them, respec- tively, on their attaining the age of twenty-one years, with benefit of survivorship in case any of them should die under that age. W. never had any other children than those named in the ■will. They all attained twenty-one, and died in the lifetime of the widow. Held, that they took vested interests in the £10,000 stock, — Roberts V, Burder, 2 Coll. C. C. 130. Testatrix gave an annuity of £50 to her son- in-law for his life, provided he remained un- married, but if he should marry, the annuity to cease, and after his death or second marriage, whichever should first happen, she gave £1,000 to be equally divided between her brother and sisters, and if they should not all be then living, she gave the share of him, her or them, so dying, to be equally divided between them, her survivors, brothers and sisters. The testatrix's brothers and sisters all died, in her son-in-law's lifetime, 9nd he died unmarried. Held, that the brother and sisters took a vested interest in the £,1000 as tenants in common. — Peters v. Dipple, 12 Sim. IQl. By a marriage settlement a fund Was settled on the wife if she should survive her husband, for her life, remainder to her chOdren, who, being sons should attain twenty-one, or being daughters, should attain that age or marry ; and the trustees were directed to apply a portion of the children's expectant shares for their maintenance and to .accumulate the surplus for the benefit of such person or persons as should be entitled thereto by virtue of the settlement. Provided, that if no son should attain twenty-one nor any daughter should attain that age or marry, then the fund should be in trust for such person or persons as the husband should by deed or will appoint, and in defav^lt of appointment, in trust for his next of kin, according to the statute of distri- butions, and as if he had died intestate. There was issue of the marriage, one son only. The husband died first without having exercised the power reserved to him ; then the eon died under twenty-one, and lastly, the wife died. Held, that the fund vested in the son, as his father's next pf kin, at the fs^ther's death, and not in persons who were the father's next of kin at the son's death. — Smith v. Smith, 12 Sim. 317. Gift to A. for life with remainder, in case A. died unrawric(i, (which happened) between B. and C, "or such of them as should be then living," and the la^wful children of such of them as should be then dead, " for the share of the father or mother deceased only." B. and C, died in the lifetime of the tenant for life ; B. had issue, C. had none. Held, that C's. interest was not vested and that his representatives were not entitled. — Willis v. Flaskett, i Beav. 208. Bequest of £1,000 to A., upon trust, to lay the same out in consols and pay the interest and dividends to B., for life, and immediately after her decease, upon trust, that the said stock should be transferred to B's. daughter, C, in case she should then have attained the age of twenty-one years, for her absolute use and benefit ; but, in case the said C. should not have attained her age of twenty-one years at the decease of her said mother, then, upon trust to pay and apply the said interest and dividends, as the same should become due and payable for the maintenance and support of the said C. until she should attain such age of twenty-one years, and upon her attainment thereof, upon trust, to transfer the said stock or fund to the said C, for her use and benefit. B. and C. survived the testator; afterwards C. died, in the lifetime of B., irithout having attained the age of twenty-one years. Held, that C, took a vested interest in the £1,000.— Hamimmd w Maule, 1 Coll. C. C. 281. 'Testatrix bequeathed £3,000 to trustees, upon trust, to pay the interest to B. for life, and at the decease of B., the testatrix willed that the said £3,000 should be equally divided among such of her children as should be living at the time of her death, as they respectively attained the age of twenty-one ; but her will was, that if B. should die without leaving issue, then the £3,000, should be paid to C. Held, that the children of B. took vested interests in the £3,000 at her death, and consequently, that the share of one, who died after B., under the age of twenty- one, devolved to her father as her adminstrator. —Bree v. Perfect, 1 Coll. C. C. 128. A testator de^viscd a copyhold estate to trustees, in trust, to pay the rents to his wife until his youngest child attained twenty-one, she main- taining his children until that event,_ and when as soon as that event should happen upon trust, to pay one-fifth of the rents to his wife for life. He then gave the remaining four-fifths separately to his four daughters' nominatim for life, with re- mainder to their respective children ; and it was his will that if any of his children should die without issue, that the share of her so dying should go to the children of such of his daughters as should leave issue ; but in case all his daugh- ters should die without leaving lawful issue, then he devised all his said real and personal estate unto his brothers and sisters. He subsequently devised the one-fifth given to the wife for life in a similar manner. A., one of the daughters, died without issue before the youngest attained twenty-one. Held, that the shares vested on the youngest attaining twenty-one ; that the gift over was only of vested shares, smd, therefore, that there was an intestacy aa to the one-fifth intended for A. — Bastin v. Watts, 3 Beav. 97. A testator devised his freeholds to pay certain annuities, and accumulate the surplus rents so as to become part of his personal estate, and sub- ject to the charges to the use of the first and other sons of his son A. in taU, with remamder to his daughter B. for life, with remainder to her first and other sons in tail, &c. ; and he directed that no person should, under the limitations, INTEREST VESTED. 231 become entitled in possession ■while any ante- cedent limitation remained in contingency. And he gave his personal estate to the children of A. and B., " except the eldest son," to be transferred to all his younger grandchildren, equally to be divided between them, as and when the sons at- tained twenty-one, and the daughters attained that age or married, it being his will that each of their several shares and interests should become vested at that age, or the previous marriage of daughters, though such share should not become payable or transmissible till after the demise of both his son and daughter ; but, in the meantime, he empowered his trustees, though the parents of his grandchildren should be living, to apply the interest of each grandchild's " presumptive share, even including an eldest son's share in their maintenance and education ;" and the surplus was to accumulate and be payable along with their -respective original shares when the same became vested and transmissible, and the pay- ments were to be allowed to the trustees though such grandchildren should not gain a vested in- terest. And the testator declared that, after the death of A. and B., as well as during their lives, his trustees should, in the meantime, and until the share or shares of all his grandchildren of and in the trust funds should become vested and assignable, transferable or payable, apply the dividends of the trust funds towards the main- tenance and education of every such child and children, respectively, including even the eldest. A. and B. were still living ; A. had no children, but B. had an eldest son and other children. Held, first, that the eldest son of B. had not a vested interest in the personal estate ; secondly, that the other children took vested interests, sub- ject to be divested partially by the birth of other children ; and, thirdly, that all the children of B., including the eldest son, who had attained twenty-one, were entitled to have maintenance. — Ellis V. Maxwell, 3 Beav. 587. A. devised his estates to B., his son, for life, re- main der to the first and other sons of B . in tail, re- mainder to his daughters as tenants in common, remainder to C. for life, remainder toD., the son of C, if living at C.'s death, for life, remainder to the first and other sons of D. in tail, remainder to the male heir, for the time being entitled to a certain family estate, remainder to the first and other son's of such male heir, remainder to the testator's ovra right heirs of his name ; and he directed the residue of his personal estate to be laid out in lands, to be conveyed to the same uses as his devised estates. B., his son and executor, did not lay out the personil estate as directed by the will ; but, by his will, he directed that certain real and personal estates should be conveyed and assigned to the trustees under the will of A., upon the trusts of that will, or such of them as could then be executed, adding that he deemed such property an equivalent in value for the residuum of his father's personal estate ; and he directed that the same should be settled and ac- cepted accordingly. The real and personal estate were not conveyed or assigned according to the will. On the death of B without issue, C. en- tered into possession of the real estate devised by both wills, and the personal estate bequeathed by the will of B. At the death of C, D. entered into possession of the same real and personal estate. D. died without issue, and, at his death, there was no male heir entitled to the said family estate. Held, that the ultimate limitation in the will of A, to his right heirs of his name vested at his death, and not at the death of D. — Wrightson v. Macaulay, i Hare, 487. That the co-heiresses at law of B. (or the par- ties claiming under them) were entitled to the real estate so devised by the wills of A. and B. — Id. That, inasmuch as the estates were made equi- table by the will of B., the court might properly send a case to a court of law, to try at the same time the right under the will of A. as well as under the will of B. — Id, Testator directed all his property to be sold by his executors, and the proceeds to be invested in government or real securities, to be disposed of as after- mentioned. He then desired his ex- ecutors to pay £25 yearly, for the maintenance and education of his natural daughter, until she attained twenty-one or married, when he required them to pay her the sum of £500. ITie daughter died tmder age and unmarried. Held, never- theless, that the £600 vested in her. — Watson v. Hayes, 9 Sim. 500. A gift in terms importing a present vested in- terest with a postponed time of payment, is not made contingent by a direction to accumulate till the time of payment arrives. — Blease v. Burgh, 2 Beav. 226. A testator gave real and personal estate to trustees to accumulate the rents, and for twenty years after his decease and after certain pay- ments to stand possessed of the accumulated fund, in trust for all and every the child and children of his children. A., B. and C, " now born, or who shall hereafter be born during the lifetime of their respective parents, as should attain twenty-one, or marry with consent ; and whether born or unborn, when any other of them attain the age or time aforesaid, and their respective executors, administrators and assigns." At the expiration of twenty years there were several eliildren of B. who had attained twenty-one, but A. and B. were still living. Held, that the grandchildren had vested interests in the fund, subject to be divested or diminished in the event of there being other children of A. or B. who should attain twenty-one or marry. Held, also, that in the meantime the grandchUdren who had attained vested interests, were entitled to the income of the accumulated fund. — Scott v. T/ie Earl of Scarborough, 1 Beav. 154. Bequest of a testator's estate to be equally di- vided between two children on attaining twenty- one, with a power of advancement "from their respective portions " of the testator's estate. A child survived, but died under twenty-one. Held, that he took a vested interest. — Vivian v. Mills, 1 Beav. 316. Testator gave £1,600 to trustees, and directed them to pay the interest to his son's wife, for the benefit of his son, herself, and children, during his son's life, and after his son's decease the £1 ,500 was 8' ill to remain in trust, for the benefit of the wife and children for her life, and at her death to be divided equally among the children, if they should have attained twenty one, but if any of them were minors, their shares were to be held in trust for them until they were twenty-one, and the interest wiis, in the meantime, to be applied for their maintenance, but should his son's wife marry again, the childien were to receive their shares as they attained twenty-one. Held, that the wife was a trustee of the interest for herself, her husband, and children, and that the share of the children in the principal did not vest in them until they attained twenty-one. — Taylor v. Bacon, 8 Sim. 100. 232 INTERMEDIATE RENTS.— INVESTMENT. Testator gave £7,000, in trust, for his sister for life, and after her decease for her husband for life, and after his decease for his nephew and nieces, the children of his sister, who should be then living. The husband died leaving five children by his wife, then one of the children died, and afterwards the wife. Held, that the deceased child took a vested interest in one-fifth of the fund. — Archer v. Jegon, 8 Sim. 446. INTERMEDIATE RENTS. See Vend. & Pukch. An agreement was made for sale of an estate at a future time. Before that time arrived the vendor died intestate. Held, that the rents ac- crued between the vendor's death and time for completing the contract, belonged to the vendor's heir and not to his executor, — Lumsden v. Fraser, 12 Sim. 26-3. T. settled his estates (subject to a general power of appointment in himself,) on himself in tail, remainder to J. L. and his sons, in strict settlement, remainder to L. C. for life. &c., pro- vided that if J. L. or any issue male of his body, should become entitled in possession to his father's family estates, then the uses before de- clared of T.'s estates, for the benefit of him or them who should so become entitled, and for the benefit of his or their issue male, should cease, and those estates should go over, as if the person or persons so becoming entitled were dead mth- put issue male. T., by his will, appointed his estates to J. H, L. (the eldest son of J. L.,) and his sons in strict settlement, remainder to the jieir of H. H., deceased. Provided that if any tenant for life, in possession under the will, should become entitled in possession to J. L.'s family estates, his interest in the devised estates should cease, and those estates go over to the person next in remainder under the will, as if the tenant for life were dead. The testator then gave all the rest and residue of his real and personal estates to A. H, S„ his executors, &c. J. L. be- came entitled in possession to his father's family estates in the testator's life. The testator died in 1824, upon which J. H. L. entered upon his es- tates undei: the will ; J. L. died in 1 833, upon which J. H. L. became entitled in possession to the family estates. He had no son. The rents of T.'s estate, accruing between 1833 and J. II. L.'s death, or his having a son, were claimed by A. II. S„ as being appointed to him by the resi- duary clause, and L. C. and H. L. (the second son of J. L.) claimed them adversely to each other, under the limitations in default of appoint- ment in T.'s settlement. The court decided against A. H, S.'s claim, and at the request of counsel, sent a case to law as to the claims of L. C. and H. L., notwithstanding the legal in- terest in T.'s estates was vested in trustees, and the court had very little doubt upon the question. '•^Morrice V. Lang/mm, 11 Sim. 260, INXERNA'TIONAL I,AW. Discussion of the question whether a sovereign prince is liable to the jurisdiction of the courts of a foreign country, in which he happens to be re- sident, and as to the liability of suit of one who xinites in liimself the characters both of an inde- pendent foreign sovereign and a subject. — The Duke of Brunswick v. The King of Hanover, 6 Beav. 1. A sovereign prince, resident in the dominions of another, is ordinarily exempt from the juris- diction of the courts there. — /rf. A foreign sovereign may sue in this country both at law and in equity, and if he sues in equity he submits himself to the jurisdiction, and a cross bill may be filed against him, which he must answer on oath; but a foreign sovereign does not, by filing a bill in chancery against A., make himself liable to be sued in that court for an independent matter by B. — Id, The King of Hanover, after his accession, re- newed his oath of allegiance to the Queen of England, and claimed the rights of an English peer. Held, that he was exempt from the juris- diction of the English courts for acts done by him as a sovereign prince, but was liable to be sued in these courts in respect of matters done by him £is a subject. Held also> that the sovereign character prevailed where the acts were done abroad, and also where it was doubtful in which of the two characters they had been done. — M. A bill of exchange was. drawn and accepted in Paris, and made payable in England. The drawer and acceptor were living there. No rate of inte- rest was expressed to be payable on the bill. Held, that default being made in England, inte- rest was payable according to the English and not to the French law. As to contracts merely personal, it is a general rule that the questions relating to the validity and to the interpretation of the contract are to be governed by the law of the country where the contract was made, and if a remedy for non-performance of a contract is sought in another country, the mode of suing and the time within which the action must be brought are to be governed by the law of the country in which the action is brought. — Cooper v. The Earl of Waldegrave, 2 Beav. 282. INTERPLEADER. See Ptt. Bill of Interpleadek. INTERROGATORIES. See Pu. Interrogatories. INTOXICATION. Principles upon which the court acts in suits to set aside deeds on the ground of the intoxica- tion of the grantor. — Nagle v. Baylor, 3 Dru. & W. 60. INVESTMENT. A being tenant for life of an estate, with re- mainder to his sons successively in tail male, entered into an agreement with 13., by which it was stipulated that A. should procure an Act of Parliament to enable him to sell the estates of B , and that B. should bear all the expenses inci- dent to, and consequent upon, his proposal to pur- cliase the estate, together with the expense of obtaining the act, of preparing the abstract, and shewing a title to the estate, and of and about making and completing the sale and conveyance to him, together with the expense of the agreg- INVESTMENT.— ISSUE. 233 ment, and all other expenses whatsoever of A., in consequence of the sale or arising out of, or in any wise relating thereto, or to the proposal of B., accordingly obtained an act for the sale of the estate to B ., which directed the purchase-money to be invested in lands, to be settled to the same uses as the estate stood limited to. Held, that B. was not bound to pay the expenses of the in- Testment. — In re London Bridge Acts, 13 Sim. 180. The testator gave to the executors and trustees appointed by his will so much of his personal estate as would produce a certain annuity, upon trust, to select, appropriate, and set apart the same in their uncontrolled discretion, and pay the interest, dividends, and annual produce thereof to his widow for life or widowhood ; and if the annual produce of the personal estate and effects so set apart and appropriated should, from any cause, be increased or reduced, his vridow was to receive such increased or reduced interest, dividends, and annual produce ; and from and after her decease or second marriage, the testator directed that the personal estate and effects so appropriated or set apart should fall into his resi- duary estate. And the testator empowered his trustees, at their own. discretion, to permit the whole or any part of his personal estate to remain on the securities on which the same might happen to be at his decease, or otherwise to convert and alter the same at their own absolute discretion. The testator's personal estate was invested in foreign funds. The trustees did not exercise their discretion as to the appropriation of the investments to answer the annuity, but submitted to act as the court should direct. Held, that the court would not direct any appropriation of the foreign funds to answer the annuity to the widow, but would direct the annuity to be raised by the purchase of consols, referring it to the master to inquire what part of the existing investments it would be proper for that purpose to call in, having regard to the interests of other parties under the will — Prendegraat v. Lushington, 5 Hare, 171. IRISH MORTGAGES. Under the 4 & 5 Will. 4, c. 29, a trust to invest money in real securities in England, or Wales, or Great Britain, will authorize an investiric-nt on real securities in Ireland also ; and though the money be already invested in Great Britain, the court will, on the application of the tenantfor life of the fund, direct a reference to the master to inquire whether it will be for the benefit of all parties interested that the investment should be changed for one at a higher irate of interest in Ireland. — Ex parte Lord William Pawlett, 1 Phil. 670. ISSUE. See Pk. Issue at Law. ISSUE. See Pakent and Cfiild. A testator devised lands of which he was seised, pur auter vie, to his nephew, J. C, for life, and then proceeded thus : "And from and after his decease I give and devise the same unto the issue male and female of the said J, C. now be- gotten, or to be begotten, on the body of his pre- sent wife, to be divided between and amongst them in such manner, shares, and proportions aa the said J. C. shall, by his last will, limit and appoint, subject nevertheless to the provisions hereinafter particularly mentioned ; viz., that the said J. C, his heirs, executors, administrators, and assigns, and the persons who shall become entitled thereto under this my will, shall and will pay the head landlord's rent of the said lands, and shaU and will yearly and every year during the continuance of the lease, pay or cause to be paid to S., his heirs or assigns, one yearly annuity or sum of £40," &o. J. C. did not duly exercise his power of appointment. Held, that J. C. took an estate for life only, and that his issue took absolute interests as tenants in common, as pur- chasers, and that the words " issue male and female" meant sons and daughters, or the first line of issue, — Crazier v. Crazier, 3 Dru. & W. 373. Testator gave all his real and personal property to his wife for life, and at her death, if he left issue, to the child or children he might have at his decease ; but if he died without leaving issue, then he gave all his property in equal proportions to his brothers and sister, Thomas, Anthony, John, and Jane ; and if any of them should die without leaving issue, he gave such share or shares to the survivors or survivor of them ; but if leaving issue, he gave such share to their children. The testator died without issue. John died a bachelor in his lifetime, Jane died in the lifetime of his widow, leaving one child and several grandchildren, the issue of a deceased child. Thomas survived the widow, and died leaving children. Then Antliony died, a bachelor. Held, that the share intended for John belonged abso- lutely to Thomas, Anthony, and Jane ; that Jane's share belonged to her child, Thomas's to his children, and Anthony's to his real and per- sonal representatives. — Benn v. Dixan, 16 Sim. 21. The word issue may be restricted so as to mean children, and conversely, the word "children" may, from the context, be enlarged so as to be construed " issue"; each case depends upon the peculiar expressions used, and the structure of the sentences. If the case be doubtful, the court profess that construction which will most benefit the testator's family, on the suppo^itlon that this must more nearly correspond with his intention. — Farrant v. Nichols, 9 Beav. 327. Though the word " issue" be in one clause of the will construed " children," it does not neces- sarily follow that it will receive the same con- struction in all the other clauses. — Hedges v. llaipur, 9 Beav. 479. A testator having translated the word " issue" to mean "children, ' the technical meaning of that word is thereby altered. — Ridgeway v. Uunkit- trick, 1 Dru. & W. 84. The words " lawful issue" in a devise to four parents and their " lawful issue respectively in tail general," without benefit of survivorship to and amongst their issue respectively as tenants in common, Held, upon the context of a will, to be WDrds of purchase and not of limitation. — Cur- sham V. l^ewland, 2 Beav. 145. Testatrix bequeathed all her personal estate to her sisters, or in case of the death of either or any of them, leaving issue, then the share of her so dying to go to such chUd or children equally. AH the testatrix's sisters died in her lifetime, without leaving any child or children living at the testatrix's death ; but one of them left two 234 ISSUE. grandchildren then living. Held, that the word "issue" meant "child or children," and conse- quently, in the events that happened, the testa- trix's estate was undisposed of. — Goldiey, Greaves, U Sim. 31S. JOINT STOCK COMPANY. JEWS. A bequest to enable persons professing the Jewish relij^ion to observe its rites, is good. — Straus V. Goldsmith, 8 Sim. 614. JOINT STOCK COMPANY. See WiNDiNO UP Act. — Bank. — Kailway. — COBPOKATION, — Pk. InJVNCTION. I. Generally 234 II. Parties to Suit 235 III. Liabilities op Shareholders and Directors 235 IV. Dissolution op 236 I. — Generally. Registration, Incorporation, and regulation of, 7 & 8 Vic. c. 110. Facilitating the winding up of affairs of Joint Stock Companies unable to meet their pecuniary engagements, 7 & 8 Vic. c. 111,11 & 12 Vice. 45, amended by 12 & 13 Vic. c. 108. Bill by some of the shareholders of an Insolvent Joint Stock Bank, established under the Acts 7 G. 4, 0. 46, and 3 & 4 W. 4, c. 83, on behalf of themselves and all other shareholders, except the defendants, against the directors, some of whom had become bankrupt, and the trustees and public officers of the company, and certain shareholders who were alleged to have not paid up their calls, praying that an account might be teiken of all the partnership assets, and that such part as was out- standing might be got in by a receiver, and that the whole might be converted into money and applied towards satisfaction of the partnership debts. Demurrer for want of equity, want of parties, and multifariousness, overruled. — Wal- worth V. Hold, 4 Myl. & Cr. 619. Demurrer allowed to a bill, filed by plaintiffs, on behalf of themselves and the other shareholders in a company, because the bill did not allege that the plaintiffs were shareholders in the company. — Banks v. Parker, 16 Sim. 176. The defendants projected, bona fide, a railway in Spain ; but before the plaintiff purchased shares in it, they knew it was impracticable. Held, that the plaintiff was entitled only to the relie which he might have had if the project had been a bubble ab initio, namely, to be repaid his pur- chase-money. — Harvey v. CoUett, 16 Sim. 332. Form of reference under the 7th and 8th Vic. 0. Ill, in the case of a Bankrupt Joint Stock Company.— 7« re The Forth Marine Insurance Company, 9 Beav. 469. One of the members of the committee of ma- nagement of a Joint Stock Company, sold his shares to the committee on behalf of the com- pany, at a price not exceeding the market price of the shaves at that time. The shares were transferred to the trustees, in tnist, for the com- pany, and the vendor thenceforward ceased to interfere in their affairs. Three years after it was known to the shareholders generally that the shares had been sold to the company, the com- pany having, during that time, continued the business, and having obtained new parliamentary powers, the plaintiff, on behalf of himself and all the shareholders in the company, tiled his bill against the vendor to set aside the sale and transfer of the shares as fraudulent ; and to ob- tain contribution from the vendor towards the debt of the company. The court refused to dis- turb the sale, and dismissed the bill with costs. — Walford v. Adie, 5 Hare, 112. Pending a bill in Parliament for forming a dock company, certain subscribers to the under- taking subscribed for 9,000 additional shares, in order to make up the amount of capital required by the Standing Orders of the House of Lords, before the bill could pass that House. Afterwards, but before the bill was passed, those persons signed a declaration that they held the additional shares in trust for the company. After the bill had passed, a meeting of the company resolved unanimously that the trust should be annulled and the shares be transferred to the secretary for the use of the company ; no transfer, however, was made. The directors having made calls, it was held that the subscribers for the additional shares were bound, as trustees, to pay the calls in respect of those shares. — Preston v. Grand Collier Dock Company, 1 1 Sim. 327. Declaration of various liabilities incurred by directors of a Joint Stock Company in respect of the acts of their co-director. — Beason v. Heatliorn, 2 Coll. C. C. 309. The members of a company, which was un- limited as to its duration, executed a deed dis- solving the company, and left a notice of it at the company's office. They then filed a bill on behalf of themselves and all the other members, except tne defendants, against the officers of the com- pany, alleging that the company consisted of upwards of 400 members, and that the plaintiffs were ignorant of, and had no means of learning their names and residences, and praying that the company might be declared to be dissolved. Held, that the members ought to have been served with notice of the deed, and a demurrer to the bill, for want of equity, was allowed. — \, heeler v. Van Wart, 9 Sim. 193. Certain persons entered into an agreement in ■niiting for forming themselves into a Joint Stock Company, to be called the Medway Commercial Shipping Company, and by one of the rules, the affairs and concerns of the company were to be undur the management of a committee, but no time was fixed for the duration of the company. Four of the members of the company took upon themselves the exclusive management of a ship belonging to the company, and being about to send her on a voyage which some of the mem- bers disapproved of, these members filed a bill, praying that the four might be restrained from Parties to Suit. JOINT STOCK COMPANY. Liabilities of, ^c. 235 interfering wiUi the ship, or causing her to be sent on the intended voyage, and from laying in or agreeing for any cargo or freight otherwise than under the direction of the committee, and that they might deliver up to the committee all books, &c., in their possession, belonging to the ship, or to the company, A demurrer for want of equity was allowed. Semble : That the court wiU interfere between co-partners, to prevent the destruction of the partnership property, although a dissolution of the partnership may not be prayed. — Miles v. Thomas, 9 Sim. 606. A Joint Stock Company formed for working gold mines in North America, the shares of which might be increased to an unlimited extent, and were made assignable at the discretion of the holders. Held, to be illegal and fraudulent, and a demurrer to a bUl filed by one of the share- holders against the others, for the purpose of carrying into effect a dissolution of the company, ■was allowed. — Blundell v. Winsor, 8 Sim. 60). Amendment of a bill brought by some of the members of a Joint Stock Company, on behalf of themselves and all the other shareholders, ex- cept the defendants, by striking out " on behalf of themselves and all the other shareholders," &c., and making it the bill of the plaintiffs named on the record only. — Jones v. Rose, 4 Hare, 52. Where the relation of trustee and cestui que trust begins, as between the projectors of public companies and such companies.— i^oss v. Har- bottle, 2 Hare, 489. II. — Parties to SniT. The director of a Joint Stock Company, in order to sell their shares to advantage, represented in their reports, arid by their agents, that the affairs of the company were in a very prosperous state, and declared large dividends at a time when the affaiis of the company were greatly embarrassed. A person who had been induced by these means to purchase shares of one of the du-ectors, tiled a bill against that director, praying to be repaid the purchase-money, and offering to re-transfer the shares ; a demurrer for want of equity and because all the other partners ought to have been made parties, was overruled. — Stainbank v. Feamleu, 9 Sim. 556. Semble : That where by Act of Parliament a Joint Stock Company may be sued through the medium of their public officer, he is the proper perton to be sued, and not the directors, even where the directors are charged with gross fraud, and, at all events, that one only of such directors ought to be made a party. — Pendlebury v. Walker, 4y. &C. 424. Semble : That where a^ company is so consti- tuted, a bill is sustainable against a single share- holder jointly with the public officer, if it allege that he is the assignee of the debt for which the company have brought their action at law against the plaintiff. — Id. In a suit for the purpose of having the affairs of a dissolved Joint Stock Company settled and wound up under a decree of the court, and praying for ac- counts of the partnership transactions, and that a sale of the partnership property by the directors might be declared fraudulent and void, all the members of the company, however numerous, must be parties to the suit. — Evans v. Stokes, 1 Keen, 23. III. — Liabilities of Shareholdees and DlRECTOBS. A person who is originally named in the pros- pectus as a director, and afterwards ratifies and consents to his appointment as such, is liable on the intermediate contracts entered into by his co-directors. — Lefroy v. Gore, 1 Jon. & L. 671. A. being a provisional committee-man of a pro- visionally registered Joint Stock Company, as called on by a committee appointed to wind up the affairs of the company, to contribute his shai e towards the expenses ; on his declining to do so, they, by their arrangement with a creditor of the company, brought an action against A., in the name of the creditor, for the amount due to the latter. A. then filed his bill for, and obtained, an injunction to restrain the proceeding at law. On the coming in of the creditor's answer, ad- mitting the above facts, but stating that the com- mittee, who were suing in his name, would guarantee A. from all liability on his contributing £75, being his proportion of the expenses of the company ; the court continued the injunction on the terms of A., bringing that amount into court. — Cutts V. Riddell, 1 De G. & S. 226. By the terms of an Act of Parliament incor- porating an Insurance Company, it was enacted " that all actions and suits against the company, should be prosecuted against the secretary of the company for the time being," and that when any judgment in any such action should be obtained against the secretary, that execution might be issued against any member or members for the time being, of the said company, provided always, that every such secretary, or person in whose name any such action or suit should be prose- cuted, &c., and any such member or members against whom execution, upon any judgment ob- tained in any such action, should be issued, should always be reimbursed, and paid out of the funds of the said company or partnership, all such damages, sum or sums of money, costs, charges, and expenses, or by the event of any such proceedings, he or they should be put into or be- come chargeable with. ' A judgment having been accordingly obtained against the secretary, and an execution issued against the plaintiff, as one of the members of the company, it was resisted by him, but unsuccessfully, and costs to a consider- able amount were incurred. Held, that under the circumstances, the plaintiff was entitled not merely to be reimbursed the sum paid by him on foot of the execution, but also all the costs in- curred at law in resisting it. — M'Oweny. Hunter, 1 Dm. & Wal. 347. Pending a bUl in parliament for forming a Dock Company ; certain subscribers to the undertaking subscribed for 9,000 additional shares, in order to make up the amount of capital, required by the Standing Orders of the House of Lords before the bill could pass that house ; afterwards, but before the bill was passed, those persons signed a declaration that they held the additional shares, in trust, for the company ; after the bill had passed, a meeting of the company resolved unanimously that the trust should be annulled and the shares be transferred to the secretary for the use of the company ; no transfer however was made. The directors having made calls, it was Held, that the subscribers for the additional shares were bound, as trustees, to pay the calls in respect of those shares. — Preston V. Grand Collier Dock Company, 1 1 Sim. 327. 236 Dissolulion. JOINT STOCK COMPANY— JUDGMENTS. Generally. IV. DlSSOLOTIO.N' OF \v here a plaintiff by his bill, prays the dissolu- tion and winding up of a company, he cannot sue on behalf, &c. ; all partners must be made parties, ~-Harvey v. Bigiiold, 8 Beav. 343. Three members of a company, which was un- limited as to its duration executed a deed dissolving the company and left a notice of it at the company's office : they then filed a bill on behalf of themselves and all the other members, except the defendants, against the officers of the company, alleging that the company con- sisted of upwards of 400 members and that the plaintiffs were ignorant of, and had no means of learning their names and residences, and praying that the company might be declared to be dissolved. Held, that all the members ought to be served with notice of the deed, and a demurrer to the bill, for want of equity, was allowed. — Wheehr v. Van Wart, 9 Sim. 193. JOINTURE. See EsTATB pou Life. — Dower. JUDGMENTS. SeePii. ScieriFacias. — Limitations, Stat, of.— Pk. Creditors' Suit. — Pa. Injunction. I. Genbramt 236 II. Stat, of Limitations 237 III. In Case op Misnomer 237 IV. Pkincipai. Sum and Interest, when Charged under 1 & 2 Vict. c. 110 238 V. Judgment Creditor VI. Joint 238 VII. When Assignee op Judgment, 238 entitled to sue 238 VIII. When Execution can be Levied ON Purchase Money 238 IX. Priority of 239 X. Docketing op 240 XI. Suits under the Irish Judgment Acts 240 XII. Execution Executed 240 I. — Generally. Act for protecting certain debtors from process under judgment, 7 & 8 Vict. c. 96.— E. I'rot'-'cting purchasers in Ireland against judg- ment ievived or redocketed within a limited time, 9 Geo. 4 c. 35. Protecting purchasers against judgments, 2 & 3 Vict. c. II.— E. Protection of purchasers against, and registra- t on of all judgments, 7 & 8 Vict. c. 90. — I. Judgments under an order of a judge to be charges upon public stock and shares in com- panies, 1 & 2 Vict. c. 110, s. 14.— E When judgments to be charges on real property 1 & 2 Vict. c. 110, s. 13.— E. Registration of judgments, 1 & 2 Vict. c. 110. s 19.— E. 5 & 6 W. 4, c. 55, and 3 & 4 Vic. c. 105, not to extend to judgments, &c., ior sums not exceeding £150, 12 & 13 Vic. c. 95.— I. Suspension of judgments in case of sickness or accident, 7 & 8 Vict. c. 96. s. 62. — E A. obtained judgment in the Court of the Seneschal of the Island of Saint Lucia, in 1827, on a mortgage claim against the estate of B. ; after B's. death his heirs sjld the estate to C. ; in 1830 the judgment against the estate was regis- tered against B. and his suoces9or,but not against C. who was the owner of the estate ; A. afterwards by an act of session, transferred to D. a part of the mortgage claim. In an action " Declaration d'Hy- pothlge" brought by D., as the transferee of part of the mortgage claim, against C. theninposscssion, in was Held, by the Judicial Committee of the Privy Council affirming the judgment of the court below, that the mortgage claim constituted by the law of the island, a general hypother, and created a real right upon the estate, and those who derived their title from B's. heirs were subject to such hypother; that in such circumstances, ,ihe registration of the judgment of 1827 against B. and his succession, was a sufficient compliance with the order in council of 1829. Domicile must be de facto not de jure, therefore the fact of a party resident in France but represented by an attorney in the island, will not create a construc- tive domicUe so as to entitle a party to set up as discharge to a mortgage a plea of prescription of ten years' entre preaens, — Beauc v. Muter, 5 Mo. 69. A tenant in tail by indenture of settlement executed upon the occasion of the marriage of his eldest son, reciting that he was seised in lee or in tail, conveyed the lands as if he was seised in fee to trustees for a term of 100 years to secure a jointure for the intended wife of his son, in case certain other lands on which it was primarily charged should be sold, and subject to said term to the use of himself for life, remainder to trus- tees for a term of 200 years to raise portions for his younger children, and subject thereto to the use of his son lor life, remainder to trustees to preserve, &o., remainder subject to a third term of 300 years to the first and other sons of his son in tail. No fine, recovery, or disentailing deed was levied, suffered, or executed by the father or by the son, A bill was tiled to raise the portions for the younger children of the father, the settlor, and a decree was pronounced directing a sale of the term of 200 years. After the decree the eldest son of the marriage, his grandfather being then dead, executed a disen- tailing deed, and subsequently, his father having died in the interval, conveyed the lands in fee, expressly subject to the term, to a stranger to the suit, by whom shortly afterwards the fee was conveyed to the widow of the father, who was a party to the suit, and against whom a decree upon sequestration had been obtained. The term Wiis sold, and the purchaser objected to the title, but the title was held good by the Master of the lloUs, and afterwards, upon appeal, by the Lord Chancellor. Held, that certain judgments ob- tained against the eldest son of the marriage, pending suit, did not create any objection to the title. —AMsscy v. Batwell, 4 Dru. & W. 53. In 1817, a tenant for life of freehold estates, subject to long outstanding terms, grimted a per- sonal annuity to the plaintiff, secured by warrant of attorney, on which judgment wiis forthwith entered up and docketed. Afterwards, in 1818 and 1819, he created other incumbrances, two of which were by demises of the estate. The plaintiff did not sue out any elegit till 1822, when he did so. The inquisition being duly returned, he commenced an action of ejectment, which he discontinued in consequence of the outstanding terms. In a suit to which the plain- tiff was no party, the priorities of the other incum- brancers were declared. The plaintifl, within twenty years from the last payment of the annuity. Limilahons, JUDGMENTS. Misnomer. 237 ,filed his bill against all the other parties, to have ',it declared that he was entitled to stand as first incumbrancer, that the decree, &c. might be altered, or that the plaintiff might be at liberty to proceed at law, and that the defendants might be restrained from setting up the terms. One of the defences was that the plaintiff's annuity was usurious. The court Held, that the plaintiff was not barred by the proceedings in the suit, and retained the bill for a year, giving the plaintiff leave to bring an action for recovery of the free- hold, and restraining the defendant from setting up the terms ; and also (though not specifically asked by the bill) from setting up the Statute of Limitations. The court also refused to interfere with the application of the rents in the mean- time, or to grant inquiries as to the validity of the plaintiff's charge, Holding that prima/acie credit was to be given to the judgment, and that if the defendants had any equitable case to make against the judgment, they ought to adopt pro- ceedings of their own to establish that case.— Smith v. Earl of Effingham, 7 Beav. 357. Decree for specific performance, with references to the master to compute interest and tax costs, and ordering defendant to pay purchase-money and interest, and costs when ascertained. Held, to constitute a judgment debt. — Duke of Beaufort V. Phillips, 1 De G. & S. 321. Creditors by judgment and recognizance, although scheduled to a trust deed executed for their payment, are within the General Order of the 22nd of June, 1842. When a suit is insti- tuted in this court for carrying into execution the terms of such deed by sale. — Harvey y. Latoler, 3Dru. &W. 168. In 1796 an annuity was granted for the gran- tor's life, and was secured by a bond and by a warrant of attorney, on which judgment was entered up. The grantor died intestate in 1810, at which time the annuity was greatly in arrear. The grantor's assets consisted solely of a fund in court, which had been accumulating &om the grantor's death. No administration was taken out to the grantor until 1834. Held, that the grantee was entitled to be paid the arrears of the annuity, with interest at 5 per cent, from the death of the grantor. Many of the provisions of 3 & 4 Will 4. c. 42, though made with reference to proceedings at law, will be adopted by this court. — Byde v. Price, 8 Sim. 578. II. — Statute or Limitations. Debts secured by judgment are " sums of money charged upon or payable out of land" within the meaning of the Statute 3 & 4 Will. 4. c. 27. s. 42, and only six years of interest can be recovered upon such debts. In relation to the Statute of Limitation, the rights of judgment creditors for arrears of interest as against the real and personal estates of their debtor are equal and co-extensive, as far as the bar of the statute operates, for the protection of the real estate, to the same extent the personal estate is protected. The Act 3 & 4 Vict. c. 105. s. 26. enacts, "That every judgment debt due upon any judgment ni/t confessed, or recovered for any penal sum for securing principal and interest, shall carry interest," &c. The interest thus given is subject to the limitations of the Statute 3 & 4 Will. 4, c. 27, s. i2.— Henry v. Smith, 2 Dru. Sc W. 381. The Statute 6 WUl. 4, c. 14, s. 126, which I deprived creditors who had obtained judgments by confession against their debtor, of preference in bankruptcy, has not been repealed by the effect of the 3 & 4 Vict. c. 105. Creditors by simple contract are within the terms of the proviso in the 3 & 4 Vict. c. 105, s. 22, which enacts " that as regards purchasers, mortgagees, or creditors who shall become such before the time appointed for the commencement of this act, such judg- ments shall not affect lands, &c., otherwise than as the same would have been affected by such judg- ment if this act had not passed." — In re Peirin, 2 Dru. & W. 145. Under a decree to account a creditor filed a charge on foot of a judgment, which was dis- allowed on the ground that it had been barred by the Statute of Limitations. The creditor then issued a sci. fa. against the inheritor, who was the heir of the conusor, to which, the fund being a deficient one, no defence was taken, and the judgment was revived. The creditor then applied for liberty to file a charge and obtain a report at her own expense, which the court granted, but directed the officer, in considering the Statute of Limitations, not to act upon the judgment of revivor so far as regarded the rights of the other creditors, who had proved under the decree. — Browne v. Lynch, 1 Jon. & Ca. 195. The 40th section of the Statute of Limitations, 3 & 4 Will. 4, c. 27, applies to a case in which a judgment is sought to be enforced against the personal estate, as well as to a case in which it is sought to be enforced against the land of the debtor. — Watson v. Birch, 15 Sim. 523. A., a creditor of a person deceased, filed a bill on behalf of himself alone against B, the personal representative of the debtor, and C, who had in his possession certain papers belonging to the debtor, on which he claimed a lien for a debt alleged to be due to him from the deceased. The bill prayed for the usual accounts of the deceased's estate, and that it might he applied in a due course of administration ; that A. might have access to the papers ; and that the amount of C's lien, if any, might be ascertained and paid. The decree in the cause directed an account to be taken of A's debt, and the amount to be paid out of a fund in court ; and if the fund should be more than sufficient for that purpose, that what should be found due to the other incumbrancers should be paid to them, but it did not direct any account to be taken of those incumbrances ; and, accord- ingly, the master took an account of A.'s debt only. After it had been paid, C. presented a petition in the suit, praying for an account of what was due to him, and for payment of it out the remainder of the fund. The order made on that petition directed the master to inquire, and state who were the incumbrancers other than A referred to by the decree. Held, that neither the institution of the suit nor any of the proceedings in it prevented the Statute of Limitations &om running against A's claim. — Id. m. — In case or a Misnomer. A judgment was entered up, &c., against W, H. under warrant of attorney. In the judgment, warrant of attorney, &c , he was named W. H., his proper name being W. B. H. Held, that the judgment was valid. — Hotham v. Somerville, 9 Beav. 63. 238 Judgment Creditor. JUDGMENTS. Wlien Execution, Sfe. IV. — Pkinoipal Sum and Interest when Charged under 1 & 2 Vict. c. 110. A. waa entitled to an annuity, which was secvired by a covenant and by an assignment of leaseholds to her, in trust to sell. Held, that her interest under the deed might be made available under 1 & 2 Vic. c. 110, s. 13. for payment of a judgment debt due from her. — Harris y, Davison, 16 Sim. 128. Judgment debt payable at a future day and subject to be defeated in the event of the previous death of the debtor. Held, to be a charge under the 1 & 2 Vic. e. 110, s. 13, upon an annuity be- queathed to the debtor and payable out of the real estate, but not so as to affect growing pay- ments accruing due before judgment debt became payable. — Younghiisband v. Gisbome, 1 De G, & S. 209. In a suit by a judgment creditor, who had been in possession under an elegit, to have the real estates of the debtor sold under 1 & 2 Vic. c. 110, the plaintiff must account in the same manner as a mortgagee in possession, — Bull v. Faulkner, 1 De G. & S. 685. Stock standing in the Accountant General's name to the separate account of a party against whom a judgment debt has been recovered, may 1)6 charged under 1 & 2 Vic. c. 110, with the debt, but the charging order must be made, not by a judge in equity, but by a judge at common law ; and although such order, in terms, charges the stock, it affects only the interest of the debtor in the stock, and therefore does not interfere with the rights of prior incumbrancers. — Hulkes v. Day, 10 Sim. 41. A court of equity will make a stop order as auxiliary to the charging order. — Id. A court of equity has no.jurisdiction under the 1 & 2 Vic. c. 110. s. 14, to order monies invested in the name of the Accountant General to stand charged with a judgment debt recovered at law against the party entitled to such funds. — Miles V. Presland, 2 Beav. 300. V. — Judgment Creditob. A judgment creditor who desires to enforce his security against his debtor's equitable interest in freehold estate by a bill in equity, must previously sue out an elegit against the estate, and if his bill does not allege that he has done so, it is demur- rable. — Neate v. Duke of Marlborough, 3 Myl, & Cr. 407. Where there are creditors who became such before the 3 & 4 Vic. c. 105, came into operation, a judgment creditor is not entitled under the 22nd section of that act to sell the lands for payment of his judgment. — Maguire v. O'Reilly, 3 Jon. & L. 224. When the agreement of the parties to a loan is that the money should be repaid by the creditor, retaining the rents of certain lands of which he was tenant to the debtor, a sale of the lands will not be decreed. — Id. Semble : If a judgment creditor take the person of his debtor in execution before the property charged by virtue of 3 & 4 Vic. c. 106. has been i-ealized, he cannot afterwards sustain a bill under the 22nd section of that act to sell that property for payment of his judgment. — Id. A court of equity will not assist a judgment creditor to obtain payment of his debts unless he has sued out execution ; and if he does not state that he has done so in his bill, the defendant may demur. — Neate v. Duke of Marlborough, 9 Sim. 60. A creditor recovered a judgment in this country and obtained a charge on his debtor's lands, &c., under the 1 & 2 Vic. c. 110. s. 13. He afterwards arrested the debtor in Jersey upon mesne process for the same debt. Held, that the charge on the lands here was not thereby forfeited under the 16th section, — HotU- ditch V. Collins, 5 Beav. 497. A j udgment creditor who having taken the body of a bankrupt in execution before the banki-uptcy, keeps him in prison till he is discharged by his certificate, cannot prove under the bankruptcy.— Ex parte MwMe, 3 M. D, & D, 66. QiuBiv : Whether a final judgment by default, not obtained by collusion, but adversely, which could nothave been disputedif the debtorremained solvent, may be impeached under his bank- ruptcy on a proof being tendered upon it. — Id. -But if the judgment were obtained under such circumstances as would have been a ground for the interference of a court of equity to restrain execution, those circumstances are a suificient objection to the proof, although the debtor may have omitted to make a legal defence which he had to the action, and although (under such cir- cumstances as those of the present case) nearly twenty years have elapsed since the judgment was obtained. — Id. ^ Quc^re : Whether the commissioners have authority to inquire into the validity of a judg- ment which is the foundation of the proof of the petitioning creditor's debt. Semble : Tliat they may at all events inquire how much is due on the judgment.— £x parte Prescott re Prescolt, 1 M. D. & D, 199. Where however the bankrupt might have im- peached the judgment six months before the issuing of the fiat, and did not petition to annul until six months after it had issued, an inquiry was refused — Id. VI. — Joint. A joint judgment against two cannot be proved under a decree to account in a suit, instituted to administer the real assets of the conusor, who died first, the surviving conusor not being a party to the suit, as such. The case does not fall within the 28th General Rule of March, 1843. — HaUhell v. Sutton, 2 Jon. & L. 21. VII. — When Assignee op Judgment Entitled TO Sue. Semble : The assignee of a judgment may sue out execution upon it in his own name, when It has been revived and assigned since the revival, the execution reciting that special matter. — Fitg' gerald y. Dalton, Long. & T. 662. VIII, — When Execution can be Levied on Purchase-Money, After verdict, and before judgment had been entered up, the defendant sold his leaseholds by auction. Held, that under the 1 & 2 Vict., c. 110, the plaintiff could not levy execution on the pur- chase-inoney. — Brown v, Perrott, 4 Beav. 686. Priority of. JUDGMENTS. Priority of. 239 IX. — Priobity op. A trader confessed a judgment to A., and exe- cuted a mortgage to B,; the execution of the deed of mortgage was subsequent to the entering up of the judgment. The trader afterwards became a bankrupt. Held, that the mortgage was to be paid in the first instance, and that the judgment was within the operation of the 6th "Will. 4, o. 14, s. 126.— White v. Baylor, 4 Dru. & W. 297. A. being entitled to the freehold lands of Black- acre and Whiteacre, in 1806, granted the former in mortgage to secure an advance of £1,000, and at the same time executed a collateral bond, upon which judgment was duly obtained in Easter Term, 1806. This judgment was not revived until 1839, and was never re-docketted under the 9 Geo. 4, c. 35. In 1829, A. granted to B. an annuity of £400, charged upon Whiteacre, and in 1833 died, having devised Whiteacre, subject to an annuity to his wife, and all his other pro- perty to two trustees, upon trust, to sell, and after payment of his debts, to make an equal dis- tribution thereof among his younget children. One of the trustees died in his lifetime, and the other refused to act. In 1834, there being a con- siderable arrear of head rent due upon Whiteacre, and the head landlord having brought an eject- ment, B. paid off the arrear of rent and the costs of the ejectment, and subsequently entered into a contract with the younger children for the pur- chase of Whiteacre, but died- without having completed the same, his vridow and executrix, the principal defendant, however, afterwards adopted the contract, and, by a deed of the 29th of February, 1840, Whiteacre was conveyed by the younger children to the defendant, habendum, to her, her heirs, and assigns, free &om all in- cumbrances, except three judgments, one of which was the judgment of £2,000, above men- tioned, and the annuity of £400. The covenant in the deed against incumbrances, however, was general ; the smrviving trustee of the will, though named a party in the deed, never executed it. On a bill filed by the plaintrff, who was entitled to the mortgage of 1806, and the judgment col- lateral, alleging that Blackacre was insufficient, and seeking to make good the deficiency by means of the judgment, out of Whiteacre ; Held, that as the sale of Whiteacre was by the younger children, it was only the residue, after payment of the debts, that was sold, and that, conse- quently the lands in the possession of the de- fendant were, notwithstanding the provisions of the Statute 9 Geo. 4, c. 35, Hable to the judg- ment. — Garnetty. Armstrong, 4 Dru. & W. 182; 2 Con. & L. 449. In a creditor's suit, this court, upon motion with the consent of all parties, directed an ac- count of judgments affecting the lands to be sold, prior and contemporaneous with the filing of the hJXl.— Montgomery v. Southwell, 3 Dru. & W. 171. A judgment, as such, and until sequestration issued, does not give such a lien upon a benefice, as will enable the judgment creditor to rank in priority over other debts, and therefore in this case where the judgment bore date in 1831, but the sequestration did not issue until 1841, the plaintiff, whose deed of annuity was executed in 1835, was Held, entitled to priority over the judgment creditor. — Wise v. Beresford, 13 Dru. & Where a judgment was "obtained against the client subsequently to the deposit of his deeds with the solicitor, and costs had become due for professional services rendered to the client, both before and after the date of the entrj- of the judg- ment. Held, that the lien of the solicitor could not prevail against the judgment creditor for any portion of the costs which became due after the date of the rendition of the judgment, — Blunden V. Desart, 2 Dru. & W. 405. In a suit by a judgment creditor against his debtor to give effect to a charge under the 1 & 2 Vic. c. 110, on the interest of the debtor in an estate of which he was the mortgagee, which was vested in trustees for sale to satisfy incumbrances, and pay the mortgagor, a sale of the estates was directed, and the purchase-money proving in- sufficient to satisfy the charges thereon, the plaintiff was Held entitled to be paid his debt and costs in priority to the costs of the mortgagor or mortgagee of the estate, or any other of the de- fendants, except the trustees for sale. — Clare v. Wood, 4 Hare, 81. A. being indebted to B. by a certain indenture of the 1st of August, 1819, granted certain lands and premises to C., as a trustee for B., in con- sideration of, and for the purpose of discharging the said debt, &c., with certain powers in the said deed specified, and, after satis^ing the purposes of the said deed, upon trust, to re-convey and as- sign the same to the said A. B. having siibse- quently died, and appointed by his last wiU the said C. his executor, a bill was filed to carry the trusts of the will into execution, and for a sale of his estates for the payment of his debts, The fund produced by the sales, under the decree pro- nounced in that cause, not being sufficient to pay all the reported creditors of B., C. as trustee and executor of B., assigned to the plaintiff, by a cer- tain indenture of the 21st of February, 1834, the the benefit of the said deed of the 1st of August, 1819, as forming part of the assets of B., upon trust, nevertheless, to apply the amount produced by a sale thereof, in furtiier payment of B.'s creditors. A bill having been, in pursuance of the said deed of 1834, filed against the said A,, a decretal order was pronounced, referiing it to ijie master to take the usual accounts ; the master, among other things, accordingly reported that D., who was the assignee of a certain judgment ob- tained in Michaelmas Term, 1811, against the said A., filed a charge in the office, on foot of his judgment, but that the said judgment was null and void as against the plaintiff, being a pur- chaser for valuable consideration, under the deeds of August, 1819, and February, 1834, and the said judgment not having been revived or re- docketed, pursuant to the provisions of the 9 Geo. 4, c. 35. Held, upon exceptions thereto, that the master was right in postponing the judgment, and that the report should accordingly be con- firmed. Held also, that the deed of the 21st of February, 1834, was a deed for valuable conside- ration, within the meaning of the 9 Geo. 4, c. 35. Held also, that the second section of the 9 Geo. 4, c. 36, applies as wcU to the case of pur- chases made before, as after the passing of the act.— Knox v. Kelly, 1 Dru. & W. 642. An equitable mortgagee of lands is entitled, in equity, to enforce his charge in priority to a cre- ditor of the mortgagor, who, without notice of the equitable mortgage has, subsequently thereto, recovered judgment against the mortgagor and obtained actual possession of the lands by writ of elegit, and attornment of the tenants. — WAitworth v. Gaugain, 3 Hare, 416. When a receiver appointed under the 6 & 6 Will. 4, c. 65, has been extended to the matter of 240 Priority, JUDGMENTS— JURISDICTION. a second petition, under the same statute in which the judgment is, prior to that of the first petitioner, the latter is entitled to the entire rents received prior to the receiver being extended to the second matter, aiid also to be paid the costs of appointing the receiver, out of the rents to be subsequenty received, in priority to the demand of the peti- tioner in the second matter; but the costs of orders and references obtained by the petitioner in the first matter, for his own benefit, are to be paid in the same priority with the residue of his demands. — Keough v. Waring, 1 Jon. & Ca., 189. Motion to restrain a creditor after a decree from issuing execution on a judgment obtained before the decree, de bonis testatoris et si nan de bonis propriis, as to costs refused under the circumstances. Principles upon which the court acts in restraining proceedings at law after a decree, with reference to the priority of the decree or judgment at law and other circumstances,— iee V. Park, 1 Keen, 714. A ship being on her voyage at the of the assignment of the ship and cargo by way of mortgage, the parties sent notice of the assign- ment to the master of the ship, and the master delivered up possession of the ship and cargo to the mortgagees immediately after her return from the voyage. Held, that the equitable title of the mortgagees to the cargo was perfected, and could not be deferred by a judgment creditor of the assignor, who afterwards sued out a writ of Ji. fa. and proceeded to take the ship and cargo in execution, — Langton v. liorton, 1 Hare, 549. -Docketing of. Judgments entered upon different days but as of the term, have no priority, inter se ; the docketing Acts, 7 Wm. 3, 0. 13, & 3 Geo. 2, c. 27, applying only between purchasers and judgment creditors. — Abbott V. Straiten, 3 Jon. & L., 603. Notice to a purchaser for value of a judgment not revived or re-docketed, pursuant to the 9 Geo. 4. c. 35, will not take it out of the operation of that statute. — Beere v. Head, 3 Jon. & L., 340. A mortgage of lands in Middlesex, who took under the exercise of a general power of appoint- ment by the mortgagee, held not to be bound by a judgment previously recovered against the mortgagor, and duly docketed and registered, although he had notice of the judgment, and part of the mortgage money was deposited with his solicitor as an indemnity against ii.—Skeeles v. Shearly, 8 Sim. 163. A judgment entered up within twenty years before the passing of the 9 Geo. IV, c. 35, and not revived or re-docketed within twenty years before the executioa of a deed of conveyance to a purchaser ; or within five years after the passing of the Act, is, after the expiration of twenty years from its entry, void, as against a purchaser whose deed of conveyance was executed after the passing of the act, and within twenty years from the entry df the judgment. — Hickson v. Collis, 1 Jon. & L, 94. XI. — Suits undee the Irish Judgment Acts. The respondent in a petition matter under the Judgment Acts died — hia personal representative ought to be made a party before the court will distribute the funds. — Cloncurnj v. Piers, 3 Jon. & L. 673. When a receiver appointed on the petition, or in the suit of apuisne incumbrancer, is afterwards extended to the matter or suit of a prior incum- brancer — the rents received before the extension of the receiver belong to the puisne incumbrancer. — Abbott V. Slratten, 3 Jon. & L. 603. But rents due at the date of the extending ordei and not received until afterwards belong to the prior incumbrancer. — Id. And rents due at the date of the order ap- pointing a receiver under the judgment acts, but received afterwards, belong to the judgment cre- ditor and not to the debtor. — Id. XII. — Execution executed. In 1828 a judgment was obtained against a trader upon a bond and a warrant of attorney collateral. On the 3rd of March, 1841, the judg- ment creditor having presented a petition for the appointment of a receiver, under the Statute 5 & 6, Will. IV. c. 55, obtained a conditional order for the purpose, which was subsequently made absolute on the 23rd of April. On the 17th of March, in the same year, the trader committed an act of bankruptcy; and on the 17th of May a commission issued, under which he was duly found a bankrupt. Upon motion of the a.ssignee for the discharge of the receiver — ^Held, upon ap- peal confirming the order of the Rolls that it was the absolute and not the conditional order that attached the rents ; and that, consequently, as the judgment creditor was not in the position of a creditor, having "an execution executed," that the receiver should be discharged. — Burt v. Ber- nard, 3 Dru. & W. 464. JUKISDICTION. See Pa. Costs. — ^Lunacy. — Paeest & Child. — Pk. Issue at Law. — Infant. I. General Powers 241 II. Op Master op the Rolls 243 III. Or Vice Chancellor 244 IV. Of Masters 244 V. To Relax or Vary General Orders 244 VI. To Direct Cases to be tried at Law 244 VII. In Matters of Law 245 VIII. Op Chancery over Foreign Princes ^. . . 245 IX. Over other Courts 246 X. Over Municipal Corporations . . 247 XI. Over Incorporated Companies . . 248 XII. Over Property of Heir at Law 248 XIII. In Charity Cases 248 XIV. When Property Derived under Wills 249 XV. Over Testamentary Guardians 249 XVI. In Contracts against Public Policy 249 XVII. Over Receiver 249 XVIII. As between EauiTY Courts 250 XIX. Over Officers of Court and Public Functionaries 250 XX. In Cases of Fraud 260 XXI. Court has no Jurisdiction to Restrain Unlicensed Theatres 250 XXII. Over Husband and Wife 250 XXIII. Over Infants 260 XXIV. In Lunacy 260 Generally, JURISDICTION. Ge. %lly. 241 I. — Generally. By 5 Vic. c. 5, s. 4, the Court of Chancery may without bill filed restrain the Bank of England from permitting the transfer of Stock. The Court retains power to enlarge or abridge time for procedure, unaffected by the General Orders of 8th May, 1845, 21st Gen. Old., 8th May, 1845, Beav. ed. 292. The Attorney General, (after the passing of the Statute 5 Vic. c. 5,) filed an information in Chan- cery against the Mayor and Commonality of London, alleging that the crown was seised of the bed and soil of the River Thames ; that the defen- dants were conservators thereof ; and, in breach of their duty as such conservators, had granted to divers persons (also made defendants) licenses to embank part of the river, and had received fines for such licenses, and that such embankments were nuisances ; and the information prayed that the rights of the parties might be ascertained, that the licences might be declared void, and that injunctions might issue to prevent the completion of the embankments. The defendants denied that the embankments were nuisances, and de- murred to the rest of the bill for want of equity. Held, affirming an order of the Master of the Itolls, that the information was maintainable in Chancery. — The Mayor of London v. The Att. Gen. 1 Clk. & Fin. N. S. 440. A builder agreed by a written contract, under seal, with a board of guardians, to build a work- house, according to a certain plan, for a certain sum ; and any deviation from the plan which the board or their architect might order in the course of the work were to be valued in a particular manner, and the value added to or deducted from the stipulated price, as the case might be ; but it was expressly provided that no allowance was to be made to the builder for additional work unless the same should be ordered in writing. After the builder had been paid for all the work done pur- suant to the written agreement he filed a biU against the board, alleging that much additional work had been done, with the knowledge and sanction of the board, and on the faith of an as- surance from their agent that no written order for it was necessary, and praying an account and payment of what was due in respect of such work. Oa a general demurrer to the bill, Held first that the subject matter of the claim was not of itself within the jurisdiction of this court ; and secondly that the alleged fraud on the part of the board m taking advantage of the want of a written order to avoid paying for work which they had sanc- tioned would not give the court jurisdiction, and that bills to enforce parol contracts within the Statute of Frauds on the ground of part perform- ance were different, the court having jurisdiction in those cases over the original subject-matter ; viz : — the contract and the question being whether that jurisdiction was ousted by the want of a writing — whereas here the attempt was to make the want of a writing the ground of jurisdiction. — Kirk V. The BronUey Union, 2 Phil. 640. Where a decree has been affirmed by the Lord Chancellor no application can be made except be- fore the Lord Chancellor, for a re-hearing, for the purpose of obtaining directions different from those already given. — Smith v. The Earl of Ef- fingham, 10 Beav. 589. The jurisdiction of the court is not affected by the 9th and 10th Vic. c. 28, for facilitating the winding up of certain railway companies, — Jones T. Lord Charlemont, 16 Sim, 271. Creditors of an insolvent cannot maintain a suit respecting property or rights alleged to have belonged to the insolvent, and to be vested in his assignee under the Insolvent Debtors' Acts, upon an allegation of collusion between the assignee and the party against whom the relief is prayed ; and the same rule applies to suits for a similar object by the insolvent himself. — Heath v. Chad- wick, 2 PhU. 649. Proceedings by a creditor under the 1 & 2 Vict, c. 110, s. 8, with a view to making the alleged debtor a bankrupt in default of his paying the demand, wUl not be interfered with in a court of equity on the ground merely of an allegation that such proceeding is dictated purely by fraud and malice, and that no debt is in fact due. — Pirn v. Wilson, 2 Phil. 653. A covenant, between vendor and purchaser, on the sale of land, that the purchaser and his" assigns shall use, or abstain fi:om using, the land in a particular way, wdll be enforced in equity against all subsequent purchasers, with notice, independently, of the question whether it be one which runs with the land so as to be binding upon subsequent purchasers at law. — Tulk v. Moxhay, 2 PhU. 774. The court has jurisdiction to order the real es- tates of a deceased debtor to be sold for payment of his debts, in a suit instituted, not by a creditor of the deceased, but by a person interested in his estates under his will. — Rodney v. Rodney, 16 Sim. 307. Bill by a cestui que trust against the assignees of the trustee, who had become a bankrupt for an account and payment of what was due, in respect of a breach of trust committed by the bankrupt, and to restrain the assignees from dis- tributing his estate amongst his creditors. The court refused the injunction because it had no jurisdiction to interfere with the administration of a bankrupt's estate at the suit of a person claiming as a general creditor. The Court of Bankruptcy has exclusive jurisdiction to deal with what is admitted to be the bankrupt's estate, but a court of equity or a court of law (as the case may be) has jurisdiction to determine what is or is not the property of a bankrupt. — Halford v. Gillow, 13 Sim. 44. Where an insolvent on his return from attend- ing the Court of Bankruptcy on his own petition for protection, under 6 & 6 Vict. c. 116, was arrested under an attachment of the Court of Chancery, his application to the Court of Chan- cery to be discharged was held improper and refused.— P/omer v. Uacdonough, 1 De G. & S 232. The absence for a remedy for a supposed wrong in another place is not of itself any reason for this court assuming a jurisdiction on the subject. The case must be such as to bring it properly within the jurisdiction of this court on other grounds.— Byoes v. The Duke of Wellington, 9 Beav. 579. The Statute 6 & 7 W 4, c. 115, gives to persons dissatisfied with anything that has been done under its provisions an appeal to the Quarter Sessions. This would not deprive a party ag- grieved of his right to apply for the interference of a court of equity if he was in other respects entitled to that interference.— TAe Duke of Beau- ford V. Neeld, 12 Clk. & Fin. 24.S. The court assumes that an order of an English Court of competent jurisdiction proceeds on a just foundation, and will not enter into a con- sideration of the merits of it upon an ancillary B 242 Generally. JURISDICTION. Generally. proceeding, taken here to enable the parties to remove fraudulent impediments created to defeat the execution of order. — Taylor y. Wyld, 8 Beav. 159. The crown might, before the abolition of the Equity Exchequer, have proceeded on the equity side in respect of a legal right, and may now proceed on the same way in chancery. — The Att. Gen. V. The Corporation of London, 8 Beav. 270. The executors of a judgment creditor filed a bill to raise the amount of their judgment. A decree to account was pronounced, but on taking the account in the office it was found, that in- stead of there being anything due to the plaintiffs, they had in fact been overpaid. Held, that the court had jurisdiction to order the plaintifi's to bring in the sum by which they had been over- paid. — Graves v. Wright, 2 Dru. & W. 77. A bill for chief rent is sustainable in this court, ■when, in consequence of the acts of the party liable to pay such chief rent, all the difficulty in the way of the plaintiff's proceeding at law has been occasioned. — The Archbishop of Dublin v. Lord Trimbleston, 2 Dru. & W. 535. An insolvent debtor and his wife conveyed estates belonging to the latter, to trustees, to raise and pay £35,000 to the assignees (who were parties to the deed) for the benefit of the cre- ditors. The insolvent died before that sum was raised, and after his death the assignees made a compromise with his widow, by which they agreed to accept from her a smaller sum. One of the creditors filed a bill against the assignees, the trustees, and the widow, charging them with collusion, and praying that the trusts of the conveyance might be performed, and that the defendants might be restrained from carrying the compromise into effect. A demurrer by the assignees for want of equity was allowed, as the plaintiff ought to have applied to the Insolvent Debtors' Court to remove the assignees. — I'ewens V. Robinson, 11 Sim. 105. A testator having by his will bequeathed a legacy to the plaintiff, and made S. E. his residuary legatee, executed several codicils, by which he gave to the plaintiff further legacies and one fourth share of his residuary estate. He after- wards executed another codicil by which he revoked all former bequests to the plaintiff, giving him a small annuity in lieu thereof ; and, at the same time, made a reduction in legacies which he had previously given to some of the plaintiff's relations. The w3l and all the codicils having, after litigation in the Ecclesiastical Court, been admitted to probate, the plaintiff filed his bill, alleging that the testator had been induced to execute the last codicil solely through certain false and fraudulent representations which had been made against hia (the plaintiff's) character, at the instance of S. E. And that in the Ecclesiastical Court he had not been permitted to take any objections to that codicil, except such as went to the validity of the whole instrxi- ment, and praying therefore, that the executors of S. E. might be declared trustees for him to the amount of the bequests revoked by that codicil. Held, upon demurrer, reversing the decision below, that the court had no jurisdiction to entertain the hiW.— Allen v. Macphersoii, 1 Phil. The law of the country where a contract is made, or is to be performed, fui-nishes the rules for expounding the nature and extent of its obligations. But the law of the country, where it is-sought to enforce performance of a contract, governs all questions as to the remedy and mode of proceeding, including lapse of time. — Fergusson V. Fyffe, 8 Clk. & Fin. 121. No equity can be founded on an allegation that a court legally constituted is not properly competent to decide questions within its jurisdic- tion ; and where the legislature has given juris- diction to a court provided by the act, and has made its decision final, if any inconvenience arises from the legal exercise of the jurisdiction, the legislature alone can supply a remedy. — The Barnsley Canal Company, v. Twibell, 7 Beav. 19. A canal act provided, that in ca.se the company and the coal owner could not agree as to the amount of compensation for the coal taken for the purposes of the canal, it should be settled by a jury summoned by the commissioners, whose verdict was " to be conclusive, and should not be removed by certiorari or other process what- ever, into any courts of record at Westminister or any other court." A bill was filed prayin" an injunction to restrain proceedings before a jury, on the ground that the defendant was entitled to no compensation, and that the special jurisdic- tion provided by the act was not so constituted as to be likely to come to a just conclusion. Held, that the plaintiff was not entitled to an injunction if the defendant was entitled to any compensation, the amount of which had to be ascertained ; but whether the court had any jurisdiction to interfere with the matter, if it had clearly appeared that the defendant was entitled to no compensation — Quaere. — Id. After a will of personalty had been proved, per stirpes, in the Ecclesiastical Court, a bill was filed by the next of kin, alleging that the testator's signature to the will was obtained when he was not of sound and disposing mind ; that his medical attendants were not called as witnesses when the probate was obtained ; and that the evidence of the testator's incompetency did not come to the knowlege of the plaintiffs until after the time allowed for appealing fi-om the sentence of the Ecclesiastical Court had expired ; and praying that the will might be declared to have been fraudulently prepared and obtained, and that the residuary legatee may be a trustee for the plaintiffs. A demurrer to the bill was allowed ; a court of equity having no jurisdiction to relieve against the probate of a will, unless the consent of the next of kin to the granting of it was fraudulently obtained, — Gingell v. Home, 9 Sim. 639. Although the Poor Law Amendment Act enacts that no order of the Poor Law Com- missioners shall be removed by certiorari into any court of record except the King's Bench, and that any order that shall be removed into that court shall nevertheless, until declared Ulegal, continue in force and be obeyed in the same manner as if it had not been so removed ; yet the Court of Chancery has jurisdiction to restrain the commissioners and the guardians of a union from acting upon an order, pending proceedings under a certiorari obtained by the plaintiff to try the validity of it. — Frewin v. Lewis, 9 Sim. 66. The court will restrain commissioners for examining witnesses from bringing an action for their fees against a solicitor in the cause, and will refer it to the master to ascertain what is due to them. — Blundell v. Gladstone, 9 Sim. 455. Courts of equity have no jurisdiction, under 3 & 4 Will. 4, C..42, to order witnesses to attend arbitrators. — Hall v. Ellis, 9 Sim. 530. A bill was filed in chancery in Ireland, im- Generally. JURISDICTION. Of Master of the Rolls. 243 peaching leases and mortgages as not in due exe- cution of pOTvers in a settlement, also impeaching on various grounds a decree of the court of ex- chequer, and a sale, in pursuance thereof, of the mortgaged estates, subject to the leases. When the cause came to be heard, the plaintiff's coun- sel informed the court that no judgment would be required as between the plaintiff and mort- gagees, an arrangement being in progress by which the mortgagees and purchaser, under the ex- chequer decree, consented to a redemption of the estates, on payment by the plaintiff of a certain sum. The Lord Chancellor then heard counsel as to the validity of the leases, but conceiving that the consideration of the question as to the validity of the mortgages and sale was with- drawn by the arrangement, and that, in the absence of the purchaser, he had no jurisdiction to give a decision on the leases, he dismissed the bill as against the defendants, claiming the bene- fit of them. Held, by the Lords, on an appeal against a decree made on re-hearing, which re- versed the decree of dismissal, that it was open to the Lords to consider the merits of this decree, though not appealed from, and to declare that the arrangement, instead of withdrawing from the consideration of the court the plaintiff's claim to relief against the mortgages and sale, was an ad- mission of his right to that relief ; that the decree of dismissal was therefore erroneous, and that it was competent to the Lord Chancellor, at the time of making that decree, to adjudicate as to the validity of the leases, and the cause was committed to the Court of Chancery to be heard. — Sheehy v. Lord Muskerry, 7 Clk. & Fin. 1. Whether, where A., a residuary legatee, by artful and fraudulent misrepresentation to the testator of the character of B., induces the testa- tor to revoke a legacy given to B., the benefit of which revocation results to A., this court has jurisdiction to affix a trust on A. in favour of B., to the extent of the fruit of the fraud possessed by A., or whether the matter belongs exclusively to the Ecclesiastical Court ; and, secondly, whether such trust can be declared after a sentence of the Ecclesiastical Court, in which the question of undue influence was in issue — Qutere. Held, in the afl[irmative by the Master of the Rolls, and in the negative by the Lord Chancellor. The parties thereupon appealed to the House of Lords. — Alien V. M'Pherson, 6 Beav. 469. The equitable jurisdiction of the Vice-Warden of the Stannaries of Cornwall, depends upon the principles of equity as administered by the High Court of Chancery; therefore, in a case where ejectment lies for a mine, a petition to the Vice- Warden for delivery of possession to the plaintiff, without alleging any impediment to the recovery of the premises in a court of law, is bad on de- murrer. Nor will a petition lie simply for an account of mesne profits of a mine, in a case where it is not shewn that any difficulty exists in taking; the account, or that such account may not be taken as conveniently at law as in equity. — Vice V. Thomas, 4 Y. & C. 538. A banking company, in acknowledgment of monies deposited with them by H., gave him two accountable receipts for £100 each, on which, ac- cording to the course of dealing, interest would be paid. H. died, and pending a contest for the administration of the estate, the receipts came into the possession of a stranger, who fraudu- lently obtained payment from the bank, and the receipts were returned to the bank and cancelled. Held, that the administrator of H. might sustain a suit in equity against the banking company, for payment of the sum for which the receipts were given. — Pearce v. Cresswick, 2 Hare, 286. The necessity arising from the nature of a transaction to sue in equity for discovery, is a material circumstance to be regarded in consider- ing the jurisdiction of the court, to give relief in the same case ; but the necessity of coming into equity for discovery, does not necessarily carry with it the right to relief. — Id. The court has no jurisdiction to decide upon a petition presented under 62 Geo. 3. c. 101, where the parties claim adversely to each other. — In re Deane Clarke's Charity, 8 Sim. 34. Where commissioners of sewers, under an Act of Parliament, are proceeding to pave and make sewers to the injury of property, in a case not within the act, this court, unless expressly ex- cluded, has jurisdiction to interfere ; although by the act, jurisdiction is given to the justices at sessions, whose judgment is not to be removed by certiorari, or otherwise, into any of Her Majesty's courts of record at Westminster, or elsewhere. — Birley v. The Constables, ijc, oj Charlton, 3 Beav. 499. Whether the party who has been injured by a felonious taking of his property, and is prose- cuting the imputed felon, may not sustain a bill or proceeding in equity against the latter, to pre- serve in the meantime the property, the abstrac- tion of which is the subject of the criminal charge — Qutere. — In the matter of the Marquis of Hertford, 1 Hare, 584. In a charter incorporating a charitable founda- tion, under the name of the master and five poor of the college or hospital therein described, it was provided that the master should perform certain I ecclesiastical duties, either by himself or by some I efficient minister or curate. The master of the I hospital did not reside in or near the hospital, I and a scheme had been approved, upon a refe- rence, by which the master of the hospital was to allow a salary to a curate, who was to reside in the hospital. Held, upon the construction of the whole charter, that the master was bound to re- side in the hospital for the purpose of performing the several duties of his oifice. Whether eccle- siastical duties, enjoined under a charitable foun- dation, are properly performed, it is not within the jurisdiction of the court to determine, this being a matter which belongs to the cognisance of the ecclesiastical authorities. — Ait. Gen. v. Smithers, I Keen, 289. II. — Op Master of the Rolls. The Master of the Rolls had no jurisdiction in a Vice Chancellor's cause to order amendments made under an irregular Rolls' order to be taken oft' the me.— Edge v. Duke, 10 Beav. 184. The Vice Chancellor, by permission of the Lord Chancellor, granted an injunction in a cause attached to the Rolls Court. Held, that the Master of the Rolls had no authority to dissolve it. — Paredes v. Lizardi, 9 Beav. 490. In the vacation the Vice Chancellor heard a motion for the Master of the Rolls, which he refused. Held, that no application for the same purpose could afterwards be made to the Master of the Rolls, even if supported on different grounds from those before the Vice Chancellor. — Man V. Ricketts, 9 Beav. 4. An order was made at the Rolls for the deli- very by a solicitor of his bill of costs, which was 244 0/ Vice Chancellor. JURISDICTION. To Direct Case, Sic accordingly delivered and paid. Any subsequent application for the delivery of deeds and docu- ments of the client in the solicitor's possession should be made to the Rolls, and not to any other branch of the court. — In the Matter of Mills, 1 De G. & S. 643. In respect of orders of course made at the Eolls in a Vice Chancellor's cause, the Master of the Rolls has no jurisdiction over anything but the alleged irregularity and the incident costs. In such cases the merits or special circumstances cannot be considered by the Master of the Rolls, except upon the question of incidental costs. — Uolcombe v. Antrobus, 8 Beav. 405. An appeal was made to the Lord Chancellor against an order of the Master of the Rolls. What was done did not appear, further than that the Lord Chancellor either decided it on the merits, or refused to hear it on the ground that the defendant was in contempt for non-payment of costs. A motion was afterwards made to the Master of the Rolls to discharge the order, but he held he had no jurisdiction to interfere, — Old- field V. Cobbett, 8 Beav. 292. The Master of the Rolls has jurisdiction to direct costs, which have been ordered by the Lord Chancellor to be paid by the defendant to the plaintiff, to be set up against costs ordered by the Master of the Rolls to be paid by the plaintiff to the defendant. The order may be obtained on motion, and the notice of motion may be given before the taxation. — Catiell v. Simons, 6 Beav. 304. Extent of the jurisdiction of the Master of the Rolls to alter the enrolments of the specifications of patents. — In re Sharp's Patent, 3 Beav, 245. III. — Op Vice Chancellok. A cause set down before the Vice Chancellor of England was ordered to be tra'nsferred to another branch of the Court. Held, that the Vice Chan- cellor of England had nevertheless jurisdiction to hear a petition in the cause presented before the order of transfer was made. — Hills v. Hills, 11 Sim. 571. Jurisdiction of the Vice Chancellor under 6 & 7 Vic. e. 73, to order the taxation of bills of costs. — In re Howard, 8 Beav. 424. The Vice Chancellor has jurisdiction to make orders under 2 & 3 Vic. c. 54. (for amending the law relating to the custody of infants), although the Lord Chancellor and Master of the Rolls are alone mentioned in the act. — In re Taylor, 10 Kim. 291. The Vice Chancellor has no jurisdiction under the 12th Order of May, 1837, to order a fund standing in trust in a Lord Chancellor's cause to he transferred to a Rolls' cause. — Wright v. Irving, 10 Sim. 625. Petition by tenant in tail, on the death of the tenant for life, for payment of a fund in court arisen from the sale of timber improperly cut by the tenant for life. The decree, on further direc- tions, was made by the Master of the Rolls, but it did not reserve liberty to apply. Held, that the case was not affected by the llth Order of May, 1837, and therefore the application was not improperly made to the Vice Chancellor. — Abur- row V. Aburrow, 10 Sim. 602. A suit to set aside a decree at the Rolls on the ground of fraud may be heard by the Vice Chan- cellor, — Archer v, Slater, 10 Sim. 624. The Vice Chancellor cannot, without special authority, hear a motion to discharge an order of the Lord Chancellor, though made upon petition as of course.— £«W of Glengall v. Bland, 1 Hare, 624. rv. — Of Masters. Cases stated which, though they come within the letter of the 3 & 4 Will. 4, c. 94, s. 13, yet the application ought to be made to the Court in the first instance, and not to the master. Strick- land V. Strickland, 4 Beav. 146. Under the common decree in a suit by creditors against an administration, Held, upon the autho- rity of Spiear v. James, (2 Myl. & K. 387.) that the master had no jurisdiction to decide and report upon a question of retainer, the claim as to which had been set up by the defendant in his answer, and had not been disputed by the plain- tiff untU after the decree. — Thompson v. Cooper. 1 Coll. C.C. 81. i- 1- , The 3 & 4 Will. 4, c. 94, s. 13, giving jurisdic- tion to the masters to hear and determine all applications for leave to amend bills, does not ^Pply to cases where the party is entitled of course to leave to amend, as where leave is given at the hearing to amend by adding parties, or to eases where it is necessary for the court to hear all the circumstances enabling it to determine whether leave ought to be given to amend or not. — Rees V. Edwards, 1 Keen, 465. V. — To Relax ok Vary Genekai, Ohdeks. The court has sufficient authority, when the occasion requires its exercise, to prevent parties converting its ovni rules, and the sanctions em- ployed to enforce them into the means of injus- tice.— iord Suffield V. Bond, 10 Beav. 146. Jurisdiction or discretionary power of the court, by the effect of the Statute of 8 & 9 Vic. c. 105, s. 2, to vary or relax the terms of the General Orders of August, 1841. — Medhurst v. Allison, 4 Hare, 479. The 33rd Order of May, 1845, which enables the court to order the service of the subpoena to appear and answer upon a defendant out of the jurisdiction, does not apply exclusively to suits concerning lands, stock, or shares, within the Statutes 2 Will. 4. c. 33, and 4 & 5 Will. 4. c. 82, but gives the court a discretion, according to the circumstances of the case, to permit such service in any suit whatever. — Whitmore v. Ryan, i Hare, 612. VI. — To Direct Cases to ee Tried at Law, It is the ordinary rule of a court of equity in cases where an heir disputes the will, to grant the issue to try that question ; but where he does not dispute it, but acts under it, merely denying that certain portions of the land pass under the description used in it, a court of equity has full jurisdiction to determine the question thus raised without granting an issue, or may grant such issue at its discretion. — Ricketts v. Turqtmnd, 1 Clk. & Fin. N.S. 473. A court of equity has no original jurisdiction to try the validity of a will either of real or per- sonal estate, but where, on a bill filed for the removal of terms or for other equitable relief, the In Matters of Law. JURISDICTION. Over Foreign Princes, 245 validity of a will of real estate incidentally comes in question, the court will proceed to investigate that question, and will, generally speakini:, tor the purpose of informing its conscience, direct an issue, devisavit vel non, — Middleton v. Sherburne, 4 Y. & C. 358. Where a bill is filed by an heir-at-law against a devisee to try the validity of a will of real estate, the court, under special circumstances, will direct an issue, devisavit vel non, on motion before hearing. — Id. And, Semble : that, under special circumstances it will appoint a receiver of the real estate. — Id. Bill by a corporation to have a lease of the corporation property delivered up as void under the Municipal Corporation Act (5 & 6 Will. 4, c. 76,), dismissed with costs, on the ground tliat the objection was legal, and that the question of its validity ought to be first determined at law, — The Corporation of Arundel v. Holmes, 4 Beav. 325. Cross bill by the lessee to have an inquisition, finding the lease collusive, quashed, and delivered up to be cancelled as being irregular and fraudu- lent, dismissed with costs on the ground of want of jurisdiction. — Id. VII. — In Matters of Law. Semble : When an action is referred by an order at Nisi Prius, this court has no jurisdiction to interfere vrith the certificate of the referee, or with the judgment entered up pursuant thereto on any ground on which it would not have such jurisdiction if the judgment had been obtained in the ordinary course upon the verdict of a jury, — Chuck V. Cremer, 2 Phil. 477. There is no jurisdiction in equity to order a legal instrument to be delivered up on the ground of illegality, which appears upon the face of the instrument itself. During the progress of a railroad bill through Parliament, the promoters of the bill agreed with an owner of land on the in- tended line, that, if the bill shall pass, they will endeavour, in the next session to obtain the sanction of Parliament to a deviation of the line. Whether such an agreement is legal — Qucere, — Himpson v. Lord Howden, 3 Myl. & Cr. 97. The court having interfered by injunction to restrain the payment of a legal debt admitted by the debtor to be due to the nominal creditor, has then jurisdiction to decree payment of the debt against the debtor, without sending the party entitled to the payment to recover it by the use at law of the name of the nominal creditor. — Green v. Pledger, 3 Hare, 165. Where a party obtains an injunction to restrain an action at law upon the terms of paying the money, which is the subject of that action, into this court, and the court afterv/ards orders such payment to be suspended until the hearing of the cause, the effect of this order is to reserve to this court both legal and equitable jurisdiction over the money at the hearing. Therefore if, upon the hearing of the cause, the court is of opinion that the plaintiff in equity has no equity, and that the defendant has a legal right to the money, it will order the money to be brought into court and paid over to the defendant, in compensation for the suspension of his legal right, without putting the defendant to the necessity of taking any further proceedings at law in order to esta- blish his legal right.-r-SwaW v. Atwood, 3 Y. & C. 105. The decree in this court, notwithstanding it maybe afterwards adjudicated upon in the House of Lords, is the final decree in the suit, and this court has no jurisdiction over matters arising between the decree and the judgment of tlie House of Lords, whicli, though connected with tlie suit, are not embraced by the dccn.ee. — Id. The mortgagee of a ship by a bill of sale who has omitted to procure an indorsement thereof on the certificate of registry within tiiirty days after tlie return of the ship to port, as required by the Registry Act, theregistered ownerhaving after that time become banki'upt, has no equity distinct from his legal rights to restrain the sale of the ship by the assignees ; the title to the ship after the bankruptcy depending upon the application of the rule of law with regard to order and dispo- sition. — Campbell y. Thompson, 2 Hare, 140. Where a bill for relief by a plaintiff liaving a legal demand, if the court of equity had refused its aid, the plaintiff would have been compelled to try his right at law, whilst documents consti- tuting evidence of his right were in the possession of the defendant, the court, in order to determine the title of the plaintiff to the possession of the documents, being obliged to enter into the legal question, will entertain the whole case, and give the plaintiff the same relief as he would have had at law. — Pearce v. Cresswick, 2 Hare, 286. Vin. — Op Chanceky over Foreign Princes. A foreign sovereign coming to England cannot be made responsible in the courts there for acts done by him in his sovereign character in his own country. Held, therefore, that the King of Hanover, who was also a British subject, and was in England exercising his rights as such subject, could not be made to account in the Court of Chancery for acts of state done by him in Hanover and elsewhere abroad, in virtue of his authority as a sovereign and not as a British subject, — Duke of Brunswick v. The King of Hanover; 2 Clk. & Fin. N. S. 1. Discussion of the question whether a sovereign prince is liable to the jurisdiction of the courts of a foreign country in which he happens to be resident, and as to the liability of suit of one who unites in himself the characters both of an independent foreign sovereign and a subject. — • The Duke of Brunswick v. The King of Hanover, 6 Beav. 1. A sovereign prince, resident in the dominions of another, is ordinarily exempt from the juris- diction of the courts there. — Id. A foreign sovereign may sue in this country both at law and in equity ; and, if he sues in equity, he submits himself to the jurisdiction, and a cross bill may be filed against liim, which he must answer on oath ; but a foreign sovereign does not by filing a bill in chancery against A. make himself liable to be sued in that court for an independent matter by B. — Id. The King of Hanover after his accession, re- newed his oath of allegiance to the Queen of England, and claimed the rights of an English peer. Held, that he was exempt from the juris- diction of the English courts for acts done by him as a sovereign prince, but was liable to be sued in those courts in respect of matter done by him as a subject. Held, also, that the sovereign character prevailed where the acts were done 246 Over Foreign Princes, JURISDICTION. Over other Courts. abroad, and also where it wag doubtful in which of the two characters they had been done. — Id. A bill, filed by Charles, ex-Duke of Bruns- wick, against the King of Hanover (a subject of this realm), stated, that by a decree ol the Germanic Diet, followed by a declaration of his Agnati, he had been deposed and his brother appointed successor ; and that by an instrument signed by the reigning Duke, and by William IV., and his brothers, the Duke of Cambridge had been appointed guardian of the plaintiffs fortune, and the guardianship " was to be legally established in Brunswick, where it was to have its locality;" that on the death of William IV., the King of Hanover was appointed guardian, and possessed himself of the private property of the plaintiff. The bill alleged that the instru- ment was void, and prayed a declaration to that effect, and for an account. Held, that the alleged acts under the instrument were not such as ren- dered the defendant liable to be sued or subject to the jurisdiction of this court. — The Duke of Brunswick v. The King of Hanover, 6 Beav. 1. Semble, also, that the instrument complained of was, under the circumstances stated in the bill, connected with political and state transactions, and was a state document. — Id. A foreign prince who comes voluntarily as a suitor into a court of law in England, becomes subject as to all matters connected with that suit to the jurisdiction of a court of equity. — Roths- child V. Queen of Porttigal, 3 Y. & C. 59i, IX. — Over other Courts, A testator by his will and codicils gave E.. A. large bequests, which he revoked by a final codi- cil, providing only a small weekly allowance for him during his life. The wUl and all the codicils having been admitted to probate, after litigation as to the last codicil in the Ecclesiastical Court, E. A. filed a bill in chancery, alleging that the testator had executed the last codicil under in- fluence of the residuary legatee and false repre- sentations, made at her instance respecting R. A.'s character, and that he had not been permitted in the Ecclesiastical Court to take any objections to that codicE except such as affected the validity of the whole instrument ; the bill, therefore, prayed that the executors or residuary legatee might be declared trustee or trustees for H. A. Held, on demurrer, that the Court of Chancery had no jurisdiction in the matter (dissentientibus Lord Cottenham, Chancellor, and Lord Lang- dale, M. R.), and that the proper course would have been an appeal to the Judicial Committee of the Privy Council against the sentence of the Ecclesiastical Court. — Allan v. McPherson, 1 Clk. & Fin. N. S. 191. The Court of Chancery has jurisdiction to grant an injunction, at the suit of the assignees of a bankrupt, to restrain the obligee under a heritable bond executed by the bankrupt before his bank- ruptcy from proceeding in the Court of Session in Scotland, to obtain payment of his debt out of a real estate in Scotland belonging to the bank- rupt at the date of the bond, and thereby charged with the debt ; but it will not exercise that juris- diction if the circumstances of the case render its interference inadvisable. — Jones v. Geddes, 14 Sim. 606. The jurisdiction of this court to administer the subsequently acquired property of an insolvent, is not ousted by the operation of the Insolvent Act, 53 Geo. 3, o. 38. — Byrne v. Byrne, 2 Dru. & W. 71. If relief, which is a proper subject of the juris- diction of another court, be dependent upon reliei to be given in this court, or if the relief, which is properly a subject for this court, cannot be given, except that which belongs to another jurisdiction be given also, this court, to prevent multiplicity of suits, may give both kinds of relief ; but if the relief which is sought in a suit be of different kinds, within the jurisdiction of different courts, and independent of each other, although relating to the same transaction, the right in this court to one kind of relief will not necessarily draw along with it the right to the other ; and therefore where the bill by a part owner of a ship against the master and other part owner, prayed an account of the past earnings of the ship, to which the plaintiff was entitled ; his right to that reUef af- forded no reason for going on to restrain the sailing of the ship until security, according to the practice of the Admiralty Court, was given for the plain- tiffs shares. The Court of Chancery will not (in a case within its jurisdiction) interfere beyond, or other- wise than the Court of Admiralty would interfere at the suit of some part owners, to control the management or restrain the saiHng of a ship, there being no question as to the ownership, and the only dispute being as to the powers of the owners, inter se. — Semble. Whether the Court of Chancery has a concur- rent jurisdiction with the Court of Admiralty to restrain the sailing of a ship at the suit of the minority, or some of the part owners, until secu- rity for its return shall be given by the majority, or others, or whether it is necessary that other circumstances should exist, as questions of pro- perty or otherwise, to draw the subject within the jurisdiction of the Court of Chancery — Qutere. Objections to relief on the ground that although part that is asked is, yet the other part is not, within the jurisdiction of the court, are not anal- agous to objections for multifariousness, where unconnected subjects of equitable jurisdiction are united in the same suit. Where an injunction is applied for upon a dis- tinct ground, which fails, it will not in general be granted upon another ground which has not been put forward, but which it appears might have been put forward in the circumstances of the case. —Castelli v. Cook, 7 Hare 89. Semble : that when the Chancellor of the Duchy of Lancaster reverses or varies the decree of the Vice- Chancellor of the County Palatine, he does so in the exercise of an appellate jurisdic- tion; but whether that jurisdiction be appellate or otherwise, the party complaining of the decree of the court below is not barred by lapse of time, if he present his petition to vary it within twenty years after the decree was pronounced. — Scaris- brick V. Skelmersdale, i Y. & C. 78. The next of kin of an intestate filed their bill in equity in the Supreme Court of Newfoundland, against A., the brother and deceased partner of the intestate, for an account of the estate of the father of A., and of the intestate possessed by A., and on account of the partnership transactions, and the dealings oi' A. with the estate since the death of the intestate. The bill was taken, pro confesso, against A. in the Colonial Court, and on a reference the master reported that certain sums were due to the several next of kin, on the ac- count of the estate of the intestate's father pos- Of other Courts. JURISDICTION. Over Municipal Corporations. 247 sessed by A,, but that no account between A. and the intestate had been laid before him. The Supreme Court decreed that the suras found by the master to be due to the next of kin, and the costs should be paid to them by A. The next of kin brought their actions in this country against A., upon the decree. A. then filed his bill in this court against the next of kin, and personal re- presentative of the intestate, stating that the intestate's estate was indebted to him on the part- nership accounts, and on private transactions, alleging various errors and irregularities in the proceedings in the Supreme Court, and that A. intended to appeal therefrom to the Privy Coun- cil ; and praying that the estate of the intestate might be administered, the partnership accounts taken, the amount of the debt due to A. ascertained and paid, and the next of kin restrained by injunc- tion from proceeding in their actions. — Henderson V. Henderson, 3 Hare, 100. Demurrer, for want of equity, allowed on the ground that the whole of the matters were in question between the parties, and might properly have been the subject of adjudication in the suit before the Supreme Court of Newfoundland. — Id. That inasmuch as the Privy Council is the court of appeal from the Colonial Court, and has juris- diction to stay the execution of the decree, pending the appeal ; the court will not interfere by injunc- tion on the ground of error or irregularity in the decree of the Colonial Court. — Id. Whether, in a case of error shewn in the judg- ment of a court of a foreign country, from which there was no appeal to any of Her Majesty's courts, the decision would be the same — Qucere. —Id. The House of Lords will, on appeal, interfere with the practice of courts below in respect of procedure, where the form of procedure admitted below, appears to be incompetent, and to lead to dangerous results. — Fleming v. Dunlop, 7 Clk. & Fin. 43. Jurisdiction of this court to restrain proceedings in the Admiralty Court on bottomry bonds. In- junction granted to restrain proceedings in the Admiralty Court respecting a bottomry bond and freight of a ship, on the ground that the matters could be more conveniently, directly, and effec- tually determined in this court.— i/'i)Mnca« v. Calmont, 3 Beav. 409. The assignee of an insolvent debtor, under 1 & 2 Vic. c. 110, being unable to recover an estate, belonging to and in the possession of the insolvent, owing to the existence of an old commmission of bankruptcy against the insolvent, (which, how- ever, had been long since abandoned, in conse- quence of all the creditors under it having compromised and released their debts), is entitled to maintain a suit in Chancery against the insol- vent and the assignee in bankruptcy for the re- covery of the estate, and for a receiver of the rents in the time. — Hollia v. Bryant, 12 Sim. 492. After decree the court has jurisdiction at the instance of a defendant to enjoin the plaintiff from proceeding in the same court, in respect to the same matter. After decree here the plaintiff can- not, except by leave of the court, proceed in another court in respect of the same matter, even though such proceedings are merely auxiliary. — Wedderburn v. WedderMtr?i, 2 Beav. 208. Plaintiffs in equity claiming to be admitted as creditors, under a fiat in bankruptcy, in re,5pect of a breach of trust by the bankrupts, which was the subject of the suit in equity, applied on a di- vidend of the bankrupt's estate, being about to be declared, to be allowed to enter a claim upon the proceedings, and to have a fund reserved. The application being refused by the commis- sioners was renewed by petition to the Court of Review, and also refused by that court. A sup- plemental bill was then filed, praying an injunc- tion to restrain the assignees from paying any dividend which might be declared, until the cause in equity was heard, or without reserving a suffi- cient fund to answer the plaintiff's demand. Held, that if the Court of Chancery had juris- diction to interfere in the distribution of the es- tate of a bankrupt ; the court ought, upon general principles, after an adjudication in bankruptcy on the subject of the distribution, to refrain from exercising such jurisdiction. — Tliom.pson,Derham, 5f Thompson v. Goodman, 1 Hare, 358. Semble, the court has no jurisdiction to interfere in the mere distribution of the estate of a bank- rupt, either on the grotmd of trust or otherwise. —Id. An injunction granted on terms to restrain proceedings instituted in Demarara, to recover real estate there, and an order made for a con- signee and manager of the estate and produce, it appearing to the court that there were many other questions between the parties connected with the estate, which could be more conveniently deter- mined together in this country. — Bunbury v. Bunbury, 1 Beav. 318. An injunction was granted to restrain the plaintiff from prosecuting a suit not brought to a hearing in Ireland, the subject-matter of the suit being the same as that of a suit instituted in this court, and in which this court had pronounced a decree refusing the relief sought. — Booth v. Leycester, 1 Keen, 579. XI. — OvEK Mdnioipal Coepokations. The Act 5 & 6 W. 4, c. 76, creates a trust of the property of Mvmieipal Corporations, and of the fonds raised for the purposes of the act, sub- ject, like other property held in trust, to the jurisdiction of the Com-t of Chancery. Although the act contains provisions for correcting abuses in respect of the borough property, there is nothing in it to exclude the ordinary jurisdiction of the Court of Chancery to prevent breaches of trust. Held, accordingly, by the Lords, (affirming the judgment of the Court of Chancery,) that a bond given by the town council of a borough, to secure compensation out of the borough fund, to an officer lor the profits of offices, some of which he continued to hold, was a breach of trust, and illegal. — Porr v. The Att. Gen., 8 Clk. & Fin. 409. The Court of Chancery has jurisdiction to pre- vent the town councU of a borough from abusing the power given to them, by the Act 6 & 6 W. 4, c. 76, of awarding compensation for the enrol- ments of offices, and no difference in this respect is made by the circumstance that the compensa- tion is about to be raised by means of a rate. Whether compensation can, under that act, be given for the emoluments of an office which the officer has voluntarily resigned — Quare. Semble : That in estimating the amount of com- pensation, the emolument of offices dependent upon that which gives the right to compensation may be considered. — Ait, Gen. v. Corporation of Poole, 4 Myl, & Cr. 17. Jurisdiction of the Court of Chancery to mode- rate the amount of compensation awarded by the 248 Over Incorporated Companies. JURISDICTION, In Chariii/ Cases. town council on wrong princii)les to a corporate officer, under the Municipal Corporation Act. — Id., 8 Beav. 75. This court still has jurisdiction to relieve against collusive alienations of corporate pro- perty, notwithstanding the remedy provided by the 97th section of the Municipal Corporation Act, but as, by that act, corporate property is applicable to public purposes, the Attorney Gen- eral must sue, in such a case, in conjunction with the corporation. — AU, Gen, v. Wilson, 9 Sim, 30. XI. — Over Incouporated Companies. N. and S. contracted with a railway company jointly and severally, to execute railway works according to specifications and prices contained in a former contract between N. and the company. S. was to advance the money necessary for the execxition of the works, and to receive from the company all monies accruing from them in res- pect of the works, and apply them in discharge of > .'s liabilities under his contracts. S. became a bankrupt at the completion of the works, and the company, after paying him and his assignees part of the monies due from them, refused to ac- count with N. for the balance, whereupon he filed a bill for an account against them and S.'s assignees. Held, that although the case against the company consisted of matters cognizable at law, yet as there were complicated accounts be- tween them and the other parties respectively, a court of equity was more competent to take them and to dispose of the whole case than a court of law, and the bill was sustained accordingly. — The Taff Vale Railway Co, v. Nixon and others, 1 Glk. &Fin. N. S. HI. The Attorney General (after the passing of the Stat. 5 Vic. c. 6,) filed an information in Chan- cery against the Mayor and Commonalty of Lon- don, alleging that the crown was seised of the bed and soil of the river Thames, that the defen- dants were conservators thereof, and in breach of the duty as such conservators, had granted to divers persons (also made defendants) licenses to embank parts of the river, and had received fines for such licentes, and that such embankments were nuisances, and the information prayed that the rights of the parties might be ascertained, that the licenses might be declared void, and that injunctions might issue to prevent the completion of the embankments. The defendants denied that the embankments were nuisances, and demurred to the rest of the bill, for want of equity. Held, affirming an order of the Master of the Rolls, that the information was maintainable. — The Mayor of London v. The Ait. Gen., 1 Clk. & Fin. N. S. 440. Quaare, Whether, when an Act of Parliament transfers jurisdiction from one court to another, or grants an extension of the jurisdiction of an existing court, it is necessary, in order to make the act binding on the Crown, that the Crown should be named therein. — Id. Semble : "Where the right of a party to petition Parliament against a bill pending there, depends solely upon his having some private interest which is likely to be affected by it, this court has the same jurisdiction to restrain him by injunc- tion from so petitioning as it would have to res- train him from bringing an action at law, or asserting any other right connected with such in- terest. — atockton and Hartlepool Railway Co. v. The Leeds and Think, and the Clarance Railway Cos., 2 Phil. 666. Principles upon which the court will exercise its jurisdiction over bodies to whom ParUament has given powers of making compulsory pur- chases of land. Semble: That the court will not allow such bodies to avaU themselves of their parliamentary powers, by taking land which they do not require for a bona fide purpose, sanctioned by their Act of Parliament. Semble ; Also that although an attempt to ob- tain possession of land has been, in the first instance, made under colour of the powers of the Act of Parliament, when not really required for the bona fide purposes of the act, yet if the land afterwards becomes really necessary or desirable for such bond fide purposes, the court will not in- terfere to prevent its being taken. — Webb v. Man- chester and Leeds Railway Co., 4 Myl. & Cr. 116. Where certain individuals suffer an injury fironi a public nuisance, quite dLstinct from that done to the public at large, the court will entertain a bill filed by those individuals to be relieved against the nuisance, — Spencer v. The London and Birmingham Railway Co., 8 Sim. 193. XIT — OvEP. Property op Heie-at-Law. By an anti-nuptial settlement, lands of the wife were released to the use of the releasees to uses and their heirs during the joint lives of the husband and v/ife and the life of the survivor on certain trusts, with a limitation to the u.se of the wife in fee, in the event (which happened) of their being no issue of the marriage. After the death of the husband, who survived the wife, the surviving releasee to uses, with a tenant in possession of the land, under a lease from the husband, made a feoffment and levied a fine to the use of himself in fee. Held, that a court of equity might entertain a suit instituted by the heir-at-law of the wife against the releasee to uses, to recover possession of the land and the title deeds. — Semble, that the surviving releasee to uses after the determination of his own legal estate had no rightful title to the custody of the title deeds, and could not be considered as holding them as a trustee for the reversion ; but, Semble that the fine was fraudulent, and that whether void at law on that ground or not, the question of its validity ought not of necessity to be left to the decision of a court of law. — Reece V. Trye, 1 De. G. & S. 273. XIII. — In Cu.'.rity Cases. After the 1st day of August, 1836 it became competent to the Lord Chancellor, under the 5 & 6 Will. 4, c. 76, s. 71, to make new appoint- ments of trustees of charity estates, and funds theretofore administered by corporations. — Big- nold v. Springfield, 7 Clk. & Fin. 71. After a decree had been made, in a suit by information and bill, for the general administra- tion of a charity, one of the objects of which was a free grammar school, the master of the school, who was not a party to the suit, presented a petition in it, with the sanction of the Attorney General, stating tliat, in 1832, which was five years before the decree was made, the defendants, the trustees of the charity, unlawfully removed him from his office, and praying to be paid the Property, ^c. JURISDICTION. Over Receiver. 249 arrears of his salary. Held, that the petition could not be entertained, because it was presented by a person who was not a party to the suit, and involved an important question between the petitioner and the trustees, which was not raised at the hearing of the suit. Held, also, that the court would not have had jurisdiction to deter- mine the question if the petition had been presented under Sir Samuel Romilly's Act ; but that a new suit must be instituted. — Att, Gen. v. Corporation of Bristol, 1 4 Sim. 648. If, it appears to be for the benefit of a charity that part of tlie estates belonging to it should be sold, an order for that purpose may be made on a petition presented under 52 Geo. 3, c. 101. —He Parke's Charitij, 12 Sim. 329. Where two classes of persons claim adversely to each other the right of administering the funds to a charity, the court will not decide the question on a petition presented under 52. Geo. 3, c. 101. — In re West Retford Church Lands, 10 Sim. 101. The court has no jurisdiction to make an order on a petition presented under 52 Geo. 3, c. 101, for transferring the funds of a dispensary to an hospital and amalgamating the two institutions. — In re Reading Dispensary, 10 Sim. 118. XIV. — When Property derived under Wills. A testator died seised of a moiety of a plantation in Jamaica. A. and B., the owners of the other moiety, granted alease of it to the trustee and exe- cutor of the testator's will . He died before the lease expired ; after his death certain persons resident in Jamaica were appointed receivers and managers of the testator's estates, in a suit in this country for the execution of the trusts of the will ; and a merchant in London was appointed consignee and receiver of the produce of the estates. The managers and receivers took possession of the entirety of the plantation and shipped the produce to the consignee, but did not pay A. and B. any rent. A. and B., though not parties to the suit, petitioned, in it, to be paid the arrears of rent due to them out of the funds in the cause, which had arisen from the balances paid in by the con- signee. The court directed a preliminary inquiry with a view to granting the prayer of the petitioner. — Neat v. Pink, 15 Sim. 450. A Scotchman, by a testamentary instrument in the Scotch form, bequeathed all his personal estate to trustees, in trust, to pay legacies and annuities, and the income of the surplus to A. for life, and on A.'s death, to invest the capital in the purchase of lands in Scotland. The trustees named in the will having disclaimed, the court of sessions appointed new trustees, who, as well as A. and several of the legatees and annuitants, were resident in Scotland. A. administered to the testator's estate in England, and filed a bill in chancery against the trustees for the usual ac- counts of the testator's estate possessed by them, and to have the residue ascertained and secured. The trustees filed a cross bill for an account of the testator's estate in England possessed by A. ; and to have the residue ascertained and paid over to them upon the trusts of the will. The court re- fused to relinquish its jurisdiction over the fund in A.'s hands, and directed it to be paid into court, andtobeinvestedinconsols, andthedividendstobe paid to A. for life. — Preston v .Melville, 15 Sim. 35. Quaere: Whetherthe cases oiKerrick v. Bransby, (7 Bro. P. C. 437,) and Andrews v. Powys, (2 Bro. P. C. 604,) are authorities for the proposition that a court of equity has no jurisdiction to try the validity of a wUl of real or personal estates. — Id. A bill in equity will lie to set aside a will made under the influence of superstitious terrors.. —Middleton V. Sherburne, 3 Y. & C. 358. A strong case must be made out to set aside a will on the ground of undue influence, but where a person, acting as the spiritual adviser of a tes- tator, takes advantage of that situation to become the agent and manager of the testator's temporal affairs, and while holding those opposite charac- ters — becomes a donee of very large gifts under the testator's will, there is strong ground made out for enquiry as to undue influence. — Id, XV. — Over Testamentary Guardians. Jurisdiction of the court in controlling the powers of testamentary guardians. — The circum- stance that it will be more for the pecuniary interest of a child to be educated in one religious faith than another will not induce the court to interfere with his religious education ; and, scmble, the courtwill not interfere with the discretion of the testamentary guardian as to the faith in which he educates his ward, particularly if that faith be the faith which the ward's father professed. — Talbot V. The Earl of Shrewsbury, 4 Myl. & Cr. 672. XVI.— In Contracts against Public Policy. The plaintiff cohabited with M. S., a married woman, and in consideration of her agreeing to continue to cohabit with him, he executed a deed whereby " for the consideration therein men- tioned, he granted to atrustee for heran annuity, to commence on his death, marriage, or withdrawing his protection from her ; and covenanted to charge any land that he should become possessed- of with the annuity ; and for further securing the annuity, he executed a bond on the penalty of £1,000 to the trustee, and gave a warrant of attorney to enter up judgment against him on the land, and judgment was entered up against him at the suit of the trustee for £1,000 and costs. Some years afterwards the plaintiff mar- ried, previous to which he had put an end to his intercourse with M. S., and having been advised that the annuity deed and collateral securities, which he stated to have been obtained from him for the consideration of future cohabitation, were not binding upon him, he refused to pay the annuity, in consequence of which M. S., in the trustee's name, brought an action against him on the judgment. The bQl prayed that the annuity deed and collateral securities might be declared void, and be delivered up to be cancelled, and that the trustee might enter up satisfaction on the judgment. The trustee put in a general demurrer, which was allowed. — Smyth v. Griffin, 13 Sim. 246. "" XVII. — Over Receiver. The court will not allow a receiver's recogni- zance to be put in suit on a report showing merely that something is due from the receiver. The precise amount of what is due must be stated. The court has no jurisdiction to order the personal representative of a receiver to account for the receiver's receipts without a bill being filed.— iwe^rafcj- v. Channell, 16 Sim. 479. 250 Theatres. JURISDICTION. In Lunacy. Order made in a summary way to restrain a person, not a party to the suit, to whom the receiver had let a farm, part of the estates in the cause, from removing hay, straw, &o., therefrom. — Walton V. Johnson, 15 Sim. 352. XVIII. — As Between EauiTY Courts, Where a cause has been transferred from one court to another, the latter will not question the correctness of the exercise of judicial authority by the former on a previous application. But when it appears that a plaintiff on obtaining, ex parte, an injunction from one branch of the court, had withheld information which might have induced that branch of the court to make a different order, the injunction so obtained may be dissolved on that ground by another branch of the court to which the cause has been transferred. — Sturgeon v. Hooker, 1 De G. & S. 484. XIX.- -OvEK Opi'icers of Court and Public Functionaries. Any solicitor of the court has a right to com- plain, by petition, of an irregularity in the conduct of business in the master's offices, and on such irregularity being shewn to exist, the Lord Chancellor may interfere to correct it, though no actual evil be proved to have resulted from it. — Case of the Master's Clerks, 1 Phil. 650. Principles of the court's jurisdiction over public functionaries. — Frewin v. Lewis, 4Myl. & Cr. 249. XX. — In Cases or Fraud. The Court of Chancery has jurisdiction to restrain the India Company from paying the money secured by their bonds to a person who has wrongfully obtained possession of them, or to any other person than the lawful owner of them. — Glasse v. Marshall, 15 Sim. 71. One of two trustees of a sum of stock, sold it out under a power of attorney, to which he had forged the signature of his co-trustee, and some- time afterwards absconded. Held, that the Bank of England was compellable in a court of equity, to re-invest the stock in the name of the other trustee. — Sloman v. Bank of England, 14 Sim. 475. XXI. — Court has no Jurisdiction to Restrain Unlicensed Theatres. By the 29 Geo. 3, c. 57, s. 1, the Crown was authorized to grant letters patent for establishing and keeping a theatre in Dublin j and by section 2, it was enacted that no person should act any play in any theatre in Dublin except in such theatres as should be so established by letters patent, under the penalty of forfeiting £300 for every such offence, to be sued for by the common informer. Under this statute the Crown granted letters patent to H., authorizing him, during a certain time, to keep a theatre in Dublin, and His Majesty prohibited and forbid all persons whatsoever, during the term, that they presume to keep open in any manner any theatre in Dublin, and therein to act any play unless they should be thereunto authorized by His Majesty. Held, that the patentee could not maintain a bill for an injunction to restrain unauthorized persons acting plays in a theatre in Dublin, for the keep- ing of which no patent had been granted. — Cal- craft V. West, 2 Jon. & L. 123. Such a bill can only be maintained on the ground of interest in the plaintiff, and unless he can sustain an action on the case the injunction cannot be supported. — Id. XXII. — Over Husband and Wife. The Court of Chancery exercises its ordinary jurisdiction in giving effect to articles of separa- tion between husband and wife, so far as they regard an arrangement of property and specific performance of such articles ; the court will not inquire into the cause of separation. — Wilson v. Wilson, 1 Clk. & Fin. N.S. 538. XXIII. — Over Infants. A Scotchman, by deed duly made in the Scotch form, appointed his wife and eight other persons, all domiciled and resident in Scotland, to be tutors and curators of his infant daughter. Upon his death, his widow and four only of the eight accepted the trusts of the deed. The widow afterwards, with the consent of the co-trustees, brought the infant to England, and after residing for three years in various places there for the health of both, the widow died, recommending the infant to the care of the grandfather, who was then residing in England. The grandfather filed a bill in Chancery in the infant s name for the sole purpose of making her a ward of court, and pre- venting her removal to Scotland ; and upon a contest arising between him and the Scotch trus- tees for the guardianship of the infant, the Lord Chancellor made an order in the usual form, referring it to the master to approve of proper persons to be guardians. Held, by the Lords (affirming that order), 1st, that the Scotch testa- mentary tutors were not testamentary guardians in England, according to the Act 12 Car. 2, c. 24. 2nd. 'i'hat the court had jurisdiction to appoint guardians to the infant although her domicile and all her property were situated in Scotland. 3rd. That the court was bound to appoint guar- dians to the infant, she being made a ward by the mere filing of the bill ; and although the Scotch testamentary tutors had the exclusive control of all her property and were answerable to the Scotch courts only, they had no authority over the infant in England, nor power to protect her, nor were entitled, by virtue of the deed of ap- pointment or by international law, to be appointed or confirmed her guardians in England. {Dis- sentibus. Lord Brougham and Lord Campbell.) 4th. That persons residing out of the jurisdiction may, if otherwise qualified, be appointed guar- dians jointly with a person who resides perma- nently within the jurisdiction. — Johnsone v. Beattie, 10 Clk. & Fin. 42. Qumre ; Whether a bill filed to make an infant a ward of court ought not to allege some right or claim of the infant to property within the jurisdic- tion, although untruly. — Id. XXIV.— In Lunacy. The committee of a lunatic is personally respon- sible in that character to no jurisdiction but the Of Lxmacy. JURISDICTION. Of Lunacy. 251 Great Seal, and therefore, where a committee had neglected to comply with an order in lunacy authorizing him to make certain payments out of the lunatic's estate, in discharge of a liability which had been established against a lunatic in a suit at the Rolls, an order pronounced by the Master of the Kolls on a petition in the cause, that the payments be made " by the lunatic or the committee" on or before a given day, was discharged on the ground that the application ought to have been made in the lunacy, and that the Master of the Rolls had no jurisdiction to entertain it. — Ames v. Varkinson, 2 Phil. 388. The property of a lunatic not found such by inquisition consisted of the sums of £4,252 Bank 6 per cent, annuities, and about £906 cash standing to his account in a cause to which he was a party, and some freehold property of the value of about £7 per annum. A petition pre- sented in the cause for the application of the income of the property to the maintenance of the lunatic, with a view to save the expense of a commission, was dismissed. — Gilbee v. Gilbee, 1 PhU. 121. In Case of Fraud. LACHES. When barred by. LACHES. See Account. — Vend. & Purch. — Landlord & Tenant. I. Doctrine op 251 II. In Case of Fraud 251 III. When Barred by 251 IV. When not Barred by 252 I. — Doctrine of. See 3 & 4 W. 4, c. 27. A lease made to a person standing in the posi- tion of guardian, and at the same time filling the character of agent, receiver and tenant, directed to be set aside upon the equity arising out of these relations, and upon the ground of public policy, and with costs, notwithstanding that a period of eleven years had elapsed after the grant- ing of the lease before the institution of the suit. But the account was limited to the filing of the bm by reason of the delay. — Mulhallen v. Marum, 3 Dm. & W. 317. The doctrine of laches does not apply to a bill for the specific performance of an agreement for a lease which is in point of fact executed, both parties being from the time of the contract in possession of the benefits thereby given them. — Clarke v. Moore, 1 Jon. & L. 723. II. — In Case of Fraud. A decree made in 1830 contained an admission of assets ; a petition of re-hearing, and a special petition to be relieved from the admission were presented, which the court conceived to be grounded on a fraud committed. Held, in 1845, that, whether fraud and mistake had been com- mitted, yet, considering the circumstances of the ease, the length of time that had elapsed, the transactions that had taken place, the absence of documents, and the imperfections of evidence, justice could not be done on a mere re-hearing of the cause as it stood in 1830. — Davenport v. Stafford, 8 Beav. 603. III. — When Barred by. An objection of mere form not going to the substance of the case should be taken speedily, for, if a party being aware of such objections, allows his adversary to take consequential pro- ceedings without noticing it, he will not be allowed afterwards to raise it. — Steele v. Plomer, 2 Phil. 780. A testator bequeathed to his widow a pecuniary legacy and life annuity, she survived him twenty- eight years, and after her death her executrix filed a bill for their recovery, no explanation was given of the circumstances, and no proof of any intermediate payment. The bUl was dismissed on the ground of great laches. — Patteson v. Hawkesworth, 10 Beav. 375. L. died in 1 805, having bequeathed all his per- sonal estate to his two daughters equally, and appointed S. his executor. The youngest daughter attained her age in April, 1823, and married, and in July, 1823, she and her husband filed a bill against the son of S., who was his heir and per- sonal representative, for payment out of the free- hold and personal estate of S., of the sum due to them on foot of the assets of L., which came to the hands of S. This bUl was not filed on behalf of aU the creditors of S., and the court decreed an account to be taken of the personal estate of S. only. That suit was prosecuted against the personal estate of S., but it being apprehended that it would not be sufficient to answer the spe- cialty debts of S., and also the demand of the plaintiff in that cause, the assignee in bankruptcy of the husband in May, 1843, filed a supplemental bill on behalf of himself and the other simple contract creditors of S., prajring to have his real and personal estates marshalled. Held, that the plaintiff was barred of his relief by lapse of time. The pendency of the suit against the personal representative of S. did not keep the demand alive against him as heir-at-law of ?,.— Busby v. Seymour, 1 Jon. & L. 527. H. confessed judgment and died intestate, seised of fee simple estates, and possessed of a term of years. C, his only son and next of kin, died under age, having bequeathed the term to M., the wife of D„ and the real estates descended on B., his heir-at-law. M. died, and D. took out administration to her ; he was also executor of G, In 1834 D. mortgaged the term as his own 262 When barred ly. LACHES.— LANDLORD AND TENANT. Generally. property. Afterwards, in the same year, B. filed a bill against D. to have the judgment paid out of the term ; a general demurrer to this bill for ■want of equity was allowed. In 1835 B. filed a second bill against D. and the mortgagee of the tenure, for the same purpose as the former, and a demurrer by D. to his bill for want of equity was also allowed. In May, 1837, B. tiled a third bill for the same purpose against D. and the mort- gasiee, but did not serve the mortgagee with pro- cess, or prosecute the suit. In November, 1837, D. conveyed the equity of redemption to the mortgagee. In 1841, D., as personal repre- sentative of G., obtained a decree against B. as heir of G., for payment of a sum of money, and B. did not in that suit set up any claim in respect of the judgment of H. Held, that under these circumstances, B. had lost his right to be re- couped out of the term, the amount of the judg- ment which was levied out of the real estate of G. in his hands. The judgment-creditor being barred fi'om levying his debt out of the term though not out of the real estate, the owner of the real estate is also barred of his equity to be recouped the amount of the judgment out of the term. — Boyd v. Belton, 1 Jon. & L. 370. A bill by a creditor to obtain relief, inconsis- tent with an order in a previous suit, was filed nearly twenty years subsequent to the date of the order, and prayed that the order might be re- viewed. An application to rehear the former suit was refused on the ground of laches, acqui- escence, and length of time, but with liberty to renew the application at the hearing of the second suit. — Gwynne v. Edwards, 9 Beav. 22. A plaintiff was required to account for the delay of nineteen years in filing his bill, where the circumstances of the parties had changed by deaths, and the foundation of the suit being a legal demand, the court, after such delay, de- clined to act unless the demand was established in an action. — Blair v. Ormond, 1 De G. & S. 428. A bond-creditor proved his debt under a decree in a creditor's suit, he also claimed to liave an equitable mortgage for the amount. The matter stood over to amend his charge, &c. He neglec- ted to do so, and was reported a bond creditor only. The estate was sold and the money paid into court, and an appointment directed. Nine years after, his personal representative presented a petition for liberty to go in and establish his mortgage, alleging that he had recently dis- covered that his charge had not been amended, it was dismissed with costs. — Cattell v. Simons, 8 Beav. 243. Under a trust-deed dated in 1806, and which was to operate during the life of the grantor, the trustee, after performance of certain trusts, was to pay the surplus rents to the owner during his life. The owner died in 1816, the trustee died in 1818, and in 1828 a bill for an account was filed by the representative of the former against tlie representatives of the latter. The answer was filed in the following year, but no further pro- ceedings were taken-in the suit until 1839, when the cause was set down, and was heard in 1840. Held, that such laches existed as to bar the ac- count. Held also, that as regarded the lapse of time, the case was to be looked at in the same light now as at the filing the bUl. — Dickenson v. iM-d Holland, 2 Beav. 310. IV.— When not Bxkeed by. After a decree to bar, the right of reviving the suit, which arises from delay in the proceed- ings, depends altogether on the discretion of the court. If a bill of revivor is filed at any time within twenty years after a decree for an account, the-court will not refuse relief unless there has been such a variation of the rights of parties as to occasion danger of working positive injury and injustice to other parties. — Higginsy. Shaw, 2 Dru. & W. 336. Sale in 1808. The present suit was instituted in 1822, and in 1823 the principal defendant answered the bill. No further proceedings in the cause were had until 1839, when the suit was revived. Held, that as the circumstances were such that the purchase could not be sustained, the plaintiff was entitled to relief, notwithstand- ing the lapse of time, but costs were refused to both parties in consequence of the great delay, and an account of the rents was directed only from the filing of the bill of revivor and supple- ment. — ThornMllv. Glover, 3 Dru. & W. 196. A remainder-man may, during the life of the tenant for life, file a bill to impeach a sale under a decree, but he is not barred by laches if he wait until the death of the tenant for life. — Bowen v. Evans, 1 Jon. & L. 178. "Where an equity of redemption is put in settle- ment, though the tenant for life is the party bound to pay the interest upon the mortgage, yet the mere laches of the mortgagee to demand such interest from the tenant for life, will not preju- dice his claim against those in remainder. — Wrixon v. Vize, 2 Dru. & W. 192. LANDLORD AND TENANT. See Lease. — Pr, Exceptions. I. Generally 2-52 II. Lessoe and Lessee 253 III. Fixtures 254 IV. Specieic Pekfokmance by 254 V. Rights op 255 VI. Salvage Advances 255 I. — Generally. Landlords enabled to recover more speedily the possession of lands and tenements unlawfully held over by tenants, 1 Geo. 4, c. 87, E. & I., further provisions made by 11 Geo. 4. & 1 W. 4. c. 70, ss. 36-38, E., see also 1 & 2 Vic. c. 74, E. Restricting lien of landlord for rent upon goods taken in execution, under the process of any court of law, 7 & 8 Vic. c. 96, s. 67, E. Amendment oi the law respecting assignment and sub-letting of lands and tenements in Ireland, 2 & 3 W. 4, c. 17, 1. Extending 8 Anne, c. 17, as to process respect- ing rents and frauds by tenants, regarding execu- tions, to Durham and Sadbridge, 11 Geo. 4, & I W. 4. c. 11, E. Amending 11 Geo. 2, c. 19, for more effectually securing the payment of rents and for preventing frauds by tenants, 57 Geo. 3, c. 52, U. K. Queere : AVhether a landlord is bound by offers made by his agent, to withdraw a sequestration of execution from the lands of a tenant. — Gordon V. Graham, 8 Clk. & Pin. 107. Getierally. LANDLORD AND TENANT. Lessor and Lessee. 253 Quare : Whether a landlord is bound by any offers to assign sequestration of his tenant's stock to a third party. — Id. Bill by the plaintiffs to have a lease of the year 1786 (which had been originally granted for three lives, one of which was stated to be still in existence,) declared a subsisting one, dismissed in consequence of the plaintiffs not having estab- lished theii' title to the lease, — O' Donnelly, Nolan, 4 Dru. & "W. 153. BUI for the renewal of a lease for three lives, containing a covenant for perpetual renewal by the trustees of a marriage settlement, to whom the lease had been assigned upon certain trusts, dismissed with costs, the right of renewal having been held to have been forfeited in consequence of the laches and neglect of the parties interested. Where such a lease is in settlement, it is the duty of the trustees to make full inquiry as to the existence of the lives, and the state of the pro- perty, and it is no answer to the landlord insist- ing upon the forfeiture, to say that all the com- munications which took place were with the ten- ant for life, and that he alone ought therefore to be answerable for the delay, — Tovmley v. Bond, 4 Dru. & W. 240. A tenant who, after an eviction by habere, for non-payment of rent, has filed a bUl to redeem the lands, and lodged in court a sum of money to countervail the arrears of rent as ascertained by the affidavit of the landlord and the costs of the ejectment, is not bound within forty days after answer filed, to lodge an additional sum to countervail the arrears of rent which the landlord by his answer swears are due to him. Form of decree in redemption suit by tenant against his landlord. — M'Inehemy v. Galvxiy, 1 Jon. & C. 247. The right of a lord of a manor to seize quosque, is not taken away by 11 Geo. 4, & 1 W. 4, c. 65. — Dimes v. Grand Junction Canal Company, 15 Sim. 433. A tenant at wiU at a yearly rent is a tenant from J ear to year. — Pope v. Garland, 4 Y. & C. 39J. Reference to fix an occupation rent in account of arrears of dower. — Bamford v. Bamford, 5 Hare, 206. The plaintiffs were lessees of a coal mine at the rent of £300 a-year, and subject to a royalty of 10s. for every wey of coals raised in each year above 600, that being the quantity considered to be paid for by the £300 a-year, and the plaintiff was authorized to determine the lease on the coal being worked out. The plaintiff worked the mine for several years, and when it was nearly exhausted he was prevented by accidents and defects in it from continuing to work it except at a ruinous expense. The court refused to restrain the defendant from suing for the rent of £300 a-year, although the plaintiff offered to pay him 10s. per wey for all the remaining coal. — Phillips v. Jones, 9 Sim. 519. A yearly tenant, having the option of purchas- ing the property, filed his bill against the land- lord for a specific performance of the contract for sale ; the landlord having proceeded to eject the plaintiff, the latter applied for an injunction to restrain him, but the court declined granting except on the terms of the plaintiff undertaking to continue \o pay the rent without prejudice. — Pyke V. Northwood, 1 Beav, 152. In 1779 A., a lessee under a dean and chapter for twenty-one years, renewable for every seven, underlet to B., and covenanted, within two months after the dean and chapter should have renewed the lease under which he then held, to execute to B. a lease for such further term as would make up sixty-one years from 1778, B. from time to time surrendering the then subsist- ing lease, and paying upon every such renewal such a proportion of the fine, which A. should have paid to the dean and chapter on renewing the lease or leases under which he should hold the premises, as should have been imposed on account of any new buildings erected or to be erected by B. upon the premises. Held, that B. was not bound to contribute to the fine paid on any renewal subsequent to that which first enabled A. to make up the sixty-one years. — Cluiton V. Fleming, 8 Sim. 105. Insolvency is a ground upon which the court will refuse specific performance of an agreement to grant a lease, but there must be proof of general insolvency ; and a particular default in the payment of rent to the landlord of the pre- mises last occupied by the person contracting for the lease, will not disentitle him to the perform- ance of the contract where there is the testimony of unexceptionable witnesses to his responsibility. — Neale v. Mackenzie, 1 Keen, 743. n. — Lessor and Lessee. A canal company was authorized by its act to purchase the coal which the safety of the canal required to be left unworked. The purchase of part was delayed many years, and in the mean- time a lease had been granted by the coal owner to the coal worker. The company piu-chased the interest of the owner. Held, that the coal worker was also entitled to compensation. — The Bamsley Canal Co. v. Twibell, 7 Beav. 19. A lessee surrendered his lease and took a new one for a different term at a different rent, and with different covenants. Held, nevertheless, that the rent accrued under the original lease (the whole of which remained unpaid), was a specialty debt under the covenant for payment of it contained in that lease. — Greenwood v. Taylor, 14 Sim. 505. A., an owner of land in the township of S., entered into articles of agreement with B., the lessee of a neighbouring colliery, by which he agreed to grant to B. a lease of part of the land, for the purpose of forming a railway for the con- veyance of coal to certain wharfs, and B., for himself, his executors, administrators, and as- signs, agreed to convey upon the railway all the coal to be gotten from the colliery, or from any other lands or grounds in the township, and to pay A., his heirs and assigns, 2d. for every ton ol coal so conveyed. B. assigned his interest in the colliery and in the lands taken under the articles of agreement for forming the railway, together with the use of the railway, to C. Held, that the agreement to convey upon the railway all the coal, &c., and to pay 2d. per ton in respect of it, ran with the land, and consequently that it was binding on C. — Hemingway v. Fernandez, 13 Sim. 228. Liability of an equitable assignee of leaseholds in possession to the covenants in the lease. — Sanders v. Benson, 4 Beav. 350. The liability of an equitable assignee of lease- holds is that of simple contract, and the Statute of Limitations limits his liability to six years after the cause of suit. — Id, 254 Fixtures. LANDLORD AND TENANT. Performance hy. Assignee of leaseholds accepting the benefits of an assignment held in equity liable on liis part to the covenants contained in the assignment, though he did not execute it. — Willson v. Leon- ard, 3 Beav, 373. Equitable assignee of leaseholds held liable at the suit of the lessee, after the expiration of the term, to the breach of covenant committed during his possession, although such lessee was no party to the contract for purchase, and It vfas stipu- lated that the purchaser should not be entitled to an assignment. — Close v. Wilberforce, 1 Beav. 112. III. FiXTUKES. Household furniture does not pass under the description of " fixtures and fittings up." — Sim- Tnons V. Simmons, 6 Hare, 352. Quare : Whether the ordinary fixtures of a dvpelling-house, namely, such as are removable as between landlord and tenant, are to be consi- dered as goods and chattels within the meaning of the clause of reputed ownership, 6 Geo. 4. c. 16, s. 72, so as to pass to the assignees of the bankrupt-tenant in preference to the lien of an equitable mortgagee, or to that of a vendor for his unpaid purchase-money. — Ex parte King re Walsh, 1 M. D. & D. 119. A. and B., carrying on the business of cotton- spinners in co-partnership, erect various articles of machinery and other trade fixtures on the pre- mises where the business is carried on, which are the exclusive freehold property of A. The fix- tures are paid for out of the funds of the part- nership, and they are so attached to the building that they cannot be removed without damage to the walls and floors. A. executes a mortgage of the premises, and of all the fixtures " attached or belonging to the premises, or partaking of the nature of realty," and A. and B. afterwards become bankrupt. Held, that these fixtures were not in the order and disposition of A. and B., and that the mortgagee was entitled to them. — Ex parte Searth re Ashton, 1 M. D. & D. 240. An equitable mortgage of leasehold premises will carry all the fixtures, although erected for the purpose of trade, and therefore removable as between landlord and tenant, and although they are not specified in the lease deposited or in the memorandum of deposit. — Ex parte Broadwood re M'Neil, 1 M. D. & D. 631. A trader mortgages the trade premises in fee, and then enters into partnership, and the firm carry on business on the same premises, and erect trade fixtures. Held, on this bankruptcy, that the mortgagee was entitled to the trade fixtures.— £a^j!)a)-te Cotton, 2 M, D. & D. 725. Fixtures are not goods and clrattels within 6 Geo. 4, c. 16, s. 72. — Smith v. Grazebrook, 4 Scott. N.R. 565; and. Ex parte Heathcote,2'ilL.'D.kT). 111. A memorandum of deposit, accompanying an equitable mortgage, stated that the bankrupts had deposited the deeds and documents under which he held the steam mills, cottages, lands, buildings and premises at L. Held, that the equitable mortgagee had a lien on the fixtures, whether erected before or after the time of the deposit, and including those that were moveable between landlord and tenant. — Ex parte Price, 2 M. D. & D. 518. A lessee erects trade fixtures firmly attached to the freehold, but removable as between him- self and the landlord. He then mortgages the premises by way of demise by the same descrip- tion as that in the lease, and without reference to the erection, the sum secured being a floating balance, limited to an amount greater than the premises would be worth without the fixtures. He becomes bankrupt. Held, that the mortgagee was entitled to the fixtures. — Ex parte Bentlev, 2 M. D. &D. 691. The bankrupts purchased certain copyhold property with various fixtures erected thereon, which were in law removable as between land- lord and tenant, as well as on the principle of the benefit of trade. They afterwards mortgaged the property, together with all these fixtures, describ- ing them precisely in the same words used in the purchase deed. After the mortgage they erected on the premises some other fixtures in the like nature, and continued in the possession of the whole property up to the period of their bank- ruptcy. Held, that all these fixtures passed to the mortgagee as parcel of the mortgaged estates, and were not to be considered as goods or chat- tels in the order and disposition of the bankrupts at the time of their bankruptcy, within the meaning of the 72nd section of the 6 Geo. 4. c. 16. — Exparte Eeynal, 2 M. D. & D. 443. IV. — Specific Pekfokmance by Agreement for a lease for five years from the 1st of April 1840, the landlord undertaking to erect by that time a new warehouse on part of the ground to be demised and to put the old warehouse in repair, the amount of rent to be determined with reference to the amount of the landlord's expenditure on the buildings. The new building was not erected nor the old warehouse repaired on the 1st of April, but no objection was made by the intended lessees, who then occupied part of the premises under a former agreement, and shortly afterwards the whole premises were destroyed by fire. In such circumstances. Held, upon a bill filed by the landlord for specific per- formance of the agreement and for the defendants to rebuild the premises and to accept a lease, that it was a condition precedent that the pre- mises should be put in repair before the lease was granted, and that as the landlord had not per- formed his engagement within the time limited, the contract could not be enforced in equity, and the bill dismissed. — Counter v. Macpherson, 5 Mo. 83. Specific performance of a paid agreement to grant a lease enforced against the intended land- lord, on the gi'ound of part performance, and an evidence consisting of a memorandum by the landlord, the parol testimony of a witness present and the draft of a lease prepared by the land- lord's steward, though the draft of the lease pro- vided that the tenant should do an act for the landlord's benefit, which was not mentioned in the landlord's memorandum or the witnesses' testimony. Observations on part performance as a ground for avoiding the operation of the statute of frauds, and on the landlord's setting up as a defence that the tenant had done acts which would be breaches of the covenants of the intended lease. — Mundy v. Jolliffe, 5 Myl. & Cr. 167. A landlord filed a bill for the specific perform- ance of a contractor to accept a lease at the rent mentioned in the agreement, but which had been afterwards by paiol reduced, and at the bar he undertook to execute a lease at the reduced rent. The court agreed accordingly but without LANDLOED AND TENANT.— LAPSE. 255 costs, because of the conduct of the parties. — Clarke v. Moore, 1 Jon, & L. 723. Under a marriage settlement tenant for life, with remainder to liis first and other sons by his •wife F. in tail, with remainder to himself in fee, . had power to grant leases for ninety-nine years in possession at the most improved rent, imder an indenture of a lease to be executed with cer- tain formalities. Twenty-eight years after the marriage, the wife still living and there being no issuS of the marriage, the husband gave a bond conditioned for the granting a lease for ninety- nine years at a rent of £20 per annum, upon the expiration of a subisting lease ; as soon as the subisting lease determined, the obligee of the bond entered into possession, and for some years paid a rent of £20. Held, notwithstanding some evidence of inadequacy in the rent, that the representatives of the obligee were entitled to a decree, or specific performance of the agreement contained in the bond. — Butler v. Powis, 2 Coll. C. C. 156. V. — Rights of. A mesne landlord is entitled to monthly fines, although all the lives in his own lease havmg ex- pired, he is not in a condition to grant a legal estate to his tenant. — Mode of computation of septennial fines. In re Colthurst, Fl. & K. 515. A lessee surrendered his lease and took a new one, for a different term, at a different rent, and with diSerent covenants. Held, nevertheless, that the rent accrued under the original lease, (the whole of which remained unpaid,) was a specialty debt, under the covenant for payment of it con- tained in that lease. — Greenwood v. Tayloi, 14 Sim. 505. VI.— Salvage Advances. A tenant for life, of considerable estates, being greatly embarrassed, and unable to redeem a very valuable interest, which was then under eject- ment, entered into a treaty with B. for the loan of a sufficient sum to pay oflF the arrears of rent and costs. The parties not agreeing as to the form of conveyance to secure the proposed loan, A. granted all his estates to C, upon certain trusts, and among others, upon trust to pay all quit-rents, head-rents, and arrears of rent, in the first instance, and afterwards to raise a sum of £10,000, as he should be advised; the said sum when raised to be applied in payment of the arrears of rent, and interest on incumbrances in the first schedule mentioned : the arrear of head- rent was stated in the said schedule. Subse- quently to the execution of this deed, and after the first negociation had been broken off, a new treaty was entered into with B., and the money paid by him to the credit of the redemption cause, and A.'s valuable interest thereby saved. After this payment, and up to the death of A., there were various treaties as to the nature of the secu- rity to be given by A., and C, the trustee, ad- dressed a letter to B,'s solicitor, written some months after the advance had been made, in which he said, if he could prevail on any client to advance a sum of £3,000 or £4,000 he would con- sider such advance as raised under his power, and would, whenever called upon, exercise that power. On the death of A., C., the trustee, re- fused to pay B., or give him any account, where- upon B. filed a bill to carry the trusts of the deed into execution, Held, that in consequence of the dealings between the parties, B. was brought into such privity with the trust-deed that he was entitled to file a bill to carry the trusts thereof into effect j and on the reference under the above decree. Held, overruling the master's report, that C. was bound to allow the sum of £1689. 16s. Id. being arrears of rent ac- crued due under the trust-deed, and recovered by D., a receiver over the same lands and pre- mises, under certain orders of this court, dated in the years 1828 and 1829, and that the master should have charged the same in his report as against C. Held also, that application of the sum of £6573. 4s. 3d. in the report foimd to have been received by C, save as to two sums paid in discharge of chief-rents, was a misapplication thereof; and that under the account as directed the master should have charged C. accordingly. — The Earl of Lucan v. La Touch, 2 Dru. & W. Ill & 287. The devisee of a leasehold estate for lives having suffered an arrear of rent to become due, the landlord brought an ejectment. The third person, at the request of the devisee, advanced money, for the purpose of paying the rent, and it was applied accordingly, and the devisee mort- gaged the lands to secure the repayment of it. The mortgagee is not entitled to priority over the judgment creditors of the devisor, — Angell v. Bryan, 2 Jon. St, L. 763. LAPSE. See PowEK AND Legacy. The enactment in the New Will Act, that a bequest to a child of the testatur, who dies in the testator's lifetime, leaving issue, living at the tes- tator's death, shall not lapse, does not apply to a testamentary appointment.— Gn;ffi Plea of. LIMITATIONS, STATUTE OF. 297 die without issue, &c., the testator devised the said freehold lands, (out of which the annuities issued,) with the rents, issues, and profits thereof, unto his said nephew C. B. for ever. Pleld, that C. D. having been expressly named a trustee in the said will, his representatives were trustees within the twenty-fifth section of the 3 St 4 "Will. IV. c. 27 ; and though a constructive trust would be barred by this statute, and might have been barred previously to it by length of time, yet, that that only applied to cases where the trust did not arise on the face of the instrument, but was to be made out by evidence, — Salter v. Cavanagh, 1 Dru. & Wal. 668. A trust for the payment of debts in a will of personal estate, will not prevent the operation of the Statute of Limitations. — Evans v. Tweedy, 1 Beav, 55. XIV.— Plea op. A defendant, who has answered, cannot have the benefit of the Statute of Limitations at the hearing, unless he has insisted on it in his an- swer, — Harrison v. Borwell, 10 Sim. 382. The Statute of Limitations ( 3 & 4 Will. 4, c. 27, s. 40,) may be pleaded to a bill of fore- closure. A foreclosure suit being, in fact, a suit for the recovery of the money secured by the mortgage. — Dearman v. Wyche, 9 Sim. 570. A plea of the Statute of Limitations ( 3 & 4 Will. 4, c. 27,) ought not to deny, by answer, statements in the bUl, which are in direct contra- diction to the averments necessary to support the plea ; but an answer in support of the plea, ought to be confined to those statements in the bill, which allege facts ancillary to, or eis affording evidence of statements which are directly nega- tived by the requisite averments in the plea. — Id. A bill of discovery, in aid of an action of eject- ment, filed in 1840, stated, that in 1776, A. B. being seised in fee, granted leases of the property which espired in 1825, and that the plaintiff, as heir of A. B. was now entitled to the property, for the recovery of which he was about to bring an action of ejectment. The defendant pleaded the Statute of Limitations, (3 & 4 WiU. 4, c. 27,) and averred, that the plaintiff had not been in possession, or received rents for more than twenty years before the bill was filed ; that the defendant had entered into possession as pur- chaser, in fee-simple, in 1819, and had, ever since, remained in peaceable possession as tenant in fee. Held, that this plea could not, in law, be sus- tained, for there being no allegation that the rent had been paid to any one, wrongfully claiming to be entitled in reversion immediately expectant on the determination of the lease, the plaintiff's right did not accrue until the expiration of the lease, in 1825, or within twenty years from the filing of the bill. — Chadwick v. Broadwood, 3 Beav, 308. A plea of the Statutes of Limitations of 21 Jas. 1 , and 9 Geo. 4, is not double. —Forbes v. Skelton, 8 Sim. 335. Averments in a plea of the Statute of Limita- tions, negativing facts that would defeat the plea, but which aie not stated in the bill, are surplus- age, but do not vitiate the plea. — Id. A plea of the Statute of Limitations need not negative the usual general allegation, that the defendant has in his custody documents relating to the matters contained in the bill. — Id. LIMITED ADMINISTRATION. See ExEOUTOKS and Administrators. LINEAL DESCENDANT. The designation of eldest male lineal des- cendant, Held, to be inapplicable to a male person claiming in part through a female. — Oddie V. Woodford, 3 Myl. & Cr, 684. LIS PENDENS. For thebetter protection of purchasers against, 2 Ss 3 Vic. c. 11, E. ; 7 & 8 Vic. c. 90, 1. Extension of patent granted, pending a suit respecting the validity of the original letters patent. — Kay's Patent, 3 Mo. 24, It is irregular to reply to a plea of the pendency of a former suit for the same matter, the proper course being to obtain a reference of the plea to the master. — Jones v. Seguira, 1 Phil. 82. Semble : that upon filing a bill in equitv, there is a lis pendens before service of subpoena and that a general administration suit is a lis pendens. Quoad, lands afterwards sold Tinder the decree in it. — Drew v. Lord Norlmry, 3 Jon. & L, 267. After bill filed, but before subpoena served, the defendant assigned the subject matter rfthe suit. Held, that the assignee was a necessary party, and that the court would, if necessary, grant an injunction to restrain any further assignment.^ Powell V. Wright, 7 Beav. 444. A suit by a judgment creditor for an account of the real and personal estate of his debtor and payment of his debts, is a sufficient lis pendens to affect an incumbrance on the life estate of a defaulting executor, in lands, the fee of which was subject to the judgment, with notice of an equity to have the fife estate applied to answer the default of the executor. — Jennings v. Bend, 2 Jon. & L. 720. When the question is between a registered and unregistered deed, notice by lis pendens is not affected by the registration of the title deed of the person sought to be affected thereby.— 7rf. The 7 & 8 Vic. c. 93, s. 10, which requires that a lis pendens shall be registered to affect a pur- chaser, does not apply to a purchase made before the passing of the act.— Id. Semble : that lis pendens is not notice to affect a registered instrument. Quiere : The effect of lis pendens in a foreign country upon a pur- chaser for valuable consideration. — Wallace v. Donegal (Marquis), IDru. & W. 431. LrrERARY PROPERTY. See Copyright. Where there are two rival works, the court will restrain the proprietor of one of them from ad- vertising it in terms calculated to induce the public to beheve that it is the other work, but will not restrain him from publishing an adver- tisement tending to disparage that other work Seeley v. Fisher, 11 Sim. 681. 298 LIQUIDATED DAMAGES.— LOCAL AC'IS. LIQUIDATED DAMAGES. A lessee covenanted not to do a certain act, "under the penalty of double the yearly rent herein reserved, same to be recovered by distress or otherwise, the same as said yearly rent." Held, to be a case of liquidated damages, not a penalty and an injunction to restrain ; an action on the covenant would have been refused, but that the offer by the plaintiff to abate the nui- sance and pay double rent during its continuance was accepted by the defendant. — Gerrard v. O'Reilly, 2 Con. & L. 165. Even if the reservation in the lease had been ruled to be a penalty, relief could not have been given except upon the terms of the nuisance being abated. — Id. Where a plaintiff obtained a decree against the defendant, referring it to the master to take an account of what was due to the plaintiff, and that what the master should so find to be due, should be paid to the plaintiff with costs, to be taxed by the master ; and the master did not make his re- port until after a fiat had issued against the de- fendant. Held, that the decree was not final, and therefore the plaintiff was notentitled toprove for the amount of the debt and costs found due by the master's report. — Ex parte Crosse, 2 M. D. &D., 308. The plaintiff in an action at law, obtains a judge's order for payment of the debt and costs on aparticiUar day, in default of which he is to be at liberty to sign judgment ; but the defendant not being able to pay the debt at the time specified the plaintiff extends the time of payment, before the expiration of which the defendant becomes bankrupt, and the costs are not taxed tUl after his bardkruptcy. Held, that the plaintiff could prove for the amount of the taxed costs as well as for the principal sum, — Ex parte Ferris, 2 M. D. & D. 746. A customer who keeps at his bankers, for safe custody, a box, to the key of which the bankers have access, lends to a partner in the bank some railway bonds contained in the box on the secu- rity of certain certificates, which are thereupon deposited in the box together with a memoran- dum stating the circumstances of the loan, but not fixing any time for the replacement of the bonds. Afterwards, the partner, without the customer's knowledge, removes the certificates, and substitutes for them other securities, and the firm becomes bankrupt. Held : — First, that the joint estate was not liable in respect of the abstraction of the certificates. Secondly, that though no time was fixed for the replacement of the bonds, the abstraction of the certificates rescinded the loan, and gave the customer the right of proof against the separate estate of the partner, the authority of Utterson v. Vernon not applying in such a case. Thirdly, that the sura proveable was not the value of the certificates, but the value of the bonds at the time of the abstraction of the certificates. Fourthly, that the customer was entitled to an order for a sale of the securities substituted without his knowlerlge, with leave to prove for the difference between the proceeds and the value of the bonds. — Ex parte Eyre, 2 M. D. & D. 66. The same customer lends other railway bonds to the firm, on having deposited in hia box as a security, railway bonds of a different description, together with a memorandum, engaging the firm to replace the original at or within the expiration of three months, if required so to do. On a petition stating this transaction, and that the substituted bonds had been withdrawn, and others substituted for them ; but not stating that any request for replacement of the original bonds had been made, nor containing any statement as to the customer's knowledge of the last substitu- tion, except one to the effect that the substitution was made at the request of the firm. Held, that the customer had no proveable debt in respect of the loan. — Id. The bankrupt undertook to supply a creditor, who was under pecuniary engagements for him, with five pieces of cloth per week, or to forfeit and pay £10 per piece as liquidated penalty for every piece doHcient. The bankrupt made such frequent default in the regular supply of the cloth, that he incurred penalties to the amount of £3,870, which the creditor claimed to prove, although no specific damage was alleged to have been sustained by him, for the non-performance of the agreement, and the only balance really due to him was £48 18s. 6d. Held, that this was a claim for unliquidated damages founded on a penalty, and was not therefore the subject of proof. — Exparie Maclean, 2 M. D. & D. .564. Teas are sold to be paid for at appointed days, the sale being made according to the custom of the trade, whereby the goods when sold, are left as a pledge for full payment with the vendor, who in case of non-payment, is at liberty to re-sell, and charge the loss to the original purchaser. The purchase-money is not paid at the appointed time ; the purchaser becomes bankrupt, and the vendor having sold part of the teas before the fiat and the rest afterwards, gives the estate credit for the clear proceeds of the sales, tendering a proof for the residue of the original purchase- money. Held, that although there was no deli- very of the goods, the original sale was a binding contract within the Statute of Frauds, and that the claim of the vendors constituted not imliqui- dated damages, but a provable debt. — Exparie Moffatt, 2 M. D. & D. 170. LOCO PARENTIS. See Parent and Child. LOCAL ACTS OF PARLIAMENT. See Act op Pakliament. The commissioners appointed under the Local Acts of Parliament for improving the town of Cam- bridge, have, upon the true construction of those acts, a continuing right to exercise from time to time the power thereby vested in them of taking property for the purposes of the acts, and of refer- ring the assessment of the price to a jury, so long as may be required for carrying into full effect the pur- poses contemplated by the acts. A person whose property is required by the commissioners for the purposes of the acts, is not entitled to restrain them by injunction, from taking the steps pre- scribed by the acts for obtaining possession of the property, until they shall have shown a sufficient fund in hand to satisfy the price which may be awarded to him, or until they shall have shewn the means by which they purpose to procure it. — Salmon, v. Randall, 3 Myl. & Cr. 439. Commission. LUNACY. Commission. 299 LONG ANNUITIES. Testator bequeathed all his personal estate to trustees, and directed them to convert it into money, and to pay the interest to certain persons for their lives, and then to invest the principal in the purchase of lands ; it being also understood that vfhere his money or personal estate might be lying on undoubted real or personal security, such securities might be only renewed in the names of the trustees. The testator's personal estate consisted in part of long annuities j Held, that the cestnis que trust for life of the personality were not entitled to receive the long annuities ; but that they must be converted into consols.— Prestan v. Melville, 15 Sim. 35. A testatrix having £115 long annuities stand- ing in her name at her death, of which £65 like annuities had been pui'chased for her by T. B., bequeathed her residuary estate to trustees, to be invested or continued by them in the public fiinds, or at interest ; the stocks, funds, or securities to be varied at discretion, in trust, to pay certain iinnuities out of the interest, dividends, &c., and subject thereto to pay the income of the said trust monies, stocks, funds, and securities to S. N. for life : and subject thereto, she gave all the residue of her estate to the trustees absolutely. By a codicil, she gave all the money funded by T. B. in her name, in the long annuities, which she mentioned to be £50 per annum, to C. D., after S. N.'s death. Held, that £60 of the long annu- ities were specifically bequeathed to C. D. — D' Affile V. Fryer, 12 Sim. 1. LOST INSTRUMENT. See Deed. LUNACY. See JuKisBiCTioN. — Guardian. Commission 299 Commission Superseded 300 commiitei] 300 Allowance to Committee 300 Allowance for Maintenance . . . 300 Op Bankkupt 301 Guakdian op 301 Residence 302 juhisdiction in 302 Acts of 302 Estate op 302 MOKTGAGEE AND TbUSTEE 303 Pamial Insanity 304 I. II. III. IV. V. VI^ VII. VIII. IX. X. XI. xn. XIII. I. — Commission. See 5 & 6 Vict. c. 84, an act for amending the practice under Commissions of Lunacy. 3 & 4 W. 4, c. 36, relating to lunatic visitors. Petitions for commissions to be signed by pe- titioner, and attested by solicitor. — Gen. Ord. May, 1827 ; Beav. ed. 4. No allowance to juries for dinners. — Id. Petitions to be examined. — Id. Orders in the matter of lunatic visitors, under 3 & 4 VV. 4, c. 36, to be entered without fees. — Cm. Ord. 21st Feb. 1834 ; Beav. ed. 71. Kxcept private reports by the visitor to the Lord Chancellor. — Id. No fees to be paid to visitors in proceedings under the act. — Id, Two days' notice to be given of application for consent order in lunacy. — Gen. Ord. M. T. 1838 ; Beav. ed. 129. OSiice of Clerk of Custodies abolished. — 1st Gen. Ord. 27th Oct. 1842; Beav. ed. 226. References in lunacy to be made to the com- missioners instead of to the masters, except in cases under 1 W. 4, c. 60. — 2nd Gen. Ord. — Id. References now pending to be transferred. — 3rd Gen. Ord.— Id. 227- Deeds in the masters' office to be delivered to commissioners. — 4th Gen. Ord. — Id. Commissioners' clerks to receive like fees as masters' clerks. — fith Gen. Ord. — Id. Acts, &c., to be done by the commissioners.— 6th Gen. Ord.— Id. Commissioners' clerks to receive the like fees as the Clerk of Custodies. — 7th Gen. Ord. — Id. 228. Duties of Clerk of Custodies to be hereafter performed by the Secretary of Lunatics, who to receive the lilce fees. — 8th Gen. Ord. — Id. Inquiries in lunacy to be considered as referred from the date of the inquisition. — 9th Gen. Ord. —Id. Inquiries to be made without special order, as to the heir-at-law next of kin, the situation of the lunatic, the nature of the lunacy, and as to his committee, fortune and maintenance. — 10th Gen. Ord. 27th Oct. 1842 ; Beav. ed. 228. Commissioner to determine what parties to attend proceedings before him. — 16th Gen. Ord. —Id. 231. Commissioner may make separate reports. — 16th Gen. Ord.— Id. Orders not to contain the statements in the pe- tition, or the reports of the commissioners, except the prayer and finding. — 17th Gen. Ord. — Id. Fees to Secretary of Lunatics, for orders and filing petitions. — 18th Gen. Ord. — Id. All fees to be carried to Fee Fund Account. — 19th Gen. Ord. — Id. 232. On a contest for the carriage of a commission of lunacy that party is selected who is most likely to bring out the whole truth, subject to which a preference is given to the nearest of kin. Appli- cations by other parties for leave to attend the execution of the commission are in the discretion of the court, and mere relations are not generally allowed to do so unless they have an interest. A suggestion, that a party who applied for such leave on the ground of interest, should, as the condition of its being granted, be concluded by the verdict, overruled, In re Nesbitt, 2 Phil. 245, Where there is a contest between several par- ties for the carriage of a commission of lunacy, the court considers only which of them is likely to bring out the truth, and no regard is paid to proximity of relationship or other considerations of that kind, though these are of importance when the question is as to the appointment of a com- mittee. — In re Webb, 2 Phil. 10. After a decree a commission of lunacy is sued against the plaintiff, who, being a married woman, was suing by her next friend. The court, on the appUcation of her husband, a defendant, stayed the proceedmgs in the suit, untU the result of the proceedings under the commission were known. —Hartley v. Gilbert, 1.3 Sim. 596. A commission of lunacy may issue against an alien. The domicil of the party against whom a commission of lunacy is applied for, is not material to the question of jurisdiction, though 300 Commission superseded. LUNACY. Maintenance. it may be material to the question of discretion, if, for instance, the party has come here for a short time, or for a particular purpose. — In re Princess Bariatinsky, 1 Phil. 375. Semble : a petition to supersede a commission of lunacy will not be entertained, unless the lunatic be either personally present in court, or, at least, in such a situation as that he may be personally examined by the Lord Chancellor, or some one under his authority. Whether if a party who has been found lunatic escapes to a foreign country, and while resident there is pro- nounced by a competent tribunal to be of sound mind, the Lord Chancellor will give such credit to that decision as to entertain a petition by the party to supersede the commission, without re- quiring him first to return to the jurisdiction for the purpose of being personally examined — Qwcere. — In re Dyee Sombre, 1 Phil. 436. A commission of lunacy refused v.'here the limatic did not require the protection of the court either for himself or his property, the object of the petitioner being to obtain a main- tenance out of the estate. — In re Clare, 3 Jon. & L. 671. Leave to traverse an inquisition of lunacy if applied for by the party himself, who has been found a lunatic, is matter of right. But, semble, the allowance of a sum of money out of the estate of the party so found lunatic, towards defraying the expense of the traverse, is subject to the Lord Chancellor's discretion. — In re John Bridge, Cr. & Ph. 38. In a competition between the brother and the wife of an alleged lunatic for the carriage of the commission, the Lord Chancellor gave a pre- ference to the brother, on the ground, that in the particular case the wife had an interest in pre- venting the proof of the lunacy being carried back beyond a certain period.— /»i re Whittaker, i MyL & Cr. 441. To avoid inconvenience and expense a com- mission was directed to issue in Middlesex, although the supposed lunatic was residing in Herts.— in re Waters, 2 Myl. & Cr. 38. n. — Commission Supbiiseded. The Lord Chancellor will not in general super- sede a commission of lunacy after verdict, with- out seeing the lunatic. A commission cannot be superseded as to the person of the lunsftic, and at the same time continued in force as against the parties accountable for the lunatic's estate. But a limatic who has recovered, will be allowed, ■without superseding the commission, to have the control of his fortune, and to superintend the prosecution of accounts against accounting par- ties, vrithout the intervention of the committee. —In re Joana Gordon, 2 Phil. 242. III. — Committee. Care and treatment of lunatics.— See 8 & 9 Vict. c. 100. Committees to pay one per cent, upon the annual income of lunatics to the account of board of visitors, for the better treatment of lunatics. — Gen. Ord, 19th Oct., 1833 ; Beav. ed. 38. Money Orders in lunacy to be drawn up by Secretary of Lunatics, and to state amounts and names at length.-^ Gen. Ord. 10th Feb., 1834; Beav. ed. 70. Order to be acted upon by the accountant general, to be drawn up by the registrar, omitting the recital in tlie original order. — Id. 71. Enlarging time for completing Committees' security — 12 Gen. Ord. 27th Oct., 1842; Beav, ed. 230. Committees' accounts to be taken without special order.— 14 Gen. Ord. 27th Oct., 184.J, Id. All just allowances to be made. — Id. Committees and receivers to pass accounts, and invest balances, as commissioners shall direct.— Gen. Ord. 1.5th April, 1844 ; Beav. ed. 253. In default, salaries to be disallowed, and in- terest to be charged— W. 2.54. Kvidence on passing accounts that sureties be living and solvent ; if not, new sureties to be en- tered into, or new committee or receiver to be appointed. — Id. Commissioners to certify default. — Id. 2.55. Ad interim committee incapable of conveying under the act 1 Will. 4, c. 60, s. 3. — In re Poulton, 1 Mac. & Gor. 100. The mother and guardian of an infant tenant in tail, and remainder preferred to the nominee of the party interested in the personal estate of a Imiatic tenant for life, as committee of his estate. —In re Webb, 2 Phil. 532. A bastard tenant for life of real estates, being found lunatic, leave was given to his natural daughter, who had resided with him up to the time of his confinement, to carry in proposals for a committee of the estate as well as of the person, as a check upon the remainder man. — In re Webb, 2 Phil. 116. In a contest for the committeeship of a lunatic, the party who has had the carriage of the com- mission, is not on that ground entitled to any preference. Where the issuing of a commission of lunacy is opposed, or the carriage of it con- tested, the court will not prospectively give leave to any party to propose himself as committee, in the event of the subject of the commission being found of unsound mind, but in issuing the com- mission, will direct, that no proceedings be taken for the appointment of a committee until further order.— 7n re Webb, 2 Phil. 10. The court may, if it see fit, appoint a committee of a lunatic's estate, without requiring the usual security. — In re Burroughs, 2 Dru. & W. 207. IV. — Allowance to Committee. The committee of a lunatic is beneficially en- titled to the savings from the lunatic's allowance. — In re Ponsonby, 2 Con, & L. 30. The committee of the estate of a lunatic is not entitled to any remuneration for his trouble. Where any allowance at all is made to him, it is not for his sake, but for the benefit of the estate, as where rents cannot be effectually collected liy the committee without assistance. — Re Walker, 2 Phil. 630. Allowance not exceeding 5 per cent, on receipts to committee of lunatic's estate, for expenses out of pocket in collecting rents. — Re Westbrooke, 2 Phil. 631. V. — Allowance for Maintenance. Inquiry as to provisional management and maintenance. — \st Gen. Ord., 27 Oct. 1S42 ; Beav. ed. 229. Allowance for Maintenance. LUNACY. Guardian of. 301 On the death of a lunatic, where there had been no order for a maintenance, the personal representative offered to consent to an order for payment of a liquidated sum to tlie interim com- mittee for past maintenance, in order to avoid the expense of a reference, the estate being incon- siderable : but the Lord Chancellor refused to sanction the payment, unless, on the consent of the parties beneficially interested in the surplus of the estate.— /« re Patrick, 2 Phil. 394. An annuity, allowed out of the income of the lunatic's estate as a retiring pension, to an old personal servant of the lunatic, who was obliged to retire fiom his service by reason of age and infirmity. — In the matter of the Earl of Caryafurt, 1 Cr. & Ph. 76. A contract may be implied in favour of a per- son, who has supplied a person of unsound mind, though not so found by inquisition, with neces- saries, or has provided him with proper protec- tion and support. — Semble. — Nelson v. Duncomb ; Duncomb v. Nelson, 9 Beav. 211. Testator gave to his wife, all his goods, chattels and personal estate whatsoever, and charged his real estates with the payment of his funeral and testamentary expenses and debts, and exempted his personal estate from the payment thereof. lie then gave pecuniary legacies to two of his children, and charged his real estate with the payment of them, and directed that during the minority of the legatees, his trustees, their heirs, and assigns, should raise out of the rents of liis real estate, or by any other means they might deem expedient, annual sums for the maintenance of the legatees, not exceeding 4 per cent, per annum upon their respective legacies. Some years afterwards the testator was found a lunatic, and by an order in the lunacy, £4,250 was allowed yearly for the maintenance of him and his family, and such allowance was to be made from the 6th of April 1834, and to be continued from time to time until further order, and to be paid to his wife, by the committees of his estate, out of the rents and profits thereof. The testator died on the 6th of October 1839 ; his wife had received all that was due, in respect of the allow- ance, down to the 6th of April 1839, but nothing afterwards. She claimed under his will, his personal estate, including the rents of his real estates due at his death, free from the payment of his funeral and testamentary expenses, debts, and legacies ; and she also claimed one moiety of the £4,250 for the last six months of the tes- tator's life, and insisted that it ought to be raised as a debt out of the real estates. Held, that the funeral and testamentary expenses, debts, and legacies, were payable out of the real estates only, and that the widow was entitled to the whole of the personal estate, including the arrears oi rent, but that she was not entitled to the moiety of the £4,250, that sum being payable only out of the rents, and there being in consequence of her claim before mentioned, no rents to pay it with. — Jones v. Bruce, 11 Sim. 221. An annuity of £100, directed to be paid to the wife and son of a supposed lunatic, without refe- rence to the master. — Conduit v. Soane ; In re Gandy, 5 Myl. & Cr. 111. The court, on a proper case being made, will grant an increased maintenance to the lunatic, in order that the same may be applied for the support of the near relations of the lunatic. — In re Creagh, 1 Dru. & W. 323. A., devisee for life, and B., remainderman in fee, were directed by the testator, to apply "any sum not exceeding £400 a-year," for the main- tenance of a testator's eldest son, a lunatic j "and my wish is, that whoever shall at any time be in possession of my said Londonderry estate, shall, during the life of my said son, apply said sum annually" for his maintenance, the same to be a charge on said estate ; the testator in a subse- quent part of the will, stated that he left the management of the lunatic, to the discretion of A. and B. After A. and B. had died, the court fixed the allowance at £280 a-year ; upon the lunatic's death, his administrators applied for the savings accumiJated, by reason of £400 a year not being expended on the lunatic ; but the court Held, that the owner of the estate, and not the administrator, was entitled to the diifcrence between the £400 a-year and the allowance to the lunatic. — In re Ponsonby, 2 Con. & L. 30. A person who wtis a lunatic, but had not been found to be so by inquisition, died, seised of a small freehold estate, but not possessed of any personal property. His stepfather had received the rents of the estate, and had expended more than the amoimt of them in maintaining the lunatic.he also paid the lunatic's funeral expenses. Held, that he was not entitled, under 3 & 4 Will. 4, c. 104, to be paid either the surplus expenditure or the amount of the funeral expenses out of the lunatic's freehold estates. — Carter v. Beard, 10 Sim. 7. VI. — Or Bankkupt. Semble that a lunatic cannot commit an act of bankruptcy by omitting to pay or give security. — Ex parte Stamp, Re Spence, 1 De Gex, 345. Lunacy of bankrupt is a ground for dispensing with his affidavit of conformity. — Ex parte May, 2M. D. &D. 381. VII. — GuAEDIAN OF. A bill may be filed in the name of a person alleged to be of unsound mind, though not so found by inquisition, by any one professing to be his next friend ; and such a person may be sued as a defendant, and the court then appoints a guardian to answer for him. In such cases the court imposes all the restraints of infancy, and the party is bound by the acts of the guardian so appointed. The court having proper evidence, that they are incapable of protecting their own interests, treats them as infants, or as insane, though not so fotmd by inquisition, and being satisfied that their next friend or guardian pays proper attention to their interests, and making all necessary inquiries to ascertain their rights, and what is beneficial to them, or if necessary directing that a commission may be applied for, ultimately deals with their rights and property, as justice may require. — Nelson v. Duncomb; Duncomb v. Nelson, 9 Beav, 211. A. was found limatic in Ireland, and B. was appointed his committee there ; A. being defend- ant to a suit in England, an application was made that B. might be appointed guardian, ad litem. Held, that the proper course was to get the Irish commission recorded in England, under the 1 Will. 4, c. 65, s. 41, and then for the lunatic and committee to answer together. — Lady Hart- land v. Atcherley, 7 Beav. 63. Where a guardian ad litem of a person of un- soimd mind, though not so found by inquisition. 302 Acts of. LUNACY. Estate of. dies, a special application is necessary to obtain the appointment of a new guardian, and an ap- pointment by an order, of course, is irregular. — Needham v. Smith, 6 Beav. 130. The order appointing a solicitor to be the guar- dian ad litem of a lunatic, not found so by com- mission, may be made under the 28th order, of October, 1842, on the application of the plaintiff; but it cannot be made without service of notice upon the alleged lunatic, — Brooks v. Jobling, 2 Hare, 155. Vin. — Residence. Leave given for a lunatic, under particular cir- cumstances, to reside in Scotland, his committee who resided in England undertaking to bring him within the jurisdiction whenever it should be required. — In re Jones, 1 Phil. 461. IX. — JUEISDICTION IN. Where an individual is found lunatic, under an inquisition taken in England, the appointment of committees of his person rests with the Lord Chancellor of Great Britain, notwithstanding that the property of the lunatic is situated in Ireland, and that a transcript of the record of the inquisi- tion has been transmitted to the Chancery of that country, with a view to the appointment of com- mittees of his estates, by the Lord Chancellor of Ireland. — In re Tottenham, 2 Myl. & Cr. 39. Principles, by which the Lord Chancellor, when protector of a settlement, in the place of a lunatic, will be guided in giving or withholding his consent to a deed of disposition, under the Fines and Recoveries Act. — In the matter of Newman, 2 Myl. & Cr. 112. Upon an application under the 1 WUl. 4, c. 60, for the transfer of stock, standing in the name of a lunatic trustee, the Lord Chancellor will not adopt the facts as found in a suit in the Court of Exchequer, but will require them to be ascer- tained by the usual reference. — In the matter of Prideatix, 2 Myl. & Cr. 640. The jurisdiction of the Chancellor to grant a commission in the nature of a writ de lunatieo inquirendo, is not confined to cases of mere lunacy. The Court will extend its protection where, from imbecility of mind, the party is incapable of managing his own affairs. — In re Mona-ghan, 3 Jon. & L. 258. Jurisdiction of the Court to interfere for the protection of a lunatic not found so by inquisi- tion. — Nelson v. Duncomb; Duneomh v. Nelson, 9 Beav. 211. The Lord Chancellor has not jurisdiction in lunacy, upon the application of a creditor of the heir at law, and sole next of kin of the lunatic, to order an aUowaiice made to him out of the lu- natic's estate, for his support, to be applied in payment of his debts. — Ex parte Linehan, 1 Jon. & L. 29. X. — Acts op. A deed was executed by a person who, at the same time, was insane upon particular subjects. Qiuere : Whether the jury, being satisfied of the existence of the morbid feeling at the time of execution of the deed, though not then called into activity, are at liberty to say that as the lunatic was reasonable in all other respects, the deed was valid. Quare: If a man is partially insane, and that partial insanity is never removed from his mind, is he capable of entering into solemn acts which he would not have entered into if the subject of his delusion had been touched upon? It is incumbent on a party supporting a deed executed by a limatic during the time covered by the inquisition, to shew clearly that it was exe- cuted during a lucid interval. If a man has been insane, and afterwards recovers his reason, it is not sufficient, in order to impeach an act done by him after his recovery, to shew that he was not as soimd a man in his judgment as before his insanity. All that the law requires is, that a man should have possession of his reason so as to know the effect of the act he is about to perform, and to be capable of carrying that act into effect. ^Creagh v. Blood, 2 Jon. & L. 509. Difficidty in holding a partner who ostensibly takes an active part in the conduct of the busi- ness, free from responsibihty on the ground of insanity, in respect of the acts of the firm. — Sadler V. Lee, 6 Beav. 324. Confirmed and incurable insanity is a grovmd for dissolving a partnership, but a mere diminu- tion of capacity in attending to it is insufiicient for that purpose. — Id. The court, under the circumstances of the case, refused to set aside deeds executed by one under restraint in a lunatic asylum, under medical certi- ficates. — Selby V. Jackson, 6 Beav. 192. When a party without authority, but, bona fide, assumes the management of the property of one mentally incompetent, this court will not, on his recovery, restore to him his property without making an equitable allowance for the expenses and liabilities. — Id. On a bUl to set aside deeds and recoveries on the ground of the lunacy of the party at the time he executed them ; Held, that the finding of the jury on an inquisition which over-reached that period, afforded a presumption that he was then insane, but there being some evidence that after the time when the lunacy was stated to have commenced, the party was not of unsound mind, an issue was du'ected to inquire whether he was of unsoimd mind at the time of executing the deeds, &c. — Frank v. Mainwaring, 2 Beav. 115. XI. — Estate or. Inquiry without special order, as to manage- ment, &c., of projerty. — 13th Gen. Old., 27th Oct., 1842 ; Beav. ed. 230. Bengal Government notes are land within the meaning of the act 1 W. 4, c. 60.— /)i re Dyce Sombre; Ex parte M'Dowell, 1 Mac. & Gor. 101. Order in the nature of a stop order granted on the application of the assignee of the interest of the sole next of kin of a lunatic. — In re Moore, 1 Mac. & Gor. 103. The modern practice of making allowances out of lunatic's estates for their collateral relations disapproved, and to be kept within narrow limits. A comparatively small sum which the master had approved as proper to be allowed out of the surplus income of the lunatic, which was very considerable, for drainage of an estate of which the lunatic was tenant for life, with remainder to his brother, was disallowed by the Lord Chan- cellor, though no one objected to it. — In re Clarke, 2 PhU. 282. Estate of. LUNACY. Mortgagee ^ Trustee. 303 Application for a reference as to the propriety of advancing a large sum of money out of the capital of a lunatic's estate, to enable his eldest sou to purchase an estate, refused. — In re Thomas, 2 Phil. 169. Securities belonging to a lunatic's estate, ordered to be deposited with the master for the purpose of reducing the amount of the commit- tee's recognisances. — In re Eagle, 2 Phil. 201. A committee, who, having been authorised by the court to expend a certain sum in rebuilding a farmhouse, expended half as much again in building one of larger size on a different site, was not allowed the excess, although what he had done appeared to be beneficial to the estate. — In re Langham, 2 Phil. 299. Land having been sold under a decree for pay- ment of charges, which were prior to the estate of one of the defendants who was a lunatic, the court referred it to the master to appoint a person in his place to convey them to the pui'chaser. — In re Blake, 3 Jon. & L. 265. Petitions presented in lunacy matters, after the decease of the lunatic, ought to contain a state- ment of that fact. — In re Briscoe, 2 Dru. & W. 501. Devise of real estate to trustees, upon trust, to raise by sale or mortgage thereof sufficient to pay the debts and legacies of the testatrix, and subject thereto to the use of A. for life, with remainder to his first and other sons in tail male, with re- mainders over. In a suit instituted in the Court of Exchequer for the payment of the debts and legacies of the testatrix, a decree for a sale was pronounced, under which, accordingly, a sale was had ; but, pending the proceedings in the suit. A., the tenant for life, died, leaving him surviving three sons, of whom S., the eldest and first tenant in tail under the will of the testatrix was a lunatic, and so found by inquisition. TJpon an application in the matter of the lunacy on the part of the plaintifife in the exchequer suit, that the committee should be directed to execute the necessary deed to bar the estate tail of the lunatic, the court refused to make the order. Semble : that if the legal fee was in the trustees, the con- currence of the committee of the lunatic was not necessary. — In re Skerrett, 2 Dru. & W. 586. Order was made to restrain an action brought by an auctioneer against the solicitor in a lunacv for the amount of his bUl for appraising ani selling property belonging to the lunatic, such sale having been made \mder the authority of the court, and the auctioneer having acted on the instruction of the solicitor, and with the sanction of the master before whom he had at first carried on his claim, and a reference directed for ascer- taining what would be a proper sum to be allowed Mm on that account. — In the matter of Weaver 2 Myl. & Or. 441. The ordinary repairs upon a lunatic's real estate wUl be directed to be borne by the per- sonal estate, but any extraordinary outlay of the personal estate on the land should retain its cha- racter of personalty.— 7re re Badcock, i Myl. & Cr. 440. A tenant of the lunatic's estate will be restrained by order on petition made in the matter of the lunacy irom committing waste.— /» re Chinnerys, 1 Jon. & L. 90. The law will raise an implied contract, and give a valid demand or debt against the lunatic or his estate for monies expended for the neces- sary protection of his person and estate, Williams V. Wentworth, 5 Beav. 325. Under a commission of lunacy A. B. was, upon inquisition, found lunatic, and the verdict was confirmed upon the trial of a traverse. Before the costs had been ordered to be raised A. B. died. Held, that under the 3 & 4 W. 4, c. 104, the real estate of the lunatic was liable for the costs of the proceeding. — Id. A trader being indebted to a lunatic in the amount of the purchase-money of a business, and the machinery and stock in trade, after carrying on the business alone for some time, enters into partnership under an agreement, by which the stock in ti'ade and property of the sole business were to belong to the firm, which was to take upon itself the liabilities of the sole business. The firm renders an annual account in its own name in respect of the debt to the committee of the limatic, who makes no objection to this form of the account. Held, on the firm becoming bankrupt, that the committee was not entitled to prove against the joint estate. Queere : whether he had power, and whether the Lord ChanceUor would have given him power to convert the separate into a joint liability. — Ex parte Parker, 2M. D. &D. 611. XII. — MORTOAGEE AND TRUSTEE. Conveyance, surrender and assienment ol estates vested in trust or by way of niortgage, in lunatics, idiots and persons of unsound mind ; 11 Geo. 4, 1 W. 4, c. 60, s. 65, and 1 & 2 Vic, c 69, U. K. ; 5 & 6 W. 4, c. 17, 1. ■When it clearly appeared that the lunatic was a trustee of mortgaged premises, and the mortgage deed contained a declaration to that efiect j Held, that the costs of proceedings under the act 1 W. 4, c. 60, to obtain a reconveyance, m\ist be borne by the mortgagor. — In re Lewis, 1 Mac. & Gor. 23. Two days' notice to be given of petitions relat- ing to lunatic trustees, under 1 W. 4, c. 60. Gen. Ord. 23 Feb., 1832 ; Beav. ed. 37. The court may appoint a new trustee, on peti- tion imder 1 W. 4, c. 60, s. 22, although the instrument creating the trust contains a power to appoint new trustees. — In re Foxhall, 2 Phil. 281. The costs of proceedings imder the 1 W. 4, c. 60, s. 3, for the purpose of obtaining a recon- veyance of a mortgaged estate from a lunatic mortgagee, are to be borne by the lunatic's estate. — In re Townsend, 2 Phil. 348. An application by a mortgagee of an alleged lunatic's estate to be allowed to attend by counsel at the inquisition, refused, the applicant declin- ing to be bound bv the result of the proceedings. —In re Watts, 1 Phil. 512. Semble : The expenses of proceedings under the 11 G. 4, and 1 W. 4, c. 60, s. 5, for the pur- pose of obtaining a reconveyance of a mortgaged estate from a mortgagee of unsound mind, but not found such by inquisition, are be borne by the mortgagor.— 7« the matter of Marrow. 1 Cr & Ph. 142. The summary jurisdiction given to the Lord ChanceUor by the 11 G. 4, and 1 W. 4, s. 60, s. 6, for the conveyance or transfer of property vested m persons as trustees or mortgagees, who are lunatic, but not found such by inquisition, does not apply to cases in which the fact of lunacy is contested — In the matter of Walker, 1 Cr. & Ph. 304 Partial Insanily. LUNACY. XIII. — Partial Insanity. "When sanity is impeached and the evidence is iconilicting, the question is, not whether the facts adduced in support of it are not in general indica- tions of sanity, but whether they are inconsistent with, or sufficiently explanatory of the indications of insanity produced on the other side, on which undoubtedly the onus lies. A testator gave to his niece all his bond debts, and he gave to C, a person in whom he repo.-ed great contidence, besides other benefits, all the residue of his property j four months after the date of the will, the testator took from a bond debtor a conveyance of an estate to himself for life, with remainder to C. in fee, and the bond was deli- vered up to be cancelled. C. took a part in pro- moting this transaction, but no direct fraud \v.%-: established against him, and it did not appear that he exercised any positive control over the testator. Two days afterwards, the testator com- mitted suicide, the evidence as to the sound- ness of the testator's mind was conflicting ; many acts consistent with sanity having been done by him up to the time of his death, but the court being of opinion upon the whole evidence, that the testator, at tlie time of purchasing the estate in exchange for the bond, was of unsound mind, and considering the state of his mind, in con- nexion with the confidence which he placed in C, without directing an issue, set aside the convey- ance, and declared the testator's niece entitled to the benefit of the bond. — Steed v. Calley, 1 Keen, 620. MAINTENANCE AND CHAMPERTY. MAINTENANCE AND CHAMPERTY. Though the court will not enforce a contract for the purchase of a litigated right, yet if a lawful contract for the purchase of an undis- puted right be made, and the necessity for liti- gation as against third persons arises out of circumstances afterwards discovered, the pur. chaser or assiguee is not precluded from suing upon his contract. It is not Champerty where the right purchased was originally clear, but the litigation is the result of circumstances sub- sequently arising or subsequently known. — Wilson V. Short, 6 Hare, 366. F. being seised of certain lands, executes a deed conveying same to his solicitor, B., subject to a life use therein for himself, and after his decease to his wife for her life, in consideration of a sum of £400. The deed purported to be a simple purchase in consideration of a sura of £400, but by letter of same date with the con- veyance, and written by B., the solicitor, it •was stated that ot the"£400, £100 only was cash, the remaining £300 to be B.'s costs in a certain suit, in which F., the grantor, was plain- tiff, and which B., for such considerations, undertook to bring to a conclusion. Senibh : Such a transaction is maintenance. — Vppington v. BuUen, 2 Dru. & W. 184. W. M. in the year 1805, filed his bill against J. C, impeaching various proceedings, and praying that certain conveyances, mortgages and bonds should be set aside or stand as securities only for so much as on taking an account should be found to be fairly due and owing. These pro- ceedings having been carried on for many years •withoutany decree having been pronounced, W.M. died, having by his will, bequeathed all his estate real and personal, save his estate in the county of T., to his vrife, M. M., for her life, with remainder to her brother in fee. As to his estate in the county of T., he devised to A. B., a solicitor, on condition of his releasing all his claims under a deed of March, 1828, whereby certain valuable properties had been conveyed by him to the said A. B., by deed of March, 1832, made between the said A. B. and M. M., the widow, and her brother, reciting the above facts ; and that " in order to avoid litigation and expense in the es- tablishment of their rights under the said deed of March, 1828, and the said will of W. M., and for the purpose of forwarding the prosecution of the said suit then pending for the recovery of the estate and property of the said W. il., and for the purpose of finally determining all ques- tions and differences existing between the said parties." They had agreed, in case of the said suit being effectual, to divide between them thi whole of such estate and property ; and the said estates were conveyed to the said M. JI.. and her brother upon trust, to carry on the said suit, and upon the determination thereof, to assign one moiety thereof to the said A. B., and in the meantime to be the trustees as to the said moiety for the said A. B., and the said deed contained a covenant on the part of the said A. B., that he Avould give his full and active personal aid and assistance in all matters relating to said suit. A bill of revivor and supplement havmg been sub- sequently filed by the widow M. M. and her brother against the original defendant, J. C, A. B. and others ; Held, that the contract under the deed of March, 1832, amounted to Champerty, and the bill v a=;, upon that ground, dismissed with costs. — Moorey. Creed, 1 i)ru. & Wal. 521. MAINTENANCE. See Infant — Lcxatic — Guaruiax. MARKS. The boxes of tin plates made at particular works, at Caimarthen, were for a long series of years branded with the marks, "M. C." S. a lessee of those works, who had used that mark, subsequently removed his manufactory to other works, at a distance of forty miles, and there used the same mark. The Carmarthen works were, for some years, unoccupied, but afterwards D. and others, as co-partners, having taken a lease of them, carried ihem on and branded their boxes with theraark"M.C. "and styled themselves "The 'M. C Tin Plate Company," S. then Validity of. MARRIAGE. Validity of. 305 tdjtainecl an injunction to restrain D. and his partners from using the mark "M. C," or the designation of "The 'M. C Tin Plate Company ;" but upon appeal, the injunction was dissolved, ■with liberty to S. to bring an action. Principles and rules upon which the Court Interferes by injunction in such cases. — Motley v. Downman, 3 Myl. & Cr. 1, The oourt will grant perpetual injunction gainst the use by one tradesman of the trade- marks of another,, although such marks have been used in ignorance of their being any person's property, and under the belief that they were merely technical \j&Tims.—MilKngton v. Fox, 3 Myl. & Cr. 338. MARKIAGE. See Husband & Wipe — Settlement. I. Vaiidity op 305 II. Nullity op 306 III. Articles 306 IV. Proposals pok 308 V. Marital Right 308 VI. Restbaint op 308 VII, Rights and Liabilities op Makeied Women 308 VIII. Maerlaoe Act 309 IX. Proof of 309 I. — Validity op. See 4 Geo. 4, c. 76. 6 & 7 Will. 4, c. 85, Act to amend the Law of Marriage Acts. Further amending the law of, 7 Will. 4, and 1 Vict., o. 22. Marriages in district churches, 7 & 8 Vict., c. 56. Marriages in districts where parties reside, 3 & 4 Vict. c. 72. Confirming certain marriages in Ireland, 6 & 7 Vict., c. 39. Rendering valid certain voidable marriages, 6 & 6 Will. 4, c. 64. Facilitating the marriage of British subjects resident in foreign countries, 12 & 13 Vict., c. 68, U. K. In cases of fraudulent marriage, the offending party to forfeit all property accruing from the marriage, as provided by 4 Geo. 4, c. 76. This act to be deemed part of the Registration Act, 6 & 7 Will. 4, c. 86. Amendment of 7 & 8 Vic. c. 81, for marriages in Ireland, and for registering same, 12 & 13 Vict., i;. 99, 1. A young lady, eighteen years of age, entitled ■ to considerable property, her parents being dead, having been passing her vacation at the house of one of the executors named in her father's will, whom she considered as her guardian, was in- duced by his brother, who was residing in the same house, and was fifty-two years of age, to promise to marry him. She withdrew that pro- mise a few days afterwards, but was importuned again, and prevailed upon to renew it, and the man-iage was celebrated without the knowledge of any of her friends upon a false statement made by him of her age and residence in the publi- cation of the banns, and in the register of the marriage. There was no cohabitation nor con- summation of the marriage as she alleged. She, after a few days, went to a friend's house, and, by his advice, applied for an act to annul the marriage, the same being considered valid in law. Held, that it did not appear by the evidence that the marriage was not solemnized with the free consent of the lady, and that the case made was not such as to justify legislative interference.— Field's Marriage Annulling Bill, 2 Clk. & Fin. N, S. 48. . A case, similar to the above in many of its cir- cumstances, was brought before the house in )846, upon petitions for leave to bring in " a bill to dissolve, rescind and make void the marriage of William Newnham Burton, and Frances Loisa Wortham." She was entitled to real estate of £450 a-year, and was only fourteen years of age when taken away from her mother, a widow, by W. N. Burton, and married to her at Gretna Green. There was cohabitation and birth of a child. On Lord Brougham's motion the petitions of the mother and daughter, together with the evidence on the trial of Burton for the abduction, were printed, but no further proceeding was taken.— 76 Lords* Jour, (for 1846), pp. 76, 96, and 30S.—Wort/iam's case, 2 Clk. & Fin. N. S. 73. A., (in the kingdom of Ireland,) accompanied by B., went to the house of C, a regularly placed minister of the Presbyterians, of the parish where such minister resided, and then entered into a present contract of marriage with the said B., the said minister performing a religious ceremony between them according to the rites of the Pres- byterian Church. A. and B. lived together for some time as man and wife. A. afterwards married another person in a parish church in England. Qucere — whether the first contract was sufficiently a marriage to support an indictment against A. for bigamy. The Lord Chancellor, Lord Cottenham, and Lord Abinger, held that it was not — Lord Brougham, Lord Denman and Lord Campbell held that it was. The lords being thus divided, the rule " semper presumitur pro negante' applied, and judgment was given for the defendant in error. — Regina v. Millis, 10 Clk. & Fin. 534. M. C, an unmarried woman, while living with her mother, had two children by A. H,, a single man, who gave bond to the parish to indemnify it against their maintenance. He afterwards changed his own residence, and M, C. went with her two children to reside in his house, and so resided till his death. Shortly after this change of residence, he obtained from his law-agent a form of words necessary by the Scotch "law to constitute a marriage. He then wrote this note : " My dearest Mary, — I hereby solemnly declare that you are my lawful wife, though, for par- ticular reasons, I wish our marriage to be kept private for the present, I am, your affectionate husband, A. H." This note was addressed inside to " M. C.," but outside to " Mrs. A. H." He deposited the note with the law-agent, saying, " it would please and satisfy her," but directed the agent to keep it a secret till his, A. H.'s, death. A. H. always represented himself to his relations as a single man. Held, that a valid marriage had been constituted between these parties ; that the words of the paper were suf- ficient for that purpose, so far as the man was concerned ; and, that his conduct and expressions to the law-agent, together with the subsequent residence of the woman with him, must be taken as evidence of her knowledge of the paper, and her assent to it,—Eamilton v. Bamilton, 9 Clk. & Fin. 327. The law-agent was, under the circumstances, X 306 Nullity. MARRIAGE. Articles. here equally the agent of the wife as of the husband, for the purpose of the custody of this paper. — Id. The marriage of an officer, celebrated by a chaplain of the British army, within the lines of the army when serving abroad, is valid under the 4 Geo. 4, 0. 91, though such army is not serving in a country in a state of actual hostility, and though no authority for the marriage was pre- viously obtained from the officers superior in command. — Waldegrave Peerage, 4 Clk, & Pin. 649. The legitimacy of the plaintiffs having been called in question by the next tenant for life, who was a defendant in the cause ; held, that a marriage de facto having been once established, it lay on the party impeaching the marriage to shew that the same was illegal or void. That sufficient evidence of a marriage de facto having been sub- mitted to the court, the court itself was com- petent to decide the question of marriage for the purposes of the suit, without directing an issue. —Piers V. Tuite, 1 Dru. & Wal. 279. II. — NULLTTV. Sentence of nullity of marriage, causa impoten- ti. 642. Upon a petition by a mortgagee for the appoint- ment of a new trustee, in the room of the infant heir of a trustee, for sale under a mortgage deed, the court, in the absence of the mortgagor, refused the application. — In re Green, 2 Coll. C. C. 91. Although the 3rd section of 1 and 2 Vic. c. 69, provides that the 11 Geo. 4, and 1 Will. 4, fl. 60, and 4 & 5 Will 4, c. 23, shall not be construed to extend to any case of a person dying seised of any land by way of mortgage, other than such as are in that Act expressly provided for ; yet that sec- tion does not repeal any part of the two other Acts, and therefore, the cases of a mortgagee dying, leaving an infant heir, or where it is uncertain whether he left an heir, are not aifected by the first-mentioned act. — In re Wilson's Estate, 8 Sim. 392. In a suit by an equitable mortgagee against the infant heir of the mortgagor, the estate was directed to be sold, as being most beneficial to the infant ; and under 1 1 Geo. 4, and 1 Will. 4, c. 47., the infant was directed to convey the estate to the purchaser. — Scholejield v. Heafield, S Sim. 470. XV.— BoEBowiNG Clause. Where, in an indenture of mortgage, there was contained a borrowing clause, and subsequently, small sums were, from time to time, advanced by the mortgagee to the mortgagor ; in a suit for the general administration of the estate of the mort- gagor, the master, in taking the accounts, having refused to report that the said cash advances had been made on the security of the borrowing clause, or to allow interest thereon : — Held, on exceptions, that the report was wrong and that the mortgagee was justified in referring these payments to the bori'owing clause. — Cairncross v. Bradley, 2 Dru. & Wal. 482. XVI. — CuSTODV OP Documents relating to. A mortgagee is entitled to the possession of the title deeds of the mortgaged estate ; and the mortgagor cannot, by depositing the deeds with his solicitor with a view of creating a lien thereby, defeat the rightof the mortgagee. — Smith V. Chichester, 2 Dru. & W. 393. A mortgagee is not bound to produce his mort- gage deed to the devisee of the mortgaged estate, until payment of principal and interest, notwith- standing the devisee may be ignorant of the amount of the interest, the time of payment, and all the other particulars of the security. — Brown V. Lockhart, 10 Sim. 421. Three martgages on the estate of distinct mort- gagors were vested in the same trustees by one deed, _ which was prepared in the Master's office in a suit for executmg the trust. Upon the application of one of the mortgagors for liberty to redeem, and to have his mortgage-deed deli- vered up to him : — Held, that ho was entitled to have the deed, on his executing to the trustees a covenant to produce it and paying the costs of the application, and that the costs properly in- curred in preparing and settling the covenant should be borne by the mortgagee's estate. — Capper v. Terrington, 1 Coll. C. C. 103. XVII. — Privileged Communications. A solicitor invested his client's money on a mortgage, and, by the client's desire, took the mortgage in his own name, without any trust being declared by the deed. In a suit by a judg- ment creditor of the mortgagor, to redeem against the solicitor and the mortgagor (who was outof the jurisdiction) : — Held, that the solicitor was privi- leged from disclosing the name of his client, and also the particulars of other mortgages of the property, which had been taken by other clients of the solicitor in their own names. Held, also, that the case was an exception to the rule, that a defendant who submits to answer, must answer fully. — Jones v. Pugh, 12 Sim. 470. XVIII. — Leases by Mobtgagees. Mortgagee of leaseholds, held for a term of years, joined with the mortgagor, in leasing part of the property to A. B., for the residue of the term, at a rent of £3 per annum, payable to the mortgagor, his executors, administrators or assigns. The lease contained a clause reserving the right of re-entry, in case of non-payment of rent, to the mortgagor, his executors, adminis- trators or assigns. There was also a declaration, that nothing therein contained should be con- strued to defeat, impeach, or determine the estate of the mortgagee under the mortgage deed, so far as the same affected the entirety of the pre- mises. After the execution of the deed, the mort- gagor became bankrupt. Held, that A. B. was entitled to the benefit of this lease, exempt from the mortgage, but that the mortgagee, and not the assignee of the bankrupt mortgagor, was entitled to the rent of £3 per annum. — Edwards v, Jones, 1 Coll. C. C. 247. XIX. — Appointment op Receiver. Advances made by a mortgagee, for the preser- vation of the estate, ex gr. head rent paid by him, follow the nature of the mortgage security, and if the mortgagee is not entitled to foreclose the mortgage until after the decease of the mort- gagor, neither is he entitled during the life of the mortgagor to a sale of the estate for payment of such advances, but, if necessary, a receiver will be appointed, to keep down the interest on the mortgage debt and advances. — Burro\Bes v. Mottoy, 2 Jon. & L. 521. The proviso for redemtion, in a mortgage of a leasehold for years, was, that upon payment of the principal, on a day mentioned, and interest thereon, and the head rents in the mean time, the deed should be void. By deed of equal date, reciting that the agi-eement of the parties was, that the principal should not be called in until after the decease of the mortgagor, but, that by mistake, it was stated in the mortgage deed, tliat the principal might be called in on a day certain ; the mortgagee covenanted, that the principal money should not be called in, until after the decease of the mortgagor, anything in the deed of Power of Sale under. MORTGAGE. Foreclosure Suils. 323 mortgage to the contrary, notwithstanding. Held, that the mortgagee could not foreclose the mortgage, during the life of the mortgagor, though the interest was in urrear, and the mortgagor had not paid the head rent. — Id. A mortgagee having the legal estate, is not entitled to a receiver appointed by the court, although the tenants may be numerous, and the rents difficult to collect. — Stwroh v. Young, 6 Beav. 557. Two parties, who were entitled to property in equal moieties, made an equitable mortgage of it ; one of the mortgagees was out of the jurisdiction, and the whole rents were received by the other ; the court granted a receiver. — Holmes v. BeU, 2 Beav. 298. XX. — PowEB OF Sale under. A vessel was mortgaged for a nominal sum to secure an unascertained balance due to the mort- gagee, with power to sell by public auction, and in case the vessel could not be sold, the mortgagee was to hold, enjoy, and possess the free use, con- trol and possession thereof, as sole owner, until the full amount of his claims should be satistied. Default was made in payment of the sum named before the real balance was ascertained ; and pending the investigation thereof before arbi- trators, the mortgagee caused the vessel to be sold by private contract. Held, by the Judicial Committee, reversing the decisions of the Inferior and Supreme Coiu'ts in the Island, that such sale was wrongful, and not warranted by the con- ditions of the mortgage deed, and an accoimt of the value of the ship at the time of such sale, ordered to be taken and the amount thereof paid to the mortgagee. —Bronard v. Dwnaresque, 3 Mo. 457. The circumstance thai a mortgagee with power of sale, has entered into a contract to sell a por- tion of the property comprised in the security for a sum greater than the amount diie on the mortgage. Held, not a sufficient ground for re- straining him from prosecuting an action upon the covenant for payment contained in the mort- gage Aeei.— WiUea v. Levett, 1 De. G. & S. 392. Sale under a power of sale contained in a mortgage deed, the power being proved to have been oppressively exercised by the mortgagee, set aside with the costs as against the mortgagee. — Edwards v. Matthie, 2 CoU. C. C. 465. Bill by mortgagor against mortgagee and his solicitors, praying to have a sale under the mort- gage deed set aside for fraud and oppression, dismissed as against the solicitors, the main charges in the bill against them not having been made out ; but without costs, on the ground that they were the substantial movers and authors of the sale, which, as between the mortgagor and mortgagee, was proved not to be substantial in a court of equity. — Id. A mortgagee, having a power of sale, cannot, as between him and the mortgagor, exercise it in a manner merely arbitrary, but is, as between them, bound to act in a prudent and business-like manner, with a view to obtain as large a price as may fairly and reasonably with due diligence and attention be, under the circumstances, ob- tainable. Therefore, where a man who had a reversionary interest in a sum of money, ex- pectant on the death of his wife without isssue by him, died in his wife's lifetime, after having mortgaged that interest, and a few weeks after his decease, the mortgagee, under a power of sale, advertised the property for sale, as a reversion expectant on the death of a widow lady " now aged thirty or thereabouts" and made no offer to satisfy the purchaser that there was no possi- bility of the widow having issue, it was Held, that the sale under such circumstances was im- provident, and could net be sustained as against persons claiming under the mortgagor. — Id, XXI. — Foreclosuhe Suits. 1 . Accounts in 326 2. Parties to 326 3. Further time allowed for Payment of Money in 327 4. St(^ Orders 327 Where, upon the whole mortgage deed, it ap- pears that, although the redemption is expressed to be upon payment of the principal money and interest at the end of several years, yet the agree- ment of the parties is that the interest shall be paid half-yearly ; in the meantime the mortgagee, upon non-payment of the interest made, may foreclose within the period, — Roddy v. WiUiams, 3 Jon. & L. 1. A decree for sale of an unincumbered estate, does not of itself alien the rights of parties. — Wild V. Lockhart, 10 Beav. 320. On a motion by the defendant in a foreclosure suit to stay proceedings, on payment of principal, ' interest and costs, the defendant need not pro- duce an affidavit to shew that he is the only person entitled to redeem. Piggin v. Cheetham, 2 Hare 80 ; disapproved of. — Reeves v. The Glas- tonbury Canal Co., 14 Sim. 351. A. and B.. in 1838, filed their bill for the ad- muustration of an estate, m the residue of which they were each entitled to one-third. In 1840, they changed their solicitor in the cause, and appointed F. as such soUcitor, who so continued until 1843, when they again changed their solicitor. F. then brought his action against A., (B. having gone out of the jurisdiction) for the amount of his bill of costs, and in June, 1844, he recovered and entered up judgment in such action. In June, 1845, F. filed a bill for fore- closure, under the Statute 1 & 2 Vic. c. 110, as against A.'s third part of the property, the sub- ject of the first suit. In July, 1846, F obtained tlie common decree for foreclosure against A., and (default being made) on the 23rd of March, 1847, the order for foreclosure was made abso- lute. The order absolute was then enrolled. A. had no property except that to which she was entitled in the first suit, but the value of the pro- perty to which she was entitled in that suit, was three or four times the amount of F.'s judgment debt and costs. The master had made his report in the first suit, and the cause stood for hearing on further directions, and on exceptions, when on an application, in June, 1847, the court en- larged the time appointed by the master for the payment of the debt and costs, notwithstanding the order absolute, and notwithstanding its enrol- ment — Ford V. Wastell, 6 Hare, 229. • Order made on motion in a foreclosiu-e suit to the same efiect as a decree, although the order could not be made under the 7 Geo. 2, c. 20, owing to some of the parties interested in the equity of redemption being infants, and, ccnte- quently incapable of admitting the plaintiff's title.— Grone v Mitchell, 10 Sim. 484 326 Foreclosure Suitt MORTGAGE. Parties to. Mortgagor on the marriage of his daughter, executed a settlement of the mortgaged property to the use, after the marriage, that his daughter should receive a rent charge of £200 a-year, for her life, and, subject thereto, to the use of trusr tees for a term of years, for further securing the rent charge, and for raising £4,000 for the children of the marriage ; remainder to the use of the mortgagor, in fee. There were several children of the marriage, who, with their father and mother, were resident out of the jurisdiction. Held, that a suit of foreolosui'e could not proceed in. their absence. — Anderson v. Stather, 2 Coll. C. C. 209. Conveyance of real estate, upon trust, to secure the payment of advances made upon the security thereof, vrith a power of sale. Held, not to entitle the mortgagee to a decree for fore- closure. — Sampson v. Pattison, 1 Hare, 533, When a mortgage is made to several persons jointly, they are, in equity, tenants in common of the mortgage money, and the representatives of such of them as may be dead, are necessary parties with the survivor to a bill for foreclosure or redemption. — Vickers v. Coioel, 1 Beav. 529. Foreclosure suits may be advanced for hearing like other causes. — 4th. Gen. Ord., (9tli May, 1839) 1 Beav. X. After decree in a suit by a second mortgagee, to redeem the first and foreclose the subsequent mortgages, one of the subsequent mortgagees assigned his interest in the premises to A. A. then filed a bill against all the parties to the former suit, praying to be entitled to the benefit of that suit, and to redeem the mortgagees' who were prior to himself, and to foreclose the others. The bill was dismissed as against all the defend- ants except the assignor, and A. was declared to be entitled to stand in his place, and to use his name in the further ^osecution of the first suit. Booth V. Creswicke, 8 Sim. 352, XXI., 1, Accounts in. In a foreclosure suit, the mortgagee having received rents between the date of the master's report and the day appointed for payment, the court, on motion, referred it back to the master, to continue the accounts, and to fix a new day, — Ellis V. Griffiths, 7 Beav. 83. Decree against a mortgagee in possession, with costs ; a tender having been made before suit, and it having been found, upon taking the accoimts, with annual rests (which was the point in the cause) that nothing was at that time due to the mortgagee. — Wilson v. Cluer, 4 Beav. 214. A., seised in fee, mortgaged for a term of years, and afterwards devised the mortgaged premises, and died. The mortgagee brought his bill against the devisees, some of whom were infants, for foreclosure. Held, that the defendants, during the infancy of the devisees, were not entitled to a decretal order, on motion under the Statute 7 Geo. 2, c. 20, s. 2, or under the general juris- diction of the court, to take an account of what was due. — Taylor v. Coates, 3 Hare, 263. The mortgagee of a reversionary interest in stock in the public funds, with a power of sale, may bring his bill for foreclosure, and is entitled to a decree in the common form of an account, and in default of payment, for foreclosure. — Slade V. Rigff, 3 Hare, 35. A property was subject to a mortgage for £1,000 ; A. B. agreed with the mortgagor for the purchase of a portion of this property, and entered into possession, without paying his purchase money. In 1813, A. B. bought up the whole mortgage for £1,000, on which an arrear of interest of £101 was due. There was at the same time due from A. B., in respect of his purchase, £366. Nothing further being paid by the mortgagor, A. B., in 1816, recovered possession of the property ; the rents exceeded the amount of interest, and in 1823, the whole arrear of interest had been paid oif. The court refused to direct annual rests. — Finch V. Brown, 3 Beav. 70. Generally, annual rests are not directed against a mortgagee in possession, when the interest is in arrear at the time he took possession ; and, in the absence of special circumstances, if a mortgagee is not liable to account with annual rests, when he enters into possession, he does not become so liable, until the whole of the mortgage debt has been paid ofi'. Where, however, a mortgagee in possession came to an account mth the mortgagor, whereby all the arrears of interest, &c., were con- verted into principal, leaving thereby no arrears, and he continued in possession, the rent being more than sufiicient to keep down the interest, the court du-ected aimual rests. — Wilson v, Cliter, 3 Beav. 136. Circumstances under which a mortgagee in possession was exonerated from having the mort- gage account taken with annual rests, — Horlock V. Smith, 1 Coll. C. C. 287. A sum which was in court at the time the mortgagee took possession. Held, under the circumstances, to go in discharge of the mort- gagee's interest due at the time. — Id. Kent received by the receiver, before the mort- gagee took possession, but not paid to her till afterwards, assumed, under the circiunstances of the case (but not decided), to go in discharge of the interest due to the mortgagee at the time of taking possession. — Id. Kent which did not appear to have been received by the receiver before the mortgagee took possession. Held, under the circumstances of the case, not to go in discharge of the interest due to the mortgagee at the time of taking pos- session. — Id, Where the amount of principal and interest due upon a mortgage has been found by the master's report, the rule now is, to compute subsequent interest upon the principal only, and the time for payment of the money found due upon a mort- gage, is enlarged upon the terms of paying the interest and costs found due. — Whattony.Cradock, 1 Keen, 267. XXI, 2. Parties to. In a suit by a prior mortgagee for a foreclosure and sale, the heir of the mortgagee of the equity of redemption is not a necessary party. — Whitla V, HaUiday, 4 Dru. & W. 267. A puisne mortgagee can sustain a bill of fore- closure against the mortgagor and subsequent mortgagees without making the eigne mortgagee a party. — Richards v. Cooper, 5 Beav. 304. In a biU of foreclosure and sale of mortgaged lands, all the judgment creditors of the mortgagor are necessary parties, whetJier such judgments are prior ox puisne to the plaintiff's demand, and whether they are a lien upon legal and equitable estates. This doctrine rests upon a perfectly valid foundation, whether referred to the general prin- ciples of courts of equity or to the effect of the Statute 3 & 4 Vic. c. 105, 8. 22.— Bolletton v. Morton, 1 Dru. & W. 171. Foreclosure Suit. MORTGAGE. Costs. 327 A having taken from the administiatrix of the mortgagor a legal mortgage, containing a power of sale, and having filed his bill to enforce spe- ciiic performance of a contract for sale under tlie power, the court declined to entertain the suit in the absence of the administratrix and the parties beneficially interested under the mortgagor. — Smiders v. Richards, 2 Coll. C. C. 668. XXI, 3. Further time allowed for payment of money in. In a foreclosure suit an order to enlarge the time for payment of the mortgage money, is by no means of course, but may be refused when no excuse for the default is stated, and the security does not appear to be ample. The usual condition on which it is granted, is on payment of interest and costs before the time appointed by the mas- ter for payment of the whole ; in this case, how- ever, it was ordered, that upon payment of the interest and costs within a month, the time should be enlarged for five months, — Eyre v. Harnon, 2 Bcav. 478. Under a decree in a foreclosure suit the time fixed for payment of principal, interest, and costs, was the 31st July. On the 25th, the defendant obtained an order referring it to the master to fix a further time on his paying the interest and costs on the first mentioned day. The defendant, however, failed to make that payment, and on the 3rd of August following, the plaintiif obtained the usual order for foreclosure absolute ; but owing to the press of business in the registrar's office, it was not drawn up. On the 16th of August, the defendant moved for a further ex- tension of the time, on the ground that a person who had agreed to lend him the amount of the principal, interest, and costs, was prevented by illness from coming to London on the 31st July, and his wife, whom he had deputed to bring the money, was prevented from doing so by the coach being fall on the 30th. Motion granted. — Jones V. Creswick, 9 Sim. 304. XXI, 4. Stop Order. The mortgagee of a fund in court is entitled to the expense of obtaining a stop order on the fund, in a case in which he is empowered by the mort- gage deed to apply to the court for that purpose ; but such expenses are not allowed by the taxing master under the common order to tax the costs of the mortgagee. — Waddilove v. Taylor, 6 Hare, 307, XXn.— Costs, Where a mortgagee unnecessarily files a bill for foreclosure subsequently to the bankruptcy of the mortgagor, he will not get more costs than he would have been entitled to by proceeding in the matter of bankruptcy. — Hogan v. Baird, i Dru. & W. 296, A. being entitled to a leasehold interest in 1814, assigns the same by way of mortgage to B. in 1824. A, obtains from the landlord a lease of lives renewable for ever in lieu of the former interest ; and in 183d, deposits his lease with his solicitor in England, to whom he was considerably indebted for costs at the time. By the decree pronounced at the original hearing, the new lease was declared to be a graft upon the old one, and that the mortgagee was entitled to the benefit of it. Held, that the solicitor's lien upon the new lease could not prevail against the mort- gagee. A mortgagee, after the time for payment of the mortgage^oney has elapsed, executes several sub-mortgages, and then files a bill of foreclosure and sale, making the sub-mortgagees defendants. Held, that the sub-mortgagees were entitled to their costs against the plaintiff (the mort- gagee), and the plaintiff to have these costs along with his mortgage debt over against the estate.-^ Smith V. Chichester, 2 Dru. & W. 393. In a suit to redeem, against a mortgagee in possession, the defendant, in his answer, set up an unfounded claim to the equity of redemption, and denied that the mortgage had been satisfied, although a balance was due from him when he filed his answer. The court ordered him to pay the costs occasioned by his claim, and the costs of the suit subsequent to the filing of his answer, and also interest on the balances in his hands since the time when the mortgage was satisfied. — Montgomery v. Calland, 14 Sim. 79. A mortgagee filed a bill of foreclosure, and, pending the suit, transferred the mortgage to A. B., who transferred it to C. D. Held, that the extra costs thus occasioned were not to be charged against the mortgagor. — Coles v. Forrest, 10 Beav. 552. Pending a suit by a first mortgagee to fore- close, the plaintiff obtained a transfer from the second mortgagee. Held, that the costs occa- sioned were chargeable against the estate. — Id. A mortgagee had been in possession; she transferred the whole of her interest, and after- wards became insolvent. Her assignees were made defendants to a bill of foreclosure. Held, that their costs ought not to be charged on the mortgage estate, but on the plaintiff. — Id. The assignee of an insolvent mortgagor was made a party to a suit to foreclose the mortgage and died in the progress of the suit. There was no other property of the mortgagor but the mortgaged premises, and the plaintiff, in order to induce a creditor of the mortgagor to become his assignee, imdertook to pay him his costs in the suit. Held, that the plaintiff was entitled to these costs as part of his own costs of suit. — Max- tcell V. Smyth, 1 Jon. & Ca. 72. After action brought by mortgagee (a solicitor) against mortgagor for his bill of costs on effecting the mortgage, and £35 taken out of court in that action by mortgagee in satisfaction of his demand, and after second action brought between the same parties to recover the mortgage money and costs in that action, taxed at £19 16s. 4d., mortgagor tendered to mortgagee principal and iijterest, said sum of £19 16s. 4d. and £10 for any other costs and expenses that might be due. Mortgagee, however, refused to re-convey, because the bill of costs, the subject of the first action had not been satisfied, and the taxed costs of the second action were only costs as between party and party. Upon a bill filed by mortgagor against mortgagee to compel a re-conveyance : — Held, that the mortgagee must pay the costs of the suit. — Morley V. Bridges, 2 Coll. C. C. 621. Under the circumstances of the case, a tender of mortgage money, Held, to be absolute and not condition^. — Id. Mortgagor's trustee to bar dower, not entitled, as against the mortgagee, to his costs of a suit brought to foreclose the mortgage. — Eorrochs v. Ledsam, 2 Coll. C. C. 208. The costs of the petition and order under the Statute 1 Will, 4, c. 60, for the re-conveyance of 328 Costs. MORTGAGE. Equitable Mortgage. amortgaged estate to the mortgagor or Ms repre- sentatives, upon payment of the mortgage money, are to be borne by the mortgagor or his estate, although such proceedings were rendered neces- sary by the circumstance that the mortgagee had devised the legal estate in the mortgaged pre- mises to three trustees, one of whom could not be found. — King v. Smith, 6 Hare, 473. Where deeds were deposited with a written memorandum to secure the debt of two partners, and after the death of one, it was verbally agreed that the deposit should be extended to secure the separate debt of the surviving partner. Held, that the costs should be apportioned as to the sums respectively due from the joint and separate estate — in the one case, as on a deposit with a written agreement, and in the other, as on a deposit by parol.— JSa; parte Ford, 3 M. D. & D. 457. Assignees are entitled to have the db-ection of the court, with regard to the rights of parties claiming to be equitable mortgagees of property of the bankrupt, and therefore entitled to their costs out of the mortgaged estate, although they have been requested to concur in a sale without a petition being presented. — Ex parte Stevens, 3M. D. &D. 317. Where there was a suiEeient part performance to take a parol contract for sale out of the Statute of Frauds, and the purchaser became bankrupt. Held, that the vendor, wishing to have effect given to his lien for unpaid purchase money, was entitled to have his costs out of the estate sold. — Ex parte Cooper, 3 M. D. & D. 717. First mortgagee, after the usual notice given him by the second mortgagee to redeem, files a bill of foreclosure ; at the end of the term men- tioned in the notice, the second mortgagee tenders the mortgage money and costs to the first mort- gagee, which the latter declines to accept. Held, under all the circumstances of the case, that the first mortgagee was not entitled to the costs of the suit after the tender.— SmsiA v. Green, 1 Coll. C. C. 655. First mortgagee ought, without a judicial pro- ceeding, to accept payment from a second mort- gagee, and thereupon, to convey to him the mortgaged estate, with or without the concurrence of the mortgagor. — Id. Where deeds relating to mortgaged property (the mortgage being absolute at law) came into the custody of a court of equity, by means and in the course of a reasonable and proper adminis- tration of the mortgagee's estate, the costs of removing them out of the court, upon the mort- gage bein^ paid off, must be borne by the mortgagor.— -Swrrfm v. Oldaker, 1 Coll. C. C. 105. In equity, an equitable mortgagee, though the mortgage be without memorandum, will be allowed his costs, as against the assignees of the insolvent mortgagor. — The Queen v. Chambers, 4 Y. & C. 54. On a suit, brought by a first mortgagee with tt power of sale, for the sale of the mortgaged premises in this court. Held, that the subsequent mortgagees were entitled to their costs, although a sale had been ordered, with their consent, and the produce of the sale had not been sufficient to satisfy the first mortgagee.— Coofe v. Brown, 4 Y. & C. 227. A mortgagee is not entitled, as against the devisees of the mortgaged estates, to be paid the costs of the action brought by him against the executrix of the mortgagor. — iewtj v. John, 9 Sim. 366. The Statute 1 & 2 Vic. c. HO, a. 68, does not make it the duty of a mortgagee, as against tlio provisional assignee of an insolvent mortgagor, to obtain an order from the Commissioners of the Insolvent Debtors' Court, for a conveyance of the equity of redemption ; and an offer, by the pro- visional assignee, to facilitate the proceedings, in such an application, does not entitle him to liis costs in a suit subsequently instituted against him for foreclosure. — Griggx. Sturgis, 5 Hare, 93. A decree for a sale of an equitable mortgage security, not being within the Statute 7 Geo. 2, 0. 20, the court will, in such case, exercise its general jurisdiction, in ordering the costs of the case to be paid by tlie defendant. — Aberdeen v. Chitty, 3 Y. & C. 382. A letter, noticing that certain deeds have been deposited to secure a particular debt, together with a subsequent letter, requesting further ac- commodation, on the ground that the depositary holds ample security for the amount of the depo- sitor's account, constitute, together, a sufficiently definite memorandum in writing, of an equitable mortgage for the whole amount due, as to entitle the depositary to his costs. — Ex parte Corbett, re Edwards, 1 M D. & D. 689. A letter written after the deposit, and referring, in general terms, to it, and to a bond in which the purpose of the deposit is stated : Held, to be a sufficient memorandum to entitle to costs. — Ex parte Bisdee, re Baker, 1 M. D. & D. 333. XXIII. — Equitable Mortgage. 1. How Created 32S 2. For Future Advances 330 3. On Fixtures 330 4. On Shares 330 5. Memorandum of 331 6. Banker's Lien 331 7. In case of Felony 33 1 8. Liability of Equitable Mortgagee 331 9. Sub-Mortgagee 331 XXIII, 1. Hoio Created, An equitable mortgage, by deposit of title deeds, with agreement in writing by the party making the deposit to execute a formal mortgage of the property to the mortgagee, for the balance which might be due to him, constitutes the equitable mortgagee a purchaser for good con- sideration, within the Statute 27 Eliz., c. 4, in respect of such balance ; and it being a term of the agreement th^t the mortgage to be executed should contain a power of sale, the court, on a bill to set aside a prior voluntary conveyance by the mortgagor, as fraudulent and void, under the Statute 27 Eliz., c. 4, decreed, that on default uf payment the mortgaged property should be sold. — Lister v. Turner, 5 Haie, 281. The bankrupts being mortgagees of various policies of life assurance, of which the respective insurance offices' had notice, deposit them with their bankers, to secure the payment of advances, but the bankers give no notice of such deposit to the different offices. Held, that the policies must be considered as in the order and disposition of the bankrupts, within the 72nd section of the Bankrupt Act, and that the same principle ap- plied to one of the policies which was effected with a mutual assurance company. A. writes word to B. that he has "inclosed the narticulars of certain title deeds of property, Equitable Mortgagee. MORTGAGE. How Created. 329 which he has deposited with B. for security of a debt," and in the schedule inclosed, among other entries, is the following: — "£9,000, buildings, houses, &c., at Titherington." A. sends B. a box containing the deeds and other securities, which B. does not examine until after A.'s bankruptcy, when he finds that the only deed relating to the Titherington estate is an old paid off mortgage. Held, nevertheless, that the letter and schedule, taken together, created an equitable charge on the Titherington estate. — Ex parte Arkwright, 3 M. D. & D. 129. There must be some actual deposit to constitute an eqviitable mortgage. An order on a third party to deposit a lease, when executed, is not sufficient.— £» porte Perry, 3 M. D. &D. 252. Where a petition was presented for the com- mon equitable mortgagee's order, supported by evidence that was not satisfactory to the court, and the court referred it to the commissioner to inquire into the circumstances of the deposit : — Held, on the commissioner finding in favour of the petitioner's claim, that the petitioner was en- titled to the rents from the date of the order of reference.— feiiarte Siniih, 3 M. D. & D. 680. An equitable mortgagee of an estate, of which the bankrupt is legally the owner, may prove without giving up Jus security, if the estate sub- ject to the mortgage be so incumbered that the bankrupt would have no beneficial interest in it if the mortgage were removed. A partnership, consisting of a father and son, is dissolved ; the father equitably mortgages an estate of his own to secure a debt due from the son separately, and afterwards dies indebted, jointly with his son, to an amount more than sufficient to exhaust his assets, including the mortgaged estate, even if the mortgage were removed. The estate des- cends to the son, who becomes bankrupt. Held, that the mortgagee might prove and keep his se- curity. — Ex parte Tumey, 3 M. D. & D. 576. A deposit of title Aeeis, prima facie, creates an equitable mortgage upon the whole property comprised in them. — Ashton v. Dalton, 2 Coll. C. C. 565. Equitable mortgage may be created in deeds in the hands of a third party, and by a memo- randum of agreement on the part of the mort- gagor to assign his interest in the property comprised in the deeds, — Ex parte Heathcoate, 2 M. D. &D. 711. Brewers agree to advance money to enable a publican to pay the consideration for the pur- chase of the lease of a public-house, on the understanding that as soon as the lease is exe- cuted it shall be delivered to, and deposited with the brewers, as a security for the advance. The lease is accordingly made to the publican as lessee, but on its execution is delivered by the lessor immediately to the brewer's agent, who advances the money ; a memorandum is at the same time signed by the publican, whereby he states the deposit to have been made by himself for the above purpose, and agrees to execute a legal mortgage, by way of underlease, when re- quired. The pubUcan turns out to have been, at the time, an uncertificated bankrupt. Held, the brewers had a good lien against the assignees. — Meux V. Smith ; Seager v. Smith, 2 M. D. & D. 789 ; 11 Sim. 410, S. C. The bankrupt being the lessee under a lease for forty-six years, subject to a former lease for twenty years, deposits it by way of equitable mortgage ; he afterwards purchases the remain- der of the term granted by the first lease, and deposits that lease also with the same party for securing a further sura. Held, that the first lease was not, imder these circumstances, merged in the second, and that the depositaries were good equitable mortgagees under both deposits. —Ex parte Whilbread, 2M. D. & D. 416. Where, in order to prevent immediate pro- ceedings against a debtor, the title deeds of an estate were deposited by him with his creditor's attorney, for the purpose of preparing a mortgage of the property; Held, that this transaction amounted to an equitable mortgage by deposit of title deeds. — Keys v. Williams, 3 Y. & C. 55. Where title deeds are left in the hands of an attorney, for the purpose of preparing a mortgage as a security for money previously advanced, this is an equitable mortgage by deposit of title deeds. — Id. A., entered into a guarantee for the payment of a debt due from the bankrupt to B., upon which occasion the bankrupt deposited with A., a lease, by way of equitable mortgage for his indemnity. B. proves for the whole amount of his debt ; and then A. applies, as equitable mort- gage, for the sale of the leasehold property. Held, that before any part of the proceeds of the sale could be appropriated, either in payment to B. or for the indemnity of A., so much of B.'s proof must be expunged. — Ex parte Shcrington v. Bond, 1 M. D. & D. 195. A lease, deposited by way of equitable mort- gage, contained a covenant on the part of the lessee, not to assign without licence. Held, that this was no objection to the usual order. — Ex parte Draie, 1 M. D. & D. 539. Where on the petition on an equitable mort- gagee, it appeared that the deposit was made on the 16th iVpril, and the docket was struck on 23rd, and there was no satisfactory evidence that it was not made in contemplation of bankruptcy ; the petition was dismissed with costs. — Ex parte Morgan re Leach, 1 M. D. & D. 116. Aji equitable mortgagee applying for the com- mon order, must bring before the court all the parties with whom the bankrupt has deposited deeds relating to the same property ; otherwise his petition will be dismissed mth costs. — Ex parte Bury, 1 M. D. & D. 191. The purchaser of an equity of redemption, in premises subject to a mortgage term, deposits the purchase deed as a security ; he afterwards pays off the mortgage and takes a surrender of the term, retaining the deed of surrender in his own possession, and becomes bankrupt. Held, that the lien created by the deposit extended to the whole estate, freed from the incumbrance. — Ex parte Bisdeere Baker, 1 M. D. & D. 333. Other deeds deposited at the same time, and forming part of the same security, related to an undivided share, belonging to the bankrupt, in other property. Between die times of the deposit and the bankruptcy, the entirety of a certain portion of the property, was conveyed to the banki-upt, in lieu of his imdivided share, he paying £100 for equality of partition. Held, that the lien affected the portion conveyed to the bankrupt, and that the assignees had no claim in respect of the £100. — U, Three partners, to secure a joint debt, deposited with their creditor the title deeds of an estate belonging to two of the partners. Q,uare : Whether the creditor can prove for the whole amount of his debt against the joint estate, with- out first realizing his security. — Ex parte Daven- port re Bxixton, 1 M. D. & D. 313. 330 Equitable Mortgagee. MORTGAGE. On Shares. XXIII., 2. For Future Advances. The expresssion " may advance" in a memo- raudum, does not e.tclusively confine the se- curity to future advances. — Ex parte Smith, 2 M. D. & D. 587. The title deeds of property, belonging to one of two partners in trade, are deposited with a banking firm, to secure the balance of the account current between the banking firm and the part- nership. On a particular advance being after- wards made by the former to the latter, the partner to whom the deeds belong writes a letter to the efiect that the object of the deposit is to secure that, as well "as anyfuture advances." An alteration takes place in the members of the banking firm, but the new firm retain the deeds, and continue to advance money to the partner- ship. Held, that the existing banking firm were entitled to the benefit of the security. — Ex parte Smith, 2 M. D. & D. 314. An agreement in writing, accompanying the deposit of title deeds, to secure a specific sum, may be extended as a security beyond that sum by a subsequent verbal agreement. — Ex parte Nettkship, 2 M. D & D. 124. A mortgagee, by demise, enters up judgment against the mortgagor on another debt, and dies ; his executors take from the mortgagor a memo- randum, empowering them to hold the title deeds of the mortgaged property, as a security for a part of the judgment debt, in addition to the original mortgage debt. Held, on the mortgagor becoming bankrupt, that the executors might, as against the second mortgagee, tack the whole of second judgment debt to the mortgage.— £a; parte Cox, 2 M. D. & D. 486. Deeds relating to a trust estate, are deposited for safe custody with a banking firm, a partner in which is e of the trustees. The firm maJtes advances to one of the cestui que trusts on a parol agreement for a lien on his share, The cestui que trust promises by letter, that, as soon as a parti- tion can be effected of the property, he will give the firm a security for the full amount of the account; and some time afterwards, the partition having taken place, he signs a memorandum, stating that he has deposited the deeds therein described, as a collateral security for any advance which the firm may make on his account, but the partition deed is not deposited. Held, that the firm were equitable mortgagees of the estates taken in partition, and that the security extended to past as well as future advances. — Ex parte Farley re New, 1 M. D. & D. 683. A testator was in the habit of selling lands to builders, and of advancing them money for the purpose of building on it ; and on the statement of an account between the parties, for the balance of unpaid purchase money and money lent, the builders, by a memorandum in writing, acknow- ledged that the balance agreed upon was in charge upon the land. The testator, by his will, autho- rised his executors to make such agreement with the purchasers of any part of his real estate, and to advance money to them for building, in the manner he himself had been accustomed to do. The executors accordingly, sold a portion of land for this purpose, leaving the purchase money to remain in charge upon the land ; and they also made advances to the purchaser, to enable him to build thereon; but without taking a memorandum in writing, expressly declaring that the advances were to be charged upon the land. The purchaser became a bankrupt. Held, that the executors had a lien on the land so sold for the advances made by them since the death of the testator. — Ex parte Linden re Baker, 1 M. D. & D. 428. XXIII., 3. On Fixtures, The bankrupt deposited with the petitioner as a security for a debt certain deeds of lease and release, by which a freehold house and certain household furniture therein were conveyed and assigned to the bankrupt. The memorandum of deposit was as follows : — " Herewith I hand you the title deeds of my Bognor estate, &c." Held, that these words had reference only to the house, and did not comprehend the furniture. — Ex parte Hunt re Amner, 1 M. D. & D. 139. An equitable mortgage of leasehold premises will carry all the fixtures, although created for the purpose of trade, and therefore removeables as between landlord and tenant, and although not specified in the lease deposited or memo- randum of deposit. — Ex parte Broadwood re M'Neil, 1 M. D. &D. 631. Qucere : Whether the ordinary fixtures of a dwelling house, namely, such as are removeable as between landlord and tenant, are to be con- sidered as goods and chattels within the meaning of the clause of reputed ownership, 6 Geo. 4, c. 16, s. 72, so as to pass to the assignees of the bankrupt tenant in preference to the lien of an equitable mortgagee, or to that of a vendor for his unpaid purchase money. — Ex parte King, re Walsh, 1 M. D. &D. 119. A. and B., carrying on the business of cotton spinners in co-partnership, erect various articles of machinery and other trade fixtm-es on the premises where the business is carried on, which are the exclusive freehold property of A. The fixtures are paid for out of the funds of the part- nership, and they are so attached to the building that they cannot be removed without damage to the walls and floors. A. executes a mortgage of the premises and all the fixtures " attached or belonging to the premises, or partaking of the nature of realty," A. and B. afterwards become bankrupt. Held, that these fixtures were not in the order and disposition of A. and B., and that the mortgagee was entitled to them. — Ex parte Scarth re Ashton, 1 M. D. & D. 240. XXIII., 4. On Shares. Mortgage of shares in a company by a director, with a stipulation that notice should not be given by the company, bad, within 6 Geo. 4, c. 16, s. 72. Ex parte Nutting, 2 M. D. & D. 302. Trustee having a partial beneficial interest in the trust property, may encumber his interests by a deposit of the title deeds.— £a; parte Smith, 2 M. D. & D. 587. Where a bankrupt had contracted to buy some shares in the United States' Bank, the certificates of which were left in the hands of the vendor, as a security for the payment of the greatest portion of the purchase money ; Held, that the vendor was entitled, as in the case of an equitable mort- gage, to an order for the sale of the shares,_in satisfaction of the unpaid purchase money, with liberty to prove for the difference. — Ex parte Sheppard, 2 M. D. & D. 431. A railway act prescribes a form of instrument for the transfer of shares, and provides that a memorial of the transfer shall be entered in the company's books, and that until such memorial shall be .made, the purchaser shall have no share in the undertaking. A shareholder in the railway Equitable Mortgagee. MOKTGAGE. Sub-Mortgagee. 331 borrows money on a deposit of the certificates of his shares, with an assignment executed by him, but with the name of the transferee left in blank, and the blanks are not filled up before the share- holder becomes bankrupt. Held, that the depo- sitary had a lien on the shares, and that the lien extended to sums paid by him in respect of calls. —Ex parte Dobson, 2 M. D. & D. 658. A shareholder in a company, the settlement deed of which prescribes a specified mode for the transfer of shares, and excludes from being share- holders all who are not shij^ers of goods, deposits the certificates of his shares, by way of mortgage, with a person not of the prescribed description, and without following the prescribed mode of alien- ating. Held, that that deposit created a valid lien, as against his assignees, on his becoming bankrupt. Semble : That the reputed ownership of shares must be proved to have existed, and is not con- clusively to be inferred from the absence of notice of a lien upon them. — Ex parte Cooley, 2 M. D. & D. 505. XXIII., 5. Memorandum of. Where, in June, 1 837, the bankrupt verbally deposited a bundle of deeds with the petitioner, to secure a debt, which the petitioner believed were all the deeds relating to the property in question, and, in August, 1843, only two days before the issuing of the fiat, the bankrupt depo- sited two other material deeds relating to the property, and there was no affidavit on the part of the assignees or the bankrupt, impeaching the validity of the latter deposit, the court would not impute it to the character of a fraudulent prefer- ence, and made the common order, as in the case of a verbal deposit. The last deposit was accom- panied with the following memorandum : — " The deeds are placed in the hands of F. G." Held, that this did not entitle the petitioner to an order, as on a deposit accompanied with a memorandum in vn-iting. — Ex parte Gillett, 3 M. D. & D. 468. Where a written memorandum does not specify the purpose for which deeds are deposited, the party will only be entitled to an order, as on a deposit without any memorandum in writing. — Ex parte Smith, re Heatley, 1 M. D. & D. 165. XXm., 6. Banker's Lien. A bankrupt, being entitled to one- third part of freehold property in his own right, and to another third as heir-at-law to his brother, deposits the title-deeds of the property with his bankers, to secure advances. The personal property of the brother, who was a trader, subject to the bankrupt law, was insufiicient to discharge his debts, and therefore, the third of this property was, under the U Geo. i, and 1 Will. 4, c. 47, s. 9, assets for the payment of his debt. Held, nevertheless, that the lien of the bankers extended to the two- thirds of the estate, in preference to any claims of the brother's creditors. — Ex parte Baine, re Boden, 1 M. D. & D. 492. XXIII., 7. In Case of FeUmy. The title deeds of a leasehold estate were deposited with bankers, by way of equitable mortgage, for securing the balance of a running account, The party making the deposit was subsequently convicted of felony. A bill was filed by the bankers, claiming to be equitable mortgagees, by virtue of the deposit, against the Attorney General, for a sale of the property. Held, that the court had no jurisdiction, the legal estate being in the crown, to decree a sale of the estate, nor any power to compel a convey- ance by the crown of the legal estate, but only to declare the plaintif&, as equitable mortgagees, entitled to hold possession of the property until the crown should think fit to redeem. — Hodge v. The Attorney General, 3 Y. & C. 342. XXIII., 8. Liability of Equitable Mortgagee. An equitable mortgagee, by deposit of a lease, is not compellable in equity, at the suit of the lessor, to take a legal assignment of the lease, although he may have entered into possession of the premises, and paid the rent, nor, Semble, is he liable to the lessor upon the covenants, there being no privity between him and the lessor, until he has made himself legal assignee. Lucas V. Comerford (3 B. C. C. 166) overruled. — Moore V. Greg, 2 Phil. 717. If a deposit of a lease is made, by way of equitable mortgage, and the depositary is not in possession of the premises, he is not liable for the rents and covenants. — Moores v. Choat, 8 Sim, 508. XXm., 9. Sub-Mortgagee. A mortgagee of a policy of assurance, creates an equitable sub-mortgage of it by deposit, and becomes bankrupt. No notice of the original mortgage is given to the office, nor is any notice of the sub-mortgage given, either to the office or to the mortgagor. Held, that the sub-mortgage was invalid, as against the assignees. — Ex parte Wood, 3 M. D. &. D. 315. To create an equitable sub-mortgage, by re- deposit of deeds originally deposited by way of mortgage, it is not necessary that the written memorandum accompanying the first transaction should be deposited upon the second. — Ex parte Smith, 2 M. D. & D. 587. 332 NEXT OF KIN. JfE EXEAT REGNO. See Pk. Writ, NEGLIGENCE. Negligence, as applied to cases of constructive notice, supposes the disregard of a fact known to the purchaser, which indicates the existence of the fact, the knowledge of which the court im- putes to him ; and such negligence may, without fraudulent motive, be so gross as to justify the charge of constructive notice. — Semble.—Wcst V. Reid, 2 Hare, 249. NEW TRIAL. SeePn. Issue. NEXT FRIEND. See Infant — ^Hdsbanti and Wife. — Married Women, NEXT OF KIN. By the settlement oii the marriage of E. M., the ultimate limitation of a sum of £10,000, which her father thereby covenanted to pay, was " to such person or persons as at the time of his death should be her next of kin." E. M. died, leaving her husband, and a child of the marriage, and her own father and mother surviving. Held, (affirming a decree of the Master of the Rollsi that the father, mother, and child of E. M. were equally her next of kin, and were entitled under the limitation to the £10,000 in joint tenancy. — Witky V. Mangles, 10 Clk. & Fin. 215. Under a gift of residue to the testator's wife for life, to her separate use, with an absolute power of appointing the principal by deed or will, and a gift, in default of such appointment to her next of kin, as in case of intestacy. Held, that the gift of the principal had not lapsed by the death of the wife in the testator's lifetime, but that the next of kin according to the statute, were entitled to the benefit of it. — Edwards v. Saloway, 2 Phil. 625. If the sentence of an ecclesiastical court in a suit for administration turns upon the question of which of the prrties is next of kin to the intes- tate, such sentence is conclusive upon that question in a subsequent suit in this court, be- tween the same parties for distribution. — Barrs v. Jackson, 1 Phil. 582. In a marriage settlement, the ultimate limita- tion of a fund provided by the husband, was " for his next of kin, or personal representatives in a due course of administration, according to the Statute of Distributions." There was a similar limitation mutatis mutandis, of the fund provided by the wife. The court, rejecting the claims of the husband and executors and of his residuary legatee, and excluding his widow, Held, that the next of kin were entitled to the fund provided by the husband. — Kilner v. Leech, 10 Beav. 362. Upon an ultimate limitation to a testator's next of kin ; Held, that the next of kin at the testator's death, and not those at the time when such ultimate limitation took effect, were entitled. — Seifferth y. Badham, 9 Beav. 370. Where after specific limitatIons,-a testator gives his property to his next of kin, much weight is not to be attached to that, which is supposed to be the testator's intention in favour of, or against particular persons as his next of kin ; for infi- nite variations may take place in that class between his will and his death. It is pro- bable, that a testator in such cases means to provide for particular persons, and then adds, that if they fail, then the law may take its course. — Id. A testator gave his residuary estate to his daughter for life, with remainder to her children, and in default, to his next of kin. Held, that the class of next of kin was to be ascertained at the testator's death. — Lasbury v. Newport, 9 Beav 376. A testator directed that upon the death, with- out leaving issue, of liis daughter, who was his sole next of kin, a certain fund should be as- signed to the nearest of kin of his own family for ever. Held, upon the construction of the will, that these words meant to describe some person or persons to be ascertained at the daughter's death, and not the person or persons who should be his own next of kin at the time of his own ieaX'h..— Clapton v. Bulmer, 5 Myl. & Cr. 108. The master was directed to inquire who were the nearest in blood of a testator, ex parte paterna, at a certain period. Held, that " the nearest of blood," and " next of kin," were synonymous terms, and the suit related to personal estate, that the master ought to follow the civil, and not the canon law mode of computation on prose- outing the inquiry. — Cooper v. Venison, 13 Sim. 290. Testator bequeathed his residue to his wife, for life, remainder to his daughter absolutely, but if his wife survived his daughter, then at his wife's death, one-third of the capital was to go according to her will, and the other two-thirds were to go and be paid "to my other the next of kin of my paternal line." The daughter was the testator's sole next of kin at his death, exclusive of her, the testator's brothers were his next of kin at the same time. At the death of the widow (who sui-vived the daughter) the daughter's children were the testator's next of kin according to the statute, but they and the testator's brothers were his nearest of kin, all of them being his relations in the second degree. Held, that the brothers, as well as the children, were entitled to the two-thirds of the residue. — Id. The ultimate trust, in a marriage settlement, of a fund belonging to the wife was to her exe- cutors or administrators. Held : — First, that the surviving husband, who was her administrator, and not her next of kin, was entitled j and secondly, that if, by those words, her next of] in were intended, then that the next of kin at the death of the wife, and not of the husband (who was tenant for life) were entitled. — Allen v. Thorpe, 7 Beav. 72. By a marriage settlement a fund was settled on the wife, if she should survive her husband, for her life ; remainder to the children who, being sons, should attain twenty-one, or being daughters, should attain that age, or marry ; and the trustees were directed to apply a portion of the children's expectant shares for their main- tenance, and to accumulate the surplus for the benefit of such person or persons as should be entitled thereto by virtue of the settlement ; pro- vided that if no son should attain twenty-one, nor any daughter should attain that age, or NEXT OF KIN. 333 marry, then the fund should be in trust for such person or persons as the husband should, by deed or will,,appoint, and in default of appointment, in trust for his next of kin according to the Statute of Distributions, and as if he had died intestate. There was issue of the marriage, one son only. The husband died first, without having exercised the power reserved to him, then the son died under twenty-one, and lastly, the wife died. Held, that the fund vested in the son, as his father's next of kin, at the father's death, and not in the persons who were the father's next of kin at the son's death. — Smith v. Smith, 12 Sim. 317. The testatrix devised and bequeathed the rents, issues, and profits of her real and personal estate to her sister for life, and upon and after her de- cease, upon trust, to sell the real estate, and pay the money arising therefrom to such persons as the testator should, by any codicil, idirect ; and if she should not bequeath the same by any codicil, then to pay the same unto and amongst her next of kin ; and, by her codicil, the testatrix revoked the former devise and bequest made by her will, and devised and bequeathed all the said real and personal estate to other trustees, upon the like trusts,but directed that all "the said residue" should be paid to her next of kin on the part of her mother, and not to any of her next of kin on the part of her father. Held, that the testatrix died intestate, as to the residuary personal estate. — Say v. Creed, 5 Hare, 580. That the next of kin of the testatrix, ex parte matema, at the death of the tenant for life, were under the codicil, entitled to the proceeds of the real estate. — Id. By a marriage settlement, trusts were declared of a sum of money, the wife's property, for her * separate use for life, for her husband for life, for their children, as the wife should by deed or will appoint, in default of appointment for the children equally ; if there should be no child, then for such persons as the wife should appoint by deed or will, and in default thereof, for the executors or administrators of the vrife. The ultimate trust took effect. Held, that by the executors or administrators of the wife, her next of kin at her death were meant, there being throughout the settlement an evident intention to exclude the husband from taking more than a life interest. — Daniel v. Dudley, 11 Sim. 163. On the marriage of a female ward, her fortune, consisting of choses in action, was settled with the sanction of the court, in trust, for her hus- band and herself, for their lives, with remainder for their children, with remainder for her abso- lutely, if she survived her husband, but if not, then as she should appoint by will, with re- mainder for her next of kin. Some years after- wards, the marriage, of which there was no issue, was dissolved by Act of Parliament, after which the husband released aU his right and interest imder the settlement, to the wife. Held, that the settlement was not binding on the wife, and that she was at liberty to re-settle her property on her second marriage. — Hastings v. Orde, 1 1 Sim. 205. In a marriage settlement, the ultimate limita- tion of a fund was to such persons "as would, at the decease of the husband, be entitled to his personal estate, as his next of kin, according to the statute for the distribution of personal estate of persons dying intestate, if the husband had died intestate without having been married to A.," his wife. The wife died, and the husband married again, and died. Held, that his widow took nothing under this limitation. — Cholmondeley V. Lord Ashburton, 6 Beav. 86. Gift of personalty to A. for life, and afterwards to his children, and, in default, to the heirs of B. Held, that the next of kin were entitled under the ultimate limitation. — Evans v. Salt, 6 Beav. 266. Bill by parties claiming as next of kin, against executors. Report, that other persons, not parties, were the sole next of kin. Exceptions by the plaintiff to the report. Objection, that the plaintiff, before the exceptions were argued, must make parties the persons found next of kin by the master, overruled. — Topham v. Lightbody, 4 JHare, 312. Testator bequeathed his residue to trustees, in trust to pay an annuity to his wife, and subject thereto in trust, for his daughter for life, and after her death in trust for her children. Pro- vided, that if his daughter should die without leaving any issue, then the trustees should pay £3,000 as she should appoint ; and if his wife should survive his daughter and his daughter should die without issue, then that the trustees should pay £2,000 to his wife, and assign the re- sidue of the trust monies, unto the nearest of kin of his own family, for ever. The daughter survived the wife and died without leaving issue. Held, that the next of kin of the daughter were entitled to the fund. — Clapton v. Bulmer, 10 Sim. 426. A testatrix devised a real estate and afterwards sold it ; the purchase was not completed until after her death. Held, that the purchase money belonged to the personal representatives, and not to the devisees of the testatrix, notwithstanding her lien on the estate for the purchase money, and notwithstanding the 1 Vict. c. 26, s. 23, which directs, " that no conveyance or other act made or done subsequently to the execution of a will, of or relating to any real or personal estate thciein comprised, except an act by which such wUl shall be revoked as aforesaid, shall prevent the opera- tion of the will, with respect to such estate or interest in such real or personal estate, as the testator shall have the power to dispose of by will, at the time of his death. — Farrer v. Earl of Winterton, 5, Beav. 1. Where there is no gift of the undisposed of re- sidue, a testator cannot, by negative words, exclude one of his next of kin from participating in it.— Johnson v. Johnson, 4 Beav. 318. A testator, by his will, cut off his widow from any part of his property, and directed she should not receive any benefit therefrom ; but he made no disposition of his property. Held, that she was nevertheless entitled to her share of the un- disposed of residue. — Id. By a settlement, made on the marriage of E. M., the ultimate limitation of personal property was, " to such person or persons as at the time of the death of E. M., should be next of kin." E. M. died, leaving a father, mother, and child. Held, that under this limitation, the father, mother, and child, took as her next of kin in joint tenancy. — Withy v. Mangles, 4 Beav. 358. Though the distribution of an intestate's estate, under a decree of court, among persons found to be the next of kin, does not conclude the rights of persons who may have an equal or paramount title, yet. the court will not assist other next of kin, who, with full notice of the proceedings in the suit wherein the fund was distributed, have neglected to prosecute their claims. — Sawyer v. Birchmore, 1 Keen, 391. 334 Effect of. NOTICE. Want of. On appeal, an inquiry in the particular case, •was directed — Whether the plaintiiFs were in fact, as they claimed to be, some of the kin ; and if so, whether they had notice. — Id. 824. NOTICE. I. — Effect of 334 II.— Want of 334 III. — Constructive 335 IV. — To Solicitor, Notice to Client .... 336 V. — Reoisteked Deed, How Appecied by 336 VI. — What Notice sufficient 336 VII. — PCROHASBS WITH 336 I. — Effect of. A purchaser of a perpetual rent-charge had notice of a deed, making his vendor tenant for life of the lands on which the rent was charged, and of the subsequent deed whereby the vendor, suggesting that he was seised in fee of the lands, purported to convey them in fee, in consideration of the perpetual rent-charge. Held, that he was bound to inquire into, and had notice of the cir- cumstances under which the latter deed was executed. — Roddy v. Williams, 3 Jon. & L. 1. A railway company being empowered by their act, to take, amongst other lands, a close belong- ing to the plaintiff, gave him notice of their intention to take a certain part of it ; and more than a year afterwards, they gave him notice of their intention to take the remainder. The part first taken was intended for making the railway, and the remainder for making a station, both of which their act empowered them to make. Held, that the power of the company with respect to the plaintiff's close, was not exhausted by their first notice. — Simpson v. The Lancaster and Carlisle Railway Company, 15 Sim. 580. By a marriage settlement a rent charge was granted to trustees and their heirs upon trusts, for the husband and the issue of the marriage, and the lands were granted to other trustees for a term of years, upon trust, to secure the rent charge, bne of the trustees of the rent charge admitted, that before the execution of the settle- ment, he had notice of a prior incumbrance on the lands, and one of the trustees of the term denied that he had such notice. No evidence of notice was given. Held, that notice to the trustee of the rent charge was sufficient, but there being no issue of the marriage in esse, the court would not declare that their interests were bound by the prior incumbrance, but declared that the trustee had notice of it. — Wise v. Wise, 2 Jon. & L. 403. A party claiming a title under a lease or any instrument is presumed to know the title under which he takes, and the circumstances connected with it unless he can shew the contrary. — Butler V. The Earl of PoHarlington, 1 Dru. & W. 20. A feme covert or infant is just as much bound by notice as an adult. — Jones v. Kearney, 1 Dru. & W. 134. A general recital in a deed that there were mortgages on the estate. Held, to affect parties claiming under the deed with notice of a mort- gage not specified therein. — Farrow v. Rees, 4 Beav. 18. The testator having charged his real estate with his debts and legacies, devised it to his eldest son A. B. in fee, and appointed him ex- ecutor; A. B. mortgaged the estate and cove- nanted against all incumbrancers, except the legacies. Held, first, that the mortgagee took for his security the estate, minus the amount of legacies j and secondly, that the unpaid debtors of the testator were entitled to the fund reserved in the mortgage deed for legacies in priority of the legatees. — Bland v. Eland, 1 Beav. 235. A, B. the executor, and also devisee of real estate, subject to debts and legacies, mortgaged it first to C. D. subject to the legacies, and after- wards to E. F. subject to the mortgage of C. D. Held, that E. P., taking with notice of C. D's. mortgage, took subject to the legacies. — Eland v. Eland, 1 Beav. 235. A mortgagee of lands in Middlesex, who took under the exercise of a general power of appoint- ment by the mortgagor, Held, not to be bound by a judgment previously recovered against the mortgagor, and duly docketed and registered, although he had notice of the judgment and part of the mortgage money was deposited with his solicitor as an indemnity against it. —Skeeles v. Shearly, 8 Sim. 153. II. — Want of. A party interested in the subject matter of a private Act of Parliament, will have his rights affected by its provisions, though it may have been introduced and passed without notice duly given to him. — Edinburgh Railway Co.v. Wauchope 8 Clk. & Fin. 710. Upon an assignment of an outstanding mortgage term, in consideration of a further advance, the assignee was informed that a settlement had been made upon the marriage of the mortg.agor, but was assured by him and his wife, that it related only to the fortune of the wife, and did not include the mortgaged estate, although, in fact, it did. Upon a bill filed by the eldest son of the maniage, who was tenant in tail under the settlement : Held, that the assignee of the term was not affected with notice of the settlement, it appearing from the plaintiffs own evidence, that the assignee had really believed the representation so made to him to be true. — Jones v. Smith, 1 Phil. 244. On a question of priority of incumbrances on shares, notice to one of a joint stock company is not notice to the company. — Martin v. Sedgwick, 9 Beav. 333. A. held shares as trustee, and executed a decla- ration of trust, but no notice was given at the office of the company. A. afterwards mortgaged his shares to secure his private debt ; noticeof tliis mortgage was given to the company, and was entered in their books. Held, that the mortgagee had priority over the cestui que trust. — Id. A sale took place under a decree ; the abstract stated that the person at whose death the sale was to be made, proved the will of the testator, but it did not state the pleadings in the cause, or whether that person was living or dead. Held, that this was not a sufficient distinct intimation to the purchaser ; that the time of sale had, without any sufficient ground, been anticipated. — Blacklota V. Laws, 2 Hare, 40. A., one of several executors, who alone acted, took an assignment of his son's interest in the residuary estate of the testator, as a security for advances made by A. to his son, without giving notice of the assignment to his co-executors. After the death of A., and the institution of a suit by a surviving executor, for the administra- Constructive. NOTICE. Constructive. 335 tion of the testator's estate, the son assigned the same interest, without notice of the prior assign- ment, for valuable consideration, to B., who gave notice of his assignment to the surviving executor. Held, that the knowledge which one of several executors has of an assignment made to himself by a legatee, is not sufficient to prevail against a subsequent assignee of the same interest, who gives notice to a surviving executor, and that the assignment of B. was, consequently, entitled to priority. — Timson v. Ramsbottom, 2 Keen, 35. A. by deed assigned certain sums, represented by a fund in court, to B., in trust, to apply the same in payment and discharge of money then due from A. to B., and in further payment of all and every the sums of money which B. might advance to A., and subject thereto in trust for A. A. died, indebted to B. in the sum of £3,000, due at the date of the assignment, and also largely indebted to the crown ; A. was further indebted to a banking firm, of which B. was a partner, in a sum which was treated by the partnership as a bad debt, and in respect of which, B.'s share of the loss amounted to £3,914, and a further sum of £2,313 was paid, after the death of B., by his executor, to the crown, upon process being issued against the estate of B., who had been a surety to the crown for A, The crown claimed priority as to the whole fund in court, insisting that the property comprised in the deed consisted of choses ■in action, and that no notice had been given to the trustees of the fund. Held, that the estate of B. was entitled to the benefit of the deed, in respect of the sum due at the date of it, and the sum paid by A.'s executor, but not to the sum representing B.'s share of the loss in the partner- ship transaction. — Foster v. Margreavea, 1 Keen, 283. III. — Constructive. Where notice to a party was required in certain proceedings under a railway act, the want of notice was Held to be waived, by the fact that the party to whom it ought to have been given appeared, and made no protest on account of the want of it. — Taylor v. Clemson, 11 Clk. & Fin. 610. A. mortgaged copyholds to B., by a deposit of a copy of his admission. A. died, and his heir mortgaged them to C, by a deposit of a copy of his own admission. C. afterwards sold and con- veyed the estate to D. ; D. had notice of B.'s security. Held, that it was unnecessary to de- termine whether C. took vrith notice of B.'s incumbrance, as by the deposit he could take only such interest as the heir could give ; namely, — his interest, subject to the equitable charge of the ancestor ; and, secondly, fliat the conveyance to D. was void as against B. — Tyler v. Webh, 6 Beav. 552. In 1829, A. was admitted to a copyhold, and in 1832, he deposited the copy of his admission with B. as a security. In 1837, A.'s heir, after ad- mission, attempted to sell the property without effect; C. acted therein as his attorney, and D. as the clerk of C. On the 20th July, 1837, A.'s heir mortgaged the property to C, by deposit of his own admission. In this transaction, D. acted as the agent and clerk of C, and as the agent of the heir. It appeared that in November, 1835, D. had notice of B.'s incumbrance,, and that on the 19th July, 1837, D. knew that the produce of the sale was to be applied in discharge of B.'s demand. Held, that the knowledge which D. possessed in November, 1835, could not be imputed to C. in 1837 ! secondly, that D.'s knowledge in July, 1837, that the proceeds of the sale wore to be ap- plied in discharge of B.'s demand, did not clearly shew that even he at that time recollected, or knew that which he had known in November, 1835; and, thirdly, Semble: that C, who knew that the party from whom he took it had been admitted only as heir, and that the ancestor had been admitted under copy of court roll, dated in 1829, must be deemed that the ancestor, having the copy of court roll, might have created an equitable mortgage by deposit, and, consequently, that C. ought to have required its production before he advanced his money. — Id. Upon a question whether one partner had notice of the irregular course of dealing of his co-partner, to the prejudice of their customer, the court was of opinion that he ought to be deemed to have known the facts, it appearing, from the evidence, that if he had used ordinary diligence and attention in the management of the business, he might and must have discovered all the material facts ; that the means of knowledge were within his power ; that he would, with very little trouble, have found confusion and irregu- larity in the accounts, a proper investigation of the sources of which would have led to discovery of all that had been done. Held also, that, under such circumstances, the court, for the protection of those who deal with partnerships, must impute the knowledge which the partners acting for their interests, and in discharge of their plain duty, might and ought to have obtained. — Sadler v. Lee, 6 Beav. 324. After the commencement of a treaty for the sale of an estate by A., and the purchase of it by B., A. agreed to give C. a mortgage on the estate, as a security for an antecedent debt, and notice of the agreement was given to the solicitor of B. The treaty for the sale afterwards ceased to be prosecuted for upwards of five years, during part of which time the suit of an adverse claimant of the estate was pending. A. then died, and B. then purchased the estate at a lower price from the thenheirand devisee of A. B. conveyed the estate in mortgage to D. The same solicitors were con- cerned for B. from the commencement of the treaty with A. until the final purchase of the es- tate, and for D. in the business of the mortgage. Held, under the circumstances of the case, that B. and D. had, through their solicitor's, con- structive notice of the agreement with C, and that the estate in their hands was subject to the lien of C. for the amount agreed to be secured by the proposed mortgage. — Guller v. Bennett, 2 Hare, 394. Constructive knowledge imputed to the plain- tiSs, by the court, of an infringement of their copyright by the defendants. — Lewis v. Chapman, 3 Beav. 133. A party, before advancing money on a mort- gage, inquired of the mortgagor and his wife whether any settlement had been made upon their marriage, and was informed that a settle- ment had been made of the wife's fortune only, and that it did not include the husband's estate, which was proposed as a security, and he after- wards advanced the mortgage money, without having seen the settlement or known its contents. Held, that the mortgagee was not, under the circumstances, affected with constructive notice of the contents of the settlement, or of the fact 336 Notice to Client. NOTICE. Purchaser with. that the settlement comprised the husband's es- tate. — Jones V. Smith, 1 Hare, 43. Negligence may be evidence of, but is not in law the same thing as malaJides.^-.-Id. The doctrine of constructive notice applies in two oases ; first, where the party charged has notice that the property in dispute is encumbered or in any way affected, in which case he is deemed to have notice of the facts and instru- ments, to a knowledge whereof he would have been led by due enquiries after the fact which he actually knew, and not, secondly, where the con- duct of the party charged evinces that he had a suspicion of the truth, and wilfully or fraudu- lently determined to avoid receiving actual notice of it.— /rf. IV. — ^To Solicitor, Notice to Client. The rule which affects a party with notice, where his solicitor has had notice in the same transaction, or so recently that it is impossible to suppose that he could have forgotten it, is in itself sound, but should not be carried too far. — Gerrard v. O'ReiUij, 3 Dru. & W. 414. Where one transaction is closely followed by and connected with another, or where it is clear that a previous transaction was present to the mind of a solicitor when engaged in another transaction, there is no ground for the distinction, by which the rule that notice to the solicitor is notice to the client, has been restricted to the same transaction. — Haryreavea v. Rothwell, I Keen, 154. V. — Registered Deed, How Appected by. W. B., having, as land and law agent of F. H., negociated and been party to a deed of separation and maintenance between F. H. and his wife M. H., in the year 1821, and having by fraud prevented the registry of that deed of main- tenance, was four years afterwards employed throughout the negociation of a loan of money, which was advanced on a registered mortgage of the estates comprised in the deed of maintenance, as solicitor, both for F. H. and X. Y., the person advancing the money. In a contest for priority between the unregistered deed of maintenance and the registered mortgage : Held, that inas- much as the knowledge acquired in the trans- action of the deed of maintenance, was clearly brought home to W. B., and its continuance as clearly proved as to make it fraudultJnt on his part to conceal it when acting in the mortgage transaction ; such fraud on the part of W. B., the agent, was visitable on X. Y., his principal : Held, also, that X. Y. should be treated as a person who, through his agent, had actual notice of the deed of maintenance, and that consequently X. Y.'s registered deed should be postponed to M. H.'s unregistered deed. — Nixon y. Hamilton, 2 Dru. & Wal. 364. VI. — What Notice Sufficient. An order of the court of which the party af- fected by it has notice, though not formally served upon him, is not to be disregarded or treated by him as a nullity, however certain it may be that the order is erroneous and would upon a proper application for that purpose be discharged. — Chuck V. Cramer, 2 Phil. 113. . It is not necessary to give notice of an equitable incumbrance to more than one of several trustees of the property, so long as the circumstances of the case remain unaltered by the death of that trustee, or his ceasing to continue such trustee, or otherwise. — Meux v. Bell, 1 Hare, 73. On the question of notice where there is actual knowledge, the court will not distinguish between knowledge acquired in one character and that obtained in another. — Id. Notice of an equitable assignment to the trustee of one of several trustees of the property is ne- cessary in order to perfect the assignment and to acquire and maintain priority. — Id. VII. — Purchaser With. Semble: If a vendor who has a right upon equitable grounds to impeach a sale, not only neglects to do so, but by the subsequent execution of other deeds, adopts the sale and acts upon it as binding, he cannot afterwards impeach the title of equitable mortgagees who subsequently advanced their money, bona fide, and without notice to the purchaser, — Nagle v. Baylor, 3 Dru. & W. 60. The purchaser of a charity lease takes with notice of the facts appearing thereon, shewing its equitable invalidity. — The Alt. Gen. v. Pargeler, 6 Beav. 150. The order for the appointment of a receiver on the petition of a judgment creditor is not a lis pendens, so as to affect a purchaser with notice of the judgment. — Tenison v. Sweeny, 1 Jon. & L. 710. A testator bequeathed certain leaseholds to trustees, upon trust, out of the yearly rents and profits, to pay an annuity of £300 to his wife for her life, and subject thereto, to apply cer- tain sums for the maintenance of his grandson, A. T., until he attained the age of twenty-one, and then to permit his grandson, A. T., to take the profits thereof for and during his life ; and from and after his decease to permit the person, who for the time being, would take by descent, as heir male of the body of the said A. T. his grandson, to take the profits thereof, until some such person should attain the age of twenty-one years, and then to convey the same to such person so attaining the age of twenty-one years ; but if no such persen should live to attain the age of twenty-one years, then to permit such persons successively, who, for the time being, would take by descent as heirs male of the body of B., the testator's son, to receive the rents, until some such person should attain the age of twenty-one years, and then to convey the same to svich heir male first attaining that age, his executors, &c., and by the will, a limited leasing power over those leaseholds, was given to the trustees, until some person should be entitled to an assignment of them. The testator appointed the trustees to be executors of his will, and gave to one of them, E. K., whom he directed should act as agent to the trust estate, an annuity of £100 per annum. B., the testator's son, died in his lifetime, and at the death of the testator, in 1771, A. T., his grandson, and the testator's two daughters were his sole next of kin ; A. T. after he attained his age, continued to employ E. K. as his agent, and in 1794, he granted to him a lease of part of the trust estate not according to the condition of the leasing power, and this lease was expressed to be made partly in oonsideratlon of NUISANCE.— NUN. 337 the rent and covenants, and partly of the services rendered by the lessee, E. IC. In 1800, six years after the date of the lease, it was assigned to K. W., under whom the plaintiff claimed in con- sideration of a sum of £2,900. Held, that there ■was sufficient on the face of the lease itself to put the purchaser on enquiry as to the nature of the transaction between his vendor and the lessor, and that therefore, he must be treated as . the lessor himself. — Ker v. Lord Dungannon, 1 Dru. & W. 609. The owner of a piece of land divided it into lots, for building a row of houses, and a deed was made between him of the one part, and X. and Y. (who had purchased some of the lots from him) and the several persons who should at any time execute the deed, of the other part; by which, after reciting that A. had determined and proposed, and thereby expressly declared, that it should be a general and indispensable condition of the sale of all or any of the lots, that the pro- prietors thereof, for the time being, should observe and abide by the several stipulations and restrictions thereinafter contained, it was mu- tually covenanted between A., X., and Y., and the several other persons who should at any time execute the deed, and each of them. A., X., and Y., and the several persons, &o., for himself, his heirs, executors, and administrators, thereby cove- nanted with all and every the other and others of them, and with the heirs, executors, administra- tors, or assigns of all and every the other and others of them, mutually and reciprocally, that none of the proprietors of any of the lots, for the time being, should at any time carry on thereon the business of an innkeeper. A. sold and conveyed one of the lots to B., and another to C, both of whom executed the deed of cove- nant. The plaintiff afterwards purchased B.'s lot, and the defendant purchased C.'s lot, with notice of the deed of covenant. The defendant intending to use the house on his lot as a family hotel, an injunction was granted to restrain him from so doing. — Whatman v. Gibson, 9 Sim. 196. A purchaser may have been presumed to have investigated every instrument, which directly or inferentially forms a link in the title to the pro- perty, but not instruments which are neither directly nor presumptively connected with it, and may only by pussibility affect it — Semble. — West V. Reid, 2 Hare, 249. NUISANCE. A party may so encourage another in the execution of a nuisance, as to give the adverse party an equity to restrain him from recovering damages at law for such nuisance, when com- pleted. In a bill filed for that purpose, a general allegation that the defendant encouraged the erection of the nuisance while it was in progress, is sufficient to let in evidence of such particular acts of encouragement, as will sustain the equity, and consequently, is sufficient to prevent a de- murrer. What degree of encouragement, or what circumstance leading to encouragement would be sufficient for that purpose — Quoae. — Williams v. Earl of Jersey, 1 Cr. & Ph. 91. A bill was filed by five several occupiers of houses in a town, to restrain the erection of a steam engine, which would be a nuisance to each of them. Held, that such occupier had a distinct right of such, and therefore that they could not sue as co-plaintiffs.— fl«&o« v. Maddison, 12 Sim. 416. Where certain individuals suffer an injury from a public nuisance, quite distinct from that done to the public at large, the court will entertain a bill filed by those individuals to be relieved against the nuisance. — Spencer v. London and Birmingham Railway Company, 8 Sim. 193. Where a-a individual sustains special damage from a nuisance, he may file a bill to restrain it, without making the Attorney General a party. — Sampson v. Smith, 8 Sim. 272. NXTN. Qumre, Whether an assignment of property by a Nun is valid. — Fulham v. McCarthy, 1 Clk. & Fin., N. S. 703. OFFICER. OBJECTION FOR WANT OF PARTIES. See Pl. Parties. OFFICE. See Pb. Officers of Court. OFFICER, PUBLIC. An appointment to an office for the life of the appointee, is not invalid upon the sole ground that the person making the appointment only holds his own office for life, — Earl of Rosslyn v. Ayioun, 11 Clk. & Fin. 742. •' . ' The holder of an office enjoyed the right of appointing a sub-officer ; the 57 Geo. 3, c. 64, passed to regulate this and other offices, enacted that " upon the termination, respectively, of the present existing interests in the undermentioned offices," mentioning the office and sub-office, " and so soon as the said offices shall become vacant," the regulation of them shall be vested in the hands of the treasury. After the passing of the act the sub-officer died, and the officL-r appointed another person, and died. Held, th; t on his death, the sub-office became vacant ; for the words " existing interests " in the statute, did not mean the right of the holder of one office to appoint to another. — Id. The office of chamberlain and collector of revenues payable to the crown out of Ettrirk Forest, was granted by Geo. 4 to Lord D. for his life, with a yearly salary, " as well in considera- tion of the office, as out of royal bounty and favour,'- to be paid out of the monies of the col- lection, and if they should be insufficient, out of Z 338 OFFICER.— ORDER AND DISPOSITION. the crown revenues of other lands in Scotland ; the salary exceeded the monies collected, and wa-i paid out of them and the other crown revenues, for several years after the demise of Geo. 4. Held, that the grant, under disguise of a grant of an office, was, in reality, a grant of a pension, to endure beyond the life of the royal grantor, and was, so far, an illegal alienation of the ciown property. — The Lord Advocate v. Lord Dunglas, 9 Clk. &Fin. 173. The Convention of the Royal Burghs of Scotland exists under the authority of an act passed in the reign of James III. (a.d. 1487). It consists of commissioners or delegates from the royal burghs, meets annually, declares the amount of money required for certain purposes, to be raised by the various burghs, holds its sittings for two or three days, provides, by annual votes, for its e-xpenses, and is then dissolved. Two persons were appointed conjunct clerks of this convention, and their appointments were declared to be " with benefit of survivorship," and " with survivancy to the longest liver of them," and the office was given to them " as freely and fully as any of their predecessors had held it," and the emoluments were declared to belong to one of them "during his natural life," the other was to have the benefit of survivorship. The Convention in one year raised the salary of its clerks, in another, it lowered that salary below its original amount, and it also increased their duties. There were instances of express appointment " durins; pleasure," and of dismissals. Held, by Lords Brougham and Cottenham (Lord Campbell dis- senting) : — First, That this was not a life office ; that the expressions in the appointment were explained by the circumstances under which it was made ; and, secondly. That the salary might be raised or lowered at the pleasure of the Con- vention. Per Lord Campbell : — The Convention of the Royal Burghs is a corporation : on the facts of this case, and the terms of the appointment, the office is granted for life, and the Convention cannot reduce the salary below its ancient and original amount ; but the convention can reduce it to that amount, and may perhaps cast neiv duties on the officers. — The Convention of Royal Burghs of Scotland v. Cuningham and Bell, 9 Clk. & Fin. 144. Semble : That the officers of state in Scotland are the proper parties to pursue an action to set aside an illegal grant of the property of the crown in that country. That such an action brought by the Lord Advocate, in the name and in behalf of the crown, without a special warrant, is incom- petent, although he obtained such warrant in the course of the proceedings. That in such action, the Lord Advocate, and the Commissioners of Woods and Forests, have no title to sue. — The Lord Advocate v. Lord Dunglas, 9 Clk. & Fin. 173. A. executed a deed, conveying and assigning his property to trustees, for the benefit of creditors. The operative part of the deed was in these words : — " All and sundry superiorities, lands and heritages, debts heritable and moveable, and whole goods, gear, sums of money and effects, and, in general, my whole means and estate, heritable and moveable, of whatever nature or denomination, or wherever situated, pie^ently belonging to me." Held, that these woids diti not pass the profits of a public office at that time filled by the grantor. Semble : That the profits of a public office cannot be assigned for the benefit of creditors. — Hill v. Paul, 8 Clk. & Fin. 295. ONUS PROBANDL See Pr. Evidence. OPENING BIDDINGS. See Pb. Biddings. ORDER. See Pu. Order. ORDER AND DISPOSITION. A., on behalf of the owner of a ship, en- tered into a charter party with B., by which B. agreed to pay to A. on the owner's behalf, a certain sum for freight. The owner afterwards assigned all the freight accruing under the charter party to C, as a security for a debt, and C. gave notice of the assignment to A. but not to B. The owner having subsequently become bankrupt, it was Held, that the arrears of fieight were not in his order and disposition at the time of his bankruptcy. — Gardner v. Laehlan, 4 Myl. & Cr. 129. Where a trader assigns a debt, the only person to whom notice of the assignment need be given, in order to vest a good equitable title in the assignee, is the party from whom the trader was to have received payment of the money ; in other words, the party holding the property at the order and disposition of the trader. — Id. A trustee for sale of a testator's estates, sold part of them, and paid the proceeds into court. A party entitled to a share of the testator's pro- perty, assigned his interest to S., byway of mortgage ; and S. gave notice of the assignment to the trustee, but did not obtain a stop order. The remainder of the estates were afterwards sold, and the proceeds paid into court under the decree in the suit. Subsequently the assignor took the benefit of the Insolvent Debtors' Act. Held, that the notice given to the trustee was sufficient to take the assigned share out of the order and deposition of the assignor. — Matthews V. Gabb, 15 Sim. 51. Actual notice of the assignment of a policy effected with the Equitable Assurance Society, is necessary to take the policy out of the order and disposition of the assured. Duncan v. Chamberlayne, II Sim. 123, overruled.— JAompson V. Speirs, 13 Sim. 469. Notwithstanding a policy of insurance may have been effected with a mutual insurnnce com- pany, express notice of a deposit of it, by way of equitable mortgage, must be given to the com- pany, in order to take it out of the order and disposition of the depositor.— £j: parte Wilkinson, 13 Sim. 475. All the assured in the Equitable Assurance Office are partners in the society, and therefore, express notice of an assignment of a policy ef- fected with that society need not be given m order to take the policy out of the order and dis- position of the assignor. The report of Bozen v. Bolland, in 1 Mont. & Bligh's reports corrected. — Duncan \. Chamberlayne, 11 Sim. 123. L. and C. employed packmen to travel round various districts in the country, to sell their goods, in the course of which, dealings were had with 3,500 customers. L. and C. dissolved their ORDINANCE.— OUTStANDING TERM. 339 partnership, of which notice was given in the Gazette, and sold the debts owing to these dif- ferent rounds to the new firm of S. and C, which continued the same course of dealing ; and some of the bills of parcels delivered to the customers by one of the packmen were altered in the head- ing from the firm of L. and C. to that of S. and C. ; but it did not appear that any express notice was given to the customers of the assignment of the debts from the old to the new firm. Both firms became bankrupt. Held, under these circum- stances, that there was not such proof of want of notice to the different debtors of the debts to the old and new firm as to raise the inference that the debts continued in the ord'r and disposition of the former. — Ex parte WoodgcUe, 2 M. D. &D. 394. A person to whom the estates are mortgaged to/ secure the balance due from time to time on an account current, mortgages his interest under this mortgage and becomes bankrupt. The sub- mortgagee cannot have an order for sale of the original mortgage debt without a preliminary enquiry as to its amount. — Ex parte Mackay re Wright, I M. D. & D. 551. In such a case it is not necessary to give notice of the sub-mortgage to the original mortgagor to take the mortgage debt out of the order and dis- position of the original mortgagee. Pending the enquiry, the sub-mortgagee was permitted to en- ter a claim for the full amount. — Id. A., a broker on behalf of the owner of a ship, entered into a charter party with B., by which B. agreed to pay to A., on behalf of the owner, a certain sum for the freight of the ship. The owner assigned the freight and earnings that might be- come due under the charter party to C. as a security for a debt, and C. gave notice of the assignment to A., but not to B. The vessel com- pleted her voyage, and afterwards the owner became bankrupt. Held, that the money due on the charter party was not in his order and dispo- sition at his barikruptcy. — Gardner v. Lachlan, 8 Sim. 123. ORDINANCE. An ordinance passed in pursuance of an order in Council and not altered or disapproved by Her Majesty in CouncU, though seemingly more ex- tensive than contemplated by the order, is not void for the excess, but will be considered as duly authorized by the order, and taken in conjunction with hX.—Inglis v. De Barnard, 3 Mo. 425. OUTLAWRY. See Pr. Odtlawrt. OUTSTANDING TERM. Although the court will, by decree, restrain the setting up of an outstanding term to prevent the fair trial of a legal right, yet after the trial of an ejectment has taken place and a term has been set up, whereby the trial of the merits of the case was prevented and the party using it obtained a verdict and judgment; a suit cannot be sustained to set that judgment aside, nor will the fact that the communications made before the trial by the party who so gained the advantage at law led the other party to believe that the substantial question of the title would be tried in the eject- ment, enable him to sustain a suit for such a pur- pose ; but if there be any impediment to the trial of the legal right in another action of ejectment, a suit may be sustained for relief by removing that impediment to the trial of the right in such future action. — Master or Keeper, Fellows and Scho- lars of Clare Hall v. Harding, 6 Hare, 273. A mortgagee in whom a satisfied mortgage term was vested. Held, under the circumstances, bound to resign it to the tnistee of the will of a testator without the concurrence of the parties benefi- cially interested in the property under it. — Poole V. Pass, 1 Beav. 600. A testator allowed a satisfied mortgage term to remain outstanding in the mortgagee, and he de- vised the estate to a trustee in such a manner as, in the opinion of the court, to entitle him to call for an assignment of the term without the con- currence of the parties beneficially entitled. The termor, under the advice of counsel, refused to assign without the concurrence of the parties beneficially interested, and a suit became neces- sary to compel him. The court, though of opinion that the termor was not entitled to insist on his objection, gave him his costs, charges, and ex- penses. — Poole V. Pass, 1 Beav. 600, PARENT AND CHILD, PARENX AND CHILD. See JuKismoTioN. — Gtiardian and Ward. — Infant. I. — Parent 339 1. His Rights in Property of Child . . 339 2. Vndiie Influence of 340 II.— Child 340 1. His Rights to Property 340 2: Equity to a Settlement 340 3. Custody of 340 4. Maintenance 340 III. — Aqreement between 340 I. — Parent, 1, His Eights in property of Child 339 2. Undue Influence of 345 I, 1. His Rights in Property of Child. Bequest to testator's daughter for life, and on her death, to the testator's son and his children. The son had no child at his father's death, but had children living at the death of the daughter. Held, that his children were neither joint tenants with him, nor entitled in remainder after his death ; but that the fund belonged to him abso- lutely. — Scott V. Scott, 15 Sim. 47, 310 adid. PARENT AND CHILD. Agreement hetween. I., 2. Undue Infiuence of. A niece, two months after she came of age and after her guardians had fully accounted to her, entered into a voluntury security for her uncle, by whom she had been brought up, and who was considered by the court as standing in loco parentis. The court set it aside. — Archer v. Hudson, 7 Beav. Where a transaction takes place between parent and child just after the child has att;iin?d twenty-one and prior to what may be called a complete ** emancipation," without any benefit moving to the child ; the presumption is, that an undue influence has been exercised on the part of the child ; and a party seeking to maintain such a transaction must shew that that presumption is adequately rebutted. — Id. Though courts of equity do not interfere to prevent an act even of bounty between parent and child, yet, they will see that the child is placed in such a position as will enable him to form an entirely free and unfettered judgment, indepen- dent altogether of any sort of control. — Id. II. — Child. 1. Sis Rights to Property 340 2. Equity to a Settlement 340 3. Custody of 340 4. Maintenance 340 II., 1. His Rights to Property. When several estates are settled upon children, the children may recover a part of those estates, without shewing title to the rest of the settled property. — Thompson v. Simpson, 1 Dru. & W. 4-59. A testator became bound to the parish for the support of an illegitimate child of his son, and he made weekly payments until his death ; Held, that he had placed himself in loco parentis, and that interest was payable from the testator's death on a legacy given by him to the child, though made payable on attaining twenty-one. — Rogers v. Southen, 2 Keen, 598. II., 2. Equity to a Settlement, So long as property to which a married woman becomes entitled under an intestacy, remains in the hands of the administrator, and she and her husband have done nothing to point out the mode in which they wish the fund to be dealt with, their child cannot enforce its equity to a settle- ment. — Winch V. Brutton, 14 Sim. 379. II, 3. Custody of. Semhle : The Statute 2 & 3 Vic, c. 54, does not enable the wife to resist the husband's application to the court for the custody of his children. — Corsellis v. Corsellis, 1 Dru. & W. 235. II, 4. Maintenance, A ward of court, entitled in her own right to large real and personal property, was married under age and without the consent of the court, which marriage was subsequently annulled. Upon her coming of age, the husband petitioned to be at liberty to make proposals for a settle- ment of her property, and to have a legal mai-- riage celebrated, undertaking to execute such settlement as the court should direct, and to do %vhatever the court should order in that hehalf. The petition being granted, a legal marriage was solemnised, and proposals were laid before the master, who approved of a draft of settlement, whereby all the ward's property was limited to her for life, for her sole and separate use, with power of appointment of part of it, and after- wards to her children, but the Lord Chancellor declined making any order as to the execution of this settlement, the amount of the property not being ascertained. Of the marriage thus law- fully solemnized there was issue, two children. The wife afterwards eloped; the husband peti- tioned tlie court for maintenance for the children out of the property, stating that his own means were not sufficient. Held, that the children had no right in law or equity, during the life of their mother, to be maintained out of her separate es- tate. Held also, that the proposed settlement^ though not executed, having been acted upon by the court by several orders, could not be varied. — Hodgens v. Hodgens, i Clk. & Fin. 323. Testator gave an annuity to a trustee, in trtist, to pay the same to his daughter, for her separate use lor life, remainderto her husband, to enable him to maintain his children by her, until the youngest attained twenty-one, and if the hus- band should die before the youngest child at- tained twenty-one, then upon trust, for the trustee to apply the annuity in like manner as the husband was directed to do. Held, (the daughter being dead) that the husband was bound to apply the annuity for the maintenance of the childien, but that, if he maintained them properly, they would not be entitled to an ac- count against him. — Leach v. Leach, 13 Sim. 304. Testator gave one-third of his residuary estate to his wife, and the other two-thirds to trustees, in trust, for his children at twenty-one, and directed that until the shares of his children should be payable to them, the income thereof should be paid to his wife, to be by her applied, or in case of her death, to be applied by the trus- tees for the maintenance of the children. Held, that the wife was entitled to the income of the children's shares during their minorities, she maintaining them in a proper manner. — Hadoxo V. Hadow, 9 Sim. 438. III. — Agreement between. The court will not narrowly scrutinize the con- siderations for dealings between fathers and sons, but in this case the son being manifestly ignorant of the effect of the deed, and the father giving up nothing, and there be no circumstances rendering it desirable that the son should give up any new thing, the son was relieved. — Wallace \. Wallace, 1 Con. & L. 491. An increased allowance for maintenance made out of the property of infants, for the purpose of supporting their parents, who were in great indi- gence. — Allen V. Coster, 1 Beav. 292. In consideration of £100 paid by the plain- tiff's father to A. B., the latter covenanted to maintain and apprentice the plaintiff, and that he should take a specified interest in all the real and personal estate which A. B. should possess at his death ; the condition in life of the plaintiff not having been altered, and no expectation on his part having been defeated : — Held, that this con- tract might be put an end to by agreemept be- tween the plaintiff's father and A. B. Semble : That if there had been part perform- ance of the agreement, altering the condition of PARISH OFFICERS.— PARTITION. 541 life of the plaintiff, then the court would not have permitted the father to take him back, to his pre- judice, and would have compelled a complete performance in his favour. — Hill v. Gomme, 1 Beav. 540. PARISH orriCER. Regulating the appointment and payment of Parol Constables, 5 & 6 Vict. u. 109; extended by 7 & 8 Vict. c. 52. Parish officers having received information that a person was a pauper lunatic likely to do mis- chief, caused an order to be left with A. B, who lived at his house, and appeared to have the care of him, for his removal to the workhouse. A. B. soon afterwards, assisted by other persons, took him forcibly to the workhouse in a straight waist- coat. He remained in the workhouse about a week, at the expiration of which, he was brought before a magistrate and discharged. He then brought an action for an assault and false im- prisonment, and an action of trespass, against the parish officers, and in one of them recovered £400 djmages, which, upon a motion for a new trial, was reduced by consent to £200. No new trial being granted, the other action was not tried. The trustees of the parish having, under a local act, authority to manage the parish accounts, and to superintend the treatment of the poor, charged the damages and costs incurred in these actions against the poor rates of the parish. The rates 60 charged were subsequently allowed in open vestry, and the charges paid out of them. Upon an information filed against the trustees for the pui'pose of compelling them personally to refund the money so paid, as for a breach of trust, the court dimissed the information, being satisfied upon the evidence before it, without regard to the proceedings at law, that the parish officers had not participated in the forcible removal of the lunatic, and had in other respects acted reason- ably, though perhaps not strictly according to law in discharge of their duty ; consequently, that they were entitled to be allowed the payment so made, either under the twenty- sixth section of the Local Act, which provided that all costs and ex- pences to be incurred by the trustees or any persons employed by them in prosecuting or defending any action touching the execution of the act should be defrayed out of the money arising by virtue of the act, or the general law applicable to overseers and their accounts, — Alt. Gen. v. Pearson, 2 Coll. C C. 681. A parish being indebted to A. for repairs done to the church, the parishioners agreed, at a vestry, that the parish officers should give a bond for the amount ; that A. should give the parish twelve months' notice when he required payment, and that the parish should be at liberty to paj' the debt by instalments ; and at another vestry, held shortly afterwards, it was resolved, that the obli- gors should be indemnified by the parishioners, and out of the rates, and the parish officers for the time being were authorised and directed to pay the interest and the principal when required, out of the rates. A., who was himself a parish- ioner, and several of the other parishioners, signed both the agreement and resolution, and he received the interest of his debt for several years, and part of the principal also, out of the rates, and never called on the obligors to pay the interest. Held, that, as the parishioners had no power to bind the parish, the obligors were not exempted from their liability on the bond, not- withstanding A. had signed both the agreement and the resolution. — Jaquet v. Lewis, 8 Sim. 480. PARLIAMENT. See Act op Paeliamunt. PAROL EVIDENCE. See Pb. Evidence. PARTICEPS CRIMINIS. A bill to be relieved from a security : — First, on the ground that it was given for an immoral con- sideration ; and, secondly, because it was drawn in conformity with the agreement between the parties, cannot be sustained. This court has authority to relieve against an instrument which, though legal, upon the face of it, was, in fact, executed for an illegal and immoral purpose. — Batty V. Chester, 6 Beav. 103. But where a party to the illegal or immoral purposes comes himself to be relieved from the obligation he has contracted in respect of it, he must distinctly and exclusively state such grounds of relief as the court can legally attend to ; he must not accompany his claim to relief, which may be legitimate, with claims and complaints which are contaminated with the original immoral purpose. — Id. PARTITION. Tn partition suits, in future, all parties are to abide their own costs, until the issuing of the commission, but the cost of issuing and executing same, and of the final hearing and decree, ai-e to be borne in proportion to their respective interests. .—M'Bricie v. Malcomson, 2 Dru. & Wal. 700. An ejectment having been brought by four co- parceners for four parts of a moiety of an estate, against the owner of the other moiety, and defence having been taken on the ground of the illegiti- macy of the persons through whom the lessors of the plaintiff claimed, and more than twenty years' adverse possession, the jury found for the plain- tiffs, subject to points saved upon the argument of which the court above gave judgment, for the lessors of the plaintiff as to three-fourths, but set aside the verdict as to one-fourth ; a new eject- ment was brought as to this one-fourth by the claimant of it, the same defences were set up, and a verdict was found for the plaintiff; but a bill of exceptions being taken by the defendant, a new trial was directed, in which the defendant admit- ted the pedigree, and only relied on the adverse possession, and a verdict was found for the plain- tiff, and was confirmed by the court above ; a bill was then filed by the co-parceners ag.iinst the defendants, at \t\w, for a partition, and an account of mesne profits, and the defendants set up the old defences of illegitiniaey and adv.rse possession. Held, that the plaintifts were entitled to a decree, without an issue at law. Secus semble : If the pedigree had not been admitted at the last trial, and the question there had not been the same as in the first ca^e and the present suit, as the partition would operate as a perpetual injunction. — O'SuUivan v. M'Swieny, 2 Con. & L. 486. 342 PARTITION.— PARTNERS AND PARTNERSHIP. Commissioners of partition have no power to award sums to be paid for owelty of partition. — Mole V. Mansfield, 16 Sim. 41. In a suit for partition, if a reference is necessary to ascertain the interests of the parties, the direc- tion for the commission ought to be postponed until the hearing, for further directions. — Cole v. Sewell, 15 Sim. 284. Independently of the 4th and 5th Vict. c. 35, s. 85, this court has no jurisdiction to direct the partition of copyholds, nor of customary free- holds. — Jope V. Morshead, 6 Beav. 213. On a bill for a partition when there is a small failure in proof of title, or when the shares of the parties are alone doubtful, the court will grant an "inquiry ; but where there is a material omission in the proof of the plaintiff's title, the bill will be dismissed with costs. This course was pursued though the plaintiff had recovered in ejectment a portion of the estate from the defendent, it not appearing what were the circumstances of that proceeding, or whether the plaintiff's title as i alleged was therein proved. — Id. On a suit previous to the 4th and 5th Vict. c. 35, s. 85, for a partition of freeholds and copy- holds, the court directed the copyholds to be allotted in entirety to one of the parties, — Dillon V. Coppin, 6 Beav. 217, n. Four persons purchased some land, and agreed that it should be laid out in streets, and sold in lots according to a specified plan. All the parties died, and there being no equitable ground for putting an end to the agreement ; Held, that the representatives of one of the parties could not maintain a suit for a partition against the repre- sentatives of the others. — Peck v. Cardwell, 2 Beav. 137. This court adopts the rule of the Court of Chancery in regard to costs in suits of partition. — yiomjns V. Joad, 4 Y. & C. 134. A bill in equity will not lie for a partition of copyholds. — Horncastle v. Charlesworlh, 11 Sim. 315. Commissioners of partition may award a right of way over the lands of one party to the lands of another party interested in the partition. — Lister v. Lister, 3 Y. & C. 540. Commissioners of partition in dividing tene- ments between brothers and sisters, exercise a sound discretion in awarding the mansion house and pleasure grounds to the eldest brother, though he also has awarded to him other lands at a dis- tance from the mansion house. — Id. The court will not suppress or vary the cer- tificate of commissioners of partition by reason of alleged irregularity in the allotments, except on the ground of fraud, or of negligence amounting to fraud. — Id. Commissioners of partition may direct new fences to be made, to divide the lands which axe the subject of partition. — Lister v. Lister, 3 Y. & C. 544. In a partition suit as at law, costs are not given at either side at the hearing ; but, where a de- fendant set up an agreement in bar of the right of the plaintiff to a partition, he was directed to pay so much of the costs as were occasioned by that part of the defence. — Morris v. Timmins, 1 Beav. 411. A road was set out by two tenants in common of property, for the convenience of their respec- tive dwelling-houses for ever. The court, in a partition suit, though of opinion that it ought not be interfered with, declined giving any special direction on the subject to the commissioners. —Id. One of three tenants in common of an estate was a person of weak intellect, but no commis- sion was in force against her. On a bill for a partition being filed against her by the other two, the court directed a commission of partition to issue, and that the lands should be held in severalty. — Ililliiigworth v, Hidebottom, 8 Sim, 620. PARTNERS AND PARTNERSHIPS, See Pr. Injunction. — Pr. Receiver. — Pl. Parties, I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. What Constitutes a Partnership 342 AllTICLES OF 343 Rioht.s of Surviving Partner .... 343 How Bound by Acts of Each Other 344 Interest on Partnership Accounts 344 Riohts and Liabilities op 345 Property 346 Lien 347 Statute op Limitations 348 Dissolution 348 Accounts 349 Receiver 350 Suits 35 1 Bankruptcy, in case of 351 1 . Proof agiiinst Joint Estate 351 2. Proof against Separate Property . . 351 3. Between Joint and Separate Property 353 I, — What Constitutes a Partnership. In case of partners on whom summons of de- maud requiring payment to be served. — Bankrupt Law Consolidation Act, s. 78. (Jagoe's ed. p. 44.) Petition may be presented against one or more partners. — Id. s. 97. (Jagoe's ed. p. 60.) In case of a firm becoming bankrupt. — Id, s. 152, (Jagoe's ed. p, 94.) In case of actions, partners to have notice. — Id. The court may direct partners to have part of the proceeds. — Id. One partner may receive allowance, though another may not. — Id. (Jagoe's ed. p. 95.) Co-partnerships regulated in England by 7 Geo. 4, c. 46 ; amended by 1 & 2 Vict o. 96 ; 2 & 3 Vict. c. 68 ; 3 & 4 Vict. c. Ill ; 5 & 6 Vict, c. 85, U. K. Acts lor making good, contracts entered into by certain banking and other co-partnerships, 1 & 2 Vict. c. 10 ; 4 & 5 Vict. c. 14, E. Co-partnerships not to be illegal or void in consequence of spiritual persons being members, 4 & 5 Vict. c. 14, s. 1, E. Co-partnerships of bankers in Ireland relieved from certain restraints, and the members thereof severally rendered liable to their engagements, and the' co-partnerships enabled to sue and be sued in the name of their public officer, 5 Geo. 4, c. 73 ! repealed and other provisions made by 6 Geo, 4, c, 42 ; 11 Geo, 4, and 1 Will. 4, c. 32. I. 1 & 2 Vict. c. 96 ; 2 & '3 Vict. c. 68 ; 3 & 4 Vict, c. Ill ; 5 & 6 Vict. c. 85, U. K. .See act for regulating the mode by which partners may sue and be sued in Scotland, 6 Geo. 4, c. 131 j 7 Geo. 4, c. 67. By 1st. Gen. Ord., Art. 9, 22 April, 1850, any person seeking equitable reUef may, without special leave of the court, and instead of pro- ceeding by bill of complaint in the usual form, tile a claim in the Record and Writ Clerk's Office, Articles of. PARTNERS AND PARTNERSHIPS. Rights, Sj-c 313 in any of the following cases ; that is to say, if the plaintiff is, or claims to be, a person entitled to an account of the dealings and transactions of a partnership dissolved or expired, seeking such account. No play can be lawfully acted for hire, gain, or reward, within twenty miles of London, without the authority of letters patent from the king, or of a license from the Lord Chamberlain, and no such letters patent or license can be granted so as to autho; ize the performance of plays at any place, except within the city or liberties of West- minster, or where the king may happen to reside. An agreement therefore, for a partnership in acting plays at a theatre situate within twenty miles of London, but not within the city or liberties of Westminster, or in the place of the kind's residence, is one to which the court will not'give effect. — Ewing v. OsbaUiston, 2 Myl. & Cr. 58. Where a negociation took place between B., S. V. Sc Co., and E., as to the admission of E. as a partner with them, and E. drew out a sketch of the terms of the intended partnership, two of which were, that E. should bring in £2,000, half in cash and half in goods, and that the firm should be altered to that of B. and S. V. & Co., and E. accordingly advanced the £2,000, upon which the words "& Co." were added to the original firm, but no other act was done by E. to shew that he considered himself as a partner, and he refused to sign any formal agreement for a partnership : — Held, that this was not sufficient to constitute him a partner with B. and S. V., so as to prevent him from proving the amount of his advances, as a debt due from them to him, under a fiat, issued against B. and S. V. — Ex parte Turquand, 2 M. D. & D. 339. A partnership agreement between A. and B., that they shall be jointly interested in a specula- tion for buying, improving for sale, and selling lands, may be proved without being evidenced by any writing signed by, or by the authority of the party to be charged therewith, within the Statute of Frauds ; and such an a;4reement being proved, A. or B. may establish his interest in land, the subject of the partnership without such interest being evidenced by any such writing. — Vale V. Hamilton, 5 Hare, 369. II. — Articles op. Agreement for a partnership decreed to be spe- cifically performed by the execution of a proper partnership deed. — England v. Curling, 8 Beav. 129. Partners may make constant variations in the terms of their partnership agreement, which may be evidenced not only by writing, but by their conduct. — Id, Injunction granted to restrain a partner, during the partnership term, from carrying on business with other persons, in the name of an old firm, and from publishing notices of dissolution. — Id. Partnership stipulation that a son of one part- ner, or in case of his minority, the executor, should, on the death of such partner, succeed to his share. The court, on the terms of the partner- ship deed, considered it an option, and not an obligation. — MadgwickY. Wimble, 6 Beav. 495. Articles of partnership between two partners, as brewers, malsters, &c., covenanting with each other, they and their respective executors and administrators would continue partnersfortwenty- one years, determinable on the death of both partners, unless their respective representatives should agree to continue the business for the residue of the term, and empowering _ either partner to sell his share in the partnership pro- perty (offering it first to the other partner) so that the purchaser should not be entitled to the possession of the partnership property until the expiration of the partnership without the con- sent of the other partner, empowering also each partner, either in his lifetime, or under his will, to introduce one or more relations, being sons, brothers, or nephews, into the partnership, to take all or a portion of his share, during the con- tinuance of the partnership, and providing that in case of the death of either or both partners dui ing the term, after having introduced such relation, the person so introduced should be considered as the original partner. Providing also, that in case of the death of either partner during the term without having introduced such relation, the business should be carried on by the sur- viving partner and the executors, administrators or trustees of the deceased partner, but making no provision for the case (which happened) of the death of one partner during the term, and his executors or administrators refusing to be con- cerned in the business with the surviving partner, and caUing for an immediate dissolution, and a sale and distribution of the partnership property, the surviving partner not consenting to such dissolution or sale. Held, in a suit by the executors of the deceased partner against the survivor, for a dissolution, that the provisions in the articles for the continuance of the partnership during the term of twenty-one years could not be enforced in equity, by way of specific per- formance of the partnership contract, against the representatives of a deceased partner, either by way of relief in a suit in which such surviving partner was plaintiff, or by way of protection in a suit in which he was defendant ; and, inasmuch as the articles could not be so enforced, the I plaintiffs, the executors of the deceased partner I repudiated the partnership, were entitled to a I decree for a dissolution, but that such relief I would be given to them in eiiuity subject to I any legal right which the surviving partner had to recover damages against the executors of the deceased partner for a breach of the cove- nants contained in the articles, and that the amount of any damages which might be recovered in such an action must be added to the credit side of the account of the surviving partner to be taken under the decree. — Downs v. Collins, 6 Hare, 418, The option reserved to the executors of the deceased partner to enter into the partnership with a surviving partner, must be accompanied by the obligation on the part of the surviving partner to admit them, and unless the option be confined to the representatives of the partner who shall die first, the surviving partner must have the option of entering into the parnership with the representatives of the deceased partner with the same accompanying obligation on their pai U to admit him. — Id. III. — Rights of Suevivlnq Partneh. A surviving partner being the executor of hia deceased partner is not entitled to an allowance for carrying on the business after his partner's decease, for the benefit of the estate ; nor is an executor and legatee of such surviving partner, — Stocken v. Dawson, 6 Beav. 371. 34 i IIuw Bound, S)C. PARTNERS AND PARTNERSHIP. Interest, 8;c. Money admitted to have been received by a surviving partner on account of the late partner- ship ordered to be paid into court, although by his answer and examination, he alleged that partnership debts to a large amount were still outstanding, for which he was liable, and also that his co-partner had drawn out of the part- nership sums to the amount of double the sums drawn out by himself, it appearing that there was a sufficient sum in court to pay the out- standing debts ; and that taking into considera- tion the true shares of the partners which the defendant had not done, the co-partner had not overdrawn his co-partnership accounts, — Toulmin V. Copland, 3 Y. 85 C. 643. The partnership of A. & B. being dissolved, is succeeded by that of B. & C, who take upon themselves to adjust the aifairs in the former partnership. B. dies, and his executors file a bill against 0., for an account of the part- nership dealings of B. & C. In the progress of the suit, the court directs the .accounts of both partnerships to be taken, and C., by his answer and examination, admits that he has received a sum on account of the partnership of A. & B. Held, that he must pay that sum into court, notwithstanding A.'s representatives are not parties to the suit, inasmuch as he must be taken to have received it (subject to his explanation to the contrary) as surviving partner of B.— W. Upon the death of one of two partners, the sur- viving partner continued the business, and, with- out the consent of the executors, took upon himself certain of the debts due to the firm, at the same time transferring the accounts of those debtors to new books, which he had opened on his private account. He also transferred to the new books the accounts of the debtors whose debts he did not undertake. He, however, swore, in conjunction with an accountant, that the entries made in the new books for the last class of debtors, were uniformly and without alteration transferred to the partnership books, which were open for the executor's inspection. Held, that he must produce the private books for the inspec- tion of the executors, in order to shew the entries made of both classes of debts ; of the first class, because he might have made a profit of the debts, which the executors had a right to share, and of the second class, because he might have made an im- proper appropriation of the payments made from time to time in their discharge, by applying those payments in discharge of his own advances, and not in discharge of the balance due to the partner- ship.— /d., 3 Y, & C. 655. IV. — How BOUND BY Acts or Each Othes, Upon a question, whether one partner had notice of the irregular course of dealing of his CO- partner to the prej udice of their customer ; the court was of opinion that he ought to be deemed to have known the facts, it appearing from the evidence, that if he had used ordinary diligence 'and attention in the management of the business, he might and must have discovered all the mate- rial facts J that the means of knowledge were within his power ; that he would, with very little trouble, have found confusion and irregularity in the accounts, a proper investigation of the sources of which, would have led to discovery of all that had beta done. Held, also, that under such cir- cumstances, the court for the protection of those ■who deal with partnerships, must impute the knowledge which the partners, actiiig for their interests and in discharge of their plain duty, might and ought to have obtained.^Sorf/er v. Lee, 6 Beav. 324. Difficulty in holding a partner, who ostensibly takes an active part in the conduct of the busi- ness, free from responsibility on the ground of insanity in respect of the acts of the firm.— /rf. Confirmed and incurable insanity is a ground for dissolving a partnership, but a mere diminu- tion of capacity in attending to it is insufficient for that purpose. — Id. The implied authority of a partner to bind his co-partner for the repayment of money borrowed for partnership purposes, in the ordinary course of partnership transactions, does not necessarily extend to raising money for the purpose of in- creasing the fixed capital of the firm j and there- fore, a party advancing money to one partner, knowing that it was for the latter purpose, can- not, as a matter of course, charge the other part- ners with the loan, unless the transaction took place with their express or actual authority. — Fisher v. Tayler, 2 Hare, 218. Two partners in a firm, announced their inten- tion of adding £16,000 to-their capital, by admit- ting one or more additional partners. W. entered into a negociation with one of the partners then acting on behalf of both, on the subject of the announcement, but afterwards declining to enter into the firm, advanced a sum of £4,000 to that partner by way of loan, on the security of the bills of the firm, and also of the separate estate of such partner. Held, that W. had, so far as this evidence went, notice that the loan of £4,000 was an advance, not within the implied authority of the partner obtaining it, the other partner having authorised the capital to be raised in a difi'erent mode ; but inasmuch as the originEd partnership was then existing, and the advance might have been within the scope of the partner- ship authority, without reference to the proposed increase of capital, liberty was given to W. for the purpose of trying that question, to bring an action on the bills against the executors of the other partner. — Id. Acts done by one of the surviving partners who was executor of the deceased partner, and which the surviving partners Avere in that cha- racter bound to do, cannot, prima facia, be con- sidered to have been done in the character of ex- ecutor. — Way v. Bassett, 5 Hare, 55. V. — Interest on Paetnkhship Accounts, In a partnership between A. and B., interest was allowed on the capitals ; C, who was a clerk and relative, was cognisant of the terms on which this partnership was carried on. B. retired, and A. and C. continued the business ; the whole capital embarked therein beloriged to A. There was an absence of all proof of any agreement between A. and C. in respect of interest on capital. D. and E. were afterwards admitted into the business, and an interest account of capital was then resumed. Held, under these circumstances, and from the knowledge that C. had of the terms on which the first partnership had been carried on, that it must be assumed that interest on capital was to be allowed in the second partnership. — Millar v.Craig, 6 Beav. 433. Partnership accounts having been directed to be taken by the master, in a case in which some of the books had been lost, the court directed the liiyhts and PARTNERS AND PARTNERSHIPS. Liabilities of. 345 master, if it should appear that, in taking the account, any necessary hooks, &c., should be wanting, to report the same specially, and ■whether, in consequence of the want of such hooks, he was unable to proceed satisfactorily in taking the accounts. — Id. VI. — Rights and Liabilities op. A partnership, composed of three persons, A., B., and C, gave a joint and several bond to a bank, to cover advances to be made to them by the bank on a cash credit, and in that bond, two estates held by A. were specially named as part securities for these advances ; A. died. Held, that by his death the partnership was dissolved, and the security, so far as his estates were con- cerned, was no further continued j no arrange- ment between the surviving partners, or between them and the bank, for the purpose of settUng the general accounts, being capable of affecting that security. After the death of A., the bank continued as before its dealings with the partner- ship, then constituted by B. and C, and at a certain period, payments made to the bank entirely balanced the debt due to it at the time of A.'s death. Held, that the separate liability of A.'s estate was thereby discharged. B., the son and heir of A., within one year after his father's death, gave to the bank a heritable bond over his father's estates, for securing pay- ment of advances to be made by the bank. Held,' that this was a bond for his own, and not for his father's debts, and was consequently void under the Scotch Act of 1661, as a bond granted by the heir within one year of the ancestor's death. — Bank of Scotland v. Christie, 8 Clk. & Fin. 214. By the terms of an act of parliament incorpor- ting an insurance company, it was enacted ** that all actions and suits against the company should be prosecuted against the secretary of the com- pany for the time being," and that where any judgment in any such action should be obtained against the secretary, that execution might be issued against a member or members for the time being of the company, provided always that every such secretary or person in whose name any such action or suit should be prosecuted, &c., and any such member or members against whom execution upon any judgment obtained in any such action should be issued, should always be reimbursed and paid out of the funds of the said company or partnership, all such damages, sum and sums of money, costs, charges, and expenses, as by the event of any such proceedings he or they should be put to or become chargeable with." A judg- ment having been accordingly obtained against the secretary, and an execution issued against the plaintiff, as one of the members of the company, it was resisted by him, but unsuccessfully, and costs to a considerable amount were incurred. The master, after stating that the funds of the company actually in hand amounted to the sum of £1,200, found that this sum, and also certain other contingent sums of the company, when and 60 far as the same should be realized, were pro- perly applicable to the payment of the plaintiif s demand.' Held, on exceptions to the report, that, as there were no creditors of the company before the court, and as it did not distinctly appeal' whether there were any, the ordinary principle in partnership, that neither the partnership nor the individual debtor can claim in competition with the creditors, did not apply, and therefore, that the master's report in the above respect, should be confirmed.— Ai'Oioeii v.Hunler,\ Dru. & Wal. 347. Effect in equity of an execution against the share of one of two partners in the partnership stock. — Habershon v. Bluiton, 1 De G. & S. 121, A., B., and C, agreed to enter into a joint speculation in tea ; one consignment only was made to A. by B., which was paid for by C. Disagreements arose respecting it ; B. and C. insisting that it was a spurious article and repu- diating the consignment. Held, that the partner- ship relations were not put to an end by the repudiation ; that the rights, obligations, and liabilities of the parties, could not be settled by any simple litigation at law, between any two, and that the matter formed the proper subject of a suit in equity, — Cruickshank v, M' Vicar, 8 Beav. 106. There are necessarily things to be done, prepa- ratory to the commencement of a partnership, and matters necessary to be done after its determin- ation, for the purpose of winding it up ; these are not to be excluded in the consideration of the partnership dealings and transaction?^. — Id. Premises were demised to A. and B., who were co-partners, upon which they carried on their partnership business. A. died during the lease, and after his death, his executors carried on the business in co-partnership with B., on the pre- mises. Held, nevertheless, that the covenants in the lease which were joint only, were not to be considered as several as well as joint, so as to make A.'s estate liable for the breaches of the covenants which occurred after his death. — Clarke v. Bickers, 14 Sim. 639, Two of the members of an iron company, carry on a distinct trade, as bankers, but are not the ordinary bankers, of the company. They make advances at interest to the company, for the purpose of relieving it when it is in a state of difficulty and pressure ; and without taking or askmg for any security, and under such circum- stances as to lead to the inference that the ad- vances would not have been made had not the bankers been partners in the iron company. On the company becoming bankrupt, and there being no evidence, except such as was furni>hed by the nature of the transaction itself, that the character of a banking transaction belonged to it. Held, that the advances, though made by bankers, were not made by them in their character of bankers, and were consequently not dealings between trade and trade, giving a right of proof against the estate of the company, the use of the facilities afforded by a trade not being necessarily a use of them in the trade itself. — Ex parte Williams, 3M. D. &r). 431. Certain persons entered into an agreement, in writing, for forming themselves into a Joint Stock Company, to be called the Medway Commercial Shipping Company ; and by one of their rules the affairs and concerns of the company were to be under the management of a commitee, but no time was fixed for the duration of tlie company. Four of the members of the company took upon themselves the exclusive management of a ship belonging to the company ; and being about to send her on a voyage, winch some of the members disapproved of, those members filed a bill, praving that the fovrr might be restrained trom interfering with the ship, or causing her to sail on the in- tended voyage, and from laying in or agreeing for any cargo or freight, otherwise than under the direction of the committee, and that they might delivei up to the committee all books, &c., in their 346 Rights, Si-c. PARTNERS AXD PARTNERSHIPS. Property. possession, belonging to the ship or to the company. A demurrer for want of equity was allowed. Semhie : that the court will interfere betweeen co -partners to prevent the destruction of the partnership property, although a dissolu- tion of the partnership may not be prayed. — Miles V. Thomas, 9 Sim. 606. Two solicitors having entered into partner- ship, each of them continued to attend to the business of his former clients, but on the partnership account, and one of the partners having proposed to invest a sum of money be- longing to a client, in a certain mortgage, the proposal was agreed to by the client, and the money was paid to the joint account of the part- nership, at their bankers, for the purpose of the investment. The negotiations for the mortgage were broken off by the proposed mortgagor, but the partner by whom the proposal had been made to the client, untruly represented to the client that the mortgage had been effected, and thence- forward contniued to pay the interest as if it had actually been done ; although the banking ac- count was kept in the name of the firm, the monies standmg to the account belonged exclu- sively to the partner who committed the fraud ; he alone attended to, and had the control of the account, and the fraud was unknown to the other partner. Five years after the receipt of the money from the client, the partnership was dis- solved, and ten years after the dissolution of the partnership, the partner who committed the fraud became bankiupt, and the client, who, from the time of the dissolution until the bankruptcy, had continued to employ him as his solicitor, dis- covered the fraud. The client then filed his bill against the other partner to recover the money. Held, that the defendant was originally liable to the plaintiff for the money received by the firm ; that his original liability was continued as well after as before the dissolution of the partnership, by the fraudulent representations of his former partner ; and that, in equity, the limitation in btvr of the claim did not begin to run in favour of the defendant until the time when the client dis- covered the fraud. — Blair-v. Bromley, 5 Hare, 542. That the fraud and misrepresentation of one of the partners entitled the client to relief, in equity, against the other, not only if the case was one in wliich the client might have recovered in an action at law, against such other partner, but also if the remedy at law against the other part- ner was barred by the lapse of time. — Id. Where one of two partners becomes bankrupt, and a joint creditor proves the amount of his debt under the fiat, and afterwards brings an action against the solvent partner for recovery of the same debt, joining the bankrupt as a defend- ant in the action for conformity, the bankrupt is entitled to a full indemnity from the creditor against the consequences of the action, — Ex parte atanton, re Stanton, 1 M. D. & D. 273. One of two partners may have a demand against the other for compensation in the nature of unliquidated damages, and enforcible in equity only.— iSwi-j/ v. Alleii, 1 Coll. G. C. 589. A., B., and C. being in partnership. A., who had nearly the whole of the capital, retired, taking a warrant of attorney from B. and C.,to secure to him £12,500, but leaving his whole capital ill the firm. The accounts of the partner- ship were not then made up. Soon afterwards A., who still interfered in the business, mort- giif;ed certain leaseholds, his private property, and certain policies of assurance on his life, for the purpose of paying off a partnership debt. A month or two afterwards A. died having made B. and C. his executors, and having, by his will, directed that they might apply the monies to be received from the policies, in carrying on the trade, provided they gave such security to his residuary legatees as W. might approve. W. re- fused to act, and B. and C, without giving any security, pursuant to the will, applied the money arising from the policies in discharge of the mort- gage. Upon a bill filed against them by one of A.'s residuary legatees, they alleged, by their answer, that A.'s share in the capital at the time of his retirement, was far below £12,500, and that the warrant of attorney was given merely to secure what, upon an account taken, might be found to be his share. They admitted, however, that they had in their hands a balance of £989, belonging to A.'s estate. Held, that as between 15., C, and A., the amount of the policies must, prima facie, be taken to be a debt, due from the continuing partnership to A.'s estate, and that they could only employ that money in the trade upon the terms of the will, and that not having so done, they must pay the amount of that debt, namely £7,000, as well as the £989, into court.^ Costeker v. Ilorrox, 3 Y. & 0. 530. VII.— PliOPEIiTY. The estate of one of two partners is not, after his death, discharged from a partnership debt by the circumstance that the creditor contijiues his transactions with the survivor, and forbears for some years, at the survivor's request, to take any steps to enforce payment of his debt, Secus : Where the transactions shew that the creditor has accepted the liability of the survivor in dis- charge of the liability of the partnership. — 1 Vinter V. Innes, 4 Myl. & Cr. 101, By articles of partnership between three per- sons, it was stipulated that, in case of the death of any of them, the partnership should cease on a certain subsequent day, and the property of the partnership be then divided between the sur- viving partners and the executors of the deceased partner. One partner by his will directed all his property to be converted, and invested for the benefit of his children, and appointed his co- partners his executors, and died, leaving his children all infants. The two surviving co-part- ners having proved the will, had the property of the partnership valued, and then proceeded to continue the business under a new firm, and debited the new firm with the value of the tes- tator's share of the paj'tnership property, but did not otherwise execute the directions either of the articles or of the will. Held, that this transaction must be treated as a nullity, so far as the chil- dren's interests were concerned. — Wedderburn v. Wedderburn, 4 Myl, & Cr. 41, The executors of a testator, who were also his surviving partners, and had continued to employ his share of the partnership capital in trade, Held, answerable for a proportionate share of the profits of the trade, notwithstanding that the capital ot the partnership, at the time of the testator's decease, consisted only of debts due to the part nership, — Id. A. and B, purchased realty out of their partner- ship assets, which was used for their partnership purposes, and was in equity to be considered as personalty, A new partnership was formed between A,, B., and C. ; the realty was continued to be used for the partnership purposes, but A. Property. PARTNERS AND PARTNERSHIPS. LL 317 and B. stipulated for a rent to be paid them by the new partnership, composed of A., B,, and C. A died. Held, the property was, in equity, to be considered as part of his real estate, — Rowley v. Adams, 7 Beav. 648. Two brothers, A. and B., entered into co-part-, nership, without articles, and purchased land for the purposes of their trade, with money borrowed from C, and had the land conveyed to themselves in moieties to uses to bar dower. Shortly after- ■wards they mortgaged the land to C. in fee, to secure the money borrowed. A. died intestate, leaving B. his heir ; B. then took D. into partner- ship. Each of the firms erected trade buildings on the land, and paid for them, and for the insurance on them, and also paid the interest on the mortgage money, out of their partnership funds. Ultimately, B. and D. paid otfthe mort- gage out of their partnership property, and took a re-conveyance of the land to themselves, as joint tenants in fee. B. died, and his heir, who ■was also the heir of A., claimed the land ; but the court Held, that it was converted into a p-rsonalty, and dismissed the bill. — Houghton v. Houghton, 11 Sim. 491. The share of a deceased partner in the freehold and copyhold estate of the partnership, is not personal estate, for the purpose of being included in the value or amount in respect of which pvo- b ite duty "was payable. — Custance v. Bradshaw, 4 Hare, 315. By an agreement between some of the partners in a colliery, reciting that it was apprehended it v.'ould be competent for one partner to determine the joint interest, and bring the partnership pro- perty to a sale, and that the death of any partner would have that effect j and that they were desirous that their interests should be so far several, that the share of any partner should be transmissible to his representatives ; and that the partnership interest should not be determined, and the entii'e property sold, without the consent of the majority in value ; but each should be competent to sell his own share ; only it was agreed that each of them should hold to himself, transmissible to his own representatives or assign s, an aliquot share of certain of the partnership property, and that their joint holding should not be subject to the ordinary terms applying to partnership property, so as to entitle any one of them to a sale without the concurrence of such majority, or to dissolve the partnership, or so to cause a total dissolution of partnership by the death of any one of them. Held, that this was not an agreement by the parties, that the repre- sentatives of a partner, after his death, should continue partners with the survivors, and contri- bute to the working of the colliery on their joint account ; but was only an agreement that none of the partners or their representatives should be entitled to a sale of more than his own share of the partnership property. — Tatam v. Williams, 3 Hare, 347. A. and B. agree to dissolve their partnership from a particular day, and published a notice to that effect in the Gazette, stating, that the debts due to and by the firm, would be received and paid by A. No assignment is entered of the partnership effects, but they are left in the pos- session of A., who continues to carry on the busi- ness in the partnership firm. Four months after the dissolution, a joint fiat issues against A. and B. Held, that the partnership property, was not converted into the separate property of A., but was distributable among the joint creditors of A. and B. — Hx parte Cooper, re Johnstone, 1 M. D. & D. 358. Where a separate fiat issues against one of two persons who have been in partnership, and a jcnnt creditor is permitted to prove his debt, the court will direct an inquiry, whether there is any joint estate, notwithstanding the partnership was dis- solved before the issuing of the fiat. — Ex parte Birlay, re Krauss, 1 M. 1). & D. 387. A. carried on trade upon land of which he was seised in fee, afterwards he took one of his sons into partnership for twenty-four years, and con- veyed to him, in fee, certain shares in the land ; and by their articles of partnership they cove- nanted that thelandshould at all times, thereafter, be held as partnership property, and be considered and treated as part of the joint stock of the trade ; and it was provided, that if either partner died or retired during the twenty-four years, his co- partner might purchase his share at the sum stated to be its value in the last yearly accounts. In the course of the twenty-four years, £1 ,700 was expended out of the partnership funds in building on the land. After the expiration of the twenty-four years, and until A.'s death, he and his son continued to carry on their trade on the land, without entering into any new agreement. Held, that the son's right of pre-emption as to his father's share of the stock, including the land, expired with the term of twenty -four years, and that all the debts of the partnership having been paid, A.'s share of the land retained its original character and descended to his heir. — Cookioii y, Cookson, 8 Sim. 529. Vin.— Lien. Trust funds were invested in the purchase of transferrable shares in a banking company, in the name of one of the trustees, who exi-cuted a de- claration of the trusts thereof, (the rules of the company not allowing shares to stand in the name of joint owners of cestui que trusts.) The trustee was also a proprietor of shares in his own right ui the same company, and made various sales and purchases of shares therein. There was nothing to distinguish which were the individual shares held by the different proprietors, the same being in the nature of capital expressed by quan- tity. The trustee contracted to assign a certain number of shares to the banking company, as a security for advances which they made to him ; he afterwards became bankrupt. Held, that having regard to the deed of association, the banking company had no lien founded on the general relation of partnership on the shares of a proprietor, in respect of a debt owing by the pro- prietor to the company. — Pinkelt v. Wright, 2 Hare, 120. That the right which the directors of the bank- ing company might have, under the deed of association, of withholding their approval of the transfer of shares, cannot be exercised for the purpose of previously obtaining payment of a debt due to the bank from the proprietor, whose shares are proposed to be transferred, — Id. That the equitable title of the cestui que trusts to the shares purchased with the trust funds, was perfected without notice to the banking com- pany by the execution of the declaration of trust thereof. — Id. "That the special contract by the proprietor to assign his shares to the banking company as a security for their advances, gave the bank a lien on the shares then standing in the name of the 348 Statute of Limitations. PARTNERS AND PARTNERSHIPS. Dissolution. proprietor, of which he was the beneSoial owner, and that the same were not in his order and dis- position at the time of the bankruptcy — Hemble. —Id. IX. — Statute op Limitatioks. A. deposited monies with B., C. and D., who ■were bankers in partnership, and received from them notes, in which they promised to pay him the amount three months after sight with interest. B. died in March, 1837, having appointed C. and another her executors ; C. and D. continued the •banking business in the same name until 1842, =and interest was regularly paid on the notes by the firm until that time, the payment being in- dorsed upon the notes, and signed by one of the partners or their clerk. In December, 1843, the ■executors of A. filed their bill against the exe- •cutors of B. and the devisees under his will, for 'payment of the amount of the notes, out of the ,personal or real estate of B. Held, that the acts •of the surviving partners of B. had not the effect •of taking the debt upon the notes out of the operation of the Statute of Limitations, as against the real or personal estate of the deceased partner. — Way V. Bassett, 5 Hare, 55. A creditor of a partnership, against whose debt the estate of a deceased partner is, in a suit directly instituted against that estate, entitled to the protection of the Statute of Limitations, canncit (on a bill against the surviving partners and the representatives of the estate of the de- ceased partner, alleging that the surviving part- ners are indebted to the deceased partner) recover his debt against the separate estate of such de- ceased partner on the ground of the equity of the partners amongst themselves to enforce an ad- justment of the partnership transactions, for the creditor can at the utmost only stand in the place of the surviving partners as against the estate of the deceased partner, and, in such a case, the surviving partners have no claim on the estate of the deceased. — Id, After a dissolution of partnership by death or otherwise, the surviving or continuing partners of th" firm are (in a suit against them by persons claiming to be creditors of the partnership) en- titk-d 10 the protection of the Statutes of Limita- tion, although, as between themselves and retired partners, or the estates of deceased partners, the partnership accounts are unsettled, and the re- tired partners, or the executors of a deceased partner are, in such a suit against them, entitled to the like protection. — Id. 5 Hare, 68. Bill by surviving partners against the executors of a partner who had died thirteen years before the institution of the suit for an account of the partnership dealings and transactions, charging that the deceased partner was indebted to the firm at the time of his death. Dismissed with costs on the ground of the lapse of time, no new liabilities of the former partnership appearing to have arisen or become known after the death of the deceased partner. — Tatam v. Williams, 3 Hare, 347. The claim of a creditor against the assets of a deceased partner, was held not to be barred, under the circumstances, by the Statute of Limitations. — Braithwaite v. Britain, 1 Keen, 206. X. — Dissolution. On a bill to dissolve a partnership on the ground of the lunacy of a partner, the court will not make its decree retrospective even to the filing of the bill, still less to the time when the defendant first became incapable of attending to the business. — Beach v. FroUch, 1 Phil. 172. By articles of partnership it was stipulated that, in the event of such severe illness as should oblige the defendant to quit India for more than one year, the books should be made up to the end of the partnership year, and a valuation should be made of the stock The defendant became an incurable lunatic on his way to India. He arrived there in IStl, and was sent back. Held, that this article contemplated a dissolution; that according to the fair meaning of the article, the event had happened, and that his partners were entitled to a dissol'iticm as from the end of the partnership year 1842, and not as contended by the defendant from the decree. — Bagshaw v. Parlier, 13 Beav. 632. By articles of partnership between A. and B., the partnership was to be dissolved on either party giving the other six months' notice. A. gave the required notice. Held, that it was ef- fectual, notwithstanding B. was insane when it was given. — Robertson v. Lockil, 15 Sim. 285. If the business of a partnership has ceased, a bill may be Hied by some of the members on be- half of themselves, &c., to have the necessary accounts taken and the affairs of the partnership wound up ; but if the bill asks, in addition to that relief, that the partnership may be dissolved, all the members, however numerous, must be parties to it. — Deeks v. Stanhope, 14 Sim. 57. Decree for a dissolution of partnership on the ground of insanity as from the date of the decree, —Sander v. Sander, 2 Coll. C. C. 276. The affairs of a partnership being embarrassed and daily growing worse, the court, on motion, appointed a person to sell the business and wind up the affairs of the partnership. — Bailey v. Ford, 13 Sim. 495. Confirmed and incurable insanity is a gi'ound for dissolving a partnership, but a mere diminu- tion of capacity in attending to it is insufficient for that purpose. — Sadler v. Lee, 6 Beav. 324. Where a partner does acts inconsistent mth the duty of a partner, and of a nature to destroy the mutual contidence which ought to subsist be- tween partners, and makes it impossible that the business can be conducted in partnership with benefit to either party, the court will decree a dissolution before the expiration of the term for which the partnership was entered into. — Smith V. Jeyes, 4 Beav. 503. The transactions of partners with each other cannot be considered merely with reference to the express contract between them. The duties and obligations arising from the relation between the partiss are regulated by the express contract between them, so far as the express contract ex- tends and continues in force. But if the express contract, or so much as continues in force, does not reach to all those duties and obligations, they are implied and enforced by the law, and it is often matter to be collected and inferred from the conduct and practice of the parties, whether they have held themselves, or ought, or ought not to be held bound by the particular provisions con- tained in their express agreement. — Id. When it is insisted that the conduct of one partner entitles the other to a dissolution, the court must consider not merely the specific terms of the express contract, but also the duties and obligations which are implyed in every partner- ship contract. — Id, Accounts. PARTNERS AND PARTNERSHIPS. Account!. 349 This court will entertain a bill for the dissolu- tion of a partnership, on the ground of the in- sanity of one of the partners, but as such a bill proceeds on the principle that the insane partner is incapable of receiving notice of dissolution, strict evidence of insanity, and not merely evi- dence of incapability, ifvil be required. — Kirby V. Carr, 3 Y. & C. 184. A., B., and C. dissolved their partnership, ■when C. executes a regular assignment of the partnership effects to A. and B., and notice of the dissolution appears in the Gazette. A. and B. continue the business in the same firm until their bankruptcy, which is more than a twelve- month after the dissolution and assignment. Held, that a joint creditor of A., B., and C. could not prove against the estate of A, and B. — Ex parte Gurney, 2 M. D. & D. 641. A. and B., who are partners trading under the style of C. & Co., sign a guarantee by their private names only, in the following form ; "The undersigned herebj' guarantee, &c." Sernbie: The proof in bankruptcy upon this guarantee, must be made against the joint estate, if there were any ; but the partnership having been dissolved, after the signature of the guarantee, by an agree- ment, by which B. was to be made the sole ownsr of the stock, debts and effects of the firm, he taking on himself its liabilities. Held, that a mere general statement that, at the time of the dis- solution, there were outstanding credits amount- ing to £200, and that credits to the amount of £10 were recoverable, without particularizing them, was not sufficient ground for preventing creditors tmder the guarantee, from receiving dividends out of B,'s separate estate, — Ex parte Burdekin, 2 M. D. & D. 704. XI. — Accounts, E. and A. T. having carried on the business of navy agents, as partners in equal shares, and R. having retired, leaving the partnership accounts unsettled, with balances due to the firm from its customers, A. T. took C. into partnership, the customers' accounts were transferred into the new partnership books, and the business was carried on as before, until A. T.'s death, without any agreement in writing, or settlement of accounts between these partners, or other evidence to shew their shares in the concern. On a bill being tiled by A. T.'s representatives against C, for an account, he stated that the agreement was, if A. T. would bring into the the partnership £40,000 of good debts, due from the customers to the former partnership, his share in the con- cern should be two- thirds, and C.'s one-third, otherwise they should have equal shares, and that in consequence of A. T.'s not bringing in the £40,000 of good debts, the agreement was varied accordingly. There were entries in the accounts, debiting the partners equally, with the prices of wines purchased, and with losses on transactions in the public funds, and one witness stated that C. directed him, in A. T.'s presence, to make up the general partnership accounts in equal shares. — Held, that as it was established by a judgment in a former appeal, that the £40,000 of good debts were brought into the new partnership, according to the agreement, the event in which it was to be altered never occur- red, and as the accounts were uniform and contained no evidence of an alteration, the part- nership was continued in the proportions of two- thirds to A. T., and one-third to C. Held also, that in taking accounts bPtween C. and A. T., and between them and the former firm, the monies paid in by the customers of both firms, without specitio appropriation or contract, were to be applied : — first, in discharge of their debts to the former firm, according to the rule in Clayton's case, although A. T., in an affidavit mnde by him in a suit between himself and H.'s representatives, swore that it was agreed between him and C. that the advances to be made by them to the creditors should be first repaid out of their payments, and the surplus only in liquidation of their del)ts to the former &cia,— Copland y. Toulmin, 7 Clk. & Fin. 350. The advances made by one partner to the part- nership, and those received by another from it, until the concern has been wound up, only con- stitute items in the account between the partners, and cannot be treated as debts, and the court therefore, will not, upon an interlocutory apjili- cation, order the amount of such advances to be paid in and secured, pending a suit for takini; the partnership accounts. — Richardson v. Bank of England, 4 Myl. & Cr. 1 65. Cameron & Co., merchants in the West Indies, opened an account with the plamtifiFa, merchants in London. The course of business was, that the plaintiff's sent Cameron & Co. half yearly accounts of the dealings between them, which, after inves- tigation were approved as corrected by the latter, and the balance was carried to the next half- yearly account. In February, 1841, Cameron and Co. dissolved partnership, and two of the partners, of whomD. C. Cameron was one, agieed to indemnify the other partners, who retired, against all liabilities of the firm, in respect of certain shipments made by the plaintiffs ; and it was agreed that D. C. Cameron was to have the winding up of the concern, closing of the books, and collection of the debts ; and he wiis autho- rised to receive and pay the debts of the firm. After the dissolution of the partnership and death of one of the rt'tiring partners, the plaintiffs, in the usual course of business turnihhed accounts to Cameron and Co. ot the dealing between them up to the time the plaintiffs had notice of the dissolution ; which accounts, D. C. Cameron, as representing the firm of Cameron and Co. certified to be correct. Held, that under the circum- tances, the accounts so certified were binding on the executors of the deceased partner, as stated and settled accounts. — Lzickiey. Forsyth, 3 Jon. & L. 388. SembU : An authority to a member of a dis- solved partnership to wind up the concern, close the books, and collect the debts, authorises the party to state and settle an account. — Id. A surviving partner who had the possession of the partnership books, wilfully and fraudulently refused to produce them for the purpose of havmg the partnership accounts taken, under a decree of the court for that purpose. The masti r, in the absence of the other evidence charged a sum of £10 per cent, per annum on capital stock, as the nett gain made by the partners during the part- nership, and he debited the surviving partner with a moiety thereof. Held, that he was jus- tified in doing so, and the court decreed accord- ingly. — Walmsley v. Walmsley, 3 Jon. & L. 556. The court refused to open accounts, though of a general and summary nature, not containing the items, and which had been rendered by a surviving partner to the representatives of a deceased partner, and had remained unquestioned 350 Accounts. PARTNERS AND PARTNERSHIPS. Receiver. for twenty-one years, but it decreed an account limited to the subsequent receipts of the surviving partner, which it was admitted had ta:ken place. — Scott V. Milne, 5 Beav. 21.5. A retired partner averred, by his answer to a bill for an account against the partnership, that the plaintiff had adopted his successors in the partnership as his (the plaintiff's) exclusive debtors, but statc^d no facts in proof of such adoption. The accounts were directed against him, as well as the other partners, without pre- judice to the question of whether the retired partner was or was not discharged from the debt by the acts of the plaintiff. — Benson v. Hadfield, 4 Hare, 32. A., B., and C, having been in partnership together, and A. and C. having died, a bill by the residuary legatees of A., against his executors, and against B. and the executors of C, for an account of the personal estate of A., was sus- tained, under the special circumstances of the case, although collusion between the executors of A. and the other defendants was neither charged nor proved. — Law v. Law, 2 Coll. C. C. 41. The case of IS'ewland v. Champion^ 1 Vez. sen. 105, considered. — Id. ■A. agrees to take B. into partnership with him for fourteen years, in consideration of a premium of £2,500, one half of which is to be paid at the signing of the articles, and the other half at the time of the execution of a deed of partnership, to be formed on the articles. The articles are signed, the first instalment of the premium is paid, and the parties enter into partnership. After the lapse of a few months. A., under considerable provocation from B., excludes B. from the part- nership. The connexion is not renewed ; the deed is not executed, nor is the second instalment paid ; but there is a formal dissolution of the partnership on a certain day A. afterwards becomes bankrupt. Held, that in the accounts to be taken between A.'s assignee and B., the latter is to be credited with the whole amount of pre- mium, but to be debited with the unpaid instal- ment, and with an additional portion of premium calculated with reference to the actual duration of the partnership. — Bury v. Allen, 1 Coll. C. C. 689. Held, also, that B. is entitled, without prejudice to any question, to enter a claim for the whole premium under the bankruptcy. — Id. Articles of partnership provided that on the 31st of December in every year, or such other day as all the partners should agree upon, a general partnership account and rest, and a valu- ation and appraisement of the property and stock should be made, and signed by the parties j and on the expiration of the partnership term, the partnership property should be realised and divi- ded on the footing of such last annual rest ; and if any partner should die during the partnership term, his representatives should receive payment of his share of the capital and stock, as ascertained at the last annual rest, with interest thereon (in lieu of profits from that time) by instalments, and such representatives to have no right to look into the partnership books. The partnership continued for several years, but the partners did not make the annual account and rest, as provided by the articles. One partner died. Held, that the repre- sentativesofthe deceased partner were not entitled to a sale of the partnership property as upon a dissolution, and the rest, and not the day of the rest, was the essence of the partnership contract ; and therefore, that the representatives of the deceased partner were entitled to participate in the profits up to the time of his death, and also to have the account taken by means of the part- nership books, in the usual way. — Simmons v. Leonard, 3 Hare, 681. Where persons carry on business in the nature of a banking business, as, for instance, that of navy agents, and a change takes place in the house, by the death or retirement of a partner, on taking the partnership accounts, the rule in Clayton's case will be held, prima facie, to apply as well between the partners themselves, as between the partners and third persons ; and there must be strong evidence to rebut the pre- sumption as to the mode of taking the partnership accounts. Therefore, where A. and B. were part- ners as navy agents, and A. becoming a lunatic, that partnership was dissolved, and the business was carried on upon the same terms by B, and C, and B. died, and the accounts of both partnerships were unsettled. Held, that the accounts of A. and B. must be taken on the foundation of the rule in Clayton s case, although C, in order to establish an order to the contrary, set up certain affidavits made by B., in a suit brought against him by the committee of the lunatic, in which he alluded to an understanding between B. and C , which in some instances had been acted upon, and that the advances made to the customers of their firm should be repaid, before any portion of the monies paid in by those customers was applied in liquidation of their debts due to the original firm. — Toulmin v. Copland, 3 Y. & C. 626. Where a remaining or surviving partner, upon taking a new partner, agrees to bring a large amount of good debts into the firm, that is so advantageously a guarantee to the in-comin:, partner as to afibrd a strong inference, (even against evidence on the other side,) that the remaining or surviving partner did not intend to waive the benefit of the rule in Clayton's Case. — Id. Where the surviving partner has carried on the partnership business without withdrawing from the concern the capital or share of a deceased partner, there is no absolute rule that in taking the subsequent accounts of the partnership deal- ings, as between the surviving and the estate of the deceased partner, the division of the profits shall be determined by the aliquot shares of the several partners in the business in their joint life- time, or by the amount of the agreed capital which they were respectively to supply ; or by the actual amount of the capital belonging to the surviving and the estate of the deceased partner respectively; but the principle of division may be effected by considerations of the source of the profit, the nature of the business, and the other circumstances of the case.— IFtVfeW v. Biandford, 1 Hare, 253. XII. — Receiveb. Difficulties in appointing a receiver of a part- nership upon raQtioa.—Madffwick v. Wimble, 6 Beav. 495. , , .. - .v Surviving partners insisted on contmumg thfi partnership with the assets of a deceased partner. The court thought the representatives of the latter entitled to a receiver,— /d. SuiiSi PARTNERS AND PARTNERSHIPS. Proof, S;c. 351 XIII.— Sdits. A. gave a bond to the public officer of a joint stock banking company, (in which he afterwards be- came a sliareholder) to secure advances made to him by the company. The bank afterwards sus- pended their business, and broug;ht an action on the bond in the name of the officer. A. then filed a bill on behalf of himself alone against the officer and the directors of the company, praying for an account of the dealings and transactions of the company down to the time when their busi- ness ceased, that his share of the capital and profits might be ascertained, and set off against the money due on the bond, and that the surplus might be paid to him. Held, that the bill prayed in effect for the dissolution of the com- pany, and therefore, that all the shareholders ought to have been made parties to it. — Abraham V. Hamnay, 13 Sim. 581. A bill for a partnership account, and a receiver during the existence of the partnership is not de- murrable merely on the ground that a dissolution is not prayed, and therefore, where, to a bill by one partner against another, alleging that the de- fendant, by conducting himself in violation of the partnership contract, excluding the plaintiff, and applying the assets to his own use, sought to force the plaintiff to dissolve the partnership before the end of the term, and praying an ac- count of the partnership transactions and a re- ceiver, but no dissolution, the defendant answered one interrogatory, and submitting that the bill was demurrable, declined, under the 38th Order of August, 1841, to answer the remainder. Exceptions for insufficiency were allowed and sustained. — Fairthorne v. Weston, 3 Hare, 387. XIV. — Bankktiftcy, In Case op. 1. Proof against Joint Estate 351 2. Proof against Separate Property 3.52 3. Between Joint and Separate Property 353 XIV., 1. Proof against Joint Estate. Members of a brewing firm execute a joint and several bond to the bankers of the firm conditioned to be void, if the brewers paid the balance due at any time to the bankers when thereunto requested, such request to be in writing and to be sent to the bank. On the bankruptcy of one of the obligors. Held, that a request must have been made betore the bankruptcy to entitle the bankers to prove. But it appearing that part of the amount was due on bills of exchange which had been dis- honoured and which the bankers had in writing, required the brewers to pay, without, however, refen-ing to the bond : — Held, that this was a sufficient request. The bills were drawn or accepted by the bank- rupt and two other directors of the brewing firm, describing themselves as such directors, but not otherwise purporting to bind the firm. Held, that this created no separate liability of the bankrupt, entitling the bankers to prove on the bills alone.— £a; parte Flintoff, 3 M. D. & D. 726. A. and B., who are partners, and C, as their surety, give a joint and several promissory note to D., by which they "jointly and severally promise to pay" to D. the amount of a partner- shijidebt due from A. and B. The note is signed by A. and B., not as individuals, but in their partnership firm, and by C, the surety. Held, that this note could not be treated as the several note of each one of the three, but as the several note only of the surety, and the joint note of A. and B., and that on the bankruptcy of A., who had survived his partner B., the holder of the note could only rank as a creditor against the joint estate. — Ex parte Wilson, 3 M. D. & I). 57. A. survives B., his partner, and continues the business in the same firm of " A. & B." At the time of B.'s death a large balance was owing by them to their bankers, to whom A., some time after B.'s death, indorses several bills in the partnership firm of A. and B. Held, that it could not be inferred from this fircumstance alone, that the bills were so indorsed upon a partnership transaction of A. and B., and that t;.e bankers might prove the amount of the bills against the separate estate of A. — Id. The rule that a joint creditor cannot prove against one of his debtors if another be solvent, is not confined to cases of partnershii^, but ap- plies to co-contracturs generally. — Ex parte Field, 3 M. D. & D. 95. The rule that a joint creditor suing out a sepa- rate fiat shall receive dividends on his joint debt out of the separate estate, pari passu, with the separate creditors, applies to a case where, besides the joint debt, there is due to the joint creditor from the bankrupt a separate debt of sufficient amount to support a fiat. The point having been decided against the creditor by the commissioners, and by the Court of Review ; Held, that ho was not entitled to costs. — Ex parte Burnett, 2 JI. D. & D. 357. A. and B. dissolve their partnership, when B assigns all the joint property to A., among which are debts due to the firm to the amount of £60, but no notice of the assignment is given to the debtors. A. and B. severally Liecome bankrupts. Held, that a joint creditor, who had proved under the separate fiat against A., was entitled to re- ceive dividends on his proof. — Ex parte Taylor 2 M. D. & D. 753. Creditor not allowed to retire from proof against joint estate, and to tender one aguin.^t separate estate without special grounds. — Ex parte Dixon, 2 M. D. & D. 312. Joint creditors, who have proved under a sepa- rate fiat, are entitled to receive a dividend on their proofs out of the surplus of the separate estate before the separate creditors are paid in- terest on their debts. A petition by joint creditors for this purpose should be served upon the bank- rupt's executor. — Ex parte Wood, 2 M. D. & D 282. Three partners to secure a joint debt, deposited with their creditor the title deeds of an estate belonging to two of the partners. Quare: whether the creditor can prove for the whole amount of his debt against the joint estate without first realizing his security.- — Ex parte Davenport re Buxton, 1 M. D. & D. 313. Two of three partners against whom a joint fiat had issued, were members of a joint stuck banking company, the firm of the three being jointly indebted to the banking company at the time of their bankruptcy. Held, that the banking company could prove against the joint estate of the three.— i'j; parte Law, re Hague, 1 M. 1). & D. 16. XIV., 2, Proof against Separate Property. Two of six partners who had given a confi- dential clerk a general authority, in writing, to 352 Proof against PARTNERS AND PARTNEllSHIPS. Separate Properly. sign bills and notes on behalf of the firm, direct the clerk to sign four promissory notes in the name of the firm, payable respectively to one or the other of the two partners, who claimed to be creditors of the aggregate firm in respect of an excess of capital advanced by them for the pur- poses of the partnership. The two partners afterwards indorse the notes to a separate cre- ditor for a private debt of one of the two. Held, that, although as between these two partners and the other members of the firm the notes were un- justifiably created and possessed by the two, yet, in the absence of all fraud or connivance in the transaction by the party to whom the notes were indorsed, the firm of the six were liable for the amount, and that on the bankruptcy of the firm the holder of the notes had no right to prove the amount of them against the joint estate. — Ex parte Bushell, 3 M. D. & D. 615. A customer deposits a box containing various securities virith his bankers for safe custody, and afterwards grants a loan of a portion of such securities to one of the partners in the banking house for his own private purposes, upon his de- positing in the box certain railway shares to secure the replacing of the sureties thus lent. This partner afterwards, for his own purposes and without the knowledge of the customer, sub- tracts the railway shares, and substitutes others of less value. Held, that as the proceeds of the railway shares were not applied to the use of the partnership, the banking firm were not answerable for tliis tortuous act of their partner for his own benefit, and, consequently, that the customer had no right of proof against the joint estate for the amount of the difference between the value of the shares subtracted and those that were substi- tuted.— Ex parte Eyre, 3 M. D. & D. 12 ; I Phil. 227. Held also, that the partners were not charge- able with any loss occasioned by this subtraction of the shares, on the ground of negligence, and that even if they were, it would be a claim for unliquidated damages, and, therefore, not prove- able against the joint estate. — Id. A. carries on the business of a grocer sepa- rately, and also that of an iron founder, in part- nership with B. After this trading for lour years he sells off the stock of the grocery business, and retires wholly from that trade, investing the pro- ceeds in the iron-foundry business, which, >vith the exception of a small sum brought in by B., constituted the whole capital of the partnership. A joint fiat is issued against A. and B., si.'iteen months after A. had retired from his separate grocery trade. Held, that the creditors of A., in the grocery trade, could not prove against the joint estate of A. and B. — Ex parte Graham, 2 M. D. &D. 781. A consigment is made by one firm to another through a third, who make an advance to the first on an agreement for a lien upon the return proceeds. The proceeds are accordingly remitted to them, but before their arrival the consignors have dissolved partnership, and separate Hats have issued against each of them. By the disso- lution deed it is agreed that a certain portion of the partnership credit should belong to, and a certain portion of the partnership debts should be paid by, one of the partners, to whom, in pursu- ance of this agreement, the assignee of the other partner transfers all his interest in the above- mentioned return proceeds. Held, that this in- terest constituted separate, and not joint estate.— Ex parte Birley, 2 M. D. & D. 354. A small debt, £1 Us. 6d., due to the firm be- fore its dissolution. Held, under the circumstances of the case, not joint property, for the purpose of preventing a joint creditor from receiving divi- dends out of the separate estate. — Id, A., B., and C, who are in partnership, are joint owners of a ship with D., the managin" owner, who contracts a debt with the petitioners for goods supplied for the use of the ship. A., B., and C. become bankrupt. Held, that the petitioners could not prove against the joint es- tate, but only against the separate estate of each of the bankrupts. — Ex parte Benson, 2 M. D. & D 750. By a partnership deed, a partner entitled to one-fourth of tlie capital and profits, engages to furnish more than his proportion of the capital, if required, it being agreed that the excess should, at his death, be secured to his representatives by a mortgage of the partnership property, he having power to appoint by his will one or more of liis sons to succeed to his fourth part. By his will he appointed such of his sons to succeed him as should be selected by his widow and one of the partners, whom he appointed his executrix and executor, but directs that during the minority of the sons, and after providing for their mainten- ance, the surplus profits of his share should fall into his residuary estate. At his deatli, his sons being minors, the business is carried on as belore the testator's representatives taking his place, but not taking or calling for any security for the debts due to his estate, in respect of the excess of capi- tal advanced by him. On the widow dying, and the surviving partners becoming bankrupt : — Held : — First, That there could be no right of proof, on behalf of the testator's estate, against the joint estate of the surviving partners, in respect of his debt. Secondly, That even if there could, those interested in the testator's estate were not entitled to have the dividends stayed or a fund reserved till the hearing of a cause, which was to decide upon their right to a lien on their partnership property in respect of this debt, the legal right of the general body of creditors to a dividend never being delayed at the instance of a creditor claiming a preference, except in clear cases, or where his equity is manifestly pre- ponderant. — Ex parte Thompson, 2 M. D. & D. 761. A partnership firm mortgage part of the joint estate to secure a joint debt, and by the mort- gage deed, covenant jointly and severally for pay- ment of the debt. Held, that on their bankruptcy the mortgagee might prove the whole debt against the separate estate, without giving up the security. — Exports Shepherd, 2 M. D. &D. 204 ; S. C. nom. in re Plummer, 1 Phil. 56. A member of a joint stock banking company kept an account with them as his bankers, and at the time of his bankruptcy, was indebted to them in a large balance on such banking account ; the company being also, then considerably indebted to various other persons. Held, that the company had a right of proof against the bankrupt, for the balance due on such banking account. — Ex parte Davidson, re Caldecott, 1 M. 1). & D. 648. A. and B., as joint executors, carry on their testator's trade in co-partnership, for the benefit of his family, and it is arranged between them, that A. should alone draw and accept bills and manage the cash transactions. A. having refused to accept any more bills drawn by H. and D., B, unknown to A., authorises her son to accept thciPi and A. and B. afterwards become bankrupt. When Granted. PATENT. Renewal of. 353 Held, that the holders of these bills, could not prove them against the joint estate. — Ex parte Holdsworth, re Robinson, 1 M. D. & D. 475. A trader, carrying on business in Kegent-street but residing elsewhere, associates the name of his son with his own in the busmess ; the son, how- ever, having no share in the profits, but merely a salary of £120 a-year. The house in Regent- street was leased to the father, the ground floor being used for the purposes of the business, and the other parts let out in lodgings, the rents of which were placed to the father's private account, and all taxes and other outgoings were also placed to his debit in the partnership books. The son was permitted to occupy apartments in the house for his own residence, but the father had the control over the entire property. Held, that this property was not distributable among the joint creditors, but belonged to the separate estate of the father. — Ex parte Miirton, re Ashley, 1 M. D. & D. 252. XIV, 3. Between Joint and Separate Property. By the terms of a deed of trust executed by two partners for the benefit of certain persons, some of whom were the joint creditors of the firm, and others the separate creditors of one of the partners, it was declared that the joint credi- tors should be paid within a year after the execu- tion of the deed, and that the surplus of the joint estate, after payment of the joint creditors, should be applied for the benefit of the separate creditors. Joint estate, sufficient to pay the joint creditors, was got in within the year, but in consequence of difficulties in relation to the separate creditors, the trustees made no distribution of any of the funds, but caused a suit to be instituted for car- rying into execution the deed of trust, and in the meantime invested, at interest, both the joint and separate estate. TJpon the court, some years afterwards, decreeing payment to the various cre- ditors ; Held, that the joint creditors ( although their debts did not in their nature carry interest) were entitled to be paid out of the joint estate interest at £i per cent, upon their respective debts, from the time appointed by the deed for payment of the principal monies due to them, and that until the joint creditors had received satisfaction, both of their principal and interest, the separate creditors were not entitled to receive any payments whatever out of the joint estate. — Pearce v. Slocombe, 3 Y. & C. 84. PATENT. I. Pmnciples on which Geanted . . 353 II. Renewai op 353 HI. Enrolment 354 rV. SPEOiFiOAmoN 354 V. Infringement , 354 VI. License pbom Patentee 354 Vll. Void .*. . 356 Vlll. Clerioai, Eeeohs 355 IX. Proceedings in case of Infringe- ment 355 I.— Principles on which Granted. Amending the law touching letters patent for inventions, 5 & 6 W. 4, c. 83 ; amended by 2 & 3 Vic, c. 67. The user of an invention in England, prior to the date of letters patent granted for Scotland, will invalidate the Scotch patent. The Judicial Com- mittee of the Privy Council, under the 5 & 6 Win. 4, c. 83, s. 2, refused to confirm a Scotch patent, the invention being used in England be- fore the date of the Scotch patent. — In re Robin- son's Patent, 6 Mo. 65. A person, to be entitled to a patent for an in- vention, must be the first and true inventor, and there must not be any public use thereof, by himself or others, prior to the granting of the pa- tent. Trials of an incomplete invention, by waV of experiment, are not evidence of " prior use, ' for the purpose of invalidating a patent. Prior use, for that purpose, means public use and exer- cise of the invention. Evidence of the existence of a completed invention once in public use, al- though abandoned, or the use long continued but not altogether lost sight of, is sufficient to invali- date a patent subsequently granted for the same invention. Held, therefore, that onthetrialof an issue " whether an invention described in a patent, is not the original invention of the paten- tee," it is an erroneous direction, in law, to 'the jury, to charge them that the evidence of prior public use, to invalidate the patent, must shew thet " the use was continued to the time when the patent was granted, not to the very exact period, but that it must have been known and used as a useful thing at the time." — Ilru. &W. 317. "Whether a pul4ic company, can contract itself, out of powers given it by the legislature for the public protection— QwiEre. Semble : not. — 400 PUBLIC POLICY— RAILWAY. Sreynton v. The London and North Western Rail- way Company, 10 Beav. 238. N. W., under the will of an ancestor, was entitled to an estate in remainder in Blaokacre, expectant upon the decease of his uncle E. W., without male issue ; and had also a remote in- terest in Whiteacre, expectant upon the same event. E. W. was twice married ; b}' his first wife he had issue only two daughters ; by his second, who was sister of his first wife, he had several issue, both sons and daughters. TJnder these circumstances in 1817, N. W. threatened and attempted to institute proceedings of a civil character in the Ecclesiastical Court, against E. W. and his second wife, for the purpose of annulling their marriage, and rendering their issue illegitimate. A compromise was proposed, and after much deliberation carried into effect by articles of agreement. By these articles, E. W. agreed to secure certain provisions for the female issue of N. "W., and in consideration thereof N. W. covenanted not to impeach E. W.'s said second marriage ; the articles also contained a proviso, that in the event of the successful im- peachment of E, W.'s marriage by any person, all the agreements of the articles should be void. In 1838, E. W. died, and his marriage was never disturbed. On a bill filed by his executor and eldest son, to set aside the deed of compromise of 1817 : — Held, that the arrangement was a fair family transaction, neither inconsistent with, public policy nor the.principlesof this court ; and the bill was dismissed with costs. — Westby v. Westby, 2 Dru. & W. S02. A. covenanted with B. a single woman, by whom he had two children, to pay her for her life, subject to the proviso thereinafter contained an annuity of £40. Provided, that if she should at any time thereinafter happen to man-y with any person, then the annuity should be reduced to £20 ; Held, that the proviso was void as being in restraint of marriage. — Grace v. Webb, 15 Sim. 384. An agreement by a solicitor for valuable consi- deration, not to practice as a solicitor in any part of Great Britain for twenty years ; Held, valid. — Whittaker v. Bowe, 3 Beav. 383. An agreement to put an end to a suit for nullity of marriage on the ground of impotency, is not contrary to public policy. — Wilson v. Wilson, 14 Sim. 405. PUBLICATION. See Pr. Evidence. PTJRCHASEK. See Vendor and Pukchaseb. RAILWAY. BAILWAY. I. CONSTUUOTION 400 II. — Rights and Liabilities op Share- holders 402 III. — Compulsory Clauses 403 IV. — Securities and Investments 403 V. — Dealing with Incapacitated Per- sons 404 VI. — Agreements By and Between 404 VII. — Agreement for Sale op Shares 405 VIII.— Lands Clauses Consolidation Act 405 IX. — Suits By and Against 406 1. — Construction. Attaching conditions to the construction of future railways, 7 & 8 Vic, c. 15, U. K. Prohibiting the issue of Loan Notes and other illegal securities by Railway Companies, 7 & 8 Vic. c. 85, s. 19, U. K. Pacilitating the dissolution of certain Railway Companies, 9 & 10 Vic, c 28, G. B. & I. Notices given, and plans and sections of an intended railway deposited, in pursuance of the Standing Order of the Houses of Parliament, pre- vious to an application for an act, are not to be regarded in construing that act afterwards, unless they are incorporated therewith. — North British Railway Company v. Tod, 12 Clk. & Fin. 722. A vertical deviation from the level of a railway not exceeding five feet, calculated with reference to the datum line, shewn in the plans and sections deposited in pursuance of the Standing Orders of the Houses of Parliament, is within the powers of deviation, conferred by the Railway Clauses Con- solidation Act for Scotland, (8 & 9 Vict. c. 33, s. 11,) although the deviation may exceed five feet, calculated with reference to the surface line, shewn on the said plans and sections. — Id. The three months allowed by the 8 Vict. c. 18 s. 23, to " the arbitrators or their umpire," for making their award, is not one and the same period, but the umpire has a new period of three months for making his award, iirom the time when thearbitration devolved uponhim. — Skerratt V. North Staffordshire Railway Co, 2 Phil. 475. Observations as to the extent of the power given by the Railway Acts.— Cobnan v. T/ie Eastern Coufities Railway Co., 10 Beav. 1. The directors of a Railway Company, for the purpose of increasing the traffic, proposed to guarantee certain profits, and secure the capital of an intended Steam Packet Company, who were to act in connection with the raUway. Held, that such a transaction was not within their powers, and they were restrained by injunc- tion. — Td. A Railway Act enabled the proprietors of the railway, to levy a toll upon " all coals shipped on board any vessel &c., in the port of Stockton- upon-Tees aforesaid." Held, that these words meant the whole port of that name, and were not restricted to the port of the town of Stockton- upon-Tees ; that there was not such an ambiguity Consh-ttction. EAILWAY. Construction. 401 in the enacting part of the act, as to compel a reifereuce to the preamble of it, and that the word " aforesaid," did not limit the expression to the port of the town, as described in that pre- amble. — Stockton and Darlington Railway Com,' pany, v. Barrett, 1 1 Clk. & Fin. 590. By the Southampton Railway Act, it was en- acted, that it should be lawful for the company, according to the provisions and subject to the restrictions of the act, to construct in, upon, across, under or over any lands, streets, roads, rivers, &c., such bridges, arches, piers, &c., as they should think proper; that where any bridge should be erected for carrying the railway over or across any road, the span of the arch should be formed so as to leave a clear and open space under every arch, of not less than fifteen feet ; that in all cases in which any road should be found necessary to be cut through, diverted, taken, or so much injured as to bo unpassable for pas- sengers or cajriages, the company should, before any such road should be so cut through, &c., cause a sufficient carriage or horse road, as the case might require, to be made instead thereof, as convenient for passengers and carriages as the road to be cut through, &c., or as near thereto as might be, and should cause the same to be put into good order where the former road could not be more easily restored ; and when the road cut through, &c,, should be a turnpike road, the sub- stituted road, if temporary, should be set out and made as aforesaid, and the principal road should be restored within six months ; and the railway, when it should cross such turnpike toad, should be constructed and kept in repair so as to prevent, as far as practicable, any obstruction to the pas- sage along the road. Held, that the company in carrying a bridge over a turnpike road, might erect the piers upon the road, and were not bound to leave more than a clear open space of fifteen feet under each arch, notwithstanding, the original width of the road, would be consider- ably lessened thereby, — Att. Gen. v. London and SotUhampton Railway Co., 9 Sim. 78. By a railway act it was enacted tnat, if the rail- way company should be desirous of purchasmg any house, garden, yard, warehouse, building, or manufactory, and tiie owner should signify his inclination to sell the whole of such house, garden, yard, &c., he should not be compelled to sell to the company part only, or less than the whole of such house, garden, yard, &c. Held, the yard for bonding foreign timber, in which there were a deal shed and two buildings containing saw- pits, was not a yard within the meaning of the act. — Stone v. Commercial Railway Co., 9 Sim. 621 . A railway act provided that it should not be lawful for the railway company to make or estab- lish any public station, yards, wharfs, waiting, loading, or unloading places, warehouses or other buildings, and conveniences for the depositing, receiving, loading, or keeping any passengers or cattle, or any goods, articles, matters, or things, upon the estate of E.. G., without his consent. Held, on demurrer, that the word "public" did not necessarily over-ride the whole sentence ; and that, if it did, then that, from the subsequent clauses, every convenience coimected with the railway must be considered as for the public use. — Gordon v. Cheltenham Railway Co., 5 Beav. 229. A private act of parliament, made for the con- struction of a railway, gave to W., a landed proprietor, through whose land the railway was to pass, "ike sum of one half-penny per ton upon all goods and articles upon which a tonnage duty is charged or chargeable, in virtue of this act." The section which empowered the railway com- pany to levy a tonnage duty, contained this clause : — "For every carriage, conveying passen- gers or goods, or parcels not exceeding five cwt.," a sum named. There were other clauses, fixing the duty payable for goods, but there was no other which referred to passengers. Held, affirming the decree of the Court of Session, that the company was empowered to levy a tonnage duty on car- riages, according to their weight, when containing passengers, and that the sum to be paid to W. must be calculated on the tonnage so levied. W. had for some years received money on the tonnage levied on goods and parcels alone. Held, that this did not prevent him from afterwards claiming payment on the tonnage duty on passengers. — ■ Edinburgh Railway Co. v. Wauchope, 8 Clk, & Fin. 710. A railway company by the terms of their act had power to make a certain number of sub- stantial bridges of stone, brick or iron, over a river, provided the arches were of certain dimen- sions, and they were required, during the progress of constructing the bridges, to leave an open un- interrupted navigable water-way of at least thirty feet in width, and twenty feet in height above the ordinary surface of the water. By two sub- sequent sections of their act they were prevented from making any other bridges, save as were thereinbefore provided for, or in any manner to obstruct the navigation, save as thereinbefore- mentioned. But these sections were followed by a general section, which gave them power for the purposes of the act, and, according to its provi- sions and restrictions, to construct a great variety of works either temporary or permanent, and, amongst other things, bridges over rivers. The company commenced making a permanent bridge, and, for that purpose, erected a temporary one, leaving the required water-way, and they used the temporary bridge not only for the purpose for which it was built, but for the additional purpose of carrying earth over to raise an embankment on the opposite side of the river. Held : — First, that they had a right, upon the construction of their act, to build the temporary bridge for the pur- pose for which it was intended ; and, secondly, that they had a right to use it for the additional purpose, provided they did not thereby occasion a greater obstruction in the navigation than they otherwise would have done, or continue using it for that purpose after the permanent bridge was finished.— PriesWcy v. Manchester and .Leeds Railway Co., 4 Y. Ss C. 63. Acts of Parliament giving railway companies power to build bridges must be expounded with reference to the peculiar mode of construction of bridges in railways. — Id. Where a person interested in a long term of years, in certain property, agreed by mistake to sell the fee simple of the property to the com- pany. Held, upon the construction of the rail- way act, that the reversioner was barred, and that the transaction was equivalent to selling the fee. — Ex parte Jones, 4 Y. & C. 466. "Costs in consequence of the purchase," Held, not to carry costs of the interim invest- ment in the funds. — Ex parte Hirst. 4 Y & C 468. , i.«<.. A small sum of money in court, under a railway act, to be laid out in lands to be settled " to the like uses," ordered to be applied in new erections. Ex parte S/iaw, 4 Y. & C. 606. Where money is in court under a railway act DD 402 Rights and RAILWAY. lAahilities of Shareholders, previous to being laid out in lands to be settled " to the like uses," the court will lend its aid to an advantageous purchase beyond the amount of money in the court, and will direct the extra costs to be paid out of the money in court. — Ex parte Newton, 4 Y. & C. 518. Upon the construction of a railway act, Held, that the costs given by the act in relation to the payment of certain dividends had reference to the costs of obtaining the order for payment, and not to the costs of the payment itself.— £ar parte Althorpe, In the matter of the Hull and Selby Rail- way Act, 3 Y. & C. 396. II. — Rights and Liabilities of Shareholders. A railway company having resolved, on the 25th of July, to create a certain number of new shares, gave at the same time an option to every registered proprietor to take a certain number of these shares, provided he declared such option on or before the 10th of August following. One of the registered proprietors, who was resident at Naples, was not apprised of the resolutions until the 12th of August. But on that day he wrote to the Secretary to the Company, declaring his option to take his proportion of the new shares. Held, that the time fixed by the resolutions was final, and, consequently, that the plaintiff's de- claration was too late. — Pearson v. The London and Croydon Railway Co., 14 Sim. 641. A railway company resolved to raise a sum of money upon loan notes, payable at the end of five years, bearing interest at £5 percent., in the mean time, with an option to the holders to con- vert them, at the expiration of three years, into shares of the company at a certain rate of pur- chase under the powers of an Act of Parliament, to be applied for as early as possible, and the company advertised for tenders accordingly. One-half of the loan to be paid to the company when the tenders should be accepted {February, 1842) ; one-quarter on or before the 15th of April ; and the other quarter on or before the 15th of July following. The loan was made by various persons, to whom on the payment of the last instalment (July, 1842), loan notes were de- livered, promising to pay the sums expressed therein on the 15th February, 1847, with an in- dorsement thereon referring to the resolution, and intimating that in pursuance thereof applica- tion was intended to be made to Parliament for an act, under the terms of which the bearer would be indebted on the 15th February, 1845, provided previous notice was given to convert the loan notes into shares at the price mentioned in the resolution. An act was afterwards obtained enabling the company, for the purposes therein- mentioned, to issue new shares of such amount, and to be appropriated and disposed of in such manner, for such prices, and by such ways and means as by the order of a meeting of the com- pany should be determined. By a meeting of the company subsequently held, it was resolved, that the new shares, authorised by the act, should be raised and allotted to and amongst the holders of loan notes, in the manner, and upon the terms, directed by the act. Held, that the eifect of the act, and the subsequent resolution of the company was not to allot the new shares amongst all the^ loan note holders unconditionally, but only as they had acquired a right to such allotment by virtue of their antecedent contract. — Campbell y. The London and Brighton Railway Co. 5 Hare, 519. That the term of five years at the end of which the notes were to be paid off must be reckoned from February, 1842, when the first instalment of the loan was advanced ; and that the three years during which the holders were to have the option of converting the notes into shares must be reckoned &om the same time. — Id. That from the nature of the property which was the subject of the option, time was of the essence of the contract. — Id. That the indorsements on the loan notes did not enlarge the time of the option, by continuing it imtil Umited by an act of parliament or other- wise ; but whether the company had power to restrict the option by requiring notice before the 15th February, 1845, (the end of the three years) or whether the loan note holders accepting the notes with the indorsement expressing that re- striction without objection or protest, would be bound thereby — Qiusre. — Id. The company could only be understood as contracting to apply an act of parliament having the effect suggested, but could not be understood as guaranteeing the lenders of the money that such an act should be obtained. — Id. Construction of a EaUway Act as to the forfeiture of interest on shares, upon which the calls were not all paid up. — Naylor v. South Devon Railway Co., 1 De G. & S. 32. A testator, at the time of his death, was enti- tled to one hundred and twenty shares in the Great Western Railway Company. For thirty- eight of these, he had been an original subscriber, and had signed the parliamentary contract under- taking to pay the amount subscribed within ten years, to the directors to be appointed by the Railway Act. The remaining eighty-two shares had been purchased by him as scrip. By the act which was passed in his lifetime, the directors had power to compel payment of the monies subscribed, and also to make calls and to enforce the payment of such calls by action, or other- wise to declare the shares forfeited, and to sell the shares. The act also gave the proprietors of shares the right of sale and transfer, declaring in effect, that the vendor ceased to be liable for calls after a proper memorial of such sale £uid transfer. All the calls had not been paid on the shares at the time of the testator's death. After his death the company passed a resolution declaring that the proprietors of shai'es should be entitled to two new quarter shares in respect of each whole share. By his will, the testator had bequeathed thirty shares to A., and thirty shares to B., declaring that the legacies should not be deemed specific, so as to be capable of ademption. Held : — First, That the legatees were entitled to the income of the shares from the death of the testator. Secondly, That the legatees were enti- tled to a proportionable number of quarter shares. Thirdly, That the legatees were not entitled to have the deposits and calls on the new quarter shares, or the calls due on the eighty -two whole shares, or {Semble) the calls due on the thirty- eight original shares paid out of the testator's general estate. Fourtlily, That the legatees, and not the executors, had the right of electing out of which class of shares their legacies should be de- livered to them. — Jacques v. Chambers, 2 Coll, C. C. 435. If a testator dj-ing solvent, bequeaths to A, a given number of articles, forming part of a stock of articles of the same description: as, for in- Compulsory Clauses. RAILWAYS. Securities and Investments. 403 stance, if he has twenty horses in his stable, and bequeaths to A. six of them, A. has the right of selection. — Id. The purchaser of " script certificates" in a pro- posed railway company which had not obtained any act of parliament. Held, after the act had passed, and in the absence of any special con- tract, not bound to take a transfer of the corres- ponding shares from his vendor, or to indeumify him from the amount of calls subsequently made. — Jaekaon y. Cocker, 4 Beav. 69. ni. — Compulsory Clauses. An Act of Parliament authorised a railway company to take lands necessary for the railway works, on payment or tender of such sums of money as should have been agreed upon or awarded by a jury in the manner directed by the act, and by the section of the act for settling differences between the company and owners and occupiers of or persons interested in lands to be taken, it was enacted, that if any such person should not agree with the company as to the amount of the purchase money, or should refuse to accept such purchase money as should be offered by the company, or should for twenty-one days after notice to him in writing, neglect or refiise to treat, or should not agree with the company for the sale of his interest, &c., or should not disclose his title, if required, or in any other case where agreement for the purchase could not be made, the company might issue a waiTant to the sheriff to summon a jury to assess the sum to be paid for the purchase of the lands, and the sheriff should give judgment for such sum. The company issued a warrant, purporting to be pursuant to the powers given by the act, and requiring the sheriff to summon a jury to assess the value of the plaintiff's land, &c. The jury was summoned, and assessed the value, the owner of the land attending and protesting that the company had no right to take his lands, as not being described in the schedule to the act. An inquisition was recorded, purporting to be taken "pursuant to the act, on the oaths of jurors duly empanelled in pursuance of the warrant to the inquisition annexed, who assessed the sums to be paid for the property particularised in the ■warrant, and authorised by the act to be taken for the railway, whereupon the sheriff, in pursu- ance of the act, gave judgment for that sum." Neither the warrant nor the inquisition stated, that the owner had refused to treat, or had not agreed with the company for the sale of his land, nor that the company had served on him the notice required by the act to be given ; but it ap- peared, aliunde, that he did not agree with the company, and that he had reserved the requisite notices in which, and in the warrant, the property was particularised. Held : — First, that sufficient facts were stated in the inquisition and warrant, to shew the jurisdiction of the sheriff and jury. Secondly, that the empannelling ajury, and an assessment by them, being facts inconsistent with with an agreement, necessarily imply non-agree- ment, and no inquisition is defective for not stating a fact which is necessarily implied by those that are stated. Thirdly, that notice was waived by the party's appearing and not pro- testing for want of notice. — Taylor v. Clemson, 11 Clk. &Fin. 610. Question, whether under the words "railway and works" a railway company had a right, by the compulsory powers of the act, to take a piece of land for the purpose of building a station. Held, that they had. — Coiher v. Midland Bail- way Co., 2 Phil. 469. it is on the ground of a general public good, that the legislature gran* to railway companies the compulsory powers of taking the property of individuals. — Gray v. T/ie Liverpool aiid Bury Railway Co., 9 Beav. 391. In questions between companies and indivi- duals, whose property the former seek to take under compulsory clauses in their acts, the court does not strain the construction of the act in favour of the former. — Id. When the power of fully completing a railway, according to the intention of the legislature, depends on the voluntary consent of individuals having property on the proposed line, such con- sent ought be obtained by the company before they proceed in the undertaking. — Gray v. The Liverpool and Bury Railway Co., 9 Beav, 391. Whether, where it is evident that the line of a railway cannot be fully completed, the company have a right compulsorily to take any part of the property in the proposed line — Qucere. — Id. Before the expiration of the time allowed to a railway company to take lands compulsorily, the company gave the plaintiff notice of their intention to take his lands, and summoned a jury to assess the value of them, but the time expired before the jury gave their verdict. The Vice-Chancellor Held, that the company were not entitled to take possession of the lands, and restrained them from so doing. But the Lord Chancellor, on a motion being made to discharge the order, did not agree with his Honor, and directed the opinion of a court of law to be taken on the point. — Brocklebank V. The Whitehaven Junction Railway Co., IS Sim. 632. A railway company, being empowered by their act to take, amongst other lands, a close belonging to the plaintiff, gave him notice of their intention to take a certain part of it ; and more th£m a year afterwards, they gave him notice of their intention to take the remainder. The first part was intended for making the railway, and the remainder for making a station, both of which their act em- powered them to make. Held, that the power of the company, with respect to the plaintiff's close, was not exhausted by their first notice. — Simpson V. The Lancaster and Carlisle Railway Co, IS Sim. 580. IV. — Securities and Investments. The condition of a bond given by a railway company, imder the 85th section of the 8 Vic, c. 18, in taking possession of land before the pur- chase money was ascertained, was, " on demand, to pay to the owner, or on demand, to deposit in the bank, the amount of such purchase money, when determined." Held, that the condition was bad, as giving the party claiming to be owner the option of compelling payment, either to him- self or into the bank, whatever the title might turn out; and an injunction was granted till a proper bond should be executed. — Poynder v. The Great Northern Railway Co., 2 Phil. 330. Upon the construction of a railway act the court declined to make any order, as to me costs of an application by vendors to have payment out of court of part of the purchase money and invest- ment of the remainder. — Ex parte Molyneux, 2 Coll. C. C. 273. 404 Incapacitated Persons. RAILWAYS. Agreements By and Between Form of order of reference as to temporary investment on a proposed real security of money paid into court upon the puichase of land by a railway company. On the master reporting against the proposed investment, and that no investment on real security would be for the benefit of the parties :— Held, that it was compe- tent to the master so to report ; and the court declined to order the investment to be made. — Ex parte Franhbjn, re Great Northern Railway Act, 1 De G. & S., 528. Notice given to a landowner by a railway com- pany, of their intention to summon a jury, does not render it inequitable for them to proceed in the meantime, under the 8 Vic, c. 18, s. 85, to obtain possession. Nor is it sufficient ground to restrain the company from changing the aspect of the property, that the jury may be thereby pre- vented from accurately awarding compensation, vrith reference to its original state. Anomination by the justices, under 8 Vic, c 18, s. 85, of the surveyor employed by the company, and who has already, in the course of such employment, valued the land, does not necessarily invalidate a bond under the section. The approval of sureties in a bond, under the same section, may be given by the justices on an ex parte application of the com- pany ; but if such a bond be made to landowners jointly, they being tenants in common of the land, it is not a sufficient compliance with the act, — Semble, that the condition of the bond must be for payment absolutely, and not on demand. After service of a subpoena, and the appearance of a defendant, a motion for an injunction cannot be made^ — Ex parte Langham v. Great Northern Railway Co., 1 De G. & S. 486. When, under a railway act, the company are liable to the expenses of " all purchases " to be made by virtue of the act. Th& vfill include the expenses of investing the money in the funds, previously to its being laid out in lands to be settled to the like uses as the land purchased by the company. — Ex parte the Bishop of Durham, In the matter of the Newcastle and Carlisle Railway Act, 3 Y. & C. 690. \. — Dealing with Incapacitated Persons. A Railway Company having, under their act of parliament, power to contract with incapaci- tated persons, for the purchase of lands, and a right, upon payment of the purchase money into the bank, to the fee simple of the purchased lands, contracted with an incapacitated person who died before the purchase money was paid. Held, that the title of the company could not be completed, without the assistance of a Court of Equity. — Midland Counties Railway Company v. Oawin, 1 Coll. C. C. 74. In the absence of special clauses for that pur- pose, the effect of a railway act is not to alter the course of devolution of property without the con- sent of the owner, and therefore, if a company, by virtue of their act, contract with an incapaci- tated person for the purchase of lands, the pur- chase money is to be considered as real and not as personal es\.3.te.— Midland Counties Railway Company v. Oswin, 1 Coll. C. C. 80. VI. AOEEEMENTS By AND BETWEEN. During the progress of a railway bill through parliament, the promoters of the bill agree with an owner of land on the intended line, that if the bill shall pass, they will endeavour in the next session, to obtain the sanction of parliament to the deviation of the line. Whether such an agreement is legal — Quiere.— Simpson v. Lord Howden, 3 Myl. & Cr. 97. The B. and C. Railway Company, agree with the plaintiff, to give him for fourteen acres of land £20,000, to be paid by instalments ; other parties, called the C, and B. Railway Company, at the same time start a rival line, and both companies go to parliament. In committee, it is agreed that the merits of both lines shall be referred to two members of the committee ; and the solicitors for the rival companies at the same time signed an agreement, by which it is stipulated, that the adopted company shall take the engagements with landholders, into which the rejected company may have entered ; and to this agreement, the sanction of two members of each company and also the plaintiff, is subsequently obtained, and is signified by a written memorandum of approval. The C. and B. Company is adopted, and is in- corporated by Act of Parliament. Their line will require sixteen acres of the plaintiff's land, in a different place. The plaintiff files a bill against the C. and B. Company, stating these facts, and seeking to compel them to keep the agreement entered into by him with the B. and C. Company, from entering upon any lands be- longing to him, tiU after payment of the first instalment which is already due, and from pro- ceeding, after subsequent instalments become due, till such instalments shall have been paid. The defendants demur generally to the bill ; demurrer overruled. — Stanley y. The Chester and Birkenhead Railway Co., 3 Myl. & Cr. 773. Certain persons intended to form a railway &om A. to B., which was to pass over the plaintiff's estate. The plaintiff opposed the project ; but on the agent for the projectors agreeing in writing to pay him £20,000 for the portion of his estate over which the railway was to pass, he consented to withdraw his opposition. At the same time, certain other persons intended to form a railway between the same termi7ii, but by a different line, which also passed through the plaintiff's estate, but not through the same part of it sis the former line. Fourteen acres of the plaintiff's land were required for the former railway, and sixteen acres for the latter. The plaintiff opposed the latter railway also. The agents for the rival projectors then entered into and signed an agreement (which was approved of and signed by the plaintiff's agent), by which they agreed that the first line should be abandoned, and the second adopted, and that the adopted line should take the engage- ments entered into with the landowners by 5ie abandoned line ; and thereupon, the plaintiff withdrew his opposition to the adopted line, and the Act of Parliament for making the second railway, and for incorporating the projectors of it, was passed. Held, that the incoiporated com- pany were bound to perform the agreement made with the plaintiff by the projectors of tlie first railway. — Stanley v. Chester and Birkenhead Rail- way Co., 9 Sim. 264. Two railways, called A. and B., were prqjected by different parties, to run from M. towards N. The line of A. passed through the centie of the plaintiff's estate, and the line of B. through a corner of it. The projectors of A. agreed with the plaintiff for the purchase of that portion of his land which they required, and they were to have power to vacate the agreement, in case the act for Agreements By and Behoeen, RAILWAYS. Lands' Clauses, 8^c. 405 making their railway should not pass. Two bills were brouglit into parliament, for forming the railways, and were referred to a committee, at whose suggestion, the two projects were amal- gamated, and an act was passed incorporating the projectors of both railways into one company, and for making a railway partly in a line of A., and partly in a line of U., the latter being the land selected with respect to the plaintiff s estate. Pending the act, the promoters of the two rail- ways agreed with each other, that, where either company should have entered into contracts with landowners whose property might be affected by either line, though in a somewhat different mode, the contracts entered into by the company pro- posing the rejected line, should be adopted by the united company. A copy of this agreement was subsequently sent to the plaintiff by the united company. The projectors of line A. afterwards vacated their agreement with the plaintiff. Held, that the plaintiff could not enforce that agreement against die united company. — Greenhalgh v. Man- chester and Birmingham Railway Co,, 9 Sim. 416. The solicitor who had projected and at his own expense brought forward a scheme for making a railway, entered into an agreement with the persons who became the provisional committee for prosecuting the undertaking, that the costs and expenses should be paid by such solicitor and projector, and that the members of such provi- sional committee should not be personally liable to him for such costs and disbursements, but that the same should be paid out of the funds to arise from ihe deposits to be paid on the shares. Held, that this agreement was not illegal as between the provisional committee, and the shareholders regarded aa trustee and cestiti que trust, inas- much as the trustee was entitled to be indemni- fied by his cestui que trust, in respect of the costs and expenses properly incurred. — Parsons v. Spooner, 6 Hare, 102. Whether the contract to pay future costs out of the deposits was illegal, as between the solicitor and client, attending to the fact, that the client being a trustee, might properly stipulate that he should not be personally liable for the costs to be incurred, but that the same should be paid ex- clusively out of the trust fund — Qtiiere, — Id. Lessees for a long tei-m of years underleased the property to a tenant, who was afterwards ejected for breach of covenant, and gave up the underlease, but did not execute any surrender. The property was sold by the lessees to the Eastern Counties Railway Company. Held, that under the provisions of that act, the whole interest was vested in the company, notwithstanding the want of a surrender ; and an issue was directed to enquire, whether, at the time when the contract was made with the company, the under-lessee had any interest in the premises, and if so, what was the proportionate value of such interest. — Ex parte Issanchaud, In the matter of the Eastern Counties Railway Co., 3 Y. & C. 421. By a railway act, it was enacted that, in case any question shoidd arise, as to the title of the lands to be taken or used for the purposes of the act, the party in possession at the time of the purchase should be deemed to be lawfully entitled, until the contrary should be shewn to the satisfac- tion of the court ; and it further enacted that in case the proprietor, or other party interested in the land, and entitled to receive the purchase money, should be unable to make a good title to the land ; it should be lawful for the company to pay the money into court, to tlie credit of the party interested, subject to the disposition of the court, and thereupon the company's title should be deemed complete. Under this act, the com- pany having contracted to purchase a piece of land of the party in possession, and having enteredinto possession imder the contract, objected to the title, and paid the money into court, to the credit of the party with whom they had so con- tracted. Held, that such party, upon his own affidavit of title, was entitled to payment of the money out of court to his own absolute use. — Ex parte Grainge, In the matter of the Great Western Railway Aets, 3 Y. Se C. 62. VII. — Agreement poe Sale op Shakes. The court will decree a specific performance of an agreement for the sale of a certain number of shares in a railway company. A parol agree- ment, for the sale of such shares is binding, for they are neither an interest in, or concerning lands within the 4th' section of the Statute of Frauds ; nor goods, waxes, or merchandises, within the I7th section. — Duncuft v. Albrecht, 12 Sim. 189. VIU, — Lands' Clauses Consolidation Act, When a party has beneficial interest in property, proposed to be taken by a railway company ; it is competent for the company to deal with hiin .solely in respect of such interest, and in giving the bond and complying with the other requirements of the 85th section of the Lands' Clauses Consolidation Act, 1845 ; it is requisite for the company only to have regard to the particular interest of the party from whom they so purchase. The circumstance that tile original taking possession by the com- pany had been irregular, from the insufficient amount of the bond given, is no objection to a subsequent bond given in a sufficient amount, so as to exclude the operation of the 85th section. Although, in such a case, a question may arise, as to the time from which interest will be payable, yet the court will not, on this account, restrain the company from proceeding vritli their works, after giving a bond in the terms pointed out by, and complying with, the other provisions of the 85th. section. — Wdleij v. The South Eastern Railway Co., 1 Mac. & Gor. 58 ; 1 Hall & T. 66. A railway company is entitled, under the Lands' Clauses Consolidation Act, to give a second notice to the same landowner, for land within the limits to which their compulsory powers extend, if from unforeseen circumstances, the land taken under the first notice turn out to be insufficient for the authorised purposes of their railway. — Stamps v. The Birmingham and Stour Railway Co., 2 Phil. 673. The sum deposited by a railway company in court, under the 85th section of the Lands' Clauses Consolidation Act, 8 Vic. c. 18, is not subject to any lien for the costs of the vendor, but upra due performance of the condition of the bond mentioned in the same section, the com- pany are entitled to have the money paid out to them, notwithstanding the pendency of a question between them and the vendor, with respect to such costs. — In re London and South Western Ex- tension Railway Act, 2 Phil. 772. Money paid into the bank by a railway com- pany, under the 8£th section of the Lands' 406 Lands' Clauses, ^o. RAILWAYS. Suits By and Against. Clauses Act, ordered to be repaid to them under the 87th section, without any deduction for costs payable by them to the landowner. — In re London and Southampton Railway Act, 16 Sim, 165. Money paid into the bank by a railway com- pany under the 85th section of the Lands' Clauses Act, ordered to be repaid to them under the 87th section, without any deduction for costs payable by them to the landowner. — Ex parte The Great Northern Railway Co., 16 Sim. 169. A landowner refused to accept purchase money awarded to be paid to him by a railway company, because he believed the award to be invalid in law. The Judges of the Court of Queen's Bench, after hearing the question argued at great length, and taking time to consider their judgment, decided that the award was valid. Held, that the landowner's refusal to receive the money, was not a wilful refusal within the meaning of the 80th section of the Lands' Clauses Act. — In re East India Docks and Birmingham Junction Railway Act, Ex parte Bradshaw, 16 Sim. 174. The instrument by which a surveyor is ap- pointed under the 85th section of the Lands' Clauses Consolidation Act need not specify either the lands which the surveyor is to value, or the course of the railway. The sureties in a bond to be given to the land- owner under that section, may be appointed without notice to the landowner, but the money secured by it ought not to be made payable on demand ; the condition of the bond ought to adopt the words of the section, and make the money payable either to the obligee or into the Bank of England, " as the ease may require." Money paid into the Bank under the 86th section, to the credit of Ex parte the promoters of the undertaking, the account of the landowner. Held, to be rightly paid in. A notice given by a railway companyunder the S_2nd section of the Railways' Clauses Consolida- tion Act, of their intention to take temporary possession of land, ought to state for which of the purposes mentioned in that section the land is meant to be used. A notice that the company intend to enter upon the land for those purposes, or some or one of them, is not sufficient. — Poynder v. The Great Northern Railway Co., 16 Sim. 3. A. purchased Greenacre for £1,000, In lieu of Blackacre, which a railway company had taken from him, and for which they had paid £644 into court. The company were ordered to pay A. the same costs as he would have been entitled to •under the 80th section of the Lands' Clauses Act, if Greenacre had cost £644 only. — Sheffield and Lincoln Railway Act, Ex parte Hodge, 16 Sim, 159. By the "Railways' Clauses Consolidation Act," if a railway crosses any turnpike road, then, ex- cept when otherwise provided for by the special act, the road is to be carried over the railway, or the railway over the road. By their special act, a company were authorised to make the railway "in the line and upon the lands delineated" in the plans deposited ; and they were authorised to pass a certain turnpike road on a level, and the deposited plans so represented. The plaintiff agreed to sell to the company a portion of his laud adjoining the road, and the agreement re- cited, that it was purchased for the purpose of constructing the railway "according to a certain plan and section thereof deposited,' &c. Held, that the company, under the acts, had power to make the turnpike road pass under the railway instead of on a level, and that this right had not been destroyed by the agreement with the •plian- tiS.—Breynton v. The London and North Western Railway Co., 10 Beav. 238. IX. — Suits Bt and Against, Upon the construction of a railway act, Held, that the costs given by the act in relation to the payment of certain dividends, had reference to the costs of obtaining the order for payment, and not to the costs of the payment itself. — Ex parte Althorpe, In the matter of the Hull and Selby Railway Act, 3 Y & C. 396. Bill against the directors of a railway com- pany, previously registered, but not incorporated, brought by A. and B. ( alleging themselves to be holders of scrip of certain shares, on which they had paid the deposits on behalf of themselves and all other the shareholders of the company, except the defendants, stating, that the objects of the undertaking had been improperly divested by the defendants, and seeking to charge them with the amount of losses occasioned by their alleged misconduct, and also to have the deposits returned, or the assets administered, and the sur- plus divided. Plea, by one of the defendants, that before the bill was filed, the plaintiff, B., had sold and assigned to one C. the shares in the bUl, mentioned to have been allotted to B., and that, at the time the bill was filed, all right, title and interest in the said shares were vested in C, and that B. had, at such time, no interest therein, allowed ; but owing to the generality of the aver- ments in the plea, as to the transaction con- stituting or assumed to constitute the alleged sale and assignment, the costs were reserved. — Doyle V. Muntz, 5 Hare, 509, Held, also, that the bill could not be sustained on the suggestion that B., although he had parted vrith his interest in the shares, was still liable to third persons, and therefore, entitled to call upon the directors to administer the assets of the company, in discharge of its liabilities. — Id. That the bill could not be maintained on the suggestion, that C, was a party to the suit as being one of the "other shareholders," for whose benefit it was brought, for such other share- holders must be not merely other persons, but persons owning other shares than those held or caused to be held by the plaintifiis named on the record. — Id. That B. was not in such a case suing as a trustee for C, that he was not entitled to sue in that character, and that parties allowed in such cases to represent absent shareholders, must be parties having the beneficial interest in the shares, in respect of which they seek relief. — Id. The Eastern tTnion Railway Company was authorised, by several acts of parliament, to make railways from Colchester to Ipswich ; Ipswich to Bury St, Edmunds and Norwich ; and from Ipswich to Harwich ; and for those purposes to raise monies by shares and loans, not exceeding certain sums in the whole. The same company was also, by a distinct act, authorised to purchase and complete the Hadleigh Junction Railway, and for that purpose, by shares or loan, to raise a sum not exceeding £100,000. In a suit brought by the proprietor of a scrip certificate, for stock forming part of the capital raised in pursuance of the acts, authorising the company to purchase the Suits By and Against. RAILWAYS— REFUNDING. 407 Hadleigh Junction Railway and make the Har- wich line, charging that the company was about to misapply the £100,000, raised under the Hadleigh Act, in the construction of the Norwich line, and seeking to restrain such misapplication ; the demurrers of the company and directors, for want of equity, were overruled. Where a company is authorised by act of parliament to raise monies for a specific purpose only, it is not competent to any majority of the shareholders of the company, to divert such monies to another purpose, against the will of a single shareholder ; nor could unanimity amongst the shareholders make such a diversion lawful. Whether a company, having powers to con- struct several branch and extensive railways, and to raise certain distinct sums of money for such respective works, such monies being declared to be part of the general capital of the company, may or may not lawfully apply monies in the execution of one undertaking, which they were empowered to raise for another — Qiuere, The company in its corporate character was properly made a defendant to such a suit by some of the members. The proprietor of a scrip certificate, whether registered or not, (such proprietor not being in default,) may sue on behalf of himself and all other proprietors of like certificates, and of the stock which they represent or into which they are convertible, where the proprietors of certi- ficates and stock are very numerous, there being no incompatibility, in the interest of the regis- tered and unregistered proprietors, to preclude the plaintiff from representing both classes of persons. The original subscriber of the sum represented by the scrip certificate, and vendor of the same to the plaintiff, is not a necessary party to the suit, inasmuch as the contract between such original subscriber and the company, gave the former the right to assign his interest and be dis- charged ; and such interest was duly assigned by him to the plaintiff, and the plaintiff was accepted by the company in his stead. — Bagshaw v. The Eastern Union Railway Co. 7 Hare, 114. RATE. There is no rule of law which prohibits a retro- spective rate ; in every case of rating, the question is, whether the act under which a rate is made, either expressly or impliedly prohibits such rate fi-om being retrospective. The 2 Will. 4, c. 60, (public local, for draining the lands of Holdemess, in the East Riding of the County of York), con- tains no prohibition against a retrospective rate. The commissioner, under that act, borrowed money (on which interest became due), for the purposes of the works directed by the act. Held, that a rate made to pay off the debt thus incurred was, under the provisions of that act, a valid rate. Harrison v. Stickney, 2 Clk. & Fin. N. S., 108. REAL ESTATE. See Estate, RECEIPT. See Vendor and Pcbohasbe. The question whether an executor or trustee who sells an estate, can give a good receipt for the purchase money, is not a question of convey- ance, but of title. The decision in Bentham v. Wiltshire, 4 Madd. 44, and Page v. Adam, 4 Beav. 269, disapproved of. — Forbes v. Peacock, 12 Sim. 628. A., being entitled to £4,600, secured on his father's estate, and payable after his father's death, borrowed £1,600, of B., and assigned to him the £4,500, with power to sell the same, and to give an effectual discharge to the purchaser. A. afterwards borrowed money of other persons, and gave similar securities to them. The estate was subsequently sold, under the father's will. Held, that the purchaser of the estate could not safely pay the whole £4,600 to B., on his sole receipt ; but that all the other persons who had charges on that sum, must be made parties to the conveyance, and give receipts for the portions of it to which they were respectively entitled. — Braiser v. Hudson, 9 Sim. 1. A., being entitled to a sum of money, payable at a certain time, assigned it to B., C, & Co. (who were bankers and co-partners), to secure monies to be advanced bythem, or either of them, to A. C. survived B. Held, that, as the security was made to B. and C, jointly, C. alone could give a sufiicient discharge for the whole amount due on the security. — Id. RECEIVER. See Vs.. Reoeivee. RECOGNIZANCE. See Pjb. Recognizance. — Pb. Reoeiveb. RECTORY. See Ecclesiastical Law. REDEMPTION. See MoHTOAGE. REDUCTION INTO POSSESSION. See Chose in Action. REFERENCE. See Pr. Master, REFUNDING. See Legacy. The circumstance that an intestate's personal estate has been distributed, in a suit, among the persons appearing to be his sole next of kin, does not necessarily preclude other persons having an equal title to that character, from afterwards 408 When Set Aside. RELEASE. How Far it Operates. instituting a new suit against the next of kin who have thus been overpaid, and compelling them to refund a portion of their shares. — Sawyer v. Birch- more, 2 Myl. & Cr. 6U. REGISTEATION, See Deed. — Fokeign and Colonial Law. B,E-HEARING. See Pb. Re-hEARinq, RELEASE. See SoLiciTOK and Client. I. — When Set Aside 408 II. — How Far it Operates 408 III.— Who Bound By 409 I. — When Set Aside. Rendering a release as effectual for the convey- ance oi freehold estates as a lease and release by the same parties, 4 & 5 Vic. c. 21, E. An executor contracted with legatees for the purchase of their legacies, which were accordingly assigned to a trustee for him in consideration of sums of money less in amount than the legacies. It was admitted that the transaction could not be sustained for the benefit of the executor. Held, that the deed of assignment did not operate as a release of the estate, and could not be upheld as against the legatees who executed it for the benefit of their co-legatees, — Barton v. Hassard, 3Dru. & W. 461. The defendant granted to the plaintiff an an- nuity, redcexnahle on six months' notice, or on payment of a fine. In May, 1830, notice was given to re-purchase in November, and in August, 1830, the defendant entrusted Yates with the money for the re-purchase. In October, Yates prevailed on the plaintiff to execute the deed of re-assignment indorsed on the annuity deed, which was dated in November, without receiving the re-purohase money ; but the plaintiff did not sign any receipt for the money. Yates after- wards produced the deed to the son of the de- fendant to satisfy him of the payment, and it was handed back to Yates to be kept by him with the defendant's other documents. Yates acted in the transaction as agent of both parties ; he retained the money, and to deceive both parties, he con- tinued the payuient of the annuity, but afterwards died insolvent. The defendant subsequently obtained possession of the deed. Held, under the circumstances, that the defendant was not dis- charged, but was bound to pay to the plaintiff the re-purchase money, with interest, from November, 1830, the plaintiff accounting for the subsequent receipts of the annuity. — Vandeleur V. Blagrave, 6 Beav. 665. An account was settled, and releases executed between the residuary legatees of a partner, and the representatives of the surviving partner. Numerous and important errors in the account having been proved the release was set aside, but having regard to the liipso of time and the loss of books and documents, the court declined onening the accounts allogether, but gave liberty only to surcharge and falsify. — Millar y. Craig, 6 Beav. 433. Where a release has been executed, and the parties have for a long space of time acquiesced in it, the mere proof of errors will not, in the ab- sence of fraud, induce the court either to set it aside, or to give leave to surcharge and falsify ; but the nature and amount of the errors alleged and proved may have a very considerable effect in the consideration of the question whether the release was fairly obtained. — Id, A party, who, upon a compromise had executed a general re-lease, claimed relief on the ground of a large item in which he was interested, having, by mistake, been omitted in the account. Held, that he was entitled to relief, but that to obtain it, the release must be wholly set aside. — Pritt v. Cl(ry, 6 Beav. 503. A. B., the representative of a deceased partner, having filed his bill against C. D., the surviving partner, for an account, A. B., in consideration of £500, released C. D. from all claims, and the bUl was dismissed. By mutual eiror, a debt of £2,000, owing to the partnership, but which was not then known to exist, was omitted in the' con- sideration by both parties. C. D. afterwards renewed it. Held, that A. B., notwithstanding the release, was entitled to his share of the debt, out that to obtain it, the whole account must be re-opened. — Id. II. — How PAR IT Operates. A release to one trustee in respect of a breach of trust committed in the investment of the trust funds ; Held, to be a release to the other trustee, the release operating here, as an acceptance of the securities upon which the funds have been in- vested. — Blackwood v. Borrowes, 2 Con. & L. 459. A., and B., his surety, executed a joint and several bond to C, conditioned to be void on payment of £5,000 by A. C. proved the £5,000 as a specialty debt, \mder the decree in a suit, instituted by A.'s creditors after his death. Afterwards, B. paid the £5,000, and thereupon, C. executed to him a general release of all claims and demands in respect of the bond, and by the same deed, covenanted to stand possessed of all monies to be received under the proof, and of all the securities for the £5,000, in trust for B., and to use his utmost endeavours to obtain payment of that sum for B.'s benefit. Held, that the legal effect of the release was not controlled by the covenant, and that the Master, when he made his report in pursuance of the decree, was justified in disallowing the £5,000 as a specialty de>t, and in allowing it merely as a simple contract debt to B. — WariDick v. Richardson, 14 Sim. 281. Testator bequeathed his residuary estate, in trast for his son and daughter, equally ; and declared that certain sums which he had lent to his son should be deducted from his share of the residue, and that certain sums which he had lent to C. W., his daughter's husband, on bonds, should be taken and allowed in account, as part of her share ; and if the balance should appear to be against C. W., the trustees were to refrain from putting the bonds in force against him, and to take a security from him for payment of the balance by instalments. The daughter died in the testator's lifetime. Held, nevertheless, that C. W. was released from the debts due from him, and was answerable only for the excess (if any) Tno Bound by. RELEASE— REMAINDER. 409 of those debts beyond the amount of a moiety of the residue. — South y. Williams, 12 Sim. 566. A. bequeathed to B. £700, part of £1,200 which B. owed him on bond ; A. afterwards revoked the bequest, but made an endorsement on the bond, by which he forgave B. the £700. A.'s executors brought an action against B. for the £1,200 ; B. filed a bill to restrain the action, offering to pay to the executors the balance of £500. The court refused the injunction, because B. had given no consideration for the endorsement on the bond. — Tufnell V. Constable, 8 Sim. 69. A release, though unlimited in its terms. Held, from the recitals and context, to operate only as to a particular sum mentioned in the recitals. — Lindo V. Lindo, 1 Beav. 496. An intestate, at his death, was indebted to D. M.in £ 1,687 ; disputes, however, arose between the administrator and the next of kin as to the legality of the debt, and an agreement was come to between them and the brother of the intestate, whereby, reciting that all the property had been got in, and, excluding the disputed debt, amounted to £533 ; that doubts having arisen as to the validity of that debt, and that, being desirous of maintaining the good fame and character of the deceased, the three parties had agreed to waive all questions as to the validity of the debt, and raise a fund to make good the deficiency ; that the next of kin had agreed to " relinquish all claim to any residue or surplus" ; that the intestate's brother should furnish £384 towards payment of the debt ; and the administrator should make good all the residue. It was witnessed tliat the next of kin released to the administrator all his right, &c., to the personal estate of the intestate, as his next of kin, or otherwise ; the brother covenanted to pay his part, and the administrator covenanted to pay the residue out of his own money, and also to pay all other debts, &c., of the intestate. The debt was paid, and other funds afterwards fell into the intestate's estate. Held, that the adminis- trator was not, under the release, entitled tliereto. —Id. m. — Who Bound Bt. Degree of weight to be attached to deed of release, executed by cestuis que trust within a few days of their respectively coming of age, when such releases profess to proceed upon the exami- nation of complicated accounts. — Wedderburn v. Wedderburn, 4 Myl. & Cr. 41. A single woman, being entitled to an annuity, secured by bond, married ; her husband executed a release of the annuity, and died, leaving his wife surviving. Held, that, as he could release the security, he could release the annuity, so as to bind his' wife. — Bore v. Becker, 12 Sim. 465. A. executed a bond to B. and C, conditioned for payment of an annuity of £100 to D. for life, and assigned an annuity of £120 for the life of one M., and a policy of insurance for £700 on M.'s life, to B. and C, upon certain trusts, for further securing the annuity of £100. M. died, and A. died shortly afterwards, having, as was then believed, received the £700, and applied it to his own use. Shortly afterwards, D., in con- sideration of £500, released A.'s personal repre- sentative, and B. & C, from the annuity of £100, and the securities for it. Some years afterwards, it was discovered that A. had placed the £700 in a bank, in the names of B. and C, where it still remained. Held, that the release having been executed under a mistake, was' inoperative, and that the £700 remained impressed with the trusts for securirig the annuity oi £ 1 00. — Id. EEMAINDER. See Estate. By a settlement, land was limited to trustees, to tlie use of the settlor for life, with remainder, subject to a term of ninety-nine years, to the use of his three daughters for their lives, as tenants in common, with remainder to trustees during the life of each daughter, to preserve contingent remainders, with remainder as to the shares of each daughter at her death, to the use of her first and other sons, successively in tail male, with remainder in case of the death of anyone or more of the daughters without issue male, to the use of the survivors or survivor, during their or her respective lives and life, with remainder, in like manner as the original share, to the use of the first and other sons of such surviving daughters or daughter in tail male, with remainder in case all the daughters should die without issue male, as to the share of each, to the use of the daughters, as tenants in common in tail, and in case one or more of the daughters should die without issue, it was provided that the share or shares of such daughter or daughters should go to the use of the daughters of such survivors or survivor, as tenants in common in tail general ; the ultimate remainder was limited to the use of the settlor in fee. Held, that the limitation, in case of the failure of issue generally, of any of the daughters, to the daughters of the survivors or survivor, was a good contingent remainder, and not void for remoteness. Held, also that the words " survivors or survivor," were to be read " others or other," and consequently, that the limitation over to the daughters of one of the settlor's daughters, who had issue, was not de- feated by the death of that daughter in the life- time of another, who subsequently died without issue, but that the limitation took effect, as a good cross remainder. A limitation by way of remainder cannot be void for remoteness. General powers of sale and exchange in a settlement are good. — Cole v. Sewell, 4 Dru. & W. 1 ; 2 Con. & L. 344. A testatrix bequeathed a sum of £300, to her executors, in trust to place the same out atinterest, and pay the same as it should fall due to her nephew for life ; and at his decease, " to divide the said sum, and any interest which might be due thereon, among all his children equally, and if he should leave but one, then to give the whole to said one child." There were two children of the nephew, both of whom died in his lifetime. Held, that this was a gift to the father for life, with re- mainder to his children, as tenants in common, with a gift over in case there should be but one surviving child, to that child, and that as that event had not happened, the representative of the deceased child: en was entitled to the fund. — Kim- berleij v. Tew, i Dru. & W. 131. A devisee of real estate, to the use of A. for life, witli remainder to the use of all and every, the child or children of A., who shall attain the age of twenty-one years, and for want of such issue over, create a tenancy for life in A., with a con- tingent remainder in fee, to such of the children of A., as sliall attain twenty-one ; and on the death of A., leaving infant children, but having 410 Wheti Void. KEMAINDER MAN— REMOTENESS. When Void/or. had no child who then attained twenty-one, the interest of the children of A. was divested, and the limitations over were defeated. — Festing v. Allen, 5 Hare, 573. Contingent remainder created by a limitation, to the use of the husband and wife, and the survivor, and the heirs and assigns of the survivor, barred by a fine, subsequently levied by the husband and wife. — Parker \. Carter, 4 Hare, 409, REMAINDER MAN. See Estate. Part of a testator's residuary estate consisted of a bond debt which, owing to the insolvency of the debtor's estate, was not recovered until many years after the testator's death, when the gross sum recovered in respect of principal and interest did not equal the amount of the original debt. Held, that, as between the tenant for life of the residue, and those in remainder, the former was not entitled to receive what had actually been recovered in respect of interest, but only the amount of interest, at 4 per cent., on the sum which the bond would have realised, if the debtor's estate had been administered at the end of a year after the testator's death, — Turner v. Newport, 2 Phil. 14. Whether a devisee in remainder of leaseholds, who is himself the executor of the testator, could, after having acquiesced for nearly thirty years in the tenant for life's receiving the rents, insist that, according to the terms of the will, the property ought to have been converted immediately after the testator's death — Qucere, — Pickering v. Pickering, i Myl. & Cr. 289. Principles on which the court will direct the apportionment of the expenses of the renewal of leases for lives, as between tenant for life and remainder men, — Beeves v. Creswick, 3 Y. & C. 115. REMOTENESS. I. — When Void Pok 410 II. — When Not Void 415 I. — When Void Poe. A testator, after devising and bequeathing all his real and personal estates to trustees, on trust, from time to time, to receive the rents and profits, and therewith to pay various legacies and annui- ties, directed that they should invest the surplus rents and profits at interest, and suffer the same to accumulate ; and he declared that they should stand seised of his said trust estate and the accu- mulations, upon trust ; that when and as soon as any son of either of his nephews, A. and B., should have attained the age of twenty-five years, a valuation of his said trust estate should be made, and that the same should then be divided into as many equal lots as there should be sons of his said nephews then living, and thenceforth separate accounts should be kept of the respective portions ; and that each of his said nephews sons, when and as they should respectively arrive at the age of twenty-five years, should choose one of such por- tions as the share to be allotted to him, and his children ; and that, thereupon, the said portion or share should be held by trustees, upon trust for the person so selecting the same, for his life. and after his decease, upon trust, as to one equal moiety, for his eldest son, and his heirs, executors, &c., and as to the other moiety, for the rest of his children, and their heirs, executors, &c., in equal proportions ; and if but one child, both moieties for such child absolutely ; but if any or either of his said nephews' sons should die under their respective ages of twenty-five years, or having attained that age, should afterwards die without leaving issue, the share or shares intended for the person or persons so dying, should go to the others and other of the said nephews' sons ; and if all but one should die without leaving issue, the trustees should stand seised and possessed of the whole trust estate, in trust for such one surviving nephew's son, for his life, and for his chOdren and child, as aforesaid ; but if all the testator's said nephews' sons should depart this life without leaving issue, then upon trust for such person as should at that time be the testator's heir. At the time of the testator's death, A. and B. had several sons living, and B. had another son bom after- wards. Held, upon the construction of the will, that the trusts for accumulation and division of the property, comprised all the sons of the nephews who should be living when the first of them should attain twenty-five ; and as the son who should first attain that age might not be bom until after the testator's death, the gifts were too remote, and therefore void, and the testator's real estates, upon his death, became vested in his heir. Held, secondly, that, under a bequest of real and personal estates, upon trust, to receive the rents and profits, and to pay legacies and annuities, and vest the surplus rents, &c., for other purposes, the personal estate is the primary ftmd liable to the payments, there being no direc- tion to discharge it, or to sell the real estate, so as to constitute a mixed fund. — Boughton v. Boughton, 1 Clk. & Pin., N.S., 406. Testator devised two estates to trustees, for five hundred years ; and subject thereto, devised an estate to his grandson. A., for life, with remainder to A.'s sons in tail male, with re- mainder to A.,s daughters in tail general, with remainder to testator's grandson, B., for life, with simUar remainders to B.'s issue, and devised the other estate to B.,for life, with remainder to B.'s son in tail male, with remainder to his daughters in tail general, with remainder to A., for life, with similar remainders to his issue ; and he de- clared the trusts of the five hundred years term to be, that in case either A. or B. should die without issue, whereby the survivor of them would become entitled to both estates, £2,000 should be raised for each of the testator's two granddaughters. A. died leaving a daughter, and then B. died without issue, whereupon the two estates became united in A.'s daughter ; but as both A. and B. were dead, the event of the survivor of them becoming entitled to both estates, does not happen. Held, that if it was intended that the £2,000 should be payable, in case of an union of both estates happening otherwise than in the lifetime of one of the grandsons, (A. and B.,) such intention was too remote. — Case v. Vrosier, 6 Myl. & Cr. 246. A testator, by a codicil to his will, having de- vised certain lands to trustees, for charitable pur- poses, and having recited that the said lands were then let at a cleai- yearly rent of £237, which he di- rected to be appropriated in the particular man- ner specified in the codicil, for the maintenance of an almshouse, &c., &c., declared that in the event of there being an increase in the rents, by When Void. REMOTENESS. When Void. 411 any new letting, the surplus so to aiise, should go to the only use and behoof of the person or persons of the S. and C. families, who, for the time being, should be Lord or Lords, Lady or Ladies of the Manor of D. ; and in case the said families did not protect the said charities, or if the said fami- lies should become extinct, then and in either of said cases, the trustees were to apply the said surplus rents, lu addition to the former provision, for the charity ; after the death of the testator, the families of S. and C. sold the manor of D. On a bill filed by the Commissioners of Charitable Donations, to carry into effect this codicil : — Held, that as the gift of the surplus rents to the members of the S. and C. families, was a clear equitable devise in fee, that the gift over to the trustees for the charity, was too remote. — The Commissioners of Charitable Donations and Be- guests V. De Clifford, 1 Dru. & W. 245. A testator, being entitled to leasehold premises for terms of years, bequeathed them to trustees on trust, to permit his grandson, B., to take the profits thereof, during his life, and after his de- cease, to permit such person who, for the time being, would take by descent, as heir male of the body of the said B., his grandson, to take the profits thereof, until some such person should attain the age of twenty-one years, and then to convey the same to such person so attaining that age, his executors, administrators, and as- signs, but if no such person should live to attain the age of twenty-one, then, in trust, to permit such person and persons successively, who, for the time being, would take by descent, as heirs male of the body of the testator's son, (father of B.,) to take the profits of the same leasehold premises, until one of them should attain the age of twenty-one, smd then to convey the same, to such heir male first attaining that age, his exe- cutors, administrators, and assigns. At the death of B., the grandson, his son and heir. A., had attained the age of twenty-one, and entered into possession of the leasehold premises. Upon a bill filed against him, by the next of kin of the testator : — Held, that A. had not a good title to the leaseholds ; that the bequest to the heir male of the grandson attaining the age of twenty-one, was void for remoteness, and therefore, that the next of kin of the testator, at his death, became entitled to their distributive shares of the property, on the death of the grandson, — Viscount Dun- gannon v. Smith, 12 Clk. & Fin. 546. Testator bequeathed £5,000, in trust, to pay the interest to his nephew, John, for life, remainder to John's first son, for life, remainder, as to the principal, for the children of John ; and for de- fault of such issue, to pay the interest to the second juxd other sons of John, successively, and to their respective issue, and for default of issue male of John, to pay the interest to the testator's nephew, Charles, fur life, &c., &c. Held, that the words in italics, did not mean " if John shall never have a son" so as to make the limitation to Charles take effect by way of a substitution, but that that, and all the other limitations, sub- sequent to the limitations to the first son of John, were void for remoteness. — Burley v. Evelyn, 16 Sim. 290. A married woman having power to dispose of £1,500, by her will gave the interest of it to her husband for his life, and directed, that after his decease, the principal should be divided equally between the five daughters of her sister B., and if any of them should die during her husband's lifetime leaving issue, that the respective issue of such deceased daughters should have equally di- vided among them their mother's share ; but in case any of them should die during her husband's lifetime without lawful issue, that the £1,500 should be divided, share and share alike, among the surviving said daughters. Held, that the word "surviving" had reference to the testatrix's husband ,and therefore, all the daughters died in his lifetime, and only one of them left issue, that four-fifths of the £1,500 were undisposed of. — Watson V. England, 15 Sim. 1. A testatrix having the moiety of an estate, directed her executors to purchase the other moiety; and "if the purchase should be com- pleted within twelve months after her death," she gave the entirety on certain trusts, "but in case her executors should not be able" within that time "to purchase it," she directed her moiety to be sold, and the produce, together with £1,100, to be held on other trusts. 'I'he will contained a gift of the residue of her estate of whatever kind, &c. The purchase " was not completed " within the time, although the executors "were able," so that neither of the expressed events happened. Held : — First, that the trusts, both of the estate and £1,100, failed ; and secondly, that as be- tween the devisees and heir at law, the latter was entitled to the testatrix's moiety of the estate. — Ujgohn v. Upjohn, 7 Beav. 69. A testator bequeathed certain leaseholds to trustees upon trust, out of the yearly rents and profits, to pay an annuity of £300 to his wife for her life, and subject thereto to apply certain sums for the maintenance of his grandson, A. T., until he attained the age of twenty-one, and then to permit his grandson, A. T., to take the profits thereof, for and during his life, and from and after his decease, to permit the person who, for the time being, would take by descent, as heir male of the body of the said A. T., his grandson, to take the profits thereof until some such person should attain the age of twenty-one years, and then to convey the same to such person so at- taining the age of twenty-one years, but if no such person should live to attain the age of twenty-one years, then to permit such persons successively, who, for the time being, woid.d take by descent, as heirs male of the body of B., the testator's son, to receive the rents until some such person should attain the age of twenty-one years, and then to convey the same to such heir male, first attaining that age, his exe- cutors, &c. ; and by the will, a limited leasing power over those leaseholds was given to the trustees until some person should be entitled to an assignment of them. Semble : That this limi- tation over, after the life estate, to the testator's grandson, A. T., was void for remoteness, and as the first gift is void, all the subsequent limitations founded upon it must fail. Where a gift includes, in one description, persons capable and persons incapable, by reason of remoteness, the entire gift is void, and the court will not so remodel the will as to support such of the bequests as were not too remote, while it rejects the rest. Where the limitations of an estate, which are valid, have annexed to them trusts for accumulation, which are in their creation invalid by reason of their indefiniteness, the court, when dealing with the instrument, will not support the trusts for accu- mulation so far as testator might have carried them, but will reject them altogether. — Ker v. Lord Dungannon, 1 Dru & W. 509. 1 Con. & L. 335. Testatrix bequeathed her personal estate to hir 412 When Void. REMOTENESS. When Void. sisters, or, in case of the death of either or any of them, leaving issue, then the share of her so dying to go to such child or children equally. All the testatrix's sisters died in her lifetime without leaving any child or children living at the tes- tatrix's death, but one of them left two grand- children then living. Held, that the word " issue" meant " child or children," and, consequently, that in the events that happened, the testatrix's estate was imdisposed of. — Goldie v. Greaves, 14 Sim. 348, Testator devised his estates, in trust, for the plaintiff for life, with remainder to his iirst and other sons in tail male, with remainders over ; and, directed, that if any person for the time being, entitled to the possession of the estates, should be under twenty-one, the trustees should, so long as the persons so entitled should be under twenty-one, receive the rents and apply a com- petent part thereof for his maintenance, and apply, and invest the surplus in their names, on government or real security, and, from time to time, receive the income thereof, and invest the same in like securities, so that the same might accumulate, and should stand possessed of such surplus rents, together with the accumulations thereof, upon trust, to invest the same, from time to time, in the purchase of real estates, to be forthwith settled to the uses, and upon the trusts thereby declared of the devised estates. Held, that the trust was void for remoteness. — Broume V. Stoughton, 14 Sim. 369. By a marriage settlement, the trustees were directed, after the decease of the survivor of the husband and wife, to convey, assign and deliver the settled property to such children or child of the marriage, or the lawful issue of such who should or might be living at the decease of the survivor, and who should attain twenty-one, to whom the husband and wife should jointly ap- point, or to whom the survivor of them should appoint ; and, in default of appointment, to permit the property to be held and enjoyed by and equally between all the children of the marriage and the survivors of them, and the lawful issue of such children or child so surviving the husband and wife, and attaining twenty-one, such issue representing and taking the share that the parent would have taken if living. Held, that the words in the clause creating the power, " who shall or may be living at the decease of the survivor," referred to the children of the marriage, and not to their issue, and, therefore, that clause exceeded the limits prescribed by law ; and, consequently, that an appointment made to a son of a daughter of the marriage was void. — T/iomas v. Thomas, 14 Sim. 234. D., by his will, bequeathed certain leaseholds for years to trustees, in trust, to permit A. T., his grandson, to take the profits thereof during his life, and, after his decease, to permit such person, who, for the time being, would take, by descent, as heir male of the body of the said A. T., to take the profits thereof until some such person should attain twenty-one, and then to convey the same to such person so attaining the age of twenty-one, his executors, &o. ; but, if no such person should live to attain the age of twenty- one, then upon certain trusts therein di- rected. A. T.'s eldest son attained the age of twenty-one, and survived the father. Upon bill filed by the personal representative of the tes- tator : — Held, upon demurrer, that the bequest to the heir male of the grandson was void for remoteness, — Smith v, Vungannon, Fl. & K, 638. A testator devised his freehold and copyhold estates, charged with annuities, for his sons and daughter, upon trust, to invest and accumulate the surplus of the produce thereof for the benefit of his grandchildren until the youngest should attain twenty-one, when the accumulations were to be divided among such of them as should be then living. And he directed, that in case any of his sons and daughter should be living after the youngest of his grandchildren should have attained twenty-one, the residue of the said rents and profits should be further accumulated, and such accumulation divided among his grand- children who should be living at the death of the survivor of his sons and daughter, and charged as aforesaid ; he directed, that after the death of such survivor, his said estates should stand charged for twenty years with the paj-ment of two third-parts of the clear produce of them in equal proportions of so much money as would, in fifteen years, make £30,000, which sum, with the interest thereof, he directed should be equally divided among all his grandchildren who should live to attain the age of twenty-one, their exe- cutors or administrators. The testator died in 1812, leaving ten grandchildren, nine of them children of one of the annuitants. All of them lived to attain twenty-one, the youngest having attained that age in 1830. The last survivor of the testator's sons and daughter died in 1831. Held, that the charge of two-thirds of the produce of the estates was a provision for accumulation within the Act 39 & 40 Geo. 3, c. 98, and, there- fore, void as far as it extended to any period after the expiration of twenty-one years from the tes- tator's death. — Evans v. Helli'er, 5 Clk. & Fin. 114. Testator bequeathed his residue to trustees in trust, for J. P.. for life, and after her death, for her children ; but, in case J. F. should survive her mother, and die without having had lawful issue, then in trust for the brothers and sisters of J. C. But in case J. F. should die in the lifetime of her mother, without lawful issue, then the testator directed the trustees to retain out of the residue, sufficient to produce £150 a- year, and to pay the annual produce to the mother for life ; and after her decease, he gave the principal so to be retained, to the person or persons who would be entitled thereto, in case J. F. had survived her mother, and died without lawful issue. J. F. died without issue in her mother's lifetime. Held, that the whole of the residue, except the fund for paying the annuity, was undisposed of. — Clarke v. BuUer, 13 Sim. 401. If a limitation is made, dependent on the hap- pening of either of two events, one of which is too remote, but the other is not, it -vN-ill take effect if the latter event happens. — Uinter v. Wraith, 13 Sim. 52. A gift is too remote, unless according to the intention of the testator ; some person must ne- cessarily be in existence, with legal power to dispose of the property within the period limited by the rules of law, — Ourtis v. Lufcin, 5 Beav. 147. A gift must not only vest within the time limited by the. rule against perpetuities, but the interest of the respective parties in the property must be capable of ascertainment within that period, otherwise that gift will be void. — Id. A testator bequeathed leaseholds in Church- street, having sixty years unexpired, and as to which, there was no obligation on the part of the lessor to renew, to A. for life, with remainder to When Void. REMOTENESS. IVJien Void. 413 the children she should leave, and in default to B. He bequeathed to trustees other leaseholds, upon trust, to accumulate the rents until the leases of the Church-street property "should become nearly expired," and then to apply such part thereof as should be necessary in the renewal of the Church-street property, " for the benefit of the respective persons to whom he had before, by his will, given the same," and the residue, after answering the purpose aforesaid, he gave to his residuary legatees. The testator died before the Thellusson Act came into operation. Held, that the trust for accumulation and renewal was void for remoteness and uncertainty. — Id. Testator, after devising a mixed fund of realty and personalty to trustees, upon trust, to pay various legacies and annuities, directed that they should invest all and singular the surplus of the rents, issues and profits, at interest, in their names, upon government security, and suffer the same to accumulate. And he declared that the trustees should stand seised of his said trust estate, and the accumulations upon trust. When and as soon as that any son of either of his nephews, A. and B., should haveattained twenty- five, a valuation of his said trust estate should be made, and that the same should be then divided into as many equal lots as there should be sons of his said nephews then living, and that each of his said nephews' sons, when and as they should respectively arrive at the age of twenty- five years, should choose one of such portions as the share to be allotted to him and his children, and that thenceforth, the said portion or share should be held by the trustees upon trust for the person so selecting the same, for his life, and after his decease, upon trust, ns to one equal moiety, for his eldest son, and his heirs, &c. ; as to the other moiety, for the rest of his children and their heirs, &c. ; and if but one child, both moieties for such child ; but if any or either of his said nephews' sons should die under their respective ages of twenty-five years, or having attained that age, should afterwards die without leaving lawful issue them or him surviving, the share of the party so dying was to go to the others and other of them ; and if all but one should die without leaving lawful issue, the tnistees should stand seised and possessed of the trust estate, in trust for such one surviving nephew's son for his life, and for his children and child, as aforesaid ; but if all his, the testator's, said nephews should depart this life, without leaving lawful issue them surviving, then upon trust for such person as should, at that time, be the testator's heir. At the time of the testator's death, A. and B, had several sons living, and B. had a son born after that period. Held, upon the construction of the will, that the trust for accumulation was so eieated, that it might, by possibilitj', endure beyond the legal period, and that it therefore failed. Held also, that such failure did not ac- celerate the postponed life interests in the residue given to the grand-nephews, inasmuch as the me interests so given, as well as the subsequent limitations, were void for remoteness. — Boughton V. James, 1 Coll. C. C. 26. A devise of real estate for life is invalid, unless it vest within the compass of lives in being at the testator's death, and twenty-one years after the death of the survivor of them. — Id. Before the Accumulation Act, a testamentary trust or direction to accumulate, so worded as to be capable of lasting beyond the compass of lives in being at the testator's death, and twenty-one years after the death of the sui-vivor of those lives, would have been illegal and void for the whole, and such a trust or direction is not less illegal or void since the Accumulation Act. — Id. Testator, after directing the income of his estate to be divided into moieties, and disposing of one moiety, and making various bequests out of the other ; directed that the remainder of the latter half, if any, should be given in occasional sums, to deserving literary men, or to meet expenses connected with his manuscript works, which he had previously directed to be printed, The trustees of the wUl declined to act. Held, that the gift failed. — Thompson v. Thompson, 1 Coll. C. C. 398. Testator first gave all his property to trustees upon certain trusts ; and secondly, directed that the trustees, from the commencement of the fifth year from the date of his decease, should set apart annually, £10 per cent, upon the gross income of his estate, to be invested as additional capital in some good and valid medium of profit or interest, in order that the new income derived from that might go to increase the benefits in- tended by the former. He then proceeded to dispose of the remaining income. Held, that no partial intestacy was created by the direction, as to the £10 per cent. ; but that the dispositions of the bulk of his property were to be treated as if it did not exist. — Id. Testator gave the residue of his personal estate unto and among all and every the children, sons and daughters, of his daughter Elizabeth, in equal shares and proportions, as and when they should attain their respective ages of twenty-two years. Held, that the children of the testator's daughter living at the testator's death were the only objects of the bequest ; and consequently that is was not void for remoteness. — Elliott v. Elliott, 12 Sim. 276. In a devise of real estate, upon trust for the daughter of the testator for her life, and from and after her decease, to convey such estate unto and equally between and among all and every, the child, and children of the daughter who should live to attain the age of twenty-three years, and to his, her and their heirs and assigns for ever ; and in case there should be no such child or children, or being such, all of them should die under twenty-three without issue, then over, with power to apply for maintenance ; the interest of such child's share, notwithstanding such child's share should not be then absolutely vested, the limitation to the children of the daughter, and the limitations over in default of such children are void for remoteness. — Bull v. Pritchard, 5 Hare. 667. The testatrix being entitled to the sum of £2,000, secured by a promissory note, which had two years to run, indorsed the note to Sarah Sargon, and sent it to her in a letter in the following terms : — " The enclosed note of £2,000, I have given to Mrs. Sarah Sargon, for her sole use and benefit, independent of her husband, for the express purpose of enabling Mrs. Sargon. to present to either branch of my family any principal or interest thereon, as the said Mrs. Sarah Sargon may consider the most prudent ; and in the event of the death of Mrs. Sarah Sargon, by this bequest I empower her to dispose of the- said sum of £2,000, and the interest by- will or deed, to those, or either branch of the family she may consider most deserving thereof. To enable Mrs. Sarah Sargon, my niece, to have the sole use and power of the said sum of £2,000, 414 When Void, REMOTENESS. When Void. due to me by the above note of hand, I have specially indorsed the same in her favour. It being admitted that if this was a gift upon trust, the trust could not be executed : — Held, that it was a gift upon trust, and that as the trust failed, the sum secured by the note constituted part of the testatrix's estate.— Stubbs v. Sargon, 3 Myl. & Cr. 507. Testator bequeathed £3,000 to trustees, in trust, after certain life interests, " for all the children of T. F., (except Thomas, the younger, William, Rebecca, Elizabeth, Sarah, and Francis,) equally to be divided between them, share and share alike ; the share or respective shares of such chUdren to become vested interests in, and to be paid, assigned and transferred to them respectively, as and when they should attain their respective ages of twenty-five years. Provided, that if any of them die before their shares became vested and payable, leaving issue, their shares shoiild go to their issue ; and the trustees were directed in the meantime, and until the shares of the children should become payable, assignable and trans- ferable to them, to apply the income for their maintenance. The testator also bequeathed £6,000 to the same trustees in trust, after certain life interests, for all and every the children of T. F., born, or hereafter to be born, equally to be divided between them, share and share alike ; and to be paid, assigned and transferred to them at their respective ages of twenty-five, and to be subject to the like descent to the lawful issue of such of them as shall die under the said age of twenty-five years, and imder the like conditions and restrictions, and with the like power to apply the interest thereof for their respective maintenance, and in all other points and respects under, and subject to the same rules, regulations, conditions, and restrictions as are hereinbefore contained, in relation to the several legacies hereinbefore given to or in trust for the said children respectively. Provided, that in case any person to, or in trust, for whom any bequest, to take effect in remainder, or reversion, or upon any contingency was made, should sell or en- cumber his interest under such bequest, before the same should take effect in possession, all the bequests in favour of that person should become void. By a codicil, the testator revoked a power which he had given by his will to the trustees, to apply for the advancement of the legatees the whole or part of the capital of their legacies, before they attained twenty-five years ; and di- rected that the legacies should vest in and be payable, assignable and transferable to them, as if no such power were contained in his will ; Held, that the trusts declared of both sums were void for remoteness. — Compart v. Austen, 12 Sim. 218. Bequest of a residue, upon trust, for the tes- tator's grandson, B., the son of Isaac, at twenty- five, for life, and, after the death of B., in case he shall have a son who shall attain twenty-one, then for such son of B. who shall first attain twenty-one, absolutely ; and, in default of such son of B., and, after B.'s death, then, upon trust, for the testator's grandson, J., the son of Isaac, at twenty-five, for life, and, after the death of J., in case he shall have a son who shall attain twenty- one, then to such son of J. who shall first attain twenty-one, absolutely, with the like limitations successively in favour of any other grandsons, sons of Isaac, born in the testator's lifetime, and their respective sons first attaining twenty-one ; and, in default of a son of any such grandson attaining twentv-one, then, upon trust, for any son of Isaac, born after the testator's decease, who shall first attain twenty-one, absolutely; and, in case no son of any son of the testator's son, Isaac, then born, or thereafter to be bom, in the testator's lifetime, or any son of his son Isaac born after his decease, shall live to attain twenty- one, then from and immediately after the decease of all the sons and grandsons of his son Isaac, upon trust, for the testator's nephew, G., for life ; and, upon the decease of his nephew, G., in case he shall have a son who shall live to the age of twenty-one, then, upon trust, for such son who shall first attain twenty-one, absolutely. Held, upon the whole context of the will, that the words " after the decease of all the sons and grandsons" must be read as if they had been " after the decease of all the aforesaid," or, " all such sons and grandsons," and that the limitation over in favour of the first son of G. attaining twenty-one was therefore not too remote. — Ellicombe v. Gompertz, 3 Myl. & Cr. 127. Testator gave his real and personal property to trustees, their heirs, &c., upon trust, to pay and divide the same unto and amongst all and every his children who might be living at his decease, share and share alike, for their lives, " and, in case any of my said children, being daughters, shall marry and shall happen to depart this life in the life time of her or their husband or husbands, I direct that the share or shares of her or them so dying shall go to her or their respective husband or husbands for his or their life or lives, and from and after his or their decease, then to be equally divided amongst all and every the child and children of my said daughter and daughters then living, and, in default of any such child or children, then I direct such share or shares shall go and be divided equally to and amongst all and every my said children who shall be then living." The testator left a son and seven daughters. One of the daughters died a spinster. Held, that on her death her share in the testator's property did not go to her surviving brothers and sisters, but became undisposed of. — Lett v. Randall, 10 Sim. 112. Bequest, in trust, to accumulate for £J1 the children of A. and B., (who were living), equally, the shares of sons to be vested at twenty-five, and of daughters at twenty-five or marriage, and if one child only, to be paid at twenty-five or marriage. Held, too remote. — Griffith v. Blunt, 4 Beav. 248. Testator devised his reversion, in fee, expectant on his decease without issue male, in his mansion house and estates at D., to his brother for life, with remainder to his first and other sons in taU male, with divers remainders over ; and he be- queathed his plate, pictures, &c., in and about his mansion house at D., to trustees, in trust, to permit the same to be used and enjoyed by the person and persons who, for the time being, should be entitled to the possession of his mansion house imder the settlement on his marriage, or the limitations contained in his wiU, until a tenant in taU, of the age of twenty-one years, should be in possession of his mansion house, and then the plate, pictures, &e. were to go and belong to such tenant in taU ; and he gave the residue of his personal estate to the person who, at his decease, would be beneficially entitled in possession to his mansion house. The testator's brother had a son born at the date of the will, and both he and his son survived the testator's brother. Held, that the trust declared of the When Void. REMOTENESS. W7ien Not Void. 415 plate, pictures, &c., was void for remoteness, so far as it was intended to take effect after the death of the brother. — Ibbetson v. Ibbetson, 10 Sim. 495. Testator devised his real estates to trustees, in trust for his son for life, and after the son's death in trust, to sell, and stand possessed of the pro- ceeds, in trust for all his grandchildren, the children of his son and two daughters (whom he named) who should attain the age of twenty-four years. The son and daughter had children living at the testator's death, but none born afterwards. Held, that the trust for the grandchildren was void for remoteness. — Newman v. Newman, 10 Sim. 61. A request by a testator, that a handsome gra- tuity should be given to each of his executors is void for uncertainty. — Jiibber v. Jubber, 9 Sim. 503. Bequest to testator's wife for life, and after her death to make a division between the testator's four children. A., B., C, and D., his sons' shares to be paid immi liately, andhis daughters' shares to be invested for them for life, with remainder between all their children, to become vested at the age of twenty-five, with a gift over to the children of the others who should live to attain the age of twenty-five, and in case either daughter should die without leaving any child who should live to attain twenty-five, with powers for the mainte- nance and advancement of such children. Held, that the gift over was too remote, and secondly, that the gift to the daughters in the first instance being absolute, and the attempt to limit it having failed, the absolute interest remained unaffected, so that the representatives of a daughter who died without children, were entitled to her one- fourth share. — Ring v. Hardwick, 2. Beav. 252. Testator gave £30,000 unto and amongst the children of his daughter who should be living at the time the eldest shotdd live to attain the age of twenty-four years, and the issue of such of them as might be then dead, to be equally divided amongst them, per stirpes, and not per capita, and to be paid respectively, when as they should attain twenty-four, but without interest in the meantime. At the testator's death, his daughter had three children, who were of the ages of thirteen, twelve, and nine. Held, that the tes- tator intended, that such only of his daughter's children should take as should be living when the eldest, for the time being, should attain twenty-four, and consequently, that the bequest was too remote. — Dodd v. IVake, 8 Sim. 615. The trusts of a term limited, previous to an es- tate tail, for raising extra portions on the death of a party without issue, was held invalid, as tending to a perpetuity, because being limited antecedently to the estate tail, it could not be defeated by a recovery. Two estates were devised to trustees for five hundred years, with remainder as to one estate to A. for life, with remainder to his first and other sons in tail, with remainder to A.'s daugh- ters equally in tail general, with remainder to B. for life, with remainder to his first and other sons in tail, with remainder to his daughters equally in tail general. The other estate was, mutatis mutandis, similarly settled on B. and his issue, with remainder to A. and his issue. The trusts of the term were declared to be to raise £2,000 each for C. and D., "and if A. orB. should depart this life without issue, whereby the survivor of them would become entitled to" the two estates to raise a further sum of £2,000 a-piece for C. and D. B. died leaving issue, and afterwards C. died without issue, whereby the two estates centred in the issue of B. Held, that the trust for raising the further sums of £2,000 did not take effect. — Case v. Drosier, 2 Keen, 764, A testatrix by her will, dated in the year 1680, gave to C. and his heirs, a rent-charge issuing out of the lands therein described, and subject to the rent-charge, she gave the lands to W . and his heirs, and by a paper of instructions reciting, that from the malignancy of the times, she could not declare the uses to which she intended the rent-charge to be disposed ; she gave the same to C. and his heirs upon the trusts thereinafter mentioned, and she requested and desired W., that a particular estate therein mentioned, should always let to farm to some deserving Catholic, qualified to entertain a priest for the help of poor Catholics, in the parishes therein specified, and she desired, that a Dominican or Franciscan priest, if a priest of such order could be con- veniently had, should be kept at the particular estate, and she gave £20 per annum out of the rent-charge, for the maintenance of such priest. The information was filed before the passing of the Act 2 & 3 WiU. 4, c. 115. Held, that the direction in the paper of instructions was illegal and void, but given to a charitable purpose, and applicable, therefore, cy pres, to a charitable pur- pose, to be determined by the sign manual of the the crown.— ^«. Gen. v. Todd, 1 Keen, 803. n. — When not Void. A testator devised his real estate in strict settlement, subject to a term of two thousand years, limited to trustees, for raising £500 a-year, and accumulating it as a sinking fund, for pay- ment of his mortgage debts, &c., to a considerable amount. Held, that the trust, though unlimited in its duration, was valid. — Bateman v. Hotchkin, 10 Beav. 426. Testator gave his freehold and copyhold estates and his personal estate, to certain persons, (whom he appointed his executors,) in trust, out of his personal estate ; and by sale or mortgage of his freehold or copyhold estates, to raise money suf- ficient to pay his debts, funeral expenses, and legacies, and out of the rents and interest of so much of his real and personal estate as should nor be sold or disposed of for those purposes, to pay certain annuities, and such stmis as his trus- tees should think suflicient for the maintenance of his son John, and his children, (if he should have any,) and to accumulate the residue of the rents and interest during the life of John, and after John's decease, to stand seised of his real estates, in trust, for John's first son and the heirs of the body of such first son, successively, as they should be in priority of birth, and for the several and respective heirs of the body and bodies of every such son, and for default of such issue, for A., for life, with remainder to his sons in tail, with remainder to B. and his sons, and to C. and D. and their sons, in like manner, with remainder to his own riglit heirs for ever ; and he declared that his trustees and executors should stand possessed of his personal estate after John's death, in trust, for such person and persons, in the same order and succession, and for such and the same estates and interests, as were thereby declare d respecting his real estates, so far as the nature of the property, the rules of law and equity, the deaths of parties and other contingencies would admit of. The testator died in 1780; 416 When Not Void. REMOTENESS. When Not Void. his son was heir-at-law and customary heir. John and A., B., C, and D., died without issue. Held, that the trusts, subsequent to the trust for the first son of John, were not void for remoteness, and that the ultimate trust of the personal estate, as well as of the freehold and copyhold estates, vested, on the testators death, in his son John, as heir-at-law at his death. — Boijdell, V. GoUghtly, 14 Sim. 327. Devise and bequest of freehold and leasehold estates to trustees, upon trust, after paying certain annuities, to settle the same, so that, as nearly as the rules of law and equity would permit, the testator's six younger children should receive the rents and profits in equal shares, during their lives, with benefit of survivorship, if any of them should die without leaving issue ; and if any should die, leaving issue, that the child or chil- dren of him or her so dying, during the lives of his said other children and of the survivor, should take the share of him or her so dying of the said rents and profits ; and that, upon the death of all his said other children, as to the leasehold estates, the same to go and belong to the issue of his said other children, for their respective lives, in equal shares, with benefit of survivorship, and as to the freehold estates, the issue of his said children to take the rents, profits, and proceeds thereof, for their respective lives, in equal shares, with benefit of survivorship in case of the death of any of such issue without leaving issue ; and if any of such issue of his said children should die leaving issue, the child or children of him or her so dying, during the lives of such issue of his said children and of the survivor of them, should take the share of him or her so dying ; and after the death of all the issue of his said children, then, as to the said leasehold estates, the same to go and belong to the child and children of such issue, absolutely, as tenants in common ; and as to the said freehold estates, in case the issue of his said children, or any of them, should leave issue living at the decease of the last survivor of the said issue, then that the same should be to the use of the child and children of the bodies of the issue of his said children, and of the heirs of the body and respec- tive bodies of such child and children, and if more than one, equally to be divided amongst them, as tenants in common ; and if there should be a failure of issue of the body or bodies of any such child or children, then, as to the original and accrued shares of such child or children whose children should so fail, to the use of the remaining and other and others of the said children, and the heirs of the body or bodies of such remaining and other children, and if more than one, equally, as tenants in common ; and in default of such issue of the issue of his said children, to the use of the right heirs of the testator. The six younger chil- dren of the testator survived him ; some of them had children at the time of his death, and some had children bom after his death. Held, that the six younger children of the testator took life inte- rests in both the freehold and leasehold estates, with remainder, as to the freeholds, to the children of such younger children, as tenants in common, in tail, with cross remainders between and among them, and the ultimate remainder to the testator's right heirs ; and, Semble, that the same children of such younger children (after the decease of the last survivor of their respective parents, the tenants for life), take absolute interests in the leaseholds. — Williams v. Teale, 6 Hare, 239. That, in considering the validity of the limita- tions, the state of the family at the death of the testator (and not at the date of his virill) is to be regarded ; and, therefore, if a gift be to such of the children of a particular parent as shall attain a greater age than twenty-one years, and the parent die in the lifetime of the testator, and the class be ascertained at the testator's death, the gift is valid. — Id. That the limitations to the unborn children of the testator's children for their lives, was not void for remoteness only, because it was a gift to persons who might be unborn at the death of the testator. — Id. That when, upon the decease of the testator's " children," the estate was given to the " issue " of such children, and where it was given over in case the testator's " children " should die " vrithout leaving issue," and in like uses of the word "issue," the word "issue" must be read " child or children," although in other parts of the will it might be necessary to read the word " issue" in a different sense. — Id. Bequest to A. for life, with remainder to her children who should attain twenty-five, with a clause for maintenance during minority, and for accumulation of surplus income. Held, that the gift to the children, was not void for remoteness. — Marquis of Bute v. Harman, 9 Beav. 320. Testator gave the residue of his personaal estate unto and among all and every the children, sons and daughters, of his daughter EUzabeth, in equal shares and proportions, as and when they should attain their respective ages of twenty-two years. Held, tha£ the children of the testator's daughter, living at the testator's death, were the only objects of the bequest ; and consequently, that it was not void for remoteness. — Elliott v. Elliott, 12 Sim. 276. Testator gave his real and personal estates to trustees, and directed them to invest his personal estate in the purchase of land, and to pay the rents subject to certain annuities to his son, for life, and in case his son should die leaving behind him no legitimate issue, then, he directed the trustees to pay the rents to his (the testator's) widow, for life ; but, in case his son should die, leaving behind him legitimate issue, then, at the end of six months after the eldest male child then living of his son should have attained twenty-five, or in default of male issue, the eldest female child then living of his son should have attained twenty- one, to convey all the estates to the eldest male child, or in default of male issue, to the eldest female child, and to his or her heirs of his or her body lawfully begotten, absolutely, for ever. The testator then (in case his son should die during the minority of eldest male or female child), pro- vided for their maintenance out of the rents until he or she should attain the respective ages before mentioned ; and declared that, in case his son should not die during such minority, his estate should continue on the trusts aforesaid, until six months after his son's death, and then pass to his son's eldest male or female child, in manner before expressed; and in case his son shoiild die leaving no legitimate issue, then, that the trustees should, after the death of the testator's wife, convey the estates to certain other persons. The testator's son married, and had a son born after the testator' s death. The court Held, that the trust for the grandson not to be void for remoteness ; and the grandson having survived his father, and attained twenty-one (but being under twenty-five), and all the annuitants being dead, ordered the estates to be conveyed to him, — Jachson v. Mcgoribarika, 12 Sim. 93. When Not Void. REMOTENESS— RENT CHARGES. 417 A gift of personalty to trustees, for A., for life, and after his death, in trust for the children of A., " as they severally attained twenty-five years," the income to be applied, during their respective minorities, by their guardian, for their maintenance, &c., with a gift over, in case no child of A, should live to attain twenty-five. Held, to be vested and not too remote. — Davies v. Fisher, 5 Beav. 201. Bequest of a residue to A., (who has no children) for life, and at his death £5,000, to be deposited in the hands of trustees, for the use of A.'s eldest son, at his attaining the age of thirty years ; the rest to be equally shared ; A.'s eldest son taking an equal share, in addition to the £5,000, and the general division to take place, as each respectively attains twenty-four. Held, not too remote. — Greet v. Greet, 5 Beav. 123. A testator, after giving his real estate to the eldest son of A., for life, with remainder to the other children of A., in tail, with remainder over, gave his personalty, in trust, to pay the dividends to the children and grand-children of A., who should not " from time to time," be entitled to the rents of the freeholds. By a codicil, he de- clared that the children of B., C. and D., living at the death of the tenant for life, should " take their shares" of the personal property, with the representatives of A. Held, that the gift was to the children and grand-children living at the death of the tenant for life, and was not too remote. — Harvey v. Harvey, 5 Beav. 134. An estate was devised to O. W. for life, with remainder to trustees, to preserve, &c., with re- mainder to O. W.'s first and other sons, succes- sively, in tail, with remainder to the trustees and their heirs, in trust, for the separate use of the testator's niece for her life, with remainder to the use of her children in tail, with remainder to the testator's right heirs ; and power to lease the estate was given to the tenants for life, and during the minorities of the issue in tail, to the trustees. Held, that though the power was given for an indefinite period, yet, as either of the tenants for life might concur with his or her children in destroying it, it was not void. — Wallis v. Free- stone, 10 Sim. 225. A testatrix gave her residuary estate to trustees, to accumtilate and to stand possessed thereof, and of the accumulations, in trust for all the children of J. B., other than A., and to be paid on attaining twenty-three, with a gift over, in the event of the death of all the said children, tmder twenty-three. J. B. had three children. A., B., and C, of whom A. andB. were born in the life- time of the testatrix, and C, three years after her death. B. died an infant ; and C, who was B.'s personal representative, attained twenty-three. Held : — First, That the legacy was vested, and the gift being to a class, and C. having come into ewe before the distribution, the court considered that C. was not excluded from taking under the residuary gift, and that in his own right, and representing B., he was entitled to the whole fund. — Blease v. Burgh, 2 Beav. 221. RENEWAL AND RENEWAL 3FINES. See Lease. RENT CHARGES. Rent charges substituted in lieu of compositions of tithes, in Ireland, 1 & 2 Vic, c. 109, amended by 3 & 4 Vic, c. 13, and 4 & 5 Vic, c. 5. By marriage articles it was covenanted that a lease ibr lives and a term for years, the pro- perty of the intended husband, and also a lease for lives renewable for ever and a term for years, the property of the intended wife (which were subject to the mortgage) should be conveyed to trustees, and that the intended husband should have power to give, devise, and bequeath the said lands, or such of them as he should then have in his power, to and amongst the issue of the marriage, in such manner and form as he should by deed or will appoint, and in default of appoint- ment, then, that the intended wife should have the like power. The mortgaged lands were after- wards sold, under a decree in a foreclosure suit, for more than the sum due under the decree. Subsequently, a deed of conveyance and appoint- ment was executed, which purported to convey all the lands, as if they were still existing inte- rests, to a trustee, to the use and intent that E., (a daughter of the marriage) her heirs and assigns, should, during the respective terms for which the lands were holden, have and receive a rent charge of £36 ; and that J. (another daughter), her heirs and assigns, should, in like manner, have and receive a like rent charge of £36, the same to be issuing out of and charged upon, all and singular, the lands and premises thereby conveyed ; and that E., and J., and their respective heirs and assigns, should have powers of distress and entry for the recovery thereof. The surplus purchase money was applied, without the privity of the annuitants, in obtaining a renewal of the husband's term for years. The husband's freehold for lives deter- mined by the deaths of the cestui que vies, and afterwards E. died intestate, and her administrator conveyed her annuity to R., who, together with J., filed a bill to raise the amount of their respec- tive annuities. Held, (1). That the rents issued wholly out of the freehold, with, nevertheless, a right to distrain on the leaseholds for years ; (2). That the surplus of the purchase money was impressed with the continuing character of real estate, as far as it was the produce of the freehold for lives, and that that character could not be subsequently varied, as against the annuitants, without their consent; (3). That upon the decease of E., intestate, her rent charge descended upon her heir at law, and that R. was not entitled to it ; (4). That where two persons join as co-plaintiffs, in respect of separate and distinct titles, neither of them having any interest in the title sought to be enforced by the other, and it appears that one of them has no tiUe, the bill will be dismissed generally, without prejudice to the other co- plamtifi' enforcing his title to a separate suit ; (5). That the bill was not multifarious.— iJicAard- 8071 v. Nixon, 2 Jon. & L. 250. Semble : That if a rent be granted to A. and his heu-s, to be issuing out of a freehold for Uves and a term for years, and the freehold afterwards deter- mines, the rent charge does not alter its character and become a chattel interest.— /d. REPORT. See Pk. Master's Report. ^E 413 REPUTED OWNERSHIP. REPUTED OWNERSHIP. A mortgagee, of a policy of assurance, deposits it by way of sub-mortgage, and gives notice of the sub-mortgage to the insurance office, but not to the original mortgagor. Held, that this was sufficient to take the policy out of the reputed ownership of the mortgagee, — Ex parte Burnett, re Reay, 1 De. Gex. 194. Two partners trade under the name of one of them only ; and upon a dissolution, that one continues the business, the other retiring ; but no apparent change takes place in the firm. By the agreement on the dissolution, the stock in trade belongs to the continuing partner, who afterwards becomes bankrupt. The stock in trade is sold by his assignee, as his separate property ; and the retired partner, though cognisant of the fact, makes no objection or claim, on the retired partner becoming bankrupt. Held, that the stock in trade was not in the reputed ownership of the two, but ought to be administered as the separate estate of the continuing partner.— £j;2)arte Wood, re Todd, 1 De Gex. 134. A procendendo ordered to issue, where a com- mission had been superseded three years pre- viously, by consent of the creditors, on the ground that the bankrupt had not disclosed the fact of his being entitled to shares in a waterworks' com- pany ; Jus defence being that the shares were subject to a mortgage for more than their value, but which mortgage turned out to be invalid, for want of notice to the company. Shares in such company Held, subject to the law of reputed ownership ; the company's act of parliament de- claring them to be personal property. —Ex parte Lawrence, re Bowring, 1 De Gex. 269. By a composition deed between A. and B. and scheduled creditors of A., after reciting that it had been agreed that A. should pay the creditors ten shillings in the pound, and after reciting that B. had been agreed to join in the deed for the purpose of better securing payment of the com- position, on having such assignment made to him as was thereinafter contained, it was witnessed : — ( 1 . ) That A . andB. covenanted to pay the creditors the composition. (2.) That in consideration of this covenant, A. assigned all his stock in trade, machinery and effects to B., to hold as B.'s own goods and chattels. (3.) That the creditors covenanted on receiving the composition to release A. Contemporaneously with tlus deed, the leasehold trade premises were assigned by A. to B., with the privity oi his creditors. At the time of the execution of the deed, all the assigned property was in the possession of certain mort- gagees of the leasehold premises and machinery ; who afterwards gave up possession to B. on guaranteeing payment of the mortgage money : Immediately after the execution of the deed, B. gave his creditors his promissory notes for the amount of the composition ; B. remained in pos- session till he became bankrupt, and after his bankruptcy a fiat was sued out against A. by a creditor who knew of the deed, though he had not executed it. He was a friend of A., and in- different to the payment of his debt, but permitted his name to be used by the creditors, who had signed the deed for the purpose of suing out the fiat. Held, (1.) That the composition deed was an act of bankruptcy and not a sale for value. (2.) That the assigned property was not in the reputed ownership of B. (3.) That the circum- stances under which the fiat was sued out against A. did not prevent A.'s assignees from recovering the property. — Re Marshall, I De Gex. 273. London sub-mortgagees of shipments at Ceylon and Hong Kong, send thither, directed to the parties in possession, notices of their security by the next direct mail, there being another and earlier mail by a different route, by which the notices might possibly have sooner reached their des- tination. Before, however, this could have taken place by either mode of transmission, the sub- mortgagors became bankrupt. Held, that the notice was sufficient to take the goods out of their reputed ownership. A man may give a valid security on merchandise at sea belonging to him, although at the time he is ignorant of the par- ticulars of which it consists, — Ex parte Kelsall, re Beattie, 1 De Gex. 352. A wine merchant carrying on business under the firm of J. R. & Co., announced by a circular, that he had taken his nephew into partnership. The business was thenceforth carried on under the style of J. R., Sen. & Co., but as between the uncle and nephew the latter received a salary only and did not participate in the capital, profits or losses of the concern. On both becoming bank- rupt, Held, that a creditor who supplied goods to the firm, might prove against the separate estate of the uncle. Part of the stock in trade consisted of wines in the docks, which the uncle, on an- nouncing the partnership, directed the dock com- pany to deliver to the order of the new firm ; Held, that these vraies were in the reputed ownership of the two, and ought to be adminis- tered as joint estate. Other property con- sisted of wines in the hands of a lien creditor of the uncle ; and after the announcement of the partnership some of the wines were withdrawn, and replaced by others in the name of the new firm. Held, that the possession of the lien cre- ditor did notprevent the application of the 72nd section, but that those wines also should, sub- ject to the lien, be administered as joint estate. Where a large number of creditors had a right of election to prove against the joint or separate estate, and the estates were not so as- certained as to enable the creditors to elect, a temporary order was made, that no larger divi- dend should be declared of the one than of the other estate. — Ex parte Ariouin, re Reay, 1 De Gex. 359. Quiere — Whether the ordinary fixtures of a dwelling-house, namely, such as are removeable between landlord and tenant, areto be considered as goods and chattels within the meaning of the clause of reputed ovmership, 6 Geo. 4, c. 16, s. 72 ; so as to pass to the assignees of the bankrupt tenant, in preference to the lien of a mortgagee ; or thatof a vendor for his unpaid purchase-money. — Exparte King, re Walsh, 1 M. D. & D. 119. An hotel keeper dies intestate, leaving four children, upon which one of her daughters takes possession of the stock and effects, and continues the business for a short time, when she admits one of her brothers into partnership, and the two carry on the business together in their own names for nearly two years, paying some of the intes- tate's debts as well as her funeral expenses. The daughter then retires, and assigns her share in the business to her brother, who carries it on vn his own name for six months longer, when a joint fiat issues against the two. After their bankruptcy, one of the other children takes out administration to the intestate and claims the pro- REPUTED OWNERSHIP. 419 perty from the assignees. Held, that this could not be considered trust property, but passed to the assignees under the clause of reputed ovraei- ahvp.—Ex parte Thomas, 3 M. D. & D. 40. A. father, by deed, assigns to his son, in consi- deration of natural love and affection, certain pictures and effects, upon trust to permit the father to have the present use and enjoyment of them during his life, and subject thereto to the proper use and benefit of the son. Formal pos- session is delivered to the son, upon the execu- tion of the deed by the delivery of one picture in the name of the whole, but the father remains in possession till his bankruptcy. Held, that the assignees were entitled to the goods. — Ex parte Castle, 3M. D. &B. 117. The bankrupts being mortgagees of various policies of life assurance, of wmch the respective insurance offices had notice, deposit them with their bankers to secure the repayment of ad- vances, but the bankers give notice of such de- posit to the different offices. Held, that the policies must be considered as in the order and disposition of the bankrupts, within the 72nd section of the Bankrupt Act, and that the same principle applied to one of the policies, which was effected with a mutual assurance company, —Ex parte Arkwright, 3 M. D. & D. 129. A legatee to whom an annuity is bequeathed for her life, grants an annuity for her life to A., to be issuing out of the bequeathed annuity, and afterwards grants another annuity for her life to B., to be also issiiiog out of the bequeathed an- nuity, which is insufficient to answer both the granted annuities. By a compromise of a suit respecting the priority of the charges, it is agreed, that B.'s annuity shall have precedence, and that the residue of the bequeathed annuity shall be paid to A. A. then assigns his interest to a purchaser, describing it as the residue of the bequeathed annuity, after payment of B.'s an- nuity, and becomes bankrupt. Held, that the assignment was merely equitable, and required to complete it, notice to be given to the trustees of the will. But it appearing, that A. was the solicitor of the purchaser, and was trusted by her to do all that was proper for perfecting the pur- chase and assignment, and that he had not in- formed her that he was himself the vendor. Held, that although the proper notice of the assigimient was not given, the annuity was not in the order and disposition of the bankrupt with the consent of the true ovimer. — Ex parte Smith, 3 M. D. & D, 687. A., a London merchant, in London, on the 17th of February, bought of B., an oil merchant at Hull, ten tons of oil, which were paid for by A.'s acceptance for the amount of the price. Upon the completion of the purchase, the oU was drawn off from the cisterns in which B. kept his stock, and put into nineteen casks, which were num- bered and marked with B.'s initials, and removed into another warehouse called the Shipping Ware- house, to await A.'s orders as to the shipment. On the 9th of March, A. demanded the delivery of the oil, but B. having then suspended payment said, that he could not deliver the oil without authority. On the 3rd of April, a fiat was issued against B. Held, that theoilwasnotin the posses- sion of B . as reputed owner, within the meaning of the 6 Geo. 4, c. 16, s. 72, it being necessary to prove some reputation of ownership, besides the mere fact of possession, to bring the case within the provisions of the enactment, — Ex parte Dover, 2 M, D. & D. 259. Two of the next of kin of an innkeeper, who dies intestate, carry on the business in their own names, and pay some of the intestate's debts, but do not take out administration to her estate i they afterwards become bankrupts, and then another of the next of kin takes out administra- tion. Held, that the stock in trade and fixtures belonged to the administrator, and did not pass to the assignees under the 72nd section ; the case of Fox V, Fisher not establishing generally that effects in a bankrupt's hands as an executor de son tort are within the operation of that section. —Ex parte Thomas, 2 M. D. & D. 294 ; 1 Phil, 159. S. and O. assign all their stock and effects to trustees, for the benefit of their creditors, and dissolve their partnership ; S. continues on the same premises and carries on a different branch of trade, and soon afterwards takes in H. as a partner. Part of the stock of S, and O,, which had been assigned to the trustees, was a quan- tity of New Zealand Flax which remained unsold upon the premises, but was separately ware- housed and kept distinct from the stock of the new partnership, and was not adapted for the new manufacture carried on by S. & H. ; and six months afterwards a joint fiat issued against S. and O. ; Held, that the trustees were entitled to the flax, and that the clause of order and dispo- sition did not apply to such a state of circum- stances. — Exparte Varden, 2 M. D. & D. 694. Fixtures are not within 6 Geo. 4, o. 16, s. 72. — Exparte Heathcoate. 2 M. D. & D. 711. The bankrupt was a shareholder in a joint stock banking company, one of the rules of which was that the bank should have a lien on the shares of every shareholder for any balance due from him to the company ; the bankrupt also carried on the separate trade of a hanker, under the firm of " Young & Co.," and was indebted to the banking company in a large balance on a running accoimt ; to secure this balance in ad- dition to the company's lien on the shares of the bankrupt, he had deposited with the company two policies of life assurance and other securities, but no notice of the deposit had been given to the insurance office. Held : — First, that no joint creditors of the banking company having proved under the fiat, the company were entitled to prove for the residue of their debts, after deducting the proceeds of their securities. Secondly, that the want of notice to the insurance office was not conclusive evidence of the policies being in the reputed ownership of the bankrupt, and that no evidence having been adduced of such reputed ownership, the banking company were entitled to the premises in question, — Ex parte Cooper. 2 M. D. & D. 1. Reputed ownership in a policy is a fact to be proved, and not to be conclusively inferred from absence of notice to the office of a change of ownership. — Ex parte Heathcoate, 2 M. D. & D. 711. Although no notice is given to an insurance office of the deposit of a policy, with an equitable mortgagee, Semble ; that it is not a case of re- puted ownership, unless some evidence is offered that the bankrupt was still reputed to be the owner. — Exparte Rose, 2 M, D. & I). 131. When the pohcy is effected by the bankrupt with a mutual assurance company, in which all the insurers are considered as partners, siioh a notice is not necessary. — Id. Where the bankrupt, who was a director of a joint stock company, mortgaged his shares to 420 What Held to le. RESIDUE. What Held to be. secure an advance of money, but stipulated that no notice should be given of the transaction to the company, not vi'ishing it to be known to hia brother directors, and the mortgagee acceded to this stipulation, the shares were to be Held to be in the order and disposition of the bankrupt within the meaning of the 6 Geo. 4, c. 16, s. 72. — Ex parte Nutting, 2 M. D. & D. 302. Keputed ownership of shares must be proved, and it is not to be conclusively inferred from the absence of notice of any lien upon them. — Ex parte Pooky, 2 M. D. & D. 502. RESIDUE, I. — What Held to be 420 II. — "Who Entitled to 421 III. — When Entitled to Take 423 IV. — Undisposed op 423 "V. — Costs op Residuaky Legatee 424 YI. — Constkuction op 424 Vil, — Release op 425 I. — What Held to be, A testator seised of an estate pur auter vie, and possessed of personal property to the amount of about £4,600 bv his will, bequeathed " the sum of £1,500, the other part of the £4,500, together with any further property," in trust, for the use of his father, to be disposed of by him, share and share alike, as he, by deed or will, should ap- point, among testator's brothers, H. and J., and daughter or daughters of his sister E. The will contained a residuary clause in these words : — " As to the rest, residue and remainder of my worldly estate and fortune not heretofore and hereby disposed of, in trust, to the use of my affectionate father, J. C, and his heirs, executors and administrators for ever." Held, that the estate pur auter vie, passed under the residuary clause, and not under the words, " any further property," upon the construction of the whole MfiW.—Aehesan v. Fair, 3 Dru. & W. 512. Devise of real estate to W. R. W., and his heirs, upon trust, to receive the rents and profits, and apply same in discharge of the testator's debts and legacies, and, after payment thereof, to convey a portion of said real estate to testator's brother, R. W., for his life, and the residue thereof, and the part so devised to R. W., after his decease, to such of the sons of W. R. W. as should, at his decease, be his second son, for life, with remainder to his first and other sons in tail male, with remainder to the third, fourth and every other son of W. 11. W. successively in strict settlement. The will concluded thus : — " And, as to all my personal estate, &o., subject, however, to my debts and legacies heretofore bequeathed, I give and bequeath same to my relative, W. R. W., whom I appoint executor of this my will ; and, also, in case of any residue, I appoint him my residuary legatee." Held, that the residuary clause was confined to the personal estate, and, that under it, these rents and profits will not pass to W. R. W. for his hie.— Wills v. Wills, 1 Dru. & W. 439. " I bequeath to my wife all the household fur- niture and moveable goods and chattels, in and belonging to my dwelling house, except my books. I bequeath to her the use of my plate, with power to dispose of such portion thereof as she shall think proper." Held, that the wife took a life interest only in the plate, and that, as she had not disposed of it during her life, it fell into the residue. — Espinasse v. Luffingliam, 3 Jon. & L. 186. Testatrix bequeathed the residue of her estate, goods, chattels, and eflfects whichsheshould be pos- sessed of, interested in, or entitled to at her decease, to trustees, with very special directions to apply the whole of the income thereof for the be- nefit of the daughter (who was a lunatic), for life. Held, nevertheless, that the bequest of the residue was not specific ; and, consequently, that certain leasehold houses which formed part of it, ought to be sold, and the proceeds invested in the 3 per cents. — Cliamhers v. Chambers, 15 Sim. 183. Testator gave £ 1 9,000 consols to trustees, in trust for E. B. for life, and after her death, for her chil- dren ; and, in case she should die without leaving a child, he directed that the trust fund should be considered as part of his personal estate, and be disposed of in a due course of administration ; and he gave the residue of his eflfects to E. B., her executors and administrators, to and for her and their own use and benefit, she and they paying thereout all the debts due from him at his decease, together with the expenses of his 'funeral, the charges of proving and establishing his will, and other incidental expenses, and he appointed her his executi-ix. E. B. survived the testator, and died, without leaving a child. , Held that, there- upon, the trust fund did not become undisposed of, but formed part of the testator's residuary estate, and belonged, as such, to E. B.'s estate.^ Seott V. Moore, 14 Sim. 35. A testator directed that, in case of one of his daughters having no child, his trustees should stand possessed of a sum of £3,000, and the stock upon which it should be invested, including the accumulations of the surplus dividends, which should not have been applied in manner in the will mentioned, during the daughter's minority, upon such trusts as the daughter should by wiU appoint, and in default of appointment, or in case of appointment, as to such parts of the £3,000 as should not be efiectually comprised therein, or whereof the trusts to be thereby limited, should either never take effect, or should determine upon the trusts by the will declai-ed of his own residuary estate. The daughter, having no child, by her will, after reciting that the £3,000 and the accu- mulated dividends had been blended with funds to which she was absolutely entitled, in a sum of £6,700 consols, standing in the names of trustees, proceeded, in express execution of the power, to direct that the £3,000, and the stock upon which that sum or the surplus dividends should have been invested, should be transferred to certain trustees named in her will, upon trust, as to £2,700 consols for her mother, and as to £250 consols for another person, and as to the residue, upon the trusts after declared of her residuary estate. She then proceeded to give what she described as "all the residue of my stock in the public funds, and all my monies and security for money, and all the residue of my estate and efi'ects," to the same trustees, upon trust, to con- vert and to invest in the funds such part as should not already be so invested, and to stand possessed of all such funds, and also of the residue of the said trust funds which should remain after paying and satisfying the several legacies of stock before What Held to Be. RESIDUE. Who Entitled To. 421 directed to be paid or transferred thereout, to her mother and the other person referred to, upon certain trusts which she proceeded to declare. The mother died in the daughter's lifetime. Held, that the £2,700 consols was not well appointed, and that it was subject to the trusts declared by the testator of his residuary estate. — Easum v. Appleford, 10 Sim. 274. Testator devised to trustees all his messuages or tenements, farm lands, hereditaments and pre- mises with the appurtenances situated in C. and \V., and all other his freehold lands and tene- ments whatsoever, to hold all such his said real estate, with the appurtenances to the trustees and their heirs, upon trust, for the use of his wife, for life, with limitations after her decease, which were applicable to freeholds' only. And he gave all his household goods, implements of hus- bandry, farming stock, monies, securities for money, and all other his personal estate and effects whatsoever, to his wife, for her own sole use. The testator was seised in fee of freehold lands in C, W., and S„ but there was no messuage or other building in any of those lands, except a wooden barn and stable in the land in S. He was possessed of land in C, for a long term of years, on which there were a messuage, and farm-buildings, and at his death, and for six years before, he occupied the freehold and lease- holds as one farm, but they did not adjoin each other. Held, that the leaseholds did not pass under the devise of all the testator's messuages or tenements, farms, &c., but under the bequest of thetestator'spersonal estate. — Arkelly. Fletcher, 10 Sim. 299. Testator bequeathed a sum of stock to his wife, for life, and after her decease, to his three sons equally, to be divided amongst them, if they should all be living at the decease of his wife, but if any or either of them should happen to die in the lifetime of his wife, and should leave any child or children, his will was, that such child or children, who should be living at the time of his wife's death, should be substituted in the place of such of his said sons who should so happen to die, and take his, her, or their parent's share. All the sons died in the wife's lifetime. Two of them left children who were living at the wife's death. The third son died a bachelor. Held, that one- third of the stock fell into the residue. — Hustler v. Tilbrook, 9 Sim. 368. A testatrix being entitled to her son's residuary estate (the amount of which was unascertained at her death), bequeathed as follows : — " If any debts be due to me at my decease, I request my executors will collect and pay into the hands of my children." Held, that the son's residue passed by the bequest. — Bambridge v. Bambridge, 9 Sim. 16. Testator gave M. W. an annuity of £40 for her life, payable out of his long annuities, and di- rected, that at M. W.'s death, the principal out of which the annuity arose, should go to his next of kin then living, and he further directed that the annuity should be secured on his stock of long annuities. The testator died possessed of £509, long annuities. Held, that a fund for payment ■ of the annuity ought to be provid ed in the 3 per cents., and that the money required for that pur- pose, ought to be raised by the sale of part of the long annuities, and that the remainder of the long annuities formed part of the testator's residuary estate. — Fryar v. Butlar, 8 Sim. 442. A testator directed his executors {o apply the dividends of the property belonging to him, which might remain after paying legacies, and for providing for the payment of annuities, with his funeral expenses, his debts being all paid, to the maintenance, education, and benefit of R. S., as they should judge most advantageous for him, and in the event of the death of R. S., under twenty- one, he direct cd the dividends to be ap- plied as therein-mentii -ed. R. S. survived the testator about two years, and the executors ap- plied a part of the divider, ds to his maintenance, education, and benefit. Held, that the unapplied part of the dividends, with the accumulations, formed part of the residue. — M'Donald v. Bryce, 2 Keen, 617. n. — Who Entitled to. T. settled his freehold estates ( subject an ap- pointment ) on himself in tail, remainder to Z. L, and his sons in strict settlement, remainder to L. C. for life, provided, that if J. L., or any issue male of his body, should become entitled in pos- session to his father's family estates, then the uses before declared of T.'s estates for the benefit of him or them who should so become entitled, and for the benefit of his or their male issue should cease, and those estates should go over as if the person or persons so becoming entitled were dead without issue male. J. L. having afterwards become entitled in possession to his father's family estates, T., by his will, appointed his said estates to J. H. L. (the eldest son of J. L.) and his sons, in strict settlement, remainder to to the heirs of H. H., deceased. Provided, that if any tenant for life in possession under the will, should become entitled in possession to J. L.'s estates, his interest in the devised estates should cease, and those estates go over to the person next in remainder under the will, as if the tenant for life were dead. The testator devised his copyhold estates upon such trusts as would nearest correspond with the uses and trusts of his freehold estates, and then gave all the residue of his real and personal estates to S. M. and W., their and each of their heirs, executors, &c., ab- solutely, in equal third parts, &c. On tlie testator's death, in 1824, J. H. L. en- tered upon his estates under the will, and in 1833, he became entitled in possession to J. L.'s family estates, and had no son. A bill was filed by the residuary legatees, claiming the rents of all the estates, accruing between 1833 and J. L.'s death, or his having a son, against H. H.'s heir, who claimed the same rents, and against L. C. and H. L. (the second son of J. L.) who claimed, ad- versely to each other, the rents of the freehold estates under the limitations in the settlement, in. default of the appointment of them by T. Held by the Lords ( partly afiiiming a decree made on that bill.) (1.) That the plaintiiis were entitled to the rents of the copyhold estates under the residuary devise. (2.) ( partly reversing the de- cree) That no adjudication could be made in the cause as to the rents of the freeholds, the ques- tion as to them, being between the co-defendants. Sanfm-dy. Morrice, 11 Clk. & Fin. 667. The following passage at the end of a will ; " I guess there will be fund sufficient, in my banker's hands to defray and discharge my debts, which I hereby desire E. M. to do, and keep the residue 422 JFko Entitled to. RESIDUE. Who Entitled to. fur her own use and pleasure," was Held, under the circumstances, and upon the whole context of the will, to amount to a gift of the general resi- duary personal estate, to E. M.—Boys v. Morgan, 3 Myl. & Cr. 661. A testator bequeathed to his wife, the interest cf his money and the use of his goods for life ; at her death' he gave certain legacies, and the remainder of his property to his brothers and sisters. Held, that the widow was entitled to the residue for life. — Gkndening v. Glendening, Beav. 324. Testator gave all his real and personal estate to his brother James, and his nephew Malcolm, their heirs, executors, &c., in trust, by or out of his personal estate, or by sale, mortgage, or other disposition of his real estate, or any part thereof, to pay his sister £1,600 ; and after giving £4,000 to his bi other James, he left to his brother Donald, £2,000, and added, " and also to be my residuary legatee," after which he gave £200 to another of his sisters. Held, that Donald, was the testator's residuary devisee as well as legatee. — Evans v. Crosbie, 15 Sim. 601. A testator bequeathed all his property to A,, upon certain trusts, (but which were not co-ex- tensive with his interest in the property,) and by a clause, at the end of his will, appointed A., executor of it. Held, that A. was not a trustee of the interest undisposed of, for the testator's next of kin, but was entitled to it beneficially. — ilapp V. Ellcock, 15 Sim. 568. Testator bequeathed his residuary estate to A., the executor and trustee of his will, with a gift over, in the case of the death of A., so that he might not be enabled to perform the duties thereby required of him. A. proved the will, but died before he had fully performed the trusts of it. Held, that by merely proving the will, he entitled himself to the residue, absolutely. — Hollingsworth v. Grasett, 15 Sim, 52. Testator bequeathed all his personal estates to trustees, and directed them to convert it into ?noney, and pay the interest to certain persons, for their lives, and then to invest the principal in purchase of land ; it being also understood that, where his money or personal estate might be lying on undoubted real or personal security, such securities might be only renewed in the names of the trustees. The testator's personal estate consisted in part of long annuities. Held, that the cestuis que trust for life of the personalty were not entitled to receive the long annuities, but that they must be converted into consols. — Preston v. Melville, 15 Sim. 35. Testator bequeathed his residuary personal estate to trustees, in trust, witTi all convenient speed after his death, to sell such part or parts as they or the survivor of them, or the executors or administrators of such survivor, or their or his ?issigns, should think proper, of any monies in the funds, and also to call in, sell, and convert into money all such parts of the rest of his general personal estate as should not consist of money, and out of his general personal estate, and the ?nomes forming part thereof and to arise thereby, to pay his debts, &c., and to invest the residue of the monies to arise fiom his general personal estate which should remain, after answering the purposes aforesaid, in the usual securities, and from time to alter, at their or his discretion, as as well the same stocks, funds, and securities, as also such of the stocks, funds, or securities bein" part of his personal estate, which they or he should not think proper to sell and convert into money, and to stand possessed of all the trust monies, stocks, funds, and securities, which should be so purchased, as aforesaid, and which should remain unconverted into money, as afore- said, in trust, to pay the interest, dividends, and annual produce thereof, as and when the same should be received, to the i>laintiff. The residue of the testator's estate, after payment of his debts, &c. &c., consisted in part of sums of long annui- ties, and bank and East India stock, which still remained unsold. Held, that the plaintiff was entitled to the income accrued on those sums from the testator's death. — Wrey v. Smith, 14 Sim. 202. Testator bequeathed his residue, in trust, for his daughter Sarah and her children, independently of her husband, and her receipt alone, notwith- standing her coverture, to be from time to time a sufficient discharge. Held, that the daughter and her children living at the testator's death, were entitled to the residue, jointly. — De Witte v. Da Witte, USim. 41. Testator bequeathed £4,000, in trust, for his daughter (a single woman), for her life, for her separate use, independently of any husband with whom she might intermarry, and after her death, in trust for her children ; and if there should be no children, then, if she should stu-vive any hus- band with whom she might intermarry, in trust for her executors, &c. ; but if her husband should survive her, then, in trust as she should by will appoint, and in default of appointment, in trust for her next of kin, as if she had died Intestate, and without having married. The daughter died aspinster. Held, thatthe words, "ifmy daughter shall survive any husband with whom she might intermarry," were words of condition, and not of mere limitation ; and, consequently, the residuary legatees, and not the daughter's executor, became entitled to the £4,000 on her death. — Lenox v. Lemx, 10 Sim. 400. The ultimate limitation of a fund in a marriage settlement, after the death of a husband and wife, was to the husband, if he survived his vife ; but if the wife survived, then, after her death, to such person as the husband should appoint, and in default, " to his executors, administrators, or assigns." The wife survived, and the husband made no appointment. Held, that his residuary legatees, and not his next of kin, were entitled. — Howell V. Gayler, 5 Beav. 157. Testatrix, before the Stat. 1 Vict., c. 26, be- queathed the residue of her personal estate to her son. A., and her daughter, B., to be divided equally between them, in case they were both living at the time of her decease, but if either of them should happen to die before her, or at any time after, without issue, then she bequeathed the share of him or her so dying, and without issue, to the survivor of them. A. and B. survived the testatrix ; A. died unmairied in the lifetime of B. Held, that the moiety of the residue given to A., devolved to B. — Turner v. Framptan, 2 Coll. C. C. 331. Testator, by his will, gave pecuniary legacies to several persons, and directed his residue to he divided amongst his before-mentioned legatees, in proportion to the several legacies thereinbefore given. By a codicil, which he directed to be taken as part of his will, he gave several pecuniary legacies to persons, some of whom were legatees under his will, and declared, that the several legacies mentioned in the codicil, were given to the therein-mentioned legatees, in addition to what he had given to them, or any of them, by Who Entitled to. RESIDUE. Undisposed Oft 423 his will. Held, that none of the legatees, Under the codicil, were entitled to share in the residue, in respect of their legacies, under the codicil. — Hall v. Severne, 9 Sim. SIS. Testatrix having two sons and two daughters living, gave a legacy to each of them, and then gave the residue to Mary, one of her daughters, for life, " and after her decease I will that the said property be equally divided amongst such of my sons and daughters as may be living at the decease of the said Mary ; and in case of the decease of any of my said sons and daughters, the surviving children of any of my sons or daughters to havetheir father's or mother's part." Testatrix had another son and daughter, both of whom were dead at the date of her will, leaving children. Held, that their children were entitled to shares of the residue. — Jarois v. Pond, 9 Sim. S49. A testator concluded his will as follows : — "I guess there will be found sufficient in my banker's hands to discharge all my debts, which I desire Mrs. E. M. to do, and keep the residue for her own use." Held, (the whole of the will being taken together) that E. M. was entitled, not only to the residue of the money in the banker's hands, but the residue of the testator's general personal estate. — Boys v. Morgan, 9 Sim. 289. Testator by his will gave legacies to several persons, describing each of them as his cousin. By a codicil he gave his residuary estate to all such of his cousins, both on his father's and his mother's side as should be living at his decease, and to all the children of such of his said cousins as might have theretofore died or might die in his lifetime. The testator left several first cousins and children of the first and second cousins ; and one first cousin once removed. Heid, that none of them were included in the residuary bequest, except the first cousins living at the testator's death, and the children of first cousins who died iu his lifetime, — Caldicott v, Harrison, 9 Sim. 457. Testator bequeathed his residue to trustees, in trust, for all his children living at the decease of his wife, as tenants in common, and, if any of such children should die before his wife, and should leave issue, then the children of such, his son or daughter, should be entitled to the portion of such, his son or daughter, who might be de- ceased before the decease of his wife. Provided that until the portions thereby provided for any of the said children of his said sons or daughters who might have died before their mother, should become vested, it should be lawful for his trustees to apply the interest of the portion to which any such child might be entitled, in expectancy, for the maintenance of such child. The testator, at the date of his will, had four sons and one daughter, and he had had another daughter who was then dead, leaving children who survived the testator. Held, that those children were entitled to a share of the residue. — Giles v. Giles, 8 Sim. 360. Testator gave his residuary estate to trustees, in trust, for his wife for life, and, after his death, to divide it amongst all his children who might be then living, the shares of such of them as should have attained twenty-one, to be paid to them within three months after his wife's death, and the shares of the others on their attaining twenty-one, or to the survivors of them in case of the death of any of them in his wife's lifetime, and without leaving issue. Provided that if any of his children who should die in his wife's lifetime should have left issue, such issue should have their parent's share. The testator's wife survived him. One of his children, who was living at the date of his will, died in his lifetime, leaving issue. Held, that the issue were entitled to a share in the residue. — Smith v. Smith, 8 Sim. 353. A testatrix, whose property consisted chiefly of stock in the public funds, after giving various legacies of sums of money, gave and bequeathed to the inhabitants of Tawleaven Kow, all which might remain of her money after her lawful debts and legacies were paid. Held, that the persons found to be inhabitants of Tawleaven Row were entitled to the residue of the testatrix's general personal estate. — Rogers v. Thomas, 2 Keen, 8, A testatrix gave the residue of her property to A., and, by a codicil reciting that gift, and that as life was uncertain, A. might be removed before her, she in such case appointed B. and C. her residuary legatees. The testatrix made a second codicil as follows : — " As the death of Mrs. W. (the mother of B. and C.) has taken place, and as her two children will ultimately become my residuary legatees, the £15 she was to have I give to Mrs. H. Held, that A. was entitled to the residue. — Vaughan v. Foakes, 1 Keen, 58, III. — ^When Entitled to Take. Testator bequeathed his residuary estate, in trust for his nephew for life, and after his death, in trust, to transfer the whole to his chOdren by any lawful marriage, on the day of their attaining twenty-one. Held, that the time of payment was annexed to the gift, and therefore none of the nephew's children would be entitled to take unless they attained twenty-one. — Uuriay v. Tailored, 10 Sim. 465. Testator gave his residuary personal estate to J. J., an infant, and directed his executors to place it out at interest, to accumulate, and to pay the principal to the infant on his attaining twenty-four, and in the meantime, to allow £S0 a-yearfor his maintenance ; nnd the testator gave the residue over on the infant's dying under t\^enty-one. The court Held, that the residue was actually given to the infant, and that what followed the gift was merely directory as to the management of it ; and on the infant's attaining twenty-one, allowed the residue and accumula- tions to be transferred to him.— /osse/yn v. Josselyn, 9 Sim. 63. Testator bequeathed his residuary estate to his wife for her life, and after her death, to his son and daughter, share and share alike, and their respective issue, with benefit of survivorship, between his said children and their issue respec- tively. Held, that the survivorship was to take place only in the event of the issue of a child failing in the lifetime of the testator's widow. Turner v. Capel, 9 Sim. 158. IV. — Undisposed Or. Testator gave £19,000 consols to trustees, in Uust for E. B., for life, and after her death, for her children ; and in case she should die without leaving a chUd, he directed that the trust fund should be considered as part of his personal estate, and be disposed of in a due course of adminis- tration ; and he gave the residue of his effects, tp 4^4 Costs of Residuary Legatee. RESIDUE. Construction of. E. B., her executors, and administrators, to and for her and their own use and benefit ; she and they paying thereout, all the debts due from him at his decease, together with the expenses of his funeral, the charges of proving and establishing will, and other incidental expenses ; and he ap- pointed her his executrix. E. B. survived the testator, and died without leaving a child. Held, that thereupon, the trust fund did not become undisposed of, but formed part of the testator's residuary estate, and belonged as such, to E. B.'s estate. Masters v. Hooper, 4 Bro. C. C. 207i observed upon. — Scott v. Moore, 14 Sim. 35. Testatrix bequeathed certain leaseholds to trus- tees, upon trust, for sale, and to apply the proceeds in or towards payment of her debts, funeral and testamentary expenses, and legacies, as far as the same would go, and as to all the monies and personal estate, not thereinbefore by her disposed of, and not consisting of lands, tenements, or hereditaments, or the produce thereof ; she be- queathed the same for charitable purposes. The produce of the leaseholds was more than suf- ficient for payment of her debts, funeral expenses, and legacies, and she had not devised any other than leasehold lands to be sold. Held, that the surplus produce of the leaseholds did not fall into the residue, but was undisposed of. — Russell v. Clowes, 2 Coll. C. C. 648. Testator bequeathed his residue to trustees in trust for J. F. for life, and after her death for her children, but in case J. F. should survive her mother, and die without having had lawful issue, then in trust for the brothers and sisters of J. C. But in case J. F. should die in the lifetime of her mother without lawful issue, then the testator directed the trustees to retain, out of the residue, sufficient to produce £150 a year, and to pay the annual produce to the mother for life, and after her decease, he gave the principal so to be re- tained to the person or persons who would be entitled thereto, in case J. F. had survived her mother, and died without lawful issue. J. F. died -without issue in her mother's lifetime. Held, that the whole of the residue, except the fund for paying the annuity, was undisposed of. — Clarke v. Butler, 13 Sim. 401. V. — Costs of Eesiduabt Li3GA.tee. In a suit by a residuary legatee against the executor of the will, the testator's estate proved insufficient to pay his debts. Held, that the plaintiff was entitled to his costs, not as between solicitor and client, but as between party and party only. The decision to the contrary in Burket v. Rawsom, 2 Coll. 536, disapproved of. ■^Westgny, Clowes, 15 Sim. 610. VI. — Construction op. A will not affected by the 1 "Will. 4, c. 40, commenced as follows : — " I give, devise, and be- queath all my estates, real and personal, to W. E., his heirs, executors, or administrators, to and for the uses, intents, and purposes following." Then followed certain declarations of trust, but which were applicable only to particular portions of the personal estate, and the will concluded by ap- pointing W. E. sole executor. Held, (reversing the decision below) that W. B. took the residue as trustee for the next of kin. — Observations on the conflicting opinions of Sir W, Grant and Lord Eldon, in Dawson v. Clarke, (15 Ves. 409, and 18 Ves. 227,) and the opinion of Lord Eldon con- firmed.— Afa/ip v. Elcoek, 2 Phil. 793. Instance of a constructive disposition of resi- due. — Hodgkinson v. Bavrow, 2 Phil. 578. Testatrix gave to the eldest son of her daughter who should be living at her own decease, ten guineas, and added, that she left him no larger sum, because he would have a handsome provision from the estate of her late husband, and the estate of his own father, (who was still alive,) and she gave the residue of her property to all the children of her daughter, except the daughter's eldest son, or such of her sons, as by the death of an elder brother, should become an eldest son, equally to be divided amongst them, when the youngest shouldattaintwenty-one.The daughter's eldest son was provided for in the manner men- tioned, but he died before the youngest child attained twenty-one, and the provision did not devolve upon the daughter's second son. Held, nevertheless, that the latter was excluded from participation in the residue. — Livesey v. Livesey, 13 Sim. 33. Testatrix concluded her will as follows :— "My house in Trevor Square I give to my brother, as residuary legatee of my remaining property, for the benefit of his children. Held, that the brother took the residue, as well as the house, in trust for his children. — Inderwicky .Indervoick, 13 Sim. 652. Testator bequeathed his residuary estate, in trust, for his son and daughter, equally, and declared that certain sums which he had lent to his son should be deducted from his share of the residue, and that certain sums which he had lent to C. \V., his daughter's husband, on bonds, should be taken and allowed in account as part of her share, and if the balance should appear to be against CW., the trustees were to refrain from putting the bonds in force against him, and to take a security from him for payment of the balance by instalments. The daughter died in the testator's lifetime. Held, nevertheless, that C. W. was released from the debts due from him, and was answerable only for the excess (if any) of those debts beyond the amount of a moiety of the residue. — South v. Williams, 12 Sim. 566. The word "Icguoy," in 3 & 4 Will. 4, c. 27, s. 40, includes a residue of a share of a residue- Semite. — Christian v. Devereux, 12 Sim. 264. An executor is entitled to a residue or share of a residue bequeathed to him, although he had not proved the will. — Id. A testator, after bequeathing several legacies to his relations, A., B., C, I)., and for charitable purposes, says, " to meet these, I have £200 in the Bank of Ireland ; the little matters of furni- ture will be sold ; if any thing shall remain after all being paid, the Rev. Mr. G. will divide it among the poor." At the time of his death, the testator had no such sum as £200 in the Bank of Ireland, but his property consisted of £ 1 ,462 2s. 8d. of Gov. Old 3J per cent, stock, and £52 in cash. Held, that the general residue of the testator's personal estate passed under the residuary clause, —Gaffney v. Bevy, 1 Dru. & Wal. 12. Testatrix devised all her freehold messuages &c. in S., to trustees in trust to sell, and stand possessed of the proceeds in trust for A. ; and gave the residue of her personal estate to the trustees in trust for B. After the date of her will, she sold the houses and conveyed them to the purchaser, and he deposited the conveyance and deeds thereof with her, to secure part of the purchase money. Held, that the security, and Construction of. RESIDUE. Release of. 426 money due on it did not pass under 7 W. 4, 1 Ss Viot. e. 26, (the late Will Act) to the trustees in trust for A., but to the trustees in trust for B. — Moor V. Balsbeck, 12 Sim. 123. Testator after reciting that the income of his ■wife, in case she survived him, would consist in part of the rent of a leasehold estate which he had settled on her ; directed his trustees in case the lease should expire in heir lifetime, to pay to her out of the dividends and interest arising from a sufficient part of his personal estate, at their discretion, so much per annum as would be an equivalent for the rent lost thereby ; and he gave his residuary personal estate to the trustees in trust, to invest it in the usual securities, and to accumulate the income tmtil the lease should expire in his wife's lifetime, and then during the remainder of her life to pay her the income of the accumulated fund, and after her death to stand possessed of the capital for his grandchildren. The lease expired in the wife's lifetime, but the income of the residuary fund was not equivalent to the rent lost. Held, that the wife was entitled to have the deficiency of her income made good out of the capital of the residuary fund. — Boijd v. Buckle, 10 Sim. 595. A testator concluded his will as follows : — " I guess there will be sufficient found in my banker's hands to discharge all my debts, which I desire Mrs. E. M. to do, and keep the residue for her own use." Held (the whole of the will being taken together) that E. M. was entitled not only to the residue of the money in the banker's hands, but to the residue of the testator's general personal estate. — Boys v. Morgan, 9 Sim. 289. Testatrix gave legacies to A., B. and C, and declared that if any of them should be dead at her decease, or should not then be heard of to be then living, or should not respectively claim their respective legacies, within twelve months' after her death, then the legacies given to such of them as should be dead at her decease, or as should neglect to claim the same within the time aforesaid, should sink into her residuary estate. Three years after testatrix's death, C, who had not been heard of for upwards of twenty years, claimed her legacy. Held, that she was not en- titled to it, although she had been iguurant, until a short time before, that her sister wis dead, — Ilawkes v. Baldwin, 9 Sim. 355. Upon the construction of a will ; Held, that the testator's widow was not entitled to enjoy the testator's residuary property, for her life, in specie. — Johnson v. Johnson, 2 Coll. C. C, 441. Testator bequeathed all his personal estate except the money laid out in stock, mortgages, and bonds to A. ; and, as to his money in stock, and on mortgages and bonds, he gave the same to B. The gift to B. failed by an event analagous to a lapse. Held, that the property which was intended to be given to B. passed under the residuary bequest to A..— Evans v. Jones, 2 Coll. C. C. 516. Upon the construction of a will, Held, that certain legacies of stock, and of money on mort- gages, bonds, &c., were specific. — Id. The testator devised and bequeathed his real and personal estate (subject to certain trusts, for the benefit of his wife) to his son, absolutely ; but if his son should die under twenty-one without issue, the testator gave the same to his wife during her widowhood, with remainder (subject to certain legacies) as she should, by will, appoint, and, in default of appointment, or in case she should marry again after the testator's decease, he directed that from and after the second marriage or decease of his wife, which should first happen, a moiety of the trust estate, or so much thereof as the moiety should not extend to, should be held, in trust, for all and every the daughter and daughters who should bo then living of his sister, Mary Miles, and the issue then living of such of them as should be then dead equally amongst them, per stirpes. The testator's son died under twenty-one, without issue, in the testator's lifetime, and the testator's wife also died in his lifetime. Held, that the time of the testator's death was the period at which the persons entitled to take under the said residuary bequest were to be ascertained, that, notwith- standing, a daughter of Mary Miles was dead at the date of the will, the children of such daughter having survived the testator were entitled, per stiipes, to a share of the said moiety of the resi- duary estate ; that the children of a daughter of Mary Miles — such daughter being living at the death of the testator's wife, but having died in the lifetime of the testator— were aLso entitled, per stirpes, to an equal share of the said moiety of such residuary estate, and that the share of the child of a daughter would not lapse by the death of such child in the lifetime of the testator, but the entire share of the class would be di- visable amongst the children belonging to such class who survived the testator. — Gaskell v. Holmes, 3 Hare, 438. A testatrix, whose personal property consisted chiefly of stock, after bequeathing a number of pecuniary and specific legacies, and giving certain directions as to her funeral, gave £200 to each of her executors for their trouble, and bequeathed whatever remained of money to the five children of E. D. Held, that by the words " whatever remains of the money," the testatrix referred to her general residuary personal estate.— tlowson V. Gaskoin, 2 Keen, 14. VII. — Release op. T. H., a merchant, in partnership virith A. H., died in 1790, unmarried, and died intestate, pos- sessed of leasehold property, and leaving his sUters, Lady S. and Mrs. D., his sole next of kui. Soon after his death, the partnership was, on investigation by the creditors, found to be insol- vent, and Lady S. and Mrs. D., with consent of their husbands, duly renounced administration of his estate. By indenture made between Sh- W. S. and his wife. Lady S., of the first part, and the said A. H. of the second part, and his then new partner, K., of the third part, after reciting that the former partnership was insolvent, that A. H. and R. had undertaken to settle with the creditors by composition, which could not be effected without administration of T. H.'s personal estate, and that there had been money transactions be- tween him and Sir W. S., of wliich neither kept any account, SirW. S. and Lady S. renounced, at R.'s request, all their right to the said adminis- tration in favour of A. H., who, in consideration thereof, covenanted, after obtaining .such adminis- tration, to release SirW. S. from all claims which he, as administrator of T. H. or otherwise, might have on Sir W. S., and Sir W. S., in consideration of such release, covenanted for himself, his heirs, executors, and administrators, and for his said wife, that they. Sir W. S. and Lady S., would, after such administration should be granted to A. H., execute to him, his executors, and admiiiis- 426 Release of. RESIDUE— REVERSIONARY INTEREST. trators, a release of all claims whatsoever, which they might have on him, as administrator of T. H. or otherwise. The creditors, also, by a composition deed, agreed to accept fifteen shillings in the pound, payable by instalments, by A. H. and li., and to allow A. H. to take out administration of the estate of T. H. Afterwards, D,, the husband of Mrs. D., by a deed-poll, after reciting that ho had an unsettled demand against T. H, s estate, and that the effects of the late partnership, together with his private estate, were insufficient to pay the partnership debts, and that the creditors entered into a composition and agreement with A. H. and R., as aforesaid, declared that a bond for £ 1 ,000, given to him by A. H. and R., pursuant to an agreement therein recited, should, when paid, be in full discharge of all sums of money due to him from T. H., and of all claims what- soever of him (D.) on the estate and effects of T. H. A. H. then took out letters of administra- tion of T. H.'s estate ; and, in order to pay the creditors, raised sums of money by annuities and mortgage on the said leasehold property, R. joining in the securities ; but, in 1793, being unable to pay the whole composition by what they had then received from the intestate's estate, they entered into further arrangements with the creditors, and soon afterwards dissolved partner- ship, R. remaining in exclusive possession of the leasehold premises, of which he afterwards pur- chased the fee simple, and dealing with them as his own for several years, without any interference by A. H., or the said next of kin, or their hus- bands, who stirvived them, all of whom died between the years 1797 and 1815 ; he (R.) mort- gaged them in 1815, to secure debts due by him to D. & Co., subject to the leases possessed by the intestate ; subject to which, he also, in 1818, released to them the equity of redemption, and they afterwards sold the property in fee to other parties. A bill to redeem the premises was filed against the mortgagees and purchasers, in 1831, by the administrator de bonis non, of T. H., claiming title also as representative of the next of kin. There was no direct proof that T. H.'s next of kin executed releases of their interest in the residue of his estate. Held, by the Lords, that, under the circumstances, and after so long a time, and acquiescence by all parties in R.'s dealings with the property, such release might well be presumed ; and that the same, and the deed-poll e.-ieeuted by D., amounted to a release of their inte- rest, in right of their respective wives, in the Te-;idue of the personal estate of the intestate, although such residue was not mentioned in their deed.—SkeJington v. Budd, 9 Clk. & Pin. 219. Semble : If the residue had not been so released, and time and the acts and acquiescence of the pnrtics hsd not been a bar to a bill to redeem, the administrator de bonis non, of the intestate would be entitled to sustain such bill, notwithstanding that the equity of redemption had been reserved to the original administrator's representatives. — Id. RESTRAINT. See M.VUE.IACE. — Alienation. RETAINER. See Pk. Counsel — Executors and Administkatoks. REVERSIONARY INTEREST. Purchase of a contingent reversionary interest set aside chiefly on the ground of inadequacy of value, the consideration being an annuity for the life of the vendor, whose life was a bad life, and was better known to the purchaser than the vendor, to be such. — Davies v. Cooper. 5 Myl. & Cr. 270. On a decree for the specific performance of a contract for the purchase of a reversion expectant on a lease for lives, the vendor is entitled to inte- rest on the purchase money from the day on which the master reports that a good title could have been made. — Enraght v. Fitzgerald, 2 Dru. & W. 43. The tenant for life of a trust fund, having con- sented to surrender her interest to the rever- sioner, a married woman, and the latter having been examined in court, and consenting, the court ordered the fund to be transferred to her husband. — Creed v. Perry, 14 Sim. 592. A married woman, who was entitled to a trust fund in reversion, having had the life interest as- signed to her, the court ordered the fund to be transferred to her husband, she consenting. — Hall V. Tlugonin, 14 Sim. 595. T. M., by articles entered into previous to his marriage, covenanted to convey to trustees, to the use of himself for life, remainder to secure a jointure for his wife, remainder to the issue of the marriage in strict settlement, and in default cf issue to the right heirs of T. M., and in case T. M. should die without issue or making a will, then the lands were limited over in fee. A fine was levied and recovery suffered, pursuant to the articles. In 1773, T. M., by his will, directed a competent part of his unsettled estate to be sold for payment of certain charges, and devised all the residue and remainder of his unsettled real estate which should remain after the pay- ment of the said charges to his wife for life, and after her death, to the Incorporated Society in Dublin for promoting English Protestant Schools in Ireland, and appointed his wife executrix. T. M. died without issue, seised of an estate besides that comprised in the marriage articles. Held, that the reversion of the lands comprised in the marriage articles passed by the devise. — Incorporated Society v. Richards, 1 Con. & L. 5?. On the marriage of a female infant, her re- versionary interest in choses in action was settled, under the court, for her separate use for life, with remainder to her children. She afterwards con- tracted two subsequent marriages, but no further settlement was executed on those occasions. Part of the reversionary interests fell into pos- session during the first coverture, and part during the second, and were transferred to the trustees. Held:— First, That although the deed made during infancy was not binding in respect of the reversionary interests, as against the wife survi- ving, still she might, while discovert, adopt it, if for her benefit. Secondly, That the wife having survived, and not having called for a transfer of the fund, must be deemed to have acquiesced in, and adopted it, as it was for her interest to do so. Thirdly, That she must be deemed to have mar- ried her second husband, on the faith that her property was protected by thesettlement, and that he was bound by it. Fourthly, That the third husband, who had notice of the settlement previous to his marriage, and had for some years after acquiesced in it, was bound thereby, and had no REVERSIONARY INTEREST— SATISFACTION. 4-27 interest in the settled propeitVj— ^s/ito» v. M'Dougall, 5 Beav. 56. • A bill was filed for the administration of the testator's estate, • by a party entitled to a contin- gent reversionary interest, and a decree for an account was obtained. Before the report, the plaintiffs interest wholly failed. Held, that the plaintiff was not entitled to his costs of suit, either as against the defendants or the fund, and a petition for the purpose was dismissed with costs. — Ilay V. Bowen, 6 Beav. 610. A sole plaintiff, whose interest failed pending a reference to take the aeouunts, was restrained from proceeding further in the suit. — hi. When portions are charged on a reversionary term, and an intention that they should be raised during the life of the tenant for life, is plain, such intention will be effectuated. A. having power to raise the portions provided for younger children under his settlement, by sale or mortgage, or other disposition of a reversionary terra of one thousand years ; did, in 1815, on the marriage of one of his daughters with Lord E., purport to charge by ap- pointment this reversionary term with a sum of £4,000 and interest. After thedeath of Lord C, his personal representative having been advised that the power to charge had not been duly executed, proceeded at law against A. on the covenant for title. A. gave judgment at law and filed his bill, stating, that the same sum would, in a court of equity be deemed and decreed to be well charged, and praying a perpetual injunction against the pro- ceedings at law, offering at the same time to exe- cute any deed or instrument, which should be deemed necessary for charging the same. Held, that A. should, with the trustees of the tei-m, execute to the representative of Lord C, a mort- gage of the lands and premises in the said term, for the said sum of £4,000 and interest ; and that a perpetual injunction should be granted against any further proceedings at law. — Whaley v. il^or- gan, 2 Dru. & Wal. 330. B. purchased a reversionary interest of A., at a gross undervalue, and under circumstances which rendered the transaction void in equity. C. had notice of the invalidity of the contract, but, ten years afterwards, he purchased the reversion of B., paying to B. the full value ; A. joined in the conveyance, and confirmed the sale. The court, being of opinion that C. had not taken proper steps to protect A. in the second transaction, set it aside, and decreed a re-conveyance, on payment of the consideration given by B. to A. in tlie first transaction. — Addis v. Campbell, 4 Beav. 401. EEVOCATION. See Will. EIGHT TO BEGIN. See Pa. Eight to Begin. EIGHT TO BE HEAED. See Pa. Eight to be Heahd. EOAD TRUSTEE. Thp trustees appointed under a public road act are not responsible for an injury occasioned by the negligence of the men employed in making or repairing the road. — Duncan v. Findlater, 6 CUc. & Fin. 894. The funds raised by such act cannot be charged with the compensation of such an injury ; the persons employed on the road not being in the situation of servants to the trustees. — Id. EOMAN CATHOLIC CHUECH. See Ecclesiastical Law. SATISFACTION. SALE. See Power ofSale. — Vendor and Purchaser, — Pe. Sales Judicial. SALVAGE OF LAND. See Landlord and Tenant. SATISFACTION. See Legacy. — ^Debtor and Creditor. — Portions. A sum of £1,000 was, by deed of 1805, vested In A., in trust, for his daughter, M. G., until she attained the age of twenty-five years or married, and after attaining that eige, or day of marriage, to permit M. G. to receive the interest during her life, and after her decease for her issue as she should appoint, and in default of appointment equally, but in case she should die previous to twenty-five, or day of marriage, or without issue, then over to the other children of A. On the marriage of M. G., A., by settlement of 1824, vested in trustees securities, for money exceedino- £1,000 upon trust, for the separate use of M. (i. for her life, and after her decease for the use of the children of the marriage, as the intended husband should appoint, and in default of appointment equally, and in default of such issue, for the in- tended husband, his executors, &c. This settle- ment did not refer to the deed of 1805. Held, that the provision made for M. G., by the settle- ment of 1824, was a satisfaction of her claims under the deed of 1805, though it did not appear that the husband was aware of his wife's claim thereunder.— Hayes v. Garvey, 2 Jon. & L. 268. A provision by a father on the marriage of his daughter, of a greater sum than he owes her, U in general to be deemed a payment of the debt, and It IS not necessary that there should be an express stipulation to that effect, or to shew that the husband knew of the debt.— /<;. 428 SATISFACTION— SAVINGS' BANK. By a marriage settlement of the 9th of May, 1789, certain real estates, the property of the husband, were limited in trust tor hira for life, and after his decease, to trustees for a term of one thousand years, and subject thereto to the use of the first and other sons of the marriage, with remainder to the husband in fee. The trusts of the term, which were for raising a sum of £8,000, as portions for the younger children of the marriage, were declared to take effect in case there should be one or more child or childi'en of the said marriage, besides an eldest or only son. There was no son of the said marriage, but only two daughters. Upon the occasion of the mar- riage of one of the daughters, the father cove- nanted to settle upon herself and her husband and their issue, an annuity of £500 per annum, and subsequently conveyed, in fulfilment of this covenant, a portion of the lands which were the subject of the settlement of 1789, to trustees for a term of three hundred years, to secure the same. Upon the marriage of the second daughter, the father made a pecuniary provision for her, which was expressly declared to be in satisfaction of her portion under the settlement. The father, by his ■will devised the estates, which were the subject of the settlement of 1789, to his two daughters in the same manner eis they would have come to them if he had died intestate. Held, upon the true construction of the settlement, that as there was no son of the marriage, the portions were not ralsable, Semble : That even if the portions were raisable, the gift of annuity to the daughter would have operated as a satisfaction of her share. Semble : After the descent of the estates upon the two daughters, neither could support a claim against her sister's lands for her share of the portion. The case of Church v. Edwards, (2 Bro. C. C. 180,) approved oi.— Walcott v. Bloomjield, i Dru. & "W. 211 ; 2 Con. & L. 577. By a marriage settlement, a rent charge of £200 a year was secured to the wife for life, payable quarterly, with power of distress, &c., to enable the husband to mortgage ; the wife released her rent charge to the mortgagee. The equity of redemption was reserved to the husband, who covenanted to convey other lands on the trusts of the settlement. The husband, by his will, gave his real and personal estate to his brother, on condition that he would allow his wife £300 a-year for life. Held, that the £200 a-year re- mained a valid charge on the equity of redemp- tion ; and, secondly, that it was not satisfied by the £300 a-year.— (Tood v. Wood, 7 Beav. 183. B., by his will of the 4th of June, 1763, be- queathed to M. £2,000, and devised to her £200 a-year for life, charged upon his lands in Y. Subsequently, by deed of the 10th of June, 1765, B. devised certain of his lands to L., for ninety- nine years, for the use of B. for life, and then to raise and pay unto the said M. £300 a-year for life, for her separate use, the deed containing a power to B. to revoke. B. died in July, 1765, without having expressly revoked or altered the will or deed. Held, that M. was not entitled to the double provision made for her by the will and deed ; the provision of the deed having adeemed and satisfied the provisions of the will, so that M. had no interest whatever under the same. — Williams v. Dwke of Bolton, 2 Con, & L. 587, n. Same decree in respect of P. (who was similarly provided for by the will and deed), except that she was not to be barred of her interest in the estates of the said testator by way of remainder given her by the said will. — Id. The doctrijie of satisfaction does not apply to a gift by a fatlS: to his daughter, when he had in his hand, by permission of an executor, a legacy bequeathed to the daughter by the executor's testator. — Acheson v. hair, 2 Con. & L. 208. A trust fund, to which a father was entitled for life, and his son and daughter in remainder, was sold, and the proceeds received by the father. Subsequently, on the marriage of the daughter, the father settled property for her benefit, of a larger value than the proceeds of the trust fund. Held, that the claim of the daughter agamst the father, in respect of her share of the proceeds of the trust fund must be presumed to be satisfied by the settlement. — Plunkett v. Lewis, 3 Hare, 316. That neither the expression, in the settlement, of the consideration of natural love and affection, nor the ignorance of the husband of the rights of the wife in the trust fund, had the effect of excluding the presumption of satisfaction. — Id. Evidence is admissible, either to support or rebut the presumption. — Id. Whether, in the case of a portion of the precise amount ot the debt, the expression of natural love and affection, as the consideration for the settle- ment, might not be material on the question of satisfaction — Qiuere. — Id. Advances made by a father to his son, simpK- citer, not a purchase or satisfaction of the claim of the son to the proceeds of a trust fund belonging to the son, possessed by the father after such advances, — Id. 330. A. having invested in stock a sum of money, in pursuance of a settlement, by way of portion for one of his daughters, and having given a bond for the payment of a further sum at his decease, entered into an agieement with B. to make a provision for his unmarried daughter, on her marriage with B., on a basis of equality with the provisions made for his married daughter. A memorandum of the terms of the agreement (in which some variations were afterwards made by the parties) was written, at the direction of A., by A.'s solicitor, in the presence and with the approbation of B,, and A. gave instructions to his solicitor to prepare a settlement in conforniity with the memorandum subject to the variations ; bnt he died before such settlement was executed, having made a will, by which he gave a share of the residue of his estate to his married daughter. B. married the daughter of the testator, and per- formed his part of the agreement comprised in the memorandum ; and on a bill filed by him and his wife, claiming the portion agreed to be se tied against the testator's estate, it was Held : — First, that the memorandum was not a binding agree- ment within the Statute of Frauds ; secondly, that the share of the residue given by the will to the daughter married in the testator's lifetime, was a satisfaction of that part of her portion which was secured by bond. — The Earl of Glengal v. Bartiard, I Keen, 769. SAVINGS' BANK. Amendment of the law relating to, 11 & 12 Via. c. 133, I., repealing so much of 7 & 8 Vic. c. 83, as relates to limiting responsibility of trustees of Savings' Banks in Ireland. Enabling Depositors and others to purchase Annuities through the medium of Savings' Banks, 3 & 4 W. 4, c. 14, V. K,, repealed, (as to amount of annuities purchaseable), and other provisions made bv 7 & 8 Vic. o, 83. SAVINGS' BANK— SCOTLAND. 429 Regulating mode of settling disputes between Depositors, and the Trustees and Managers of any Savings' Bank, 7 & 8 Vie. c. 83, s. 14, V. K. Friendly Societies assuring for more than £200 not to be allowed to vest their funds in Savings' Bants, 3 & 4 Vic. c. 73, s. 2, V. K. Regulating the rate of interest payable by, 7 & 8 Vic. c. 83, s. 2. Repealing so much of 9 Geo. 4, c. 92, as re- quired deposit of rules, with clerk of the peace, and making other provisions in respect thereof, 7 & 8 Vic. c. 83, ss. 18, 19, TJ. K. Protection of Savings' Banks in Scotland, 5 & 6 W. 4, c. 67. Exempting Stock or Dividends of, or Interest payable by, &om Property Tax, 6 & 6 "Vic. c, 35, s. 88, G. B. Regulations as to Trust Deposits in, 7 & 8 Vic. c. 83, s. 7, U. K. By the 22nd section of the Act, 9 Geo. 4, c. 92, an Act to Consolidate and Amend the Laws relating to Savings' Banks, it was ordered, that within six weeks after the 20th of November, 1828, the trustees and managers of the different Savings' Banks then established should ascertain the amount of the increased funds of their res- pective banks up to the said 20th of November, and should, as soon afterwards as conveniently could be, after retaining so much as might be necessary for the future management of the said Savings' Banks, respectively appropriate the same in the manner provided for by their res- pective rules and regulations made before the passing of that act, or in the event of no provision having been made by such rules and regulations, then in such manner as the trustees or managers, or the major part of them at any general meeting convened according to the respective rules and regulations of such Savings' Banks should think fit. The increased fund of the Arundel Pro- vident Bank (established in 1818) up to the 20th of November, 1826, was ascertained to amount to £724 15s. lid. The rules and regulations of the bank did not contain any direction as to the mode of applying this surplus, but, by one of the rules, and also by the said act, the trustees and managers were not to have any benefit from the application of it. Previous acts repealed and consolidated by this act provided that the surplus should be disposed of among the depositors as the trustees should think fit. The majority of the trustees of the Arundel Provident Bank present at a general meeting regularly convened, resolved to appro- priate £592 15s. lid. of the surplus to the widening of the bridge on the river Arun, and the same was paid over accordingly to one of themselves who was bridge master. Held, by the Lords (affirming an order and decree of the court below) that this was a misapplication of the fund and a breach of trust, and though the money was expended on the bridge, the parties were personally liable to refund it. — Holmes v. Heniy and others, 4 Clk. & Pin. 99. The treasurer of a Savings' Bank, on his appoint- ment, enters into the usual bond for performance of his duties, but does not receive any money, the deposits being paid by the managers, directly to a banking firm, of which the treasurer is a partner, to the credit of the trustees of the Savings' Bank, who are allowed interest upon it ; but he nevertheless signs the return (required by the Act) to the Commissioners for the Reduction of the National Debt, and thereby acknowledges the amount of the balance standing to the credit of the trustees, to be monies in his hands as treasurer. The firm became bankrupt. Held, that the balance was in the hands of the treasurer as treasurer at his banlu-uptcy, and might be recovered in full by the Sayings' Bank. — Ex parte Riddell, 3 M, D. & D. 80. The 3 & 4 Will. 4, c. 14 s. 8, providing, that if any person, thereafter to be appointed to an office in a Savings' Bank, and having money in his hands belonging to the bank, shall become bank- rupt, the bank shall be paid in full, applies only to Savings' Banks which have conformed to 9 Geo. 4, c. 92. What is a sufficient compliance vfith 9 Geo. 4, c. 92, s. 6. providing that no Savings' Bank shall have the benefit of the Act, unless its rules provide, that no person being treasurer, trustee, or manager of such institution, or having any control in the management thereof, shall derive any benefit from the deposits in the bank, except as in the Act mentioned. The certificate of the barrister, appointed under the provisions of 9 Geo. 4, c. 92, that the rules of a Savings' Bank are in conformity with the Act, is not conclusive. —Ex parte Haynes, 3 M. D. & D. 663. Where a joint fiat issues against the treasurer of a Savings' Bank, and his co-partner in trade, the trustees can (under the 3 Will. 4, c. 14, s. 28,) claim only a priority of payment of any debt owing by him, out of his separate estate, and have no claim whatever against the joint estate, although the separate estate may prove insuffi- cient to satisfy the debt. If they advance such a claim by their petition, they will be refused their costs of obtaining the order against the separate estate. — Exparte Appach, re Ashley, 1 M. D . & D . 83 . SCHEME. See Chakitt. SCIRE PACIAS. See Ph. Scire Facias. SCOTLAND. The Act 4 & 6 Will. 4, c. 22, for the equitable apportionment of rents, annuities and other pe- riodical payments, extends to Scotland. — Fordyce V. Bridges, 1 Clk. & Fin. N. S. 1. The law, as to actions against attorneys or law agents for negligence in the management of causes, is the same in England and Scotland,— Purees v. Landell, 12 Clk. & Fin. 91. A Scotchman, by a testamentary instrument in the Scotch form, bequeathed all his personal estate to trustees, in trust, to pay legacies and annuities, and the income of the surplus to A. for life, and on A.'s death, to invest the capital in the purchase of lands in Scotland. The trustees named in the will having disclaimed, the Court of Sessions appointed new trustees, who, as well as A., and several of the legatees and annuitants, were resident in Scotland. A. administered to the testator's estate in England, and filed a bill in Chancery against the trustees, for the usual ac- counts of the testator's estate possessed by them, to have the residue ascertained and secured, The trustees filed a cross bill for an account of the testator's estate in England, possessed by A„ and 430 SCOTLAND— SECURITY— SET OFF. to have the residue ascertained and paid over to them, upon the trusts of the will. The court refused to relinquish its jurisdiction over the fund in A.'s hands, and directed it to be paid into court and to be invested in Consols, and the di- vidend to be paid to A. for life. — Preston v. Melville, 15 Sim. 35. A deed in the Scotch form, made between parties, some of whom were domiciled in Scot- land and others in England, construed partly to the law of Scotland and partly according to the law of England i that is to say, so far as it con- cerned the Scotch parties according to the Scotch law, and so far as it concerned the English practice according to the English law. — Duncan v. Camp- bell, 12 Sim. 616. SECITRITY. See Pe. Seouiuty poa Costs. Relieving bona fde holders of the negotiable securities, without notice that they were given for usorious consideration, 58 Geo. 3, c. 93, U. K., amended by 5 & 6 W. 4, c. 41, U. K. The employment of a barrister as confidential legal adviser, disables him from purchasing for his own benefit charges on his client's estates without his permission, and although the con- fidential employment ceases, the disability con- tinues as long as the reasons on which it is founded continue to operate. C, a barrister, who had been for several years the confidential and advising counsel of P., and had by reason of that relation acquired an intimate knowledge of his property and liabilities, and was particularly consulted as to a compromise of securities given by P., for a debt which C. considered not to be recoverable to the full amount, purchased these securities for less than their nominal amount, without notice to P., after he had ceased to be his counsel. Held, that C.'s purchase while the compromise proposed by P. was feasible, was in trust for P., and that he was entitled only to the sum he had paid with interest, according to the course of the court. — Carter v. Palmer, 8 Clk. & Fin, 657. A being tenant in tail of large estates, expectant on the death of his father, in consideration of £6,000, and £10,000 advanced to him by O., charged the estate with £12,000, and £20,000 to be paid only in the event of surviving his father, who was about eighty years of age, A. being about forty-three ; and he granted to R., his agent, in these transactions, in consideration of his services, an annuity charged on the same estates. R. as- signed the annuity to O. forvaluable consideration. O. filed a bill against A. after his father's death, to enforce these securities, and A. filed a cross bill to set them aside, charging that O. and R. took advantage of his distress, and that no adequate consideration was given him for his post- obit securities, and no consideration for the annuity, and at the hearing he gave evidence that the consideration for the two sums of £12,000, and £20,000 was not the full value according to the tables and calculations of actuaries. O. gave no evidence. Held, that the court, in the absence of evidence to enable it to decide the question, exercised a proper discretion in directing the master to enquire what, at the time of the trans- action, was the fair market price of the two sums so secured to be paid, regard being had to the ages of A. and his father, and to the circumstances ot the estates and A.'s interest in them.— Bar? of Aldboroxigh v. Trye, 7 Clk. & Fin. 436. A new security of as high a nature as the former for the old debt and further advances, does not prejudice the old security.— re»iso« v. Saeeny, I Jon. & L. 710. SEPARATE PROPERTY. See Husband and Wife. SEPARATION. See Husband and Wipe. SEQUESTRATION. See Pb. SpaUESTEATIOS. SET OFF. Where there are cross demands between two parties, of such a nature, thai if both were reco- verable at law, they would be the subject of legal set off, then, if either of the demands is matter of equitable jurisdiction, the set ofi' will be enforced in equity. — ClarJc v. Cort, 1 Or. & Ph. 154. Equitable set off exists in cases where the party seeking the benefit of it can shew some equitable ground for being protected against his adversary's demand. The mere existence of cross demands is not sufficient; still less will the court interfere on the ground of equitable set off, to prevent a party from recovering a sum awarded to him by a jury, as damages for a breach of contract, merely because there is an unsettled account pending between him and the party against whom the action is brought, although the subject matter of the account consist of dealings and transactions arising out of the contract, the breach of which is the subject of the action. — Eawson v. Samuel, 1 Cr. & Ph. 161. I., being indebted to his sister, C, became a bankrupt. Shortly afterwards, C. made her will, and thereby gave certain sums to her trustees and executors, as pecuniary provisions, for the benefit of I., in a form apparently intended to exclude the claims of creditors. She never proved her debt against the bankrupt's estate, and died before he obtained his certificate. On a bill by the assignee against the executors of C. for payment of the money bequeathed for the use of the bank- rupt, the Lord Chancellor Held, affirming the decree of the Master of the Rolls, that the execu- tors were not entitled to set oflT the amount of the unproved debt against the demand of the assignee. — Cherry v. ISoultbee, i Myl. & Cr. 442. By the decree, sums due from a legatee were ordered to be set off against her share of the tes- tator's estate, and her costs were ordered to be paid to her solicitor. It being found that the claims against her exceeded her portion of the testator's estate, and the legatee being insolvent, an application was made by motion, that the costs ordered to be paid to her solicitor might be carried to the credit of her account. The court stayed the payment of the costs for a month, in order that the matter might be set right. — Nichol- son v. Norton, 7 Beav. 67. Where a testatrix devised a freehold estate to trustees, upon trust, to sell, and pay £140, part of SET OFF. 431 the proceeds to A., and the residue of the pro- ceeds to B., and appointed the devisees in trust her executors. Held, that in a sait by A. and her husband against the trustees, for payment of the £140, the latter were not entitled to set off the damages or costs of an action brought by them as executors against the husband to recover a deposit note in the hands of the wife, forming part of the testatrix's estate. The will authorised the devisees in trust to give receipts. Held, that the cestui que tittst of the proceeds, after payment of the £.140, was an unnecessary party, and the bill was dismissed as against him, with costs. — Beeve v. nic/iei; 1 De. G. & S. 624. Where a debt to the estate of a testator maybe set off by the executors against a legacy be- queathed by the testator to the debtor, such debt may also be set off against a legacy bequeathed by the testator to the wife of the debtor, subject to her equity (if any) in the legacy. — M'ilahon v. Burchell, 5 Hare, 325. Costs receivable and payable by two parties or- dered to be mutually set off without regard to the lien of the solicitors. — Cattell v. Simons, 6 Beav. 304. The Master of the Rolls has jurisdiction to di- rect costs, which have been ordered by the Lord Chancellor, to be paid by the defendant to the plaintiff, to be set off against costs ordered by the Master of the Rolls, to be paid by the plaintiff to the defendant. The order may be obtained on motion, and the notice of motion may be given before the taxation. — Id, The Lord Chancellor, on the 8th of November, ordered the defendant to pay costs to the plaintiff, but the order was not completed till the 23rd of December. The Master of the Rolls, on the ISth of December, ordered the plaintiff to pay costs to the defendant, and on the 19th, the plaintiff offered to set off the costs. The defendant, in January following, issued an attachment for the costs. Held, that the plaintiff, notwithstanding he was in contempt, might, under these circum- stances, move to set off the costs. — Id. A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her exe- cutors in a suit for a legacy bequeathed by the testatrix to the debtor, but not as against a legacy bequeathed by the testatrix to the wife of the the debtor. — M'Mahon v. Burchell, 3 Hare, 97. In a suit by a legatee to obtain payment of the legacy out of the assets of the testator in a due course of administration: — Held, that the exe- cutor might retain so much of the legacy as was sufficient to satisfy a debt due from the legatee to the testator at the time of his death, although the remedy for such debt was, at the time of the death of the testator, barred by the Statute of Limita- tions, 21 Jac. 1, c. 16. — Courtenay v. Williams, 3 Hare, 539. Whether the executor would have the same right of retainer if the suit had been for payment by himself personally, and not out of assets of the testator — Qucere, — Id. A. was indebted, on bond, to B.; B. died leaving C. his sole next of kin, who obtained letters of administration of his estate. The estate of B., after all his debts, &c. were paid, left a clear residue exceeding the amount of the bond debt. A. became surety for C. by joining in pro- missory notes, C. become an insolvent debtor, and A. was compelled to pay the notes. C. died, and then the assignee under his insolvency, took out letters of administration de bonis non to B., and sued A. on the bond. Held, that A. might set off the sums which he had been compelled to pay as surety for C. against the bond debt. — Jones V. Mossop, 3 Hare, 568. The obligor in a bond becoming surety for ad- vances to the obligee, and being, after the insol- vency of the obligee, compelled to pay the debt for which he had become surety, is entitled to set off the sum so paid against the amount due upon the bond. — Id. A trustee of real estate became mortgagee of the trust estate, partly by taking an assignment of a prior mortgage, partly by taking an assignment of a mortgage created by his co-trustee and him- self, under their power for the purposes of the trust, and partly for money which he lent to the cestui que trust of the equity of redemp- tion, subject to charges created by the will. The mortgagee and trustee filed his bill for foreclosure simply. The cestui que trust of the equity of redemption filed his bill for an account of the trust of the mortgages, and that the mort- gages might be ordered to stand as securities only for the balance due to the mortgagee and trustee upon the mortgage and trust accounts. Held, that the court might make one decree in both causes, so as to give the mortgagor any set off he might be entitled to, or make a decree of foreclosure in the former suit, and a separate decree for an account against the trustee per- sonally in the latter, according to the circum- stances and justice of the case. — Dodd v, Lydall; hydall v. Dodd, 1 Hare, 333. T. B. was indebted to C. D., his sister, in the sum of £1,878. He became bankrupt, and shortly after his bankruptcy, CD. made her will, whereby she gave legacies of £600 and £2,000 to her exe- tors in trust, to pay the interest thereof (as to the £500 after the decease of her mother) to T. B. for his life, without power of anticipation, and free from his debts, and after his decease to pay the principal to such persons as he should appoint, and in default of appointment to his executors and administrators, for his and their own uses and benefit. T. B. died without having obtained his certificate, and without having attempted to make any appointment. Held, that the executors of the testatrix had no right to set off the debt due from T. B . to the testatrix against the legacies, but that the assignee of T. B. was entitled to so much of the legacies as the assets were sufficient to pay. — Cherry v. Boultree, 2 Keen, 319. A. borrows money of B. & Co., country bankers, on his promissory note, which they deposit, in- dorsed along with other bills and notes, with W. & Co., their London agents, to secure the pay- ment of advances. B. & Co. become bankrupts', when A. held notes issued by their bank, more than sufficient to discharge the amount of his promissory note, and W. & Co. also held bills and notes of B. & Co., to a greater amount than the balance due to them from B. & Co ; W. & Co. compel A. to pay to them the amount of his promissory note, and refuse to allow him to set off the notes he held of B. & Co., and A. not knowing that W. & Co. held sufficient securities to discharge the balance due to them from B. & Co., proved under the fiat for the amount of the notes held by B. & Co. The assignees of B. & Co. then pay W. & Co. the amount of the balance due to them, after receiving credit for the sum paid by A. in discharge of his promissory note, and take out of W. & Co.'s hands all the remaining securities. Held, that as A. would 432 SET OFF— SETTLEMENT. TVho Entitled Under, SfC. have had a right of set off against the bankrupts, if they had continued in possession of his promis- sory note ; he was not to be deprived of this right by his ignorance of the state of the account be- tween W. & Co., and the bankrupts, and that the assignees were therefore, bound on the withdrawal of his proof to repay him the amount of his promissory note. — Ex parte Staddon, 3 M. D. & D. 256. Commissioners are empowered by Act of Par- hament, to levy rates and duties on vessels entering a harbour, and also tolls on vessels navigating a river communicating with the harbour ; and they are required to apply the rates and duties in the improvement of the harbour, and the tolls in the improvement of the river. They deposit the monies received by them with one of their number, ■who is a banker, and acts as treasurer ; and the accounts and drafts relating to the harbour and river are separate, and distinguished &om each other. The banker having failed: — Held, that a debt due from him on one account might be set off against a debt due to him on the other, and that the assignees might be restrained from proceeding against the commissioners to recover the latter debt, although the set off would furnish a good legal defence. — Ex parte Pearce, 2 M. D. & D. 142. Although an agreement of the bankrupt, to submit to arbitration is not binding on his assignees, yet where a judge's order made (by Consent) in a cause in which the bankrupt was, plaintiff, recognised a pending reference between the parties, and ordered that in the event of any sum being found by the arbitrator to be due from the bankrupt to the defendant, such sum might be set off against the debt and costs in the action, it was Held, that this order amounted to an agreement on the part of the bankrupt, to allow a right of set off to the defendant of the sum to be thus ascertained, by which the assignees were equitably bound, and the sum not having been ascertained before the bankruptcy, it was referred to the registrar for that purpose, and the assignees were in the meantime restrained from proceeding in any action for the recovery of the debt. — Ex parte Miehie re Geddes, 1 M. D. & D. 181. One of two assignees was not allowed to set off his own debt against the amount of a dividend payable to a creditor under the fiat, although he swore that the creditor had agreed to allow such set off. — Ex parte Bailey re Howarth, 1 M. D, & D. 263. SETl'ING ASIDE DEED. See Deeds. SETTING DOWN. See Pr. Setting Down Cause.^ Pit. Demurrer. SETTLEMENT. I. — Who Entitled Under, and to What 432 II. — Married Woman, and Ward of Court 433 III. — Wife's Right to Settlement . . 434 IV. — Power of Court over Settlement Made by Male Ward 434 v.— Appointment or Foreign Trustees 434 VI. — Liabilities of Trustees Under. . 434 VII. — Reforming of 435 VIII. — Revocation OP, Before Marriage 436 IX.-— Foreign Contract for, When Executed 436 X. — On Children 436 XI. — For Maintenance 437 XII. — ^In Case op Bankruptcy 437 XIII. — Vested Interest Under 438 XIV. — Construction 438 XV. — Voluntary 440 XVI. — Cesser op Term 442 XVII. — Child's EauiTY to a Settlement 442 I. — Who Entitled Under, and to What. The trusts of a term in a post-nuptial settle- ment of real estates were, after the decease of the husband and wife, (the settlors,) to raise £1,000 for the portion of every daughter and younger son, to be paid to the sons at the age of twenty- one, and to the daughters at that age, or marriage, if such ages should be attained, or marriages had, after the decease of the survivor i f the settlors, and not sooner ; and, if any younger son died, or became an eldest or only son before twenty-one, or any daughter before that age unmarried, or before his or her portion became vested, the por- tions provided for such sons so dying, &c., and such daughter so dj'ing, &c., before his or her portion became payable as aforesaid, should survive and accrue to the survivor's of such daughters and younger sons, to be equally divided between them, and paid when their original portions should become payable. Then fol- lowed a proviso for the issue of a younger son or daughter dying in the lifetime of the settlors, or after their death, before his or her portion became due and payable, and a trust after the death of the settlors for maintainance of such sons and daughters, or their issue entitled to por- tions, as aforesaid, until his or her portion became payable, with cesser of the term on payment of the portions, or in case there should not be any younger children or issue of them living at the death of the survivor of the settlors. The settlors had seven children, (besides an eldest son), four of whom died in the lifetime of their parents under the age of twenty-one, and unmarried. Held, by the Lords, reversing a decree in Chan eery, that the three survivors were entitled to have the portions of the four deceased children raised for them in addition to theii own. — Evans V. Scott, 1 Clk. & Fin. N. S. 43. Prior to passing of the Act for Assimilating the CuiTencies of England and Ireland, an English lady married an Irish gentleman. By their set- tlement, which was executed at Bath, where the marriage was solemnized, it was recited, that the gentleman had agreed to charge certain of his estates in Ireland, with the payment of a rent charge of £1,000 a year, to the lady for life, in case she should survive him ; but the sum secured to her by the deed, was expressed to be £1,000 a-year sterling, lawful money of Ireland. Held, nevertheless, that she was entitled to £1,000 a-year sterling. — Cope v. Cope, 15 Sim. 118. By the settlement, made on the marriage of E. M., the ultimate limitation of a sum of £10,000 which her father thereby covenanted to pay, was " to such person or persons as at the time of her death should bo her next of kin." E. M. died leaving her husband and a child of the marriage, and her own father and mother surviving. Held, Who Entitled Under, Sfc. SETTLEMENT Jdarried Woman, Sfo. 433 affirming the decree of the Master of the Rolls, that the father, mother, and child of E. M., were equally her next of kin, and were entitled under the limitation to the £10,000 in joint tenancy. — Withy V. Mangles, 10 Clk. & Fin. 215. A husband by post-nuptial contract, after granting an annuity to his wife, bound himself, his heirs, and executors, to pay her, or any person appointed by her in w^riting, during her life, with or -without the husband's consent, and whether she shouldsurviveorpre-deceasehim, and have issue or not, the sura of £3,000, or other less sum as she should direct, at the first term of Whit- sunday or Martinmas next, after the husband's death, in case he should survive or pre-decease her without leaving issue of the marriage, or at the first of those terms after failure of the issue, in ease she should survive leaving issue of the mar- riage, or at any of the said terras after any of these events, so that no part of the said sum should be raised during the life of the husband, or the joint existence of the wife and the issue of the marriage, with proviso, that in case the wife should survive the husband and the issue of the marriage, and recover payment of the said sum or any part of it, her annuity should suffer restric- tion, equal to the interest of the amount recovered. The wife survived the husband and died without having had issue, and without recovering or disposing of any part of the £3,000. Held, by the Lords (reversing the judgment of the Court of Session,) that in the event, which happened, the £3,000 belonged to the wife's estate, and her personal representative was entitled to it from the husband's estate. — Dill v. Haddington, 8 Clk. & Fin. 168. By a post-nuptial settlement, a sum of money, the property of the wife, was vested in trustees, upon trust, to pay the income as the wife should from time to time appoint, not by way of antici- pation ; and in default of appointment, to the wife, for her separate use, independent of G., her husband, and frora and after her death, to G., the husband, for life, and frora and after the death of the survivor, to the children of the marriage, as therein mentioned ; and if there should be no children, and the wife should survive G., the whole trust property to be paid to her, and if G., the husband, should survive the wife, then, at his death,- as the wife should appoint, or, if no appointment, to her next of kin. Held, that, there being no definite term during which the trustees were directed to pay the income, as the wife should appoint, or for her separate use, and the direction to pay to herself being made with reference only to the marital rights of G., the then existing husband, and there being no pro- tection, by the express words of the settlement, afforded against a future marriage of the wife, the provision for the separate use, and the clause against anticipation, had no force after the death of G., the husband, and during a second cover- ture of the wife ; and that, therefore, the second husband had power to assign the interest of the wife in the trust property. — Gaffee'a Settlement, In the matter of; and in the matter of the Act 10 & 11 Vic. 0. 96, 7 Hare, 101. A,, a domiciled Englishman, married a lady at the Mauritius, where the French law was in force. By their settlement (which was in the French lan- guage and form) they declared that they intended to marry according to the laws of England, the benefit of which they reserved to themselves the power of claiming; and it was stipulated that A. should invest in certain securities £4.000 (the property of the lady, which he acknowledged he had received from her), and that she sho -.Id receive the income on her sole receipts, for her maintenance and personal wants, and that on her dying in A.'s lifetime, without leaving issue by him, the capital should b.elong to him ; and if A. did not invest the £4,000 in his lifetime, she was to be at liberty to take it out of his assets on his death. A. died intestate, in his wife's lifetime ; he never received the £4,000, nor invested a sum to that amount. Held, that his widow was enti- tled to be paid the £4,000 out of his assets, and also to receive her distributive share of the resi- due. — Lang v. Lang, 8 Sim. 451. By a marriage settlement, certain specified pro- perty of the wife was settled, with an ultimate limitation, in default of children, to her next of kin, and the husband covenanted to settle any property which his wife, or he in her right, should thereafter, during the coverture, succeed to the possession of, or acquire, on like trusts. At the time of the marriage, a sum of money, which was not mentioned in the settlement, stood settled in trust for the wife for life, with remainder to her children, with remainder as she should appoint, and in default thereof, " to her executors, administrators, and assigns." The husband survived the wife, there were no chil- dren, and the wife made no appointment. Held, that, after the death of the husband and wife, the next of kin of the wife, and not the representa- tives of the husband, were entitled to the fund. Grafftey v. Humpage, 1 Beav. 46. II. — Mareied Woman and Waed op Court. Upon the marriage of a ward, the intended husband proposed to settle the whole of her fortune. The master in ascertaining her fortune omitted to state a reversionary interest. Her property was settled, omitting the reversionary interest, and the husband covenanted to settle any property to which the wife, or he, in her right " should at any time during the marriage" become entitled. Held, that the reversionary interest ought to be settled. — Marquia of Btite v. Harman, 9 Beav. 320. A husband had large advances made to him by his wife's father, and had the benefitof a provision made for his wife by her father's will, and after- wards became bankrupt. Held, that his wife, who had no provision except the income of a fund under her uncle's wUl, was entitled to have the whole of that income settled on her for life, for her separate use, without power of anticipation.^ Gardner v. Marshall, 14 Sim. 675. A married lady having a life interest in a fund was living with, and was maintained by her husband, but not out of her own income, and in a manner very inadequate to it, tmd he was in very embarrassed circumstances and had no means of support, except his wife's income. The court nevertheless refused to order a portion of it to be settled to the wife's separate use. — Vaxtghan v. Buck.— IS Sim. 404. The wife's equity to a settlement, does not attach upon filing a bill ; if therefore, the wife dies without making any claim to a settlement out of her legacy, her children, after her death have no right to one. — De La Garde v. Lempriere, 6 Beav. 344. Mrs. D. being entitled to £3,000, in reversion, expectant on her aunt's death, the aunt consented, at the request of Mr. and Mrs. D., to relinquish FF 434 Married Woman, Sfc. SETTLEMENT. LiaUlities of Trustees Under. her life interest in £2,000, part of the £3,000, in consideration of Mr. D. agreeing that the re- mainder of the £3,000, when payable, should be paid to trustees for his wife's separate use, and that he would immediately settle £2,000 out of his own funds ; and also the first-mentioned £2,000, so us to provide for the maintenance of himself and his wife and the survivor of them. The agreement was carried into effect, by a deed which directed the trustees to pay the interest of the two sums of £2,000, to Mr. and Mrs. D., during their joint lives, and to stand possessed of the principal, for the survivor of them. Mr. D. afterwards separated from his wife in consequence of her having committed adultery. Held, that he was entitled to receive the whole of the interest of the trust fund, and was not bound to maintain his wife out of it, notwithstanding she was destitute of the means of support. — Duncan v. Campbell, ]2 Sim, 616. A. married a female ward of court without consent of the court, and had been guilty of great contumacy in other respects. The court directed the ward's fortune to be settled so as to exclude A., as far as possible, from taking any interest In it. — Kent v. Burgess, 11 Sim. 361. A married woman who had left her husband, and was living sep irate from him, but not in a state of adultery. Held, to be entitled to a settle- ment out of a sum of stock to which her husband had become entitled in her right. — Eedes v. Eedes, 11 Sim. 669. On the marriage of a female ward, her fortune consisting of choses in action, was settled with the sanction of the court in trust, for her husband and herself for their lives, with remainder for their children, with remainder for her absolutely if she survived her husband, but if not, then as she should appoint by will, with remainder for her next of kin ; some years afterwards, the mar- riage, of which there was no issue, was dissolved by Act of Parliament. After which, the husband released all his right and interest under the settle- ment to the wife. Held, that the settlement was not binding on the wife, and that she was at li- berty to re-settle her property on her second marriage. — Hastings v. Orde, 11 Sim. 205. Ill, — Wife's Right xo Settlement. By articles executed upon the marriage of A. B,, it was provided, that the survivor should, in case of issue, leave to said issue two-thirds of whatever property might remain, retaining one-third ; or to be more specific, that A. should settle upon any children he might have by B., two-thirds of the property he might possess in case he survived her, and that B. should be equally bound to settle and hand over to any children she might have by A., two-thirds of the property remaining at the time. There was issue one child, and B., the wife, having survived. Held, that ulie was entitled to one-third of all the property of which A. died possessed. — M'Donnell v. M'Donnell, 4 Dru. & W. 376 ; 2 Con. & L. 481. IV. — Power of Cohkt over Settlement made By Male "Wari). The court has no jurisdiction to compel a male ward, with whom a marriage has been solemnised, without its consent, on attaining his full age, to execute a settlement of his estate so as to exclude his wife from all participation in the property. — In re Murray, 3 Dru. & W. 83. V. — Appointment op Foreign Trustees. Upon the marriage of an English woman with a citizenof the United States, who was temporarily resident in England, the fortune of the wife, con- sisting of stock in the British funds, was assigned to trustees, who were Englishmen and relatives of the wife, upon certain trusts, for the husband and wife and the issue of the marriage. By the settlement, power was given to the trustees, with the consent of the husband and wife, to invest the trust property in the names of the trustees or trustee for the time being, in the public funds of Great Britain or America, or upon real se- curities in England, Wales, or America, and power was also given to the husband and wife, or the survivor, in case the existing trustees should be desirous of being discharged from the trusts, to appoint new trustees. After the marriage, the husband and wife lived for about five years in England, and then went to reside permanently in America, having, previously to their departure, appointed three Americans to act as trustees in the room of the two original trustees, the trust property being, at the same time, transferred by the English trustees into the American funds, in the names of the three American trustees. Held, that this appointment of American trustees, though not expressly authorised by the settle- ment, was valid. — Meinertzhagen v. Davies, 1 Coll. C. C. 335. Upon the construction of the power for ap- pointing new trustees, and the clause for the indemnity of the trustees contained in a mar- riage settlement : — Held, that the appointment of three new trustees, in the rocm of the two original trustees of the settlement, was valid. — Id. By a marriage settlement, trusts of certain property in the English funds, were declared in favour of the husband and wife, and issue of the marriage. The trustees afterwards retired from the trust, having transferred the whole of the trust fund into the American funds, in the names of new trustees who were Americans ; subse- quently, upon an apprehension by the old trustees that this transfer amounted to a breach of trust, the husband deposited vi'ith them certain tobacco warrants, which, by a written agreement between the parties, the old trustees were to be at liberty to sell, for the purpose of recovering the trust fund ; they, by the same instrument, in considera- tion of this security, agreeing to suspend pro- ceedings in America for the recovery of the trust fund. In pursuance of this agreement, the old trustees sold the tobacco warrants and invested the produce in exchequer bills ; but it was after- wards decided, by a court of equity in England, that at the time of the execution of the agreement no breach oi trust had been committed, and that the old trustees had then no interest in the fund. Held, that as there was no consideration for the deposit or agreement, the old trustees had no right, as against the husband or his repre- sentatives, to retain the exchequer bills for the benefit of the infant children of the marriage. — Id, VI. — Liabilities op Trustees Under, Where, by the terms of a marriage settlement, a trustee was to compel payment of a sum of Reforming of. SETTLEMENT. Reforming of 435 money due on covenant, but by consent of the cestuis que trust the money was left outstanding on that security ; Held, upon their subsequent application to have the money called In and invested, that the trustee was bound, if necessary, to enforce payment by an action on the covenant, without requiring any indemnity from the cestuis que trust, and in default of so doing, he was com- pelled to pay the costs of a suit brought against him to enforce the execution of the covenant. — Kirby V. Mash, 3 Y. & C. 295. VII. — Refokming op. Bill to re-form a settlement, on the ground that it was not in conformity with the contract of the settlor. The settlement was not consistent with the instructions of the settlor, so far as they appeared in evidence, and the prior and subse- quent acts and declarations of the settlor were consistent with the instructions, and inconsistent with the settlement, but it did not appear what was the final contract of the parties ; yet, as it was possible, though not probable, that the settlor might have agreed to maie such a settlement as was in fact executed, the court refused to relieve on the ground of mistake or of fraud, which was charged, but not proved ; and the bill was dis- missed, but without costs. — Bunbury v. Lloyd, 1 Jon. & L. 638. In a marriage settlement, the property of the wife was conveyed and assigned, in trust, for the wife, for life, for her separate use, remainder to the husband for his life, remainder to the children of the marriage, and in default of issue of the marriage, to the brother of the wife and liis children. After the marriage, the husband and wife filed their bill, charging that the brother, who was one of tlie trustees of the settlement, in concert with the solicitor's clerk who took the instructions for and attended the execution of the settlement, had fraudulently omitted or erased from, the deed a general power of appointment by the wife in default of issue of the marriage, praying that the settlement might be rectified by inserting such a power. The wife did not prove the instructions for the insertion of such a power, nor the fraud in omitting or erasing it ; but it appeared by the evidence that the power had been introduced in the draft settlement prepared by counsel, and also in the engrossment ; and the answer of the brother stated, that the power having been noticed by him when the engross- ment was read over to him, he objected to it, as not being, according to his understanding of the intentions of the wife; when the solicitor's clerk admitted it was not, and struck it out. The court Held, that it was the duty of the brother, as one of the trustees, not to have permitted the power to be struck out, without the express directions of the intended wife on that point ; and that relief might be given in the suit, subject to the question whether the wife knew, when she exe- cuted the settlement, that it did not contain the power. — Harbidge v. Wogan, 5 Hare, 258. The court being satisfied, upon the evidence, that a general description of property had been inserted inadvertently in a settlement and not for the purpose of passing an estate, which the general description would in terms comprise, made a declaration that the general description had been inserted by mistake so far as regarded' the estate in question, and gave the parties Ubeity tQ apply as they might be advised. — The Marquess of Exeter v. The Marchioness of Exeter, 3 Myl. & Cr. 321. A settlement of a trust fund, whereby no legal estate was affected, re-formed by a declaration in the decree, without a reference, or the execution of any first instrument, and the form of such oiiN.— Tebbitt v. Tebbitt, 1 De G. & S. 606. On a treaty of marriage carried on in London between the only son of an English Marquess and the daughter of a Scotch Earl, the terms of a nxarriage settlement were embodied in a paper called " Proposals," which paper was approved of by the respective fathers on behalf of their children. The proposals stipulated that the Earl should pay or advance, as the portion of his daughter, certain sums of money at the time and in the manner therein specified, and that, in consideration of those sums, and of the mar- riage, the Marquess and his son should concur in charging large estates in England, Ireland, and the West Indies, with certain provisions for the husband during his father's life, and for the wife and the younger children of the marriage, and subject thereto should settle the same estate upon the Marquess and his son succes- sively, for life, with remainder to the issue of the marriage, according to the series of limitations therein specified. The proposals concluded with a proviso that the settlement should contain the usual powers of appointing new trustees, the usual clause of indemnity to trustees, and all other usual and necessary clauses. A settlement was then prepared and executed in London, to ' which the intended husband and wife, with their respective fathers, and certain other persons, as trustees, were parties, and of which the provisions, though deficient in several particulars, were similar in their general' character to the terms .contained in the proposals, and the mar- riage took efiect. Many years after, the Earl, who was a domiciled Scotchman, died, leaving a large personal estate ; and a suit having been thereupon instituted in Scotland, in which all persons who were competent to contest the question intervened, it was adjudged by the Court of Session, and also on appeal, by the House of Lords, that according to the law of Scotland, the daughter of the deceased Earl was entitled to a proportionate share of her father's personal estate, called in that law, her legilem, inasmuch as she had not renounced that right by her marriage settlement or otherwise. Very shortly before this decision of the Court of Session, the proposals, which had been mislaid, were discovered, and the present bill was then filed against the husband and wife, alleging that the settlement had been prepared in pursuance, and on the basis of the proposals; that in Scotland, a clause barring legitem was a usual and necessary clause in the marriage settlement of a child, for whom the father thereby advanced a portion ; that the proviso in the proposals was understood' by all the contracting parties, as applying to, and comprising such a clause ; that as no such clause was to be found in the settle- ment, as executed, the settlement did not effec- tuate the intention of the contract, as expressed in the proposals, and that it was, in this respect, erroneous, and ought to be reformed. The bill prayed a declaration accordingly, and that, in the meantime, the defendants might be restrained, by injunction, from proceeding to enforce the decree obtained in the Scotch Court for payment of the sum found due to the defendants on account of the legitem. The Lord Chancellor dissolved 436 Keforming of. SETTLEMENT. On Children the injunction which had been granted by the Vice Chancellor, and Held:— First, That the proviso was to be construed with reference to the subject matter and objects of the settlement, which was in the English form, and applied ex- clusively to the English subject matter, and that a clause barring legitem, therefore, could not be considered as comprehended under it. Secondly, That, whereas the claim to legitem could only be barred by an express contract between the father and the daughter, to that effect, the father, in approving of the proposals, was acting on behalf of his daughter, and not as a party dealing adversely with her for the purchase or re- nunciation of her rights. Thirdly, That there ■was no sufficient evidence to shew that the propo- sals constituted the final contract of the parties, and had not been varied by some subsequent agreement, prior to the execution of the settle- ment. The court will not reform a settlement on the ground of mistake, unless the evidence as to the mistake, and as to the real intention of the parties is perfectly clear and satisfactory. Whether the court would entertain such a suit, on the ground of the discovery of matter con- stituting anew case, after the subject of the suit had been adjudicated upon and disposed of by a foreign tribunal of competent jurisdiction, when it did not appear that the new matter might not Btill be made available before the foreign tribu- nal, according to the course of proceeding there — Quaere. — The Marquess of Breadalbane v. The Marquess of Chandos, 2 Myl. & Cr. 711. By a marriage settlement a sum of £30,000, Irish Currency, was vested in trustees, upon trust, out of the interest and dividends of two equal third parts of it, together with the interest and dividends of the remaining third part to make up the annual sum of £500, and pay such annual sum to the husband and wife during the life of A. Held, that the husband and wife were en- titled during the life of A. to the income of the remaining third part, whether it did or did not exceed £500 per annum. — Davis v. Morier, 2 Coll. C. C. 303. . A person, who, by mistake, had received for some years a less income than he was entitled to Tinder his marriage settlement ; Held, under the circumstances of the case, to be entitled to have the difference made up to him out of the estate of the deceased settlor. — Id. On the 6th of June, upon a contemplated marriage, the lady's father proposed, during his life, to allow his daughter £200 a-year, to con- tinue if she died in her father's lifetime leaving children, but, if she died in his lifetime, without issue, then £100 to the husband during the father's life. The father, in a letter to his soli- citor, also stated that he wished the husband to have £150 a-year in the event of the daughter's death without issue ; the proposal was agreed to, and a settlement prepared and executed, dated the 8th of July, whereby the father covenanted, during his life, to pay an annuity of £200 to her husband and his assigns. The husband died in- solvent, leaving his wife and three children. After his death the settlement was rectiiied, upon the production of the proposals and the evidence of the solicitor who prepared the settlement, that he had prepared the settlement from the pro- posals which he thought he had cairied into execution, and the wife was declared entitled to the annuity as against the husband's repre- •entatives, — Pearce v. Yerbeke, 2 Beav. 334. VIII. — Kevocation of, Befokb Marbiaqb. Whether after the execution of a marriage settlement which is not executory, the husband and wife have power before the solemnization of the marriage to revoke it — 'QiuBre.—Page v. Home, 9 Beav. 570. IX. — ■FoE.EiON Contract por, When Executed. A marriage contract in the Portuguese lan- guage, between British subjects resident in Lisbon, expressed that the parties were desirous that it should be regulated, made binding, and carried into full and complete effect according to the laws of England. Some years afterwards the parties who were then resident in England filed a bill praying that a settlement in strict con- formity with the contract, and containing all the covenants, clauses, powers, &c., usually inserted in marriage settlements, and deemed necessary, and, at the same time, consistent with the sub- stance of the contract, might be executed under the decree of the court. Held, that a power to appoint new trustees as often as should be neces- sary, and (notwithstanding the contract provided that the settled monies should be invested as they had been in the English and French funds) that a power to change those securities for any other of the Government Stocks or Funds of England or France, or for real securities in Great Britain or Ireland, were proper powers to be inserted in the settlement. — Sampayo v. Gould, 12 Sim. 426. X. — On Children. Where, by marriage articles, it was agreed by the intended husband that any money which might devolve, by will or otherwise, to the inten- ded wife, should be settled on her and his children by her, he drawing the interest ; and the wife's father bequeathed to her a legacy for her separate use, as to which the wife died intestate, in the lifetime of the husband. Held, that the legacy was not subject to the trusts of the articles, but that the husband took it Jure mariti ; and that a settlement which had been prepared at his instance, by which the interest of the legacy was settled upon himself for life, and the principal upon the children at the age of twenty-one, should be carried into execution. — Dniry v. Seott, 4 Y. & C. 264. Under a marriage settlement, lands were limited to the use of the intended husband, for life, with remainder to trustees to preserve contingent re- mainders, with remainder to the intended wife for life, with remainder to trustees for the term of five hundred years, with remainder to the first and other sons of the marriage, successively, in tail male, with remainder to the daughters in tail general, and the trusts of the term were declared to be for raising portions for the younger children at twenty-one, by sale or mortgage of the term. The marriage took effect, and the wife died, leaving hor husband and several children of the marriage, both sons and daughters, surviving her, who all attained twenty-one. Held, that the younger children were entitled to have their por- tions raised by sale or mortgage of the term, in the lifetime of their father, the tenant for life. — Smyth V. Foley, 3 Y. & C. 142. In the construction of marriage settlements, For Maintenance. SETTLEMENT. In Case of BanKruptct/. 437 courts of equity will decline to act upon any views of the expediency or inexpediency of the provisions of such settlements. — Id. By the decree made at the hearing of the origi- nal cause, it was referred to the master to approve of a proper settlement to be made on S. G., a married woman, and for that purpose, any of the parties were to be at liberty to lay proposals before the master. No question was raised at the hearing as to the children of S. G. Before any proposals were laid before the master, S. G. died. Held, on a supplemental bill filed by the husband against the surviving child of the marriage and her husband, that the decree enured for the benefit of the children. — Groves v. Olarke, 1 Keen, 132. XI. — Foe, Maintenance. By a marriage settlement, suras of stock, the ■wife's property, were settled in trust for the hus- "band, during the joint lives of himself and his ■wife, mth remainder to the survivor for life ; and it was declared that if the husband should survive and marry again, and there should be issue of the marriage then living, his life interest in a moiety of the funds should cease, and that moiety should be transferred to the same persons, and be applied to the like purposes, and in the like manner, as it ■would be transferable and applicable to if the husband were dead. Then followed trusts of the funds for the children, as the husband and wife should jointly appoint, and as the survivor should appoint, and in default of any appointment, for all the children,(except an eldest or only son, who, for the time being, should become entitled, in possession or remainder, to the husband's real estates, under a deed of even date) the shares to \)e vested in the children at the usual periods, but not to be transferred until the death of the survi- ving parent ; and it was declared that, after the death of both parents, the trustees should apply so much as they should think fit of the income of each child's share, until its share should become transferable, for its maintenance, and should accumulate the surpliis ; and the trustees were empowered, after the death of both parents, to advance the children, out of the capital of their shares, notwithstanding they should be under twenty-one. The wife died; there was issue of the marriage, four sons and three daughters, all infants. "The husband appointed part of the funds to his eldest son, and then married again. The court refused to direct, without a reference as to the husband's ability) the income of the moiety of the funds which the husband forfeited by mairying again, to be applied for the children's maintenance, there being, in consequence of the exception of an eldest or only son, &c., a suspension of the trusts for the benefit of the children during the father's lifetime. — Kekewich y, Langstoiif 11 Sim. 291. C, before the marriage of his daughter, con- veyed certain lands to the use of himself for life, with remainder to trustees for a term of two hundred years upon trust, for securing a rent charge of £100 per annum to the husband and wife for their joint lives, and the life of the sur- vivor, and from and after the expiration or sooner determination of that term, and in the meantime, subject thereto, and to the trusts thereof, to the uses of other trustees for a term of one thousand five hundred years, with remainder to C. in fee. The trusts of the one thousand five hundred years' term were declared to be as follows: — That the trustees should, after the decease of C, (but subject and without prejudice to the yearly rent charge and the remedies for securing the same,) by mortgage or sale or other disposition of the settled estates, or out of the rents thereof, levy and raise £2,600 in trust, for all and every the child and children of the marriage, or such one or more of them, exclusive of the others, and in such shares, &c., and with such annual or other sums of money for the maintenance of such children from and after the decease of C, as the parents should, by deed, appoint. Held, that the one thousand five hundred years" term did not wait for its commencement until the death of the survivor of the husband and wife, but commenced at the death of C, and therefore, that it was competent to the parents after the death ofC, by deed executed in pursuance of their power, to direct an annual sum to be raised out of the estates for the maintenance of their children born and to be born. — (jough v. Andrews, I Coll. C. C. 59, XII. — In Case of Bankruptct. By a marriage settlement, aftoi' reciting that the intended wife was possessed of £1,500, which the husband was to have for hrs own use as soon as the marriage should take effect, and that she had, also, a vested interest in the real and resi- duary personal estate of a testator, amounting to the sum of £32,000 and upw.ards, which he equally divided amongst eight children, of whom she was one. On the death of a tenant for life, it was witnessed, that in consideration of the in- tended marriage, and of the sum of £ 1 ,500 then in the possession of the intended wife, and also of the said vested interest and the value of £4,000 and upwards, the husband covenanted that his heirs, executors, and administrators should, im- mediately after his decease, pay to the trustees of the settlement the sum of £4,000, to be held upon certain trusts for the wife, and the children of the marriage ; but the deed contained a proviso, that the heirs, executors, or administrators of the husband should pay all other debts which the husband should owe at his death, in preference to the £4,000, and that they should not be bound to pay the £4,000 unless the assets of the hus- band should be more than sufficient to pay all his other debts. The husband became a bankrupt before the death of the tenant for life, but he survived the tenant for life, and afterwards died before the wife's share was actually paid. Semble: The husband's covenant did not operate as a pur- chase of the wife's reversionary share under the will, but, Held, that, at all events, the husband's assignees were not entitled to receive the share without performing the covenant. — Corabie v. Tree, 1 Cr. & Ph. 64. By a marriage settlement, £1,600 and £2,700 stock, of which the lady was possessed, were settled, in trust, for her separate use for life, remainder in trust for her intended husband for life, and, after his death, as the wife should ap- point by Avill ; and the intended husband cove- nanted that if the marriage should take effect, he would, as often as the occasion should require, join with his wife in doing all necessary acts for assigning to the trustees all the property to which his wife should become entitled during the co- verture, upon the trusts declared of the £1,500 and £2,700 stock. At the date of the settlement the wife had an absolute vested interest in £1,935 438 Vested Interest Under. SETTLEMENT. Construction. stock, expectant on her father's death, but it was not mentioned in the settlement. During the marriage the husband became bankrupt, and then the wife's father died. Held, that the £1,935 stock did not belong to the husband's assignees as part of his estate, but was bound by his cove- nant as being property to which the wife would become entitled during the coverture. — Slythe v. Granville, 13 Sim. 190. XIII, — ^Vested Interest Under. By a settlement of the 3rd of July, 1801 , certain freehold lands were settled by T. G., on his eldest son, J. G., and his issue, in strict settlement, with an ultimate remainder to " T. G., (the second Bon of the settlor,) his heirs and assigns ;" and, by the same settlement, certain other lands which were partly freehold and partly chattel, were settled on T. G. for life, " and, from and after the decease of the said T. G. to the several uses, intents and purposes as are hereinbefore expressed and declared respecting" the first set of lands, and subject to which those lands were, in the previous part, limited to the issue of T. G., " to and for the use and benefit of the said T. G., subject to the provisions heretofore made for the issue of the said marriage." Held, that the second class of lands were settled to the same uses as were declared respecting the first, and that T. G. took an estate in both lands in fee. — Garde v. Garde, 3 Dru. & W. 435 ; 2 Con. & L. 175. A marriage settlement, after reciting that it had been agreed that a cottage, &c (which the husband held for the remainder of a term of two thousand years) should be settled on the husband for life, and after his decease on the wife for life by way of jointure, and after their several deceases on the issue of the marriage, and, in default of issue on W. C, his heirs, exe- cutors, &c., assigned the cottage to a trustee for the remainder of the term, in trust, to permit the husband to receive the rents for so many years of the term as should expire in his lifetime, and, after his decease, in trust, to permit the wife to receive rents for so many years of the term as should expire in his lifetime, and, after his de- cease, in trust, to permit the wife to receive the rents during her natural life, and, after their several deceases, to permit the heirs of the body of the husband begotten on the body of the wife to receive the rents for so many of the years of the term as should expire in the life or lives of him, her or them respectively, and, after the several deceases of the husband and wife, and, in default of issue of the body of the husband and wife as before limited, to permit W. C, his heirs, executors, &c., to receive the rents for all the residue of the term. Held, that the term vested in the husband, absolutely, under the first limi- tation. — Bartlett v. Green, 13 Sim. 218. By a marriage settlement, stock was settled, subject to a life interest, in the husband and wife, in trust for their children, share and share alike ; the shares to be paid to them at twenty-one or marriage, and the shares of children dying leaving issue before their shares had become payable, were to be in trust for their issue, but in case any of the children should die before their shares should become payable without leaving any issue, then their shares were to be in trust for the sur- viving children. There were six children of the marriage, who all attauied twenty-one j two of them died in the lifetime of their surviving parent. Held, that the word •' payable," must be held to mean "vested," and, consequently, that the representatives of the deceased children were entitled to shares of the stock. — Mocaita v. Lindo, 9 Sim. 56. By the marriage settlement of A. andB., a sum of £3,300 was assigned to trustees, upon trust for the husband and wife for their respective lives j and after the decease of the survivor of them, in case there should be any child or children of their bodies then living, to pay the said sum unto such child or children which should be then living, in such shares, &c., as the husband and wife should jointly appoint, and for want of such appoint- ment, the same was to go and be equally divided among such children, if more than one, as should not be inheritable to the real estate of the husband, share and share alike, and to be paid to him, her, or them, at his, her or their respective age or ages of twenty-one years, or days of marriage, which should first happen, and in case there should be no such child or children living at the time of the death of the survivor of A. and B., or if SHch, and they should all happen to die before their respective ages of twenty-one years, or days of mariiage, as aforesaid, then the said sum was to go to such person or persons as B., by deed or will, should appoint. A. and B. died without executing the joint power of appointment, having had several children, some of whom survived them. Held, that a son of the marriage who had attained twenty-one, but died without having been married in the lifetime of one of his parents, acquired a vested interest in the fund, but that two children who died infants, and without having been married in their parent's lifetime, were excluded from the fund. — Mostyn v. Mostyn, 1 CoU. C. C. 161. XIV. — CONSTUUCTION. A., by a trust settlement, gave to his son " a like sum, £5,000 sterling, payable &c., after my decease, from which provision shall be deducted any sum that I have already advanced or may still advance for him, to enable him to carry on his business." A. entered into a guarantee for £2,000, for the firm of which his son was a partner. A. was compelled to pay that sum, and the firm afterwards becoming bankrupt, he ob- tained from its assets a small dividend. Held, that this was an advance to the son which came within the description of money advanced to the son to enable him to carry on his business, and that the son could only claim the balance of the £5,000 afier deducting the sum thus advanced. — Berry v. Morse, 1 Clk. & Fin. N. S. 71. Semble : That an appointment duly made, of a whole estate to the uses of a marriage settlement by a party thereto, who thereby, also granted and released only a moiety of the estate to the same uses, passed the entirety of the estate. — Farmer v. Farmer, 1 Clk. & Fin. N. S. 724. Bequest of a residue, upon trust, for the testa- tor's grandson, B., the son of Isaac, at twenty- five, for life ; and after the death of B., in case he shall have a son who shall attain twenty- one, then for such son of B., who shall first attain twenty-one, absolutely ; and in default of such son of B., and after B.'s death, then upon trust for the testator's grandson, J., the son of Isaac, at twenty-five, for life ; and after the death of J., in case he shall have a son who shall attain twenty- Cotzslructwn, SETTLEMENT. Construction. 439 one, then to such son of J. who shall first attain twenty-one, absolutely, with the like limitations successively in favour of any other grandsons, sons of Isaac, born in the testator's lifetime, and their respective sons first attaining twenty-one, and in default of a son of any such grandson, attaining twenty-one, then upon trust for any son of Isaac, born after the testator's decease, who shall first attain twenty-one, absolutely ; and in case no son of any son of the testator's son Isaac, then born or thereafter to be born, in the testator's lifetime, nor any son of his son Isaac, born after his decease, shall live to attain twenty- one, then from and immediately after the decease of all the sons and grandsons of his son Isaac, upon trust for the testator's nephew, G., for life, and upon the decease of his nephew, G., in case he shall have a son who shall live to the age of twenty-one, then, upon trust, for such sou, who shall first attain twenty-one, absolutely. Held, upon the whole context of the will, that the words, " after the decease of all the sons and grandsons," must be read as if they had been " after the decease of all the aforesaid, or " all such sons and grandsons," and that the limita- tion over, in favour of the first son of G., attaining twenty-one, was therefore not too remote. — PlUcombe v. Gompertz, 3 Myl. & Cr. 127. A reversion of a moiety of a farm was settled on a marriage, and the trustees were empowered to sell it when in possession, and the intended husband and wife covenanted that, if they should thereafter acquire any other share or interest in the farm, they would immediately thereupon convey the same, so that it might become vested in the trustees, upon the trusts and subject to the powers declared of the settled moiety ; after that moiety had fallen into possession, a moiety of the other moiety descended to the wife, not in pos- session, but subject to a life interest. Held, nevertheless, that it, as well as the settled moiety, were saleable under the power. — Giles v. Homes, 15 Sim. 359. Where parties to a deed of settlement contem- plated several states of circumstances, and there is found on the face of the instrument a clear and distinct intention to provide for one event which has precisely happened, the terras of gift so expressed are not to be superseded, or their effect destroyed, by any ambiguity of terms used solely in reference to other events or states of circumstances which have not happened. — Dili v. Haddington (Earl of), 8 Clk. & Fin. 168. A., being married, and having a son, B., and having covenanted to settle lands, as counsel should direct, to the use of B. for his life, and after his decease, to the use of the heirs male of the body of B. lawfully to be begotten ; it was Held, that, the deed shewing an intention for a strict settlement, B. only took an estate for life ; and a bill, filed by a judgment creditor of his, for a sale of the lands, was dismissed, with costs. — Jiochford V. Fitzmaurice, 1 Con. & L. 158. The only difi'erence between the construction of executory trusts in a marriage settlement, and in a voluntary settlement or will, is that, in the former, the nature of the instrument affords a presumption that the intention is for a strict set- tlement, whereas, in the latter case, that intention must appear on the face of the instrument. — Id. Semb/e : That a limitation to trustees to preserve contingent remainders, not confined to the lifetime of the tenant for life, will not be cut down to that life, if there are contingent remainders which may require protection during a longer period. — Id. A settlement being treated by parties as an ante-nuptial one, and the intended wife being a party by her maiden name, a child, Semble, could not set up against the father a collateral statement by him of there having been a prior valid marriage. — Wallace v. Wallace, 1 Con. & L. 491. G. S., being seised in fee in possession of X, and of a remainder in fee expectant, on the death of J., in Z., upon his marriage, charged X. and Z. with a jointure, and it was provided that, during the life of J., the jointure should be borne by X., and that if J. should die in the lifetime of the wife (which happened), the jointure should issue out of Z., and no part of it out of X. X. was settled on the issue of the marriage, and Z. was limited to G. S. and his heirs ; and it was provided that, upon G. S. charging other lands of his with the jointure, the lands of X. and Z. should be dis- charged therefrom ; and G. S. covenanted to charge £3,000, for children's portions, and that it should be the first charge on all property of which he should die seised or possessed, and have priority over all other charges thereon. Held, that, as between the lands of X. and Z., the lands of Z. were bound to indemnify the lands of X. against the jointure ; that the £3,000, being a charge upon such property, only of G. S. as he died seised or possessed of, it became, on his decease, a charge upon Z., and was puisne to the jointure. — Sullivan v. Sullivan, 2 Jon. & L. 769. If a testator directs his real estate to be settled on his son, his heir apparent for life, with re- mainder to his first and other sons of his son in tail, with remainder to A. for life, with remainder to his first and other sons in tail, with remaindfr to other persons and their sons in like manner, and, ultimately, on his own right heirs; and his personal estate to be settled on the same person.=, in the same order and succession, and for the same estates and interests, so far as the nature of the property, and the rules of law and equity will admit of, the court, if the suit is instituted im- mediately after the testator's death for the pur- pose of having a settlement made, will order the ultimate limitation of the pejsonal and real estate to be made to the person who is the testator's heir at his death. — BoydcU v. Golightly, 14 Sim. 327. Upon the construction of a post-nuptial mar- riage settlement; Held, that the covenants en- tered into by one party were binding upon him only upon the condition of the other party being bound by certain other covenants in the instru- ment, and that as the latter party was under no obligation to execute the instrument, and refused to do so, the former party was not bound by the instrument in equity, although he had executed it, and although the covenants contained in it were for the benefit of an intant. — Woodcock v. Monckton, 1 Coll. C. C. 273. In a marriage settlement the ultimate trust of the wife's chattels was for the executors or ad- ministrators of the wife, of her own family, and the ultimate trust of the husband's chattels was for the executors or administrators of his own family. Held, that though the same words were used mutatis mutandis in both limitations, yet the court was j ustified in holding, that with respect to the wife's chattels, they meant her next of kin at her death, and, with respect to the husband's chattels, his executors or administrators simply. — Smith V. Dudley, 9 Sim. 125. By a marriage settlement, estates were limited in strict settlement, subject to a term for raising 440 Constyuction, SETTLEMENT. Vokmtary, £15,000 for the portions of all the children of the marriage, (except an eldest or only son), and to be vested and paid at such times as the husband should appoint, and in default of appointment to vest at twenty-one, but not to be paid till after the husband's death. Provided that if any son should become an eldest or only son before the time appointed for payment of his portion, then and in default of any such appointment his share should go to the other childien. There was issue of the marriage, two sons and three daughters. The eldest son attained twenty-one, and, together with his father, suffered a recovery of the estates to the use of the father for life, ]:e^lainder to himself in fee. After all the younger children had attained twenty-one, the eldest son died intestate, and without issue, wliereupon the reversion, in fee, of the estates descended to the other son. Afterwards, the father appointed the £15,000 amongst that son and the three daughters, and directed that the shares should vest immediately, but should not be paid till after his death. The second son died before the father. Held, that the share of the £15,000 appointed to him did not go over to his sisters, but belonged to his eaXaXe.^Spencer v. Spencer, 8 Sim. 87. XV. — VOLUNTAET. A father, having by a voluntary settlement conveyed certain freehold, and covenanted to surrender certain copyhold estates, to trustees, in trust, for the benefit of his daughters, afterwards devised part of the same estates to his widow, who, after his death was admitted to some of the copyholds. A suit having been instituted by the daughters to have the trusts of the settlement carried into eifect, and to compel the widow to surrender the copyholds to which she had been admitted, a decree was made for carrying into effect the trusts as far as they related to the free- holds, the plaintiffs title to them being complete, but as to the copyhold, the bill was dissmissed, with costs. — Jefferys v. Jefferys, Cr. & Ph. 138. A voluntary alienation of property by a party, who at the time of such alienation was insolvent, may be set aside in a suit by his assignees, subse- quently appointed under the Insolvent Debtors' Act, although the subject of such alienation be a chose in action. — Norcutt v. Dodd, Cr. & Ph. 100. A person entitled to real estate by voluntary conveyance, settled it in strict settlement. After the decease of the settlor, his heir-at-law, who was also tenant for life under the settlement, upon his marriage, by indenture, reciting the voluntary settlement, conveyed all his interest in the lands, upon tru-it to secure provision for his wife. Qutere : Can he afterwards insist that the voluntary settlement was void, because the set- tlor was in a state of mental imbecility when he executed i''. — Roddy v. Williams. 3 Jon. & L. 1. A. made a voluntary assignment of turnpike bonds, and shares in companies, to B., in trust for himself for life, and after his death, for his nephew. He delivered the bonds and shares to B., but did not observe the formalities required by the Turnpike Koad Act, and the deeds by which the companies were formed, to make the assignment effectual. Held, on his death, that no interest in either the bonds or the shares passed by the assignment, and that B. ought to deliver them to his executors. — Searle v. Law, 15 Sim. 95. A trustee under a voluntary settlement of chattels, policy of assurance, and mortgage, filed a bill against the representatives of the settlor for the recovery thereof. Held, that if the property was legally vested in the plaintiff, he might recover it at law, and apply it to the trusts, but if otherwise, then as the deed was voluntary, the court could afibrd the plaintiff no assistance in recovering it. — Ward v, Audland, 8 Beav, 201. In the case of an imperfect voluntary deed, neither the assignor nor his executor can be compelled to permit the assignee to use his name for the recovery of the debt. — Id. Held, that neither a voluntary assignment, by deed, of a mortgage debt, accompanied by a grant, not specifying the particular estate, but of all estates held in mortgage, and by a covenant for further assurance, and without delivery of the mortgage deed, or delivery to the mortgagor, nor the voluntary assignment of a policy of assurance retained in the hands of the assignor, and without notice given to the grantor, though accompanied by a covenant for further assurance, can be con- sidered as a complete and effectual assignment, to be acted upon and enforced by the assignee, without any other or further act to be done by the assignor. — Id. Voluntary settlement by a younger sister, of the whole of her ijresent and future property, principally in favour of her eldest sister, set aside, the eldest sistei having obtained great ascendancy and influence over the younger, the circumstances of the transaction being open to suspicion, the settlement being very improvident, and the settlor not having had the benefit of independent professional advice. — Harvey v. Mount, 8 Beav. 439. Voluntary settlements and voluntary convey- ances to trustees for payments of debts differ. Where, under a voluntary settlement, the fund has been actually vested in trustees, though there has been no consideration for the creation of the trust, and though the fund has got back, by accident, into the possession of the person who created the trust, yet the trust may be enforced for the benefit of volunteers. — Browne v. Caven- dish, 1 Jon. & L. 606. A., shortly before his death, sent a verbal mes- sage to B., his debtor, desiring him to hold the debt in trust for C. B. accepted the trust, and the transaction was communicated to C, both by A. and B. Held, (on a bill filed by C. against B. and the personal representative of A., who had brought an action against B. for the recovery of. the debt) that the trust, although voluntary, was binding upon A.'s estate, and an injunction which had been granted by the court below, was on that ground upheld on appeal, the court being of opi- nion that the transaction amounted to the same thing as if A. had declared himself, instead of B., trustee of the debt for the plaintiff, — M'Fadden V. Jenkins, 1 Phil. 163. A testator bequeathed a sum of money to trus- tees, in trust for his daughter for life, and in case she died without leaving issue, for her next of kin, exclusive of her husband. During the life- time of the daughter, her mother, as presumptive next of kin, by a voluntary deed, assigned her expectant interest in reversion to the husband. Held, on the death of the daughter, without leaving issue, that the assignment operated only as an agreement to assign, and consequently that being voluntary, a court of equity would not en- force it.— Mce/c V. Kettlewell, 1 Phil. 342. By a marriage settlement, an estate, the pro- Voluntary, SETTLEMENT. Voluntary. 441 perty of the -wife, was limited in default of children of the wife, to trustees, in trust to sell and divide the proceeds amongst the brothers and sisters of the wife. The husband agreed to sell the estate, and he and his wife joined in con- veying it to the purchaser, by deed and fine. The wife died without issue. Held, that the limitation in favour of her brothers and sisters was voluntary, and therefore void as against the pur- chaser. — Cotterell v. Homer, 13 Sim. 606. A lather being seised of certain freehold pro- perty, and being possessed of certain East India btock, and shares in the Globe Insurance Com- pany, by a deed poll, reciting that with a view of making some provision for Mrs. C, one of his married daughters, and her husband and children, he had determined to convey, assign, and transfer the freehold property, stock, and shares in man- ner after stated, and that he was about to transfer the stock ill order to effect his intention therein- after declared, in respect of the same stock, pro- ceeded to make known that in consideration of natural love and affection, and of ten shillings, he released the freehold property to his daughter's husband, in whose favour he had executed a ■lease for a year, to hold to him in fee, to the use of his (the settlor's) daughter for life, remainder to her husband for life, remainder to her children as tenants in common in fee ; and he further made known that for settling and assuring the stock and shares, and for effecting his intention in that behalf, and for the considerations before expressed, he thereby granted, bargained, sold and assigned the stock and shares to his daughter, her execu- tors, &c., with fuU power in his name, or other- wise, either personally or by attorney, to recover and receive such part of the premises as a mere assignment would not enable her to recover or receive, to hold to her, her executors, &c., for her separate use, and in case her husband should survive her, then with power for him to receive the dividends for his life, and after the death of the survivor of them, then for the benefit of their children equally ; and by the same deed poll, the settlor directed his real and personal representa- tive to make and execute all acts, conveyances, transfers, or other assurances for more effectually conveying, transferring or otherwise assuring the premises. This deed (as well as the lease for a year) was sealed and delivered by the intestate in the usual way, but he retained it in his posses- sion until his death, which happened two months afterwards, and it was then found in a chest be- longing to him, enclosed in an envelope bearing an endorsement in his handwriting, in the fol- lowing words : — " Papers concerning Mr. and Mrs. C, and her children, in regard to there being no settlement made on them at marriage. To be given up to Mrs. C, at my death, and im- mediately." Theexistenceofthedeedsdidnotbeoomeknown to the daughter, or her husband or children till after the intestate's death. The deed poll was not an effectual mode of transfer, either of the East India Stock or of the Globe shares, but Mrs. C, after the intestate's death, having taken out administration to his es- tate, transferred the stock and shares into the names of her husband and herself. A bill having been filed by one of the co- heiresses and next of kin of the intestate, praying that the deeds might be declared void and deli- vered up, and praying a declaration that the stock and shares formed part of the intestate's personal estate, or if the conveyance should be held good, then that the freehold property might be brought into hotchpot. The court declined to decide the question of the validity of the deed as to the freehold property, or the question of hotch- pot, as the former was a question at law and the lat- ter depended on the former, and further could be properly determined only in another suit which was pending for the administration of the intes- tate's estate ; but the court, Held, as to the East India Stock and the Globe Shares, that the deed poll was inoperative, and it declared that the stock and shares formed part of the intestate's personal estate. — Dillon v. C'oppin, 4 Myl. & Or. 647. A single lady having, under a will, a general power of appointment over a fund, made a volun- tary appointment of it, to trustees in trust for her separate use for life, remainder for any husband whom she mightmarry, for life, remaimler for her children, by any husband or husbands whomsoever. A few months afterwards, she, being still unmarried, revoked the appointment, (although she had not reserved to herself any power to do so), and made another voluntary appointment of the fund to other trustees in trust, as she should appoint by deed or will. She then married, and afterwards by virtue of the power reserved to her by the last deed, she executed another voluntary deed, by which she declared that the trustees of the prior deed should stand possessed of the fund in trust, as she and her husband should appoint, and in default, in trust for her husband and herself, for their lives successively, remainder for their children. The fund still remained in the names of the trustees of the will. The court, in a suit by the wife and the last- mentioned trustees, against the husband, the trustees of the will and the trustees of the first-mentioned deed, decreed with the husband's concurrence, the trustees of the will to transfer the fund to the trustees of the last deed, upon the trusts thereof. Sloane v. Cadogan observed upon. — Beatson v. Beatson, 12 Sim. 281. A. B. voluntarily assigned to trustees, bonds and promissory notes, amounting to £600, in trust for himself, and his wife, and children, and he handed over the securities. The trustee gave no notice to the debtors. A. B. received £200, part of the £600, (the securities having been returned to him by the trustees), and the remainder was lost by the insolvency of the debtors. A. B. in- vested the £200 with other monies of his own on freeholds, and by writing, acknowledged the £200 to be trust property. He afterwards deposited the title deeds with the trustees as a security for the whole £600. Held, that the equitable mort- gage was valid to the extent of £200, but no further. — James v. Bydder, 4 Beav. 600. A deed of settlement, in form voluntary, but appearing from exirinsick evidence to have been made for valuable consideration, supported against creditors.— Po« v. Todhunter, 2 Coll. C. C. 76. A person who was in loco parentis to a married woman, devised to her a rent charge for life, and bequeathed certain personal property to her fur her separate use. The will being inoperative, both as to the real and personal estate, the heir at law and next of kin of the testator made a partial sacrifice of their interests, in order to carry the testator's intentions into effect ; the property given up by them being invested in the funds, and afterwards settled upon the woman and her children. At the time of the investment tho husband of the woman was insolvent in circum- stances, and about three months after the date of the settlement he became bankrupt. Held, that the settlement was for valuable consideration, and wasgoodagainstthe husband's creditors.— /rf. 442 Voluntary. SETTLEMENT— SHIP. Righis and UaliUties, Sfc Voluntary settlement by a party considerably indebted, and who became insolvent -within three years after, set aside as fraudulent. — Townaend v. Westacott, i Beav. 58. A party, largely indebted, made a voluntary settlement, and became insolvent within three years. Held, sufficient to avoid the settlement, under the 13th Eliz. c. 6 ; and Held, also, that, in order to set it aside, it was not necessary to prove that the settlor was in a state amounting to insol- vency. — Townsend v. Westacott, 2 Beav. 340. By a voluntary settlement, a husband and wife assigned all the property to which the wife then was, or which she, or her husband in her right, might become entitled to, in trust for the wife for life, for the husbaml for life, and for the children of the wife living at her death, whether begotten by her present or any future husband. The court refused to give effect to the settlement. The decision in JiUis v. Nimmo observed upon. — Holloway v. Headingion, 8 Sim. 324. A. assigned choses in action and other personal chattels to a trustee, in trust for himself for lile, and after his death, for his nephew and niece ; some years afterwards, he, by his will, bequeathed the settled property to other persons. After his death, the trustee and cestui gite trusts filed a bill against the executors and legatees, praying that the deed might be established, that an account might be taken of A.'s personal estate, and that the exe- cutors might deliver over the residue to the trustee. The bill was dismissed. But if the bill had been filed by the trustee alone, for indemnity against conflicting claims, or by the cestui que trusts alone, to have the benefit of the deed, the court would have granted relief^ — bemble. — Ward V. Audland, 8 Sim. S7l. XVI. — Cesser op Tekm. By a marriage settlement, a term of five hun- drpd years wa« limited to secure a sum of £4,000, as portions for younger children, which were to be paid to such younger children in such shares and proportions, and at such times as A., the settlor, should appoint, and in default of appointment, share and share alike, to be paid to the sons at twenty-one, and the daughters at twenty-one or day of marriage ; and if such times of payment should happen during the lifetime of A., then the payments were to be postponed until three months after his decease. The trustees of the term were empowered, after the decease of A., to raise the interest of the portions at 6 per cent., and apply the same for the maintenance and education of the younger children ; and the deed provided for the cesser of the term, in case the said portions, and all maintenance or interest, in the meantime, and until the said portions should become payable, should be paid to the trustees, or secured to be paid to them, by the party entitled to the reversion expectant upon the said term. A., the settlor, died, without having exercised his power of appointment, leaving several younger children, some of whom had attained their full age. Held, notwithstanding the circumstance that three of the younger children were under age, that, as the portions were wanted for the children who were of full age, and were then payable, that the whole sum of £4,000 should be raised, and that, thereupon, the term would cease.— /jays v. Bailey, (Treat, on Vend, and Purch , vol. 3. p. 4) observed upon. — Leech v. Leech, 2 Dru. & W. 668. XVII. — Child's Equity to a Settlement. So long as the property to which a married woman becomes entitled under an intestacy, remains in the hands of the administrator, and she and her husband have done nothing to point out the mode in which they wish the fund to be dealt with, their child carmot enforce its equity to a settlement. — Wirtch v. Brutton, ] 4 Sim. 379. SERVANT. The mate of a vessel, hired by the master who was also one of the owners, at certain wages, is a servant within the meaning of the 4th section of 6 Geo. 4, c. 16, and is consequently entitled to six months' wages, upon the bankruptcy of the master of the vessel. — Ex parte Hombtrg, 2 M. D. & D. 642. Semble : That the misconduct of a clerk may deprive him of his right.under the 48th section of the 6 Geo. 4, c. 16, to be paid six months' salary in full. — Ex parte Hampson, 2 M. D. & D. 462. Where an affidavit, in opposition to a petition claiming this right, stated, that on the clerk's accounts being taken, it would appear, that by his imprudence, property of his employer had been lost ; this, in the affidavit, was ordered to be expunged as scandalous and impertinent, the respondents not having proposed to take the ac- counts and sustain the charge. — Id. Thepaymentinf'ull, directed by the 48th section, is not to be made out of the first monies got in, but as soon as there is a sufficient fund for the purpose, after proceeding for the expenses of working the fiat. — Id. SHERIFF. See Pii. Shemff. SHIP. I. — TllOHTS ANI> Lt ABILITIES OF OwN'ERS 442 II.— MOKTOAGE OP 443 III. — Collision 443 IV. — Charter Party 4(3 v.— Registry Act 444 VI.— "Ceutifioate of Registry 444 VII. — PowEK AND Liability op Master 444 VIII.— Bottomry Bond 445 I.— Rights and Liabilities of Owners. See Ship Registry Acts, 3 & 4 Will. 4, c. 35 ; 6 & 6 Will. 4,0.56; 6 & 7 Vict. c. 84, s. 22. Goods contracted to be sold and delivered, " free on board," to be paid for by cash or bills, at the option of the purchasers, were delivered on board, and receipts taken from the mate by the lightermen employed by the sellers, who handed the same over to them. The sellers apprised the purchasers of the delivery, who elected to pay for the goods by a bill, which the sellers having drawn, was duly accepted by the purch.isers. The sellers retained the mate's receipt tor the goods, but the master signed the bill of lading in the purchaser's names, who, while the bill they accepted was running, became insolvent. In such circumstances. Held, by the Judicial Com- mittee of the Privy Council (reversing the verdict and jutigment of the Supreme Court of Bombay), that trover would not be for the goods, for that on their delivery on board the vessel, they were Rights and Liabilities, S[C SHIP. Charter-Party. 443 no longer in transitu, so as to be stopped by the sellers, and that the retention of the receipts by the sellers was immaterial, as after their election to be paid by a bill, the receipts of the mate were not essential to the transaction between the seller and purchaser. — Cowas-Jee v. Thompson, 5 Mo. 165. The Act of 53 Geo. 3, c. 159, for limiting the responsibility of ship owners in certain cases, requires an affidavit of certain facts to be annexed to bills filed under it. Held, that it was no ob- jection to such an affidavit, that it was sworn four days before the bill was filed, the deponents being at Sunderland. — Walker v. Fletcher, 12 Sim. 420. Part owners are tenants in common of a ship, but jointly interested in her use and employment ; and the law as to the earnings of a ship, whether as freight, cargo, or otherwise, follows the general law of partnership. — Gi-ee» v. Briggs, 6 Hare, 395. A part ovmer of a ship has a right to require the gross freight, to be applied in the first place, in payment of the expense of the outfit of the ship for the voyage in which the freight was earned, notwithstanding he might sue his co-owners for their proportion of the expenses, before the ad- venture ends. — Id. The same rule applies to the expenses of repairs to the hull of the ship, where such repairs were done with a view to the particular adventure in which the earnings were made, and without which that adventure could not have been undertaken ; and it would seem that the cir- cumstance that such repairs are not exhausted in the adventure, does not create any exception to the rule. — Id. An agreement was entered into for the sale of a ship to A. and B. (one third share to A., and two thirds to B.) at the price of £750, and if default should be made by the purchasers, for the re-sale of the ship, the deficiency, if any, upon the re-sale, to be made good by the de- faulting purchasers. Possession of the ship was delivered to the purchasers by the vendors, who received £250 from A., and two bills of exchange, drawn by the vendors and accepted by A., for the remaining £500. In the bills of sale, by which the agreement was carried into eflfect, the pur- chase money for the one third share, and two third shares of the ship was expressed to have been paid by A. and B. respectively. The ac- ceptances of A. were dishonoured, and he be- came bankrupt. On a bill filed by the vendor, who had become entitled to the whole interest of the purchase money, against B., who had become the sole owner of the ship, by purchase from A.'s as- signee, praying specific performance of the agree- ment, and payment of the unpaid purchase money by B., or that the ship might he sold and the proceeds applied in payment. The court Held, that it had jurisdiction, and decreed an account, and payment of the unpaid pur- chase money by B., or a re-sale of the ship, in default of payment in a limited time. — Lynn v. Chaters, 2 Keen, 521. II. — Mortgage of. Bill of sale of a whaler then absent on a fishing adventure, together with all masts, &c., boats, oars, and appurtenances. Held, not to pass the cargo of oil, &c., acquired during the adventure. — Langton v. Horton, 5 Beav. 9. Bill of sale of a ship, though absolute in its terms, may, notwithstanding the Ship Registry Acts, be in equity. Held, a mortgage ; if such appears to have been the real intention of the parties. — Id. A mortgagee, out of possession of a whaler, is not entitled as against the mortgagor or his assignee of the cargo, to an allowance for the use of the ship. — Id, A ship at sea was mortgaged by the owner to the plaintiff. The ship having become unsea- worthy, was condemned and sold in a foreign port. The purchaser drew upon a person in England a bill of exchange for the proceeds, and indorsed and delivered it to the captain. The captain claimed a lien upon, or a right of set-off against, the amount of the bill, for the disburse- ments which he had made on account of the ship, and threatened to bring an action against the acceptor, for the money due on the bill. The court granted an injunction to restrain the actiou. — Lister v, Payn, 11 Sim. 348. A mortgage of a ship is good, as between the mortgagor and mortgagee, although the parti- culars of the mortgage are not indorsed on the certificate of registry as required by 3 & 4 W. 4, c. 65.— Id. III. — Collision. The 6 Geo. 4, c. 125, s. 55, does not exempt the ovmers and masters of vessels, having a licensed pilot on board, from liability in respect of damages done by their vessel, unless the damage was solely caused by the neglect, default, incompetency, or incapacity of the pilot. Where, therefore, it was proved that the accident happened through the carelessness of the master and crew, as well as the pilot, in not keeping a good look-out, the Judicial Committee of the Privy Council Held, afiirming the sentence of the Admiralty Court, that the civil liability of the owner, in respect of the damages, continued. — Stewart v. Isemonger, 4 Mo. U. In cases of collision, the rule of the Trinity House, that " where steam- vessels in diflerent courses must unavoidably cross so near, that by continuing their respective courses there would be a risk of causing a collision, each vessel shall put her helm to port, so as always to pass on the larboard side of each other," is applicable only when vessels, by continuing their respective courses, are likely to come into collision, and when, by putting the helms to port, the collision may be avoided. The rule is not applicable, when either vessel, by unskilful management, is so near the shore, that by porting her helm there would be danger of collision ; in such a case, the vessel on her right course is justified, in spite of the rule, in putting her helm to starboard. — The General Steam Navigation Co. v. Tonkin, 4 Mo. 314. IV. — Chaeter-Paktt. A ship was chartered to proceed to such places on the West Coast of Africa as the charterers should direct, and there load, from their factor, a full cargo of guano, and proceed to a port of the United Kingdom, to be paid at a certain freight per ton. The ship was directed to Ichaboe. The factor there (who was one of the charterers) endeavoured to provide a full cargo, but failed to procure more than a small quantity. The master of the ship, (who was also a part owner), after waiting thirty-one days, and seeing no probability of obtaining a full cargo from the factor, applied 444 Ship Iteyh'ry Act. SHIP. Power and Liahility, ^c. himself to complete the cargo by his own exer- tions, and at his own expense, and finally suc- ceeded in doing so, after having been ninety-three days at Ichaboe. Held, on motion for an injunc- tion, that the charterers were not entitled to that part of the cargo which had been procured by the exertions of the master, without the assistance of the factor, and which the master claimed to hold as the property of the owners, and not of the charterers. — Lidgett v. Williams, 4 Hare, 456. V. — Ship Registry Act. The court will entertain a suit for an account of the freight of a ship, grounded on a contract which also contains stipulations affecting to give an ultimate right of property in the ship, and which may not be capable of being recognised or enforced as a whole, for want of being registered, provided the title to the freight is distinct from, and does not neeessarilj* depend upon, a title to the ship claimed under such contract. — Davenport y. Whitmore, 2 Myl. & Cr. 177. A bill for an account of the earnings of a ship described some of the owners as being resident in England, and the others in India, and stated the ship to have been built by B. & Co., of Newcastle, but it did not contain any positive averment that the ship was British-built. Held, that, for want of such averment, a demurrer founded on the Ship Registrv Acts, could not be supported. — Smith V, Small, 14 Sim. 119. Where the members of a trading partnership are interested in a ship, the names of the partners should appear on the ship's register ; and a ship belonging to a partnership having bfeen registered as belonging to two partners, carrying on trade under a particular firm, it was Held, that a third partner, who formed one of the firm, but whose name was not on the register, had no interest in the ship. — Slater v. Willis, I Beav. 354. "VI. — Cektificate op Registet. There is nothing in the character or nature of the certificate of registry of a ship, which ex- cludes it from the jurisdiction of the court, to decree its delivery as against a party unlawfully detaining it. — Gibson v. Ingo, 6 Hare, 112. The master of a ship has no lien on the certi- ficate of registry, either for his wages or for monies disbursed by him for the use of the ship ; nor have the ship brokers any lien on the certi- ficate of registry for advances made by them to the owner for the use of the ship. — Id. The master of a ship has no claim on the ac- cruing freight, either for his wages or for monies disbursed by him for the use of the ship. — Id. Shipbrokers advancing monies to the owner of a ship, for the ship's use, having, at the time, notice (by an indorsement on the certificate of registry) of a prior mortgage on the ship, are not entitled to be repaid their advances, out of the freight, iu priority to the mortgagee, although the mortgagee does not take possession of the ship until after she has entered the docks, from her homeward voyage. — Id. The vendor of a ship, with a covenant for title, retains after the sale, (in order that he may fulfil his contract, and defend himself against an action brought upon his covenant,) such an interest in the certificate of registry as enables him to sustain a suit for its delivery, against a party unlawfully detaining it.— /rf. VII. — PowEK AND Liability op Master. A carrier by sea, under a bill of lading of goods "to be delivered in the like good order and con- dition at the aforesaid port of, &c., all and every the dangers of the seas, &c., excepted, unto Mr. — or assigns, on paying for the said goods, freight, and charges, as per margin, with primage and average accustomed," is not entitled, im- mediately on the arrival of the vessel and without notice to the owner, to land the goods, and if he should land them, and they should be destroyed, he will be answerable to the owner for the loss. — Bourne v. Gatliff, 11 Clk. & Fin. 45. A ship belonging to the defendants, registered in the Port of l^ondon, sustained serious damage on her voyage to New Zealand, and on her arrival there, was surveyed and pronounced not sea- worthy. The master was unable, either by loan or bottomry, to raise money for her repair, and he at length sold the ship to the plaintiffs, and on receiving payment of the purchase money, by a bill of excliange on London, executed to them a bill of sale of the ship. The plaintiffs repaired the ship, and sent her to England with a cargo. The defendants refused to ratify the sale, or con- sent to the registry of the ship in the plaintiffs' names and on the arrival of the ship in the Port of London, the defendants put several men on board, to take possession of the ship and cargo for them. The plaintiffs thereupon applied for an injunction, to restrain the defendants from interfering with the ship or removing her out of the jurisdiction, and for a manager and receiver of the ship and cargo. Held, that the plaintiffs had no equitable, as distinct from a legal, title to the ship, and inasmuch as their title, (if they had acquired any) was a purely legal one, antl the case of interference, if wrongful, was therefore a mi're mishap ; the court would not interfere in favour of the plaintiffs, by injunction. — Ridgway V. Roberts, i Hare, 106. That the plaintiffs, if they had acquired no title as owners of the ship by the purchase, had acquired none by way of lien, in respect of the monies subsequently laid out on her repair. — Id. That the bill of sale of the ship, if not effectual to pass the property to the plaintiff, could not be treated as in the nature of a bottomry bond, inas- much as none of the parties had intended that it sliould so operate. — Id. That tlie plaintifis, according to the case made on the motion, if they f \ilcd at tlie hearing to establish their right to the ship, would be entitled to equitable relief in respect of the bill of ex- change given for the purchase money, and that they were entitled to have the trial of the legal right put in a course for determination, and to have the property protected in the mean time. —Id. Semble : In such a case (independently of the relief in respect of the bill of exchange), if en- gagements had been contracted, of which the conduct of the defendants would prevent the fulfilment, and if there could be no adequate compensation to the plaintiffs in damages, or if the defendants were about to carry away or des- troy the property, the court might interfere by injunction. — Id. The master of a ship is bound to employ his whole time and attention in the service of his employer ; and, Semble : that a custom allowing such master to trade on his private account. Bottomry Bond. SHIP— SLAVE TRADE. 445 during the voyage, cannot be maintained. — Gardner v. M'Cutchenn, 4 Beav. 634. TUe master and part ownpr of a ship purchases goods during the voyage, which answers stated were purchased out of private property and the profits of private trade during the voyage ; but the court considering there were strong grounds for thinking that the goods were purchased with partnership property or with money for which the defendant was accountable to the partner- ship, and that they belonged to the partnership, restrained him from receiving the goods. — Id, VIII. — Bottomry Bond. A Bottomry Bond may be good in part, though void for the residue. Where, therefore, a Bot- tomry Bond was given by the master at New York, as well for advances to obtain his discharge from arrest at the instance of the consignees, on account of damage done on the voyage to part of the cargo, as for payment of the port duties and other disbursements necessary to enable the ship to prosecute her voyage, the Judicial Committee, reversing so much of the decision of the Admi- ralty Court as rejected the bond in toto, sustained the bond to the extent of the sums advanced for necessary supplies and payment of the port duties. — Smith v. Gould, i ilo. 21. Semble : A Bottomry Bond given by the cap- tain of a ship at a foreign port is not necessarily void, because there was time during the ship's stay at such port for the captain to have written home to his employers, and to have received an answer ; but, at all events, if the omission of the captain, under such circumstances, to commu- nicate with his employers is intended to be relied on as invalidating the bond, it ought to be spe- cifically charged in the bill ; otherwise, although it appear in evidence, it will not be regarded. — Glascott V. Lang, 2 Phil. 310. To justify the resort by a master of a ship to a Bottomi-y Bond, it is requisite by mautime law that the advances should be merely to enable the ship to refit or to pay for the repairs and despatch of the vessel for the completion of her voyage, and that the master should be unable to obtain such advances upon personal credit. The sale of a Bottomry Bond, pursuant to public advertise- ment, by auction, to the lowest bidder in a foreign port by the master of a ship, is not sufficient to discharge a purchaser of the Bottomry Bond from making reasonable inquiries that the master is under the circumstances justified in granting the bond. A Bottomry Bond on the ship freight and cargo sold at public auction in a foreign port by the master and part owner of the ship, there being an agent of the charterer and sole owner of the cargo willing to advance, on personal credit of the owner of the cargo, for the necessary repairs of the ship under the circumstances pro- nounced against him. — Soares v. Rahn, 3 Mo. 1. Bottomry Bond given by the master upon a threat of arrest for supplies previously furnished onh's personal credit, held void. — Gorev. Gardner, 3 Mo. 79. The court possesses and will exercise juris- diction over a Bottomry Bond in a case of fraud, and will for that purpose restrain proceedings upon the bond in the Admiralty Court by injunc- tion. It is not necessary for the purpose of sup- porting an interlocutory injunction of that kind that the court should find a case which would entitle the plaintiff to relief ; at all events, it is suihcient if the court finds, upon the evidence then before it, a case which makes the transaction a proper subject of investigation in a court of equity. After long acquiescence under such an order, the court will not readily entertain an ap- plication for dissolving it. — Glascott v. Lang, 3 Myl. & Cr. 451. If a Bottomry Bond has been fraudulently obtained, this court has jurisdiction to restrain proceedings on it in the Admiralty Court. — Id. 8 Sim. 358. SHORT BILL. See Bill op Exchange. A bill of exchange remitted by a customer to his bankers, and not due, but remaining in specie at the time of their bankruptcy, continues the property of the customer, and the same is the law as to a bank post bill, which the ciistomer sends to the bankers' with a letter desiring them to place it to his credit and to send him a receipt. —Exparte Atkins, 3 M. D. & D. 103. The petitioner deposited India bills with her bankers, specially indorsed by her, to receive the amount when due, the balance of the petitioner's banking account ( exclusive of the amount of the bills) being then in her favour, and continuing so up to the bankruptcy of the bankers. The bankers charged discount on the bills in their ac- count with the petitioner, who might have drawn on them for the amount, it being the custom of the bankers to consider ordinary bills so deposited as cash. The bankers paid the bills away to a creditor with whom the assignees afterwards set- tled an account, charging him with the amount of the bills and receiving from him a balance due to the estate. Held, that the petitioner was entitled to be reimbursed the whole amount of the bills from the assignees, — Ex parte Bond re Furster, 1 M. D. & D. 10. SIGNATURE. See Ageeement. — PaiuD, Statxttb op. SLAVE TRADE. Seizure and condemnation of a Portuguese vessel under 2 & 3 Vic, c. 73, affirmed on appeal by the Judicial Committee. Proceedings taken against a vessel seized under the 2 & 3 Vict., c. 73, are to be according to the rules and regulations established under the 2 & 3 ^\'ill. 4, c. 61, and not according to the forms of the civil law. The affidavit of a person present at the seizure, though not the seizer himself, is sufficient to ground a monition, citing the master in particular, and all others in general, to appear, &c. — Guimaraens v. Preston, 4 Mo. 167. By the 44th section of the 5 Geo. 4, c. U3, the captors of a vessel, employed contrary to the pro- visions of the act, are only entitled to a moiety of the proceeds of the sale thereof after deducting the costs of prosecution. — Jennings v. Hill, 4 Mo. 369. 446 Rights and SOLICITOR AND CLIENT. lAahilities of. SOLICITOR AND CLIENT. See Pr. Costs. I. — ^Rights and Liabilities op 446 II. — Dealings Bbtwedn 447 III. — Striking Opp the Rolls 449 IV. — Certificate op 449 V. — Appearance op 449 VI. — AoiiEEMENTS BETWEEN 449 VII.— Retainer 449 VIII. — Changing Solicitor 450 IX. — Notice to Solicitor, When Notice to Client 450 ■Solicitor Taking Insufficient Security for Client 450 ■Solicitor Taking Security for Costs from Client 450 -Professional Confidence 451 -Fraud 451 -Negligence 452 -Undue Influence 452 -Deliveuy up, and Inspection op Documents 452 -When Liable to Costs 453 Costs of Solicitor Acting as Trustee 453 Lien 454 Protection from Arrest 455 X.— 1 XI.- XII.- XIII.- XIV.- XV.- XVI.. XVII.- XVIII.- XIX.- XX.- I. — Rights and Liabilities of. Consolidating and amending the laws relating to, in England, 6 & 7 Vic, c. 73. Consolidating and amending several of the laws relating to, 12 & 13 Vic, c. 53, I.; repealing 1 & 2 G. 4, c. 17 ; and so much of 7 G. 2, I., as relates to payment of Fees. Solicitors liable to pay costs, when, by their neglect, cause cannot proceed, — 36 Gen. Ord.f 3rd April, 1828, Beav. ed. 18. Solicitor to certify abatement or compromise of cause.— 39 Gen. Ord. 3rd April, 1828, Beav. ed.l9. Solicitors and parties acting in person, enabled to perform duties, heretofore performed by the sworn and waiting clerks, as attorneys, &c,, of the parties.— 16 Gen. Ord. 26th Oct. 1842, Beav. ed. 212. Solicitors to state their names and places of business, and " address for service," on all pleadings and proceedings. — 17 Ge». Ord. 26th Oct. 1842, Beav. ed. 213. Regulations where solicitors act as agents. — Id. Solicitors not to be changed without order of court.— 18 Gen. Ord. 26th Oct. 1842, Beav. ed. 214. Proceedings, not requiring personal service, may be served on solicitors. — 19 Gen. Ord. 26th Oct. 1842, Beav. ed. 214. Liability of solicitors signing certain pro- ceedings.— 16 Gen. Ord. 26th Oct. 1842. Beav. ed. 216. Solicitor may be appointed guardian, ad litem. —28 Gen. Ord. 26th Oct., 1842, Beav. ed. 217. Appointment of solicitor to suitor's fund, and regulating his duties. — Gen, Ord. 5th March, 1836, Beav. ed. 84. Such solicitor to attend the masters upon all matters affecting interests of the suitors in gene- ral.— /rf. 87. No person except an admitted attorney to be- come a solicitor until production of certificate of his fitness and capacity. — Gen. Ord. 27ih July, 1836, Beav. ed. 93. Examination of solicitors. — Id, Examiners to be appointed. — Id. A Master in Chancery to preside. — Gen. Ord. 27th July, 1836, Beav. ed. 94. Certificate of fitness. — Id. Appeal to the Master of the Rolls in case of rejection by examiners. — Id, Examination to take place at the Rolls' House. —Gen. Ord. 27th July, 1836, Beav. ed. 95. Persons applying to be admitted solicitors to give notice containing certain statements, — Id. List of notices to be made out. — Id. Petition for re-admission, to state abode and occupation of party during last year. — Gen. Ord 27th July, 1836, Beav. ed. 96. Order for re-admission not to be drawn up for a month after application. — Id. Regulations for the examination of solicitors. — Gen. Ord. 28th July, 1836, Beav. ed. 98. Articles of clerkship to be left at the Law Society. — Id. 99. With answers to questions after stated. — Id. First regulation dispensed with upon sufficient cause shewn. — Id. 100. Applicant to answer questions touching his service and conduct. — Id. And to procure answers to the questions after stated from the solicitor with whom he has served. — Id. And to be examined touching his fitness and capacity. — Id. If majority of examiners satisfied, certificate of fitness and capacity to be given. — Id. Form of certificate. — Id, 101. Questions to be answered by the clerk. — Id. Questions to be answered by the attorney or solicitor. — Id, 102. One of several plaintiffs having concurred in authorising a suit to be instituted, and after its institution, instructing the solicitor for the plain- tifis not to take any further proceedings in the cause, is not, upon further proceedings being taken, entitled to an order that the solicitor shall indemnify him in respect of the subsequent costs of the suit. — Winthrop v. Murray, 7 Hare, 152. Observations on the imperfect mode in practice, in which solicitors are remunerated for their services. — Lucas v. Peacock, 8 Beav. 1. By the practice of the court, solicitors are often not paid at all, or very ill paid for very important services, and therefore, they ought not to be de- prived of any lawful fees which the practice warrants, upon the notion that business charged, may have been of no practical benefit. Thus, where a solicitor acts for a plaintiff and for some defendants, he is entitled to charge such de- fendants for the plaintiff's warrant, served on his clients, the defendants, and for attendance thereon, and for separate copies of the proceedings. — Id, Where documents, which a defendant is ordered to produce, are permitted to remain in his solicitor's office for the plaintiff's inspection, the solicitor is not entitled to charge the plaintiff for inspecting them, although the clerk in court would have been entitled to demand 8s. 6d. per hour. — Woodroffe v. Daniel, 10 Sim. 126. A solicitor who has answered a petition pre- sented against him, is not entitled to dismiss it with costs, until after one clear term from the time when he answered it. — Bucke v. Murphy, Fl. & K. 173. The order of the 18th October, 1842, is intended to substitute the solicitor for the six clerks, and not to give the solicitor a right to insist as against his client, upon acting in the cause until removed by the order of the court. — Ward v. ' " Hare, 309. Rights, ^c. SOLICITOK AND CLIENT. Dealings Between. 447 A committee appointed by the inhabitants of M., employed the plaintiffs as their solicitors, to apply to parliament for an act for cnnstructing a dock. The plaintiffs, in the course of their em- ployment, paid considerable sums to engineers, ■witnesses, parliamentary agents, and various other persons ; and a large sum became due to them, for their own costs, and several liabilities ■were existing against them. The plaintiffs at different times, received through bankers and others, various sums, on account of what wras due to them, but -ivere unable to obtain payment of the balance, upon ■which they filed a bill against some of the members of the committee, alleging, that of the other members, some were out for the jurisdiction, and others ■were dead, and their personal representatives unknown ; and praying that the defendant might come to an account with them and pay them the balance, (■which -was stated to be £3,232 Is. 4d.), or such balance, as on taking the account should be found due, and also to indemnify them against the existing liabilities. A demurrer to the bill ■was allowed. — Allison, v. Herring, 9 Sim. 583. An attorney obtained from his client a con- veyance of his real estate, (of which his wife was dowable) in trust, to pay himself and the other cieditors of the client, and also to secure future advances to be made by him to his client. He afterwards became a party to a deed, prepared by himself, whereby the wife of the client relin- quished her dower, in consideration of a jointure fjr herself and a charge on the lands for her younger children ; but he did not communicate to her the existence of the prior deed, or inform her of the borrowing clause thereiji. Held, that further advances made by him, were not entitled, by virtue of the trust deed, to priority over the charge for the younger children, but the equity was administered for the benefit of the younger children only. — Browne v. Lynch, 2 Jon. 706. Only one fee allowed to a solicitor for at- tendance on a motion. — Doolan v. Tebeaudo, 2 Jon. 31 4. An attorney cannot file a bill in equity to recover the amount of his bill of costs, but where an attorney had commenced proceedings at law against his client, which were stopped by the client's proceedings in equity, and ultimately a compromise was had between the parties, which by consent of both, was made the subject of an order of a court of law. Held : — First, That the attorney could maintain a bill in equity, for the purpose of rectifying the order of the court, on the ground of mistake. Secondly, That it appearing from the bill, that by means of the defendant's proceedings, the plaintiff's legal remedy had been delayed beyond the period allowed by the Statute of Limitations, a general demurrer to the bill must be overruled. — Fyaon v. Pole, 3 Y. & C. 266. Liability of a party acting as a solicitor, in a proceeding in which funds are "wrongfully ob- tained out of court. — Ezart v. Lister, 5 Beav. 585. If a solicitor, knowing that money in court belongs to one person, presents a petition and obtains payment to another, he is personally responsible. The principle applies, if he has merely a knowledge of circumstances, which if duly considered, would lead to a knowledge of the fact. — Id. Where a plaintiff brought an action against Ms solicitor, and the solicitor pleaded a set off in respect of his bills of costs, and the proceedings in the action, and under a reference to arbitration. in which all questions, as to the solictor's bills of costs, might have been determined, failed ; and the plaintiff afterwards, in this court, obtained an ex parte order to tax his solicitor's bills of costs, and to have the deeds, which were in the pos- session of his solicitor, delivered up ; a motion to discharge that order was refused, but without costs, as the plaintiff ought to have made a special application. — Jones v. James, 2 Keen, 184. n. — Dealings Between. W., being indebted to C, agreed, by deed, to convey his estate to C, upon trust, to sell the same, and to pay off certain specified debts of W., due to other persons, and then the debt due from W. to C, and to pay over the surplus, if any, to W. ; no conveyance was executed, C, being in possession of the estate under a Ji. fa., issued on a judgment upon a warrant of attorney given by W., agreed with W.'s agent to purchase the estate. W. afterwards ratified the contract, but subsequently impeached it as one made by a trustee for his own benefit, and against the in- terest of his cestui que trust. Held, that C. was not a trustee for W., but a creditor holding a security for his debt, and that the contract of sale was valid. — Waters v. Groom, 11 Clk. & Fin. 684. A., shortly before his death, stated to the de- fendant, who was his solicitor and land agent, that he intended to make him a present uf £300, and subsequently being taken suddenly ill, he sent for the defendant and desired him to retain that sum out of the balance in his hands. There was no third person present on either of those occasions, and on the day following the last con- versation, A. died. Upon the death of A. in 1831, the defendant informed A. 's executors of the gift, and assisted them in making out an account of the testator's assets, in which account the £300 was treated as a gift by the testator in his lifetime, and in the inventory returned to the Ecclesiastical Court, and in the account settled in the Stamp Office a like credit was taken. In 1832, the de- fendant, at the request of one of the executors, furnished an account, in which, among other tilings, he stated all the circumstances under which he claimed to be entitled to this sum of £300, taking credit for it against the balance in his hands, and seeking to retain the residue of said balance in discharge of certain costs due to him and his partner in a suit in the exchequer, in which he had been employed for the testator in his lifetime, and, after his death, for the exe- cutors, the amount of which costs, however, had not been ascertained. This account was retained by the executors, without any objection. Upon a bill filed by the executors in 1839 against the defendant, for an account of the sums due by him as agent to the estate of the testator. Held, that the gift of the £300 could not be supported ; that the executors had not confirmed said gift, and were not precluded by any acquiescence from disputing same. — Walsh v. Studdart, i Dru. & W. 169; 2 Con. & L. 423. A solicitor and client settled an account, and the client gave a mortgage and covenant to pay. The solicitor sued on the covenant, and the client filed a bill, impeaching the transaction, on the ground of surprise, undue influence, and error. This being denied by the answer, a motion for an injunction to stay proceedings on the covenant was refused. — Jones v. Roberts, 9 Beav. 419. 448 Deah tngs. SOLICITOR AND CLIENT. Between, In every case between solicitor and client, ■where the dealing sought to be set aside can ultimately be supported only by acts of confirma- tion on the part of the client, the court is bound to make the party who has placed himself in such a position, pay his own costs of any investigation into the transaction. — De Montmorency v. Devereux, 2 Dru. & Wal. 410. A person, being embarrassed in his circumstan- ces, enters into a composition with his creditors, one of whom is his solicitor. The solicitor prepares and (with the debtor and the other cre- ditors) executes the deed. By the terms of the deed, the debtor is to pay £1,500 to his creditors, by instalments, and to insure his life for that amount, and in failure of such pavment and insurance, the deed is to be void. There is no evidence that the solicitor ever instructed his client that the covenants in the deed were to be strictly observed by the client, or that he (the solicitor) was bound by it ; but there is evidence of a private understanding between the solicitor and the client, that the solicitor, notwithstanding the deed, shall be paid in full. The debtor fails to insure his life for the whole £1,500. His solicitor cannot, as between himself and his client, insist upon his failure as ground for avoiding the deed. — Watts v. Hyde, 2 Coll. C. C. 368. Where a defendant raised a new issue by his answer, and the plaintiff proceeded to the hearing without amending his bill, the court, under the circumstances of the case, directed the plaintiflF to amend his bill by charging the new matter insisted on by the answer. — Id. A solicitor took a mortgage in fee from a client, and entered into possession of the mortgaged premises. He afterwards transferred the mort- gage to another client, and delivered to him the title deeds, but remained in possession, as the ■visible owner of the property, paying interest on the mortgage money to the transferee. After- wards, in January, 1841, the transferee, upon the application of the solicitor, delivered to him the title deeds (except the deeds of transfer), for the purpose of preparing an abstract for a proposed purchaser of the estate. The pui^dhase was de- layed some time, in consequence of a defect of title, but was completed in May, 1841, when the purchase money was paid to the solicitor, and the title deeds (with the exception before mentioned) ■were delivered to the purchaser, who was let into possession without notice of the transferee's title. In July, 1842, the solicitor absconded; and then, for the first time, the purchaser had notice of the transferee's title. Held, that, if the transferee had not, before July, 1842, notice of the payment of the purchase money to the solicitor, and had not authorised or assented to such payment, he was not to be postponed to the purchaser. — Stevens v. Stevens, 2 Coll. C. C. 20. When a father and a son are dealing with a third person, there is no rule which requires that the father and son should have separate solicitors. — Cooke V. BuHchaell, 2 Dru. & W. 166. I" 1824, B. E. L. was appointed the solicitor for W. M., and also employed as an agent for the purpose of re-purchasing or redeeming certain annuities which had been granted by W. M. In 1825, B. E. L., at his own suggestion, was appointed the irrevocable land agent and re- ceiver of W. M., in order to induce certain of the annuitants to make reductions in their claims ; and B. E. L., from that period until May, 1838, furnished various accounts as such agent and solicitor, which accounts were, from time to time, settled and signed as between W. M. and B. E. L. In 1830, B. E. L., whilst still in the employment of W. M., took an assignment of one of the annuities for his own benefit, having paid a less sum than that which had been agreed upon by the deed for its re- purchase. In 1838, B. E. L obtained a loan of £12,000 for W. M., W. M.'s son, J. A. M., joining in the security ; this losn was made at .5^ per cent, per annum, and the deed contained mutual covenants, binding the lender, on the one hand, not to call in, and the borrower, on the other, not to pay off the loan for five years. In 1838, and contemporaneously with the other deed of mortgage, B. E. L. obtained a mortgage of the equity of redemption, to secure a sum of £6,250 at 6 per cent, per annum ; this deed contained no clause restraining B. E. L. from calling in the money ; it also appeared that a portion of this sum was intended to secure untaxed costs already incurred, as well as costs to be incurred. In 1839, the original bill in those causes was filed by B. E. L., praying a foreclosure of his mortgage of 1838, and for liberty to redeem the prior mortgages. In 1840, W. M., and his son, J. A. M., tiled a cross bill, impeaching the mortgage, and the two accounts, upon foot of which the balance for which it was given was struck, and also praying to be declared entitled to the benefit of the purchase made by B. E. L. in ] 830. Held, the prior mortgagees declining to be redeemed, that the original bill should stand dismissed, as against them, with costs ; and that the original bill would also have been dismissed as against W. M. and J. A. M., were it not for the accounts prayed by the cross bill. Held, also, that B. E. L. was a trustee for W. M. for the re-purchase of the annuities, and that W. M. was entitled to the benefit of such purchase. In ordinary cases the rule is, that the establishment of one mistake is sufficient to induce the court to give a decree entitling the party to surcharge and falsify an account ; but when the relation of attorney and client subsists, the ordinary rule does not prevail j for there, though the pai^ty only alleges, generally, that the accounts, as settled, are erroneous, the court will, if sufficient cause be shewn, make a decree, opening these accounts. A solicitor, to whom his client has given bonds or bills, camiot rely upon them as another person might, to prove the existence of his debt, but must, irrespective of such securities, prove the' debt for which those securities were given. Qucere, as to the validity of the mortgage as a security for the costs included therein, and also as to the right to charge interest upon the said costs from the date of the deed. — Lawless v. Mansfield, 1 Dru. & W. 557. On a question of the propriety of a purchase by a solicitor from his client the solicitor in order to sustain the transaction, must, if he was solicitor, in hoc re, shew that he gave his client, all that reasonable advice against himself, which his office of solicitor would have made it his duty to have given him, against a third person ; but the nature of the proof varies according to the subject of the purchase, the relative situation of the parties, and the equality of the footing upon which they stand in reference to the subject of the contract, and although the relationship of attorney and client may exist, yet, if it has no existence in hoc re, the rule with regard to the onus of proof may no longer be applicable. — Edwards v. Met/rick, 2 Hare, 60. It appeared by the evidence, although it was Striking off RolU. SOLICITOR AND CLIENT. Retainer, 440 ot stated on the pleadings, that the value of the lineials, in an estate purchased by the solicitor, rom his client, was considerably increased after he purchase, owing to a railroad, then contem- ilated having been afterwards formed through he immediate neighbourhood. Semble ; This fas merely a speculative advantage, the oommu- lication of which to his client, the solicitor would lot be bound to prove, the parties being in the ame situation, with reference to the means of brming an opinion upon it. — Id. Purchase, by a solicitor from his client, sustained inder the circumstances, though part of the con- sideration was made up of costs, — Id, rn. — Striking Off Rolls. Solicitor struck off the Rolls, for fraudulently ibusing the confidence of his client. — In re Martin, 3 Beav. 337. It is the duty of the court, to protect solicitors in the fair discharge of their difficult and delicate duties ; but when a solicitor is found to have availed himself of his honourable and confidential position, for the purpose of taking advantage of, md defrauding his clients, it is not less the duty of the court to withdraw from him those privileges, and that certificate of character, which are afforded by his being permitted to remain on the roll of solicitors. — Id, On a bill filed by parties interested under a will against the sole acting trustee and executor, and against his solicitor, under whose advice the trust prop»ty had been improperly sold out by the trustee, and applied principally to the solicitor's use, praying that the stock might be replaced. The court at the hearing, after directing certain inquiries, ordered that the solicitor should shew cause why, having regard to his answer, and the evidence in the cause, his name should not be struck off the roll of solicitors of the Court of Chancery. — Goodwin v. Gomell, 2 Coll. C. C. 457. A solicitor having advised his client, (a person in an humble station of life), to commit a breach of trust, by selling out stodi, of which the client was a trustee, and having himself profited by the breach of trust, was ordered to be struck off of the roll, unless he shewed good cause to the contrary, but having in obedience to the decree in the cause, replaced the stock, and paid the costs of the suit, the court (taking into con- sideration his youth and other circumstances), abstained from further proceeding in the matter ; upon his undertaking to pay to the other parties to the suit, their costs, charges, and expenses. — Goodwin v. Gomell, 2 Coll. C. C. 462. IV. — Certificate op. Where a solicitor has neglected to take out his certificate for more than a year, admission, de novo, is in no ease necessary, (the words "null and void" as applied to his re-admission in the 37 Geo. 3, c. 90, s. 31, being used in a qualified sense,) and re-admission will restore him to a capacity to practice unless he has been guilty of some fraud in procuring it. Whether re-admission is necessary in a case where an attorney or solicitor has not taken out his certificate, nor practised for more than a year after his admission — Qiuere. A motion on behalf of a person who had ob- tained an order for the taxation of his solicitor's bills of costs, to discharge that order, and to have it declared that his solicitor was incapable of acting as such under the 39 Geo. 3, c. 90, and consequently, not entitled to claim his bill of costs, was Held, open to objection, ( if properly taken,) for irregularity, the court considering that such an application ought to have been made by petition. — Ex parte Chambers, In ra Wilton, 2 Keen, 497. V. — Appeaeanoe op. After considerable delay in the prosecution of a suit, the solicitor of a deceased party was served with a notice of motion. Held, that his duty to the court rendered it proper for him to appear on the motion. — CkaUe v. Gvoynne, 9 Beav. 319. Four plaintiffs instituted an original and two supplemental causes, and three of the same plain- tiffs, on a subsequent abatement, filed a supple- mental bill by a new solicitor, making the other plaintiff a defendant, who also appeared by another solicitor. On a petition in the four causes, the solicitor in the last supplemental suit, and not the solicitor on the record in the first three causes, was Held, to be entitled to appear for the plaintifls.— IFar(i v. Sv>ift, 6 Hare, 309. VI. — Agreements Between. An agreement by a solicitor to take a gross sum from his client in lieu of costs is not void, though regarded by the court with jealousy. — In re Whitmore, 8 Beav. 1 40. A lady, resident in Ireland, agreed vrith an Irish solicitor, that if he would employ a solicitor in London, to take out for her, certain letters of administration in England, which were necessary to complete her title to a fund in the Court of Chancery in England, and afterwards procure the fund for her, he should receive a commission of 10 per cent, upon the amount of the fund, and also be reimbursed what he should pay to the London solicitor. Held, that the agreement was contrary to policy, and therefore, could not be enforced. — Strange v. Branna7i, 15 Sim. 346. The court has no authority upon a petition bv a client against his solicitor to give relief founded on a special agreement. — Alexander v. ATiderdon, 6 Beav. 405. Vn. — Retainer. A petition was presented in the names of A. and B., but without the authority of A. Held, that having regard to the rights of the res- pondents, the petition could not be ordered to be taken off the file, on the application of A. — Tar- buck V. Tarbuck, 6 Beav. 134, A suit was prosecuted through a solicitor, and, as the plaintifis alleged, without their authority. The defendant gave notice of motion to dismiss the bill for want of prosecution, which being served on the solicitor, he requested the plaintiffs to name a new solicitor, which they refused to do. The solicitor then moved that he might be dismissed as solicitor. Held, that no such order could be made ; but personal service on the plaintiffs of the notice of motion to dismiss was ordered. The plaintiffs took no steps to relieve themselves from their liability. Held, that the GG 460 Changing Solicitor. SOLICITOR AND CLIENT. Insufficient Security, ^c. defendant was entitled to have the bill dismissed, with costs to be paid by the plaintiffs, leaving them to obtain, as against the solicitor, any remedy they might have. — Tarbuckx. Woodcock, 6 Beav. 581. The name of a person who had been made the next friend of an infant plaintiif, 'without his authority, ordered to be struck out, but liberty was given to the co-plaintiffs to amend by naming a new next friend. — Ward v. Ward, 6 Beav. 251. As to the liability of the next friend in such a case as regards the defendant. — Id. The fact that a party — knowing that his name has, without authority, been introduced as plaintiff by the solicitor of some of the other plaintiffs in a suit — does not take any active steps to have his name expunged, as plaintiff, from the record, is not, as between that party and the solicitor, equivalent to a retainer, or an adoption of the latter as his solicitor. — Hall v. Laver, 1 Hare, 571. The retainer of a solicitor need not be in writing, but if he neglects taking that precaution, and his retainer being afterwards questioned, there is nothing but assertion against assertion, he must bear the cost of the risk he thus undertakes. — Wiggins v. Peppin, 2 Beav. 403. VIII.— Changing Solicitor. On the application of defendant's counsel, a motion stood over. When it came on again, it appeared that the defendant had since changed his solicitor, but without order, and no counsel then appeared for him. The motion was granted for an affidavit of service.— Davidsoji v. Leslie, 9 Beav. 104. A party had some time since left home and not been heard of, and it was not known whether he was living or dead. His solicitor ceased to act for him, but no order had been made for changing solicitors. Held, that notices served on such solicitor, were regular. — Wright v. King, 9 Beav. 161. The solicitor employed by the next friend m an infant's suit, having given a notice of motion on behalf of the plaintiffs, one of the plaintiffs, who had come of age, but had not disavowed the suit or obtained an order to change his solicitor, em- ployed another solicitor to oppose the motion on his behalf. Held, that the counsel, instructed by that solicitor, were not entitled to be heard. — Swift V. Grazebrook, 13 Sim. 185. When charges of fraud are brought against the solicitor to the fiat, which are not satisfactorily answered, the court will, on the petition of one of the assignees, order the solicitor to deliver up the proceedings, notwithstanding the other as- signee will not consent to change the solicitor. — Ex parte Randall re Oakes, 1 M. D. & D. 562. property, to himself. — Perkins v. Bradley, 1 Hare, 219. Where one transaction is closely followed by and connected with another, or where it is clear that a previous transaction was present to the mind of a solicitor, when engaged in another transaction, there is no ground for the distinction by which the rule, that notice to the solicitor is notice to the client, has been restricted to the same transaction. — Hargreaves v. Rothwell, 1 Keen, 154, X. — Solicitor Taking Insufficient Security POR Client. An attorney, who was the ordinary attorney for a borrower, also acted in the matter of a par- ticular loan for the lender, but did not make any charge against the lender for his services. The security he took was not sufficient. Held, that he was properly charged, as an attorney acting on the retainer and employment of the lender, and was in that character, liable to an action for damages for the loss, suffered through the in- sufficiency of the security. — Donaldson v. Haldane, 7 Clk. & I-in. 761. After the death of the lender, two of his sisters, by an arrangement with the restof the family, who were the legatees of the lender, became possessed of the security, and applied to the attorney to do what was necessary. The means taken to secure the repayment of the loan on this continuation of it, were insufficient. Held, that as representing the interest of the deceased, and on their own account, the sisters were entitled to compensation from the attorney. — Id, A solicitor is not at liberty to deal with his client for a security for a debt, due to him by a third person, without giving to his client all the information he possesses, connected with his demand and the nature of thesecurity. Therefore, where a solicitor took from his client a security, on a sum of money charged upon the estate of the principal debtor, for the recovery of which the client was then prosecuting a suit in equity, and did not disclose to them the circumstances con- nected with that estate ; and particularly that he, (the solicitor,) had other demands affecting it, a bill to enforce that security was dismissed with costs. — Higgins v. Joyce, 2 Jon. & L. 282. A solicitor took an insufficient security for his client, and the nature of the transaction was such as in the opinion of the court, to create a case of combined agency and trust. He was Held, (under the circumstances), personally responsible for the deficiency, and for the costs of suit. — Craig v. Watson, 8 Beav. 427. IX. — Notice to Solicitor, When Notice TO Client. The rule which affects a party with notice, when his solicitor has had notice in the same transaction, or so recently that it is impossible to supose he should have forgotten it, is in itself sound, but should not be carried too far. — Gar- rardv. O'Reilly, 3 Dru. & W. 414. A solicitor, who prepared a deed of charge on behalf of the mortgagor and mortgagee. Held, to have notice of that incumbrance, on the occasion of taking a subsequent mortgage of the same XI. — Solicitor Taking SECURiTif for Costs FROM Client. This court will not support a deed where an attorney is the purchaser, his client the vendor, and the consideration is untruly stated. F. being seised of certain lands, executes a deed, convey- ing them to his solicitor, B., subject to a life use therein for himself, and after his decease, for his wife for her life, in consideration of a sum of £400. The deed purported to be a simple purchase in consideration of a sum of £400, but by letter of same date with the conveyance, and written by B., the solicitor, it was stated, that of the £400, £100 only was cash, the remaining £300 to be B.'s costs in a certain suit in which P., the Solitiitor taking Security, §-e. SOLICITOR AND CLIENT. Fraud. 451 grantor, was plaintiff, and which B., for such considerations, undertook to bring to a conclu- sion. Held, upon a bill filed by a devisee of F., that this deed could not be supported. In such a suit, the heir-at-law of the grantor, is not a necessary party. Semble: That such a transaction is maintenance. A solicitor will not be permitted to take a se- curity for costs to be incurred, and there is no distinction between advances of money for the purposes of the cause and other costs. Where a security is expressed to be given for costs generally — Quicre: Can it be sustained to the extent of such costs as had been incurred at the time of the execution of such deed. — Uppington V. Bullen, 2 Dru. & W. 184 ; 1 Con. & L. 291. Bonds in penalties, payable with interest, taken by an attorney from his client, pendente lite, for untaxed costs, shall only stand as securities for such sum of money as, upon taxation, shall appear to be due without interest thereon. Costs ordered to be taxed fourteen years after security given for their payment, it appearing that the costs had not yet been paid, though pay- ment had been made on account ; that the security had been given pendente lite, and while the rela- tion of attorney and client existed between the parties, no account having been then settled between them, the client being in embarrassed circumstances, a certain degree of oppression having been used towards him by the attorney ; and both parties having remained quiescent until the attorney sought to enforce payment, on foot of the security, by proceedings at law, but the vouchers having been given up to the cKent, the bills of costs to be prima facie evidence of the business having been done, and of the reasonable- ness of the charge, with liberty to the client to surcharge and falsify. — Fowler t. Moore, 2 Jon. 415. Considerable costs having been incurred by B., as the solicitor of A., in recovering certain pro- perty to which A. was entitled, and B. pressing for payment, A. executed to B. a conveyance of two farms (not the subject of the litigation), the consideration money of which was composed partly of the costs due, and partly of money paid. On a bill by A. to set aside the sale, on the ground that it was a purchase by a solicitor from his client, during the existence of the connection and under pressure : — Held, that B., not being solicitor in hoc re, was only bound to shew that he gave the fair value, and withheld no informa- tion from his client which he himself possessed ; and on proof of that by B., the bill was dismissed without costs. — Edwards v. Meyrick, 2 Hare, 60. XII. — Professional Confidence. An attorney who prepared a testamentary paper at the instance of the party benefitted by it, is not privileged, on the ground of professional confidence, to withhold from the court facts re- lating to cotemporaneous acts, upon which he founded his opinion of the testamentary capacity Df the party making the wiU. — Jones v. Godrich, 5 Mo. 16. A bill by the insurers of a life against the in- sured, to which the solicitor of the insured was a party as a defendant, stated that on a particular lay an agent of a company with whom the insured wished to effect an insurance, came to the office rf the insured and told their agent that the life ivas bad, handing to such agent, at the same time. an unfavourable medical report upon the life. The defendant, the solicitor of the insured, was present at the interview, but in his answer to the bill refused to state what passed, because he was then the solicitor and attorney, and was present as the solicitor and attorney of the insured, and acquired his information touching the matters which he refused to answer, solely from the fact of his being present at the time in the capacity of solicitor and attorney, and professional and con- fidential adviser of the insured. Held, that this answer was insufficient. Principles upon which some communications are held to be privileged from disclosure. — Desborough v. Rawlins, 3 Myl. & Cr. 515. A solicitor who was examined as a witness in a suit to rectify a mistake in a marriage settle- ment, declined to produce certain letters, on the ground that he had received them in his cha- racter of confidential solicitor to the intended wife, and he declined to produce certain books because they contained particulars of confidential matters between him and his clients. Held, that the grounds alleged for the non-production were insufficient. — Walsh-v. Trevanion, 15 Sim. 577. A solicitor is not bound to disclose professional communications which took place between him- self and his client, althougli no litigation existed or was contemplated at the time. — Caipmael v. Powis, 9 Beav. 16. The same rule applies to similar communica- tions between the solicitor and a third party, who acts as the medium of communication between the solicitor and client. — Id. A solicitor iiwested his client's money on a mortgage, and, by the client's desire, took the mortgage in his own name without any trusts being declared by the deed. In a suit by a judgment creditor of the mortgagor to redeem, against the solicitor and the mortgagor, (who was out of the jurisdiction). Held, that the soli- citor was privileged from disclosing the name of his client, and also the particulars of other mort- gages of the property, which had been taken by other clients of the solicitor in their own names. Held, also, that the case was an exception to the rule, that a defendant who submits to i.niwer must answer fully. — Jones v. Pngh, 12 Sim. 470. A., a solicitor, had been employed by B. to negociate and conclude an agreement on her behalf. Disputes then arose between them as to A.'s bills of costs, which B. produced to be taxed and reduced. A suit was subsequently com- menced by C, against B., the object of which was to set aside the agreement, and in which A. and D., who had lately become his partner, were solicitors for C. The court restrained A. and D. from acting as the solicitors of C. in the suit, and restrained A. from communicating to C. any information relating to the agreement that had come to his knowledge confidentially as the soli- citor of B. — Davies v. Clough, 8 Sim. 262. XIII.— Fraud. A. was the solicitor and land agent of B., who was desirous of selling an estate, and who, in a letter to A., expressed his readinass to sell it for thirteen thousand guineas. The estate consisted of two portions ; and a land valuer (whose valua- tion was not shewn to have been communicated by A. to B.,) put upon the two portions separate values, which, added together, exceeded the thirteen thousand guineas. A. sold part of the 452 Negligence. SOLICITOR AND CLIENT. Delivertj up of Documents, ^c. eitate to C. for a sum exceeding the valuer's estimate of that portion, and then purchased the other portion for a sum much less than that stated in the estimate, but which, added to C.'s pur- chase money, just made up thirteen thousand guineas. A. pretended that the latter purchase was made by one of hia relatives, and that the conveyance from B. was executed to that relative, but immediately afterwards a conveyance was executed from the relative to A., and in that conveyance was a recital that the purchase money was furnished by A. These facts were not dis- covered until thirty-seven years afterwards, and then B. tiled his bill against the representatives of A. (who had died seventeen years before), to set aside the latter conveyances, and to have an account. Held, that the circumstances of the transaction were of a fraudulent nature, and, therefore, furnished an answer to the objection, arising upon the length of time during wliich the transaction had remained unimpeached. — Charter V. Trevelyan, 11 Clk. & Fin. 714. Held, also, that the bill was sustainable, though disputes which had arisen between A. and B., as to their mutual accounts, had been referred in A.'s lifetime to a barrister, who was empowered to enquire into all matters of difference between them, and who, after awarding the payment of a certain sum by A. to B., had directed the exe- cution of mutual releases of all matters in dif- ference, and such releases had been executed. —Id. A tenant for life of settled estates, obtained an act of parliament for selling the estate, and investing the proceeds, under the direction of the court, in the p urchase of other lands, to be settled to the same uses. After the estate had been sold, and the money paid into court, the tenant for life fraudu- lently oftained an order, under which part of the money was paid out to him. Messrs. B. G. &. C, solicitors and co-partners, acted as solicitors of the tenant for life, in obtaining the order, and in every other proceedhig under the act. B. was aware of the fraud ; but G. and C. were wholly ignorant of it. Held, nevertheless, in a suit in- stituted by the remainder man after death of the tenant for life, that G. and C, as well as B., and the estate of the tenant for life, and all the other parties to the transaction, were jointly and severally liable to make good the money. — Brydges v. Bramfill, 12 Sim. 369. A solicitor who has joined with his client in practising a fraud, may be made a co-defendant to a suit, to set aside the transaction. — Beadles V. Bureh, 10 .5im. 332. XIV. — ^Neoligenoe. An attorney or law agent is only responsible, in damages, to his client, for gross ignorance or gross negligence in the performance of his pro- fessional services. A declaration or a summons against an attorney or law agent, to recover damages for loss, occasioned by his mismanage- ment of a cause, must charge gross ignorance or gross negligence, or must, at least, contain al- legations of fact, from which the inference is inevitable, that the defendant has been guilty of one or the other. The law, as to both these matters, is the same in England and in Scotland. Punia\. Landell, 12 Clk. & Fin. 91. In an action, on the case against an attorney for negligence, the court Held, that the cause of the action arose at the time thenegligence occurred, and not at the time the negligence was discovered , or the consequential damages ensued. — Smith v. Fox, 6 Hare, 386. It is to be assumed that legal advisers, in dis- charge of their duty to their client, will investigate suspicious transactions, and satisfy themselves, before giving their approval of such transactions, that it is for their client's benefit to confirm them. — MontmoreiKy v. Devereux, 7 Clk. & Fin. 188. In undertaking a client's business, an attorney or agent, in England or Scotland, undertakes on his own part, for the existence and the due em- ployment of skill and diligence. Where an injury is sustained by his client, in consequence of the absence of either, he is responsible to his client for such injury. Where, therefore, masters employed an attorney, to take proceedings under a statute, against their apprentices for misconduct, and the attorney specifically proceeded on the section of the statute, which related to servants and not to apprentices ; — Held, that this was an instance of such want of skill and diligence, as to render the attorney liable to repay to his clients, the damages and costs occasioned by his error. The fact that, in the first instance, the magistrates proceeded to convict on the wrong section, fur- nished no excuse to the attorney, for founding his proceedings upon it, — Hart v. Frame, 6 Clk. & Fin. 193. XV. — ^Undue Influence. Signification of the term " undue influence," as applied to transactions between solicitor and client. There are transactions in which there is so great an inequality between the transacting parties — so much of habitual exercise of power on the one side, and habitual submission on the other, that,without proof of the exercise of power beyond that whieh may be inferred from the nature of the transaction itself, this court will impute an exercise of undue influence. ^Vhen undue influence is to be inferred from the nature of the transaction, or when the transaction is con- trary to the policy of law, it is the province of the court to determine the point, and the question ought not to be sent to a jury. — Casborne v. Barsham, 2 Beav. 76. XVI. — Diii-ivERY Up, and I>fSPECTiox OP Documents. Order made on a solicitor who withdrew from the conduct of the plaintiffs cause, that he should deliver up to the plaintiff's new solicitor the briefs of the pleadings, counsel's opinions thereon, office copies of the several answers, and all such other papers and documents connected with the cause, as upon inspection, such new solicitor might deem necessary for the hearing, without prejudice to any right of lien for costs, and upon an under- taking to return them undefaced within ten days after the hearing.— H««toi) v. Metcalf, 3 Myl. & Cr. IRS After demurrer allowed, the plaintiff's solicitor refused to proceed until payment of his bill. Held, that he was bound to deliver over the papers to the new solicitor of the plaintiff, on the usual undertaking as to lien and re-dehvery; but that the party ought, under the circumstances, to undertake to prosecute the suit with due diligence. Cane v. Martin, 2 Beav. 584. When Liable to Costs. SOLICITOR AND CLIENT. Costs of Solicitor, 8^c. 453 The prosecution of a decree in a creditor's suit having been taken from the plaintiff and com- mitted to another creditor, under the 66th Order of 1828, the plaintiff's solicitor was ordered to allow that other creditor's solicitor to inspect and take copies of all the papers in the cause in his possession. — Bennett v. Baxter, 10 Sim, 417. A client deposited with his solicitor the title deeds of an estate, to secure a sum of money then due, and certain costs then incurred. The court, on the petition of the client, ordered the deeds to be delivered up to the client, on his paying into court a sum sufficient to cover the solicitor's claim, and directed the usual taxation, — Mills v. Finlay, 1 Beav. 660. A solicitor for the plaintiff in a suit, refused to proceed with it on his client declining to pay him the costs then incurred in the suit, and also the costs of an action at law in which he had acted as attorney for the client. Held, that the solicitor was not justified in demanding the costs of the action, as well as the costs of the sxiit ; and, con- sequently, that he had discharged himself, and he was ordered to deliver up the papers in the cause to the client's new solicitor, who was to hold them subject to the lien of the former solicitor, and to return them after hearing the cause. — Heslop v. Metcalfe, 8 Sim, 622, A defendant was decreed to deliver up certain deeds to the plaintiff. The deeds were in the possession of the defendant's solicitor, who claimed a lien on them for costs ; but the court, on motion, ordered him to deliver them up, and to pay the costs of the motion. — Bell v. Taylor, 8 Sim. 216. Where a solicitor refuses to deliver up deeds and papers in his possession, except upon payment of his bill of costs, the court has jurisdiction to Older taxation of such bill, and the delivery up of the deeds and papers, upon payment of the taxed costs, though the costs have been incurred in respect of conveyancing and other general busi- ness, and not in respect of the prosecution or defence of any suit or action. — In tlie matter of Rice, 2 Keen, 181. XVII. — When Liable to Costs. Plaintiffs solicitor ordered to pay the costs of the day in consequence of his non-attendance in court, when the cause was called on. — Courtney v. Stock, 2 Dru, & W. 251 : 1 Con. & L. 366. In drawing up a decree, the word " inquiry'' ivas erroneously inserted for the word "sale." [t became necessary for the defendant to make an ipplication to correct the error. Held, that the solicitor of the defendant must bear the costs. — In •e Bolton, 9 Beav. 272. A soUoitor acted for both parties, in the matter if a voluntary settlement, which was set aside ;or undue influence. He was made a defendant ;o the suit for that purpose. The court, though jxonerating him from culpability on the matter, nade him bear his own costs, because he had not icted with proper prudence in the matter. — larvey v. Mount, 8 Beav. 439. A plaintiff's solicitor Held, personally liable to he costs of a reference to the master, to enquire md report whether a purchaser was entitled to my, and what compensation, by reason of a nisdescriplion in the rental, caused by his neg- ect in not examining the tenant's leases, lodged n the master's office. — Taylor v. Gorman, Fl. & K. i67. Wliere a plaintiff's case had been conducted with great delay, and ultimately, through the mistake of his attorney, publication had passed without his examining witnesses, the attorney was made to pay the costs of an application to enlarge publication. — White v. Hillacre, 3 Y & C 278, A bill being filed without the written authority of one of several co-plaintiff's, and the evidence being unsatisfactory as to the retainer, his name was struck out as co-plaintiff, with costs to be paid by the solicitor, — Pinner v. Knight, 6 Beav. 174. Where a solicitor files a bill without a written authority, the onus of proof is cast upon him. If there be any doubt on the matter, the court will hold him liable. — Id. A bill filed without the authority of the plain- tiff was dismissed with costs, and the plaintiff was taken under an attachment for non-payment of costs. The court, on motion, ordered the so- licitor to indemnify A., but refused to release A., as against the claim of the defend^j^. Held also, that A, was not, on such an application, to be deprived of his right against the solicitor to damages for his imprisonment, — Hood v, VldUips, 6 Beav. 176, The mother of an infant employed a solicitor to prosecute a suit on behalf of the infant. The person first named as next friend in the cause died ; the mother subsequently discharged the solicitor, and after such discharge, he amended the bill and named a new next friend without the mother's sanction. The court ordered that, on payment by the mother to the next friend of the costs incurred Ijy him in the suit, the next friend should be removed, and another appointed ; and that the solicitor should pay the costs of the application, and of the new appointment, — Lander f. IngersoU, i Hare, 596, A suit instituted by a solicitor without autho- rity, dismissed, on motion, with costs of the suit, and of the motion, as between solicitor and cUent. Allen V. Bone, 4 Beav. 493. A bill having been filed without the authority of one of the co-plaintiffs, the court, after repli- cation, ordered his name to be struck out as co-plaintiff, and the costs of suit and of the appli- cation to be paid by the solicitor who filed the bill. — Tabbernor v. Tabbernor, 2 Keen. 679. X.VIII. — Costs op Solicitoe Acting as Trustee. A trustee who is a solicitor is entitled to be repaid such costs, charges, and expenses only as he has properly paid out of pocket ; and it makes no difference in this respect, that the instrument creating the trust may have directed that the trust monies should be applied {inter alia) in pav- ment of all expenses, disbursements, and charges to be incurred, sustained, or borne by the trustee in professional business, joumies, or otherwise • and that the trustee might retain all reasonable costs, charges, and expenses which he might sustain or be put unto ; such costs, charges, and expenses to be reckoned, stated, and paid, as between attorney and client. —Jfoore v Fr'owd 3 Myl. & Cr. 45. ' A trustee who was a solicitor came to a final settlement of accounts with his cestuis que trust, and, thereupon, a general release was executed. In the accounts, the trustee had taken credit for bills of costs for professional services, to which, 454 Lien. SOLICITOE AND CLIENT. Lien. under the general rule, he was not entitled. The cestids que trust was assisted on the occasion by an independent solicitor, who perused the bills, and settled and attested the release. Held, under the circumstances, that the trustee was entitled to the benefit of the release. — Stanes v. Parker, 9 Beav. 385. On a settlement of account between a cestui que trust and trustee (a solicitor), the latter charged for professional services in the trust. A release was executed j but the cestui que trust not having had any independent professional assistance on the occasion, the court relieved him from the professional charges beyond costs out of pocket. — Todd v. Wilson, 9 Beav. 486. A trustee acting as solicitor in the trust matters is merely entitled to costs out of pocket, the rule is not inflexible, and compensation may, in special cases, be made him under the authority of the court, by a fixed allowance, but not by allowing him to make the usual professional charges. — Bainbridge v. Blair, 8 Beav, 688. Duty (S^gplicitors to check useless litigation. — Ottley V. miby, 8 Beav. 602. The trustee of the separate property of a mar- ried woman, acted as her attorney in three several suits, instituted in relation to the trust property. In the first of these suits he was not a party, in the others he was. Held, that in the first suit he was entitled to his costs as between solicitor and client, but in the two others only to the costs out of pocket. — Fraser v. Palmer, 4 Y. & C. 515. An executor who acts as solicitor in a cause, in ''^vhich he is a party in his representative character, though he is only allowed, personally, as against the estate, such costs as he actually pays. Held, entitled to be allowed, as against the estate, that proportion of the whole costs which his town agent, in the cause, was entitled to receive. — Barge v. Brutton, 2 Hare, 373. An executor is not entitled to be allowed the costs of a suit in respect of the estate prosecuted by a solicitor whom he did not employ ; the solici- tor, himself, is the party to apply for costs, as a lien on the fund which he has recovered. — Id. A solicitor, who is a trustee, is not entitled to charge for his professional services which must be assumed to have been rendered in his character of trustee, but under a contract, properly entered into, he may be entitled to his professional charges. — In re Sherwood, 3 Beav. 338. Business, relating to a trust estate, was trans- acted by two solicitors iu partnership, one of whom was a trustee of tlie estate. Held, in passing his accounts, that costs out of pocket could alone be allowed. — Collins v. Carey, 2 Beav. 128. XIX.— Lien. The lien of a solicitor, on the papers of his client for the amount of his bill, is equivalent to a contract, and therefore, a solicitor vrill not be ordered to deliver up such papers until he is ac- tually paid ; and, Semble : That payment into court of a sum of money is not sufficient to entitle the client to demand the papers, but, Semble, also, that if the solicitor's withholding a document, would occasion the loss of the property to which it relates, the court will make such an order as, without prejudicing the solicitor's lien, will allow of the documents being made available for the purpose of securing the property. — Richards y. Platel, Cr. & Ph. 79. Order made on a solicitor who withdrew from the conduct of the plaintiff's cause, that he should deliver up to plaintiff's new solicitor, the briefs of the pleadings, counsels' opinions thereon, office copies of the several answers, and all such other papers and documents connected with the cause, as, upon inspection, such new solicitor might deem necessary for the hearing, without prejudice to any right of lien for costs, and upon an undertaking to return them undefaeed vrithin ten days after the hearing, — Beslop v. Metcalfe, 3 Myl. & Cr. 183. No one can give a lien on deeds to a solicitor of a higher nature than the interest he himself has in the deeds. — Molesworth v. Bobbins, 2 Jon. & L. 358. General consideration of the nature and extent of a solicitor's lien upon the papers of his client. Where a judgment was obtained against the client, subsequently to the deposit of his deeds with the solicitor, and costs had become due for professional services rendered to the client, both before and after the date of the entry of judg- ment. Held, that the lien of the solicitor could not prevail against the judgment creditor for any portion of the costs which became due after the date of the rendition of the judgment. The character of an incumbrance, the result of a contract, does not belong to the lien of a solici- tor. Semble : That although it requires a strong case to induce the court to take the papers from the solicitor without actual payment to him- self of the demand, still it has authority, in a proper case, to compel their production upon the amount claimed and costs being paid mto court. — Blunden v. Desart, 2 Dru. & W. 405. After A. had employed Messrs. B, & C. as his solicitors, they took D. into partnership with them, and A, employed the new firm. In course of that employment, papers belonging to him came into their possession. Held, that B. & C. had no lien on the papers for costs which A. owed them before they took D. into partnership. — In re Forshaw, 16 Sim. 121. A solicitor having a lien upon a deed for his costs will not be ordered to furnish them nor deliver up the deed, without getting an express undertaking that his costs will be paid when taxed. — M'Kenny v. Chambers, 1 Jon. & Ca. 105. Solicitor to the fiat receiving the proceeds of a sale of goods belonging to the bankrupt, which the solicitor freed from an execution by giving his own personal security to the sheriff by way of indemnity, has no lien on those proceeds, by way of counter-indemnity to himself, even though the proceeding should have taken place with the consent of the assignee, — Ex parte White, 3 M. D. & D, 7. A mortgagee is entitled to the possession of the title deeds of the mortgaged estate, and the mort- gagor cannot, by depositing the deeds with his solicitor, with a view of creating a lien, thereby defeat the right of the mortgagee. A. being entitled to a leasehold interest, in 1814, assigns the same, by way of mortgage, to B. In 1824, A. obtains from the landlord, a lease of lives, renewable for ever, in lieu of the former interest ; and in 1835, deposits this lease with his soUcitor, in England, to whom he was considera- bly indebted for costs at the time. By the decree pronounced at the original hearing, the new lease was declared to be a graft upon the old one, and that the mortgagee was entitled to the bene- fit of it. Held, that the solicitor's lien upon the new lease could not prevail against the mortga- Protection, ^-c. SOLICITOR AND CLIENT— STAMPS. 455 gee.— SmetA v. Chichester, 2 Dru. & W. 293 ; 1 Con. & L. 486. A solicitor, to whom a judgment has been as- signed in tiust for his client, afterwards assigning to a trustee of a settlement, upon the marriage of his client's grandson, parts with his lien upon all documents relating to title to the judgment of those claiming under the settlement. — Fitzgerald V. Birmingham, 1 Con. & L. 405. A solicitor's lien upon the fund is not a general lien. It extends only to costs in the cause, and costs immediately connected with costs in the cause ; as, for instance, the costs of suc- cessfully protecting a solicitor's right to the costs in the cause. — Lucas v. Peacock, 9 Beav. 177. A solicitor's lien for costs is not confined to deeds and papers, but extends to other articles delivered to him for the purpose of being exhi- bited to witnesses on the trial of an action. — Friswell v. King, 15 Sim. 191. The solicitor, after the death of his client, retahis his lien on the fund which he has reco- vered, and is not left merely to his right, as a general creditor on the estate of the client. — Lhyd V. Mason, 4 Hare, 132. The lien of a solicitor on the fund is not im- peded by the fact that the order of the court directs the fund to be paid to the client without reserving the right of the solicitor. — Id. Lien of a solicitor upon a fund in court, for the costs in a suit protected by a stop order. — Hobson V. Shearwood, 8 Beav. 486. A solicitor, who had been employed by an administratrix in the administration of the de- ceased's estate, was also employed as her solicitor in a suit subsequently instituted by a creditor of the deceased. Pending the suit, the adminis- tratrix went to reside abroad, and forbade the solicitor to proceed any further with the suit. After- wards the creditor obtained a decree, and a receiver of the estate was appointed. Papers relating to the estate had come into the solicitor's possession, not for the purpose of the suit merely, but for those and other purposes ; and he claimed a lien on them, for his cost of the suit and other business. A petition by the creditor, praying for a reference to ascertain whether the solicitor had any lien on the plipers, and that he might be ordered to deliver them up to the receiver, was dismissed. — Warburton v. Edge, 9 Sim. 608. A solicitor, who had used the names of certain parties as plaintiffs in a cause, without their con- sent, was Held, entitled to no lien against them, on the fund in court, for his general bill of costs, though entitled, under the circumstances, to be paid out of the fund his share of the costs of the suit properly incurred. — Hall v. Laver,i Y. & 0. 216. The lien of solicitors cannot interfere with the equities between the parties. A sum was found due from the plaintiff' to the defendant, and on the other hand, the defendant was ordered to pay the costs of suit. Held, that the lien of the defendant's solicitor, for his costs, extended only to the ultimate balance due ii-om the plaintiff', after deducting the costs pay- able to him by the defendant. — Bawiree v. Watson, 2 Keen, 713. XX. — Pkotection fkom Areest. A solicitor is n-ot bound to keep a clerk, and if, in the bona fide discharge of duties, which might have been transacted by a clerk, he is arrested, he will be nevertheless entitled to his privilege.— In re Ahearne, 2 Dru. & W. 141. A solicitor who had retired from practice, was taken on an attachment for non-payment of costs in a chancery suit, whilst returning from at- tending an appeal in the House of Lords as agent for the appellant. Held, that he was entitled to be discharged,and that the order for his discharge might be made either by the Court of Chancery or by the House of Lords. — Att. Gen. v. Skinner's Co., 8 Sim. 377. This court has jurisdiction to order an agent's bill to be taxed, on the application ef the solicitor, who employed him, on the latter paying the amount of the bill into court. — Jones v. Roberts, 8 Sim. 397. A solicitor who is proceeding to court to attend his professional business there pending, is pri- vileged from arrest. — Ait. Gen. v. The Leather Sellers Co., 7 Beav. 157. What an insufficient deviation. — Id. SPECIAL RETAINER. See Pk. CotJNSEi. SPECIFIC PERFORMANCE. See Aqueement. — Vend, and Purch. STAMPS. Assimilating the Stamp Duties in Great Britian, and making regulations for collecting and ma- naging the same ; 6 & 6 Vict. c. 82, I. Authorising the using in any part of the United Kingdom, stamps denoting duties payable in either country respectively ; 1 & 2 Viet. c. 85. Members of one Inn of Court, admissible into any other in England without payment of duty ; 5 & 6 W. 4, c. 64, s. 7, U. K. For allowing return of duty paid for admission in England, to persons belonging to Inns of Court, both in England and Ireland ; 5 & 6 Vict. u. 79, s. 22, E. & I. Acts now in force for amending the Stamp Duties :— 56 Geo. 3, c. 56, 1. ; 5 & 6 Vict. c. 82 ; 7 & 8 Vict. c. 21, G. B. & I. ; 55 Geo. 3, c. 184, G. B. A court of equity cannot, any more than a court of law, receive parol evidence of the contents of a written agreement, which appears never to have been stamped, even where it is proved to have been fraudulently destroyed, by the party against whom it is sought to be enforced. — Smith V. Henley, 1 Phil. 391. An agreement, that if it should becomeneoessary to stamp a document, and pay any penalty for doing so, one of the parties to it should be at liberty to charge the other with the expense of stamping it, is an evasion of the Stamp Act, and will not be enforced by the court as to the penalty. — Abbott V. Straiten, 3 Jon. & L. 603. A plaintiff sued to recover a large unliquidated sum due to her testatrix ; but the stamp on the probate did not cover the amount claimed. Held, that the plaintiff could not obtain a decree even for accounts and enquiries, until the probate had been properly stamped. 'The cause stood over, and the commissioners stamped the probate and 456 STAMPS— STATUTES. gave credit for the duty. — Howard v. Prince, 10 Beav. 312. The interest of a sum, secured by a mortgage of tithes, being in arrears, the mortgagor wrote and gave to the mortgagee a letter to the lessee of the tithes, desiring him to pay the sum in arrear to the mortgagee, and to charge it to the mortgagor in settling for the tithes of the present year. The mortgagor sent the letter to the lessee, who undertook to pay the amount within a certain time. The payment, however, was never made. Held, that the letter was not an assignment in equity to the mortgagee of a debt due from the lessee to the mortgagor, but was an order for payment of money, which could not be enforced because it was not stamped. — Lord Biaybroolie v. Meredith, 13 Sim. 271. An order, signed by A., addressed to his bankers, directing them out of the balance due to him on the final arrangement of his account, to pay to B. a certain sum, and which order was forthwith placed in the hands of B., who accom- panied by A., immediately proceeded to the banking house and delivered it to the bankers. Held, to be an instrument requiring a bill stamp within the Statute 55 Geo. 3, c. 184. — Parsons V. Middletmi, 6 Hare, 261. Held, also, that although the intention of A. ^nd B. was that the order should be forthwith delivered to the bankers, yet the fact that the order was, according to the agreement, delivered by A. to B., (the payee), brought it within the jaovisions of the stamp act, applicable to an in- strument of that character. — Id. That the agreement (according to which the order was made) to give B. a lien on the property of A., in the hands of bankers, consisting of various shares and securities on which the bankers had a prior charge for the amount of the advances made to them by A., could not be established as separate from, and independent of the order, treating the order merely as a notice of the agreement given to the bankers, but that the agreement must be regarded as giving B. only such a lien (if any) as the order created.— M. A. claimed a fund in court, as his father's ad- ministrator, but the letters of administration were not stamped to a sufficient amount. The court refused to grant him a stop order until he had procured the letters to be sufficiently stamped. — Christian v. Devereux, 12 Sim. 264. A proof will not be ordered to be expunged, merely because the instrument on which the proof was made required a stamp. — Ex parte Byrom, 3 M. D. & D. 53. On a petition to expunge a proof on a nego- tiable instrument; Held, that the respondent was not bound to have the instrument in court, unless the petitioners gave him notice to produce it, and that in its absence the court could not attend to a suggestion that it was not stamped. — Ex parte Christie, 3 M. D. & D. 736. STATUTES. I. — Accidental Fires 456 II, — Administration of Estate .... 456 III. — Apportionment oe Rents anb Annuities 456 IV. — Assets for Payment op Debts 457 v.— Canal 457 VI. — Charity 457 VII. — Cestdi auE Vie 457 VIII.- IX.- X.- XI.- XII.- XIII.- XIV.- XV.- XVI- XVII.- XVIII.- XIX.- XX.- XXI.- XXII.- XXIII.- XXIV.- XXV.- XXVI.- XXVII.- XXVIII.- XXIX.- XXX.- XXXI.- XXXII.- XXXIII.- XXXIV.- -compensation . 457 -Copyhold 457 -Conveyance, Setting Aside of 457 -Cost of Defendant 467 -Court of Equity, When Court of Record 458 -Bank 458 -Discharge op Defendant 458 -Dissenters 458 -Op Distribdtions 458 -Drainaoe Acts 458 -Of Frauds 458 -Infant 458 -Intentio.v op Legislature 45D -Interest '. . 459 -Irish Security 459 -Judge op Superiok Coukt 459 -Judgment 469 -Lands' Clauses Consolidation Act 460 -Lessee 460 -Lunatic 460 -Mobtoagee Out of Jurisdiction 460 -Prior 460 -Probate 460 -Railway 460 -Restraining Order 460 -Ship 460 -Seizure QuousauE 460 I. — Accidental Fires. See 6 Anne, c. 51, and 14 Geo. 3, c. 78. Whether the protection given by the Statutes 6 Anne, c. 51, and 14 Geo. 3, c. 78, to a party in whose house or on whose estate a fire "shall accidentally begin," extends to fires occasioned by the negligence of the o\vner or his servants, or whether it is confined to fires arising from pure accident, in the limited sense of the word. — Viscount Canterbury v. The Att. Gen., 1 Phil. 306. 11. — AD.MINISTRATION OF EsTATE. See 3 & 4 Will. 4, c. 104. The court has jurisdiction to order the real estates of a deceased debtor to be sold, foF pay- ment of his debts, in a suit for the administration of his estiite, though it be instituted, not by a creditor, but by the heir and the next of kin of the deceased. — Price v. Price, 15 Sim. 484. III. — Apportionment of Rents and Annuities. See 4 & 5 Will. 4, c. 22. The Statute 4 & 5 Will. 4, c. 22, for the appor- tionment of rents and other periodica) payments, applies to cases in which the interest of the person interested in such rents and payments is tenni- nated by his death or by the death of another person ; but does not apply to the case of a tenant in fee, or provide for appointment of rent between the real and personal representative of such person whose interest is not terminated at his death. — Browne v. Amyot, 3 Hare, 173. The Apportionment Act, 4 & 5 Will. 4, c. 22, does not apply to rents, payable by tenants from year to year, which have not been reserved by an instrument in writing.— /n re Markby, 4 Myl. & Cr. 484. An annuity given for maintenance, and charged Assets for Payment. STATUTES. Costs of Defendant. 457 upon land for a certain time, ■which ceased before the time of the year at which the annuity was payable ; the annuitant was Held, entitled to an apportioned part of such annuity, for the time between the last payment and the cessation of the charge. — Sheppard v. Wilson, 4 Hare, 396. Executors were directed to apply a competent part of the interest of a fund, towards the main- tenance and education of the testator's son during his minority, and accumulate the rest ; and after attaining twenty-one, to apply a moiety of the dividends for his support till he attained twenty- five; and to transfer the fund at twenty-five, with a gift over, if he died between twenty-one and twenty-five. The son attained twenty-one between the periods of payment of the half-yearly dividends. Held, that there should be no appor- tionment, and that he was entitled to the whole yearly dividend, received after he became of age, — Campbell v. Campbell, 1 Beav. 482. Apportioning a charge on stock, between the life interest in possesion, and the reversion expectant on the decease of a tenant for Ufe. — Bristed v. WilMns, 3 Hare, 240. Apportionment of debt rateably on the legatees who were defendants, and the legatees who were not parties, — Hall y. Palmer, 3 Hare, 538. IV. — Assets fob Payment op SEETa. See 3 & 4 "Will. 4, c. 104. "Where a person dies seised of land which he has not by will charged vrith his debts, the Statute 3 & 4 Will, 4, c. 104, makes the lands themselves, and not merely the estate or interest of such person in the lands, assets for the payment of his debts, — Viscount Dovme v, Morris, 3 Hare, v. — Canal, A canal act provided, that in case the company and the coal-owner could not agree as to the amoimt of compensation for the coal taken for the purposes of the canal, it should be settled by a jury sunmioned by the commissioners, whose verdict was "to be conclusive, and should not be removed by certiorari, or other process what- soever, into any of the Courts of Kecord at Westminster, or any other Court." A bill was filed praying an injunction to restrain proceedings before a jury, on the ground that the defendant was entitled to no compensation, and that the special jurisdiction provided by the act was not so constituted as to be likely to come to a just conclusion. Held, that the plaintiffs were not entitled to an injunction, if the defendant was entitled to any compensation, the amount of which had to be ascertained ; but whether this court had any jurisdiction to interfere in the matter, if it had clearly appeared that the de- fendant was entitled to no compensation — Qucere, — The Barnsley Canal Co., v, Twibell, 7 Beav, 19. VI. — Chakitt. See 39 Eliz. c. 5. The 39 Eliz. c. 5, enables "all and every per- son and persons" to found hospitals, &c., and to create them bodies corporate. Held, that a cor- poration may exercise the powers given by the act to "person and persons." — Att. Gen. v, !%« Corporation of Newcastle, 5 Beav. 307. Vn, — Cestui avE Vie, 6 Anne, c. 18. The court has no power to order a remainder man, expectant upon the determina- tion of an estate, pur auter vie, to pay the tenant, pur auter vie, the expenses of producing the cestui que vie, under the Act 6 Anne, 0. 18. — Jn re Isaac, 4 Myl. & Cr. 11. yni. — Compensation, The Crown, in consideration of the past ser- vices of the town, the situation and importance of the place, the injury and damage to be expected &om the king's enemies, from the current of water, and from the traffic on the bridges, and the ruin likely to take place, if the means of re- pairing were not provided, granted certain tolls to the corporation of Shrewsbury, to be applied in reparation of the bridges and walls, without yielding any account or reckoning thereof. Held, that the grant was not made to the corporation for its own benefit only, as a reward for prior services ; that it was the duty of the corporation to apply so much of the receipts as might be re- quired for the purposes stated ; that this was a gift for a public and general purpose for the be- nefit of the town, in aid of a general charge or burden to which the burgesses and inhabitants of the town were liable, and that it was a gift to charitable uses, under the Statute of Elizabeth, and was, therefore, subject to the jurisdiction of this court. — The Att. Gen, v. The Corp07-ation of Shrewsbury, 6 Beav, 220. IX. — Copyhold, See 4 & 5 Vic, c. 35. Independently of the 4 & 6 Vic, c. 35, s. 85, this court has no jurisdiction to direct the parti- tion of copyholds, nor of customary freeholds. Jope V. Morshead, 6 Beav. 213. X.- Conveyance, Setting Aside op. See 13 Eliz., o. 5. Whether, after the bankruptcy or insolvency of a debtor, any creditor (other than the assignees) can, in ordmary eases, sustain a suit to set aside a conveyance made by the debtor prior to the bankruptcy or insolvency, on the ground that such conveyance is fraudulent within the Statute 13 Eliz., c. 5 ; or whether it is necessary that any creditor seeking to set aside such fraudulent con- veyance, must previously recover judgment at law for his ieht—Quare. — Lister v. Turner, 6 Kare. 281. XI. — Costs op Defendant. The 1 Will. 4, c. 36, s. 15, rule 17, does not authorise the court to order that the costs of a defendant's contempt for not answering, and « ho is too poor to pay them, may be costs in the cause. — Eobey v. Whitewood, 7 Beav. 54. 458 Court of Equity, Sjc. STATUTES. Infant. XIT. — CouiiT or EauiTY, When Court of Recoei). Whether a court of equity is a court of record within the meaning of the Statutes 41 Geo. 3, c. 107, s. 1, or 54 Geo. 3, o. 156, s. 4— QMare.— Colburn v, Simms, 2 Hare, 543. XIII.— Bank. A person, at his death, was member of a banking company established under the 7 Geo. 4, c. 46, and subject to its liabilities. After the expiration of three years, a suit was instituted for the administration of his estate, and the common decree was made for taking an account of his debts. Persons who were creditors of the banking company at the testator's death, claimed before the master. Held, that their claims did not come within the scope of the decree ; secondly, that their claims were barred by the lapse of three years ; and, thirdly, that the proper way of bringing their claims before the court, was by petition, and not by exception. — Barker y. Buttress, 7 Beav. 134. A co-partnership, consisting of more than six persons, and carrying on the trade or business of bankers, within the distance of sixty-five miles from London, cannot, under the 3 & 4 Will. 4, c. 98, and the other acts now in force respecting the Bank of England, in course of such trade or business as bankers, accept a bill of exchange payable at leas than six months from the time of giving such acceptance. — The Bank of England v. Anderson, 2 Keen, 328. A bank at Kingston, in Upper Canada, drew a bill payable at sixty days after sight, directed to G. P., Manager, Joint Stock Bank, London, which was accepted by G. P., who was manager of the London Joint Stock Bank, but not a shareholder or partner in that concern, in the words, "accepted at the London Joint Stock Bank. — G. Pollard." By an arrangement between the London Joint Stock Bank and the Canada Bank, the London Joint Stock Bank guaranteed the payment, at maturity, of all bills of exchange so drawn by the Canada Bank, to the extent of £40,000. Held, that this transaction was a violation of the exclu- sive privileges of the Bank of England, within the 3 & 4 Will. 4, c. 98, and the other acts relating to the Bank ; and an injunction was granted accordingly, against the London Joint Stock Bank, G. P., and their agents. — The Bank of England y. Booth, 2 Keen, 466. XIV.— DisOHARQE OF Dependant. See 1 Will. 4, c. 36, s. 15, rule 5. The Statute 1 Will. 4, c. 36, s. 15, rule 5, does not make it imperative on the plaintiff to bring a defendant who is in custody up to the bar of the court within thirty days, but only deprives the plaintiif of the benefit of his process, and entitles the defendant to his discharge, if the plaintiif does not bring him up. — Woodwards v. Conebeer. 1 Hare, 297. A defendant having been committed to the Fleet for not answering, was discharged, in con- sequence of having been turned out of the Fleet after the expiration of the term limited to the plaintiff by the 11 Geo. 4, and 1 Will. 4, c. 36, B. 15, rule 5, for bringing him to the bar of tho court. — Greening y. Greening, 1 Beav- 121, XV, DlSiiENTEIlS See 7 & 8 Vic. c. 46. Proof of twenty-five years usage of a dissenters' meeting-house for worship by persons of a certain religious society is not under the Stat. 7 & 8 Vic, c. 45, conclusive evidence that the trusts of the premises are for the benefit of that society, where such trusts are declared upon the face of the deed by which the premises are dedicated to the chari- table use, although such deed, not being enrolled, is, " to all intents and purposes, null and void," under the Mortmain Act. — Att. Gen. v. Ward, 6 Hare, 483. XVI.— Of Distributions, A widow, as such, cannot take under a limita- tion to the next of kin of her husband, according to the Statute of Distributions. — Cholmondeley y. Lord Ashburton, 6 Beav. 86. In a marriage settlement, the ultimate limita- tion of a fund, was to such persons " as woidd, at the decease of the husband, be entitled to his personal estate, as his next of kin, according to the statute for the distribution of personal estate of persons dying intestate, if the husband had died intestate without having been married to A.," his wife. The wife died, and the husband mar- ried again, and died. Held, that his widow took nothing under this limitation. — Id. XVII. — DiiAiNAGE Acts. The court is femetiis offiein when it has confirmed the master's report, sanctioning the draining of a settled estate, under 3 & 4 Vict. c. 55 ; what remains to be done under the act, is to be done by the master, and not by the court. — Ex parte Mills, 13 Sim. 591. XVIIL— Op Frauds. Contract, for the purchase of tithes, not signed by the party chargeable ; Held, under the cir- cumstances, to have been taken out of the Statute of Frauds.— £tocA/oj-dv. J5SrApa. e., the assigns of the tithes simply ; and secondly, if such a prescription were allowed, the parson might have nothing left out of which his pension could be secured. The court, how- ever, ■would not determine such a prescription was bad in law, or that the improvidence of the bargain on which it must be presumed to be founded, was a conclusive objection to it ; but Held, that, in this case, the evidence was sufficient to shew that no such bargain could have been made. — Knight v. Marquis of Waterford, 4 Y. & C. 283. Where the lord of a manor of F. claimed for himself and his assigns, by prescription, the tithes of the manor, in consideration of an immemorial payment of £40 ayear by the owner of the manor for the time being to the parson ; and, on a bill filed against him by the rector, proved recipts for that sum (described as a " modus," &c.) under the hands of the whole series of rectors from 1 649 to 1822, and also proved, by depositions in former suits, that a payment of £40 per annum to the rector existed before 1690, and likewise produced deeds, from which it appeared that the lords had, at various times, &om the year 1658 to the present time, dealt with the tithes by mortgaging and conveying them; and there was no evidence, except as to trifling articles, that the rector had ever received tithes in kind within the manor, ex- cept for a small district called C, which had been, many years back, aliened by a lord of the manor, and had since paid tithes. Held, nevertheless, that the rector was entitled to an account ; for that, coupling the fact that tithes had been paid . for E., with the fact, proved by the rector, that £40 payments had been rendered for the district of H., which was in the parish, but not in the manor of F. ; and these facts, in connection with some of the receipts, treated the £40 as paid for " the estate" of the person paying it within the manor of F., there was a strong probability that the £40 was really paid as a compensation for the tithes of the estate of the person paying it, if within the manor of F. ; or, in other words, that a lease had been, from time to time, granted, and continually renewed at the same rent, by the rectors, to the owners, of the tithes of their estates for the time being. The court also decreed the account on this further ground : — That, during the period of the commonwealth, while the rector was under no control of the patron, he received £60 a-year ; but that, on the contrary, during the greater part of the period covered by the £40 payment, the rectors were under bonds of resignation to the lords of the manor, as patrons of the living, and, consequently, were not in a situation to resist the exactions of the lords. The decree, however, was reversed in the House of Lords. — Id. The rankness of a modus is not, strictly speaking, an objection to it in point of law. If there could be produced the original deeds, containing the agreements, made at the proper period and exe- cuted by the proper parties, such a modus would be valid. But, courts of equity, judging both of the fact and the law, determine, from the gross absurdity of the bargain, that no such bargain was ever, in fact, made. And the same principles may be applied to an agreement alleged to have been made between a layman and a rector, before the time of legal memory, for the purchase of the tithes by the layman, in consideration of an annuity payable by him to the rector. — [d. Commentary on the inferences to be drawn from the value of money at various times, in forming a judgment as to the validity of the m^dus. — Cooper v. Hewson, 4 Y. & C. 269. A modiis of 4d. per acre, for ancient pasture lands, in the hands of an out-dweller, the land continuing in pasture may be good ; but where in a suit brought to establish such a modus, there was evidence that payments of Is. per acre had been made by inhabitants as moduaes, and that on an issue directed in a tithe suit the jury had found a modus of 12d. per acre for newly converted land, as well aa 4d. per acre for ancient pasture, and where also it was admitted that the greatest part of the land alleged to be ancient pasture had been at one time under the plough, and it was clear that the quantity of land called ancient pasture had greatly varied from time to time. Held, that these and other circumstances which came out in evidence were inconsistent with such a modus as that sought to be established, and the court refused to direct an issue to try the existence of such a modus. — Cooper v. Byron. 3 Y. & C. 467. Land must have continued from all antiquity in pasture to support a modus for ancient pasture, and it is a contradiction in terms to call that ancient pasture which has been for a certain number of years arable, and in the last year con- verted into pasture, merely because it was origi- nally ancient pasture. — Id. A modus may exist that certain lands in a parish have, &om time immemorial, when iu pasture and occupied by an out-dweUer, been liable to pay 4d. per acre for all manner of tithe. — Id, ^ A modus that foreigners pay a modus of 4d. per 468 Tithe Rent Charge, TITHES— TITLE. acre for ancient pasture land, and 12d. for new converted land is bad. — Id, The probability of the existence of a modus may be judged of from the value of money at the time of legal memory, and, therefore, if it appears that the modus alleged is nearly equal to the value of the rent at that time, this evidence is strong to shew the non-existence of such a modus. — Id, IX. — Tithe Rekt-Chakqe. By articles of agreement for a lease the re- dendum was expressed thus : — " At the yearly rent of £109 14s. 4d, over and above all taxes, charges and deductions whatsoever, except quit and crown rents." Held, that the lessee was not liable to the tithe rent-charge. An agreement for a lease at a gross rent, with a collateral covenant on the part of the tenant to pay the tithe rent-charge, would be void under the 2 & 3 Will. 4, c. 119 ; but, Semble: an agree- ment by which the tenant offers to pay £100 a-year, and, in consideration of the tithe rent- charge, an additional sum of £5 per annum, would not be illegal, and would be specifically executed. — Davies v. FMon, 2 Dru. & W. 225. An award made at the Quarter Sessions under the 4 Geo. 4, c. 99, and 1 & 2 Vict. c. 109, re- ducing the amount of tithe rent-charge, recited contrary to the fact that the notice required by those acts had been served by three persons duly qualiiied. Upon a motion to shew cause against the appointment of a receiver under the I & 2 Vict. c. 109 : — Held, that notwithstanding the recital in the award, the adjudication was void, the notice not having been served by three per- sons duly qualified. — Thompson v, Sheil, PI. & K. S3. X. — Sdits Relatixo to. A bill for an account of tithes was filed against five defendants before the expiration of one year, from the date of 2 & 3 Will. 4, c. 100. This bill, after the expiration of that time, was amended under the order of the court, and four other persons were allowed to be introduced as defen- dants. Held, that a suit as against those latter defendants must be taken to have commenced at the date at which they were actually introduced into the bill, that they could not by relation back- wards be treated as defendants in the original bill, and that they were consequently entitled to the provisions of the statute. A decree against all the defendants for an account made in the court below was therefore reversed in the House, and the bill as to the four de- fendants ordered to be dismissed with costs here and in the court below. — Byron v. Cooper, 11 Clk. & Fin. 558. To a bill filed by the rector of F. for an account and payment of tithes, the defence was that the lands occupied by the defendants comprised the manor of F., which was within the rectory of F., and that from time immemorial the owner, for the time being, of the manor, had paid to the rector the yearly sum of £40 for maintenance of divine service there, for and in lieu of all manner of tithes arising within the manor ; and, that the owner for the time being of the said manor, or his assigns, had, from time immemorial, in respect of the said yearly sum, used to have, and ought to have the tenth of all titheable things arising withia the said manor. The evidence in the cause shewed payments to the rector of £40 yearly for upwards of one hundred and fifty years, and permanency of the tithes by the owner of the manor for upwards of one hundred and eighty years previously to the filing of the bill, and also, that in the year 1686, a bill by the then rector of F., for the tithes of the manor, was dismissed upon the same defence. Held, by the Lords, (reversing a decree for the account), that as the account for tithes is merely incident to the rector's legal title, a Court of Equity could not interfere in his favour until he established his right at law. That where a defence to a suit in equity for tithes raises a doubt as to the rector's legal title to them, the course of a Court of Equity is to retain the bill for a specified time, and leave the rector at liberty to establish his title by an action at law within that time. — Marquis of Walerford v. Knight, U Clk. & Fin. 653. That a party who mistakes his right, and sues in a vn-ong form, is not entitled to an order that would deprive the defendants of the benefit of any alterations made in the law in the meantime. —Id. The right to tithes as against an ecclesiastical corporation aggregate, is barred, under the 3 & 4 W. 4, c. 27, by non-payment for twenty years. — The Dean and Chapter of Ely v. Bliss, 5 Beav. 574. A. and B. were entitled to tithes in equal moieties ; B., under mi-take, received the whole. A bill by A. against B., for his moiety, was dis- missed with costs. — Clarke v. Yonge, 5 Beav. 523. Exceptions to the Master's report in a tithe cause, on the ground that he had overvalued the tithe of milk, overruled, it not appearing that the master had proceeded on any wrong principle. — Oliver v. Adderley. 4 Y. & C. 423. The rector of C. brought his bill for an account of tithes, charging that the defendants sometimes pretended that the lands were discharged from tithes by reason of various moduses, &c., and at other times, that the lands were extra-parochi.tU whereas the defendants had divers papers and documents in possession which would shew the plaintiff's title, and especially, that the lands were in the parish of 0. Plea of no titheable matters overruled. — Clayton v. The Earl of Winm Chelsea, 3 Y. & C. 426. Semble : That a plea of no titheable matters may enumerate specially all the tithes demanded, but it must deny the perception, not only of each species of article, but of any one article in that species. — Id. XI. — Extua-Parochialitt. In a suit for tithes, a district consisting of three hundred and seventy acres of land, within the ambit of, and surrounded by, the parish ; Held, after the trial of an issue at law, to be extra-parochial ; and the bill was dismissed witli costs. — Clayton v. Meadows, 2 Hare, 26. TITLE. See Vendor and Purchaser. I. — When Good 469 II. — SurnciENT TO Satisfy Purchaser.. 469 III. — Effect of Levying Fines on 470 IV. — Concealment of 470 V. — Reference as to 470 VI.— Title Deeds 470 W'hen Good. TITLE. Sufficient to Satisfy Purchaser. 469 I. — When Good. Defective titles in Ireland confirmed against the Crown, 48 Geo. 3, c. 47. House, title, dignity, &o., contingent on future events, for enabling the perpetuating of testi- mony by the claimant of, 5 & 6 Vic. c. 69. Upon a loan of money, the borrower conveyed land^ to the lenders and their heirs, upon trust, to sell and repay themselves, and to pay the surplus and convey the unsold lands to the borrower. The lands having been sold under a decree in a suit to carry the trust into execution ; Held, that a good title might be made to the purchaser, without the concurrence of the credi- tors of the borrower, by judgments confessed after the execution of the trust dieei.^— Alexander V. Crosbie, 1 Jon. & L. 666. In 1745, J. executed a settlement of lands, reserving power, with the consent of A., to revoke the uses. The abstract of title set forth a will of J., dated in 1761, whereby he, with the consent of A., revoked the uses, and referred to a copy of the will. D., the son and heir of J , by indenture of 1763, reciting the will of his father, re-settled the estate, and possession had since gone accordingly. The will was not forth- coming; Held, that its non-production was not an objection to the title. — Id. The abstract stated a deed of March, 1814, making a tenant to the pracipe, which recited articles of February, 1814, between the father (tenant for life) and his son (tenant in tail,) em- powering them to revoke the uses thereby de- clared ; and the recovery was declared to enure to the uses in the articles. In 1815, the father and son revoked the uses, and re-settled the estate, and possession had gone accordingly. The abstract stated, that the articles had been lost, and it appeared that search had been made for them : Held, that their non-production was not an objection to the title. — Id. If counsel for the purchaser waive the produc- tion of a particular document stated in the abstract to be lost, and the purchaser adopt that opinion, and deal with the seller upon that view, he will not be permitted to repudiate the opinion of his counsel. — Id. The period for which a good title is required to be shewn is still sixty years, notwithstanding the Statute 3 & 4 WUl. 4. 21.~Cooper v. Emery, 1 Phil. 388. Evidence as to the heirship of daughters.— Hemming v. Spiers, 15 Sim. 650. An abstract shewed the equitable fee to be in ■ the vendor, and the legal estate to be in A., as a mortgagee for a term, and, subject thereto, in B. in fee. By a supplemental abstract, it appeared that, before the first abstract was delivered, A. had assigned the mortgage money to B. and had been declared a trustee of the term for him, and that he had since died intestate ; that his father, who first took out administration to him, was also dead, and that he remained unrepresented for some years; after which, S. took out adminis- tration to him. Held, that the first abstract shewed a complete title ; the tracing of the title to the legal estate being matter of conveyance merely. — Avarne v. Brown, 14 Sim. 303. Where the title to a contract is made out by shewing the title to the land which is the subject of the contract, the court will enter into the question of the title to the land at the time of the contract, and if the party, insisting on the con- tract, makes out a good title to the land at that time, the court will direct a reference to the Master as to the subsequent title. — Cator v. Croy- don Canal Company, 4 Y. & C. 405. Upon a reference to the Master to inquire as to the title to compensation for damage done to lands, the Master ought regularly to enquire whe- ther the damage was temporary or permanent. — Id. A good title may be made to an estate, although the origin cannot be shewn by any deed or will, but it must be shewn that there has been a long uninterrupted possession, enjoyment, and dealing with the property, as afford a reasonable pre- sumption that there is an absolute title in fee simple. — Cottrelly. Watkins, 1 Beav. 361. II SrPTioiBMT TO Satisfy Poechaseii. The omission in a rental of a reservation of mines, minerals, and of a right of entry to search for them is a valid objection to the title. — Barton V. Doumes, Fl. & K. 505. A. devised his estate at H. to his second son, who survived him, and afterwards died intestate ; whereupon the estate descended to N., his eldest brother. Pending a suit instituted by A.'s cre- ditors, judgments were entered up against N., which remained unsatisfied when the estate at H., together with the testator's other estates, was sold under the decree in the suit, for payment of his debts. Held, that N.'s judgment creditors were necessary parties to the conveyance of the estate at H., and as they could not be compelled to join in the conveyance, because they were not parties to the suit, that a good title could not be made to the estate. — Craddock v. Piper, 14 Sim. 310. On a contract for the sale of a share in a mine, described eis one "192nd part or half-share of the Tresavean, in the district of Gwennap, in the county of Cornwall," it is not sufficient for the vendor to shew a title to the specified share of the mine as between himself and his co-adven- turers, without shewing some title in himself and his co-adventurers to the mine of which he had contracted to sell a share. As to the title he must shew — QiUBre. — Curling v. Flight, 6 Hare, 41. The question whether an executor or trustee who sells an estate can give a good receipt for the purchase money, is not a question of convey- ance, but of title ; the decisions in Bentham v. Wiltshire, 4 Madd. 44, and Page v. Adam, 4 Beav. 269, disapproved of. — Forbes v. Peacock, 12 Sim. 528. Where the purchaser of an interest sold under the decree of this court, thereby acquires inform- ation as to a supposed defect in the title to that interest, and improperly avails himself of those means of information, by purchasing the estate of the person who alone could have taken advantage of the supposed defect ; such purchaser will not be allowed the benefit of the general rule, as to doubtful titles. — Sheppard v. Doolan, 3 Dru. & W. 1. The court will compel a purchaser to take a title depending upon parol evidence of adverse possession, under the Statutes of Limitations, 3 & 4 W. 4, c. 27.— Scott v. Nixon.— Id. 388. If A. agrees to sell an estate, and it is after- wards discovered that a small portion of it is the property of another person ; the court will not discharge the purchaser from his contract, without giving A. an opportunity of acquiring a title to that -BOtiKm.,— Chamberlain v. Lee, 10 Sim. 444. 470 Effect of Levying, ^c, TITLE— TRADE MARKS. III. — ^Eppboi op Levtino Fines on. If husband and wife, being seised in fee in right of the wife, convey to a purchaser by deed, with- out fine, the wife, if she survives, and if not, her heir may, on the husband's death recover the land, notwithstanding the purchaser may have been in possession for more than forty years. — Jumpsen v. Pilohers, 12 Sim. 327. IV. — Concealment oe. A party claiming a title in himself, but privy to the fact of another dealing with the property as his own will not in equity be permitted to assert his own title against a title created by that other, although he derives no benefit from the trans- action. — Nicholson v. Hooper, 4 Myl, & Cr. 179. V. ^REPEIiENCE AS TO. Where, on a reference as to title, the master has reported in favour of the title, but upon exceptions the court thinks he has done so erroneously, or on insufficient grounds, the course is, to give the respondent the option of a reference back to the master, to revise his report. — Curling v. Flight, 2 Pha. 603. An order for, or reference as to title, ought to contain directions for the production of deeds, &c. and for the examination of the parties on oath, — Winterbottam v. Ingham, 9 Sim. 654. Where an estate was sold under a decree of the court, and one of the conditions of sale was, that the purchaser pay the purchase-money into court on a given day, at his own expense ; it was Held, that the purchaser was entitled to the costs of a reference as to the title, reported good by the master. — Camden v. Benson, 1 Keen, 661. VI. — Title Deeds. F. and W., as solicitors for the tenant for life, held the title deeds, which afterwards passed into the possession of W. and C, their successors. The tenant for life died, and the estate then stood limited ; iirst, to F. and W. for five hundred years, to secure a sum of £2,000, with remainder to trustees for six hundred years, to secure a jointure and portions, with remainder to A. B., in tail. A. B. being an infant, a suit was instituted on his behalf, in which the £2,000 was raised on the security of the term. Upon that occasion, F. and W. covenanted with the mortgagees to produce the title deeds from time to time, and not to part with them ; but they were relievable from the covenant on certain terms. A receiver was appointed in the suit, and the court directed costs of the solicitors of the suit, to remain charges upon the estate, at interest. W. and C. were solicitors in the suit for A. B.; A. B. upon coming of age, presented a petition for the delivery of the title deeds. Held, that (independently of the covenant) W. and C. held the deeds for A. B., and not for the termors ; but the covenant having been entered into for the benefit of the infant, F. and W. were not bound to part with the deeds until released from their covenant. Held, also, that W. was not entitled to hold the deeds for the trustees, of the term of six hundred years, or for any costs, other than those of seeing him- self properly released from the covenant ; and that he had no right to require them to be delivered to the receiver in the cause. — Hotham V. Somerville, 5 Beav. 360. Deeds brought into court by the executor, under the common order for the production of documents, made in a creditor's suit, will, after the debts are paid, be ordered to be delivered out to the party by whom they were deposited, and the court refused to order such deeds to be delivered to the plaintiif in the cause, al- though he was the tenant for life of the estate comprised in the deeds. — Plunkett v. Lewis, 6 Hare, 65. A party entitled to an estate, subject to terms, vested in trustees, for securing a jointure and portions, mortgaged it, but retained the title deeds in his possession. Held, that this omission on the part of the mortgagee, was not sufficient to postpone him, in favour of a subsequeiij; purchaser, for valuable consideration. — Farrow v. Rees, 4 Beav. 18. TOLLS. A railway act empowered the proprietors to levy on all coals carried along any part of their line, such sum as they should direct, "not exceeding the sum of fourpence per ton per mile." It then went on thus : — " And for all coal which shall be shipped on board any vessel, &c., in the port of Stockton-upon-Tees aforesaid, for the purpose of exportation, such sum as the said proprietors shall appoint, not exceeding the sum of one halfpenny per ton per mile." Held, that with respect to coals shipped for exporta- tion, this was not a cumulative, but a substituted toll. — Stockton and Darlington Railway Co., v. Barrett, 11 CUc. 8s Fin. 590. Another act passed on the same subject, after reciting the former act, and also reciting that the proprietors had been to great expense in forming inclined planes on the line of railway, authorised them to demand " for all articles, &c., for which tonnage is hereinbefore directed to be paid, which shall pass any inclined plane upon the said railway, such sum as the said pro- prietor shall appoint, not exceeding the sum of one shilling per ton. Held, this was a cumulative charge. — Id. Clauses in acts empowering companies to levy a charge upon the pubUc ; as in railway acts, for example, must, where the meaning is doubtful, be construed favourably to the public. — Id, TRADE MARKS. The plaintiff invented and sold a medicine under his own name. The defendant also made and sold a similar medicine, and on his labels he used the plaintiffs name and certain certifi- cates given of the efficacy of the plaintiff's medi- cine, in such an ingenious manner as, prinm facie, though not in fact, to appropriate and apply them to his ovm medicine. Held, that although there were other differences in the mode of selling, the proceeding was wrongful, and the defendant was restrained by injunction. — Franks V. Weaver, 10 Beav. 297. A blacking manufactory had long been carried on under the firm of Day and Martin, at 97, High Holborn. The executors of the survivor conti- nued the business under the same name. A person of the name of Day having obtained the TRADE PROFITS— TRESPASS. 471 authority of one Martin to use his name, set up the same trade at 90^, Holborn Hill, arid sold Blacking, as of the manufacture of Day and Martin 90^, Holborn Hill, in bottles, and with labels having a general resemblance to those of the ori- ginal firm. He was restrained by injunction. — Croft V. Day, 1 Beav. 84. Principles on which the court interferes to prevent the use of trade marks. — Id, The ground on which the court protects trade marks is, that it will not permit a party to sell his own goods as the goods of another ; a party will not, therefore, be allowed to use names, marks, letters, or other indicia by which he may pass off his own goods to purchasers as the manufactures of another person. — Perry yf Truefitt, 6 Beav. 66. Injunction to restrain a party from making and sending to Turkey, watches, having the plaintiff's name, or the word "warranted," engraved theieon in Turkish characters, in imitation of the plain- tiff's watches. — Gout v. Aleploglu, 6 Beav. 69, n. TRADE PROFITS. Difficulties of enforcing in Chancery a cestui que trust's right (however clear) to participate in the profits of a trade carried on, in part, with the trust fund. — Wedderburn v. Wedderburn, i Myl. & Cr. 41. TRADING. Persons who are liable to become bankrupt ; See 12 & 13 Vict. c. 106, s. 65. Acts of bankruptcy in general. — Id. s. 67. Semble : That a member of a gas company is a traiier.— Ex parte Brown,^ M. D. & D. 768. Where an attorney was in the habit of having the money of his clients deposited with him, to lay out for them upon mortgage, and received from others a compensation or gratuity for pro- curing loans of money of them, besides his charges for preparing the mortgage securities, he was Held, to be a trader within the meaning of the bankrupt laws, as a money broker, and a person receiving other men's monies into his trust or custody, whether or not he might be con- sidered liable to the bankrupt law, as a banker or scrivener. — Ex parte Gem, 2 M. D. & D. 99. A lessee of an iron mine purchases large quan- tities of pig iron, which he manufactures into cast- iron implements for the purpose of working it, and the surplus of the cast iron which he did not use, he sold to persons in the neighbourhood. Qtuere : whether this was not a trading within the bankrupt law. At any rate the point was so doubtful, that the court declined to annul the fiat on the petition of the bankrupt, but would only give him leave to try the question in an action at lecw.—Ex parte Salkeld, 3 M. D. & D. 125. Two attorneys, in partnership, lent money on mortgage to a party engaged in a building specu- lation, and the mortgage being forfeited, they took possession of the carcases of the houses, and finished them at their own expense, for the pur- pose of selling or letting them ; they also purchased a few other carcases, not in their character of mortgagees, which they employed a builder to finish for the same purpose. Held, that this was not a joint trading as builders, within the meaning of the bankrupt laws. — Ex parte Edwards, re Edwards, I M. D. & D. 3 Where a nartv held shares in a ioint stock banking company for a period of two years, and received, successively, two years' dividends on his shares. Held, that this was sufficient to con- stitute a trading as a banker. — Ex parte Wynd- ham, re Byrom, 1 M. D. & D. 146. A party, having no other visible occupation, was made a bankrupt as a dealer in yachts. The only evidence of trading was that, upon three several occasions, he bought and sold a yacht for profit, realizing, on one of such sales, a profit of £190; and that, on some of these occasions, he employed a broker, to whom he said, " that he thought it no disgrace thus to increase his in- come ;" but there was no direct evidence that he thus dealt for the purpose of gaining his liveli- hood, or that he was considered as a trader by any person who knew or dealt with him. Qucere : Whether this is a sufficient evidence of a trading within the bankrupt law. — Ex parte Cromwell, re Young, 1 M. D. & D. 158. A., in conjunction with T., took a lease of certain salt works and brine pits, for the purpose of manufacturing and selling salt, which was made by them chiefly from the springs and rock salt upon the premises demised, but some of the brine they obtained by channels from adjoining premises. Held, that this was not a trading, as a " workmanship of goods and commodities" within the meaning of the 6 Geo. 4, c. 16, s. 2. — Ex parte Atkinson, re Atkinson, 1 M. D. & D. 300. Holding shares in a joint stock company, for a period of six days only, where no dividends or profits appeared to have been received by ihe party during the time that he possessed the shares. Held, not to constitute a trading within the bankrupt law. — Id. TRAVERSING NOTE. See Pe. Te.\.veksing Note. TRAVERSING ORDER. See Pk. Traversing Order. TRESPASS. A declaration in trespass, stated a breaking and entering, damaging the doors, hinges, and locks, spoiling the grass, and fruit trees, and exposing the plaintiff's goods to sale on his premises, by means of which, &c., the plaintiff was not only disturbed in the possession of his house, but pre- vented from carrying on his business, and deprived of the enjoyment of his goods. The defendant pleaded that before the action brought, the plain- tiff became a bankrupt. Held, on general de- murrer, (affirming the judgment of the court below), that as there were some causes of action included in the declaration, which would not pass to the assignees, the plea which embraced the whole, and was not addressed to any particular of, the declaration was insufficient and bad. — Rogers v. Spence, 12. Clk. & Fin. 700, TRIAL AT LAW. See Pr. Issue, 472 JVAen Void, TKUST. When Void. I.- II.- III. IV.- V.- VI.- VII.- VIII. IX. X. XI. XII. XIII, XIV. XV, XVI. XVII XVIII XIX, TRUST. See Tkustees. — Stock. •When Void 472 ■For Investmekt 473 -Implied 474 ■Tor Sale 474 •For Children 475 ■Trust Fund 475 ■When Parties Cease to be Objects op 476 -Executed 476 -Declaration of 476 — Executory 477 — Presumed Acceptance op 477 — How Affected by Statute of Limitations 478 —Term 478 — ^Ultimate 478 —For Public Purposes 478 — Deed 480 , — Construction op 481 . — Satisfaction op 482 — ^Breach op 482 I. — When Void. Circumstances under which a parol trust of real estate will be enforced. — Donahue v. Conrahy, 2 Jon. & L. 688. Testator gave to his wife all her jewels, trinkets, &c., which, he added, might be finally appropriated as she pleased, with the sum of £4,000 in money; but which sum he recom- mended her to divide among certain persons in certain shares. Held, by the Vice Chancellor, that a tru.st was created in favour of these persons, to take effect after the wife's death. The Lord Chancellor, however, held the contrary, on appeal. — White v. Brigga, 15 Sim. 33. A. directed her agents to invest part of her balance in their hands" in the purchase of £4,000 stock, in the names of himself and his wife, in trust for his infant son. The agents made the purchase in the joint names, but without anv trust expressed, because, as they afterwards infomed A., the bank objected to trust accounts appearing on their books. A, allowed the stock to remain without any trust being declared, and received the dividends of it down to her decease. Held, that neither his son nor his wife (who survived him) were entitled to the stock, but that it formed part of his assets. — Smith v. Ward, 15 Sim. 56. Testator devised freeholds and leaseholds to four persons, intending them to hold the same in trust for an alien, and shortly afterwards informed three of them of his intent ; and those three, at his request, wrote letters to him, acknowledging the intended trust. After his death, a suit was instituted by two of the devisees against the other two, the alien, the testator's next of kin, and the Attorney General, as representatives of the Crown, to have the rights of the parties declared. The court refused to make any decla- ration, except that the lands were not subject to any trust. — Biirney v. Macdonald, 15 Sim. 6. The testatrix being entitled to the sum of £2,000, secured by a promissory note which had two years to run, indorsed the note to Sarah Sargon. and sent it to her with a letter in the following terms : — " The enclosed note of £2,000 I have given to Mrs. Sarah Sargon for her sole use and benefit, independent of her husband, for the purpose of enabling Mrs. Sargon to present to either branch of my family, any principal or interest thereon, as the said Mrs. Sarah Sargon may consider the most prudent ; and in the event of the death of Mrs. Sarah Sargon, by this be- quest I empower her to dispose of the said sum of £2,000 and interest, by will or deed, to those or either branch of the family she may consider most deserving thereof. To enable Mrs. Sarah Sargon, my niece, to have the sole use and power of the said sum of £2,000, due to me by the above note of hand, I have specially indorsed the same in her favour." It being admitted that if this was a gift upon trust the trust could not be exe- cuted : — Held, that if was a gift upon trust, and that as the trust failed, the sum secured by the note constituted part of the testatrix's estate. — Stiibbs v Sargon, 3 Myl. & Cr. 507. Testator, after reciting that he was desirous of making a suitable provision for his wife, as well as for his daughter and grandchild ; in order to mark his unbounded confidence in his wife, and his belief that she would be actuated by the most tender regard towards his child, gave her all his property, for her own use, bejiefit and disposal absolutely, implicitly relying on her attachment to his daughter and grand-daug'nter. He then directed his executors to sell his property, and to invest the proceeds in government or real securi- ties, in his wife's name alone, or jointly with his executors, (with power to change the securities.) " To hold the same unto my wife for her own ab- solute use, benefit, and disposal. And whereas, I have, hereby, manifested abundant proof of en- tire confidence in my said dear wife, by thus giving her the sovereign control over the whole of my property, for her sole use and benefit, which she will duly appreciate accordingly ; but, in so doing, I, nevertheless, earnestly conjure her, under the advice of my executors, to proceed, forthwith, to make ample provisions, by deed or will, for our only child and grand-child." I'he will concluded with a power to the wife, who was executrix, and to the executors, to retain their expenses out of the testator's estate. Held, that no trust was created by the will, in favour of either the daughter or the grand-daughter.^ Winch v. Brutton, 14 Sim. 379. The testatrix drew a cheque on her bankers for £150 in favour of A., and she verbally directed A. to apply that sum, or so much of it as might be necessary to make up to a legatee the differ- ence in value between a legacy of £100, which the testatrix, by her will, had given to the legatee, and the price of a £ 1 00 share in a certain railway, the testatrix informing A., that she intended to give the share instead of the legacy, but she did not think it necessary to alter her will. The banlcers gave credit to A. for the £150. The testatrix afterwards died. In a suit for the ad- ministration of her estate. Held, that, no trust in respect of the £150, was created for the benefit of the legatee. — Hughes v. Stubbs, 1 Hare, 476. Testator bequeathed all his property, both real ,and personal to his son Charles, his heirs, execu- tors, &c., to and for his and their own use and benefit, well knowing he would discharge the trust the testator reposed in him, by remembering his (the testator's) sons and daughters, William, Edmund, Martha, &c. Held, that no trust was created for the sons and daughters, but that Charles took the property for his own benefit absolutely. — Bardsell v. Bardsell, 9 Sim. 319. Testator bequeathed £3,000 to trustees, in trust. For Investment. TRUST. For Investment, 473 after certain life interests, " for all the children of T. P. (except Thomas, the younger, William, Eebeoca, Elizabeth, Sarah, and Francis), equally to be divided between them, share and share alike ; the share or respective shares of such children to become vested interests in, and to be paid, assigned, and transferred to them respec- tively, as and vyrhen they should attain their respective ages of twenty-five years ;" provided that, if any of them died before their shares became vested and payable, leaving issue, their shares should go to their issue ; and trustees were directed, in the meantime, and until the shares of the children should become payable, assignable, and transferable to them, to apply the income for their maintenance. The testator also bequeathed £6,000 to the same trustees, in trust, after certain life interests, " for all and every the children of T. F., born or hereafter to be born, equally to be divided between them, share and share alike, and to be paid, assigned, and trans- ferred to them, at their respective ages of twenty- five years, and to be subject to the like descent to the lawful issue of such of them as shall die under the said age of twenty -five years, and mider the like conditions and restrictions, and vrith the like power to apply the interest thereof for their res- pective maintenance, and in all other points and respects, under and subject to the same rules, regulations, conditions, and restrictions as are hereinbefore contained, in relation to the several legacies hereinbefore given to, or in trust for, the said children respectively," provided that, in case any person to or in trust for whom any bequest, to take effect in remainder or reversion, or upon any contingency, was made, should sell or in- cumber his interest under such bequest, before the same should take efiect in possession, all the bequests in favour of that person should be void. By a codicil, the testator revoked a power which he had given, by his will, to the trustees, to apply for the advancement of the legatees, the whole or part of the capital of their legacies, before they attained twenty-five ; and directed that the lega- cies should vest in, and be payable, assignable, and transferable to them, as if no sach power were contained in his will. Held, that the trusts declared of both sums were void for remoteness. — Comport v. Austen, 12 Sim. 218. Testator devised his real estates to trustees, in trust for his son for life, and after the son's death, in trust to sell and stand possessed of the proceeds in trust for all his grandchildren, the children of his son and three daughters (whom he named) who should attain the age of twenty-four years. The son and daughters had children living at the testator's death, but none bom afterwards. Held, that the trust for the grandchildren was void for remoteness. — Newman v. Newman, 10 Sim. 51. H. — ^Fou Investment. A trustee having, under a settlement, a power of sale, with a trust for interim investment in the funds or on real security, concurred in a sale, and permitted the tenant for life to receive the pur- chase money, which was not invested according to the trust. Held, that the cestui que trust has not the option of requiring the trustee to replace the purchase money, with interest, or to buy such a sum of stock as the proceeds of the sale would have purchased if invested at the time. An alle- gation in the trustee's answer, that part of the purchase money had been laid out by the tenant for life in the purchase of an estate of which the plaintiff was in possession : — Held, not to consti- tute a ground for directing, by the decree, an inquiry as to the fact, the matter being properly the subject of a cross suit. — Reea v. WiUiarra, 1 De G. & S. 314. A. was tenant for life of a trust fund, directed to be invested in government or real securities, with a contingent remainder to his children, born and to be born, with remainders over. A. had three infant children. Held, that the solicitors of the trustees, as well as the solicitors of A. and his three children, were entitled to attend a refer- ence to the master, as to the propriety of investing the fund on a proposed mortgage. — Davis v. Com- bermere, 14 Sim. 402. If the master excludes one of the parties to a cause from attending him on a reference, the excluded party need not wait untU the master has made his report, and then except to it ; but may apply to the court forthwith, to reverse the master's decision. — Id. A trustee cannot, by contract, waive his right to resort to the life interest of a tenant for hfe, for the purpose of replacing a trust fund, which, in breach of trust, he has lent to the tenant for life. — Fuller v. Knight, 6 Beav. 505. A trustee, in breach of trust, lent the trust fund to A. B., the tenant for life. The trustee after- wards concurred in a creditor's deed, by which A. B.'s life interest was to be applied in payment of his debts ; and the trustee received thereunder a debt due to him from A, B. Before the other creditors had been paid, the trustee retained the income, to make good the breach of trust. Held, upon a biU tiled by the trustees of the creditor's deed, that this court would not prevent such an application. — Id. Where a trustee has trust money in his hands, which he is authorised to lay out in the public funds, or in real security, he is justified, pending the necessary delay, in completing a contemplated mortgage security, in investing the money in exchequer bills. — Matthews v. Brice, 6 Beav. 239. A trustee properly invested trust money in exchequer bills, but he left them unmarked and undistinguished, in the hands of a broker ; upon a misapplication of them by the broker, — Held, that the trustee was personally liable. — Id. A trustee was empowered to invest in the public funds or on real security. He had in his hands a sum, which, in the interval between receiving and investing in a contemplated real security, he invested in exchequer bills, which he left in the hands of a broker, who misapplied them. Held, that the trustee was liable for the value of the exchequer bills at the. time of the loss, and not for the stock which the money would have purchased. — Id. Husband and wife had a power to sell real estates, with the consent of the trustees ; the monies were, with all convenient speed, to be laid out in the purchase of other lands ; and until a convenient purchase could be eliected, it was made lawful for the trustees, with the consent of the husband and wife, to invest the money in government or real securities. A sale took place in 1811, and in 1816 the produce wa-i lent by the trustees on personal security. Held, that the trustees were liable for the stock which the money would have produced in 1816. Held also, that the trustees ought not to hiive consented to a sale, without first providing the mcdns of investing the purchase money.— ^^'(i«« v. Gridle- stone, 6 Beav. 188. 474 Implied — For Sale. TRUST. For Sale. If trustees are directed to invest trust money on government or real securities, and they do neither, they are answerable, at the option of the cestui que trust, either for the money or the stock which might have been purchased therewith. — Id. III. — Implied. Testator gave whatsoever personal property or effects he might die possessed of, after his debts were paid, or might become entitled to, to his wife, and appointed her sole executrix of his will. "And my reason for so doing, is the constant abuse of trustees, which I daily witness among men, at the same time trusting, she will, from the love she bears to me and our dear children, so husband and take care of what property there may be for their good ; and should she marry again, then I virish she may convey to trustees in the most secure manner possible what property she may then possess for the benefit of the children, as they may severally need or deserve, taking justice and affection for her guide," and at the con- clusion of his will, he gave the capital of his business to his wife, trusting that she would deal justly and properly to and by all their children. Held, that no trust was created for the children. — Pope V. Pope, 10 Sim. 1. Testator bequeathed his residuary estate to trustees, and after making a provision out of it for the benefit of his son for his life, and after the son's death, for his wife and children ; direct-^d, that if his son should assign or charge the inteiest to which he was entitled for life, or attempt or agree to do or commit any act, whereby the same or any part thereof might, if the absolute property thereof were vested in him, be forfeited to, or become vested in anj person or persons, then the trustees should pay and apply the said interest for the maintenance and support of his son, and any wife and child or children he might have, and for the education of such issue as the trustees should in their discretion think fit. Some years after the testator's death, the son became bankrupt. Held, that the trust for the benefit of the son, his wife and children was valid, and that the assignees were not entitled to any part of the provision. — Godden v. Crowhurst, 10 Sim. 642. When property is purchased by a parent in the name of his child, it is, prima facie, an advance- ment ; the implied trust in favour of the person paying the money does not in such case arise. This presumption may, however, be rebutted by evidence, manifesting an intention that the child shall take as trustee. — Sidmouth v. Sidmouth, 2 Beav. 447. IV.— PoR Sale. In the year 1801, on the occasion of the mar- riage of A., who was an infant, with B., articles were executed, whereby it was provided that certain estates situated in England, to which A., in common with her sisters, was entitled in re- mainder, expectant upon the decease of her father, M., who was tenant for life thereof, should, upon A.'s attaining her full age, be conveyed unto N. and O., upon trust, for the husband and wife, and the younger children of the marriage, and by whose articles it was provided that the trustees should have power, with the consent of A. and B., " to sell the whole or any part of the said lands to A.," and invest the produce in land or govern- ment securities upon the trusts therein specified. In 1804, upon A.'s attaining her full age, a set- tlement was executed according to the provisions of the articles, and the power of sale therein con- tained authorized the trustees to sell, with the consent of A. and B., " the whole or any part of the said A.'s estate and interest" in the said lands ; and B. Covenanted that he and his wife A. would levy a fine to enure to the uses of the settlement. In the year 1812, the estates in question, as well the remainder as the tenancy for life, were sold, the tenant for life consenting to receive a proportion of the purchase -money, equivalent in value to his life estate, according to the calculation of a notary. The sale was had without the intervention of the trustees, though with the full knowledge of one of them, N., as it was alleged, and the share of the produce to which A. was entitled, amounting to £6,330 was subsequently laid out on personal securities. In the year 1839, after the death of N., upon atreaty between O., the surviving trustee, and A. and B , and the plaintiff, who was the only younger child of the marriage, the plaintiff, and A. and B., fot valuable consideration, released N. from all claim and responsibility in respect of the trusts of the articles and settlement, and N. assigned to a new trustee for said parties the securities upon which the trust funds had been invested. On a bill subsequently filed by the plaintiff against O., and the personal representative of N., and others. Held, that there was no breach of trust com- mitted by the exercise of the power of sale in the lifetime of the tenant for life, inasmuch as upon the true construction of that power such an im- mediate sale of the estate in remainder was fully warranted. The sale in question ought to have been conducted by the trustees, but after so great a lapse of time, and there being no suggestion that the sale had been made at an undervalue, or that the produce was not forthcoming : — Held : — that the bill could not be supported. Generally speaking, where a sale has been made without the concuiTcnce of the trustees, if the sale has been a proper one, and the trustees have adopted it, the court will carry it into execution. — Blackwood v. Borrowes, 4 Dru. & W. 441. Testator devised his real estates to A., B. and C, in trust, that they or the survivor's or survivor of them, or the heirs of the survivor should, as soon as conveniently might be after his decease, but at their discretion sell the same ; and he empowered them and their heirs to make contracts with, and conveyances to, the pur- chasers, and declared that the receipts of them, or the sui-vivor's or survivor of them, or the heirs, executors or administrators of such survivor should be good discharges to the purchasers, and he directed that the then heirs, administrators and assigns should hold the proceeds of the sale upon certain trusts. A. and B. disclaimed, and C. alone acted. He devised the estates to M. and N., upon trusts affecting the same, After his death, M. and N. agreed to sell the estates to P. Held, that M. and N. were not entitled to execute the trust for sale, as they were the de- visees, and not the heirs of C. — Cookey. Crawford, 13 Sim. 91. Testator appointed three persons, and their respective heirs and assigns, his executors, and gave to them, and to their respective heirs and assigns, all his real and personal estates, in trust,for the purposes after set forth, and : — ^First : that tiiey For Children. TRUST. Trust Fund. 476 and their respective heirs and assigns should sell his real estates, and he empowered them and their respective heirs and assigns to convey the estates and to give receipts for the consideration money. He then requested the executors of his will to sell his farming stock, furniture, &c,, and out of the monies so arising, and all other por- tions of his personal estates, he required them and their respective heirs and assigns to pay all his debts, &c. One of the trustees and executors died. The two survivors agreed to sell the real estates. The court in a suit for a specific per- formance of the agreement, rejected the word " respective," and Held, that the two surviving trustees and executors could sell and convey the estates to the purchaser, and that the debts were charged on the proceeds of the real estates, and, consequently, that the receipt clause was tm- necessary. — Jones v. Price, 11 Sim. 557. An agreement by trustees of a will to grant an under lease of their testator's leasehold property is, prima facie, inconsistent with a trust for sale of it. There may be, however, circumstances to justify the agreement, but the court cannot enter into tlie consideration of those circumstances in a suit for the specific performance between the trustees and the under lessee, the cestuis que trust not being parties to it, — Evans v. Jackson, 8 Sim. 217. V. — For Children. N. A. made a will, with certain trusts, relating to his real and personal estate, and appointed trustees to carry them into execution. One of the trusts was for the payment of provisions of £2,500 for the younger children, and of £500 for the eldest daughter. R. A. B. was one of the executors and trustees under the will. An Act of Parliament was obtained to carry some of the trusts of this will into execution, and under this act, lands devised by N. A., were sold. The trustee under the act, was W. L. On a bill filed against him by the legatee of the £2,500, he sought to take advantage of the payment by him of that sum to R. A. B.. Held, that R. A. B.'s receipt was no discharge of W. L.'s liability as by the terms of the act, he was absolutely bound to pay the debts and discharge the children's portions, and it was not set up in the answer nor proved that R. A. B. had specifically received this money as trustee for his daughter. — Lawrence Y. Blake, 8 Clk. & Fin. 504. Testator bequeathed the residue of his personal estate to three trustees in trust, to pay, apply, and dispose of all the interest thereof for the mainte- nance, support, and benefit of his three children, and the survivors and sunrivor of them, in such shares and proportions, and in such manner as they should think most proper and advisable, and if all the children should die without leaving issue, then, that the trust fund should remain vested in two trustees, in trust for the persons thereinafter mentioned. Held, that the whole income of the residue was given for the children's benefit, and the trustees having applied only part of it for their benefit, that the surplus devolved on the survivor's death to his personal represen- tative. — Beevor v. Partridge, 11 Sim. 229. Testator gave all his property to his wife and two other persons, in trust, for the under-men- tioned purpose ; namely, to pay the income to his wife for the education and support of his children by her, and after her death, the property to be di- vided among his children ; and he gave his iiimi- ture, plate, &c., to his wife absolutely. Held, that the children were not entitled to the trust property on their father's death, but that their mother was entitled to the income for her life, she maintaining and educating the children out of it.— G!76er< V. Bennett, 10 Sim. 371. Testator gave whatsoever property or effects he might die possessed of, after his debts were paid, or might become entitled to, to his wife, and ap- pointed her sole executrix of his will. "And my reason for so doing, is the constant abuse of trus- tees which I daily witness among men ; at the same time trusting, she will, from the love she bears to me and our dear children, so husband and take care of what property there may be for their good, and should she marry again, then I wish she may convey to trustees, in the most secure manner possible, what property she may then possess for the benefit of the children, as they may severally need or deserve, taking justice and afiection for her guide." And at the conclusion of his will, he gave the capital of his business to his wife, trusting that she should deal justly and properly to and by all her children. Held, that no trust was created for the cliildren. — Pope v. Pope, 10 Sim. 1. Settlement of husband's estate on his marriage, in trust to pay the rents, &c., "unto and for the maintenance and support of the husband, wife, and children, or otherwise, if the trustees should think proper to permit the same to be received by the husband during his life without power to charge, &c.," on the bankruptcy of the husband. Held, that a trust had been created for the main- tenance and support of the wife and children out of the property during the husband's life. — Page v. IVay, 3 Beav. 20. VI.— Trust Fund. The executor of a surviving trustee declined stating whether he would or not, prove the will, and neglected for thirty-one days after notice, to transfer trust stock standing in the name of his testator. Held, that he was a trustee within the 1 Will. 4, c. 60, and a transfer was ordered to new trustees. — Cockell v. Pugh, 6 Beav. 293. A lady, whose title to a sum of stock depended upon there having been no issue of her marriage with her late husband, presented a petition stating that fact, and praying that the stock, (which had been transferred into court under the 10 & 11 "Vic. c. 96) might be transferred to her. The court, notivithstanding the petition was supported by affidavits, refused to make the order until the fact on which the petitioner's title de- pended had been found by the master. — Trustees of Woods' Settlement (In re), 16 Sim. 469. Testator gave £2,000 to trustees, in trust, for such of his nephews and nieces as should be livin"' at his wife's death, and the issue of such of them as should be then dead. Upon the wife's death, the trustees paid the £2,000 into court, under 10 & 11 Vic, c. 96. Afterwards, a petition was presented by certain persons claiming shares of the £2,000, as the issue of a deceased nephew of the testator, and praying to have their shares paid to them. The court, notwithstanding the peti- tioners submitted to bear the costs of the in- quiries, necessary to ascertain their title; consi- dered, that their costs ought to be borne by the testator's estate ; and also, that the petitioners might be entitled to interest on their shares ; and 476 When Parties Cease, ^c. TRUSTS. Declaration of. therefore, it directed the inquiries, but without prejudice to the petitioners' right to file a bill, and it reserved the consideration of costs, and ordered the trustees to be served with the order. — Sharpe's Trustees (In re), 15 Sim. 470. Stock standing in the joint names of surviving and deceased trustees, may be transferred by the survivors to the Accountant General, under the Trusts' Act, 10 & 11 Vic, c. 96.— /» re Parry, 6 Hare, 306. A married woman, having a general power of appointment over a reversionary trast fund, sub- ject to a previous life estate in another person, appointed it, by way of mortgage, with a power of sale, under which it was afterwards sold. Her husband became bankrupt, and after the'deter- mination of the life estate, the trustees paid the fund into court, under 10 & 11 Vic, c. 96. The purchasers thereupon presented a petition for a transfer of the fund to them ; the petition was only served upon the trustees. The court made the order, subject to a direction that it should not be' drawn up for a fortnight, and that the husband's assignees should be served with notice, that the fund would be transferred, if no objection were made within that period. — Ex parte Stutely, 1 De G. 8s S. 703. Where the bankrupt and his co-trustees had been guilty 'of a breach of trust, and a bill in chancery had been filed against them by the cestui que trusts for an account which suit was pending at the time of the bankruptcy ; the cestui que trusts were permitted to enter a claim for the amount due to them, without prejudice to the chancery suit ; and all dividends in respect of the claim were ordered to be transferred by the accountant in bankruptcy, to the credit of the bankrupt and of the suit. — Ex parte Stutely, re U'Neil, 1 M. D. & D. 643. Stock standing in the name of the bankrupt, in trust for other persons, does not pass to the assignees under the 72nd section of the Bankrupt Act, although, it is not entered in the name of the bankrupt as trustee in the Bank books. — Ex parte Witham, re Biddulph, 1 M. D. & D. 624. Where a bankrupt trustee has sold out stock, forming the trust fund, and converted the proceeds to his own use, proof may be made against his estate, either for the amount of the produce of the stock, or for the value of the stock at the time of his bankruptcy, as shall appear most for the benefit of the cestui que trust. — Ex parte Gurner, re Iveson, 1 M. D. & D. 497. VII. — Whek Parties Cease to be Objects or. A lease of a meeting-house was granted, in trust, for a congregation of Protestant Dissenters, who then met in a house belonging to J. A., in the town of S. The congregation was then in connection with the Secession Church of Scotland, and, consequently, professed the same doctrines, and adopted the same form of worship, govern- ment, and discipline, as that church. Some years afterwards, the minister .ind a large majority of the congregation separated from that connection, and joined another religious body, which pro- fessed the same doctrines, and used the same form of worship, but not the same form of govern- ment and discipline, as the Secession Church ; they, however, retained possession of the meeting- house. Held, that, on their separation, they ceased to be objects of the trust, and, therefore, were not entitled to keep possession of the meeting-house. — Broom v. Broom, 11 Sim. 352. VIII. — Executed. A. having lent B. £1,000, without taking any security for it, states to C. and his family, that the money had been held by him (A.) in trust for 0. Afterwards, B., becoming embarrassed in circumstances, and unlikely to repay the money, A., at the urgent solicitation of C., gives the latter his promissory note for the amount. Sub- sequently, B. dies insolvent, and without having repaid the mfl'ney ; then A. dies. In a suit for the administration of A.'s assets (there being no evidence to rebut the trust) : — Seld, that C. may prove the note agaiiist A.'s estate, as a valuable security. — Burkitt v. Ransom, 2 Coll. C. C. 395. A. B., the cestui que trust of money in the hands of a trustee, by deed, without consideration, directed part of the dividends to be paid by him for the maintenance of an infant, a stranger to A.' B.', and covenanted to indemnify him, and agreed to allow the- same out of the dividends of the trust fund. The trustee accepted the new trust, and acted upon the deed. Held, that there was a valid executed trust created, which A. B, could not revoke. — Bycroft v. Christy, 3 BeaT> 238. IX. — Declaration of. Trustees, with the consent of A. B., the tenant for life, had a power to sell the trust estate, and invest the produce in other real estate. In 1810, A. B., with the concurrence of the trustees, sold the estate for £8,440, and received the purchase money. About the same time (but whether with the concurrence of the trustees %vas not proved), A. B. purchased another estate for £17,400. Of the £8,440, £8,124 was paid by A. B., in part payment for the second estate; the remainder was paid, partly out of A. B.'s monies, and partly by money raised by a mortgage of the estate. The estate was conveyed to A. B. in fee. No acknowledgment or declaration of trust was ever made by A. B., and he retained possession of the estate till thirty years after, when he became bankrupt. The court, against A. B.'s assignees, presumed, under these circumstances, that the purchase had been made under the power for the benefit of the trust ; and Held, that there had been no such adverse possession, and no such acquiescence on the part of the trustees as to preclude the court making a declaration that they had a lien on the estate to the extent of the trust monies invested in its purchase. — Price v. Blake- more, 6 Beav. 607. A partner in a bank opened an account in one of the books of the firm, which was headed as follows: — "Dr., Mrs. L. S. (the name of his wife) for the education of Bryan, Laviiiia, Herman, and Robert S. (the names of his infant children) Cr." and he caused an accountable receipt to be signed by his co-partner on behalf of the firm ; pur- porting to be for £800 received from his wife for the education of his children, and that sum to be placed to the credit of the account so opened ; and his private account with the bank was debited with it. Held, that the transaction was a complete and irrevocable declaration of trust in favour of the children. — Stapleton v. Stapleton, 14 Sim. 186. A sum of £2,000 was, by the direction of H. O., carried by her bankers, to an account in the joint names of the plaintiffs, and H. O. as trustee for the plaintiffs. The bankers gave a promissory note for the amount, payable in four- Executory. TRUSTS. Presumed Acceptance of. 477 teen days, With interest at 2J per cent., to H. O., trustee for the persons therein named. After the death of H. O., her executors received from the bankers the sum secured hy the promissory note. Held, that the transaction amounted to a com- plete declaration of trust, and that the executor was a trustee for the plaintiffs, in whose favour the trust was declared. — Wheatley v. Purr, 1 Keen, 651. X. EXEOUTOKT, Upon a bill filed by two persons, pew-holders in a chapel and members of the congregation, and in virtue of certain offices which they held, entitled to be trustees of the chapel, on behalf of them- selves and all other persons interested, as such pew-holders and members, except the defendants, against the other persons entitled to be such trus- tees, and against the person in whom the legal interest in the lease was vested ; alleging, that the lease of the chapel was held upon an exclusive trust for religious service, according to the doctrines and discipline of the Church of Scot- land, charging the defendants with introducing preachers into the pulpit who were not ministers of the Church of Scotland, and with other acts in violation of the trusts ; and praying that the defendants might be compelled to per- form the trust. The court granted the reHef prayed — Holding : — First, that upon the evidence in the cause, the alleged trust was sufficiently made out. Secondly, that the acts complained of amounted to a breach of trust ; and. Thirdly, that the record was properly framed, with a view to the object of the suit. An amendment, making the plaintiffs in the original bill, sue on behalf of themselves and all other persons having the same interest, does not so alter the parties or the frame of the record, that depositions taken in the original suit cannot be used in the amended suit, — Milligany. Mitchell, 3 Myl. & Cr. 72. There is no difference between executory trusts, whether created by marriage articles, by a voluntary settlement, or by a vrill. In the latter case there is more difficulty in arriving at the conclusion that a particular trust is executory, for in the first case, the nature of the instrument establishes the fact ; in the latter, it must be collected from the nature of the disposition of the instruments. — Rotchfort v. Fiizmaurice, 2 Cru, & W. 1. Lord Le Despencer, being seised of the ancient barony of Le Despencer, in fee, conveyed real es- tates to trustees in trust,after the death of himself and his eldest son, to settle the estates to the use of such persons for such estates, and in such manner, that the same should, so far as the law would permit, be strictly settled, so as to go along with the dignity of Le Despencer, so long as the person possessed of the same dignity would be a lineal descendant of the settlor, and be held and enjoyed by the person, for the time being, pos- sessed of the same dignity, and being such lineal descendant, as aforesaid, and that, during every suspension or abeyance of the same dignity within the limits prescribed by law for strict settlements, the rents of the estates might be equally divided amongst the co-heirs, per stirpes, of the person or persons respectively, by reason of whose death or deaths without issue male, such suspension or abeyance should be, for the time being, occasioned. Held, that the above trust was not void for remoteness ; and the Master was directed to approve of a proper settlement accordingly. — Bankes v. Le Despencer, 10 Sim. 576. Estates settled so as to go along with a barony in fee. Form of settlement approved of by the court, in pursuance of a direction contained in a deed executed by the late Lord Le Despencer, that his estates should, so far as the law would allow, be strictly settled after his death, so as to go along with the baronial dignity of Le Despencer, (which was a barony in fee) and be held and enjoyed by the person, for the time being, possessed of the same dignity, for the support thereof, so long as the person possessed of the same dignity should be a lineal de- scendant of the late Lord, but with a provision that, in case the dignity should, at any time or times, within the limits prescribed by law for strict settlements, be suspended or in abeyance, the rents and profits of the same estate should, during the continuance of every such suspen- sion or abeyance, be equally divided amongst the co-heirs, per stirpes, of the person or persons respectively, by reason of whose death or deaths, without issue male, such suspension or abeyance should be, for the time being, occasioned, — Id. 11 Sim, 508, XI. — Pkesumed Acceptance op A person was named as a trustee in a marriage settlement of the year 1821, but did not execute or act in the trusts of it. Upon the death of his co-trustee, he, in 1844, refused to act in the trusts. After such a lapse of time, it must, in a petition matter, be presumed that he had accepted the trust. — In re Uniacke,l Jon. & L. 1. A person to whom, with others, a term of years had, in the year 1810, been bequeathed in trust, and who was appointed, with the other trustees, an executor of the vrill, was presumed to have accepted the trust, though he never acted in it, the will having been proved by the other executors, saving his right, and he not having ever disclaimed. — In re Needham, 1 Jon. & L. 34. A testator gave a legacy of £1,100 to two persons, upon certain trusts, for the benefit of his daughter and her children ; he then, after making some other devises and bequests, proceeded to give a messuage to the same persons, upon trust for his widow for her life, and after her decease to apply the rents for his grandson, H., during his minority, and to convey the messuage to H. at twenty-one, and he appointed his widow sole executrix. At the time of the widow's death, H. had attained twenty-one ; and afterwards, by a deed which recited the devise of the messuage upon the trusts of the will therein stated, the death of the widow, and that, in her lifetime, H. attained twenty-one, "whereby it became unnecessary for them to act in the trust declared by the will, and in fact they never intermeddled therein ; but, inasmuch as the legal estate in the said messuage was still out- standing in them by virtue of the recited will, they had consented, at the request of H., to convey such estate to him ;" the two persons named in the deed conveyed the devised mes- suage to H. Held, that the execution of this deed was, of itself, sufficient evidence that the persons who executed it had accepted and acted in the trusts of the •mH.—Urch v. Walker, 3 Myl. & Cr. 702. By a marriage settlement, a sum of money was 478 Ultimate TRUSTS. Por Public pufposeSt to be received by the trustees, and inrested in government or real securities, and the interest was to be paid to the wife for life, for her separate use, with remainder to the children. One of the trustees receives the money, and advances it to a partnership of merchants without taking any security. He receives the interest from the part- nership, and pays it over to the wife regularly up to the time of his death, afterwards the partner- ship pays the interest to the wife directly, and without the intervention of the surviving trustee. In the partnership books, the accounts relating to the whole transaction are entered, as between the wife and the partnership only. Upon the part- nership becoming bankrupt : — ^Held, that the partners constituted themselves directly, and not merely constructively, trustees, and that the proof on behalf of the trust estate might be made either against the joint estate or the separate estates. Qiuere : Whether there would have been a right of proof against the separate estates, if the firm had been constructive trustees only, or whether the term " constructive trust" is sufficiently definite to admit of any general rule being laid down upon the point. — Ex parte Wooden, 3 M. D. & D. 399. Xn. — How AFFECTED BY STATUTE OP LIMITATIONS. A testator who died in 1795, devised his real estates to trustees to sell, and out of the interests of the proceeds, and out of the rents of the estates, until they should be sold, to pay certain annuities, no payment had been made, in respect of any of the annuities, for more than twenty years before the bill was filed, but the trustees entered into possession of the estates on the testator's death, and the surviving trustee continued in possession until about eleven years prior to the fiUng of the bill. Held, that the plaintiff's right to the an- nuities was not barred by the Statute of Limi- tations. — Ward V. Arch, 12 Sim. 472. Sm.— Term. A testator bequeathed a leasehold for years upon certain trusts, and gave a sum of money to his executor, to extend the interest in the lands, if same could be accomplished. The executor did not make any attempt, during the continuance of the term, to obtain an extension of the lease. After it expired, the master reported that an ex- tension of the interest could have been obtained. Held, that the money should go according to the trust of the term. — O'Shea v. Howley, 1 Jon. & L. 391. XIV. — Ultimate. Testator directed his trustees to sell his real and personal estate, and to pay the interest of the proceeds to his daughter for life, and after her death, to assign the principal, and the parts of his personal and real estates remaining imsold (if any), to her children, when they should attain twenty-one ; and if his daughter should die without leaving issue, or, leaving issue, all of them should die under twenty-one, and without issue, then to assign the proceeds, and the parts of his real and personal estates remaining unsold (if any) to his personal representatives, his, her, or their heirs, executors, administrators, and assigns. The daughter, who was the testator's next of kin at his death, died without having had a child. Held, that, by "issue," the testator nieant " children ;" and that persons who were his next of kin at his daughter's death, were entitled under the ultimate trust. — Minter v. Wraith, 13 Sim. 62. XV. — For Public Purposes. In an agreement between King James I. and the City of London, in 1609, for a grant by the King, of lands in Ireland, to be planted and colo- nised by the City, it was stipulated that £20,000 should be advanced to be expended on the under- taking. Tilt City compulsorily levied that and other suras tor the same purpose upon the incor- porated companies of London. The King after- wards granted a charter, creating a corporation (the Irish Society), the members thereof to be, from time to time, appointed by the City for the management of the plantation, and to whom the lands were thereby granted for ever. The greater part of the lands was afterwards divided in seve- ralty between the companies, in the proportion of their contributions to the sums levied on them ; but the town lands, ferries, and fisheries were retained by the Irish Society, who, after applying part of the rents and profits towards the building of churches, schools, and other public purposes beneficial to the plantation, divided the surplus among the companies. One of these filed a bill against the Society and other parties, charging the Society, as trustees for the companies, with breaches of trust, in applying money among their own members large sums in gifts, and in payments of travelling and other expenses, and calling on them for an account. Held, that the Irish Society was constituted trustee for permanent public pur- poses, and had a discretion in applying the funds arising from the property retained to these pur- poses ; that, though the Society was accountable to the Crown for any neglect of duty in such trust, and also to the City of London for mis- conduct in the management of the property, it was not accountable to the companies. — Skinners' Company v. The Irish Society, 12 Clk. & Fin. 425. The Act 39 Eliz. c. 5, enables " all and every person and persons" to found hospitals for the poor, and to incorporate them. A municipal corporation is included in " every person and persons," £ind may exercise the powers given by the act. A voluntary conveyance of real estates to a charity is not defeated by a subsequent con- veyance for valuable consideration. Real estates conveyed to, and vested in a hospital, founded under the Act, 39 Eliz. c. 5, cannot be alienated by the hospital, nor can it confirm an alienation of them by the founders. A municipal corpo- ration voltmtarily founded a hospital under the 39 Eliz. c. 5, and purchased real estates, and caused them to be conveyed to the hospital, but which were kept under the control and manage- ment of the founders, who afterwards sold and conveyed them for valuable consideration, granting the purchasers covenants for title and indemnity against the claims of the hospital. The founders applied the money produced by the sale, together with other monies of their own, in the purchase of an estate at W., and they paid an- nually to the hospital more than the rents and profits of the sold estates. The hospital at first concurred in that arrangement, and acquiesced in it for one hundred and twenty years, after which the Attorney General and the hospitid by For Public Purposes. TRUSTS. For Puhlio Purposes, 479 information and bill claimed a portion of the estate at W., bearing the same proportion to the whole estate that the produce of the sale of the hospital estates bore to the whole purchase money of the estates at W, Held : — First, that the estates conveyed to the hospital were well vested in it, and could not be sold without an act of parliament, and, therefore, a decree directing the hospital to confirm the sale was in that res- pect erroneous. Secondly, that if the hospital's concurrence and long acquiescence in the ar- rangement for the sale of its estates were held to bar its right to recover them, or a commen- surate portion of the estate at W., the Attorney Generi's right to protect the charity still existed. — Mayor of Newcastle v. The Att. Gen., 12 Clk. & Fin. 402. If charity trustees are guilty of a breach of trust, the person thereby injured has no right to be indemnified by damages out of the trust fund. The law is the same in this respect, both in England and Scotland. — Feoffees of Heriot'a Hospitals. Ross, 12 Clk. & Fin. 527. In searching for the intention of a donor, which is the standard to govern the construction of a deed of gift, the facts : — ^First, That the gift is subject to the condition of making certain pay- ments to others. Secondly, That the forfeiture will be incurred by non-performance of that con- dition; and Thirdly, That the donee may be subjected to loss, by the performance of that condition, are insufficient to raise the presumption that, in case of the increase of the fond, the donor intended to give to the donee the benefit of that increase. A donor granted to the principal and professors of a college, certain lands, " upon the conditions hereinafter specified," to maintain three bursars, " according to the manner, measure and quality, and as the rest of the bursars of philosophy, presently in the said college already founded are educated and entertained," and im- posed as a condition, (the penalty for the breach of which was forfeiture), that the principal and professors should admit to the bursarships, the presentees of the donor and his family. Held, (reversing the judgment of the Court of Session), that this was a grant upon condition and not a mere trust, and that the principal and professors were entitled, after satisfying the conditions of the deed of gift, to appropriate to themselves any surplus arising from the lands thus giyea,— Jack V. Burnett, 12 Clk. & Fin. 812. In 1830, M., Archbishop of Cashel, with the consent of the Dean and Chapter, granted to the Corporation of Cashel, the town of Cashel, and also granted to the said corporation and their tenants, and all inhabitants of the said town, free pasture, in all his lands except meadows, &c. Subsequently the corporation became seised in fee of the soil of the lands over which free pasture had been so granted. There was not any evidence to shew the time or the manner in which the corporation became seised of the soil. Held, that inasmuch as the old right of pasturage in the lands of the corporation was affected, with a trust for the benefit of the inhabitants of Cashel, so the soil of the lands which were substituted for that right, was bound by the same trust, and that, whether the new right was acquired by usurpation or otherwise. — Att. Cen. v. The Cor- poration, of Cashel, 3 Dru. & "W, 294. The Statute of the 27 Eliz. c, 20, authorised the Corporation of Plymouth, to construct a water- course, or conduit for bringing a supply of &esh water from a distance to Plymouth for public objects, as for the supply of the ships and town, and to scour the haven. Mills were erected on the water course, and the corporation afterwards conveyed away a portion of their interest in the leat. Held, that the corporation had undertaken the performance of a public trust, and could not divest themselves of the means of fully executing it ; that the primary duty of the corporation was to provide for the public objects contemplated by the act ; and that the surplus water only, after satisfying the public purposes, could be applied to the use of the mills. The court also considered it to be doubtful whether the corporation could alienate the water course or any part for satis- fying their own debt. — Att. Gen. v. The Corpo- ration of Plymouth, 9 Beav. 67. By deeds executed in 1704, Lady Hewley con- veyed estates to trustees upon tru»t, to pay out of the residuary rents such sums, yearly or other- wise, to such poor and godly preachers, for the time being, of Christ's huly gospel, and to such poor and godly widows, for the time being, of poor and godly preachers of Christ's holy gospel, as the trustees, for the time being, should think fit, and to dispose of such sums, and in such manner, for promoting the preaching of Christ's holy gospel in such poor places as the trustees, for the time being, should think fit, and also, to dispose of such sums as exhibitions for educating such young men designed for the ministry of Christ's holy gospel, as the trustees, for the time being, should approve and think fit, and to dispose of the remainder of the said rents in relieving such godly persons in distress, being fit objects of her own and the trustees' charity, as the trustees, for the time being, should think fit ; and she directed, that when any one of the trustees should die, the survivors should elect in his place such a person as they, in their judgments and consciences, should think fit to be a trustee. By other deeds, executed in 1707, Lady Hewley conveyed other estates to the same trustees, parUy for the support of poor old people in an almshouse, for the management of which, she appointed other trus- tees, and after directing, that the trustees and managers should observe the rules which she should leave for the selection and government of the poor people therein, she directed the residue of the rents to be applied upon trusts, which were the same as those contained in the deeds of 1704. By the rules, left by Lady Hewley, to be observed about the qualifications of the old peo- ple for the almshouse, she ordered, that none be admitted but such as should be poor and piously disposed, and of the Protestant religion, and able to repeat by heart the Lord's Prayer, the Creed, the Ten Commandments, and Mr. Edward Bowles's Catechism. At the dates of the deeds, all religious sects, tolerated by law, believed in the Trinity, but, in the course of time, the estates became vested in trustees, of whom the majority were Unitarians, one being of the Church of England, and they applied the rents for the benefit of Unitarians, and that sect became tole- rated by law. Held, aifirming judgments of the Court of Chancery, on an information filed in 1830, that neither Unitarians nor members of the Church of England, but Protestant Dissenters only were entitled to the benefit of the charities, and that all the trustees were properly removed, as all had concurred in the misapplication of the charity funds.— SAors v. The Att. Gen., 9 Clk. & Fin. 366. The Irish Society Held, to be trustees for public purposes, and not accountable to the Com- 486 Deedi TRUSTS. Deed, parties of London, notwithstanding the latter were, after providing for the public objects, enti- tled to the surplus revenues of the estate vested in the former, — Skimier's Company v. The Irish Society, 7 Beav. 693. By an agreement, made in 1794, a plot of land and certain premises thereon, situate in Oldham- street, Liverpool, were vested in trustees, to be used as a place of religious worship, " according to the ordinances, rules, and forms of the Church or Kirk of Scotland;" and a subsequent con- veyance was made of the same land and premises to the trustees, " to be for ever, thereafter, appro- priated and used as a place of divine worship, according to the doctrines and discipline of the Church of Scotland." The premises were thence- forward occupied as such place of worship, and the office of minister or pastor of the congregation was filled from time to time by licentiators of the Church of Scotland, who were ordained and inducted by Presbyteries in Scotland. In 1833, a Lancashire Scottish Church Presbytery was formed, to which the Oldham- street con- gregation united themselves, and the Lancashire Presbytery and other Presbyteries in England, in 1836, united themselves into an English Synod, which was, in 1839, recognised by the General Assembly of the Church of Scotland. In 1842, a licentiate of the Church of Scotland, by license from the Presbytery of Greenock, was ordained and inducted as minister of the Oldham-street Church, according to the Presbyterian forms, by the Lancashire Presbytery. In 1843, certain ministers and members of the Church of Scotland adopted the name of the Free Church, and seceded from the Established Church, and were declared by that Church to be no longer ministers thereof. The English Synod declared its disapproval of the conduct of the Established Church of Scot- land, and its sympathy with the Free Church, recognising the latter as a sister church, and resolving to interchange ministers therewith. The Minister of the Church and the trustees of the premises in Oldham-street, co-operated with the seceders, by allowing ministers of the Free Church to officiate in the church in Oldham-street, and the minister who was deprived of his license by the Presbytery of Greenock, also continued to officiate. Held, upon motion, that the minister and the trustees had departed from the trusts, created by the original contract, upon which the premises in Oldham-street were vested in them ; and that the court would interfere by injunction, before the hearing, to prevent the premises in Oldham-street from being used otherwise than as a place of religious worship, on the model of the Church of Scotland, as established by law. — Att. Gen. v. Welsh, 4 Hare, 572. XVII.— Deed. A trust disposition and deed of settlement conveyed generally the truster's whole heritage to trustees, containing no precept of sasine, but surrogating the trustees in place of the truster, and binding him and his heirs to complete titles and convey to the trustees, he reserving to himself power to execute entails of parts of his. fee simple lands, declaring them to be sus- pended during the continuance of the trust, except as to rights of patronage, and he exe- cuted such entaUs with precept of sasine. After his death, the trustees named in the deed having declined to accept the trusts, the first heiress of entail made up titles, and was duly infeft heirc: s of entail. Trustees afterwards appointed by tne court, with her consent, and with all the powers given to those who declined to act, raised an ac- tion of constitution and declarator against the heiress of line, and called the heiress of entail as defender. Held, by the the Lords, (affirming the decree of the Court of Session, ) that it was not competent for the heiress of entail to oppose the completion of feudal titles, by the trustees, to the whole of the lands comprised in the trust disposition, and that they { provided they were duly appointed ) were entitled to a conveyance of the whole lands according to the intent of the trust disposition, but without prejudice to the rights of any party to the land.— Preston v. Mel- ville, 8 Clk. & I'"in. 16. The executio7i of a trust deed, for (among other things,) the payment of creditors does not con- stitute one of the creditors, who became so after the execution of the deed, and was not a party to it, a cestui que trust, entitled to call on tlie trustee to execute the trusts of the deed. A. executed a trust deed, appointing B., trustee for certain purposes therein stated, one of which was for the payment of creditors, and another was to raise a sum of money by way of mortgage, in order to satisfy a claim for rents due in respect of A.'s lands, then about to be enforced by ejectment. B. obtained from C, an advance of money, with which he satisfied this claim ; B. afterwards gave to C. a letter written subsequently to, but dated before the day of the advance, in which appearing to ask for the advance, he said " I will consider stich advance as raised by me under the power given me, and will, whenever you please, execute that power, by securing such advance in the best manner I am empowered by the deed." No security was ever executed by B. Held, that C. did not stand in the situation of a cestui que trust under the deed, and could not maintain a bill in equity, calling on B. to execute the trust of the deed. — La Touche v. The Earl of Lucan, 7 Clk. & Fin. 772. A tenant for life of considerable estates being greatly embarrassed, and unable to redeem a very valuable interest which was then under ejectment, entered into a treaty with B. for the loan of a sufficient sum to pay off the arrears of rent and costs. The parties not agreeing as to the form of conveyance to secure the "required loan, A. granted all his estates to C. upon certain trusts, and among others, to pay all quit-rent, head-rent, and arrears of rent in the first instance, and after- wards, to raise a sum of 10,000, as he should be advised ; the sum, when raised, to be applied in the payment of the arrears of rent and interest on incumbrances in the first schedule mentioned ; the arrear of head-rent was stated in the said schedule. Subsequently to the execution of this deed, and after l3ie first negociation had been broken off, a new treaty was entered into with B., and the money paid to him to the credit of the redemption cause, and A.'s valuable interest thereby saved. After this payment, and up to the death of A., there were various treaties as to the nature of the security to be given by A. ; and C, the trustee, addressed a letter to B.'s solicitor, written some months after the advance had been made, in which he said, if he could prevail on any client to advance a sum of £3,000 or £4,000, he would consider such advance as raised under his power, and would, whenever called upon, exercise that power. On the death of A., C, the trustee, refused to pay B. or give him any account ; Deed, TRUSTS. Construction. 48t \tr1ieTeupon, B, filed a bill to carry the trusts of the deed into execution. Held, that, in conse- quence of the dealings between the parties, B. was brought into such privity with the trust deed, that he was entitled to file a bill to carry the trusts thereof into effect. And on the refer- ence under the above decree : — Held, overruling the master's report, that C. was bound to allow the sum of £1,589 16s. Id., being arrears of rent accrued due under the trust deed, and recovered by D., a receiver over the same lands and pre- mises, under certain orders of this court, dated in the years 1828 and 1829 ; and that the master should have charged the same in his report, as against C. Held, also, that the application of the sum of £6,573 4s. 3d. in the report, found to have been received by C, save as to two sums paid in discharge of chief-rents, was a mis-appli- cation thereof { and that, under the account, as directed, the master should have chargd C. accor- dingly. — The Earl ofLucan v. La Touche, 2 Dru. & Wal. 271, 287. D., in the year 1799, entered into a trust deed, by which he demised all his estate to trustees for ninety-nine years, if he should so long live, upon trust ; in the first place to pay D, an annuity of £10,000 ; and, secondly, to apply the residue to audi of his creditors as should come in and take the benefit of that deed. In 1802, a bill was filed in England by the creditors, to carry the trusts of the deed of 1799 into execution, and for an in- junction to restrain D. from receiving the rents and profits. Proceedings were had in that cause to a decree, after which decree various ineffectual steps having been taken in 1827, a bill was filed in Ireland for a receiver, and to carry the English decree into execution. In 1832, a decree was pronounced in this suit refusing the relief, which decree was afterwards reversed by the House of Lords in the year 1834, and a receiver was ac- cordingly appointed. On a supplemental bill filed in 1836 by the creditors, who obtained the decree in 1834 against D., against an assignee of the portion of the annuity of £10,000, whose as- signment bore date in the year 1822, and an elegit creditor whose elegit issued in 1835 for an account of the rents received by D. over and above his annuity of £10,000, since the year 1803, and to have the payment of the same suspended until the amount found due on taking such account should be paid off. Held, that the equity arising from the breach of covenant on the part of D. could not affect D.'s assignee, he being a pur- chaser for valuable consideration, without notice, nor the rights of the elegit creditor, he having ex- tended the annuity for the payment of his demand prior to any step having been taken to enforce the equity. As to D., the bai was dismissed without costs, and without prejudice to the plaintiff's proceeding in the original cause. — Hoidditch v, Donegal (Marquess), 1 Dru. & Wal. 603. A sentence of outlawry upon flight bora a charge of felony, does not incapacitate the outlaw from directing, according to the terms of a pre- viously executed trust deed, the trustees as to the mode of carrying the trust into effect. — Macra v. Byndman, 6 Clk. & Fin. 212. The retention of a voluntary deed of covenant in the possession of the covenantor, and the absence of communication respecting it to the trustees and cestuis que trust, does not effect its validity.— /"fefcAer v. Fletcher, 4 Hare, 67. A debtor conveyed real and personal estate to a trustee for sale, with a declaration Hoi the proceeds of the sale should be applied by the trustee in satisfaction and discharge of the several debts and sums of money mentioned in the schedule to the conveyance, " and now remaining justly due and owing" by the debtor to the persons named in the schedule, " according to the priority, nature and specialty of such debts res- pectively." Held, upon the constructior. of the whole instrument, that a bond debt mentioned in the schedule with interest (the principal and in- terest not exceeding the penalty of the bond), was payable in priority to a simple contract debt mentioned in the schedule. — Passingham v. Selbtf, 2 Coll. C. C. 405. XVII. — Constkuotion; Persons who had obtained possession of mort- gage money under colour of being personal representatives, constituted by a joint will of husband and wife, and beneficially interested in part under that will, and with the assistance of an Executor's Court of Dealing in St. Croix, which appeared to have had, in fact, under the cir- cumstances of the case, no jurisdiction. Held, to be trustees of the money for the personal re- presentatives of the husband and wife, who claimed under their respective sole wills. — Price V. Dewhiorst, 4 Myl. & Cr. 76, Creditors by judgment and recognisances, although includett in a trust deed executed for their payment, are within the general order of the 22nd of June, 1842, when a suit is instituted in this court for carrying into execution the terms of such deed by sale. — Barvey v. Lawlor, 3 Dru. & W. 168. A. B. invested a sum of money, which was subject to the trusts of his marriage settlement, in the purchase of a real estate, and he added a sum of £500 of his own. Held, under the circum- stances, that he had devoted this sum to the trusts of the settlement for the benefit of the parties entitled thereunder. — Omeley \. Anstrut/ier. 10 Beav. 461. ' A testator, by his will, founded a charity, towards which he directed certain and definite Bums to be applied, and he devised estates to a company for that purpose. The will contained no express beneficial gift to the company. Held, however, under the circumstances, that the com- pany was entitled to the increased rents of the property after making the fixed payments TheAtt. Gen. v. The Grocer's Co., 6 Beav. 526. S. seised m fee of certain town lands, &c., in the counties of Meath and elsewhere, devised the same to W., for life, with remainders over; and expressed, by his will, a strong desire that B. should be continued as land agent, at the usual fees. Held, on appeal to the House of Lords, re- versing the decree of the court below, that the words contained in the will were insuificient to raise a trust, or render it, in any way, obligatorv on W., to retain B. as agent.-SAaw v. ilw&w, 1 Dru. & Wal. 512. ' Testator devised freeholds and copyholds to his son for life, and alter his decease, to his first and W»u ^.wU^y"^ ^^° ^-y^" t° M. C. for life,' Held, that the word " paying" created a charge and not a tTust.-Bodge v. Churchward, 16 Sim 71 A court of equity wiU declare and give effect to the adm^-'^^"'" r'' forfeiture is bicidental to 6 H^e"" °^ * txu,t.-Du»combe v. Levy, II 482 Construction. TRUSTS. Breach of. An hotel keeper dies intestatej leaving four children, upon which one of her daughters takes possession of the stock and effects, and continues the business for a short time, when she admits one of her brothers into partnership, and the two carry- on the business together in their own names for nearly two years, paying some of the intestate's debts as well as funeral expenses. The daughter then retires and assigns her share of the business to her brother, who carries it on in his own name for six months longer, when a joint fiat issues against the two. After their bankruptcy, one of the other children takes out administration to the intestate, and claims the property from the as- signees. Held, that this could not be considered trust property, but passed to the assignees under the clause of reputed ownership. — Ex parte Thomas, 3 M. D. & D. 40. A widow, by the settlement on her second marriage, settled £2,300, which had belonged to her first husband, in trust for her separate use for life, and declared, that subject thereto, the fund should, as and whenever she should think fit or be advised, be settled upon trust for the benefit of her daughter, and only child, by her first husband, and of her daughter's intended husband and child, and children, in such manner and for such rights and interest as should be agreed upon, either previous to or after her daughter s marriage, with her consent, and that she (the mother) should have full power to settle the fund or any part of it, in trust for the imm^iate benefit of her daughter and her child and children, in manner aforesaid, to take effect either upon such marriage or upon or immediately after her own death, as she should think fit ; but if the daughter should not be married in the mother's lifetime, and should survive her, then the fund should be as- signed to the daughter, at twenty-one, or on marriage ; but if the daughter should die in the mother's lifetime, without having been married, then the fund should be held in trust for the children of the mother's second marriage. Held, that a trust, and not a power, was created in favour of the daughter, her husband, and children, but that themotherif shethoughtfit,mightmodify the interest of the cestui que trust, on the daughter marrying with her consent. — Croft v. Adam, 12 Sim. 639. A. B. and the other committee-men of a public company mortgaged the company's estate, and covenanted, personally, to pay the money. They afterwards entered into a personal obligation, by bond, for another debt. A. B. died having cer- tain shares vested in him as trustee to the com- pany. By the decree, the shares were ordered to be sold, and the produce applied in payment of the debts of the company, for which the estate of A. B. was liable. Held, that the representatives of A. B. had a right to have the fund applied in payment of the bond debt in priority of the mort- gage debt — Lawrence v. Kempson, 7 Beav. 674. Testator gave all his property whatsoever, and wheresoever the same might be at his decease, to his wife for her absolute use for ever. Held, that an estate vested in the testator as a trustee passed by the devme.—Lidsell v. Thacker, 12 Sim. 1 rs. A testatrix gave her personal estate to B., for the benefit of B.'s daughters. B. invested the produce, together with £1,000 of his ovm monies, in the funds in his own name, and afterwards treated and admitted the aggregate fund as held in trust for his daughter. On the death of B., the fund was found mixed with like funds of his own. Held, that under the circumstances, there was sufficient to constitute a trust of the £1,000 in favour of the daughters. — Thorpe v. Owen, 5 Beav. 224. Trust for the support, clothing, and mainte- nance of an adult ; Held, to be a trust for his benefit generally, and to devolve to his assignees under the Insolvent Act, notwithstanding a provi- sion to the contrary in the will, by which the trust was created. — Tounghusbandy. Gisbourne, 1 CoU. C. C. 401. XVIII. — Satisfaction of. Where an estate is devised without any limita- tions of the quantity of interest, to trustees in trust for a limited purpose, with remainder to persons to whom the beneficial interest is given, the legal estate given to the trustees will cease on the satisfaction of the limited purpose, and will vest in the persons beneficially entitled in remainder. — Heardson v. Williamson, 1 Keen, 33. XIX. — Breach of. AVhere several defendants are involved in a breach of trust, the court, in decreeing relief in respect of it, decrees the costs of the suit against them all, on the principle of giving the plaintiff the greater security for the payment, and without regard to the relative degrees of culpability in the defendants. — Lawrence v. Bowie, 2 Phil. 140, A. and B., from whom land had been pur- chased by C, with a view to its being re-sold in building lots, on the land being conveyed to them, signed a paper writing purporting to be a memo- randum of an agreement between them relative to land, by which it was agreed, "that they should each advance half the purchase money and receive interest on the same at five per cent., and that they were to have each one third interest in the purchase, and to reserve one third of the profits arising therefrom for C, in lieu of his commission for purchasing, selling, surveying, valuing, and laying out the land in lots, or any other services that might be required of him ; but that it was clearly and distinctly understood, that C. should have no power or authority what- soever over the land, and that he should not be entitled to receive any compensation therefrom until the whole was sold and paid for." The land having afterwards greatly increased in value, A. and B. refused to recognise C.'s interest in the speculation, and offered him money compensation for his services, whereupon C, who had objected from the first, to the clause in the memorandum, which excluded him from all control, as incon- sistent with the original terms for which he had verbally stipulated, filed his bill for an immediate sale of the land, and the court being of opinion that the defendant by repudiating the trust as to C.'s share, had devolved upon the court the dis- cretion which they had, by the memorandum, eserved exclusively to themselves, as to the time of sale, declared C. entitled to one third, and re- ferred it to the master to enquire whether it would be for the benefit of all parties that the land should be sold. — Dale v. Hamilton, 2 Phil. 266. When one of several cestui que trust institutes a suit for relief in respect of a breach of trust, he is bound, in the conduct of the suit, to take care of the interest of the others as well as of his own. — Williams v. Powell, 2 Phil. 329. Breach of. TRUSTS. Breach of. 4S3 Trustees authorised to lay out trust money in the public funds or on mortgage, inyested it on a mortgage. The mortgage was paid off, and the amount was received by the tenant for life, who, contrary to the trusts, invested it in real estate. Held, that the cestui que trusts had the option of charging, the tenant for life, either with the sum sterling received or with the amount of 3 per cents., which might have been purchased there- with at the time the breach of trust was com- mitted. — Oiiselei/ V, Anstruthet't 10 Beav. 456. A. on her marriage, assigned a debt due to her from B,, to their trustees upon trust, when re- quested by her to call it in, and invest it, and hold it in trust for A., her husband, and children. B., •with full notice, but without such request, paid part of the money to the husband by order of the trustees, zind other part to the trustees, for the express purpose of being advanced to the husband in breach of trust. The money was lost. Held, that B., as well as the trustees, was responsible for breach of trust. — Andrews v. Bousjield, 10 Beav. 511. Part of a sum of money, which had been raised by a husband, upon the security of property com- prised in his marriage settlement, by means of a suppression of the settlement, was lent by him to the trustee of the settlement upon his bond, the trustee being ignorant of the means by which the money had been raised. After the death of the husband, the wife, who was entitled to a life interest in the settled property, with remainder to her children, took out administration to her husband, and filed a bill in her own name, and in the names of her children, by herself as their next friend against the trustee, who had in the meantime taken the benefit of the Insolvent Debtors' Act, praying that the sum due upon the bond, (which the widow as administratrix, offered to deliver up), might be replaced with interest iipon the trusts of the settlement. Held, that the widow and children, had a clear equity to follow the money in the hands of the trustee, and that they would have had the same equity, if instead of being a trustee he had been a stranger, and Semble, that such a claim would not have been barred by the trustee's discharge under the Insolvent Debtors' Act, even if it had been proved, (which it was not), that the bond had been included in his schedule. — Buckridge v. Glojise, 1 Cr. & Ph. 126. A testator bequeathed certain leaseholds to trustees, upon trust, out of the yearly rents and profits to pay an annuity of £300 to his wife, for her life, and, subject thereto, to apply certain sums for the maintenance of his grandson, A. T., until he attained the age of twenty-one, and then to permit his grandson, A. T., to take the profits thereof for and during his life ; and from and after his decease, to permit the person who, for the time being, would take by descent as heir male of the body of the said A. T., his grandson, to take the profits thereof until some such person should attain the age of twenty-one years, and then to convey the same to such person so at- taining twenty-one years ; but if no such person should live to attain the age of twenty-one years, then to permit such persons, successively, who, for the time being, would take by descent as heirs male of the body of B., the testator's son, to receive the rents until some such person should attain the age of twenty-one years, and then to convey the same to such heir meile first attaining that age, his executors, &c. ; and by the will, a limited leasing power over these leaseholds was given to the trustees, until some person should be entitled to an assignment of them. The tes- tator appointed the trustees to be executors of his will, and gave to one of them, E. K,, whom he directed should act as agent to the trust estate, an annuity of £100 per annum. B., the testator's son, died in his lifetime ; and at the death of the testator, in 1771, A. T., his grandson, and the testator's two daughters, were his sole next of kin. A. T., after he attained his age, continued to employ E. K. as his agent ; and, in 1 796, he granted to him a lease of part of the trust estate, not according to the conditions of the leasing power ; and this lease was expressed to be made, partly in consideration of the rent and covenants, and partly of the services rendered by the lessee, E. K. In 1800, six years after the date of the lease, it was assigned to B,. K., under whom the plaintiff claimed, in consideration of a sum of £2,900. Lord D., the eldest son of A. T., upon the death of his father, impeached this lease of 1795, and having obtained the legal estate, there- upon brought an ejectment, in order to defeat the lease. On a bill filed by the plaintiff, claiming as assignee, to restrain Lord D. from so proceeding: — Held, that E. K., being a trustee in the will, was not at liberty to take from the tenant for life a greater interest than he was authorised under the leasing power ; and that, in thus obtaining his beneficial lease, he was guilty of a breach of trust, and that the lease, consequently, could not be sustained. Held, also, that there was sufii- cient, on the face of the lease itself, to put the purchaser on inquiry as to the nature of the transaction between his vendor and the lessor ; and that, therefore, he must be treated as the lessor himself. — Ker v. Lmd Dungannon, 1 Dru. & W. 609. Trustees made personally responsible for the consequences of their neglect, to enforce a cove- nant contained in a marriage settlement. — Fenwick V. Greenwell, 10 Beav. 412. By a marriage settlement it was covenanted and agreed, that £5,000 consols, part of the wife's property, should be transferred to trustees, upon certain trusts, for the husband, wife, and children. At the time of the settlement, a sum of £4,946 was standing in the name of the wife, but the trustees took no steps to enforce a transfer, and it was sold out and misapplied by the husband. Held, that the trustees were personally responsible for the loss ; and, secondly, that they were not relieved from their liability by the trustee indemnity clause, declaring that they should not be liable " for any casual or involun- tary loss," without their wilful default, but " for such monies only as should actually come to their hands." — Id. In January, 1820, A. & B., who held more than a third of the shares in a Cornish mine, which was then a losing concern, and the shares were of very little, if any, value, became bank- rupt. At a meeting of the other shareholders, held in February, at which G., though not then a shareholder, was present, it was resolved, in order to prevent the mines from being abandoned, and the injury which the neigbourhood would sustain thereby, that a new company should be formed consisting of old adventurers, and of persons who might be inclined to purchase shares in the mine, and that for the security of the latter, the mine should be sold under a decree of the Court of Stannaries, and the debts of the mine paid with the proceeds. Shortly afterwards, G. was appointed assignee of the bankrupts; and 484 Breach of. TRUSTS. JBreaoh of. then, in order to avoid the responsibility of con- tinuing to hold their shares, he relinquished them under counsel's advice. Afterwards, the shares were disposed of amongst old and new adventurers, and Gr., who had proposed to the trustees for the defendant, then a minor, to take some of the shares, agreed to take eleven for himself and friends ; and about the same time, the trustees authorise him to take four shares for the defendant. The mine was afterwards sold in the Court of Stannaries, to (J., on behalf of the new company. The purchase money was paid into court, and then applied to pay the debts of the mine. Soon afterwards, the defendant came of age ; and his agents paid G. for the four shares at the rate at which he had purchased the eleven, and the four shares were transferred into defendant's name. The mine continued to be a losing concern to the new company, until after they had prevailed on the defendant, who was the owner of the freehold, to accept a surrender of the lease under which it had been held, and to grant a new lease at reduced dues, and in- cluding new mining ground. Afterwards, G. •was removed from the assigneeship, and a re- newed commission was issued, under which the plaintiff was chosen assignee of the bankrupts, notwithstanding the term granted by the old lease had long expired, and the defendant had no knowledge of the bankruptcy, and fifteen years had elapsed, during which there had been a large expenditure on the mine. The court declared the defendant to be a trustee of his shares in the mine, including the new ground, and decreed him to account for and pay to the plaintiflF, the profits thereof. — Turner v. Trelawney, 12 Sim. 49. Where trustees for sale sell the trust property, and place the conveyance executed by them, and in having their receipt indorsed in the hands of a solicitor, who receives and misapplies the pur- chase money, they are liable for a breach of trust. —Ghost V. Waller, 9 Beav. In a suit by children against trustees to make them liable for a breach of trust, it was alleged by the trustees that their co-defendant, the tenant for life, had concurred, the decree was made against the trustees without prejudice to any right or remedy, they might have against the tenant for life. — Meyer v. Montrion, 9 Beav. 521. The money due in respect of a breach of trust, ■where the trust is created by instrument under seal, is a specialty debt. — Wood v. Hardisty, 2 Coll. C. C. 642. Half of a trust fund held on the trusts of a settlement of 1778, was resettled by a settlement of 1791, In a suit to administer the trusts of the settlement of 1778, that half was in the year 1809, ordered to be transferred to the trustees of the settlement of 1791. The transfer was never made, nor was it ever applied for by the trustees of the settlement of 1791. In 1827, the parties beneficially entitled under the settlement of 1791 were adult and sui juris. The then present in- vestment of the trust fund was, as it had been for many years before, an investment in India, subject to the control of the trustees of 1778, but those trustees were and had long been in England. The parties so beneficially entitled knew of, and acquiesced in, the investment, and never required that their half of the fund should be transferred to the trustees of 1791. The trust fund was afterwards lost by the failure, in 1830, of a house of business in India. Held, that the parties beneficially entitled were precluded from in- sisting that the trustees of 1778 were liable to make good the loss by reason of their not having made the transfer to the trustees of 1791 . Trustees in England Held liable for the loss of a balance of money which they knew to be in the hands of a house of business in India, and not invested upon proper securities, although the ceatuis qtie trust had consented that the house in India should have the management of their affairs there, for it did not appear that the cestuis que trust knew that the balance, instead of being properly invested, remained in the hands of the house in India. Distinction between the degree of know- ledge and sanction necessary to exonerate trustees from a breach of trust, and that which is neces- sary to preclude the cestuis que trust from com- plaining of an omission, which, if concurred in by the cestuis que trust, did not constitute a breach of trust. — Munch v. Cockerell, 5 Myl. & Cr. 179. As to the liabilities of executors, who were directed to buy an estate within twelve months, which, though able, they neglected to do, whereby the trusts thereof failed — Qtuere, — Ujy'ohn v. Upjohn, 7 Beav. 59. An agent assisting in a breach of trust, is per- sonally responsible. — The Ait. Gen. v. The Cor- poration of Leicester, 7 Beav. 176. A municipal corporation were trustees of a charity. They permitted their town clerk to receive and retain the trust monies, instead of seeing it applied to the purposes of the trust. Held, that the Corporation and the Town Clerk were liable for the breach of trust. — Id. Executors employing an auctioneer, and who became insolvent, and deposit lost : — Held, under the circumstances not personally responsible.— Edmonds y. Peake, 7 Beav. 239. Where a trustee neglects to invest on real or Government securities according to the trust, the cestui que trust has the right of selecting, whether the trustees shall be answerable for the money, or for the stock. — Ames v. Parkinson, 7 Beav. 379. An executor and trustee, directed to invest a legacy on mortgage, may properly appropriate one of the testator's mortgages in payment of the legacy, but he must ascertain its sufficiency. — Id. A trustee, having the option of investing on mortgage, or Government security, improperly took an insufficient mortgage security ; being held answerable, the court decided, that having exercised his discretion, though improperly, he was answerable for the money lost, and not for the stock it might have produced. — Id. Executors directed to convert and invest the testatrix's property, allowed to be enjoyed in specie by the tenant for life. Three years after her death, they accounted for the value, and paid it into court. Held, that they ought to pay interest from the death of the tenant for life, to the day of such payment. — Mackenzie v. Taylor, 7 Beav. 467. Infant cestuis que trusient are entitled to a sum of stock standing in the names of trustees, subject to a life interest in their mother, and to a power of appointment which has not yet been exercised. The trustees are charged with having sold the stock, and advanced the proceeds to the father of the cestuis que trustent; and in a chancery suit, instituted by the infants, the trustees are ordered to pay into court the amount which, by their answer, they admit they received upon such sale. They do not comply with the order, but become insolvent, and one becomes bauktupt. HeM, Breach of. TRUSTS. Breach of. 485 that the cestuis que truatent were not entitled to an order to prove against the estate of the latter, either for the value of the original sum of stock, or the sum ordered to be paid into court ; but only to an order to go in and make such proof as they could establish ; the dividends, on the proof, being payable into court. — Ex parte Coles, 3 M. D. & D. 327. If trustees are directed to invest trust money on government or real securities, and they do neiAer, they are answerable, at the option of the cestui que trust, either for the money or the stock which might have been purchased therewith. — Watts V. Girdlestone, 6 Beav. 183. Husband and wife had a power to sell real estates, with the consent of the trustees ; the monies were, with all convenient speed, to be laid out in the purchase of other lands ; and until a convenient purchase could be effected, it was made lawful for the trustees, with the consent of the husband and wife, to invest, the money in government or real securities. A sale took place in 1811, and in 1816, the produce was lent by the trustees on personsd security. Held, that the trustees were liable for the stock which the money would have produced in 1816. Held, also, that the trustees ought not to have consented to a sale, without first providing the means of investing the purchase money. — Id., 6 Beav. 188. A trustee cannot, by contract, waive his right to resort to the life interest of a tenant for life, for the purpose of replacing a trust fund which, in breach of trust, he has lent to the tenant for life.— Faifer v. Knight, 6 Beav. 205. A trustee, in breach of trust, lent the trust fund to A. B., the tenant for life. The trustee afterwards concurred in a creditor's deed, by which A. B.'s life interest was to be applied in payment of his debts ; and the trustee received thereunder a debt due to him from A. B. Before the other creditors had been paid, the trustee retained the income, to make good the breach of trust. Held, upon a bill filed by the trustees of the creditors' deed, that the court would not pre- vent such an application. — Id. Where a trustee has trust money in his hands, which he is authorised to lay out in the public funds or on real security, he is justified, pending the necessary delay in completing a contemplated mortgage security, in investing the money in exchequer bills. — Matthews v. Briee, 6 Beav. 239. A trustee properly invested trust money in exchequer bills, but he left them, undistinguished, in the hands of a broker ; upon a mis-application of them by the broker : — Held, that the trustee was personally liable. — Id. A trustee was empowered to invest in the public ftmds or on real security. He had in his hands a sum, which, in the interval between receiving and investing in a contemplated real security, he invested in exchequer bills, which he left in the hands of a broker, who misapplied them. Held, that the trustee was liable for the value of the exchequer bills at the time of the loss, and not for the stock which the money would have purchased. — Id. A testatrix gave her personal estate to A. and B., subject to debt and legacies upon certain trusts, and she appointed A, alone executor. A fund over which the testatrix had a power of ap- pointment was transferred into the names of A. and B. A., the executor, representing that a con- siderable part of the fund was wanting to pay debts and legacies, induced B. to join in setting out the fund, promising to give a mortgage security for what might not be wanted for debts, &c. A. received the whole, but applied a very inconsiderable sum in payment of debts, &c. Held, that B. was liable to replace so much of the stock as had not been applied in payment of debts, &c., and to accoimt for the dividends. — Eewett V. Foster, 6 Beav. 259. A., B. and C, executed to a banking firm, con- sisting of E., F. and G., a power of attorney empowering them "jointly and severally," to receive the dividends, and to sell out the stock itself. The power was sent by the bankers to their broker, who deposited it with the Bank of England. F. alone clandestinely sold out the stock, but the firm had credit for the proceeds. The sale was concealed, and the amount of divi- dends for some time accounted for. Held, that F. was liable for the sale, though it had taken place after the death of E. and G., and that he would have been equally liable, though the proceeds had not been placed to the credit of the firm. — Sadler v. Lee, 6 Beav. 324. Bankers of trustees wrongfully sold out stock, and applied it to their own purposes. Held, that the meausre of their liability, was the amount paid in replacing stock. — Id, Bequest of chattels real, to trustees, to erect such montmient as they should think fit, and build an organ gallery. The first object was valid, the second invalid, under the Statute of Mort- main. Held, that the trustees were wrong in applying the whole to the first object, and an in- quiry was directed to apportion the gift. — Adnam V. Cole, 6 Beav. 353. A trustee entered into a contract for the sale of trust property, and it was agreeed that the purchaser should, out of the purchase money, re- tain a private debt, due to him from the trustee. On a bill by the trustee ; — Held, that this court would not decree the specific performance of such a contract. — Thompson v. Blackstone, 6 Beav. 470. Part of a testator's assets consisted of a pro- missory note. The executor, though requested by the parties interested so to do, neglected to get it in ; and about two years afterwards it was lost by the insolvency of the debtor. Held, that the executor was personally liable. — Caney y. Bond, 6 Beav. 486. The executors of a deceased trustee, having admitted the receipt of assets, which would have been sufficient to satisfy a particular breach of trust committed by their testator, besides hia other debts. Held, chargeable with the loss oc- casioned by such breach of trust j although they had paid all his debts of which they had any knowledge, out of the assets, and had distributed the whole surplus among the residuary legatees many years before, and at a time when they had no notice of the breach of trust or of any claim in respect of it. — Knatchbull v. Fearnhead. S Mvl & Cr. 122. ' In 1806, a husband at Calcutta, being desirous of making a provision for his wife and the issue of the marriage, entered into a bond to A., for payment to him of £10,000, and he, at the same time, conveyed an estate, in the East Indies to A., upon trust to sell it and raise the £10,000, or so much of it as the estate would produce ; and It was provided, by the deed of conveyance, that as soon as A., his executors, &c., should have realised the net and clear sum of £10,000, by means of the sale or of the bond, and should at the request and direction of the husband and wife, or the survivor, in writing first made for that 486 Breach of. TRUSTS. Breach of. purpose, have remitted the same to England, to B., C, and D., in the best, and as to him his exe- cutory, &c., should seem, the most eligible manner, he should stand discharged of the trusts, and should not be answerable for the payment of the bills iri which the same should be remitted, and . it was declared that B., C, and D., should in- vest the money in government or real security, upon trust for the husband for life, with remainder for the wife for life, with remainder for the children of the marriage ; and that A., until the sale, should be seised of the premises, and after the sale, and until the monies should be remitted, should be interested in the proceeds, upon the same trusts as were before declared, concerning the £10,000 to be remitted to the trustees. The property was sold in the year 1811, for one hundred and forty -five thousand sicca rupees, and the purchase money was, in 1813, received by A.'s house of business in Calcutta, who were the agents of the husband, and who then, by the direction of A., set apart eighty thousand sicca rupues, being then equal in value to £10,000 sterling, and carried the same to the account of A. and another person as trustees of the settle- ment, and held the remainder of the purchase money to answer the husband's drafts. In 1818, A. retired from the house of business ; in 1825, he died ; in 1826, the husband requested the sur- viving partners of A., to invest the eighty thousand sicca rupees in a note of the East India Company, which they did, in the names of their film. In 1827, the husband died. In 1832, the wife required A.'s executors, who were in England, to procure a remittance of the £10,000 to England ; whereupon, they directed the house of business, to transmit that amount in bills, payable to B. and D., C, being dead. The house of business there- upon, sold the note of the East India Company, and drew a bill upon their correspondents m London, payable to A.'s executors ; but before the bill became due, both the house in Calcutta and their correspondents' in London, had failed, and the bill was never paid except as before mentioned. No request was ever made by the husband and wife, or the survivor, to remit the money. Upon a bill, by the children of the mar- riage against A.'s executors, it was Held, that A.'s estate was liable to make good the sum of £10,000 sterling. — Bacon, v. Clark, 3 Myl. & Cr. 294. The transfer by an executor of the trade of his testator, and of the premises in which it was carried on, which were of small value, to a third party, who afterwards continued the trade for his benefit; Held, under the circumstances, not to be necessarily a breach of trust. — Portlock v. Gardner, 1 Hare, 594. Where upwards of twenty years had elapsed after an executor had settled the accounts of his testator's estate with the residuary legatee, and had given up all interference in the trust, it was Held, that the onus was on the residuary legatee to prove that the conduct of the executor, wliioh might have been a breach of trust, was so in fact ; and that the onus was not shifted by an admission that the account was settled on a misunder- standing of the rights of the parties, by which the residuary legatee was prejudiced. — Id. A court of equity will not, after a great lapse of time (as of more than twenty years) and where no actual fraud is proved, enter into enquiries for the purpose of raising an implied trust against the defendant ; although the same lapse of time would be no bar to a claim founded upon an express trust. — Id. A trustee, having power to vary trust funds, admitted he had sold out trust funds, but did not show how the produce had been invested. Held, on such an admission, that he was liable to make good the fund. — Meyer v. Montrion, 5 Beav. 146. A corporation voluntarily founded a hospital, under the 39 Eliz. c. 5, and procured real estates to be conveyed to it, which, however, were sub- sequently managed by the founders. The founders aftuTwards sold the hospital property, and con- veyed it, for valuable consideration, to the pur- chasers, giving them an indemnity ; and they applied the purchase money, together with other monies of their own, in the purchase of the W. estate. The founders accounted to the hospital yearly, for more than the rental of the estate sold. Held, that the hospital was entitled to such a proportion of the W. estate as the pur- chase money of the charity estate contributed towards the purchase of the W. estate. — Att. Gen. V, The Corporation of Newcastle, 5 Beav. 307. Consols were settled to the separate use of the wife for life, with a power to appoint it by will ; and the settlement contained a power for the trustees, with the consent in writing of the wife, to alter the securities. The trustees, without such consent, sold the consols, and invested the pro- duce in long annuities, which they afterwards sold, and lent the money on bond, which was afterwards received by the husband, who invested it in leaseholds. The wife received the long amiuities until sold, and afterwards joined her husband in executing a deed, reciting that the sale of the long annuities, and the subsequent investments, had been with her consent. Held, that the appointees of the fund under her will were entitled, as against the husband and trus- tees, to have the consols replaced j and that the interest, over Avhich the wife had a general power of appointment, was not liable to make good the breach of trust. — Kellaway y. Johnson, 5 Beav. 319. Since the Orders of August, 1841, it is not necessary to make all the persons committing a breach of trust parties to a suit for its restitution. —Id. Where property is devoted to trusts which are to arise at a future time, and be exercised by the trustees, who are not yet in esse, any intermediate act done by the holders of such property incon- sistent with the security of the property, or the jierformance of the trusts when they shall arise, will be set aside, and if the trusts are of a public nature, the court will entertain this jurisdiction upon an information by the Attorney General, notwithstanding that the trustees, after they have come into esse themselves, decline to interfere.— Att. Gen. v. Aspinall, 2 Myl. & Cr. 613. A father, on the marriage of his daughter, agreed to pay, by way of portion, a sum of money to trustees, to be held in trust for the husband, daughter and children of the marriage in succes- sion. The trustees named in the settlement having refused to act, the father paid the money to the husband. Held, that the payment was wrongful, and the money having been lost, that the father was Held liable, at the suit of a child of the marriage, to pay it a second time. — Evans V. John, 4 Beav. 35. A trustee wilfully applying trust monies to his own use is chargeable, with interest, at 5 per cent. ; but, where, under the trusts of a doubtful will, the tenant for life, who was also a trustee, neglected to make proper investments, she was Held chargeable, with interest, at 4 per cent. Breach of. TRUSTS. Breach of. 48'; only, and the decree was made without costs. — Mousley V. Carr, i ]3eav. 49, The court will not enforce a contract involving a breach of trust. — Wood v. Richardson, i Beav. 174. Two executors, permitting their co-executor to retain in his heinds the ascertained residue, Held liable as for a breach of trust. — Lincoln v. Wright, 4 Beav. 427. Inquiry refused as to the concurrence of cestui que trust, where it was not alleged by the answer, and was imsatisfactorily proved by the evidence. —Id. Executors liable for the default of their co- executor, who had become bankrupt; Held, entitled, upon payment by them, to the benefit of the proof in bankruptcy against his estate. —Id. By a settlement made in India in 1778, the trustees were directed to invest a certain sum of rupees in good public or private securities at the highest rate of interest that could be obtained upon certain trusts, imder which one of the daughters of the marriage became entitled to a moiety of the fund after the death of her father and mother. The fund was accordingly invested in notes of the Indian Government, and those notes were deposited with Palmer & Co. of Calcutta. On the daughter's marriage in 1791, her moiety of the fund was assigned to other trustees, in trust, after the deaths of her father and mother, to receive and lay out the same in such of the public stocks, or parliamentary funds, or other securities (private personal security only excepted) as the daughter and her husband should appoint. After the father's death the mother filed a bill against the trustees of the two settlements, and her daughter, and her husband, to have the trusts of 1778 carried into execution. By the decree in that suit, made in 1 809, at which time the mother was dead, certain arrears o/ interest on the fund were ordered to be paid to the mother's representative ; and the daughter's moiety of the fund was declared to have vested in the trustees of the settlement of 1791, upon the trusts thereof, and was ordered to be paid to them accordingly. The trustees of 1778 did not comply with that decree, but allowed the notes to remain in the hands of Palmer & Co., who failed in 1830, having previously received the , amount of the notes. Held, that the tmatees of 1 778 were responsible for the loss. Held, also, that although the cestui que trust knew and ac- quiesced in the mode in which the fund had been invested, and dealt with and approved of its re- maining under the management of Palmer & Co. Yet, as the trustees were aware that Palmer & Co. were in pecuniary difficulties some time before they failed, but did not inform the cestui que trusts thereof, the acquiescence did not exempt the trustees from their liability. — Munch v. Cockerell, 9 Sim. 339. An act of parliament empowered a rector, with the consent of the bishop who was patron of the living, to raise money by annuity for building a new rectory house, the plan and the accounts of which were to be approved of by the bishop. The bishop advanced the necessary money and obtained a grant of an annuity charged on the living. Held, though there was no unfairness, that the transaction, on principle, could not stand. — Greenlaw v. King, 3 Bear. 49. A rector was empowered by act of parliament, with the consent of the bishop, to raise money by way of annuity on lives, for the purpose of building a new rectory house, and to charge th( same to the rectory. The bishop himself ad- vanced the money; the annuity was granted, and was paid by the rector until his death, the sums thus paid amounted to the sum advanced, with lawful interest. At the suit of the succeed- ing rector, the transaction was set aside on the ground of the equitable incapacity of the bishop to become the purchaser of the annuity. Held, that the plaintiif had a right to avoid the annuity altogether, and that the defendant was not enti- tled to have it ascertained what was a proper an- nuity to have been granted, and to charge tlie succeeding rector with his proportion thereof. — Greenlaw v. King, 3 Beav. 49. A testator appointed two trustees, and gave them a power of making advancements to their children, and he directed if either declined to act, a new trustee should be appointed. One alone (the mother of the children; acted, and made, as was alleged, advancements without the concur- rence of the other trustee or the appointment of a new trustee. Held, that the proper discretion had not been exercised, and that no enquiries could be directed as to the alleged advancements with a view to their being allowed. — Palmer v. Wakefield, 3 Beav. 227. A widow was absolutely entitled to legacies of £3,500, of which her husband, by his will, pro- fessed to give to her and her children £2,500, which he directed to be invested in the funds or real securities. He gave his widow other benefits out of his own property. The widow received the money and invested it in the funds, but treating it as her own, she afterwards sold it out and applied it to her own use. A case of election arose on the will, but it did not appear when she had elected. Held, that the widow electing to take under the will, was responsible for £2,500 only, and not for the stock purchased therewith. —Id. Bequest of consols to A. B., a feme covert, to be transferred to her in her own name, and the interests to be for her separate use, the principal to remain in trust of the executors till the youngest of her children attained twenty-one, when the principal was to be her own, or in case of her demise, it was to devolve to her husband. The trustees, on the death of testatrix, transferred the fund to A. B., and she and her husband afterwards sold it out, and they both signed the transfer. Held, that a breach of trust had been committed, but that A. B. had made a valid dis- position of the dividends which might accrue previous to her youngest child born after the death of the testatrix, attaining twenty-one. CrosSy V. Church, 3 Beav. 485. A person knowingly inducing trustees to lend trust money to his debtor, on a security not war- ranted by the trust, in order that when advanced such person may obtain payment thereout of his debt, is accountable to the cestui que trtist. Fgler v. Fyler, 3 Beav. 650. Solicitors knowingly procuring trustees to com- mit a breach of trust for their benefit, must be considered as partakers in the breach of trust. Id. Trustees investing money on an unauthorLsed security are responsible for any future loss, trace- able to that first error. — Id. A trustee who was not authorised to lend the trust money on leasehold security, applied to his solicitor to procure an investment for some trust money, so as to produce a larger income. The solicitors had a client who was conslderablj 488 Breach of. TRUSTS— TRUSTEE. JSt'ifhts and Duties of. indebted to them, and who wanted to borrow money on leasehold security, and they proposed it to the trustee. The trustee personally took measures to ascertain the value and validity of the security, and thereupon advanced tne money which was paid to the solicitors, and carried to the credit of their debtor's account. The solici- tors acted on behalf of the borrower, and to some extent for the trustees, but another solicitor acted also for Mm, and for one of the cestui que trvsts in the matter. The solicitors had notice that the fund was trust money in which infants were interested, but had no knowledge of the trusts, or of the limited power of the trustees. The security turned out ample, but part of the trust funds were afterwards lost by being trans- ferred to a similar security of the same party. The lending on leaseholds being a breach of trust. Held, that the solicitors were not liable to the cestui qtie tntsts for the loss. In the answer to a bill for relief in respect to a breach of trust, it was alleged that some of the cestui que trusts had assented thereto. Held, that the parties sought to be charged were entitled to an enquiry. — Id, Two executors were directed, after making some annual payments, to invest and accumulate the surplus. One of the executors received the dividends of stock for several years and mis- applied them, but it did not appear that the oilier executor had any knowledge thereof. Held, that the latter was not answerable for the breach of trust. Two executors sold out stock, and the produce was received by one. Held, that the other was responsible for its misapplication, but was enti- tled to an enquiry whether any part had been applied in discharge of claims against the testator. — Williams v. Nixon, 2 Beav. 472. An obligor of a bond, after notice that it had been assigned on trusts, of the particulars of which there was no proof of his being cognisant, made payments to parties not entitled thereto, some by order of the trustee, and some to the executrix of the obligee, without such order. Held, that the obligor was not responsible to the cestui que trust for the former, but was liable to repay the latter. — Roberts v. Lloyd, 2 Beav. 376. Where several trustees are implicated in a breach of trust, the cestui que trust is not at liberty to iile a bill to recover the trust fund against some of them only, but must make all the trustees who are living, and the representatives of such of them as are dead, parties. — Mitrch v. Cockerell, 8 Sim. 219. A. being absolutely entitled to a trust fund, under a settlement made by her father, assigned it on her mai riage, to trustees, upon certain trusts, under which B., her only child, became abso- lutely entitled to the fund. The iiind was never transferred to the trustees of the second settle- ment, but remained in a house of agency in India in which the trustees had deposited it. The house failed. B. filed a bill against the original trustees to make them responsible for the loss of the fund. Held, that the trustees of the second settlement were not necessary parties. — Id. A. assigned a bond, which was deposited in an house of agency in India, to trustees on cer- tain trusts, under which his two daughters, B. and C, became entitled to the fund equally. A suit was afterwards instituted, in which B.'s jnoiety of the fund was ordered to remain in court, but C.'s moiety was ordered to be paid to ber. The trustees, however, suifored the fund to continue in the house of agency until it failed. B. then filed a bill agarinst the trustees to make them responsible for the loss of the fund. Held, that, notwithstanding the decree in the prior suit, C. was a necessary party to the new suit. — Id. TRUSTEE. See Trust.— Stock. -RidiiTS AND Duties op 4SS -Liahilitt op 490 -Purchase by 492 -Release and DisctAiMEK 493 -Substitution op , 49S -Removal of 493 -Costs op Solicitor Acting as Trustee 493 -When E.ntitled to Costs .... 494 -When Liable pok Costs 494 -When Entitled to Remu- neration 495 ■Liability to See to Appli- cation op Purchase Money 495 In Case op Alienation, Estate TO Vest in 495 Power op Trustee over Trust Property 496 ■Construction op 1 W. 4, c. 47 496 -Road Trustee 496 ■Trustee and Cestuis que Trust 496 ■Generally 497 ■Suits by 498 •Appointment op 498 1. Under 1 I'T. 4, c. 60 498 2, Under Wills and Settlements . . 501 I. IL III.- IV.- V.- VI.- VII.- VIII.- IX.- X.- XI.- XII.- XIII.—: XIV.- XV.- XVI- XVII.- XVIII.- XIX.- I. — Rights and Duties op. Conveyances and Transfers of Estates, vested in Trustees, who are Infants, Idiots, Lunatics or Trustees of unsound mind, or who cannot be compelled or refuse to act, 10 Geo. 4, c. 56, G. B. and I. ; 11 Geo. 4, and 1 W, 4, c. 60, 65, U. K. ; 4 & 6 W. 4, c. 23, E. ; 5 & 6 W. 4, c. 17, I. ; 1 & 2 Vict. c. 69, E. & I. Amending the laws in force relating to Con- veyances and Transfers of Estates, and Funds vested in Trustees, 11 Geo. 4, and 1 W. 4, c. 60, U. K. ; I & 2 Vict. 0. 69, E. & I. See further, 7 & 8 Vict. c. 76. Validating Receipts of Trustees for money payable upon any expressed or implied trust, or for any limited purpose, 7 & 8 Vict. c. 76, s. 10, E. &l. Extending to Ireland : 10 & 11 Vic, c. 96, for Better Securing Trust Funds, and for the Relief of Trustees, 11 it 12Vic., c.92, L Further Relief of, amending 10 & 11 Vic, c. 96, 12 & 13 Vic, c. 74, E. Orders made in pursuance of the Relief of Trustees Act, 10 & 11 Vic, c. 96. A trustee desirous of discharging himself under this Act, is to file an affidavit. — Ist Gen. Ord., 10th June, 1848. Affidavit to state : — 1. Name and address of trustee. 2. The place where he is to be served with any petition, or any notice of any proceeding or order of the court relating to the trust fund. 3. The amount of stock, securities, or money, which he proposes to deposit, or to transfer, or to pay into court to the credit of the trust. 4. A Jiights and TRUSTEE. Duties of. 489 short aescription of the trust, and of the instru- ment creating it. 6. The names of the parties interested in or entitled to the fund, to the best of the knowledge and belief of the trustee. 6. The submission of the trustee to answer all such inquiries relating to the application of the stocks, securities, or money transferred, deposited, or paid in under the act, as the court may think proper to make or direct. — Id. Accountant General to give directions for transfer of stoek, &o. — 2nd Gen. Ord., 10th June, 1848. Such transfer to be certified. — Id. Trustee to give notice of such transfer to the parties interested. — Zrd Gen. Ord., Id. Persons interested, or the trustee, may apply by petition. — ith Gen. Ord., Id. Trustee to be served with notice of all applica- tions respecting the fund. — 5th Gen. Ord., Id. Parties interested to be served with notice of all applications by the trustee. — 6tk Gen. Ord., Id. Petitioner to name place for service of aU notices. — Ith Gen. Ord., Id. Petitions and affidavits, how to be intitled, — 6th Gen. Ord., Id. A trustee is bound not to do anything which can place him in a position inconsistent with the interests of the trusts, or which can have a ten- dency to interfere with his duty in discharging it ; neither the trustee nor his representative can be allowed to retain an advantage acquired in violation of this rule. — Hamilton v. Wright, 9 Clk. & Fin. 111. A trust was created by a debtor for the benefit of creditors, and the trustee had the power to bind the debtor personally and heritably for the benefit of the trusts. By the terms of the trust deed, the trustee was likewise required to do all in his power to keep the residue of the trust estate as large as possible for the debtor. The trustee purchased an annuity granted by the debtor. After the date of the trust deed the trustee died. His representatives sought to enforce the annuity against the grantor. It was Held, that they could not do so, and a decree of the Court of Session affirming their right was reversed. —Id. Testatrix gave £1,000 to her nephew, to main- tain and bring up her natural son, P. B., and she directed the interest of one-fourth of her residue, to be applied for the maintenance and education of F. B., during his infancy, and the capital to be paid to him on his attaining twenty-one. Held, that the nephew was not a trustee of the £1,000 for F. B., but was entitled to it for his own benefit. — Biddies v. Biddies, 16 Sim. 1. Aperson who assumes the character of a trustee, incurs the responsibility of a trustee. — Bac&ham Y. Siddall, 16 Sim. 297. Testator gave £300 to each of his three trustees and executors who should prove and act, but if any of them should die without having acted, or refuse or decline to act, the legacies intended for them, were to go to the trustees who, under the power for that purpose contained in the will, should be appointed in their place. Two of the ti'ustees died in the testator's lifetime, and two new ones were proposed by the surviving trustee and appointed by the master, in compliance with the decree in a suit for administering the testator's estate. Held, that they were not entitled to the legacies intended for the deceased trustees. — Vlalsh V. Gladstone, 14 Sim. 2. A trustee of real estates, sold for payment of the testator's debts, is entitled to retain a debt due to him from the testator out of the proceeds, and his right is not prejudiced by the proceeds having been paid into court. — Hall v. Macdonald, 14 Sim. 1. Testatrix gave her real and personal property to A., B. and C, their heirs, executors, &c., in trust, to sell the same immediately after her death, and to stand possessed of the produce, in trust for such persons as she should direct by a codicil. But she did not make any codicil, nor did she leave either heir or next of kin. After her death, A., B. and C. sold the real estate. Held, that they were entitled to the proceeds for their own benefit ; and that the Crown was entitled to the personal estate. — Tat/lor v, Haygarth, 14 Sim. 8. Estates in Scotland were conveyed to trust dis- position, to three trustees, to collect and apply the rents as therein mentioned, with £100 a-year for their trouble, besides all the necessary expenses of managing the estates ; and with power to ap- point and remove factors, pay their salaries, and settle their accounts annually ; and within six months after clearance with the factors, to get their own accounts approved by an accountant, whose approbation would be a discharge to them, each being liable only for his own actual intro- missions, and no farther liable for the factors, than that they should be reputed responsible at the time of their appointment. The trustees ap- pointed one of themselves to be factor, vrith a salary ; and he, though of undoubted responsi- bility at that time, afterwards fell to owe large balances at the annual settlements of accounts ; whereon, one of the trustees, who was cashier, urged him to pay up; but the balances against him increasing, both trustees, after failing in their exertions to obtain payment, revoked his appoint- ment as factor, and he became bankrupt, owing a large debt to the trust estate. Held, by the Lords (affirming decrees of the Court of Session in Scotland, in an action raised by the first heir of entail, to whom the trustees were bound to account for their management) : — First, That the appointment of one of the trustees to be factor, was not, of itself, such a breach of trust £is sub- jected the other trustees to all the consequences resulting from it. Secondly, That there was not such gross negligence in the two trustees per- mitting the factor to retain balances, as to subject them to liability for the ultimate balance due from him to the trust estate. The appointment by trustees of one of their number to be factor to the trust estates, would not, of itself, make them liable for his defaults ; but, by making him their agent, they would be liable for his defaults as agent, and not as co-trustee, in the same way that they would be liable for the defaults of any other person whom they might appoint to tite office. The principle of the rule is the same in Scotlard as in England. The mere fact of trustees allowir g balances to remain against their factor at the annual settlement of his accounts, where it is impossible to include his whole receipts and pay- ments for the year, is not a breach of trust, or such culpable negligence as would make them liable for the ultimate balance due from him to the trtist. Seem, if they assented to his contrivances to retain larger balances than were necessary for the management of the trust. A trustee does not, by being cashier to the trust estate, incur any additional liability in respect of its manage- ment, beyond what he was subject to as trustee. The rule of the courts in England, preventing 490 Liabilily. TRUSTEE. Jjiability, trustees from having any office with profit under the trust, or any remuneration for their trouble, beyond what the trust deed allows them, is so beneficial, that a different rule ought not to be sanctioned in Scotland. ( Quoere : Whether the contrary praQtice there is not assumed, rather than decided to be legal). — Home v. Pringle, 8 Clk. & Fin. 264. Where a manor is conveyed to trustees upon trust to divide the profits of it amongst the tenants of the manor, it is the duty of trustees not to let the right of sporting to any of the tenants upon terms advantageous to them as tenants, but to make the best profit they can by letting the right of sporting to all eligible persons, whether tenants or otherwise, and to divide the profit so made rateably amongst the cestui que trust. — Hutchinson v. Morritt, 3 Y. & C. 647. Where a trustee had dissented from the con- version of Navy 5 per cents, into New 4 per cents, under circumstances which were charged by the bill to be injurious to the trust property, it was referred to the master to consider how the trustee ought to have acted in relation to the trust, in March, 1822, the time limited by the act of par- liament for the assent or dissent of trustees, the court, at the same time, observing that the trustee would receive full protection in equity if it could be shewn that he had acted eis a sensible and prudent man, acting for the common benefit of all the cestui que trust, might fairly have acted.— Angell v. Dawson, 3 Y. Sc C. 308. Where parties call on trustees to part with their estate, on the ground that their trusts have terminated, they are bound, clearly and satisfac- torily, to shew the fact to the trustees. — Holford V. Phipps, 3 Beav. 434. The trustee of a marriage settlement concurred in a breach of trust, by lending the fund to tlie husband on a security not warranted by the set- tlement. Held, that the representatives of such trustee could maintain a bill against the husband and the other cestui que trust for the restitution of the fund. — Greenwood y. Wakeford, 1 Beav. 576. Trustees are not entitled, as against the trust estate, capriciously to refuse to continue, but if they find the trust estate involved in complicated questions not in contemplation when they under- took the trust, they have a right to come to this court for relief. — Id. A trustee acting bona fide, and with the con- currence of the heir at law, under a will which was supposed to be valid as to real estate, but which afterwards turns out to he invalid, is enti- tled to be indemnified out of the personal estate. •—Edgecumbe v. Carpenter, 1 Beav. 171. Trustee having a partial beneficial interest in the trust property, may, by deposit of the title deeds for a debt of his own, create a good equi- table mortgage. — Ex parte Smith, 2 M. D. & I). 687. II. — Liability. Where A. held funds, part of the estate of E., but held them as security to cover liabilities into which he had entered on account of B., the estate Itself being otherwise clearly answerable for such liabilities, and where the creditors of B. had not required him to invest the balance, which might probably exist after its liabilities had been indem- nified. Held, that, in the absence of any positive stipulation, he was not, on the final settlement of accounts with the creditors, bound to pay a larger interest than 5 per cent, on the money he had so retained, and the account was to be taken with rests. — Court v. Robarts, 6 Clk. & Fin. 65. Under such circumstances, if the fund had been paid into court, it would have realised 4 per cent, with yearly or half-year! y rests, which being equal to 6 per cent, without rests, A. was Held, liable to that interest, on the equitable principle of putting the creditors into the same situation as if he had paid the fund into court in the ordinary manner. —Id. Where a party holding the control over an estate, and a power of selling it to secure the re- payment of liabilites he had incurred on account of the owner, received the rents, sold the estate, and they received the purchase money, (for which, while he retained it, he was held liable to interest), he was not, on account of the acts thus done by him, entitled, without any previous stipulation, to claim commission for the trouble he had in the matter. — Id. A solicitor acting under a power of attorney, from an administrator, or a person fillling a fiduciary character, stands in the place of such person, and will be held answerable for any mis- application of the trust estate to which he is a party. If a trustee employs a solicitor in relation to the trust estate, and pay him the amount of his costs without taxation, the cestui que triist cannot require a taxation of the bill against the solicitor ; but, in the settlement of accounts with the trustee, he is entitled to have the bill of costs referred to be moderated, and upon such a reference, the master will revise the items in a way similar to taxation, and if the charges appear to be improper, they will be disallowed to the trustee, and he will be left to his remedy over against the solictor. — Lady Langford v. Mahony, 4Dru. & W. 81. If a trustee be sued in chancery for an account, and it appears that he has properly expended sums of money for the protection and safety, or for the maintenance and support of his cestui que trust, at a time when he, though adult, was incapable of taking care of himself, the court will not allow him credit in account for such sums of money. — Nelson v. Duncombe, 9 Beav. 211. A trustee under a will, permits the trust fund, as the monies are from time to time realised, to be paid into the hands of certain bankers who have knowledge of the trusts. One of the partners, without the assent of the trustee, deals with a portion of the fund by investing it on mortgage. Held, that the bankers were not jointly and separately liable in the character of trustees, but that they only incurred a liability as between banker and customer, and that on the bankruptcy of the bankers, the trustee could only prove against their joint estate for such balance as was in their hands at the time of their bankruptcy. Semble : That the sum laid out on mortgage, must be considered as in their hands at the time of the bankruptcy, although the mort- gage itself might enure for the benefit of the cestui que trust. — Ex parte Burton, 3 M. D. & I). 364. A marriage settlement, made in 1811, recited that the husband was entitled to 20,000 rupees, secured by a note of the East India Company, and 10,000 rupees, part thereof, were thereby assigned (with certain property of the wife) to the trustees of the settlement, upon trust for the husband and wife, for their lives, with remainder Liahility. TRUSTEE. Liahility. 491 for the children of the marriage. One of the trustees died, six weeks after the settlement was made. The husband died in 1819, and the wife in 1822. The trustees did not (nor did the sur- vivor) take any step, during the lifetime of the husband, to recover the 10,000 rupees. After they had attained their ages of twenty-one years, the children filed a bill against the surviving trustee and the representatives of the deceased trustee, for an account of the trust funds, charging them with the 10,000 rupees. Under a reference to the master, to inquire whether the defendant might, by due diligence, have received or got in the 10,000 sicca rupees, the defendant produced evidence, shewing it to have been the common belief of persons who knew the husband, that he was not possessed of any such property ; but no proof was given that the husband was insolvent ; and the court charged the surviving trustee with the fund, and interest from the death of the wife ; and directed a reference to enquire the value of the 10,000 rupees at the time of the settlement. — Symes v. Eyre, 6 Hare, 137. The representative of the trustee who died six weeks after the making of the settlement was not a necessary party, such trustee not having possessed any psirt of the trust funds, and not being chargeable with the default. — Id. A testator, resident in India, appointed A., B., and C. his executors and trusteees. A. and B. were resident in India, and C. in Ireland. A. proved the will in India, and C. in England, but B. did not prove at all. The assets were suffered to remain, for several years, in the hands of M. & Co., of Calcutta, the testator's bankers and agents. B. was a partner in that firm at the testator's death ; but, shortly afterwards, he retired, and came to England. He then entered into partnership with R. & Co., of London, the agents and correspondents of M. & Co., and paid some of the testator's legacies to persons in England ; and, in order to satisfy a legacy given by the testator upon certain trusts, he invested the amount in stock, in the names of A. and himself, as trustees ; but payments and the in- vestment, were made by the direction of A., and out of remittances sent by him to K. & Co. M. & Co. ultimately failed. Held, that the above- mentioned acts were done by B. as agent to A., and not as an executor or trustee of the will ; and, consequently, that he was not responsible for the loss occasioned to the estate by the failure of M. & Co. — Loiory v. Fulton, 9 Sim. 115. A trustee, in breach of his duty, lent the trust money to F., upon the security of a judgment, E., at the time, not knowing that it was trust money. Subsequently, F., at the request ol the cestui que trust, and by direction of the trustee, paid the interest to the cestui que trust, who was entitled to it during her life. The trustee after- wards threatened to issue execution on the judg- ment. F. stated to the cestui que trust, that if she did not interfere to protect him against the demand of the trustee, he would be obliged to pay him ; and she not having done so, F., as he alleged, paid the money to the trustee, who satisfied the judgment on record. Upon a bill against F. and the trustee, filed after the decease of the tenant for life, by the person entitled abso- lutely to the trust fund, it was decreed that F. should pay the money, with interest. The moment F. became aware that this was trust money, he became a trustee of it. — Sheridan v- Joyce, 1 Jon. & L. 401. By a settlement, made in India, in 1778, the j trustees were directed to invest a certain sum of rupees, in good public or private securities, at the highest rate of interest that could be obtained upon certain trusts, under which one of the daughters of the marriage, became entitled to a moiefy of the fund, after the death of her father and mother. The funds were accordingly invested in notes of the Indian Government, and those notes were deposited with Palmer & Co., of Cal- cutta. On the daughter's marriage, in 1791, her moiety of the fund was assigned to other trustees in trust, after the death of her father and mother, to receive and lay out the same, in such of the public stocks or parliamentary funds, or other securities, (private personal securities only ex- cepted), as the daughter and her husband should appoint. After the father's death, the mother filed a bill against the trustees of the two settlements and his daughter and her husband to have the trusts of 1778, carried into execution. By the decree in that suit made in 1809, at which time the mother was dead ; certain arrears of interest on the fund, were ordered to be paid to the mother's representative, and the daughter's moiety of the fund, was declared to have vested in the trustees of the settlement of 1791, upon the trusts thereof, and was ordered to be paid to them ac- cordingly. The trustees of 1778, did not comply with that decree, but allowed the notes to remain in the hands of Palmer & Co., who failed in 1830, having previously received the amount of the notes. Held, that the trustees of 1778, were re- sponsible for the loss. Held also, that although the cestui que trust, knew and acquiesced in the mode in which the fund had been invested and dealt with, and approved of its remaining under the management of Palmer and Co, ; yet as the trustees were aware that Palmer & Co. were in pecuniary difficulties some time before they failed, but did not inform the cestui que trust thereof, tho acquiescence did not exempt the trustees from their liability. — Munch v. Cockerell, 9 Sim. 339. A trustee disclaimed by his answer, but was continued a party until the hearing ; nevertheless, he was entitled to costs, as between party and party only. — Bray v. West, 9 Sim. 429. Trustees under a will decreed to pay interest at £5 per cent, per annum, on balances mixed by them with their own monies, and used in their own business ; although the will authorised them to invest the residue on " good securities." Westover v. Chapman, 1 Coll. C. C. 177. Trustees decreed to pay the costs of an unne- cessary inquiry, directed before the master as to the state of the testator's family. — Id. 181. Though a trustee for a public charity is not called on for twenty years by the body to whom he is accountable, to account, yet it is his duty to tender his accounts to such body without requi- sition, and if he do not, he is liable to the costs of an information filed to compel an account, even although in the result the charity proved to be indebted to such trustee. A trustee for a charity, against whom an information was properly filed, made a case by his answer, from which it must have been manifest that the trustee was not a debtor to the charity, and that the result of takmg the accounts would not be of advantage to the charity. A decree was, nevertheless, sought and obtamed, du-ecting the accounts to be taken. Held, that no costs subsequent to the hearmg, ought to be given on either side.— .4«. Gen. V. Gibbs, 1 De. G. & S. 156. A testatrix gave her personal estate to A. and B., subject to debts and legacies upon certain 492 Liability. TRUSTEE, Purchase hy. trusts, and she appointed A. alono executor. A fund, over which the testatrix had a power of appointment, was transferred into the names of A. and B. A., the executor, representing that a considerable part of the fund was wanting to pay debts and legacies, induced B. to join in s^ing out the fund, promising to give a mortgage secu- rity for what might not be wanted for debts, &c. A. received the whole, but applied a very incon- siderable sum in payment of debts, &c. Held, that B. was liable to replace so much of the stock as had not been applied in payment of debts, &o., and to account for the dividends. — Hewett v. Foster, 6 Beav. 259. Semble : if, under the provision of a settlement the trustees were bound to renew, and draw the renewal fines from the rents and profits, and the trustees, neglecting to renew, the tenant for life, takes the rents, he would be liable to answer to the trustees for any damages they might sustain in consequence of their breach of trust, — Tovmley ■V. Bond, 2 Con & L. 393. An executor having possessed a promissory note for £400, part of the assets of the testator, retained the note in his possession without taking any proceedings to recover the amount or the in- terest for seven years, and, at the end of seven years, when the sole residuary legatee came of age, the executor delivered the note to the resi- duary legatee. The residuary legatee ten years afterwards filed his bill against the executor, charging him with breaches of trust in the ad- ministration of the estate. The court in such circumstances refused to charge the executor ■with the amount of the promissory note, or direct an enquiry whether any loss had resulted to the estate by reason of the executor not having taken proceedings to enforce payment of the amount due on the note. — East v. East, 5 Hare, 348. In such a case the executor would not be chargeable unless it should be found that the amount of the note could have been recovered during the seven years between the death of the testator and the time when plaintiff attained his majority, and if it were found that the amount could have been recovered during that time, still the executor would not be chargeable unless it should be found that the amount could not have been recovered during the ten years which elapsed after the note had been delivered to the plaintiff. —Id. 6 Hare, 349. The testator directed his trustees to invest the residue of his personal estates, in government or real securities. Some of the cestuis que trust, and one of the trustees permitted the trust monies to remain in the hands of the other trustee, at in- terest : — Held, that inasmuch as no investment ■was made, the trustees were chargeable with the ■whole amount of the trust funds possessed by them, with interest ; but were not answerable for the amount of consols, or any other particular security, in which they might, according to the directions of the will, have invested the trust monies — Shepherd v. Mouls, i Hare, 500. Trustee depositing a trust fund with his bankers, accompanied by an order, in writing, to invest the money in consols, answerable for the omission of the bankers to make the investment, where he made no subsequent inquiry respecting it, until about five months afterwards, when the bankers became bankrupts. — Challen v. Shippam, 4 Hare, 555. Executors cutting timber upon a supposed trust afterwards held to be void, might be personally thargeable ia equity, as trustees for the owner of the timber, if they acted fraudulently, or if they retained the proceeds of the timber, or gained any benefit by it; but not if they acted by mere mis- take, and held no part of the proceeds in their hands. In the latter case, the executors might be regarded in equity as strangers, who under a mistaken supposition of right, had done a legal wrong, for which there was a legal remedy. — Ferrand v. Wilson, 4 Hare, 383. Different forms of suit by a cestui que trust, in re- spect of claims against the trustees, and strangers as debtors, or liable to the trust. — Lund v. Blan- chard, i Hare, 28. . Cases, in which the liability of the trustee and a stranger to the trust, may be indivisible ; and the stranger is a proper party, with the trustee, to the suit of the cestui que trust. — Id. 4 Hare, 29. A trustee who was directed by the will of the testator, to invest the residue in consols, and to accumulate the dividends, invested it on mortgage of real estate. He was Held, liable to make good the amount of stock which would have been purchased in consols, together with the amount of accumulation which would have been produced by a proper investment of the divi- dends of such stock. — Pride t. Fooks, 2 Beav. 430. A trustee who stands by and sees a breach of trust committed by his co-trustee, becomes responsible for that breach of trust. — Booth y. Booth, 1 Beav. 125. A testator bequeathed to his partner, and to B., his personal estate, upon trust, to invest the same for the benefit of his wife and children. Both executors proved the will, and the surviving partner retained the testator's monies in the trade, which were lost. B. took no active part in the trust, but was cognisant of the breach of trust, and took no proceedings to prevent it. Held, that B. was responsible for the breach of trust. — Id. A testator died in March, 1823, and in January, 1824, and January, 1825, the executors and trus- tees deposited part of the assets in the hands of bankers, on their notes, carrying interest. The bankers failed in November, 1825, and no neces- sity having been shewn for such deposit, the trustees were held personally responsible for the loss. — Darke v. Uartyn, 1 Beav. 525. A trustee for a married woman having notice of a charge executed by her, was Held, personally liable for payments afterwards made to her, and that, notwithstanding the validity of the charge was disputed by her, and no application had been made for an injunction, — Hodgson v. Hodgson, 2 Keen, 704. III. — Purchase by. W. being indebted to C, agreed, by deed, to convey his estate to C, upon trust to sell the same, and pay off certain debts of W., due to other persons, and then the debt due from W. to C, and to pay over the sm-plus, if any, to W. No conveyance was executed. C;*, being after- wards in possession of the estate, under a writ of fi. fa., issued on a judgment upon a warrant of attorney, given by W., agreed ■with W.'s agent to purchase the estate. \V. afterwards ratified the contract, but subsequently impeached it as one made by a trustee for his own benefit, and against the interest of the cestui que trust. Held, that C. was not a trustee for W., but was a creditor, holding a security for his dabt, and Behase and Disclaimer. TRUSTEE, Costs of Solicitor, ^c. 493 that the contract of sale was valid. — Waters v. Groom, 11 Clk, & Fin. 684. A testator bequeathed a sum of long annuities to trustees, upon trust to his daughter for life, for her separate use, and after her death, upon trust for such persons as she should by deed or will appoint. One of the trustees purchased of the daughter and her husband the absolute inte- rest in the long annuities, and took an assignment to himself of the daughter's life interest in them, accompanied by what purported to be an execu- tion, by the same instrument, of her testamentary power over the reversion, with a covenant by the daughter and her husband for quiet enjoyment and for further assurance. It was alleged that the price paid was inadequate. Held, that inde- pendently of any question of inadequacy of price, the transaction could not stand, and upon the daughter's offer, after her husband's death, to repay the consideration money, with interest, the deed was set aside.— Sco« v. Davis, i Myl. & Cr. 87. A. T., possessed under a will of certain premises demised in consideration of faithful services, a part of the premises for sixty-one years, at an in- adequate rent to E. K., one of the trustees under the will, and also A. T.'s agent ; E. K. assigned to the plaintiff for valuable consideration. Held, that the lease was void on the ground of fraud, as having been made to a trustee and receiver, at an under- value, and that the circumstances of the lease being granted at an under-value, and in consideration of services, was sufficient notice to a purchaser to put him on his guard. — Kerr v. Z^d Dungannon, 1 Con. & L. 335, Form of decree against a trustee purchasing the trust estate at an alleged under-value, and making permanent improvement thereon, — Wil' liamon v. Seaber, 3 Y. & C. 717. IV. — ^Release and Disolaimeb, A trustee who is entitled to be discharged from his trust, is not bound to shew that there is some other person ready to accept the trust. If no person will accept the trust, the coxu-t may be obliged to keep the trustee before it, but it will take care that the trustee do not suffer thereby. — Courtetiat/ v. Courtenay, 3 Jon, & L, 619. A trustee, who was a solicitor, came to a final settlement of accounts with his cestuis que trust ; and a general release was executed. In the ac- counts, the trustee had taken credit for bills of costs for professional services, to which, under the generi rule, he was not entitled. The cesiuia que trust were assisted on the occasion by an in- dependent solicitor, who perused the bills, and settled and altered the release. Held, under the circumstances, that the trustee was entitled to the benefit of the release. — Stanes v. Parker, 9 Beav. S85. A party named trustee without his sanction and called on to disclaim, is authorised in taking the opinion of pounsel as to his obligation to exe- cute a disclaimer. — In re Tryon, 7 Beav. 496. Trustee of stock, on transferring the stock to hia cestui que trust, was held under the circum- stances of the case, entitled to an acknowledg- ment by the cestui que trust of the stock being received in full of all demands, though not enti- tled to a release under seal. And inasmuch as the cestui que trust declined to make the acknow- ledgment, the court directed a general adminis- tration account to be taken of the real and personal estate of the testator, from whose real and personal estate the stock was derived, although no account, but a mere transfer of the stock was prayed by the bill, and no open unsettleed account sug- gested by the answer, — Chadwick T. Heatley, 2 CoU, C, C, 137, V. — Substitution oft A testator, in Scotland, gave all his property to trustees : — First, to pay his debts ; secondly, to pay Mrs. B,. (a married woman,) so aiuch of the an- nual proceeds as they might deem necessary for the support of her and family during her life, declaring the same to be alimentary and exclusive of the husband, and not to be attachable nor as- signable, nor subject to any deeds or debts of her or her husband. The acting trusteee, with con- sent of Mrs. R., assigned to her alimentary cre- ditor the rents of the trust property : — First, to pay any debts affecting it ; secondly, to pay part of the rents to Mrs. R. for aliment; thirdly, to apply the residue in payment of the debts due to the assignee. Held, that the assignment was void, because : — First, it was not competent to the trus- tee to substitute another person for himself in the trust, which was the effect of the assignment, and secondly, because it violated the express prohibi- tion against alienation ; and in this respect the law in Scotland is the same as in England, — Rennie v, Ritchie, 12 Clk. & Fin. 204. VI. — Removal Op. A testator gave power to his trustees to become lessees of the trust property. One of them availed himself of it, and the other trustee did not actively interfere in the management of the trust. The trustee lessee was removed by the Master of the Rolls, at the instance of the cestuis que trust, on the ground of the inconsistency of his duties of lessee and trustee ; and upon an appeal, on that and other grounds. — Passingham v. Sherborn, 9 Beav. 424. A bill contained allegations of great fraud, against trustees, which all failed. The trustees were removed, but not, however, on the groimd of misconduct. Held, that they were entitled to the costs of the whole suit. — Id. The bankruptcy of a trustee is a sufiicient ground for his removal from that office, although he has obtained his certificate and the trust property is in the hands of a receiver, — Baittirigge V, Blair, 9 Beav. 496, VII. — Costs op Solicitor, Acting as. Unless there be an agreement for the purpose, a trustee, who is a solicitor, is not entitled to charge his cestui que trust more than money out of pocket for his services, in carrying on suits in relation to, and managing the trusts. "Where the trust deed did not authorise the solicitor to charge costs against his cestui que trust, securities obtained by him from his cestui que trust, who was also his chent, for untaxed costs and advances, were set aside and ordered to stand as securities tor the sum really due, notwithstanding letters trom thecestm que trust recognising the rights of the sohcitor to charge such costs ; the soUcitor not having mformed his client that he was not 494 When E7ititled to Costs. TRUSTEE. When Liable to Costs. entitled to any remuneration for his services in the trust, and the letters having been written under his influence. But this rule being a hard one, and the conduct of the cestui que trust ex- ceptional, the relief was given without costs. An order obtained on petition by the client against the solicitor, for a taxation of his costs, as between solicitor and client ; upon an undertaking to pay the balance : — Held, under the circumstances, not to be a bar to the more extended relief the dlient was entitled to. The securities were set aside as against a purchaser for value, with notice of the relation between the parties. — Gomley v. Wood and Daly, 3 Jon. & L. 678. Trustees can only be allowed costs out of pocket for professional business transacted by a firm, one of whom is a trustee, though the business be done by one of the partners who is not a trustee, — Christophers v. White, 1 Beav. 523. On a settlement of account between a cestui que trust and trustee, (a solicitor), the latter charged for professional services in the trust. A release was executed by the cestui que trust. Not having had any independent professional assist- ance on the occasion, the court relieved him from the professional charges beyond costs out of pocket, — Todd v. Wilson, 9 Beav. 486. A trustee, acting as solicitor in the trust matters, is merely entitled to costs out of pocket. The rule is not inflexible, and compensation may, in special cases, be made him under the authority of the court by a fixed allowance, but not by allowing him to make the usual professional charges, — Bainhigge v. Blair, 8 Be,av, 588. Till. — When En-titled to Costs. Where a mortgage in fee had been executed, ■with knowledge that the mortgagor was a trustee only of the money advanced, and the mortgagee became lunatic ; all such extra costs of procuring a re-conveyance as were occasioned by the lunacy, were thrown upon the mortgagor, and were not payable, either by the lunatic or by the parties beneficially interested in the mortgage money. — In re Lewis, 1 Hall & T. 123 ; 1 Mac. & Gor. 23. Two trustees severed in their defence ; one was charged with misconduct but not the other. The court allowed only one set of costs, and gave the whole of them to the innocent trustee. — Webb T. Webb, 16 Sim. 65. One of two trustees for sale, under a marriage settlement, the other being absent in America : — Held, entitled to the costs of sale, &c., under the London Bridge Acts, — Ex parte Tatham, 3 Y. & C. 67. Where one of two trustees is absent in America, the other is an "incapacitated" person under the London Bridge Acts, and consequently is invested with the power to sell given to such persons by virtue of these acts. — Id, Trustees in the same interest may be allowed the costs of separate answers, if the master shall find that the circumstances justified separate answers. — Dudgeon v. Corley, 4 Dru. & W. 158. Where the misapplication of the funds of a public body, had gone for a great length of time, and no imputation was cast on the trustees, they, though removed, were allowed their costs out of the fund ; this, however, not to be a precedent for cases which should be defended afterwards where the same point should arise. — Alt. Gen. v. Drum- mond, 2 Con. & L. 98. No prayer for the removal of trustees, is necessary to give the court authority to remove them. — Id. Trustees of a term, the trusts of which had been put an end to by the cestui que trusts, Held, entitled to their costs of a suit, to compel an as- signment of the term to the purchaser of the property, on the ground that full and accurate information had not been tendered them before bilj Sisi..—Uolford v. Phipps, 3 Beav. 434. IX. — When Liable pok Costs. Costs refused to one of two trustees, who had declined to transfer a fund to the party entitled, and. had severed in his defence. — Allen \. Thorp, 7 Beav. 72. A. assigned leaseholds to B., in consideration of £400 stated to have been paid to him by B. On the next day B. executed a deed, declaring himself to be a trustee of the leaseholds for A.'s wife. The deeds were afterwards declared to be fraudulent and void, as against A.'s creditors ; and the court refused to give B. his costs, because the declaration of trust recited, falsely, that the £400 was the separate property of A.'s wife, and that B. had received it from her, and B. signed a receipt for it. — Turquand v. Knight, 14 Sim. 643. An unmarried lady transferred a sum of stock to trustees, for herself. The letter supposed to contain the terms of the trust, was lost, and no evidence was given of its contents. After the marriage of the lady, the husband and wife de- manded a transfer of the fund, which the trustees refused to make, without the direction of the court, unless the fund should be settled for the benefit of the wife and her issue. Held, that the trustees ought to have transferred the fund with- out suit, and must, therfore, pay the costs. — Penfold V. Bouch, 4 Hare, 271. Trustees decreed to pay out of the trust estate the costs of a suit occasioned by their legal debts in a plain case. — Burrows v. Greenwood, 4 Y. & C. 251. Pending an information, filed for the purpose of having new trustees of a charity, appointed in tlie place of some who were dead, the surviving trustees took upon themselves, without the sanction of the court, to appoint new trustees. Held, that though this was neither a contempt nor an act altogether void, yet it imposed upon the trustees the neces- sity of proving by the strictest evidence, and at their own expense, that what had been done was perfectly right and proper ; and the case not appearing altogether clear, the appointment was set aside, and the trustees were ordered personally to pay all the extra costs occasioned by their act. — Att. Gen. v. Clack, 1 Beav. 467. Where the payments of rents, in consequence of disputes among the trustees, had been per- mitted to fall into arrears ; on a bill filed by the plaintiff, who was entitled to the rents and profits for her life, against the trustees ; the court ordered a receiver to be appointed, and the costs of the suit to be paid by the trustees. — Wilsony. Wilson, 2 Keen, 249. The court will not allow costs to a trustee who, after having acted, declines to perform the trusts reposed in him, and thereby renders a suit for the appointment of a new trustee necessary. — Howard V. Rhodes, I Keen, 581. JVhen Entitled to Remuneration. TRUSTEE. In Case of Alienation, S[C. 495 X. — When Entitled to Remuneration. Testator gave £300 to each of his three trustees and executors, who should prove and act | but if any of them should die without having acted, or should refuse or decline to act, the legacies intended for them were to go to the trustees who, under the power for that purpose contained in the will, should be appointed in their place. Two of the trustees died in the testator's lifetime, and two new ones were proposed by the surviving trustee, and appointed by the master in compli- ance with the decree in a suit for administering the testator's estate. Held, that they were not entitled to the legacies intended tor the deceased trustees. — Wahh v. Gladstone, \i Sim. 2, A testator devised and bequeathed his freehold and leasehold estate to trustees for sale, and he " declared that his trustees respectively should be entitled to have and receive, out of the trust monies, all costs, charges and expenses, fees to counsel, and for advice, and for professional assistance and loss of time paid, sustained or oc- casioned in or about the execution of the said trusts, or in any wise relating thereto." One of the trustees was a land surveyor, and he super- intended the management and sale of the estates. Held, that he was entitled to a compensation for loss of time. — Willis v. Kibble, I Beav. S59. XI. — Liability to See to Application o» PnEOHASB Money. A testator devised his real estate, charged with the payment of his debts and legacies to his eldest son, in fee, and appointed him executor nine years after the testator's death j the devisee being then in possession mortgaged the estate, and co- venanted against all incumbrances except the legacies. In a suit subsequently instituted by one of the legatees for payment of his legacy, the estate was sold, and the proceeds proved insuf- ficient to satisfy the testator's unpaid debts and legacies, together with the mortgage money. Held, that the mortgagee's title was complete, subject only to the amount of the legacies, and, therefore, that after reserving the amount of the legacies, the mortgagee was entitled to the residue of the fund as a security for his debt, and that the amount so reserved was assets of the testator unadministered, and was, therefore, to be applied, first, in satisfaction of his debts, and then so far as it would extend in payment of his legacies. — Eland v. Eland, 4 Myl. & Cr. 420. The rule relieving a purchaser from seeing to the application of his purchase money, where there is a general charge of debts and legacies, has reference to the state of things at the death of the testator, and if the debts are afterwards paid, leaving the legacies charged, that circum- stance cannot vary the rule. — Id. A testamentary charge of real estates, with the payment of debts generally, authorises a trustee, to whom, after imposing the charge, the testator has devised the estates, upon trust, for other persons to sell or mortgage the estates charged, and exempts the purchaser or mortgagee from liability to see to the application of the purchase or mortgage money, — Ball v. Harris, i Myl. & Cr. 264. By an act of parliament establishing a canal company, the committee of the company had power, in case any person who should agree with the company for the sale of any commons or waste lands, should not be able to make a good title, to the satisfaction of the committee, or in case any person entitled to commons or waste lands to be purchased by the company could not be known, to order the purchase money to be paid into the Court of Chancery. In 1812, a contract for the purchase of certain lands on P. Common, was entered into by the company, with S., a party whose title to sell was then doubtful. The company, however, took posses- sion of the lands, and never paid the purchase money into Court. In 1827, an act passed for the inclosure of P. Common; and in 1837, an award was made pursuant to that act, by which the arbitrator found that S. was the true owner of the lands in question. Held, that the company were trustees of the purchase money for S. and those claiming under him ; and that, as the legis- lature had permitted a bargain with an unascer- tained person, S. and those claiming under him were guilty of no laches, in not filing a bill against the company for the recovery of the purchase money before 1837, the period when the true ownership was ascertained. — Color v. The Croydon Canal Company, 4 Y. & C. 405. Where a trustee admits that the trust money has not been paid, but that it has remained for a length of time in his hands — Quaere : Whether any length of time will operate as a bar to the lawful claimant in a court of equity. — Id, XII. — In Case op Alienation, Estate to Vest in. Bequest of a share in certain trust funds, in trust for A., his executors, administrators, and assigns. Provided that, if A. should, during the life of B. or C, assign, charge, or otherwise dispose of his share in the principal or interest thereof, or attempt or agree so to do, or do any act whereby his share in the said monies, if payable to himself or his executors or administrators, would become vested in some other person, then, in such case, all his estate, right, title, and interest in such trust monies, should absolutely cease and determine, and thereby and thereupon become absolutely forfeited ; and the trustees should thenceforward stand possessed of the shares or share so forfeited, in trust, to pay, apply, and dispose of the annual produce thereof, during the lives of B. and C, for the support and maintenance of A. and of his wife and family, or otherwise, for his and their benefit, in such manner as the trustees should think proper ; and after the death of B. and C, should settle and assure, or pay, and apply, and dispose of the share so forfeited, in trust for or for the benefit of A. and his family, in such manner as they should, in their discretion, think proper. A. assigned all his property to trustees, for his creditors, and thereby committed an act of banliruptcy ; and a fiat being issued against him, he was declared a bankrupt. Held, that, upon the execution by A. of his assignment, his share and interest in the trust monies became subject to the trust declared by the will for the benefit of A. and his wife and family. That A. was not of necessity entitled to any part of the income of the trust monies, separately from his wife and children; but that any interest of A. in the trust monies, not applicable for the support and maintenance of his wife and children, passed to his assignees on his bankruptcy. — Kearsley v. Woodcock, 3 Hare, 185. 496 Power of Truitei, S^c. TRUSTEE. Trustee and Cestui que Trust. XIII.— Power of Trustee over Trust Property. Where there is a devise of a fee simple, with an absolute power to raise by sale Or mortgage, sums of money for eertnin purposes, and in the same devise are contained provisions, enabling the trustee to give receipts to the purchasers, such trustee sufficiently represents the estate in a suit for a sale, though the person to whom, subject to such power, the first estate of inheritance was limited, is not a partv in the cause.— ^ifeon v. Magawly, 1 Dru. & \V. 401. Testator devised his estates, subject to debts, to a trustee, in trust for several persons in suc- cession, and appointed the trustee and his widow, his executor and executrix. Held, that the trustee had power to- mortgage the estates to secure money which he had borrowed for the purposes of the will.-^BaH v. Harris, 8 Sim. 485. The trustees, under a power of sale in the will, sold part of the estates and invested the proceeds in the purchase of another estate, which was conveyed to him, to the uses upon and for the trusts, &c., of the will. Held, that the purchased estate must be taken, for all intents and purposes, as if it had been devised by the will, and conse- quently, that the trustee had the same power to mortgage it, as he had to mortgage the devised estates. — Id. A direction by will, that the testator's widow shall receive all the income of his real and per- sonal estate, and pay and apply the same to, and for the use of herself and the children of their marriage, agreeable and according to her own discretion, during her life ; confers upon the wife a discretionary power, which the court will not disturb, so long as it is reasonably and honestly exercised. — Costabadie v. Coslabadie, 6 Hare, 410. Where the dispositinn of a trust estate amongst certain objects, is made by the author of the trust to depend upon the discretion of the trustee, the court will, in a proper suit, inquire into the man- ner in which the trust has been administered, and require that such discretion shall be fairly and honestly exercised ; and so long as it appears to be so exercised, the court will not deprive the trustee of the discretionary power, which he pos- sesses, or assume Itself the exercise of that power, but to avoid a repetition of suits, where there is reason to apprehend that the conduct of the trustee may be liable to question, the court may require the discretion of the trustee to be exercised imder its view. — Id, Executors who are also devisees in trust of leal estate, charged by the will with debts, ge- erally represent the persons beneficially interested in such real estate, within the meaning of the 30th Order of August, 1841, although the trustees are not otherwise empowered to give discharges for the proceeds. — Savory v. Barber, 4 Hare, 125. XIV. — Construction of 1 W. 4, c. 47. The 12th section of 1 W. 4, c. 47, does not apply to a case where an estate is devised to a trustee during the life of a cestui que trust, with remainders over ; and by the disclaimer of the trustee, the legal estate descends on the heir. — Heming v. Archer, 8 Beav. 294. A conveyance by an infant, under the 11th section 1 W. 4, c. 47, passes only such interest as the infant, if of full age, might pass. — Id. XV. — KoAD TrusteB. Two persons, in whom were Vested, Under an act of parliament, the right to the tolls and profits arising from a certain road for a ternlof fifty years, conveyed by a deed of the 27th of May, 1827, the same and all their estate and interest therein to A., B. and C, (the defendant) upon certain trusts therein mentioned, and subject thereto in trust for the said A., B. and C, their executors, administrators and assigns, as tenants in common, for their own use and benefit, for the residue of the said term of fifty years J and the deed con- tained a provision that, in case any of the said trustees should be Unable to join in the direction and superintendence of the said road, it should be lawful for any two of the said trustees to act of themselves in the management of the said road, and in all other things relating to the said execu- tion of the said trusts. The interests to which the said A. and B. were entitled under the said deed, having become subsequently vested in the plaintiff, C. (the defendant) having taken upon himself the exclusive control and management of the road, and insisted upon his right thereto, and also upon being paid a salary for such his trouble and supervision : — Held, upon a bill filed by the plaintiff, disputing such right, that the defendant, C, was entitled to the sole manage- ment of the road, but that his claim for salary could not be maintained. — Taylor v. Taylor, 4 Dru. & W. 124. XVI. — ^Trustee and Cestui atfE Trust, In the year 1818, A. entered into a contract with B. for the purchase of four denominations, and made an advance of £2,000 on account of the purchase money. The treaty having been broken off, A. became an incumbrancer to the extent of the advance. In 1819, upon the occasion of the marriage of B., by indenture of settlement, the four denominations were conveyed to trustees, as to two of them to the uses of the marriage in strict settlement, and as to the remaining two upon trust to sell whenever the settlor should re- quire the trustees to do so, and apply the produce in payment of the several incumbrances enume- rated in the schedule of the deeds. A. was the third incumbrancer mentioned in the schedule, but neither he nor any of the other incumbrancers was a party to the deed. There never was any sale pursuant to the trusts of the deed. Held, that neither A. nor his representative, the plain- tiff in the second cause, was to be regarded as cestui que irtist, under the deed of 1819, so as to be entitled to insist adversely on the execution of the trusts. Interest on A.'s incumbrance to be computed from the period of six years prior to the filing of the bill. Quare : Whether the 25th section of the 3 & 4 Will. 4, c. 27, was intended to apply to the 40th and 42nd sections of the same Statute. — Law v. Bagwell, 4 Dru. & W. 398. A debt due from a trading firm of four persons, was, with their knowledge, assigned by the cre- ditor to two of the partners, upon certain trusts. One of the partners, not a trustee, afterwards retired, leaving in the new firm sufficient assets to discharge all the liabilities of the old firm. The trustees, with the knowledge of the retiring partner, permitted the trust fund to remain out- standing upon the security of the new firm. It was afterwards lost, in consequence of breaches Trustee and Cestui -que Trust. TRUSTEE. Oenerally. 497 of trust, to which the retiring partner was a con- senting party. Held, that he was answerable, qva debtor, to the cestui que trust for the loss ; but the court would not give relief against him as a person who had concurred in the breach of trust ; for the bill did not £isk that relief against him.— Cummins v. Ctimmihs, 3 Jon. & L. 64i Though the settlor should authorise the trustees to continue the trust funds upon the personal security of a trading firm in which he had invested them ; yet, the trustees are guilty of a breach of trust, if, upon a change taking place in the firm, they permit the fund to remain upon the personal security of the new firm. — Id. Between cestui que trust and trustee, no lapse of time will preclude the account from the com- mencement of the trust. In a case in which the relation of trustee and cestui que trtist continues, the transactions between them are not closed ; and the delay of the claim is attributable to the trustee not having given to his cestui que trust that information to which he was entitled, and accounted with him in such manner as he ought. — Wetlderburn v. Wedderburn, i Myl. & Cr. 41. A money fund, belonging to the wife, was vested in trustees, upon trust to pay the interest to the husband, for his life, or until he should take the benefit of any Act for the Relief of Insol- vent Debtors, and after his decease, or obtaining the benefit of such act, upon trust, to pay the interest to the wife, for her life j the same to be paid to her in case of the insolvency of the hus- band, to her separate use, and after her decease, in trust for the issue. The trustees, at the instance of the wife, committed a breach of trust, by lending part of the trust fund to the husband, who afterwards was discharged as an insolvent. Upon a bill by the wife and her children, to make the trustees answerable for the breach of trust. Held, that the contingent interest of the wife for her separate use, was not bound to make good to the trustees, the money advanced by them at her request. Qiuere : Whether her life interest, after the death of her husband, was so bound. Semble : That, if the discharge of the husband as an insol- vent had been concerted with the privity of the wife, in order thereby to entitle her to a present interest in the trust funds, and defeat the equity of the trustees against her husband, the trustees would be entitled to the same relief against her as against her husband. — Mara v. Manning, 2 Jon. & L. 311. Pallas being indebted to Ignatius Goold in £3,000, and Sir George Goold, the father of Ignatius, being indebted to T. and H. in £1,000, for recovery of which they had instituted an action at law against him, an arrangement was entered into, part of which was, that the action against Sir George Goold should be discontinued, and that Pallas should pay the costs of it ; and Pallas, pursuant to the agreement, mortgaged his estate for £1,400, to a trustee, upon trust, inter alia, to secure to Simmonds, the attorney for T. and H. in the action, the costs of the plaintiff in that action, to be paid as therein mentioned. Simmonds, though named in the declaration of trust, was not a party to the arrangement. Held, that he was not entitled, as a cestui que trust under the deed, to institute a suit to carry the trusts of it into execution ; and that, having done so, the objection might be taken by any party to the suit. The principle of Garrard v. Lord Lau- derdale (2 R. & M. 451), not to be extended. Gibbs V. Glamis (11 Sim. 584), observed upon. Distinction between voluntary settlements, where the object of the donor is bounty, and voluntary conveyances in trust, to pay debts to which the creditors are not parties. — Simmonds v. Pallas, 2 Jon. & L. 489. Trust funds were invested in the purchase of transferrable shares in a banking company, in the name of one of the trustees, who executed a de- claration of the trusts thereof, (the rules of the company not allowing shares to stand in the name of joint owners or cestui que trusts). The trustee was also a proprietor of shares, in his own right, in the same company, and made various sales and purchases therein. There was nothing to dis- tinguish which were the individual shares held by the different proprietors ; the same being, in the nature of capital, expressed by quantity. The trus- tee contracted to assign a certain number of shares to the banking company, asasecurity for advances which they made to him ; he afterwards became bankrupt. Held, that the trustee must be pre- sumed to have transferred or pledged such shares as belonged to himself, and so far as he had shares of his own, not to have transferred or pledged the shares of the cestui que trusts ; that, therefore, the cestui que trusts were entitled to so many of the shares, standing in the name of the trustee at the time of his bankruptcy, as could be presumed to be identical with the share in which the trust funds were invested, from the fact that such a number of shares had always, thenceforward, stood in the name of the trustee. — Pinkett v. Wright, 2 Hare, 120. Account of deceased partner's estate, directed after a lapse of thirty years and repeated changes in the firm, and after several deeds and a release had been executed by the parties beneficially interested j the surviving partners being the executors of the deceased partner and guardians of the cestuis que trust, and the settlements being partial only, and founded on insufficient know- ledge, by the cestuis que trust, of the partnership affairs and accounts. — Wedderburn v. Wedder- burn, 2 Keen, 722. A. having a life interest in premises vested in trustees, who had a power of leasing, agreed to grant a lease for twenty-one years, to B. The trustees refused to grant a lease to B., on the ground that he was in insolvent circumstances, and that the grant of such lease would be a breach of trust eigainst their cestuis que trust. The court being of opinion that B. was entitled to specific performance, and that the trustees had given A. some authority to act, ordered the trustees to execute a lease to B. to the extent of A. 's in- terest. — Neale v. Mackenzie, 1 Keen, 475. XVII. — Genekallt. Petitions for filling up vacancies in charity trustees, require the fiat of the Attorney General, but need not be served upon him. — In re The Warwick Charities, 1 Phil. 559. R., the factor of W., of AV. & K., of W K & P., of W., P., & C, and W. & B., accepted bills drawn on him by W. & P., they, (W. & P ) agreeing that aU the goods in R.'s hands, con- signed to him by W. & P., either solely or jointly, should be security to R. for the amount of his acceptances. R. sold the goods in his own name • W. afterwards became bankrupt, and the assignees of W., gave notice to the buyers of the goods, not to pay R. the monies due in respect of such sale. All the debts owing for the goods, were afterwards by indenture, to which R. and the assignees of W., were parties, assigned to trustees KK 498 Suits hy. TRUSTEE. Appointment of. upon trust, to apply the same as R. might legally do if the assignment had not been made. R. afterwards became bankrupt. The trustees having received the proceeds of the goods, filed their bill against the assignees of W. and of E,., for the direction of the court in the execution of the trust. By the decree, the master was directed to state what bills of exchange had been accepted against the goods, and the amount and particulars of such acceptances, and the amount unpaid, and for that purpose he was at liberty to publish advertisements. Under such advertisements several claims were made before the master by K., and by other holders of the bills, accepted by R. On further directions : — ^Held, that the bill holders had no interest in the proceeds of the goods, except that which might arise from the result of the contract between R., and W. & P., that if there had been no bankruptcy, the bill holders could not have sustained a suit to have the proceeds of the goods applied for their benefit — that the happening of the bankruptcies did not aflTect the equitable rights of the parties — that the doctrine of the case oi Ex parte Waring, established a special mode for the payment of creditors, ap- plicable to the administration of the estate in the bankruptcy, but not to the administration of the trust in equity ; that the advertisements made under the decree, and which had caused the bill holders to appear before the master, gave them no right to appear, and that they were not entitled to appear on further directions, and that (the general account, as between the estates of W, and 11., being waived by the respective assignees), the assignees of R., were entitled to recover trust fund, and to administer it in that bankruptcy. — Layeock v. Johnson, 6 Hare, 199. A., B., C, and D., purchased land on a joint speculation, and they agreed in case either of them should sell his share, to give to the others the option of buying. A. and B. paid the whole purchase money, and C. and D. mortgaged their shares to A. and B., to secure their proportions. D. died, and made A., C, and W., executors and trustees, and gave them power to sell but no power to make purchases. A. and B., who alone proved the will, together with W., agreed to re- linquish to C, a portion of the estate, in con- sideration of C.'s releasing to them his share in the residue, subject to his mortgage debt thereon. W. died, and A. and B. afterwards completed the contract. Held, that as there was no power given to the executors and trustees of D., to pur- chase or to render testator's estate liable to a portion of C.'s mortgage, the estate of D., was not entitled to participate in the benefit of the purchase. — Peck\, Cardwell, 2 Beav. 137. The interest of a cestui que trust, who concurs with a trustee in a breach of trust, is liable to indemnify the trustee. — Booth v, Booth, 1 Beav. 125. The request in writing, mentioned in Statute 11 Geo. 4, & 1 Will. 4, c. 60, s. 10, means a private request by the party requiring the transfer under that act ; therefore, service of an order of the court, by which the transfer was directed to be made, does not amount to " a request in writing," within the meaning of the act. — Madge V. Riley, 2 Y. & C. 425. XVni.— Suits by. In a suit by cestui que trusts against the trustees of a settlement for an account and execution of the trust, the suggestion by the defendant of a doubt whether some part of the property of which they have possessed themselves as trustees may not belong to the estate of the settlor, does not render the representative of the settlor a necessary party. — Gaunt v. Johnson, 7 Hare, 154. A., by will, bequeathed a sum of stock equally between B. and C. B. and C, by their respective wills, bequeathed their respective residuary per- sonal estates (which included their shares of the stouk) among their children, and appointed exe- cutors. The children of B., and some of the children of C, filed the bill against the executor of A. to recover the fund, making the executors of B. and C, and the rest of the children of C, parties. Held, that although the suit was mul- tifarious, yet, as it had been brought to a hearing, and it wais not open to the objection of misjoinder, the court might, if it thought proper, make a decree for the accounts and enquiries preparatory to the distribution of the fund. — Poioell v. Cockerell, 4 Hare, 567. That, notwithstanding the bill alleged that the estate of B. was fully administered, and that the parties beneficially interested in the estate were parties to the suit, yet the executor of B. was a party against whom direct relief was in substance prayed, and he was not, therefore, a party to be served with a copy of the bill within the 23rd Order of August, 1841. — Id. Suit against trustees alleging breaches of trust, by omitting to make repairs, and to provide a fund for the renewal of leases as directed by the will. The vridow of the testator, (who was tenant for life under the will), and two others were the trustees. The widow married again, and after- wards died, leaving her husband surviving, and leaving assets of her separate estate. Held, that as there were Eissets of the widow which were or might be liable to the trust, it was not a case in which the plaintiff could, under the 32nd Order of August, 1841, proceed against the other trustees and the husband of the testator's widow, without making a personal representative of the widow a party ; and, that the defect was not removed by the waiver of any relief against the assets of the widow, or against all the trustees in respect of breaches of trust before the marriage of the widow. — Shipton v. Rawlins, i Hare, 619. Injunction granted upon motion to restrain, until the hearing of the cause, an action by an administrator, to recover a debt which was due to his intestate, upon ai&davit that the intestate had requested the debtor to hold the sum due in trust for the plaintiff, and that the debtor had ac- cepted the trust, and paid over a part of the fund to the plaintiff. — M'Fadden v. Jenkins, 1 Hare, 458. Whether the facts stated by the affidavits, (Plea 1), if proved, would be sufficient to create a trust in favour of the plaintiff — Quare, — Id. XIX. ArrOINTMENT OF. 1. Under 1 W. 4, c. 60. 2. Under Wills and Settlements. XIX. 1. Under 1 W. 4, o. 60. Where the real estates of an intestate were sold imder a decree in an administration suit, and the heir at law was a feme covert, who declined ac- knowledging the conveyance to the purchaser — Appointment of. TRUSTEE. Under 1 W. 4, c. 60. 499 Semble : That the heir was a trustee within 1 W. i, c. 60. In such a case where the costs of the suit ex- ceeded the funds in the cause, the court directed the costs of the purchasers occasioned by the re- fusal of the married woman to make an acknow- ledgment, to be first taxed and paid, and subject thereto, that the costs of plaintiffs and defendants should be taxed and paid rateably. — Billing v. Webb, 1 De. G. & S. 716. A testator, in the year 1699, by his will devised and bequeathed certain properties therein men- tioned for charitable purposes, but without naming any trustee or devisee. From the death of the testator to the present time, the property was ap- plied upon the trusts in the will specified. Upon a petition presented under the Statutes 52 G. 3, 0. 101, and 1 Will. 4, c. 60, stating such facts, and that the heir of the testator could not be discovered, the couit made an order referring it to the master to appoint new trustees, and to ap- prove of a proper person in the place of the heir of the testator to convey to such new trustees. — In the matter of Bishop Gore's Charity, 4 Dru. & W. 270 ; 2 Con. & L. 411. The court refused to appoint a new trustee on petition when the object of the parties was to convey an estate to a purchaser, pursuant to a contract for sale, to which the old trustee ought to have been, but was not a party. — In re Lloyd and Wife, 3 Jon. & L. 255. A power to appoint a new trustee on an exist- ing one becoming incapable to act, does not apply to the case of a trustee going to reside abroad. — Withington v. Withington, 16 Sim. 104. If a petition is presented under the 10 Geo. 4, c. 56, or under the U Geo. 4, and 1 Will. 4, c. 60, to have a person appointed to convey property in the place of a recusant trustee, the latter ought not to be served with the petition, and if he is served, he will be entitled to his costs. — In re Third Burnt Tree Building Society, 16 Sim. 296, The master directed to appoint a new trustee, although some of the cestui que trust were infants, and another was out of the jurisdiction. — Hunter V. Gibson, 16 Sim. 158. Devise, in 1677, to the use of the poor of the parish of A. The master was unable to ascertain in whom the estate was vested. Held, that the case was not within the Trustee Acts, — The Att. Gen. V. Randies, 8 Beav. 185. So also, where charity money had, in 1743, been laid out by a parish in the purchase of an estate for the poor of the parish, and it could not be ascertained in whom it vested. — Id, A petition, under the 1 W. 4, c. 60, stated that, in 1803, the testator devised real estate to a trus- tee to pay debts, and after payment thereof in trust for the petitioner ; that he died in 1824, and thereupon, the petitioner entered, that many years ago, petitioner and the trustee sold part of the es- tate and paid all the debts, that the trustee had died and that his heir was a minor, and it prayed a conveyance of the legal estate. The court directed inquiries, whether the minor was a trus- tee for the petitioner alone, discharged of debts and the trusts of the will. — In re Catharine Barry, 2 Jon. &L. 1. The survivor of two executors and trustees be- queathed the trust property to A., upon the trusts declared by the original testator ; expressing, by the same instrument, his wish, that A. would execute the trusts with fidelity. No direction was given by the will of the original testator, as to the appointment of new trustees. On a bill filed by the cestuis que trust, for that purpose, — Held, that A., though legally in the possession of the trust property, was not a trustee properly con- stituted, and that the cestuis que trust were entitled to have new trustees appointed by the court. — Mortimer v. Ireland, 6 Hare, 196. New trustees appointed on petition, under the Act 1 Will. 4, c. 60, in the stead of a lunatic not found such by inquisition, to whom, together with two other persons since deceased, a sum of money charged by will, upon real estates in the West Indies, and another sum secured by a bond, had been assigned, by a deed, dated in 1802, upon certain trusts. A person at the same time ap- pointed to "assign the sums of money to the new trustees. — In the matter of Welch, 3 Myl. & Cr. 292. The survivor of four trustees of a sum of stock, died intestate, and his sole next of kin refused to administer to him. Held, that the case was not within the 10th section of 11 Geo. 4 & 1 Will. 4, c. 60, and, therefore, that the court could not ap- point a person to transfer the stock. — In re Lunn's charity. In re. IS Sim. 464. Form of the order for the appointment of a new trustee, under the Statute 1 Will. 4, c. 60, in the room of a trustee who was resident out of the jurisdiction, where the trust fund consisted merely of Government stock in the Bank of Ireland. — In re Chambers, 3 Dru. & W. 496. The 1 Will. 4, c. 60, was not intended to sanction a trustee resigning his trust rather than do an act which he deems improper.— Pfi_;7pcr v. Turkey, 2 Jon. & L. 59. _A trustee in a marriage settlement, refused to join in lending the trust money because he dis- approved of the security. The wife, pursuant to a power for the purpose, removed him, and ap- pointed a new trustee in his place, and the husband and wife then presented a petition, under the act, to compel the old trustee to transfer the funds to the new trustee. The court refused the application. — Id. Stock was invested in the names of two persons upon trust, as was alleged, for the petitioners. The only evidence of the trust, was the statements in the petition and verifying affidavits, and a letter written by the donor for the purposes of the application. One of the aUeged trustees being resident in some place unknown, out of the juris- diction, a petition was presented, praying that the stock might be transferred to the petitioners ; but the court refused to make the order in his ab- sence, though it was stated that he declined to act, and the other trustee submitted to act as the court should direct.—/?} re Dunbar, 2 Jon. & L 120. Under I W. 4, e. 60, the master has no power to appoint a person to convey. It is tor the master to " approve," and for the court to " appoint." — Fowler v. Ward, 8 Beav. 488. After a decree in a creditor's suit for the sale of the real estate of the testator and the appli- cation of the proceeds and payment of the debt, and after a sale under that decree, the devisees of the estate, being limatic, or out of the jurisdic- tion, are trustees of the estate within the Statute 1 Will. 4, c. 60, for the plaintiff in the cause — Semble. — Jackson v. Uilfield, 6 Hare, 638, If the devisees in such a case are not trustees for the plaintiff, by the effect of the decree, the court cannot make them such trustees, by any declaration to that effect; and if the devisees are such trustees by the effect of the decree, an express 500 Appointment of. TEUSTEE. Under 1 W. 4, ^.60. declaration thereof (if necessary) should be made by decree, and cannot properly be made upon petition. — Id. A woman who was sole trustee for sale of real property, married a man who absconded, and had not been heard of up to the hearing of the cause. The court decreed a sale, and that the husband should be declared a trustee, within the 11 Geo. 4 & 1 Will. 4, c. 60, s. 19 ; but he de- clined to appoint a person to convey in his room under the 8th section, on the ground that he was not the trustee, " last known to have been seised," there being a joint seisin in him and his wife. Proof of search for a trustee under the 24th sec- tion of the Statute 11 Geo. 4 & 1 Will. 4, c. 60, may be given at the hearing of the cause, by affidavit. — Moore v. Vinten, 12 Sim. 161. Where it did not appear that the old trustee, though incapable of managing his affairs, was lunatic, the court would not appoint a new trustee under the 1 WUl. 4, c. 60, s. 22, — In re Wakeford, 1 .Ton. & L. 2. In future, upon application by petition for the appointment of a new trustee, on the ground that the old trustee is out of jurisdiction, it must be shewn to the court where the old trustee is resi- dent, and if in England, that he has had notice of the application. — Ex parte Hughes, 1 Jon. & L. 32. Stock was vested in the names of three trustees, jn trust for the benefit of a lunatic, for life, and after her decease, for her children. The last sur- viving trustee having died, his widow and execu- trix refused to prove his will. The court, upon petition, appointed new trustees, and directed that they should obtain a limited administration to the last surviving trustee, for the purpose of procuring a transfer of the stock to themselves. — In re Needham, 1 Jon. & L. 35. A settlement of stock provided that, in the event of the death, refusal, or incapacity to act of cither of the trustees, it should be lawful for the acting trustees or trustee, for the time being, to appoint a new trustee in the place of such trustee so dying, refusing, or becoming incapable to act. One of the ti'ustees refused to act ; the other was within the jurisdiction. Held, that the case was not within the 1 Will. 4, c. 60, s, 22. — /» re Byrne, 1 Jon. & L. 535. The residence of apartyinterested intrust funds, lieing out of the jurisdiction, does not authorise the coui't to appoint new trustees, without notice being given to such party. A testator bequeathed his residuary estate to two trustees, whom he appointed executors. One of them renounced ; and after the death of the other, the trust funds came into the possession of the latter's legal personal representative, who became bankrupt. The cestui que trustent presented a petition for the appointment of a new trustee. On its appearing that the original testator had been dead for twenty years, and that the interest of the trust fund had, ever since, been applied according to the trusts ; and on the petitioner's deposing that, to the best of their belief, all the original testator's debts, &o, had been paid. Held, that, a new trustee might be appointed, without its appearing that any personal representative of the original testator was before the couit,— Ex parte Hardman, 3 M. D, & D. 559. The court has no jurisdiction to appoint new trustees upon petition under the Statute 1 Will. 4, c. 60, except in cases where a disability is shewn in the existing trustee. — In re Penne/ai/ier, 2 Pru. & W. 292. The mere circumstance of a trustee refusing to act, is not sufficient to give the court jurisdiction to appoint new trustees, on petition, under the Statute 1 Will. 4, c. 60.— Jn re HaH/ord, 2 Dm. & W. 292 ; 1 Con. & L. 394. Application for the appointment of new trastees under the Statute 1 Will. 4, c. 60, refused ; no case of liability being established in the existing trustee. — Hartev. Lord F/renc/i, 2 Dru. & W. 292. Where a trust fund consisted of Government Stock, standing in the sole name of a surviving trustee, the court, on a bill filed by the cestui que trust in remainder of the fund, appointed a second trustee in room of the deceased trustee. — Finlay V. Howard, 2 Dru. & W. 490. Four co-partners purchased an estate out of the partnership assets, and took a conveyance them- selves as tenant in common in fee. One died in- testate as to his real estates, leaving an infant heir. The survivors settled with his executors for the value of one-fourth of the estate, and then petitioned under the 11 Geo. 4 & 1 Will. 4, c. 60, that the infant might be declared a trustee of one-fourth of the estate, and might join in conveying the estate to a purchaser. The court refused to make the order, and said that a bill must be filed. — Ex parte Williams, 11 Sim. 54. The executor of a surviving trustee di-ilined stating whether he would or not prove the will, and neglected, for thirty-one days after notice, to transfer trust stock standing in the name of his testator. Held, that he Avas a trustee within the 1 W, 4, c. 60, and a transfer was ordered to new trustees. — Cockell v. Pugh, C Bcav. 293. It is not sufficient for a report ascertaining that a party is a trustee within tlie 1 Will. 4, c. 60, to state merely that such party is a trustee ; the do- cuments which make out the trust must be stated on the face of the report. — In re Furdmi, 1 Dru. & W. 500. Three trustees, two of whom were creditors of A., joined in making promissory notes for securing ,to the other creditors of A. a composition on the respective debts, and took a conveyance anil as- signment of the real and personal estate of A., upon trust, after paying the costs and charges to indemnify the three trustees in respect of the pro- missory notes, and then to pay the two trustees who were creditors a like composition on their respective debts, and to pay the surplus to A. After two of the trustees had received part of the personal estate of A., and had paid the promis- sory notes to a larger amount than they had received, the other trustee (who was one of the creditors) went out of the jurisdiction of the court, "There was no power in the deed to ap- point new trustees. Held, on the petition of the two trustees, that the trustee out of the juris- diction was a trustee within the Act 1 Will. 4, c. 60, for the petitioners and himself, and the court, without directing a bill to be filed, ap- pointed another trustee in his stead. — In re George Ryley, 3 Hare, 614. When the event, upon which it is sought to obtain an order for the ai>pointment of a new trustee has been specially provided for, by the settlement in a power to appoint new trustees, the case is not within 1 Will. 4, c. 60, ». 22. — In re Laffau, 1 Con. &. L. 350. The court may appoint new trustees under 11 Geo. 4 & 1 Will. 4, c. 60, s. 22, although the instrument creating the trust contains a power to appoint now trustees. — In re Fauntleroy, 10 Sim. 252. A person beneficially entitled to part of the dividends of a sum of stock, has a sufficient in- Appointment of. TRUSTEE, Under Will', ^c. 501 terest to Bilpport a petition, under 11 Geo, 4 & 1 Will, i, c. 60, for the appointment of a new trustee of the stock. The words in the 10th section of the act, which empower the court to order "any person appointed as aforesaid, to leceive and pay over or join in receiving, and paying over tJie dividends of such stock in such manner as the said court shall direct," authorise the court to direct one of the officers of the bank to receive the dividends of the trust stock and pay them over, not to the party beneficially entitled, but to the new trustee. — In re King, 10 Sim. 605. If a motion is made to enforce an order under the act, and the order appears to be an improper one, the court has jurisdiction to give the parly resisting it, the costs of the motion. — Id, An estate was devised to A., subject to a charge of £5,000, payable to the executors, in a suit to which A. was a party ; the estate was sold, and all proper parties were ordered to join in the con- veyance. A. refusing to execute the deed, was declared a trustee for the purchaser, under the 1 WiU. i, c. 60, and another person was directed to convey ia his stead. — Bobinson v. Wood, 5 Bcav. 246. The petition for the above purpose was presented by a defendant, in his character of purchaser, lie court refused to give costs. — Id. Trustees appointed by the court in the place of others, whose appointments had failed by their deaths in the lifetime of the testator ; authorised to appoint future trustees in the manner, and under the circumstances mentioned in the will.— White V. White, 5 Beav. 221. A new trustee may be appointed by the court in the first instance, under the 6 Geo. 4, c. 16, s. 79, without a reference. — Ex parte Stubbs, 2 M. D. & D. 570. By an indenture of 1634, a rent charge was granted to certain trustees for charitable uses, and the last survivor of such trustee being un- known, the court, under the Statute 1 WiU. 4, c. 60, s. 23, on the petition of the persons who ad- ministered the charity before the rent charge ceased to be paid, appointed new trustees and a person to convey the rent charge to such trustees. — In re 1 Will. 4, c. 60, and In re Nightingale' t Charity, 3 Hare, 336, The executor of the survivor of three trustees declined to prove his will. Held, that the case was within the 1 Will. 4, c. 60. — Exparte Bagger, In re Merry's Trust, 1 Beav. 98. One of two executors, appearing, from proceed- ings in the cause, to be a trustee, within the meaning of 1 W. 4, c. 60, of a fund standing in the testator's name, and it being proved by affi- davit, that he was living out of the jurisdiction, the court, without a reference to the master, made an order, under this act, for the transfer of the fund by his co-executor, — Parker v. Burney, 1 Beav. 492. The court declined making an order allowing & feme sole to propose herself to be trustee, on the ground that on her marriage, her husband might interfere with the trust. — Brook v. Brook, 1 Beav. 531. In a suit, by an equitable mortgagee of lease- holds to enforce his security, a decree wns made for sale in default of payment, and the premises were sold under the decree. The mortgagor, then out of the jurisdiction, was Held, not to be a trustee within the Act 1 Will. 4, c. CO, for the purchaser, but to be a trustee within that act for the plaintiff in the cause ; and a person was ap- pointed to execute the assignment in the place of such trustee. — King v. Leach, 2 Hare, 57. The object of the U Geo. 4 & 1 WiU. 4, c. 60, was to provide means for conveying legal interest only in property, therefore, an assignment of a mortgage debt by a creditor is not within the act, nor does the act apply to conveyances of land out of the Queen's dominions. — Price v. Dewhurst, 8 Sim. 617. Where a person has been ordered, under 11 Geo. 4 & 1 WUl. 4, c. 60, s. 8, to convey trust property in the place of a refusing trustee, it is not necessary that he should execute a new deed reciting the order, but he may execute the deed tendered to the trustee, and it fliould be expressed that he has executed it in the place of the trustee in pursuance of the order. — Exparte Foley, 8 Sim. 395. XIX. 2, Under Wills and Settlements. By marriage settlement a judgment, was vesteit in trustees, and it was declared, that if the wife should, with the consent of her husband, think it advisable to call in the sum secured thereby, the- trustees were to permit her to use her discretion as to the investment of the same ; one trustee died and the other was out of the jurisdiction. The wife, with the consent of her husband, caUed in the money, and she and her husbsind assigned the judgment to a third person, who advanced the money, but the surviving trustee refused to execute the assignment, and desired to be dis- charged from the trusts. The court thinking the real object of the parties was not to continue the money in settlement, but, under colour of the power, to get it out of settlement, refused to ap- point new trustees. — In re Molony, 2 Jon. & L. 391. A testator empowered his wife (who was a cestui gue trust under his will) during her life, and after her death, the then surviving or continuing trustees of his wUl, to appoint any new trustee or trustees as often as any of his first or future trus- tees should die, &c. One of the trustees named in the wUl died before the testator. Held, that the power did not authorise the widow to appoint a new trustee in the place of the deceased.^ Winter v. Budge, 15 Sim. 597. Upon a reference to the master to appoint new trustees in a case where the power of appointment is vested by the author of the trust in a party to the cause, the master wUl have regard to such power in selecting the trustees from the persona proposed by that party, and by others ; but the master is not bound to approve of the persons nominated by such party in preference to other persons whom he may consider more eligible, and his decision is not open to exception merely because he has not chosen the persons nomi- nated by the party to whom the power was given. Where parties in a cause have a power of ap- pointing new trustees, and it is proper for the appointment to be made in the cause, there should be special directions to the master to approve of proper persons to be nominated by the parties having the power, if it be intended to preserve their right of nominating — Semble. — Middleton v, Reay, 7 Hare, 106. A power contained in a settlement of real estate on trust for sale, enabled one of the parties, his executors, administrators and assigns, on a vacancy to appoint a new trustee. The party so empowered, died, having by his wiU named three 50-2 Under Wills TRUSTEE. and Settlements, executors, one of whom renounced probate ; and the vacancy in the trust having occurred, it was Held, that the two acting executors had power to appoint the new trustees. — Earl Granville v. M'Neile, 7 Hare, 156. Power in a settlement to appoint new trustees, in case that any of the trustees therein nominated " should become incapable or unfit to act" in the trusts thereof. Held, that by the bankruptcy of a trustee, he became " unfit to act" within the meaning of the power. The power to appoint new trustees, directed, that upon such appoint- ment being exercised, the trust estate should become vested in the newly appointed trustees jointly with the surviving or continuing trustee. Held, that the meaning of such a power was to appoint new trustees, whenever the event re- quiring such a change should arise, and that a valid appointment of, and a transfer of the estate to, new trustees, might be made under the power, notwithstanding the removal of the surviving trustees. The com't never appoints a new trustee without a reference to the master. — In re Roc/ie, 2 Dru. & "W. 287 ; 1 Con. & L. 306. A person was named as a trustee in a marriage settlement of the year 1821, but did not execute or act in the trusts of it. After the death of his co-trustee, he, in 1844, refused to act in the trusts. The court, upon the petition of the tenant for life, under the 1 Will. 4, c. 60, s. 22, refused to appoint a new trustee in his place. — In re Uniacke, 1 Jon. & L. 1. A testator devised real and personal estate on certain trusts, which, as the court considered, the testator intended to be performed by his trustees named, and the survivors and survivor, and by the heirs and assigns, or by the executors or ad- ministrators of the survivor. The vriU contained no power to appoint new trustees. The surviving trustee devised and bequeathed the trust estates and powers to A., B. and C, upon the trusts of the first will. Held, that this devise, and the ap- pointment of A., B. and C. as trustees were valid. • — Titleij V. Wolstenholme, 7 Beav. 425. Where a trust estate is limited to several trustees, and the survivors and survivor of them, and the heirs of the survivor of them, the sur- viving trustee does not commit a breach of trust by not permitting the trust estate to descend, or by devising it to proper persons on the trusts to which it was subject, in the hands of the surviving trustee — Semble. — Id. In the appointment (under the Municipal Cor- poration Regulation Act) of trustees of property, lately held by a corporation upon charitable trusts, persons who are members of the new corporation are not ineligible as trustees, even although the corporation may have formerly set up a claim to the property, in opposition to the charity. A person's name had been submitted to the master as a new trustee, and he had been approved by the master, but without any affidavit of his respectability. Such an affidavit was afterwards produced to the Lord Chancellor, and no objection to his respect- ability was made. Held, that there was no ground for referring the question of his appointment back to the master. — In the Matter of the Ludlow • Charities, 3 Myl. & Or. 262. Testator, after appointing three trustees of his will, provided that, if they, or any of them, or any trustee or trustees to be appointed under that proviso, should die, or be desirous to be dis- charged, or go to reside beyond sea, or neglect or refuse, or become incapable to act, before the trusts should be performed, it should be lawful for the surviving, continuing, or acting trustees or trustee for the time being, or the last acting trustee, to nominate a now trustee or trustees ; and the trust property which should have been vested in the trustee or trustees so dying, desiring to be discharged, &c., and should then be subject to the trusts of the will, should be vested in the new trustee or trustees, jointly with the surviving or continuing trustee or trustees, or solely, as the case might require. Two of the trustees died in the testator's lifetime. Queere : Whether new trustees could be appointed under the power. — Walah V. Gladstone, 14 Sim. 2. The court, in decreeing the appointment of new trustees, will not direct a power to be inserted in the deed for appointing new trustees, toties qmties. — Bowles v. Weeks, 14 Sim. 591. Testator devised his real estates to A , B., C, and D., and their heirs, on certain trusts which required the legal estate to be vested in them, and gave a power of sale to them, or the survivors or survivor of them, or the heirs of the survivor, and declared that their or his receipts or receipt, should be a good discharge to the purchaser, and, if any one of them should die or decline to act, that it should be lawful, and he thereby willed and directed, that the survivors of them should immediately or within two months afterwards, by any deed, nominate some fit person to be a trustee in his place. D. died, and A. and B. by one deed, and C. by another, (both of which were executed more than two lunar months, but less than two calendar months after D.'s death) nominated a new trustee, but did not convey the legal estateto him. A.,B., C, and the new trustee agreed to sell the estates to M., who objected to complete his purchase: — First, because the appointment of the new trustee had not been made within two lunar months. Secondly, because it had not been made by one single deed ; and Lastly, because the power of sale was sus- pended during the vacancy in the trust. The court overruled the objections, but Held, that the new trustee had not been duly appointed, because no conveyance had been executed to him; notwithstanding which, that A., B., and C. could make a good title and give an efiectual discharge for the purchase money. The court Held eilso, that the new trustee, though not duly appointed, might join with A., B., and C, in a suit for a specific performance. — Warburton v. Sandys, 14 Sim. 622. It will not be directed by the court, that in a deed appointing new trustees under the court, a power to appoint new trustees when required shall be inserted. — Att, Gen. v. Madden, 2 Con. & C.519. Where a testator devised estates to trustees, their heirs, and assigns on certain trusts, and the surviving trustee devised the trust estates upon the same trusts on which he held the same. Held, that the eestuis que truatent were entitled to have new trustees appointed of the original will.- Ockleston v. Heap, 1 De. G. & S. 640. Where a fund arising from dividends, upon a proof, has been transferred to the separate account of a marriage settlement, a petition by parties claiming, under the settlement, for payment of the fund out of court, need not be served upon the assignees. If, under a power to appoint new trustees, which is in the ordinary form, and is silent as to any increase in the number of trus- tees, four trustees be appointed in the room of three (the original number), the appointment is bad, and the fund will not be paid over to thi' Under Wills, SfC. TRUSTEE— TURNPIKE. 503 persons so appointed. — Ex parte Davit, 3 M. D. & D. 304. In a suit for the appointment of new trustees, the court refused to insert a clause in the will authorising the new trustees to appoint others in their room, — Broum v. Brown, 3 Y. & C. 396. The testator appointed A., B., & C, executors and trustees of his will ; providing, that if either of them, or any succeeding trustee or trustees, should die, or refuse, or neglect, or become inca- pable to set in the trust, it should be lawful to and for the survivor of them, the said A., B., and C, and such new trustee or ti'ustees to be nominated in their, or either of their stead, to appoint a new trustee or new trustees instead of the said A., B., and C, or either of them, or any future trustee or trustees so dying, or desiring to be discharged, or refusing, or neglecting, or becoming incapable to act as aforesaid. A. having disclaimed the trust, and B. having died, C. alone (though not the survivor of A., B., and C.) appointed new trustees under the power. Held, that the new trustees were well appointed. —Cajfe V. Bent, 5 Hare, 24. In a suit to appoint new trustees of a settlement, where a part of the trust property had been lost by previous negligence or breach of trust, the covirt refused to confine the trust of the remaining property, but appointed the new trustees to be trustees to the whole of the property comprised in the settlement, directing (for the protection of the new trustees) a reference, to enquire whether it would be proper to take proceedings for the recovery of the property which had been lost. — Bennett v. Burgis, 5 Hare, 295. A marriage contract in the Portuguese language, between British subjects resident in Lisbon, ex- pressed that the parties were desirous that it should be regulated, made binding, and carried into full and complete effect, according to the laws of England. Some years afterwards, the parties, who were then resident in England, filed a bUl, praying that a settlement, in strict con- formity with the contract, and containing all the covenants, clauses, powers, &c., usually inserted in marriage settlements, and deemed necessary, and, at the same time, consistent with the sub- stance of the contract, might be executed under the decree of the court. Held, that a power to appoint new trustees, as often as should be neces- sary, and (notwithstanding the contract provided that the settled monies should be invested as they had been in the English and French funds) that a power to change those securities for any other of the government stocks or funds of England or France, or for real securities in Great Britain or Ireland, were proper powers to be inserted in the settlement. — Sampayo v. Gould, 12 Sim. 426. On a petition for the appointment of new trus- tees of a charity, the court directed that, in the deed appointing the new trustees, a power should be inserted for appointing new trustees in future. —In re 52 Geo. 3, c. 101, 12 Sim. 262. A lady being entitled to £2,000, charged on her father's estates, and payable after the decease of her surviving parent, it was agreed by her marriage article, that in the settlement to be made in pursuance thereof, there should be con- tained a power enabling her father in his lifetime, or his executors within six months after the £2,000 should become payable, to invest that sum in the usual securities, in the names of trus- tees, to be for that purpose appointed, and for the trustees or the survivor of them from time to time, with the consent of the husband and wife, or the survivor, or of their oven proper authority, as the case should happen, to change the securi- ties, and to pay the interest to the husband for life, to the wife for life, for her separate use, and pay the principal to their children, and in default of children, to the wife's next of kin or personal representatives. The husband died leaving his wife and four infant children surviving. No trustees of the £2,000 having been appointed, the wife, after her husband's death, appointed two persons to be such trustees. Held, that the ap- pointment ought to have been made by the hus- band and wife jointly, smd that the appointment made by the wife was invalid. — Brasieri. Hudson, 9 Sim. 11. The institution of a suH against trustees for the administration of the trust estate under the di- rection of the court, does not preclude the exer- cise of the discretion given to the trustees by the will of the testator as to the appointment of new trustees or the management of the trust, but trustees are required, after the institution of the suit, to act under the control of the court. — Cafe V. Bent, 3 Hare, 245. The trustees of a marriage settlement being desirous of retiring from the trusts in consequence of the responsibility to which they were exposed by the acts of the tenant for life, in repeatedly charging the trust estates and funds with annui- ties and other incumbrances, filed a bill to be discharged from the trusts, and for the appoint- ment of new trustees under the direction of the court. The court granted the relief sought by the bill, and ordered the costs to be paid out of the interest of the tenant for life. — Coventry v. Coventry, 1 Keen, 758. By a settlement in the Scotch form, estates were vested in two trustees, and each of them was empowered to nominate another person to succeed him in the trusts after his death. One only of the trustees accepted the trust, and he, by his will, appointed three persons to succeed him. Held, that the appointment was good. — Sands v. N-ugee, 8 Sim. 130, nmNPiKE. Personal liability of the trustees of a turnpike road who exceed the powers given to them by their act, in borrowing money on the credit of future or expected tolls. — Wilson v. Goodman, 4 Hare, 62. By the General Turnpike Act, the trustees were empowered to let the tolls by auction ; but amongst other provisions, to prevent undue pre- ference, a minute glass is to be turned thrice after each bidding, and it is declared if no other person bids, the last bidder is to be the farmer or renter. Trustees under this act put up tolls subject to other conditions, one of which was, that unless there should be three biddings, there should be no letting, unless the trustees thought proper to take less than three biddings, and that the trus- tees should have a reserved bidding. There was one bidding only, which was made by the plain- tiff; whereupon, the trustees declared that if there was no advance, they should be obliged tw make a reserved bidding. The minute glass was turned thrice, and there was no further bidding. The plaintiff insisted that, under the express terms of the act, he was the purchaser, and he filed his bill for a specific performance. Held, that he was not entitled to relief, and the bill was 504 TUTOR— USURY. dismissed, but without costs. — Levy v. Fender- grass, 2 Beav. 415. TUTOR. A Scotchman, by deed duly made in the Scotch form, appointed his wife and eight other persons, all domiciled and resident in Scotland, to be tutors and curators of his infant daughter. Upon his death, his widow and four, only, of the eight accepted the trusts of the deed. The widow afterwards, with consent of her co-trustees, brought the infant to England, and after residing for three years in various places there, for the health of both, the widow died, recommending the infant to the care of her grandfather, who was then residing in England. The grandfather tiled a bill in Chancery, in the infant's nama, for the sole purpose of making her a ward of court, and preventing her removal to Scotland ; and upon a contest arising between him and the Scotch tutors, for the guardianship of the infant, the Lord Chancellor made an order in the usual form referring it to the master to approve of proper persons to be guardians. Held, by the Lords, (affirming that order) : — First, That the Scotch testamentary tutors were not testamentary guar- dians in England, according to the Act 12 C. 2, c. 27. Secondly, That the court had jurisdiction to appoint guardians to the infant, although her domicile and all her property were situated in Scotland. Thirdly, That the court was bound to appoint guardians to the infant, she being made a ward by the mere iiling of the bill, and although the Scotch testamentary tutors had the exclusive control of all her property, and were answerable to the Scotch courts only, they had no authority over the infant in England, nor power to protect her, nor were entitled, by virtue of the deed of appointment or by international law, to be con- firmed or appointed her guardians in England. (Dissentie7iUbus: Lord Brougham and Lord Camp- bell) . Fourthly, That persons residing out of the jurisdiction may, if otherwise qualified, be appointed guardians jointly with a person who resides permanently within the jurisdiction. — Johnstone v. Beattie, 10 Clk. & Fin. 42. UNCERTAINTY. TJNCERTAINTT. See Pl. Plea. — Poweh. — ^Remoteness. Bequest of residue to A. for life, " and what- ever she can transfer, to go to her daughters," B. and C. Held, that the gift to B. and C. was void for uncertainty. — Flint v. Hughes, 6 Beav. 342. Testatrix gave to each of the in-brothers and in-sisters, for the time being, resident in the several hospitals of or in the vicinity of Canter- bury, whose yearly income should not exceed £25, an augmentation or yearly increase of £5, for ever. Held, that the bequest was void for uncer- tainty, principally on the ground that the amount of the fund to be appropriated to answer the bequest, was not specified by the testatrix, and could not be determined. — Flint v. Wanen, 15 Sim. 626. A testator (passing over his heir at law) the son of his deceased eldest brother, gave £1,000 to the testator's father, for life, and after his death, to be continued to the testator's younger brother, and proceeded thus : — " and after his death, to be continued to my next nearest heir, and so on. This property is not meant to be disposed of by any of the family." Held, that the ultimate limitation was void from uncertainty. — Thomason v. Moses, 5 Beav. 77. A request by a testator that a handsome gra- tuity should be given to each of her executors, is void for uncertaintv. — Jubber\, Jubber, 9 Sim. 503. UNCLAIMED DIVIDENDS. "When stock has been transferred to the Com- missioners for the Reduction of the National Debt, in consequence of the dividends upon it not having been claimed for ten years, it is not a matter of course, to order it to be re-transferred to a person who subsequently makes out a legal title, upon which a transfer of the stock would have been made to him if the ten years had not elapsed. Thus, where stock had stood in the joint names of two persons, of whom one had sur- vived the other upwards of ten years, but had not, during that time, claimed any dividends, the court would not, upon the petition of the widow and personal representative of the survivor, order the stock to be transferred into her name, or into the names of the two deceased persons ; but directed the master to enquire who was entitled to the stock, with liberty to state special circumstances. —Ex parte Ram, 3 Myl. & Cr. 25. UNDERLEASE. See Lease, UNDUE INFLUENCE. See Fraud. — Solicitoe and Client. UNITARIAN. See Dissenters. USURY. Bills of Exchange and Promissory Notes ex- empted from the Usury Laws, 7 "W. 4 ; 1 Vict, c. 80 ; 2 & 3 Vict. c. 37 ; 3 & 4 Vict. c. 83 ; 4 & 5 Vict. e. 54; 6 & 7 Vict. c. 45. Bills of Exchange exempted from Usury Laws till Jan. 1, 1851, by 8 & 9 Vict. c. 102. The circumstance of the repayment of the pur- USURY. 505 chase money of an annuity being secured by an insurance of the life of the grantor, and the grantor having covenanted to pay the premiums, does not bring the case within the Statute of Usury, — Manly v. Hawkins, 1 Eiru. & Wal. 363. Semble : That an agreement between A. and B., that A. should sell a leasehold interest in lands to B., and that B. should advance a certain sum of money to A., who should build a house of greater value upon the lands, and that B. should demise the lands and house to A., at a certain rent, calculated at the rate of 9 per cent, on the money so to be advanced, with liberty to A. to fine down the rent at the rate of 9 per cent, is not usurious. — DoixUng v. Legh, 3 Jon, & L. 716. The plaintiff lent the defendant a sum of money on his bond, and on an equitable deposit. The bond, on the face of it was usurious, and an action having been brought on it, the plaintiff failed. The plaintiff afterwards came into equity, shewing that the bond had been erroneously prepared, and that in fact the contract was not usurious, and praying that the instrument might be re- formed, and effect given to his equitable deposit. The court being satisfied of the error. Held, that the plaintiff was entitled to the relief he asked. — Hodgkinson v. Wyatt, 9 Beav. 666. Quare: Whether a grant of an annuity for a term of years, which annuity in the course of time will repay the principal money, smd more than the legal interest is or is not usurious, — Kenny v. Lynch, 2 Jon. & L. 319. A. executed a bond and mortgage to B., to secure £2,000 lent to him by B., with interest at 5 per cent. B. having sold out a sum of stock to enable her to make the loan, the dividends of which exceeded the interest of the £2,000 at 5 per cent. ; A. afterwards agreed, in consideration of her letting the £2,000 continue secured at interest as aforesaid, to trsinsfer to her, when re- quested so to do, the amount of the stock so sold out, or at her option to pay to her a sum of money sufficient to re-purchase it, and in the mean time to pay to her the amount of the dividends of it, instead of the interest of the £2,000. Held, that the agreement was additional to, and substantial for the bond and mortgage, and was, therefore, usurious. — Powney v. Blomberg, 14 Sim. 179. A. applied to B. to lend hun £400, on mort- gage of certain leasehold houses, but B. refused. It was then agreed that A., in consideration of the £400, should grant to B. two annuities of £21 each for forty years, to be issuing out of the houses. Held, that the transaction was usurious. Chillingtcorth v. ChilUngworth, 8 Sim. 404. A., a builder being equitable lessee of lands for a term of ninety-nine years for building pur- poses, and having received from B. certain advances of money for building, agreed that the leases should be made out to B., and signed an acknowledgment to B. in these words: — "I hereby acknowledge that I have received from you the several sums of, &c., on account of the eight houses which I am building for you. I agree to pay you rent at the rate of eight per cent, from the date of such advance, and to take a lease of the houses upon the usual conditions, or find you a tenant, subject to yoiw approval. I am to have the option of selling the houses, provided I repay you the amount advanced on the houses, and all rent due thereon to the day you assign the lease or leases to me or my nominee." A. and B. after- wards, by letter, requested the agents of the head landlord to make out the leases to B., and by a subsequent document signed by A. and B., and written and sent to C, a creditor of A., it was stated that in case C.'s debt was not paid by a certain time, B. thereby undertook to hold the leases subject to his claim upon A., for £ , and interest for advances made by him to A. for the building of the said houses, until C.'s demand should be satisfied. Held, that if, independently of the usury laws, these documents vested in B. any interest in or lien upon the property, they were usurious and void. Held, also, that as- suming they did not vest any such interest or lien in B., yet as he, by his answer to a bill filed against him by the assignees under A.'s bank- ruptcy, insisted that he had such an interest or lien, he was not entitled, as against the plaintiffs, to the leases.^BefcAer v. Vardon, 2 Coll. C. C. 162. A., a builder, being lessee of lands, for terms of seventy years for building purposes, signed an agreement in writing, whereby, in consideration of monies to be advanced to him by B. for building, he agreed to assign the leases to B., subject to the ground rents, and to the several conditions therein contained, and to take the underleases from B. (when the houses should be completed) for a whole term, wanting ten days, at a rent that should amount to 8 per cent, upon the money to be advanced ; such rents to com- mence from the time of the respective advances. By a subsequent document signed by A. , in which he acknowledged certain advances, and stated that he had built two shops ; after repeating the agreement to pay B. rent at 8 per cent, and to take underleases, he added : — " It is also agreed that I am to have the privilege of selling the two shops, provided I repay you the amount advanced on the shops, and all interest due thereon, to the day you assign the lease or leases to me or my nominee. Held, that these agreements were usurious. — Id. If A., his necessities requiring an advance of £1,000, obtain it from B., upon a bargain that, in consideration of it. A., his executors and adminis- trators, shall pay B., his executors and adminis- trators, an annuity of £80 per annimi, for a term of seventy years, commencing immediately, the annuity to be secured by the covenant of A., binding himself personally, and after his death, his assets generally, the transaction is usurious and bad on that ground, unless upheld by those provisions of the legislature, which have recently, as to certain cases, repealed or relaxed the usury laws. — Id. Assignees of a bankrupt, who have entitled themselves to the declaration of a court of equity, that contracts entered into between the bankrupt and one of his creditors are usurious, are entitled to consequential relief on the terms, not of paying to the creditor the amount of his advances, but of allo^ving him to prove under the fiat for the amount of these advances with legal interest. —Id. 506 VENDOR AND PURCHASER. VENUE. See Pn. Issue. VESTED INTEREST. See Interest Vested. VICE CHANCELLOR. See JuKisDiCTioN. VISITOR. See Chaiutt. VOLUNTARY. See AssiGNMFNT. — Agreement. — Coven ant.- Settlement. — Deed. VENDOR AND PURCHASER. I.- IL- III.- IV.- V.- VI.- VII.—: VIII.- IX.- X.- XI.- XII.- XIII.- XIV.- XV.- XVL- XVII.- XVIII.- XIX.- XX.- XXI.—: xxir.- XXIII.^ Title Which Purchaser Must Accept 606 -Purchaser Not Bound to Ac- cept Title 507 ■Objections to Title 508 •When Time is the Essence op the Contract 50'' ■Notice 509 •Payment op Purchase Money Into Court 510 Liability op Purchaser to See to Application op Pur- chase Money 510 ■When Purchaser Goes Into Possession Without Payment OP Purchase Money 511 -Rights op Purchaser Before Conveyance Executed 512 -Lien 512 -When Heie-at-Law Purchases Charge on Estate 513 Generally 613 Contract Binding Within Statute of Frauds 614 -When Estate Increases in Value Between the Con- tract and Completion op Title 514 Interest on Purchase Money.. 514 Conditional Sale 515 ■Indemnity and Abatement to Purchaser 515 ■PuRCHASEii, When Entitled to Compensation 516 ■Vendor Bound to Complete.. 617 Purchaser Bound to His Con- tract 517 •Fraudulent Concealment and Collusion 518 Purchaser Under Decree .... 519 -Conditions op Sale ^. 519 XXIV. — Suits By and Aoainst 621 XXV. — Costs Between 621 XXVI. — Necessary Party to Con- veyance 622 XXVII.— Remedy at Law 523 XXVIII. — Specific Performance, When Decreed 623 XXIX. — Specific Performance, Whew Refused 524 I. — ^TiTLE Which Purchaser Must Accept. Any person seeking equitable relief, may, without special leave of court, and instead of proceeding by bill of complaint in tlie usual form, file a claim in the Record and Writ Clerk's Oiiice in any case where the plaintiff is, or claims to be, a person entitled to the specific performance of an agreement for the sale or purchase of any proDerty, seeking such specific performance. — 1 Gen. Ord., Art. 1, 22nd. April, 1850. A tenant in tail, by indenture of settlement executed upon the occasion of the marriage of his eldest son, reciting that he was seised in fee or in tail, conveyed the lands as if he was seised in fee, to trustees for a term of one hundred years, to secure a jointure for the intended wife of his son,in case certain other lands, on which it was primarily charged, should be sold, and subject to said term to the use ofhimselffor life, remainder to trustees for a term of two hundred years, to raise portions for his younger children, and subject thereto, to the use of his son, remainder to trustees to preserve, &c. , remainder subject to a third terra of three hundred years, to the first and other sons of his son in tail. No fine, recovery, or disentailing deed, was levied, suffered, or executed by the father or by the son. A bill was filed to raise the portions for the younger children of the father, the settlor, and a decree was pronounced, directing a sale of the term of two hundred years. After the decree, the eldest son of the marriage, his grandfather being then dead, executed a disentailing deed, and subsequently, his father having died in the in- terval, conveyed the lands in fee, expressly subject to the term, to a stranger to the suit, by whom, shortly afterwards, the fee was conveyed to the widow of the father, who was a party to the suit, and against whom a decree, upon sequestration, had been obtained. The term was sold and the purchaser objected to the title, but the title was held good by the Master of the Rolls, and after- wards, upon appeal, by the Lord Chancellor. Held, also, that the acts of the eldest son operated as a confirmation of the settlement. Held, also, that the widow of the father, having acquired her title after the decree, was bound, out of that title, to give effect to the decree. — Massy v. Batwell, 4 Dru. & W. 58 ; 2 Con. & L. 413. King Charles the Second, by letters patent, granted some property, in fee, subject to a fee farm rent, and a proviso of re-entry in case a de- cree should be made at the suit of the King for repairing the property, and the same should after- wards remain for a year out of repair. The Crown afterwards granted away the rent. Held, that the proviso for re-entry could not be exercised, and that it, therefore, formed no objection to th' Purchaser Not Bound VENDOR AND PURCHASER. to Accept Title. 507 title of the property. — Flower v. Hartopp, 6 Beav. 476. Although, where an estate, devised in settle- ment, is ordered to be sold for payment of debts, an infant remainder-man may be ordered, un- der the 11 Geo. i & 1 WiU. 4, c. 47, s. 11, to join with the tenant for life in conveying the es- tate to the purchaser ; yet, an effectual conveyance may be made by the tenant for life alone, under the 12th section of the Act. — Walker v. Aaton, 14 Sim. 87. An estate was settled to the husband and wife successively for life, with remainder to their children, as they should appoint, and in default of appointment, between such children. The husband and wife encumbered their life interests, and in August, the husband and wife having seven children, appointed the whole estate to the eldest daughter. In October of the same year, the husband, wife, and daughter, mortgaged the property for £8,000. The mortgagee, under the power of sale in the mortgage deed, sold the pro- perty to the plaintiff, and after the title had been approved of, one of the younger children gave notice to the plaintiff not to complete, and that the appointment was a fraud on the marriage settlement, and also cautioning the purchaser not to pay the purchase money, and he did not, how- ever, follow up the notice by any proceeding. Held, that notwithstanding this, a good title was shewn, and that the purchaser must complete. — Green v. Pidsford, 2 Beav. 70. A. agreed to demise certain premises to B. There was an outstanding equitable interest vested in C. Held, that B. was bound to accept a de- mise from A., in which C. joined, and was not justified in insisting on A. obtaining a release from C, in order to enable him alone to make a valid demise. — Reeves v. Gill, 1 Beav. 375. II.— PcRCHASER Not Bovnd to Accept Titie. A hospital having a corporate character was es- tablished in close connection with a municipal cor- poration. The Ex-Mayor was to oe the Governor, the Masters and Assistants were elected from the corporation, and the Mayor and Aldermen were visitors. Held, that the corporation and hospital were, in equity, incapable of contracting, and a purchase, by the corporation of property be- longing to the hospital, was set aside. — Alt. Gen, V. The Corporation of Plymouth, 9 Beav. 67. Upon the sale of a leasehold for lives, expressed to have been granted by a corporation in con- sideration of the surrender of a prior lease, the title to the surrendered lease must be shewn, — Hodgkinson v. Cooper, 9 Beav. 304. After the purchaser of an estate, sold under a decree, had approved of the title, a deed was dis- covered, whiuh shewed that the plaintiff could not make a title to more than a moiety of the estate. The court discharged the purchaser from his purchase. — Ward v. Trathen, 14 Sim. 82. The owner of land situated on an acclivity, conveyed, by a deed of 1816, a portion of lower land, with liberty to enter on upper lands, and fetch water from a spring, and to cut open, cleanse, and cover in such gutters and drains as might be necessary for the purpose of conducting the spring to the conveyed land ; and also with liberty to pass and re-pass, for ingress and egress, on the upper land around or adjoining the con- veyed land ; and to put any ladders against the cottages then intended to be built upon the con- veyed land. By another deed, of 1820, another part of the lower land was conveyed, with liberty to take water from specified springs in the higher land, and to make such reservoirs, in a particular field, part thereof, as might be necessary for taking up water for family use and other neces- sary purposes ; and with liberty to pass, for ingress and egress, in the upper land surrounding or adjoining the conveyed lands. By other deeds, of 1824, other portions of the lower land were released, with all water-courses, particularly as the same ran to an inn on the conveyed land, from the upper land. By other deeds, of 1825, further portions of the lower land were released, with liberty to fetch water for family and domestic uses, at a well on the higher land. By other deeds, of 1834, another part of the lower land was released, with liberty to the releasee to make a covered goit, or water-course, across the bottom part of a field, part of the upper land, and to open and repair the same when necessary. Several years afterwards, the upper land was sold, according to a particular describing it as fit for building, and subject to conditions of sale, pro- viding that, if any mistake were made in the description of the premises, or if any other error should appear in the particulars, such error of omission should not annul the sale, but compen- sation should be given or taken. The existence of the easements was not stated in the particulars or conditions. Held : — First, That the circum- stances of the purchaser living in the neighbour- hood, being acquainted with the property, and passing constantly some of the wells on the lower land supplied from the upper land, did not affect him with notice of the existence of the easements. Secondly, That the existence of the easements granted by any one of the deeds of 1816, 1820, and 1834, alone, constituted a material defect in the title to the upper land. Thirdly, That the existence of the easements granted by the deeds of 1824 and 1825, woiUd have been, alone, suffi- cient to render the title subject to such serious doubt, that a purchaser could not be compelled to accept it. Fourthly, that, under the circum- stances, and inasmuch as the whole purchased land did not exceed thirty acres, the purchaser could not be compelled to take the title, with compensation, as the lands prejudicially affected, which admeasured about four acres and a half. Shaekleton v. Sutcliffe, 1 De G. & S. 609. Where property is sold under a decree, and there is jurisdiction to sell, mere irregularities and errors in the proceedings will not invalidate the sale, or prevent a good title from being mcde under the decree. — Calvert v. Godfrey, 6 Beav. 97. A purchaser, under a decree, to whom a good title could not be made, discharged from his pur- chase, with his costs, charges, and expenses, in- cluding, the costs of his petition, to be discharged. A trader who had freehold, copyhold, and per- sonal estate, died in September, 1832, leaving an infant heir. His estate was insufficient to pay his debts and charges ; his partners, however, by deed, took upon themselves to pay all the debts, and secured the principal part of his property for his famUy. A suit was instituted for carrying the deed into execution, and the master found that it would be for the benefit of the infant heir, that the real estate should be sold and applied in the manner mentioned in the deed. A decree was made for sale, and the infant was declared a trustee, within the 1 Will. 4, c. 60. Held, that a sale under the decree could not be enforced— that the court had no jiuisdiction to order the 508 Objections to Title. VENDOR AND PURCHASER. When Time, Sfc. sale — thai the infant was not a trustee within the act — that the purchaser was not bound to wait till the error was corrected ; — and the court there- fore discharged him with his costs, charges, and expenses. — Id, Even after great delay and acquiescence, the court wUl not compel a purchaser to complete if the title appears to be manifestly bad. — Blackford V. Kirckpatrick, 6 Beav. 232. Where an estate was directed by the testator to be sold after the death of a certain person, and the sale was made during the life of that person, under a decree, some of the persons interested in the proceeds being infants or not aui juris, the court would not compel the purchaser to accept the title, — BlacMow v. Laws, 2 Hare, 40. Trustees were empowered by act of parliament to sell and exchange all or any of the heredita- ments mentioned in the schedule to the act, amongst which was a farm called the Mountain Farm Parcel of the Manor of W. In the body of the act there was a proviso that the Manor of W. should not be sold. The trustees having con- tracted to sell the Mountain Farm ; Held, that the purchaser was not bound to accept the title. — Earl of Lincoln v. Arcedeekne, 1 CoU. C. C. 98. Assignees of a bankrupt agreed to sell a part of his estate, and filed a bill for specific performance. It turned out that the estate was vested in as- signees under a previous insolvency. After the master had made his report upon a reference as to title, the assignees in insolvency offered to concur in the sale. Held, that a good title could be made. — Sidebotham v. Barrington, 4 Beav. 110. Purchaser discharged from his agreement, upon a doubt whether the land was not bound by a covenant, of which he had not notice. — Brisiow V. Wood, 1 CoU. C. C. 480. III. — Objections to Title. Reference as to title directed on motion after answer to a bill for specific performance by the vendor against the purchaser, notwithstanding the purchaser stated that his requisitions on the abstract had not been complied with, although the time for completion of the contract had long expired, and he had given notice of his intention to rescind the contract. — Wood v. Machu, 5 Hare, 158. Objections to title mean such objection as can only be properly the subject of adjudication upon the investigation of the title ; and such are cases where the dispute is as to the application of the conditions of sale, the propriety or validity of the conditions themselves not being questioned. —Id. In 1772, a woman, who was a party to a suit in Chancery, and who was married, but whose marriage did not appear in any of the proceedings in the suit, was, by an order in the suit, treating her as a feme sole, directed to convey a freehold estate to P., a purchaser. She afterwards, together with her husband, executed a convey- ance of the estate to P., in which conveyance the husband covenanted with P., that he and his wife would levy a fine on the estate. It did not appear that a fine was ever levied. On a bill by a vendor claiming under P., against a purchaser for specific performance, the purchaser objected to the title on the ground of a want of a fine, and the defectiveness of the proceedings in Chancery. Held, that the objectirai was not one of title, but of conveyance, inasmuch as the order in Chancery, notwithstanding its informality, was binding on the married woman, and rendered her a trustee for the purchaser, and she was, therefore, com- pellable to complete the legal title, — Jumpaon v. Pitchers, 1 CoU. C. C. 13. A party acting as the absolute owner contracted to sell property. He was the absolute owner of part, and as to the other part he was tenant for life, with a power of sale at his request, and by his direction vested in trustees. Upon a bUl by the purchaser for a specific performance, an enquiry was directed " whether the defendant could make a good title, or eouldby appUcation to the trustees procure a good title to be made." — Graham v. Oliver, 3 Beav. 124. Difficulty in decreeing a partial performance of a contract, where a vendor has not the power of fully performing it. — Id. The conditions of sale provided, that all ob- jections to the title disclosed by the abstract, not taken within a certain time after delivery of the abstract to the purchaser should be deemed to be waived. Held, that the time for objection was not to be computed from the time of the deUvery of an imperfect abstract, and that the purchaser was not precluded &om taking any objection which arose out of the evidence caUed for before the expiration of the time fixed. — Blacldov) v. Laws, 2 Hare, 40, IV. — ^When Time is the Essence op the Contract. Specific execution of a contract to grant a lease decreed, the contract having been performed in all respects, save the execution of the lease, and time, if of the essence of the contract, not being the ground upon which the landlord re- fused out of court, to execute the lease ; but with- out costs, because of the laches of the plaintiff in asserting his rights. — Burke v. Smyth, 3 Jon. & L. 193. Though time may not be of the essence of the contract, yet upon unreasonable delay on the part of a vendor in completing, the purchaser, upon giving notice, may rescind the contract. — Benson V. Lamb, 9 Beav. 602. It being one of the terms of a contract between. vendor and purchaser, that certain parties were to join in the conveyance, the court would not enter into the question whether they were neces- sary or proper parties. — Id. In a suit by a vendor, for specific performance against a purchaser, if the contract stipulated that the possession should be given at a specified day, it is competent for the purchaser to insist that both time and a vacant possession are of the essence of his contract ; and the court will receive as evidence that such was the purchaser's object, statements made by the agent of the purchaser at the time of signing the contract. Where a purchaser has consented to enlarge the time for completion, and where a vacant possession was of the essence of the contract, it is competent for him to object to complete at the expiration of such enlarged time, if the possession is not then vacant, and if he has done no act towards com- pletion of the contract after he had notice that vacant possession could not be given at the day. But where a purchaser had, by his acts, waived the time of completion in the first instance, and had gone on for some time inducing the vendor Notice. VENDOR AND PURCHASER, Notice. 609 to incur expenses to perfect hia title ; and sud- denly upon the discovery that vacant possession could not be given according to stipulation, declined to complete. The court although it dismissed a bill filed against such a purchaser for a specific performance, dismissed it without costs. — Nokes V. Lord Kilmorey, 1 De. G. & S. 444. The purchaser cannot, owing merely to the delay of the vendor in complying with his requi- sitions, determine the contract without notice, or bring an action for his deposit before the termina- tion of his notice, where time was not originally of the essence of the contract. "Whether he can do so after the expiration of notice, where time has not been made of the essence of the contract, or, being of the essence of the contract, has been waived, depends upon the conduct of the vendor after notice. — Wood v. Macher, 5 Hare, 168. Though time be not of the essence of a contract, it may be made so by notice, where there has been great and improper delay on one side in completing. It may, however, be waived, by proceeding in the purchase after the expiration of the time fixed by the notice. — King v. Wilson, 6 Beav. 124. Time held to be of the essence of the contract between vendor and purchaser, partly by reason of the nature of the trade carried on upon the property ofiered for sale, and partly upon the construction of the conditions of sale. — Heaton v. Mapp, 2 CoU. C. C. 656. Agreement for sale of real property, with stipu- lation that, if the residue of the purchase money is not paid by a certain day, the agreement shall be void, and the vendors shall have power to re-sell. The money is not paid on the day, but the purchaser retains possession, giving a warrant of attorney to confess judgment in ejectment. The stipulation as to time in the agreement is waived. — Ex parte Gardner, 4 Y. & C. 603. Where time is of the essence of the contract, and there is unnecessary delay by one of the parties in completing, the other has a right, by notice, to limit the time for completing the con- tract, and upon default, to abandon the contract. A bill was filed by a vendor for the specific performance of a contract ; the purchaser insisted that the contract had been abandoned, failing in this defence, he was ordered to pay the costs of the suit up to the hearing, and the usual reference was made as to title. — Taylor v. Browne, 2 Beav. 180. Testator devised a house to trustees, upon trust to permit his son, at any time within three months after his death, to become the purchaser thereof, at the price of £4,000, and to sell and convey the same to his son, his heirs, &c., but ehould his son not complete such purchase within the three months, then the trustees were, within twelve months fi:om the testator's death, to sell the house by auction. The son, within two months from his father's death, declared to flie trustees his intention to purchase the house, at the sum mentioned, but he did not pay any part of the purchase money, nor was any conveyance executed to him within the three months. Held, that he could not enforce his option. — Dawson v. Dawson, 8 Sim. 346. V. — ^Notice. A, seised in fee by registered deed, conveyed lands to a trustee, upon trust, to sell and pay debts and incumbrances, and the residue to him- self ; subsequently, A. in 1782, for valuable con- sideration, by registered deed, demised the lands to B., (who did not appear to have had notice of the trust deed) for lives, renewable for ever, sub- ject to a lease thereof, then subsisting. The rent reserved, was equal in amount to the rent payable under the sub-lease. In 1789, the lands were sold to N., under a decree in an administration suit, instituted before 1782, by a judgment cre- ditor of a former owner of them, against A. and his trustees, who joined in conveying the lands to N. It was not shewn, that A. had been served with a subpoena in that suit, before the making of the lease of 1782, and he did not appear in it till afterwards. N. had not notice of the lease when he purchased. The purchase money was applied in payment of incumbrances created prior to 1782. The last life of the lease of 1782, died in 1835, and the sub-lease deter- mined in 1839 ; and shortly afterwards, a claim for a renewal of the lease of 1782 was, for the first time, made by the heir at law of B. Held, that N. having, without notice of the plaintifi"s equity, acquired the prior legal estate from the trustees of A., and the entire equitable interest, by the application of his purchase money in payment of prior incumbrances, was not bound to renew the lease of 1782; and also, that the laches of the parties deriving under the lease, in claiming a renewal or obtaining a recognition ot their title, was, under the circumstances, a bar to the suit. — Drew V. Lord Norbury, 3 .Ton. & L. 267. From 1782 to 1839, the persons claiming under the sub-lease paid their rents directly to the head landlord. The persons claiming under the lease of 1782, neither received nor paid any rent, nor was their title acknowledged by the head land- lord, save that, in 1833, they were served by him with an ejectment, for non-payment of rent. Quaere : Was their title barred by the Statute of Limitations. — Id. A vendor being seised in fee of lands, subject to annuities which she had granted to an attorney in consideration of advances made and costs in- curred by him, agreed to sell the lands to the plaintiff, stating to him that the grantee of the annuities would join in the conveyance. A deed of conveyance was executed by the vendor ; the purchase money was not paid, but part of it was deposited vrith the attorney who had acted for the vendor and the plaintiff, to remain in his hands until the lands were discharged from the annuities. The plaintiff then called on the vendor, and the grantee of the annuities to execute a deed of indemnity, which the parties declined to do. The vendor subsequently sold the lands to the grantee of the annuities, who had actual notice of the plaintiff's conveyance. On a bill filed to set aside the second sale : — Held, that the vendor was justified in treating the transaction between her and the plaintiff as incomplete, and in selling to the grantee. It was attempted to impeach the consideration of the annuities; but, Semble : such a question was not open to the plaintiff. Leader v. Aheame, 4 Dm. & "W. 495. If the same person is agent both for the vendor and purchaser, or is himself vendor and agent for the purchaser, whatever notice he may have will affect the purchaser ; and a purchaser taking a conveyance from a vendor, who has not pos- session of the title deeds, wiU take it with notice of any claim which the party in possession of the title deeds may have. The benefit of the vendor's lien for purchase money unpaid, may be assigned by parol to » 510 Purchase Money, 8fc. VENDOR AND PURCHASER. Lialilily of Purchaser. third party — Semhle. — Dryon v. Frost, 3 Myl. & Cr. 670. They, who with notice of his title, deal with a person entitled to a partial interest in an estate, are responsible for any dealing with the property which professes to incumber and embarrass the estate of the other persons claiming under the same instrument. They are not at liberty to deal with the estate so as to embarrass the other per- sons claiming under the same instrument. — Nixon V. Rohinaon, 2 Jon. & L. i. Parties claiming under a marriage settlement, subsequent to such a decree, are affected with notice, for they are purchasers, petidente lite ; a decree for an account being only a continuance of the litigation. Semble: If a man sells lands which are subject to specialty debts, this court will presume that the purchase money is to be applied to the discharge of those debts, and that the sale is made with that view, and the purchaser will be discharged. — Higgina v. Shaw, It, Dru. & W. 356. The purchaser of the estate of an insolvent debtor from his assignees at a sale by auction, will not be affected by constructive notice of cir- cumstances of negligence on the part of the as- signees in conducting the sale, such circumstances being entirely collateral to any question of title, — Borell V. Dan, 2 Hare, 440. A sale of the estate of an insolvent debtor, made bona fide at a public auction, is not, after con- veyance to the purchaser, necessarily voidable in equity, only because the purchaser, after the sale, but before the conveyance, had notice of circum- stances attending the conduct of the sale by the assignees, amounting to negligence on their part. — Id, On a purchase from a mortgagee of a fund standing in the name of trustees, it is not an essential blot on the title, that notice of the in- cumbrance was not given to the trustees, if it can be shewn that no subsequent incumbrancer has given notice. Whether the title to a trust fund is bad, where, in consequence of the death of trustees, infor- mation cannot be obtained from them of tlie in- cumbrances of which they had received notice — Quiere. — Hobson v. Bell, 2 Beav. 17. A defendant who means to rely on his being a purchaser for valuable consideration without notice, must, by his answer, deny notice, though it be not charged in the bill that he had notice — Ireland v. Kidd, 1 Jon. & Ca. 249. VT, — ^Payment op Phechase Mont:t Into Court. Upon a sale under the court, an order upon the purchaser to pay his purchase money into court cannot be obtained, until the title has been ac- cepted or the master's report obtained in its favour ; and such an order, obtained before such acceptance or report, upon affidavit, of service of the notice of motion, was discharged with costs. — Sutter V. Marriott, 10 Beav. 33. Applications of purchasers to pay purchase money into court, and to be let into possession without prejudice to objections to the title, are always refused. — Id. Notwithstanding the general rule, the court may, under special circumstances, permit a pur- chaser to pay his purchase money into court, before he has accepted the title ; but in such case express provision must be made against his taking possession, until he shall have accepted the title. — Dempsey v. Dempaey, I De (J. & S. 691. Held, that a purchaser under a decree, could not be permitted to pay his purchase money into court without accepting the title, although all parties consented, and although the conditions provided, that if, from any cause whatever, the money should not be paid by a particular day, the purchaser, making default, should pay interest from that day. Held, also, that the above con- dition did not render the purchaser liable to pay interest; where he had given notice (as was the fact) tliat this money was lying unproductive, and the delay arose from the state of the title. — Denning v. Henderson, \ De Gr. & S. 689. Where interest is payable on purchase money, upon a sale by order of the court, the purchaser must pay the full purchase money and interest into court, without deducting the income-tax. — Holroyd v, Wyatt, 1 De G. & S. 125. An estate was sold to a party to a suit for payment of testator's debts, and which, by the disclaimer of a trustee, was vested in them pur auter vie, with legal remainder to the children of A., (who was living) as tenants in common. The purchase money was in court. The case appeared not to be within the 1 Will. 4, c. 47, so that no effective conveyance could be made until the death of A. Held, that the purchase money ought not to be distributed, — Hemming V. Archer, 9 Beav. 366. A purchaser under the Court will not be allowed to take possession, " without prejudice to objections to the title," even upon payment of his purchase money into court. — Hutton v. Mansell, 2 Beav. 260. Where an estate was sold under a decree of the court, and one of the conditions of sale was, that the purchaser pay the purchase money into court on a given day, at his own expense ; it was Held, that the purchaser was entitled to the costs of a reference as to the title, reported good by the master. — Camden v. Benson, 1 Keen, 671. VII. — Liability of Purchaser to Seb to Application op Purchase Money, A, effected two policies of insurance upon his life, one in his own name for £425, and the other for£l,700,in the name of J.; and by adeedof the year 1808, he assigned these two policies to J. upon certain trusts, which were declared in a deed of the same date, and which latter was referred to in the deed of assignment, the trusts were first to pay certain debts of A., and to reimburse J. advances which he, from time to time, had made to A., and subject thereto, to hold the residue to form a fund for the daughters of A., in such shares as he should appoint. Upon the death of A., the amount of the policies was claimed by the executor of J., and, at the same time, notices were served upon the company by the adminis- trators of A., one of his daughters and the husband of another daughter, cautioning the com- pany againstpaying over the amount of the policies to L. Held, upon a bill of interpleader thereupon filed by the company, that, as to the holding of £1,700, there was no case of interpleader estab- lished, for that, although there was no declaration in the deed of 1808, that the receipt of the trustee should be a discharge, yet that the nature of the trusts of the deed was sufficient to absolve the company from seeing to the performance of the Liability of Purchaser, ^e. VENDOR AND PURCHASER. Possession, S^c. 511 ti'ust or the application of the money. — Glynn V. Locke, 3Dru. &W. 13. The rule which relieves a purchaser from seeing to the application of the purchase money, when the estate is subject to a primary general charge of debts, has reference to the time of the testator's death, and does not cease to be appli- cable, though the debts be subsequently paid, and therefore where an estate so charged, was sold by the trustee ; it was Held, that the cestuis g«e trust were not necessary parties to the conveyance, though the sale did not take place till twenty- five years after the testator's death, and the vendor. Ml being asked by the purchaser whether all the debts were not paid, had refused to answer the question. — Forbes v. Peacock, 1 Phil. 717. A lessee assigned the demised premises to A. by way of mortgage, and afterwards made two equitable mortgages of them, one to B., and the other to C, and died. C. agreed to purchase the lease of his executors free from incumbrances, and afterwards took possession of the premises, but did not pay the purchase money. Held, that as between C. and the executors, the piirchase money must be considered to have been applied, on tiie day on which C. took possession, towards satisfaction of the incumbrances, according to their priorities. — Greenwood v. Taylor, U Sim. 505. A testator gave his real and personal estate to A., subject to the payment of his debts and cer- tain annuities, and appointed him executor. Held, that A. could make a good title to the real estate without the concurrence of the annuitants, and that a purchaser from A., was not bound to see to the application of the purchase money. Held, also, the objection was one of title and not of conveyance. — Page v. Adam, i Beav. 269. Freehold and leasehold estate was devised to A., subject to the payment of debts and annuities. A. sold the real estate. The purchaser insisting that the annuitants ought to concur, filed a bill against the vendor for a specific performance. The vendor's answer admitted the sufficiency of the personal estate to pay the debts : — That they had all been paid since the contract, and that the sale had not been made for the specific purpose of satisfying the debts. Held, that these circum- stances did not vary the rule as to the liability of the purchaser to see to the application of the purchase money, and that he was bound to com- plete. — Id. Where a testator has charged his real estate with his debts, and the executor proceeds to sell the estate, the purchaser has a right to ask him whether all the debts are paid or not, and if he declines to answer, the purchaser will be consi- dered to have had notice that all the debts have been paid, and will be answerable for the applica- tion of his purchase money. — Forbes v. Peacock, 12 Sim. 528. The question whether an executor or trustee who sells an estate can give a good receipt for the purchase money, is not a question of convey- ance, but of title. "The decisions in Bentham v. Wiltshire, 4 Madd. 44, and Page v. Adam, 4 Beav. 269, disapproved of. — Id. A testator, after commencing his will with words amounting to a charge of his real estate with the payment of his debts, devised an advowson to trustees upon trust, to present his younger son to the living when vacant, and subject thereto, in trust to sell and appVy the produce of the sale for the special purposes therein-mentioned ; and he deyised his residuary real estate upon certain trusts to other trustees, and appointed three ex- ecutors, (who proved his will,) one of whom was his younger son, and another, one of the trustees of the advowson. The personal estate being insufficient for the payment of his debts, the trustees of the advow- son, one of whom was an executor at the instance of the other executors, contracted to sell the ad- vowson before any vacancy had occurred in the living. In a suit for specific performance by the trustees of the advowson and executors against the purchaser, it was Held, that the charge being, in effect, a devise of the real estate in trust for the payment of debts, a good title could be made by the plaintifis without the insti- tution of a suit to ascertain the deficiency of the personal estate, and that the purchaser was not bound either to enquire whether other sufficient property ought first to be applied in payment of debts, or to see to the application of the purchase money. — Shaw v. Borrer, 1 Keen, 559. Mortgagees, with notice of a specific charge for payments of debts upon devised estates, were Held, notwithstanding releases of the executors to the devisees, ( such devisees being themselves two of the executors, and the releases not shewing that the charge had been raised and paid,) to be bound to see to the application of the mortgage money, — BraitAtoaite v. Britain, 1 Keen, 206. Vm. — When Pubcsasee Goes Into Posses- sion Without Patment op Pdbchasb Monet. A contract for the sale of an estate, was made in March, 1811, the agreement being, that the purchase money should be paid on the 13th of May, following, and the purchaser was let into possession immediately on the execution of the contract. The purchase money was not paid, but the purchaser, and persons claiming under him, continued in possession. In 1844, the assignees of the vendor filed their bill, claiming a lien on the estate for the purchase money and interest, from the day fixed for the completion of the con- tract. Held, that the right of the vendor to recover the purchase money, as a Uen or charge upon the land, was barred by the 40th section ol the Statute 3 & 4 WiU. 4, c. 27 ; that under a contract for the sale of land, the equitable title of the vendor, and those representing him, to re- cover from the vendee, and the obligation of the vendee to pay the purchase money, in the sense in which it is described, as a trust, is not an ex- press trust, within the 25th section of the Statute 3 & 4 Wm. 4, c. 27, and, therefore, that the right of the vendor, as such cestui que trust, to a Uen or charge upon the land for the amount of the pur- chase money, is not kept on foot under the provision contained in that section ; that the right of the vendor to recover the purchase money, as a lieu or charge upon the laud, is not preserved by the existence of a suit by the creditors of the devisor of the estate, under whose will the sale took place, for the administration of his estate, nor by sxuts by the residuary devisees and lega- tees of the purchaser, for the administration of his estate. Whether, from the relation existing be- tween the vendor and purchaser of land, consti- tuting the purchaser a trustee, of the purchase money, for tiie vendor, there arises any other than a constructive trust, as to which, the relief in equity, by analogy to the Statute of Limitations, will be barred by long acquiescence — Qiunre, — Toft V. Stephenson, 7 Hare, 1. 512 Rights of Purchaser, ^e. VENDOR AND PURCHASER. Lieii. A lessee assigned the devised premises to A. by ■way of mortgage, and afterwards m.ade two equitable mortgages of them, one to B. and the other to C, and died. C, agreed to purchase the lease of his executors, free from incum- brances, and afterwards tooli possession of the premises, but did not pay the purchase money. Held, that as between C. and the executors, the purchase money must be considered to have been applied on the day on which C, took possession, towards satisfaction of the incumbrances, according to their priorities,— Greenwoorf v. Taylor, 14 Sim. 505. Purchaser, after long possession, and vexatious objections to complete the purchase. Held, to have waived his right to an investigation of the title, and decreed to perform the agreement spe- cifically to pay interest at £4 per cent, on the ■unpaid purchase money, from the time of taking possession, and to pay the costs of the suit. — Hall V. Laver, 3 Y. & C. 191. A party contracted for the purchase of the benefit of an agreement for the lease of a public house, and also the stock and good-will. He entered into possession before the lease had been granted ; paid part of the purchase money, and mortgaged his interest. Held, that after this mode of dealing, he ■was not entitled to call for the production of the lessor's title, or for evidence that the lease ■was made in conformity ■with the power under which it was granted. — Haydon v. Bell, 1 Beav. 337. IX.— Rights op Purchaser before Conveyance EXECDTED. Although a purchaser before the conveyanee, has neither a legal nor an equitable right as against the seller, until he pays the purchase money, yet, for all purposes of disposition, the equitable estate, which he obtains under the con- tract for sale is subject to his control, and judg- ments obtained against him are liens on it.— Baldwin v. Belcher, 1 Jon. & L. 18. Construction of a contract for the sale of a lease- hold estate, whether it was a contract for a sale of the vendor's interest in the lease, whatever it might be, or that a good title to the leasehold estate, should be made out. — Anditrson v. Higgins, 1 Jon. & L. 718. Under a contract to make out a good title to a lease, for lives renewable for ever, the vendor must shew who are the lives in existence at the time of the contract. — Id. Where a life estate was sold under a decree, and the tenant for life died ; and subsequently to the lodgment of one-fourth of the purchase money and the obtaining of the rule nisi, but prior to the confirmation of the sale ; Held, that the contract was not complete, until the sale was confirmed by the order of the court, and that the purchaser was not bound to complete his purcliase. — Vin- cent V. Going, 3 Dru. & W. 75. X. — LiE.v. Sale_ and assignment of a life interest in lease- holds, in consideration of a weekly sum to be paid to the vendor during her life, with a covenant by the purchaser, for himself, his heirs, executors, and administrators, to make the weekly payment to the vendor, and to repair and insure the pre- mises, and otherwise perform the covenants in the lease. Held, that the vendor was entitled to a lien on the life interest m the leaseholds, which was the subject of the assignment for the weekly payment. — Matthew v. Bowler, 6 Hare, 110. A. agreed to sell an estate to B. for an annuity, and B. ■was to pay ofi^ a mortgage to wliich the estate was subject. Accordingly, B. executed a deed, by which he granted the annuity to A., and covenanted to pay it; and by a conveyance of even date, but executed after the annuity deed, after reciting the agreement and the annuity deed, A. and the mortgagee, in pursuance of the agree- ment, and in consideration of the annuity having been so granted, as aforesaid, and of the payment of the mortgage money, conveyed the estate to B. The annuity afterwards became in arrear. Held, that A. had no lien on the estate for the annuity. — Btickland v. Pocknell, 13 Sim. 406. Vendor of an estate obtained a decree for specific performance, with a declaration that, if the pur- chase money was not paid by a given day, the estate should be sold, the proceeds paid to the vendor, and the purchaser be made personally liable, in the event of any deficiency. The master fixed the payment, but the purchaser died before that day insolvent, and a creditor's suit was instituted for the administration of his assets. Upon a bill of revivor and supplement filed by the vendor, praying to have the benefit of the creditor's suit, as well as his own. Held, that he was not entitled to prove against the general assets of the testator, and, at the same time, to reserve his lien on the estate contracted to be sold in case of a deficiency in the general assets. — Borne V. Young, 3 Y. & C. 199. Quare : Whether, in this case, he had any claim on the general assets until after the estate had been sold ; and if he had, whether he was entitled to prove for the whole amo-ant, or only the deficiency after sale of the security. — Id. A testator was in the habit of selling land to builders, and of advancing them money for the purpose of building on it, and on the statement of an account between the parties, for the balance of unpaid purchase money and money lent, the builders, by a memorandum in writing, acknow- ledged that the balance agreed upon was a charge upon the land. The testator, by his will, authorised his executors to make such agreement with purchasers, of any part of his real estate, and to advance money to them for building in the same manner he had been accustomed to do. The executors accordingly sell a portion of land for this purpose, leaving the purchase money to remain a charge upon the land, and they also make advances to the purchaser to enable hiii to build thereon, but without taking a memo- randum in writing, expressly declaring that the advances were to be a charge upon the land. The purchaser became a bankrupt. Held, that the executors had a lien on the land so sold, for the advances made by them since the death of the testator. — Ex parte Linden, re Baker, 1 M. D. & D. 428. A quantity of tea is sold at a price which is to be paid at a future day ; after the day had elapsed the purchaser pays a sum on account, and writes to the vendors who have retained the warrants in their possession, requesting them to wait the arrival of theOverlandMail,and,on its receipt, to dispose of the tea. He afterwards becomes bankrupt. Held, (1.) That the vendors have a lien on the tea. (2.) That an application to the court for an order for sale, is not improper or un- necessary ; and (3.) That the letter is a sufficient written memorandum, to entitle the vendors to Generally. VENDOR AND PURCHASER. GeneralhjK 513 their costs. — Bx parte Twining, re Coles, 1 M. D. & D. 691, XI. ^When Heir-at-Law Pdrchases CnAnaE ON Estate. The heir-at-law, who was also the personal representative of a deceased debtor, purchased up an incumbrance on the estate, for less than the sum due on foot of it. Held, imder the cir- cumstances, that he was entitled to the full amount of the sum secured by it, as against a subsequent incumbrancer, a solicitor, who advised the purchase as a means for providing for the heir, and did not disclose that the purchase would enure to his benefit. — Baffly v. Wilkins, 3 Jon. & li. 630. XII. — GENEaAlLY. A purchaser of land, which was conveyed to him in fee simple, covenanted for himself, his heirs, executors, administrators and assigns with the vendor, his heus, executors and adminis- trators, that the land should be used and kept in ornamental repair as a pleasure garden, for the benefit of the occupiers of houses in the neigh- bourhood, which belonged to the vendor. Held, that the vendor was entitled to an injunction, as against the assigns of the purchaser, to restrain them from building upon the land, although the character of the neigbourhood had been greatly changed by the increase of building there ; and its privacy, as a place of residence, had been very much diminished by the opening of thoroughfares, and the occupiers of the vendor's houses had ceased to use tbe garden, or to pay for the privi- lege of doing so, and although the vendor had not obtained any decision in a court of law, whetlier the covenant did or did not run with the land, so as to be binding on the parties who claimed under the original purchaser. The juris- diction of the court in such cases, is not fettered by the question, whether the covenant does or does not run with tbe land. — Tuck v. Moxhay, 1 Hall & T. 105. The plaiutiffbeing beneficially interested with others in an annuity or rent charge issuing out of lands; and secured by the covenant of the grantor, joined in a suit against the purchaser of the lands, to whom they were conveyed, ex- pressly subject to the annuity, for the recovery of the arrears thereof ; and in that suit recovered six years' arrears only, there being more due. The plaintiff then obtained administration to the grantor of the annuity, in order that she might become defendant in an action at law on the cove- nant. Such action was brought, and judgment by default was recovered against her for the arrears due beyond the six years, the damages and costs, to be levied, de bonis teatcUoris et si non, the costs, de bonis propriis. She then filed a bill against the purchaser to be indemnified against the judgment. Held, that her right to institute the suit depended upon the existence of damage which she had sustained or might sustain by the judgment, and, therefore, that she was bound to shew that there were assets, out of which the judgment might be levied ; and — Qwere : Whether she was entitled to relief upon proof of the existence of assets, she having ob- tained administration to the covenantor, in order to raise the case of damage, of which she com- plained by the bill . — Byrne v. Dvignan, 3 Jon. & L. 116. A trader confessed a judgment to A., and exe- cuted a mortgage to B. j the execution of the deed of mortgage was subsequent to the entering up of the judgment. ITie trader afterwards became bankrupt. Held, that the mortgage was to be paid in the first instance, and that the judgment was within the operation of the 6 Will. 4, c. 14, 8. 126. The case of a mortgage creditor stands on altogether a different footing from that of a purchaser. — White v. Baylor, 4 Dru. & W. 297. A purchaser, being a creditor of the agent of the vendor of an estate, is not entitled, by agree- ment with the agent alone, to place the debt, due to the agent, to the debit of the principal, on ac- count of the purchase money. — Young v. White, 7 Beav. 506. By a marriage settlement, an estate, the pro- perty of the wife, was limited in default of chil- dren of the wife, to trustees, in trust to sell and divide the proceeds amongst the brothers and sisters of the wife. The bxisband agreed to sell the estate, and he and his wife joined in con- veying it to the purchaser by deed and fine. The wife died vrithout issue. ' Held, that the limita- tion in favour of her brothers and sisters was voluntary, and therefore, void as against the purchaser. — Cotterelv. Homer, 13 Sim. 506. A court of equity will not, at the end of half a century, fix upon a purchaser a difficult construc- tion of an ambiguous instrument, which it might have done as between the original parties in case there had been no sale. AVhere estates and other property, forming a mixed fund, are settled, subject to a power of appointment, the court, where the parties entitled to this mixed fund are numerous, will not, as against a purchaser of part of the mixed funds, in which purchase one of its objects acqui- esced, act as against that purchaser without knowing all the cUspositions of that mixed fund. — Thompson v. Simpson, 1 Dru. & W. 459. A testator bequeathed certain leaseholds to trustees, upon trust, out of the yearly rents and profits, to pay an annuity of £300 to his wife for her life, and subject thereto, apply certain sums for the maintenance of his grandson, A. T., until he attained the age of twenty-one, and then to permit his grandson, A. T., to take the profits thereof for and during his life, and from and after his decease, to permit the person, who, for the time being, would take, by descent, as heirs male of the body of the said A. T., his grandson, to take the profits thereof until some such person should attain the age of twenty-one years, and then to convey the same to such person so at- taining the age of twenty-one years ; but if no such person should live to attain the age of twenty-one years, then to permit such persons successively, who, for the time being, would take, by descent, as heirs male of the body of B., the testator's son, to receive the rents until some such person should attain the age of twenty-one years, and then to convey the same to such male heir first attaining that age, his executors, &c. J and, by the wUl, a limited leasing power over those leaseholds was given to the trustees, until some person should be entitled to an assignment of them. The testator appointed the trustees to be exe- cutors of his will, and gave to one of them, E. K., whom he directed should act as agent to the trust estate, an annuity of £100 per annum. B,, the testator's son, died in his lifetime, artd, at the death of the testator in 1771, A. T., his grandson, and the testator's two daughters wpre his sole LL 514 Contract Binding, ^c. VENDOR AND PURCHASER. Interest, i^c. next of kin. A. T., after he attained hia age, con- tinued to employ E. K. as his agent, and in 1795, he granted to him a lease of part of the trust estate, not according to the conditions of the leasing power and this lease was expressed to be made partly in consideration of the rent and cove- nants, and partly of the services rendered by the lessee, E. K. In 1800, six years after the date of the lease, it was assigned to E,. K., under whom the plaintiff claimed in consideration of a sum of £2,900. Lord D., the eldest son of A. T., upon the death of his father, impeached this lease of 1795, and, having obtained the legal estate thereupon, brought an ejectment in order to defeat the lease. On a bUl filed by the plaintiff, claiming as assignee, to restrain Lord X>. from so proceeding : — Held, that E. K., being a trustee in the will, was not at liberty to take from the tenant for life a greater interest than he was authorised to grant under the leasing power, and that in thus obtaining this beneficial lease he was guilty of a breach of trust, and that the lease conse- quently could not be sustained. Held, also, that there was sufficient on the face of the lease itself to put the purchaser on inquiry as to the nature of the transaction between his vendor and the lessor, and that, therefore, he must be treated as the lessor himself. — Ker v. Lord Dwngannon, 1 Dru. & W. 509. Where a judgment affects several denominations of lands, a prior purchaser of one of those denomi- nations, is entitled to throw the judgment from his own upon the lands of any puisne purchaser and so on, in succession with each purchaser, until the judgment falls upon the lands in the hands of the last purchaser. — Aicken v. Macklin, 1 Dru. & Wal. 622. If at a sale by auction, under the order of the court, a purchaser sell his purchase for an ad- ditional sum beyond his purchase money, the court will order the property to be resold, and Semblej That if upon such re-sale the property does not produce the improved price agreed to be given by the sub-purchaser, he will be responsible to the court for the difference. — Hohoyd v. Wyatt, 2 Coll. C. C. 327. A., when tenant for life, only of an estate, agreed to sell the fee to B. ; B. devised the estate to C, A. some years afterwards acquired the fee, and conveyed the estate to B. Held, that it did not pass by B.'s will. — Duckle v. Baines, 8 Sim. 625. By the custom of the tea trade, when teas are sold at a given prompt or future day of payment, the buyer pays a deposit in part of the purchase money, and the vendor retains the teas, or the warrants representing them until the day of prompt, when if he fails, to pay the balance of the purchase money ; the vendor is at liberty to re-sell the teas and charge the purchaser with any deficiency, together with interest &om the prompt day, warehouse rent, &c. Held, that where the vendor became bankrupt before the day of prompt, and the assignees refused to take the teas or pay the balance of the purchase money, the vendor might re-sell them and prove for the amount of the deficiency. — Ex parte Moffatt, re Tate, 1 M. D. & D. 282. XIII. — CoNTKACT Binding Within Statdte op Frauds. Payment of a substantial part of the purchase money, for real estate will not take the case out of the Statute of Frauds. — Watt v. Evans, 4 Y. & C. 579. The defendant, on the 6th of June, offered to sell his farm for £1,000, but the plaintiff offered £950, which the defendant, on the 27th of June, after consideration, refused to accept. On the 29th, the plaintiff, by letter, agreed to give £1,000, but there appeared to be no assent on the part of the defendant, though there had been no with- drawal of the first offer. Held, that there was no binding contract within the Statute of Frauds. — Hyde v. Wrench, 3 Beav. 334. XIV. — When Estate Inckeabes in Value Between the Contract and Completion op Title. A., in December, 1812, agreed to become a pur- chaser of a reversionary estate ; B., the vendor, agreed, on or before the 1st of May then next, to make out a good title ; A. was to be entitled to the rents and profits of all and singular the messuages, &c.,from the 1st of May then next, or from such time as the said purchase should be completed. A. had, at the time of making the agreement, paid part of the purchase money, and he promised, for the considerations aforesaid, that he would, on the said 1st of May, pay the re- mainder as, and for the absolute purchase, &o. A. further agreed to pay aU and every sum and sums of money for the increased value of the said messuages, &c., by or in consequence of the deaths of any persons, for whose life or lives any of the messuages were theretofore granted. The purchase was not completed for a very considerable period. The vendor filed his biU for a specific performance. The court made a decree, referring it to the master, to inquire when the vendor could make a good title, and how much the value of the estate had been increased by the deaths of the persons, on whose lives any portions of it were holden. Held, that this decree was correct, and that the contract did not give the vendor a right to demand payment for the increased value of the estate, from the wearing as well as tlie dropping of lives. — Brook and others v. Champernowne and others, 4 Clk. & Fin. 559. Qucere : Upon what principle the increased value of an estate, arising from the dropping of lives, between the commencement and completion of the contract is to be calculated. — Townsend v. Champernowne, 3 Y. & C. 505. XV. — Interest on Purchase Money. Agreement for the payment of the purchase money of an estate by yearly instalments, with interest, the four last of which are to be retained by the purchaser as an indemnity, until a good title shall be made, does not entitle the vendor to compound interest on such instalments, upon a bill by him for specific performance of an agree- ment, it appearing that, until such bill wsis filed, he was not prepared to make a good title to the premises in question. — Straiton v. Sytnon, 2 Mo. 125. On a decree for the specific performance of a contract for the purchase of a reversion expectant on a lease for lives, the vendor is entitled to in- terest on the purchase money, from the day on which the master reports that a good title could be made. — Enraght v. Fitzgerald, 2 Dru. & W. 43; 1 Con. & L. 181. Tinder an inclosure act an allotment had been made to the impropriator instead of tithes, and, Conditional Sale. VENDOR AND PURCHASER. Indemnity, ^c. 515 by the act, the tithes were to cease on the allot- ment being made, but the act did not authorise the sale of allotments before the execution of the award. In the interim the impropriator agreed to sell his allotment for £700, to be paid on the 25th March then next, on a good and valid title being made and executed. The award was not made until several years after the agreement, but the purchaser had been all albng in possession of the allotment. The court ordered him to pay 4 per cent, interest on his purchase money, from the 25th March next after the date of agreement, although a good title could not be made until the award was executed. — Att. Gen. v, Christ Church, 13 Sim. 214. In August, 1828, the plaintiff agreed to sell a property to the defendai\t. The contract was to be completed on the 9th of October following, and the purchaser was to be entitled to possession up to that time, and if the purchase should not be then completed, the purchaser was to pay in- terest at 5 per cent, from that day until full pay- ment. The abstract having been delivered, all parties seemed to agree that a good title was not shewn, and in November, 1828, the time for com- pletion was enlarged to the 21st of February, 1829, when the purchase money was to be paid without interest, and the defendant let into pos- session ; and, if the plaintiff should fail to make a good title, the deposit was to be returned, with interest at 4 per cent., from the 9th of October. The defendant refused to complete, and in 1829 brought an action for his deposit, and the plaintiff filed his bill for specific performance. The de- fendant had not taken possession, and great dilapidation had occurred. It was decided that a good title had been shewn in Augvist, 1828. A decree was made against the defendant with costs, and it was determined that A. should sustain the loss by dilapidation, and should pay interest, at 4 per cent, only, on his purchase money from the time of filing the bill. — Michin v. Manee, 4 Beav. 332. A purchaser complaining that his conveyance did not comprise the whole of the property which he had contracted for, filed his bill for the con- veyance of the remainder, and obtained an in- junction restraining the vendor from suing him for the purchase money, part of which was after- wards ordered to be paid into court to abide the event of the suit. The bill was dismissed. Held, that the vendor was entitled to the residue of the purchase money, and the interest upon it to the time of payment, although the purchase money in court had been laid out, and no interest, there- fore, had accrued thereoD..— Humphries v. Horne, 3 Hare, 276. XVI. — Conditional Sale. A conveyance as upon an absolute sale accom- panied by a contemporaneous agreement, for re- conveyance upon payment on a day certain of the purchase money with interest, and of the expense of the present conveyance which had been paid by the purchaser. Held, on a bill for redemption, brought after the day certain had passed, to have been a sale with a proviso for re-purchase, and not a mortgage. — Williams v. Oteen, 5 Myl. & Cr. 305. W. conveyed an estate to O. absolutely, in pur- suance of a sale ; and by a separate instrument, O. agreed to re-convey the property on W. repaying the consideration money, and the expenses of the conveyance (which O. had paid) within a year, and O. was, at his option, either to retain the intermediate rents or to be paid interest. The agreement bore the same date, and purported to be executed on the same day as the convey- ance, but that fact was not admitted in the answer, and there was no evidence of it. A. was an attorney and prepared the conveyance. O. paid the expenses of it and was immediately let into possession, and the consideration money was very nearly the full value of the estate. Held, nevertheless, that the transaction was, in fact, a mortgage, and that W.'s heir was, long after the year had expired, entitled to redeem the estate. — Williams v. Owen, 10 Sim. 386. An agreement made upon an advance of money to convey property, and containing a power of redemption within a given time, and in default the sale to be absolute : — Held, under the circum- stances, to be a conditional sale, and not a mort- gage. — Perry v. Meddowcroft, 4 Beav. 197. A. having agreed to purchase a property for £1,435, borrowed £185 (the amount of auction duty and deposit) from B. B., afterwards, ad- vanced A. £600 on account of the purchase, but which was not so applied ; and £1,291 of the purchase money remained. A. and B., after- wards, entered into an agreement, by whicli it was agreed, in consideration of the £185, and £600, and a further sum of £400, to be paid by B. to A., that the property should be conveyed to B., provided, that if A. paid B., on a day spe- cified, the £1,435, and the sum of £1,000 ad- vanced, the agreement should be void, and A. was to have permission to make sales in the meantime, subject to the approval of B., so as to reimburse the purchase money and advances made, "but if not then made, the sale was abso- lutely confirmed to B." The agreement contained no engagement to pay. B., afterwards completed the purchase. Held, that this was a conditional purchase and not a mortgage, and A. having made default in payment, that the estate belonged absolutely to B. — Id. XVII.- -Indemnity and Abatement to PuaCHASEK. A vendor of freehold property, who, on his own purchase of it, had entered into a covenant to observe the covenants entered into with a former vendor, and which prohibited buildinsj on the land, put it up for sale, pursuant to parti- culars and conditions, noticing the existence of the covenant, but not stipulating that the pur- chaser should enter into any covenant on the subject. On a bill for specific performance filed by the purchaser. Held, that the plaintiff was not entitled to a conveyance, unless on the terms of giving or providing for the vendor, a sufficient indemnity against any breach of the covenant on the part of the plaintiff, his heirs, appointees, or assigns. Held, also, that a covenant on the part of the plaintiff, his heirs, executors, administra- tors, appointees, and assigns, with the defendant, his heirs, executors and administrators, to the same effect, mutatis mutandis, as the covenant entered into by the vendor on his ovim purchase, ought to be considered as a sufficient indem- nity. — Moxhay v, Inderwick, 1 De G. & S. 708. A tenant in possession purchased the property, which was represented to be forty-six feet iu depth; it turned out to be thirty-three only. 516 Purchaser, When VENDOR AND PURCHASER. EntUledto Compensation. Held, that he was entitled to an abatement. — King V. Wilson, 6 Beav. 124. The completion of a contract having been delayed for thirteen years, the property became de eriorated by dilapidations : — Held, under the circumstances, that the loss must fall on the pur- chaser, as the state of the title was such, that he ought to have completed his purchase and taken possession, — Michin v. Nance, 4 Beav. 332. XVIII. — Purchaser, When Entitled to Compensation, Trustees for sale of a manor, described it in ad- vertisements and particulars and conditions of sale, as a manor in which the fines were arbi- trary, adding that the clear profits, on an ave- rage, of the last eight years, had been £150 a-year, and it was one of the conditions of sale, that if there should be any error or mis -statement in the particulars, the vendors or purchaser, as the case might happen, should pay or allow a proportionate value, according to the average of the whole purchase money, as a compensation either way. After the sale, it was found that, by the custom of the manor, arbitrary fines were payable only in alienation, and that on the death- bed of the tenant, his customary heir paid upon admittance a small fixed sum, and the widow was admitted to her free bench without any pay- ment. It was also found that the clear profits exceeded £200 a-year. Held, (reversing a decree made on a bill which was filed by the purchaser for specific performance, with compensation in respect of the mis-statement as to the fines) that there was no such mis-description of the property as would entitle the purchaser to com- pensation, inasmuch as the annual profits, which constituted the substantial value, far exceeded the amount stated. — White v. Cuddon, 8 Clk. & Fin. 766. Semble : That if there was a substantial misde- scription, a court of equity would not enforce, against trustees, specific performance with com- pensation, as being prejudicial to the cestui que trust, and incapable of being ascertained. — Id. The vendor and purchaser consenting to a spe- cific performance without compensation, the decree was accordingly so varied, the purchaser paying the costs of the suit. — Id. In 1823, the lands of Minos were conveyed to J. C, and his heirs, saving and excepting out of the conveyance "the manorial rights belonging or appertaioing to the manor of C, of which manor the lands hereby released are parcel, and the tolls and duties of the fairs and markets thereof, as also any liberty of turbury or limestone heretofore granted therein or thereabout by Sir 3. L. C, ( a former owner, ) or his ancestors, to any of the tenants of the said manor as expressed on their leases." Pursuant to a decree, the fee and inheritance in the lands of Minos were set up to be sold under a rental which did not advert to the reservation in the conveyance of 1823, and which stated, that part of the lands were held under an article of agreement for lease for four lives, bearing date, 1804, and one year. It did not appear that any fair or market had ever been held for the manor or any court for the last twenty years, although there was no open lime- stone quarry, nor anything in the nature of tur- bury, save a surface or top sod on the lands, yet, it did not distinctly appear that there was not either limestone or turf on them. It also ap- peared, that the agreement of 1804, was for a lease for four lives and one year from and after the expiration of the tenant's then present lease, which lease did not expire until 1843, and that the tenant claimed to be entitled to a lease for four lives, to be then named by him. Upon ex- ceptions to a report of bad title. Held, confirm- ing the report, that the reservation of the liberty of turbury and limestone in the conveyance of 1823, was a valid objection to the title, but not to the reservation of the manorial rights and tolls of the fairs and markets of the manor ; also, that the description of the tenant's interest, under the article of 1804, was calculated to mislead the purchaser, and that he was entitled either to compensation or to be discharged in consequence thereof. — Martin v. Cotter, 3 Jon. & L. 496. The abstract was delivered to the purchaser on the 20th of February, 1845 ; the article of 1804, on the 9th of April. On the 25th of April, the purchaser confirmed the sale, and on the 24th of October, he lodged objections to the title. Held, that he had not waived his objections. — Id. Observations upon the duty of a vendor in preparing particulars of the estate to be sold. — Id. Purchaser not entitled to compensation where the misdescription consisted in stating, that the premises sold were in the joint occupation of A. and B., as lessees, the fact being, that the pre- mises had been demised to C, and by C. assigned to A., who was, together with B., in the occupa- tion of them at the time of sale. The purchaser could not, in this case, be compelled to accept an indemnity. — Ridgway v. Gray, 1 Mac. & Gor. 109. A vendor contracted to sell an estate, in fee, with a stipulation, that if any dispute should arise as to the title, the same should be submit- ted to some eminent conveyancer, and that in case he should be of opinion that a good title could not be made, the contract should be rescinded. Upon the delivery of the abstract, it appeared that the vendor's mother had a life interest in the premises, and that her interest was known to the vendor at the time of the contract. Upon her refusing to join in the conveyance to the pur- chaser : — Held, that the vendor was not entitled to rely on the before-mentioned stipulation as a ground for rescinding the contract, but that the contract must be specifically performed with compensation in respect of the life interest. — Nelthorpe v. Holgate, 1 Coll. C. C. 203. A purchaser of lands, sold under the decree of the court, pursuant to a rental which stated, that they were demised for a term therein- mentioned, is entitled to compensation if it should appear that they are demised for a longer term. But he may waive his title to compensation by his acts. — Homer v. Williams, 1 .Ion. & Ca. 276. "Where a manor was advertised for sale, and des- soribed in the particulars and conditions of sale as a manor, of which the fines were arbitrary, and it appeared, that the fines were arbitrary only on alienation, and that certain fixed payments in the nature of reliefs were made on descents : — Held, that specific performance might be decreed with compensation, the conditions of sale allowing compensation for error in the description of the pro- perty . But this decree was reversed in the House of Lords. — Cudden v. Cartwright, 4 Y. & C. 26. Principles upon which the court proceeds in determining, whether the purchaser is entitled to a partial performance of the contract, with com- pensation for the deficiency ; where the vendor Vendor Bound, ^c. VENDOR AND PURCHASER. Purchaser, S^c. 51 has only a limited interest in the estate contracted to be sold, and is, therefore, incapable of jjer- formins; the whole contract. — Thomas v. Dering, 1 Keen, 729. XIX. — Vendor Bound to Complete, Two houses held under one lease, were sold separately, to A. and B., the lease was produced and inspected at the sale by the purchaser's soli- citors. The conditions of sale provided for the apportionment of the rent between the two pur- chasers, but did not notice covenants to insure, &o., and a proviso for re-entry on non-performance contained in the lease. Held, that though A. might be evicted by the default of B., still he vas, under the circumstances bound to complete. — PatersoH v. Long, 6 Beav. 590. A purchaser offered a price for an estate, and the vendor, by a letter sent by post, and received by the purchaser the day after it was put into the post office, accepted the offer. Held, that the vendor was bound by the contract from the time when he posted his letter, although it was not received by the purchaser until the following day, — Potter V, Sanders, 6 Hare, I. E. D. was beneficially entitled under his mar- riage settlement to an estate for his life, and to the ultimate reversion in fee, in default of issue male ; and the trustees of the settlement had a power to sell, at the request and by the direction of the tenant for life. There was issue of the mar- riage, E. D, acting as absolute owner, entered into a contract, by correspondence, to sell the estate to T., and the trustees afterwards refused to concur in the sale. Held, on a bill for specific performance: — ^First, That there was a binding contract between the vendor and purchaser ; and that the vendor was bound to perform it, if he was able. Secondly, That the vendor ought not to be decreed to request, or direct the trustees to execute a conveyance, unless the trustees'ought to comply with the nequest. Thirdly, That the trustees liad a discretion under the power of sale, which the court had no power or jurisdiction to control; and Lastly, That the purchaser was not entitled, in such a case, to have the contract per- formed to the extent of the vendor's interest, by a conveyance of his life estate, and his ultimate reversion, — Thomas v. Dering, 1 Keen, 729. XX. — PuKOHASEE Bound to His Contbact, The purchaser of an estate, pur auter vie, sold under a decree of the Court of Chancery, Held, not entitled to be discharged from his purchase, in a case in which the sole cestui que me died subsequently to the bidding, and before the master's report could have been confirmed, ac- cording to the practice of the court. — Vesey v. Blwood, 3 Dru. & W. 74. An order for a re- sale, made in consequence of the purchaser's default, in not completing his purchase, should not discharge him from his purchase. — Harding v. Harding, i Myl. & Cr. 514. A proposal by a purchaser to take the remainder of a lease was answered by a letter which, after acceding to the proposal, added : — " We hope to give you possession at half-quarter day." Held, that the addition did not introduce a new term, but that the acceptance was unconditional. It is not sufficient for a party who intends to rely upon a waiver of title, to allege upon hi pleadings, the facts constituting the waiver ; h must shew how he means to use the facts, b alleging that the title has been waived therebj Semble: That where the purchaser, alter trans mission to him of the original lease, prepares draft assignment, and makes various objection as to repairs and other matters, but does not re quire production of the landlord's title, he wl be considered to have waived its productior Semble : That a decree for specific performanc should not declare that the agreement ought t be performed, if a good title can be made. — Olive i Beaumont, 1 De G. & S. 397- Testator devised his real estates to trustees, i' trust, during the first fifteen years after his death to apply the rents in discharge of the charges an incuinbrances on his estates, and also of th debts which he should owe at his decease and if, by any reason whatever, in the opinio: of his trustees, a sale should become neces sary of any of the estates, for the purpose c raising any sums of money charged on his es tates before the expiration of the fifteen years then he authorised the trustees to make suol sale, and to apply the produce in discharge o such incumbrances, and he declared that thei receipts for any money, payable to them unde his will, should discharge the persons payini the same for being answerable for the applica tion thereof, or for being bound to inquire a to the necessity or expediency of any sal which might be made by the trustees. Th testator's personal estate being insufficient ti pay his debts, and the rents of his real estate being insufficient to pay the interest ot th incumbrances thereon, the trustees sold the whol of the estates, and thereby raised considerabl; more than the amount of the incumbrances The court, in a suit for a specific performance Held, that the power of sale depended on thi opinion of the trustees that a sale was necessary and decreed the purchaser to complete his pur chase. — Lord Rendlesham v. Meux, 14 Sim. 249, An estate sold under a decree, was knockec down to the solicitor of a mortgagee who was no a party to the suit, but consented to the sale A motion by the solicitor to be discharged fron his purchase, on the ground that he retracte( his bidding before the hammer fell, wa refused with costs. — Freer-v. Rimner, 14 Sim. 391 A party to a suit, who was also a solicitor and had the conduct of a sale decreed by thi court, purchased at the sale, under a feigne( name. The court, after the purchase had beei confirmed, ordered the estate to be again offeree for sale, at the price at which the party ha( purchased it, and if there should be no highe: bidder, the party to be held to his purchase— Sidney V. Ranger, 12 Sim. 118. Upon the sale of leasehold property, it is th( duty of the purchaser to inquire into the covenant! and stipulations of the original lease ; therefore where leasehold property about to be sold, wai described in the particulars of sale, as being heh at a ground rent of £86 per annum, and It ap peared from the lease that the ground rent wa; £80, and one-third of the improved yosrly ren or value, and there were other stringent covenant in the lease not noticed in the particulars, sue! as that no fine should be taken for an underleasi or assignment, except with the consent of thi reversioner, &c. Held, nevertheless that th( purchaser must be held to his contract.— Poj-e y Garland, 4 Y. & C, 394. 618 Fraudulent Concealment VENDOR & PURCHASER. and Collusion. An infringment of the rule cujes est solum ejtis est 'tsque ad caelum, is sufficient to avoid the contract between vendor and purchaser. — Id., 403. If A. agrees to sell an estate, and it is after- wards discovered that a small portion of it is the property of another person, the court will not discharge the purchaser from his contract, without giving A. an opportunity of acquiring a title to that portion. — Chamberlain v. Lee, 10 Sim. 444. The vendor of a copyhold piece of land en- franchised in 1799, delivered to the purchaser two ahstracts, commencing in 1736, one of the title to the land and the other of the title to the manor. The deed of 1799, which was forty years old, re- cited that the then lord, and the then owner of the land were respectively seised in fee j and several of the deeds relating to the lord's title ■were bargains, and sales enrolled, and therefore copies of them as well as of the surrenders and admittances, which would be good evidence, might be procured by the purchaser at any time. The vendor was unable to deliver to the pur- chaser the deed of 1799, or any of the prior instruments, but was willing to covenant to produce that deed. Held, that he was bound to give the purchaser covenants for the production, not only of that deed, but of all the prior instru- ments mentioned in the abstracts. — Cooper v. Emery, 10 Sim. 609. SXI. — Fraxjeclent Concealment and Collusion. A bill, filed by a purchaser to set aside a pur- chase and conveyance of an estate, on the ground of fraudulent concealment of a right of way, dii- missed with costs, there being no proof of con- cealment by the vendor, although the dealings were inconsistent with any right of way. — Wilde v. Gibwn, 1 Clk. & Fin. N. S. 105. To set aside a purchase perfected by convey- ance and payment of the purchase money for fraudulent concealment of a defect in the title to the estate, where there was no warranty or state- ment, that there was no defect; proof of con- cealment by the vendor's agent is not sufficient, there must be proof of direct personal knowledge and concealment by the principal. — Id. A purchaser of an estate having made no inquiry respecting the title, from an agent for the sale, is not entitled to any relief for any act of non-communication by him. — Id. Constructive knowledge of an agent, or know- ledge acquired by him, otherwise than as agent for the sale, of a fact, the non- communication of which is made the ground for relief against the purchase, does not at all effect the contract. — Id, Constructive notice is resorted to, from the necessity of finding a ground of preference be- tween equities, otherwise equal, but cannot be applied in support of a charge of direct personal fraud. When a purchaser of an estate seeks to be relieved against the purchase, on the ground of personal fraud, by the vendor, and the alleged fraud is not proved, he is not entitled to relief on any other ground. — Id. A life interest in property was sold by auction, " without reserve." The vendors had entered into an agreement with M. that he should bid £32,000 and be the purchaser, unless a higher sum should be bid, and this fact was concealed ; the property was sold to the defendant for £50,000, The tenant for life afterwards died. Held, that the proceedings were tainted, and that specific performance could not be decreed, — Robinson-^. Wall, 10 Beav. 61. Before answer to a bill for specific performance the plaintiff obtained an order of reference as to title. The defendant, under a threat of attach- ment, put in his answer, in which he alleged that one of the conditions of the sale was framed with a fraudulent intent. Held, that that allegation was not impertinent. — Emery v. Pickering, 13 Sim. 683. G., a publican, agreed to sell his public house (which M. & Co. supplied with beerj to A. A. being unable to pay the whole purchase money. M. & Co., at his request, agreed to pay to G. £1,000, part of it. At a meeting of the parties for completing the purchase, M. & Co. paid the £1,000 to G. G., then executed the conveyance of the house, and immediately afterwards de- livered it to M. & Co., and A. signed a memo- randum, expressing that he had deposited the deed with M. & Co., for securing, by way of equitable mortgage, the payment to them of the £1,000. Shortly afterwards M. & Co. discovered that A. was an uncertificated bankrupt. Held, nevertheless, that they had as against A.'s as- signees a lien on the deed for £1,000. — Meuxv. Smith, 11 Sim. 410. A, contracted with S., S. and T., for the sale to them, in their own names, of freehold and lease- hold property, including mines and works for makmg iron, the purchase being made in fact for a numerous company, of which S., S. and T. were managing directors. Some difficulty oc- curring as to A.'s title, the time for completing the contract elapsed, but, upon treaty, S.. S. and T. agreed to complete it, if A. would verify his statements of the capabilities of the property, and, on his consenting, they deputed some of their co-directors, together with experienced agents, to ascertain the correctness of his state- ments. These persons examined the property and the works, and the accounts kept by A., receiving from him and his, agents all facility and aid for the purpose ; and they reported to their constituents that A.'s statements were correct, and P. T., their partner and agent, remaining on the property with particular instructions to make further examination, made a similar report, whereupon a supplemental contract was com- pleted, varied from the first by reducing the pur- chase money, and releasing S., S. and T. from personal liability for the unpaid instalments. After six months' possession by the agents of S., S. and T., and the company working the mines, and exercising other acts of ownership in deterioration of the property, all the directors and P. T., filed a bill in the Exchequer on behalf of themselves and all their partners against A. and his agents to rescind the contract for fraud. After replication to the answers, the plaintiffs^ except T. and P. T., obtained an order of court, though opposed by A., to amend the bill, by striking out the names of T. and P. T. as plain- tiffs, and making them defendants, and they amended the bill accordingly, and charged P. T. with collusion in the alleged fraud of A. Held, by the House of Lords, (reversing the decree of the Court of Exchequer, except so far as it ac- quitted P. T. of the charge of collusion, and dis- missed the bill as against him), that the contract could not be rescinded ; first, because there was no proof of fraud, (Lords Lyndhurst and Wynibrd dissentientibus) ; secondly, because the purchasers did not rely on A.'s statements, but tested their Purchaser under Decree. VENDOR AND PURCHASEE. Conditions of Sale. 519 accuracy, and, after having knowledge or the means of knowledge, declared that they were satisfied of their correctness. — AUwood v. Small, 6 Clk. & Fin. 232. It is not consistent with the rules or practice of equity to fix A. with the costs of P. T., after the charge of collusion against P. T. failed of proof. The acts and admissions of P. T., after his acquittal of that charge, affected the interests of the company as much as if he had continued a plaintiff. — Id. To make A.'s agents defendants, against whom nothing but costs was prayed, was a mere pre- tence to deprive A. of their evidence. Such a practice is not to be sanctioned, as it gives an unjust advantage to the plaintiff, and prevents the real facts from coming to the knowledge of the court, and, if ever allowed, it should be met by directing an issue. — Id, If, on the treaty for the sale of property, the vendor makes representations which he knows to be false, the falsehood of which the purchaser had no means of knowing, but he relies on them, a court of equity will rescind a contract so en- tered into, although it may not contain the mis- representations ; but it will not rescind, without the clearest proof of fraudulent misrepresentations, and that they were made under such circum- stances as shew that the contract was based on them.— Id. 233. If a purchaser, choosing to judge for himself, does not avail himself of the knowledge or means of knowledge open to him, or to his agents, he cannot be heard to say he was deceived by the vendor's representation, the rule being caveat emptor, and the knowledge of his agents being binding on him as his own knowledge. — Id. Consideration of the effect in equity of mis- representations made by parties upon entering into contracts. — Clapham v. Shillito, 7 Beav. 146. A vendor and his solicitor fraudulently, and in the absence of the purchaser's solicitor, obtained from the purchaser (who was desirous of com- pleting the purchase, and had entered into pos- session) the purchase money and covenants for the production of title deeds, while the title, as to a part of the purchased premises, was still under investigation. On a bill filed by the purchaser against the vendor and his solicitor, it was Held, that the plaintiff was entitled to have the contract rescinded, and his purchase money, together with all costs, charges, and expenses (including auction duty), repaid to him, and to have the deeds of covenant executed by him delivered up, to be cancelled. — Bei'ry v. Armistead, 2 Keen, 221. XXII. — PuECHASEE ITndek Dechee. A purchaser under decree is not to be relieved from his purchase, merely because there are irre- gularities in the decree, where there is no want of jurisdiction or parties. — Bakery. Sowter, 10 Beav. 313. A purchaser under a decree will not be held to his purchase, except all parties having judgments &c., appearing on record against the vendor, whether prior or subsequent to the claim, for the raising of which the bill was filed, are brought before the court, so as to bind their rights. Held, on appeal from the Rolls, affirming the order of his Honour, — Piets v. Piers, 1 Dru. & Wal. 265. A bidder at a sale, under the decree of the court, who is not a party to the cause, or inte- rested in the estate which is the subject of the sale, has no right to apply to the court to set aside a sale to another bidder, on the ground of irregularity, in that the latter, although reported the purchaser, was not in fact the highest bidder. Whether he may apply to be declared the pur- chaser, in the place of the bidder reported to be the best purchaser — Qiuere. — Hughes v. Lipscombe, 6 Hare, 142. A re-sale of property sold under a decree ordered, in case the purchaser did not pay his money into court within a given time ; and the purchaser ordered, in that case, to make good the deficiency, and pay the costs of all the proceedings. — Gray v. Gray, 1 Beav. 199. XXIII. — Conditions of Sale. By conditions of sale, it was stipulated that the vendor of an estate which was sold in lots should deliver an abstract of the title to the purchasers, and deduce a good title ; but as to part of the estate, acquired under an inclosure, he should not be bound to shew £iny title thereto prior to the award ; and it was further stipulated that the vendor should deliver up to the largest purchaser in value, all the title deeds and other documents in his custody, but should not be required to pro- duce any original deed or other document than those in his possession, and set forth in the abstract. Held, on the construction of these conditions, that they did not relieve the vendor from his liability to verify the title shewn upon the abstract, by producing the title deeds them- selves, or, if any of them were not in his posses- sion, by other satisfactory evidence. If a vendor intends to deprive a purchaser of the right to the production of any evidence necessary to verify the title, beyond what the title deeds in his own custody will supply, he is bound to make the intention previously known to the purchaser in clear and explicit terms. — Houthby v. Hutt, 2 Myl. & Cr. 207. By the conditions of sale, no further evidence of identity was to be required than what was offered by the abstract and the documents therein abstracted. The descriptions in the documents differed amongst themselves, and from the des- cription in the particulars of sale. Held, that the purchaser was entitled to have further proof of the identity. — Flower v. Hartopp, 6 Beav. 476. Observations on special conditions of sale. — • Paterson v. Long, 6 Beav. 590, An abstract shewed the equitable feo to be in the vendor, and the legal estate to be in A., as a mortgagee for a term and subject thereto in B. in fee. By a supplemental abstract it appeared that, before the first abstract was delivered, A. assigned the mortgage to B., and was declared a trustee of the term for him, and that he had since died intestate — ^that his father, who first took out administration to him, was also dead, and that he remained unrepresented for some years, after which S. took out administration to him. Held, that the first abstract shewed a complete title, the tracing of the title to the legal estate being matter of conveyance merely. — Avarne v. Brown, 14 Sim. 303. Premises were advertised to be sold according to certain printed particulars and conditions of sale. Before the sale took place, several of the printed copies were altered by the vendor's soli- citor, who introduced in writing, a reservation of a right of way to other premises belonginy to the vendor ; several of the altered copies of the par- ticulars were laid on the table in the auction- 520 Conditions of Sale. VENDOR AND PURCHASER. Suits By and Agmnst. room without any remark with regard to the alteration, and an altered copy was delivered to the auctioneer, who read the same aloud before the biddings commenced ; but the party who became the purchaser did not hear or notice the alteration. The contract was signed by the auc- tioneer (inadvertently) and by the purchaser, on a copy of the particulars of sale not containing the reservation. After the purchase money was paid and possession given, the purchaser filed his bill for a specific performance of the contract by a conveyance from the vendor without a reser- vation of the right of way, and the bill was dis- missed without costs. — Manser v. Back, 6 Hare, 443. Conditions of sale stipulated, that the sale should be completed on a certain day, and that objections to the title not made within twenty- one days fi'ora the delivery of the abstract should be considered as waived, and that if the purchaser should not comply with the conditions, his deposit should be forfeited, and the vendor be at liberty to re-sell the property. The purchaser did not deliver his objections until several weeks after the expiration of the twenty-one days, and after the day appointed for completing the purchase. The vendor's solicitor, however, received them, and entered into a long correspondence with the purchaser on the subject of them, but without coming to a satisfactory conclusion. Finally, the vendor re-sold the property, (but at a less price,) notwithstanding the purchaser protested against the re-sale, and gave notice to the vendor of his intention to file a bill, to enforce the contract. About six months afterwards he filed his bill, making the auctioneer and the purchaser at the re-sale, to whom he had, some months before, given notice of his prior contract, co-defendants to it. ITie court Held, that the benefit of the conditions had been waived by the vendor's so- licitor, and decreed a specific performance, with a reference to the m:ister as to title, and dismissed the bill with costs as against the auctioneer, be- cause he denied that he had ever intended to part with the deposit, and without costs, as against the purchaser at the re-sile, who claimed the benefit of his contract, if the court should think that the plaintiff's ought not to be performed. — Cvits v. rhodey, 13 Sim. 206, Where objections to title are to be considered OS waived, luiless made within a certain time after the delivery of the abstract. Qiuere ; Whe- ther that condition can be insisted on if the abstract is very defective.^W. One of the conditions of sale provided, that if the purchaser should raise objections to the title, which the vendor should not be able or willing to remove, the vendor should be at liberty to rescind the contract, and that all objections which should not be taken in writing within ten days after the delivery of the abstract, should be considered as waived. Held, that the condition referred to the first delivery of objections, and if the vendor ex- pressed his willingness to answer them, he could never afterwards rescind the contract. — Tanner v. Smith, 10 Sim. 410 (Reversed by the Lord Chan- cellor). By conditions of sale, all objections to the title were to be taken within twenty-eight days from the delivery of the abstract, which if not removed within fourteen days, the vendor was to be at liberty to annul the contract on payment of the deposit, but without costs. The purchaser having made an objection which was not removed, the vendor gave notice to annul the contract. The objection being held valid, the court considered the vendor entitled to avail himself of the con- dition, but was of opinion, that if, in giving the notice to annul, the defendant had sought im- properly to escape from the performance of a duty, which by the nature of the contract, he was bound to perform, it would have been invalid. — Page v. Adam, 4 Beav. 269. Observations on special conditions of sale. — Hyde v. Dallavmy, 4 Beav. 606. A condition of sale was, that in case the pur- chaser should raise objections to the title, which the vendor should not be able or willing to re- move, the vendor might rescind the contract on notice and repayment of the deposit to the pur- chaser ; and objections not declared within four- teen days after the delivery of the abstract, to be treated as waived, in which respect time was to be essential. The purchaser returned the abstract with queries within fourteen days, and the vendor answered the queries ; the purchaser on the same day objected to the answers ; the correspondence on tne subject of the title continued for several weeks, and then the vendor gave notice that he rescinded the contract. Held, that the continu- ance of the treaty for the completion of the title, after the first objection of the purchaser, was a waiver of the condition as to the rescinding of the contract. — Morley v. Cook, 2 Hare, 106. That such a condition of sale ought to be dis- couraged, and ought not to receive a construction oppressive on the purchaser. — Id. That the vendor's right to rescind the contract under the condition, must be co-extensive with the purchaser's right to object to the title under the same condition. That the vendor was only bound, bona fide, to deliver an abstract of such title as he had at the time of delivering it ; and so long as the condition remained in force, was not bound to deliver any supplemental abstract of title afterwards acquired — Semble. — Id. Whether the benefit of the condition would not, in equity, be forfeited, by a vendor who designedly delivered an imperfect abstract of the title which he had at the time of delivering it — Qucerc, — Id. Vendors having put forth ambiguous conditions of sale. Held, to be bound strictly by those con- ditions. — Seaton v. Mapp, 2 Coll. C. C. 656. A sale was made by a mortgagee imder a power, subject to certain special conditions (stated in the text). Held, that they were of such a depre- ciating character as to invalidate the sale. All objections to a title were to be taken within twenty-one days from the delivery of the abstract, or to be deemed waived, and time was in that respect to be considered the essence of the con- tract. Held, that the twenty-one days did not begin to run until a perfect abstract had been delivered, — Hobson v. Bell, 2 Beav. 1 7. XXIV.— Suits By and Against. A purchase of the legal estate for valuable con- sideration, without notice, is not a defence to a suit for specific performance of a contract relating to the lands, contained in a prior duly registered instrument.— Z)rew v. Lord Korbury, S Xon. &, L. 267. ■\Vhere a defendant, by his answer, insists that he is a purchaser for valuable consideration, and, without notice, proof of payment of the purchase money is an essential part of the defence, and if the defendant fails at the hearing to prove this, Suits By and Against. VENDOR AND PURCHASER. Costs Between. 521 the court will not allow the cause to stand over, in order to enable the defendant to supply such defect. — Molony v. Ke)~nan, 2 Dru, & W. 31. Where a purchaser, under the court, obtains the order nisi to confirm the report, but neglects to make it absolute, the plaintiff may do so by motion of course. — Robertson v, Skelton, 10 Beav. 197- Motion by a vendor for a reference as to title refused, because he had been guilty of laches in prosecuting the suit. — Dorm v. Harvey, 16 Sim. *9. Reference of title, upon motion by the plaintiff (the vendor), after answer, notwithstanding the question in dispute in the cause might have been conveniently determined by the court at the hearing, without a leieience,^— Curling v. Flight, 5 Hare, 248. Whether the question in a cause be, what evi- dence of title the vendor is bound to give ; or, whether he is able to give sufficient evidence, — the question is equally one of title, and the proper subject of a reference, — Id. The purchaser of a real estate became insolvent, after part, but before the whole, of the purchase money was paid, or the conveyance executed. The vendor died, having devised the estate to the plaintiffs, and appointed one of them his executor. The bill was filed against the provisional assignee of the insolvent, and an equitable mortgagee, by deposit of the agreement for purchase ; and it prayed the payment of the residue of the pur- chase money by the defendants, or by sale of the estate. The plaintifis did not prove their title as devisees. The defendants disclaimed. Held, that the court could not make the decree sought, without evidence of the devise ; but that, upon payment of the costs of the defendants, the court might (the defendants not opposing) declare the plaintiffs absolutely entitled to the estate. — Gabriel v. Sturgis, 5 Hare, 97. If a bill, after stating the circumstances on which the plaintiff' s equity is founded, charges that the defendant, before his title to the subject in dispute accrued, had notice of the several circiraistances therein stated, an answer, denying that charge in the same general terms, is sufficient, notwithstanding it is tiled to support a plea of purchase for valuable consideration. — Gordon v. Shaw, 14 Sim. 393. Qucere ; In what cases successive purchasers are properly made parties to a suit for specific performance. See Nelthrope v. Holgate, 1 Coll. C. C. 203 ; and see Cutts v. Thodey, Id. 223, n. ; Spenee v. Hogg, Id. 228, n. ; Collett v. Hover, Id, 227, n. A purchaser, attending the sale of an estate in the cause, heard the amount of the reserved bidding announced before he made his offer ; and the master made a separate report, allowing him as the purchaser, subject to the approval of the court, with reference to that fact. The mode of confirming this report, and approving of the purchase is by a special notice of motion to that effect, and not, as in the common case, by orders nisi and absolute. — Dowh v. Lxicy, 4 Hare, 311. Mortgagee of an equitable estate not a necessary party to a bill filed by the mortgagor and his trustee against a purchaser, for the specific per- formance of the agreement to purchase. — Hall v. Laver, 3 Y. & C. 191. Original vendee of an estate not a necessary party to a bill against his assignee for specific performance of an agreement to purchase. — Id. Remedy by supplemental bill, after a decree for specific performance, for the damages occa- sioned to the plaintiff, by the abstraction by the defendant, pendente lite, of part of the subject matter of the suit. — Kelson v. Bridges, 2 Beav. 239. The certificate of a stock broker of a fund standing in the bank. Held, insufficient evidence of that fact, as between vendor and purchaser. — Hobson V. Bell, 2 Beav. 17. In suits for specific performance between vendor and purchaser, every thing connected with the title may be the subject of the usual re- ference, upon motion, as to the vendor's title, and may be added, by way of inquiry, to that reference ; but the court will not allow any inquiry to be added, as to matters which have no reference to the title, and which are not admitted by the answer. — Bennett v. Rees, 1 Keen, 405. XXV. — Costs Between. A purchaser discharged by reason of bad title, is entitled to the costs of counsel's opinion on the title, and of the preparation of the case for counsel. — Barton v. Lord Downes, Fl. & K. 683. A defendant, a purchaser, demurred to a bill for specific performance, and his demurrer was overriJed. He then asked for a case to be sent to a court of law, which was granted, and the opinion of the judges was against him. Ulti- mately, however, the bill was dismissed, with costs. Held, that the defendant was entitled to his costs at law as well as in equity. — Forbes v. Peacock, 12 Sim. 528. A purchase was completed under the powers of an act of parliament, which authorised a corpora- tion to purchase property compulsorily. The vendors being under disabilities, the purchase money of their property was paid into court, under the provisions of the act, whereby the court was authorised to order all the reasonable costs, charges, and expenses attending the re-invest- ment of the purchase monies in the purchase of lands, to be settled to the same uses as the pro- perty purchased, together with the costs, charges and expenses of obtaining the proper orders, and of the other proceedings for such purposes, to be paid by the corporation. A contract was entered into for the investment of part of the fund in court in the purchase of certain property, free from incumbrances. The title, on investigation, proved to be subject to numerous incumbrances, and the purchaser's counsel advised that the vendors should procure all the incumbrances to be conveyed to the vendors, so as to shorten the conveyance. The draft re- conveyances, eight in number, were submitted to the purchaser's solicitors, and settled by their counsel. Held, that the corporation could not be charged with the costs thereby incurred, imless they were incurred with the express consent of the coiporation. A solicitor, in cai rying in a statement of facts, to obtain the master's approval of a contract to purchase, appended a long si'hedule thereto, of the parcels proposed to be purchased. The taxing master disallowed the charge for drawing, and only allowed for copying such schedule. Held, that such dis-allowance was proper, although the Master-in-ordinary had allowed attendances upon a number of warrants, propor- tioned to the length of the state of facts, in- cluding the schedule. Held, also, that the allowances in respect of these attendances were properly considered by the taxing master, as a 522 Conveyance. VENDOR AND PURCHASER. Remedy at Law. compensation for other business actually trans- acted, and in respect of which he disallowed the charges. — Jones v. Lewis, 1 De G, & S. 245, In a suit for specific performance, a purchaser set up a defence which prevented the plaintiff ob- taining, on motion, a reference as to title, the defendant failing to establish such defence, was ordered to pay the costs up to and inclusive of the hearing. — Hyde v. Dallaway, 4 Beav. 606. A. agreed to sell land to a railway company but died before he had executed the conveyance, leaving an infant heir. The company then in- stituted a suit in order to obtain a conveyance from the infant. Held, that although the com- pany were bound by their act to pay the expenses of the conveyance of land taken by them, yet, as A. had occasioned the suit, by suffering the lands to descend to an infant, the costs of the suit and of having the conveyance settled by the master, must be paid out of the purchase money. — Midland Counties Railway Company \. Westcomb, 11 Sim. 57. Wiiere the title deeds are in the hands of per- sons residing in different parts of the country, the vendor must bear the expense of the purchaser sending a clerk to compare the abstract with the deeds. — Hughes v. Wynne, 8 Sim. 85. Where an estate has been sold under a decree and the master reports against the title, the pur- chaser is entitled to be paid out of the fund in the cause, his costs of, and consequent upon, his be- coming purchaser, and of his investigating the title. — Alt. Gen. v. Corporation of Newark, 8 Sim. 7. The fact of a title having been perfected in the Master's Office, does not determine the question of the costs in a suit for specific performance, which depends upon whether the defects which have been removed there were the occasion of the suit. — Scoones v. Morrell, 1 Beav. 251. Under the act of parliament, giving power to the Trinity House to purchase light-houses, this court is authorised, by express words, to order the corporation to pay the costs of the interem investments in the funds, and other consequential costs on purchases from infants and other incapa- citated persons ; but no such words are used with reference to purchases under doubtful titles. Where, therefore, an incapacitated person, to- gether with the trustees of the settlement under which he took his interest (which trustees had a power of sale), contracted to sell a light-house to the corporaton, and the corporation being doubtful as to the title of the vendors, paid the purchase money into court, under a clause con- tained in the act for that purpose; the court taking into consideration, that the objection as to title was not trivial, and that the purchase was made by the Trinity House for public objects, declined to give the vendors the costs of the interim investment in the funds and the other consequential costs. — Ex parte Angell, 4 Y. & C. 496. XXVI. — Neoussahy P.\kties to Conveyance. A judgment was obtained against a party under a warrant of attorney ; he afterwards took the benefit of the Insolvent Debtors' Act. Held, that the judgment creditor was a necessary party to the conveyance of the insolvent's real estate to a purchaser, notwithstanding the I & 2 Vict c. 110, 8. 61. — Hoiham v. Somerville, 9 Beav. 63, A. devised his estate at II. to his second son, who survived him, and afterwards died intestate, whereupon the estate descended to N., his elder brother. Pending a suit instituted by A.'s creditors, judgments were entered up against N., which remained unsatisfied, when the estate at H., together with the testator's other estates was sold, under the decree in the suit, for the payment of his debts. Held, that N.'s judgment creditors were necessary parties to the conveyance of the estate at H., and as they could not be compelled to join in the conveyance, because they were not parties to the suit, that a good title could not be made to the estate. — Oraddock v. Piper, 14 Sim. 310. Testator devised his real estates to A., B., and C, in trust, that they, or the survivors or survivor of them, or the heirs of the survivor, should, as soon as conveniently might be after his decease, but at their discretion, sell the same ; and he empowered them and their heirs to make con- tracts with, and conveyances to, the purchasers, and declared that the receipts of them, or the survivors or survivor of them, or the heirs, exe- cutors, or administrators of such survivor, should be good discharges to the purchasers ; and he directed that they, their heii's, administrators, and assigns, should hold the proceeds of the sale on certain trusts ; A. and B. disclaimed and C. alone acted. He devised the estates to M. and N., upon the trusts affecting the same ; after his death M, and N. agreed to sell the estates to P. Held, that M. andN. were not entitled to execute the trust for sale, as they were the devisees and not the heirs of C. — Cooke\. Crawford, 13 Sim. 91. The conveyance of the estate, sold under the decree, had been settled by the master, and one of the defendants was made a party but refused to execute it. The court refused an application by the purchaser that the plaintiffs should procure the defendant to execute the conveyance. — Stil- wellv. Mellersh, 10 Sim. 367. A. being entitled to £4,500, secured on his father's estate, and payable after his father's death, borrowed £1,500 of B., and assigned to him the £4,500, with power to sell the same and give an efi'ectual discharge to the purchaser. A. afterwards borrowed money of other persons, and gave similar securities to them. The estate was subsequently sold under the father's will. Held, that the purchaser of the estate could not safely pay the whole £4,500 to B. on his sole receipt, but that all the other persons who had charges on that sum must be made parties to the convey- ance,and give receipts for the portions of it to which they were respectively entitled. — Brasier v. Hudson, 9 Sim. 1. A. being entitled to a sum of money, payable at a future time, assigned it to B. and C, (who were bankers and co-partners,) to secure monies, to be advanced by them or either of them to A. C. survived B. Held, that as the security was made to B. and C. jointly, C. alone could give a sufficient discharge for the whole amount due on the security. — Id. XXVII.— Remedy at Law. In cases of specific performance, courts of equity exercise a discretion. In cases of great hardship, they will not interfere, but will leave the plaintiff to his remedy by recovery of damages at law, — Wedgwood v. Adams. 6 Beav. 600. Tiustces jumed their cestui que trust in a con- tract for sale, and persunally ugiccd to exonerate Specific Performance, VENDOR AND PURCHASEU. When, Decreed. 523 the estate from any incumbrances thereon. There ■were considerable incumbrances, and it did not appear whether the purchase money would be sufficient to discharge them, or what would be the extent of the deficiency. The court refused to decree a specific performance against the trus- tees so as to compel them to exonerate the estate, but left the purchaser to his remedy by action for damages. — Id. When the vendor's bill for specific performance is dismissed on the ground of his laches in insti- tuting the suit, and without any decision on the question of title, the court will not order the de- posit to be returned to the purchaser, but will leave both parties to Iheir legal remedies. — South- comb V. The Bishop of Exeter, 6 Hare, 225. A vendor conveyed his estate to a purchaser, and took a bond for the purchase money. He afterwards sued at law on the bond, and in equity insisting on his equitable lien. He was put to his election in which court he would proceed. — Barker v. Smark, 3 Beav. 64. XXVIII, — Specific Peepoemanoe, When Decreed. A wrote thus to C. :— " I have told Mrs. C, that it is my intention to let and lease to you that field which J. M. held under me, and that the rent thereof is to be £2 10s. per acre, for your life and Mrs. C.'s, which will be stated in the lease, with the understanding that you are to be ac- countable for the payment of the tithe rent charge, poor rent charge, cess, &c." The law agent of A., upon the instructions of C, and without authority of A., afterwards prepared a lease which was executed by C, whereby the lands were purported to be devised for the lives of C, his wife, and a third person, or twenty-one years whichever should last the longest, at a rent which was the aggregate of the rent mentioned in the letter, and the tithe rent charge. This re- served rent was for some time received by A., who afterwards refused to execute that or any other lease ; A. was decreed specifically to execute a lease to C, for his own life and that of his wife, at the rent mentioned on the un-executed lease, and the costs of the suit were given against A., because of his misconduct. — Carolan v, Brab- azon, 3 Jon. & L, 200. Where there is an agreement to make the tithe rent charge payable by the tenant, and the agree- ment rests in fieri, the court may, in favour of the intention, add the amount of the rent charge to the rent. — Id. Semble : Where parties enter into an agree- ment for the letting of lands, which is legal to a certain extent, to which extent they mean that the agreement should be executed by an actual lease, and stipulate that something further, not malum in se, but which is merely prohibited, should rest in understanding, the court wUl decree the performance of the agreement, as far as it is capable of legal execution. — Id. Specific execution was decreed of the following agreement for a lease : — " From the love and afiection I have for you as my first cousin, I now promise and engage to you, your heirs and assigns, during my natural life in reversion, the farm of C, as now in your actual possession, at £1 2s. 9d. per acre, as now paid and payable by you," the continuance of the rent, which was reserved by the former lease is a valuable consideration for the promise to grant the lease in reversion. — Moore v. Crofton, 3 Jon. & L. 438. The owner of an estate took the benefit of the Insolvent Act and afterwards became bankrupt. The assignees in bankruptcy, without communi- cating with the assignees of insolvency, in whom the estate was vested, sold it. Pending a suit instituted by the vendors for a specific per- formance, the assignees of insolvency affirmed the sale. A specific performance was decreed. — Side- botham v. Barrington, 5 Beav. 291. At the sale of an estate by public auction, one of the conditions being that the highest bidder should be the purchaser, a person attended who had no intention of being a purchaser, but was employed by the vendor to bid, in order to prevent the property from being sold at an under value ; and this person made several biddings till he reached the sum of £650, when he ceased to bid. The property was afterwards purchased for £690. Upon the purchaser objecting to perform his contract, on the ground that puffers had been employed at the sale, the court decreed specific performance, the purchaser declining to have the validity of the contract tiled in a court of law, — Woodward v. Miller, 2 Coll, C. C. 279. Qutere : Whether the declarations of an auc- tioneer at a sale, to the effect that there are no puffers, are receivable in evidence, unless the expressions used are put in issue by the pleadings. ' — Id. If a vendor contract with two different persons for the sale to each of them of the same estate, the court will, prima facie, enforce the contract which was first made ; and, if the party with whom the second contract was made, should, after notice of the first contract, procure a con- veyance of the legal estate in pursuance of the second contract, the court will, in a suit for spe- cific performance by the first purchaser against the vendor, and the second purchaser decree the latter to convey the estate to the plaintiff. — Potter V. Sanders, 6 Hare, 1, A, contracted to purchase an estate of B,, being at the same time under a secret nnderstanding with C. to sell the estate to him, and a contract was afterwards entered into between A, and C. to that effect. Held, that a bill for specific per- formance was maintainable by A. and C. against B., and the price being adequate, and it not being suggested by B. that he had ever refused, or was unwilling, or would have objected to treat with B., or might have obtained better terms from him had he known the real circumstances of the case, the court decreed specific performance against him. — Nelthrope v. Uolgate, 1 Coll. C. C. 203. Testatrix devised a freehold property, in which she had an equitable estate, in fee, to A. for life, with remainder to B. for life, with remainder to the family of B., (who were infants), in strict settlement. She then con- tracted to sell part of the estate, and died before conveyance. Alter her decease the legal estate was got in, and the owners of it, together with the tenants for life, were willing to complete the purchase. Held, nevertheless, that in order to give the purchaser an immediate estate in fee, both legal and equitable, a decree for specific performance of the contract under the SLatute U Geo. 4 & I Will. 4, c. 60, s. 17, was neces- sary, and that as this was a question of title, and the vendor had contracted to deduce a good tiile at her own expense, and there w.is no laclies on either side, the cost of the suit must be paid out 524 Specific Per/orinanci, VENDOR AND PURCHASER. When Refused. of the vendor's estate. — Farrar v. The Earl of Winterton, 4 Y. & 0. 472. Upon a bill filed by a vendor for the speolflo performance of the contract, it appeared that he could make a good title before the commencement of the suit, but did not shew a good title to the purchaser untU afterwards. Held, that, though specific performance must be decreed, the pur- chaser was entitled to the costs of the suit gene- rally. — Toumsend v. Champernowne, 3 Y. & C. 505. By an agreement between vendor and pur- chaser, it -was agreed that the purchaser should be entitled to the rents on the 1st May, 1813, or from such time as the purchase should be com- pleted. An abstract of title was furnished to the purchaser, and the title appeared to be satisfactory to the purchaser ; and in May, 1816, he sent the vendor a draft of conveyance, for his approval, •which was returned, approved, in July, 1816. Afterwards, the purchaser, on the suggestion of counsel, made several objections to the title, and delayed completing the purchase. In November, 1817, the vendor filed his bill for specific per- formance ; and in that suit, the master found that the vendor could make a good title before the bill was filed, but did not shew a good title to the purchaser till the 20th Jan., 1825. Held, upon a decree for the specific performance of the contract, that the proper date of the conveyance was the 20th January, 1825. — Id. The conditions of sale represented that a deed, under which M. C. claimed an interest in the estate, was a forgery, and that the vendor had made his affidavit to that effect, and, therefore, that the purchaser should not take any objection to the title by reason of that deed. The purcha- ser afterwards refused to complete the purchase, brought an action for his deposit, and obtained a verdict, the jury declaring the deed to be genuine. In this state of circumstances it was Held, by a court of law, that the purchaser was precluded from rescinding the contract, on the ground that the statement of the plaintifJF turned out to be imtrue, and by a court of equity, that the vendor, in case he could make a good title in other respects, was entitled to a decree for the specific performance of the contract, with costs. — Cattail V. Corrall, 3 Y. & C. 413. Specific performance decreed in favour of a purchaser, though no solicitor acted for the vendor, and though the contract was executed under circumstances which might easily have led to fraud, no fraud being proved in the vendor or his agent. — Lightfoot v. Heron, 3 Y. & C. 586. The fact that a party was considerably in liquor when he entered into an agreement, is no reason for the court refusing a decree for specific performance, if there was no fiaud. — Id. XXIX. -Specific Pekfoemance, When Refused. C. contracted, as agent of A. and B., to sell an estate to D., and received a deposit in part pay- ment of the intended purchasemoney. C.'s agency was afterwards denied by A. and B., and D. then filed a hill against A., B. and C, praying a spe- cific performance, and praying, in the alternative, that if he should be unable to obtain a specific performance, C. might be decreed to return the deposit, and to reimburse to the plaintiff all the expenses of endeavouring to enforce the contract. The bill was dismissed with costs as against C, as well as against A. and B., and the dismissal was afiSrmed on appeal.— Sai«»6«ry v. Jones, 5 Myl. & Cr. 1. Where there has been great delay, and there is little hope of perfecting the title, within a reason- able time, the court will dismiss a purchaser with costs. — Frater v. Wood, 8 Beav. 339. In 1842, the defendant contracted to purchase an estate, A suit for specific performance having, in the same year, being instituted by the vendors, it appears that the vendors claimed under a testator who died in 1809, and subject to his debts ; that a creditor's suit had been instituted in 1813, and a decree for an account and sale made in 1817, since which time nothing effectual had been done in the suit, and no report of debts had been actually confirmed. After so great delay, no further time was given to the vendors to complete their title, and the bill for specific performance was dismissed, with costs. — Id. A. contracted to sell a wharf on the banks of the Thames, with a jetty. The jetty turned out to be liable to be removed by the Corporation of London, if they thought fit. Held, that the jetty was essential to the beneficial occupation and enjoyment of the premises contracted to be sold, and that a specific performance could not be decreed. — Peers v. Lambert, 7 Beav. 546. Purchaser agreed to accept vendor's title "without dispute." The purchaser afterwards objected that, at the date of the agreement, there was a flaw in the vendor's title consisting of an unreleased incumbrance which left the legal es- tate in the property outstanding. Upon a bill filed by the vendor for specific performance, Held, that the purohaser was precluded by the terms of his contract from insisting on the objec- tion.— D«Ae V. Barnett, 2 Coll. C. C. 337. Bill, by a purchaser, praying specific perform, ance, upon the terms of the vendor deducing a good title at her own expense, in the ordinary way dismissed, the court being of opinion, upon the construction of a series of letters and upon the fact of the abstract of the title having been delivered to the purohaser in the first instance, that the ven- dor entered into the negociation only upon this footing ; namely, that she should deliver an ab- stract of title and verify it so far as she had the means in her possession, at her own expense ; but that the purchaser, if, upon perusal of the abstract, he were satisfied with the title, should be at the expense of completing its verification. — Thomas V. Blackman, I Coll. C. C. 301. Bill, by the vendor, for the specific performance of a contract to purchase a timber estate, where the particulars of sale described it as comprising a certain wood "with upwards of sixty-five acres of fine oak timber trees, the average size of which approached fifty feet," and in the particulars of the lot described it only as "sixty-five acres, two roods, and twelve perches of growing timber." It appeared on the evidence for the plaintiff, that the average size of the trees was about thirty- five feet, but on that for the defendant, it was only about twenty- two feet ; and the defendant more- over alleged, that it was sold at a time when he had no means of seeing the wood, and that he relied on the particulars of sale. Held, that as the representation of the particulars of sale had proved to be incorrect, and as it was not shewn that the defendant knew it to be incorrect at the time of making the contract, the court would not at all events, enforce the specific performance of the contract without compensation, and that ( inasmuch as thy particulars of sale did not ex- Specific Performance, VENDOR AND PURCHASER.V When Refused. 525 press what number of trees or quantity of timber the wood contained,) it was not a case in which the court could measure the extent of the defi- ciency, or ascertain the amount of compensation j and that the bill must, therefore, be dismissed. — Lord Brooke v. Rounthwaite, 5 Hare, 298. A., being entitled under his marriage settle- ment to a Ufe interest, in certain freehold estates, with remainder to the use of trustees for a term of one thousand years, to secure a jointure and portions, with remainder to himself in fee, con- veyed part of the lands to B., in fee, in exchange for other lands, B.'s heir afterwards having contracted for the sale of the land, the purchaser refused to complete the contract, on the ground that A. had no power to exchange the lands in fee ; the vendor then procured the execution of cer- tain deeds, with a view of bringing the exchange within the terms of a power of sale and exchange, given to the trustees under the settlement. Held, under these circumstances, and likewise on the ground that the after executed deeds were grossly inaccurate, that the purchaser was not bound specifically to perform the agreement. — Cowgill V. Lord Oxmantnwn, 3 Y. & C. 369. Semble: That the atter-executed deeds, although the surviving trustee of the marriage settlement was a party to them, did not make the trans- action between A. and B., a due execution of the power. — id. The court may not perhaps enforce the specific performance of a contract for the sale of an estate, where the consideration is uncertain, (as a life annuity) if such consideration be greatly inade- quate ; but a diflference of seven or eight per cent, is not such inadequacy. — Bower v. Cooper, 2 Hare, 408. A. B., an attorney, representing himself to be authorised by the owners, entered into an agree- ment on their behalf, to sell a house to the plain- tiff, and received a deposit. The plaintiff filed a bill against the owners, and A. B., praying a a specific performance, and in the alternative, that if the agreement could not be enforced against the owners, then, that A. B. might repay the deposit, and the costs incurred by the plaintiff, and of the suit. It appeared at the hearing, that A. B. had no authority to sell. Held, that the remedy of the plaintiff against A. B., being altogether at law, could not be had in this suit, and the bill was dismissed with coats.^Sains- bury V. Jones, 2 Beav. 462. Where an estate is purchased at an auction, under a mistake as to the lot put up for sale ; the court will not decree specific performance against the purchaser, but leave the vendor, if he has sustained any damage by mistake of the pur- chaser, to his remedy at law. A bill, for specific performance, was accordingly, under the circum- stances, dismissed without costs. — Malins v. Free- man, 2 Keen, 25. WAIVER— WATER RIGHT. WAIVER. W., had for some years received money on the tonnage levied on goods and parcels alone. Held, that this did not prevent him from afterwards claiming payment on the tonnage duty on pas- sengers. — Edinburgh Railway Co., 8 Clk. & Fin. 710. There must be as clear evidence of the waiver as of the existence of the contract. The court will not act upon less. — Carolin v. Brabaam, 3 Jon. & L. 200. Abandonment of a contract is a contract in itself. Loose conversations in which the tenant stated his interest to be different from that to which he was entitled under the contract, are not an abandonment of it. — Moore v. Crofton, 3 Jon. & L. 438. Conditions of sale stipulated that the sale should be completed on a certain day, and that no objections to the title not made within twenty- one days from the delivery of the abstract should be considered as waived, and that if the pur- chaser should not comply with the conditions, his deposit should be forfeited, and the vendor be at liberty to re-sell the property. The purchaser did not deliver his objections untU. several weeks after the expiration of the twenty-one days, and after the day appointed for completing the pur- chase. The vendor's solicitor, however, received them, and entered into a long correspondence with the purchaser on the subject of them, but without coming to a satisfactory conclusion. Finally, the vendor re-sold the property, (but at a less price), notwithstanding the purchaser pro- tested against the re-sale, and gave notice to the vendor of his intention to file a bill to enforce his contract. About six months afterwards he filed his bill, making the auctioneer and the purchaser at the re-sale, to whom he had some months before given notice of his prior contract, co- defendants to it. The court Held, that the benefit of the conditions had been waived by the vendor's solicitor, and decreed a specific performance, with a reference to the master as to title, and dismissed the bill, with costs, as against the auctioneer, because he denied that he had ever intended to part with the deposit, and without costs, as against the purchaser at the re-sale, who claimed the benefit of his contract if the court should think that theplain tiffs dught not to be performed. — Cutis V. Thodey, 13 Sim. 206. Where objections to title are to be considered as waived, unless made within a certain time after the delivery of the abstract. — Qu 666 9. CousiTis 666 10. Next of Kin 666 1 1 . Personal Representative .... 567 12. Eesiduary Legatees 669 13. Per Capita a7id Per Stirpes.. 670 14. Generally 571 16. Servants 672 -Construction 672 I. — Signing and Attestation of. Attestation of Instruments of Appointment and Revocation made in exercise of powers in Wills, 54 Geo. 3, c. 168, XT. K. See also 7 Will. 4 & 1 Vic. c. 26, E. & I. Bastards in Scotland enabled to make Testa- ments, 6 & 7 Will. 4, c. 22. Kemoving difficulties in disposing of Copy- holds by Will, 55 Geo. 3, c. 192, repealed in part by 7 WiU. 4 & 1 Vic c. 26, E. & I. Providing with respect to the execution of Wills by Petty Officers, Mariners and Seamen, 11 Geo. 4 & 1 Will. 4, c 20 ; 2 & 3 WUl. 4, c. 40 ; 4&5Wm. 4,c. 25,U. K. Stamp Duties assimilated in Great Britain and Ireland, by 5 & 6 Vic. c. 82. Any person seeking equitable relief, may, without special leave of the court, and instead of proceeding by bill of complaint in the usual form, file a claim in the Record and Writ Clerk's Office, in any of the following cases. — 1 Gen. Ord, 22nd April, 1850. A creditor upon the estate of any deceased person, seeking payment of his debt out of de- ceased's personal assets. — Id., Art. 1. A legatee, under the vfiU of any deceased per- son, seeking payment or delivery of his legacy out of the deceased's personal assets. — Id., Art. 2. A residuary legatee, or one of the residuary legatees of any deceased person, seeking an account of the residue and payment or appropria- tion of his share therein. — Id., Art. 3. The person, or any of the persons entitled to the personal estate of any person who may have died intestate, and seeking an account of such personal estate, and payment of his share thereof. —Id., Art. 4. An executor or administrator of any deceased person seeking to have the personal estate of such deceased person administered under the direction of the court. — Id., Art. 5. Lands were limited to such uses, &c., as L. H. W. should appoint, by her last will and testament in writing, to be by her signed, sealed, and pub- lished, in the presence of, and attested by three or more credible witnesses. L. H. W. signed and sealed an instrument(before Stat. 1 Vic. c. 26), con- taining an appointment commencing thus ; — " I, L. H. W. do publish and declare this to be my last will and testament," and ending thus : — " I declare this to be my last will and testament, in vritness whereof I have, to this my last will and testament, set my hand and seal, the 12th day of September, &o." The attestation was thus : — " Witness, C. B., E. B., A. B." Held by the House of Lords (reversing a judgment of the Court of Exchequer Chamber, and concurring in the opinion of the majority of the Judges), that the attestation was sufficient, and that the power of appointment was well executed. — Burdett v. Spilsburgh, 10 Clk. & Fin. 340. The 7th section of the Indian Will Act, of 1838, enacts: — "that no wUl shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned, that is to say, it shall be signed at the foot, or end thereof, by the testator, or by some other person in his presence, and by his direction, and such signature shall be made or acknowledged by the testator in the pre- sence of two or more witnesses, present at the same time ; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." A testator signed his will in presence of a witness, who sub- scribed it in his presence, and some time after- wards upon the arrival of another witness, the testator, in joint presence of the former witness and the other subscribing witness, acknowledged his subscription at the foot of the will, the second witness then subscribed the wiU, and the first witness, in his and the testators presence, ac- knowledged his subscription, but did not re- subscribe. Held by the judicial Conmiittee (affirming the sentence of the Supreme Court at Calcutta), that the requirements of the act had not been sufficiently complied with, it being necessary that both witnesses should be jointly present at the act of the testator, and jointly sub- scribe it in his presence. — Casement v. Fulton, 5 Mo., 131. Whether the rules of the Ecclesiastical Courts in Doctors' Commons, relating to the doctrine of pre-emption of appeal, apply to an ecclesiastical cause in the Supreme Court at Calcutta, so as to deprive a party of the charter-right to appeal within six months &om the decree, &c. — Queere, —Id. A. being entitled to a share of a testator's resi- duary estate, bequeathed all the efiects due to him from the estate, to his nine children. The estate was then unadministered, but it was after- wards administered, and certain debts due to it were allotted to A. as his share of the residue. After which he settled the debts in trust for himself for life, remainder in trust for his sons and daughters, or any of them, or any of their children, as he, from time to time, by deed or writing, to be by him duly executed and attested, or by his will, should appoint. Held, that, under the combined operation of the 24th and 27th sec- tions of the late Will Act, ( 7 Will. 4 & 1 Vic. 26,) the will though, made before the power 528 Signing and WILL. Attestations of. ■was created, was a good execution of it. — Stillman V. Weedm, 16 Sim. 26. A domiciled Englishman ( while resident at Milan) executed, in October 1838, a codicil, dis- posing of personal property, situate in the United States of America. This codicil was holograph, signed, though not attested, but was well exe- cuted according to the' Austrian law. Held,, by the Juditial Committee ( affirming the Judgment of the Prerogative Court; i^-first, that the vali- dity of the codicil was to be governed by the law of thfe domicil ; and secondly, .that the provisions of the 1 Vic. c. 26, applied to testamentary papers made in foreign countries by a domiciled English- man. Testator, by his will made in 1823, directed his executors to pay any legacies he might after- wards give by any testamentary ivriting, witnessed or not, and after making various codicils, he, in 1838, made a codicil which was signed but not attested, and by a further codicil, in 1839, duly signed and attested, he declared, that he thereby "ratified and confirmed his said will and codicils. ' Held, that such general reference was not suffi- cient to identify and so incorporate the codicil of 1838 in that of 1829, and probate of such codicil refused. — Croker v. The Marquis of Hertford, 4 Mo. 339. Ihe factum of a will, Held, under the circum- stances of the case, to be sufficiently proved, though one of the subscribing witnesses deposed, that he did not see all the testator wrote, only the large initial of his christian name, and the other vpitness stated, that she did not see what he wrote, but that he acknowledged the paper to be his will in their joint presence. Evidence of illiterate witnesses, as to acts not affecting tlieir interests, when opposed to the probable acts of an educated man, no fraud being in question, is to be received with great caution. The will con- tained tilterations and erasures affecting the amount and objects of the testator's bounty, the existence of which, at the time of the execution, the attesting witness could not depose to. Held, by the Judicial Committee, in the absence of all direct evidence as to the alterations and erasures, that the presumption at law was, that such alter- ations and erasures were made after the execution of the will granted in its original form. — Cooper v. Bookett, i Mo. 419. The mere circumstance of the deceased having called in two witnesses " to sign a paper for him," (which they did in his presence) but without any explanation of the nature of the instrument being made to them, or the witnesses being able to see if any signature or writing was upon it, when they attested it. Held, by the Judicial Committee of the Privy Council, affirm- ing the judgment of the Prerogative Court, not to amount to^n acknowledgment of the signature by the deceased, so as to satisfy the provisions of 1 Vic, c. 26, s. 9, and probate refused to such paper. — Ilott v. Genge, i Mo. 265. By a deed, made since the Statute of Wills, (7 Will. 4 and I Vic, c, 26,) certain trust funds were appointed to trustees in trust, for such per- son or persons, for such interest or interests, and chargeable with such sum or sums of money, and for such intents and purposes, and in such man- ner in all respects, as the appointor should, by any deed or deeds, writing or writings, with or without power of revocation and new appoint- ment, to be by her sealed and delivered in the presence of, and attested by one witness or more, direct or appoint. The appointor afterwards made her will, (which was duly executed and attested according to the Statute of Wills) &nd thereby bequeathed part of the trust fuAds. Held, that the wUl was a writing within the terms of the power. — Buakell y. Blenkhcytn, 5 Hare, 131. A will, in order to be a good exercise of a power, was required to be signed and published by the donee, in the presence of, and attested by two or more credible witnesses. The donee made a will, which was signed by him, and was attested thus : — " We, the undersigned, attest to have seen the above testator sign the above will." Held, that that clause was, in effect, an attesta- tion to the publication as' well as the signature of the will, and, consequently, that the power was well exercised. — Bartholomew v. Harris, 16 Sim. 78. Probate granted of a paper writing in ink, but dated and signed in pencil, with the addition " in case of accident, I sign this my last will," having also an attestation clause unsigned ; the facts pleaded in the allegation being sufficient to rebut the legal presumption against the paper. On reversing the decision of the Prerogative Court, refecting an allegation pleading circum- stances to entitle a paper to probate, the Judicial Committee retained the cause, and, ultimately, granted probate of the instrument. — Bateman v. PeAnington, 3 Mo. 223. A horograph paper, written in abbreviated words and initial letters as to names, dated, and commencing : — " Head of instructions to my soli- citor, J. Lee, to add to my will the codicil fol- lowing," but concluding with the declaration: — " This is my last will and testament," and en- dorsed, "Memorandum to J. Lee." Will, though dated more than four months' previous to the death of the testator, who met with a sudden and violent death, admitted to probate, the Judicial Committee, being of opinion that although the paper, per se, did not amount to a codicil, the effect of the evidence was to shew, that, con- sidered as instructions, it was fixed and final, and contained the settled intentions of the de- ceased up to the last moments of his life, which were only prevented from being personally carried into execution by his sudden death. — Castle v. Torre, 2 Mo. 133. A horograph instrument, purporting to be a codicil sent anonymously by the post to one of the legatees named therein, though partially burned and torn across, admitted to proof, the hand-writing being satisfactorily proved, and the confirmatory and adminicular proof being suf- ficient to satisfy the court that it was a genuine instrument. Held, also, that under the circum- stances of the case, that the onus of proving that the cancellation was the act of the testator, and with what intention it was done, lay on the parties opposing the proof. — Wood v. Hitchings, 2 Mo. 3.55. An allegation, propounding a will, having an attestation clause, but no witnesses, admitted, the Judicial Committee in affirming the sentence of the court below, being of opinion that sufficient was alleged to entitle the party propounding to produce his proofs to repel the presumption of law against such an instrument. — Stewart v. Stewart, 2 Mo. 193. If a testator, who is unable from illness to sign his will, has his hand guided in making his mark, it is a sufficient signature within the Statute of Frauds.— WtVson v. Beddard, 12 Sim. 728. Probate and WILL. Proof of. 62d. II. — Probate and Pboop of. Principles upon which a Court of Probate pro- ceeds in the admission of testamentary papei s of persons of alleged incapacity from age or infirmity. Testatrix being of the age of eighty-six, and, as al- leged, of feeble and impaired mind, having' no near relations, by her will and two codicils, ga,ve to her medical attendant (who was a stranger to her in blood, but in whose house she resided,) the bulk of her property, appointing him sole execu- tor and residuary legatee. The will was executed in his house and prepared by his attorney, and was at variance with her previous testamentary dispositions which were in favour of her distant relatives. The Prerogative Court being satisfied of the testamentary capacity of the testatrix, upon the balance of evidence negativing the alleged fraud, admitted the will and codicils to proof. On appeal, the sentence, so far as it related to the will and first codicil, was aifirmed by the Judicial Committee of the Privy Council ; but a further allegation pleading facts, noviter ad twtitiam pie- venta, being brought in the second codicil, was pronounced against, and the sentence of the Pre- rogative Court, to that extent, reversed. — Jones T. Godrich, 5 Mo. 16. The Prerogative Court refused probate to a will of a feme covert, made in pursuance of a power because it was, upon the face of it, not exe- cuted according to the requisites of the power. Held, on appeal by the Judicial Committee of the Privy Council, reversing such sentence, that such will was entitled to probate ; the Ecclesias- tical Courts having no jurisdiction to inquire as to the due execution of the power, but simply to giant probate, leaving it to a court of equity to determine the question of the due execution of the power. — Barnes v. Vincent, 5 Mo. 201. A legatee claiming under an alleged will of George III., under the sign manual, in pursuance of the 40 Geo. 3, c. 88, s. 1 0, against the executors of George IV., alleging, that George IV. and his executors had possessed the assets of George III., and it alleged, that the will had not been, and being a Sovereign's will, could not be, proved. A demurrer was allowed on the ground that, until the will had been proved, this court had no jurisdiction ; and, Semble : That the proper remedy against George IV. would have been by petition of right. — Ryves v. The Duke of Wellington, 9 Beav. 579. If the will of a testator is stated to have been proved by A., his executor, in the Prerogative Court, and the will of A. to have been proved by B., his executor, in the proper Ecclesiastic^ Court, nan constat, that B. is the personal repre- sentative of the original testator. — Joaaaume v. Abbot, 13 Sim. 127. A husband and wife who were Briash subjects, and were domiciled and resident in England, but were jointly entitled to a sum of money secured upon mortgage of an estate, in the Danish Island of St. Croix, made a joint will according to the Danish law, bequeathing all their personal estate, and afterwards the husband made a sole will, bequeathing all his personal estate, and particu- larising, amongst other things, money dueon mort- gage of an estate in St. Croix, and the wife, having survived him, also made a sole wUl, bequeathing all her personal estate. The two sole wills were proved in England, but the joint will was not. It appeared, in evidence, that for the purposes of transmission, the Danish law con- siders money due upon mortgage of land as a personal estate. Held, that the court could not take notice of the joint will, and that the mort- gage money passed under each of the sole wills. ■>— Price v. Dewhurst, i Myl & Cr. 76. A codicil prepared by a solicitor, appointing him a .joint' executor, with a legacy of £500, which was read over to, the testator, who was blind at the' time of the execution, apd of fluc- tuating capacity,. in the presence of the attesting witnesses was pronounced against, there being no direct evidence that it was prepared in, conse- quence of instriietions from the testator, or satisfactory proof that at the time of the execu- tion he was cognizant of its contents, and in a condition to exercise, and did exercise, thought, judgment and reflection respecting the act he was doing.— X)«/ffl«r v. Croft, 3 Mo. 136. A will, executed by a testator on his death-bed in favour of his wife, to the exclusion of the other members of his family, the testator being of a weakened and impaired capacity at the time of ih.e factum from disease afi'ecting the brain, which produced torpor, and rendered his mind incapable of exertion unless roused, pronounced against, the disposition in the will being a total departure from, and contrary to, the previous expressed intentions of the testator. To constitute a sound disposing mind, a testa- tor must not only be able to understand that he is, by his will, giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of the pro- perty, and the nature of the claims of others, whom, by his will he is excluding from partici- pation in that property. — Harwood v. Baker, 3 Mo. 282. An agreement having been entered into for the sale of certain securities upon tolls, within the diocese of Lincoln, it appeared from the abstract of title that the will of one in the series of owners through whom the property passed to the vendor, had been proved only in the Consistory Court of the Bishop of Lincoln. Upon a bill filed by pur- chaser against vendor, the court declined either to force the title on the purchaser, or to order the vendor to produce probate in the Prerogative Court of the Archbishop of Canterbury. — WiU liams V. Bland, 2 Coll. C. C. 575 Two papers, A. and B., joined together, were propounded in common form, as the last will and testament of James 'Wood, the deceased in the cause. The first. A., was headed: — "Instruc- tions for the wiU of me, James Wood, of Glou- cester." By it, four executors were named and appointed, to whom were bequeathed all the testator's personal estate in joint tenancy. It bore date the 2nd of December, 1834, and was signed by the testator. The second, B., was declared to be the deceased's' will, for dis- posing his estates as directed by his instruc- tions. It declared his wish that his executors should have all his property, and devised to them all his estates, real and personal, as tenants in common, but did not name them. It was dated the 3rd of December, 1834, signed by the testator, and attested by three witnesses, Both papers were prepared by, and were wholly in the hand- writing of the deceased's attorney, who was one of the executors named in paper A. A caveat having been entered, and further proofs required, that were given upon the common condidit, it appeared that the paper A., imme- diately after its execution, was taken possession by, and remained in the custody of, the testator's attorney, until a short time previous to his MM ; 530 Probate and WILL. Proof of. decease, when it was brought to his house, and, without his knowledge or authority, fastened to the paper B., enclosed and sealed up in an envelope, and deposited in a bureau, where it was found the day following his decease. The Prerogative Court refused to grant probate to paper A., on the ground that it was superseded by paper B., which the court rejected as in- operative and ineffectual. Held, by the Judicial Committee (reversing the decision of the court below), that, upon a review of the evidence, it appeared that paper B. referred to, and incor- porated, some other paper, which, under the circumstances proved, could only be paper A., and that the two together were intended as, and formed, the last will of the deceased. — Wood V. Hitchings, 2 Mo. 355, The onm of proving a will being on the party propounding it, is in general discharged by proof of capacity and the fact of execution, from which the knowledge of, and assent to, its contents, by the testator, will be assumed. The fact of a party preparing a will, with a legacy to himself, is, at most, only one of sus- picion, of more or less weight according to the circumstances, demanding, however, the vigilant care of the court, in investigating the case before granting probate, and though evidence of the instructions given by the deceased, and the reading over of the instrument, are the most satisfactory proofs of the testator's knowledge of the contents, they are not the only description of proof by which the cognisance of the contents of the will may be brought home to the deceased, even in case of a doubtful capacity. A will prepared by the deceased's solicitor, under which he took a considerable benefit, the only son of the deceased being excluded, the deceased being of weak, though of testable ca- pacity, under the circumstances, pronounced for, affirming the sentence of the Prerogative Court, with costs. — Barry v. Butlm, 2 Mo. 480. The burden of proof of the genuineness and authenticity of a will lies on the party pro- pounding it, and if the conscience of the judge is not judicially satisfied that the paper in question does not contain the last will and testa- ment of the deceased, he is bound to refuse its admission to probate. A will written or procured to be written by a party benefitted by it is not void, but the cir- cumstance forms a just ground of suspicion against the instrument, and calls upon the court to be vigilant and jealous, and, unless clear and satisfactory proof be given that it contains the real intentions of the deceased, will be pronounced against. A will of a married woman, possessed of a separate estate, with a power of appointment, having been prepared by her husband's solicitor, unknown to the testatrix, from instructions given by the husband, by which he was appointed sole executor and residuary legatee ; and executed by the testatrix, under the influence and control of her husband, on her death-bed, declared void, and probate refused, it being, according to the evidence in the cause, contrary to the intentions previously expressed by the testatrix. — Baker v. Batt, 2 Mo. 317. Probate of a testamentary paper, in the nature of a codicil, having been granted by consent in common form, cannot afterwards be revoked ; and the allegation, that the conditions on which such consent was given have not been complied with, there being no proof of fraud or circumvention. practised either upon the court or other parties. — Nichol V. Askew, 2 Mo. 88. A Court of Probate has jurisdiction to examine into the execution of a power, so far as is neces- sary to determine whether the instrument exe- cuting it is testamentary. — Tatnaliv. Hankev.2 Mo. 340. Probate obtained by A. in the name of B. — Held, that a party giving faith to the probate was bound to see that the person claiming under it, was a real person of the name of B. — Ex parte Joliffe, 8 Beav. 168. Operation of probate in evidencing the will and authenticating the title of the executor to pro- perty, not comprised within the grant of the administration. — Matson v. Sieift, 8 Beav. 368. Testator bequeathed his residuary estate to A. the executor and trustee of his will, with a gift over in case of the death of A., so that he might not be enabled to perform the duties thereby re- quired of him. A. proved the will but died before he had fully performed the trusts of it. Held, that by merely proving the will, he entitled himself to the residue absolutely. — HoUingsworth V. Grassett, 15 Sim. 52. There is no case in which the court has es- tablished a will of copyholds — Semble. — Archer V. Slater, 10 Sim. 624. The probate copy of a copyholder's will, is sufficient to lead the uses of a surrender to the use of his will. — Id, After a will of personalty had been proved, per testes, in the Ecclesiastical Court, a bill was filed by the next of kin, alleging that the testator's signature to the will was obtained when he was not of sound and disposing mind ; that his medical attendants were not called as witnesses when the probate was obtained, and that the evidence of the testator's incompetency did not come to the knowledge of the plaintiffe until after the time allowed for appealing from the sentence of the Eccesiastical Court had expired, and praying that the will might be declared to have been fraudulently obtained, and that the residuary legatee might be a trustee for the plaintifis. A demurrer to the bill was allowed, a court of equity having no jurisdiction to release against the probate of a will, unless the consent of the next of kin to the granting of it was fraudulently obtained. — Gingellv. Home, 9 Sim. 539. An intestate's administrator died in England, and his will was proved in Ireland to enable his executors to take out administration, de bonis mm, to the intestate, which, however, they did not obtain. Held that the costs of probate were not chargeable against the intestate's estate. — Lang- ford V. Mahony, 2 Con. & L. 317. The Prerogative Courts having admitted testa- mentary papers to probate, as a will and codicil is conclusive evidence upon their being distinct instruments. — Bussellv. Dickson, I Con. &L. 284. A will, thirty years old, produced from the proper custody, proves itself. The thirty years are to be computed from the date of the will, and not from the death of the testator, and are calcu- lated as at the time of its production. — Man v. Ricketts, 7 Beav. 93. As to personal estate the court is bound by the terms of the will appearing on the probate, but if, on production of the original, a doubt exists as to the accuracy of the probate copy, the court will give an opportunity to the parties to apply to the Ecclesiastical Court to set it right. — Havergal v. Harrison, 7 Beav. 49. Practice in a suit to establish a will where one Proof of Will, ^c. WILL. Prolate Duly. 531 of the witnesses is abroad. — Hare v. Hare, 5 Beav. 629. Semble: The question whether a prerogative or a diocesan probate is necessary, depends, not upon the place in which the estate of the testator Comes to be administered, but on the local situa- tion of the property at the time of his death. — Jones V. Howella, 2 Hare, 342. If an executor does an act and dies without proving the will, the act will be valid if the will is afterwards proved. — Brasier v. Hudson, 8 Sim. 67. m. — Pkoof of Will Ma.de Abroad. A will disposing of personal estate situate in this country, made in pursuance of a power of appointment, and executed in compliance with the requisites of the power, is entitled to probate, though not executed according to the testa- mentary law of the domicile of the party making it. — Tatnali v. Hankey, 2 Mo. 342. Payment of a sum of £34 to the legal personal representatives under a Genevese probate, re- fused. — Lasseur v. Tyreonnel, 10 Beav. 28. A will was proved in the Westlndies, and a duly authenticated copy of it was sent to this country, accompanied by an affidavit made by one of the attesting witnesses, when the •»iii was proved ; shewing that the will had been executed and at- tested, pursuant to the Statute of Frauds^ and that copy was admitted to probate in this country and was produced in the Court of Chancery with the affidavit annexed to it. The Vice Chancello'r, however, refused to establish the will without full proof of its due execution and attestation. — Rand v. Macmahon, 12 Sim. 553, The Court of Chancery vrill establish a will made and proved in the Colonies, on the produc- tion of a duly authenticated copy of it, provided the due execution and attestation of the original is proved by the attesting witnesses. — Id. A British subject, resident in France, made his wiU and died there, having appointed A. and B., who were resident in France, and C. and D., who were resident in England, his executors. The will was translated into French, and the transla- tion was registered by A. and B., in the proper court in Paris. A duly authenticated copy of the translation was then procured, and translated into English, by a notary public in London, and that translation was proved by C. and D., in the Pre- rogative Court. — Bain -v. Lescher, 11 Sim. 397. A will proved abroad and retained there, esta- blished on production of a copy certified under the hand and seal of the proper officer, &c., which had been admitted to probate in the Ecclesiastical Court here. — Pullan v. Rawlins, 4 Beav. 142. Will established on secondary evidence, the original being in the Colonies. — Gardner v. Myre, i Beav. 143. Will proved in the West Indies, established on production of attested copy and prerogative pro- bate. — Bayley v. Bayhy, 4 Beav. 143. Will established on production of official trans- cript and of prerogative probate. — Harrison v. Weale, 4 Beav. 144. If a British born subject, domiciled in a foreign country, by his will appoints A. his executor, but makes a disposition of his personal property, which, though valid by the laws of England, is invalid by the laws of that foreign country, the Court of Chancery is at liberty, notwithstanding probate may have been granted to A., in this country, to hold that the will has no operation beyond appointing A. the executor.— TAorJiioTC v. Culling, 8 Sim. 310. IV. — PBOBATfi Duty. J. R., by will, direcied his real estates to be sold and converted into personalty, and after giving certain legacies, he thereby vested the residue in trustees, for the use of his daughter J. A. P. for life, with power to her to appoint the same by will, but expressly excluding, from the benelit of that appointment, certain persons named oi indicated in his will ; and he directed that, in de- fault of appointment, or so far as such appoint- ment should be incomplete, the residue should be held by the trustees in trust for the next of kin of D. R. This power was exercised by J. A. P., by her will, partly in favour of the next of kin of D. R., and partly in favour of other persons. Held, (affirming the decree of the Master of the Rolls) ! — First, that she must be considered to have had, notwithstanding the special exclu- sion in her father's will, an absolute power of ap- pointment, within the meaning of the 36 Geo. 3, c. 52, and that, consequently, legacy duty was payable by her appointees upon the bequests made by her, as being, under the 7th section, bequests made by her out of personal estate which she had the power of disposing of. Secondly, that this property, though subject to her power of disposal, was not so strictly her own property as to render it, under the 18th section, liable to probate duty, under the will, as property which she had died possessed of or entitled to. — Drake V. The Att. Gen., 10 Clk. & Fin. 257. As to the right of the Crown to probate duty on reality of a deceased party impressed, in equity, with the character of personalty. — Matson V. Swift, 8 Beav. 368. J. S. conveyed fee simple estate, upon trust, by sale, &c., to pay certain debts, and the residue to himself, his executors, administrators and assigns , without any equity thereon, in favour of his heirs or real representatives, notwithstanding the estate might remain unconverted at the time of his death. The estate was sold after his death. Held, that no part of the produce was liable to probate duty. — Id. A. made a mortgage in fee, to secure a sum lent to him by the trustees of his marriage settle- ment. On his death his daughter become entitled to the equity of redemption of the mortgaged estate, as his heir, and, under his marriage settle- ment, to the mortgage money. The trustees then conveyed the estate to her, subject expressly to the equity of redemption, and did not release her father's covenant for the repayment of the money. Afterwards she granted an annuity to M., and as a security for it, conveyed the estate and assigned the money to a trustee for hira. By her will she devised the estate, but did not dispose of her personal estate. Held, that the money was sub- ject to probate and legacy duty. — Swabey v. Swabey, 15 Sim. 502. The testator, who was domiciled in England, had, in the hands of his agents in India, certain securities of the Indian Government, the prhi- cipal and interest of which was payable m Indir, either in cash or by bills on the India Company at the option of the creditor. Shortly before his death he accepted an offer made by the company to him and other creditors, to have his notes con- 532 Obliterations, SfO. WILL. Revoeation — Of Gift. verted into stock, to be registered in England and to be saleable and transferable there. The con- version was not complete at the testator's death, nor till after his will had been proved in England ; but, ultimately, the stock was transferred to his executors, lleld, that no probate duty was payable in respect either of the notes or the stock, — Pearse v. Pearse, 2 Sim. 340. Semble : A party suing as executor or adminis- trator, cannot sxistain proceedings to recover a larger sum than that upon which the probate duty is calculated. — Jones v. Howells, 2 Hare, 342. V. — Oblitekations and Alterations. Obliterations and alterations made subsequent to the 1st of January, 1838, in a will of a pre- vious date, are within the provisions of 1 Vict, c. 26, and to be effectual, must be executed with the solemnities required by the statute. — Brooke v. Kent, 3 Mo. 334. To render such obliterations or alterations a revocation of the will, there must be, an in- tention on the part of the testator to revoke, which, if not manifest from the due execution of the obliterations, can only be ascertained by the rules of evidence, applied in similar cases, under the Statute of Frauds. Probate of a will, so cir- cumstanced, decreed in its original form, the obliterations and alterations not being executed in conformity with 1 Vic. c. 26, and it being apparent that the testator intended only a sub- stitution, and not revocation of the bequests altered. — Id. Will of realty dated prior to the 1st of January, 1838, and bearing upon the face of it, certain obliterations which were favourable to the claim of the heir-at-law of the testatrix, established against the heir, without the obliterations, the evidence leading to the conclusion that the obli- terations were not made previously to the execution of the will, or under circumstances rendering them valid within the provisions of the 6th section of the Statute of Frauds, and the heir not desiring an issue. — Wynn v. Hevening- ham, I Coll. C. C. 630. VI. — Lost. TTpon the admission of the heir at law that the will of the testator, which was lost, was duly executed and attested, and that thereby certain lands were devised to him, subject to a perpetual rent- charge, emd upon evidence of the contents of the will, by two witnesses, who heard it read, but who could not state that it was executed and attested, as by law required, further than that the person reading it, read out the names of the testator and of certain persons, as if they had executed and attested it, and upon proof of the payment of the rent-charge for thirty-five years, up to the year before the filing of the bill, the court declared that the lands were well charged with the annuity, and that the heir at law and the persons deriving, with notice, under a settlement of the lands, executed by him on the marriage of his son, and duly registered, and also the judgment creditors of the heir at law were bound to give eifect to the devise of the rent charge. — Wise v. Wise, 2 Jon. & L. 403. A lost will of real estate established by means of a copy. — EUia v. Medlicott, 4 Bcay. 144. The next of kiii of a party who died, leaving a codicil, but no wUl, allowed to take the residue, upon giving recognisances to refund in case a will should be found. — Bakewell v. Tagart, 3 Y. & C. 173. VII. — Op a Blind Peeson. Will executed by a blind testatrix established ; the wUl being in conformity with the instruc- tions given by the testatrix to her solicitor, though not proved to have been read over to the testatrix previous to execution. — Edwards v. Fincham, i Mo. 198. VIII. — Revocation. 1. By Marriage and Birth of Child 532 2. Of Gift 532 3. By Deed or Conveyance 533 4. By Obliteration 534 5. By Sitbsequent Codicil or Will 534 6. By Sale 536 7. By Mwtyage 536 Vni. 1. By Marriage and Birth of 0dld. Marriage and birth of a child do not afford presumptive evidence of intention to revoke, but are in themselves an absolute revoeation of a will, made previous to the marriage, but not in contem- plation of it, the rule being that there is a tacit condition annexed to the will, that, at the time of making it, it shoidd not have effect, provided the deceased have a wife, and chUd subsequently born.' Such tacit condition is applicable to a wUl of personal, as well as real estate, and is annexed to it at the time of making the vrill, which speaks from that period, and not fl:om the testa- tor's death. A testator, having made his will previous to his departure from England to Jamaica, devising his real estate to his brother, and his person^ estate equally among his four sisters of the half- blood, married soon after his arrival in the West Indies, when a settlement was made of the real, but did not include the personal estate. The testator died without having revoked his will, leaving his vrife enciente, who was subsequently delivered of a posthumous child. The executor in England obtained probate from the Prerogative Court of Canterbury, and having sent out an exemplification of the letters of administration to Jamaica, probate was also gremted there. A suit having been instituted to recall the probate, on the ground of the will being revoked by the marriage and birth of a child : — ^Held, by the Judicial Committee (affirming the sentence of the court below), that such circumstances were an absolute revocation of the entire vrill. — Israeli v. Rodon, 2 Mo. 51. ■Vin. 2, Of Gift. A testator drew two cheques on his banker, in favour of two of his servants, virith a direc- tion that they should be presented after his dealii, and about a year afterwards made a formal wUl in which, amongst other dispositions, he gave two annuities to the same persons, and all the residue of his personal estate to certain other persons, and revoked all former wills. After his death all the Revocation. WILL. By Deed or Conveyance. 533 three instruments were admitted to probate as constituting his last will. Held, that by reason of the probate this court was bound to treat the sums for which the cheques were drawn as lega- cies, but that as such, they were constructively, if not expressly, revoked by the will, — WcUsh v. Gladstone, 1 PhU. 294. Testator drew two cheques on his banker in favour of two of his servants, and delivered them to the servants with directions to present them after his death. About a year afterwards he made a testamentary instrument, by which, after giving legacies to different persons and an annuity to each of the two servants, he bequeathed the residue of his personal estate to A. B. and re- voked any former will or codicil by him made, and declared that instrument to be his last will. The three paper writings were admitted to pro- bate as constituting together the testator's last ■will, Held, that though the Court of Chancery was bound to consider the amounts of the cheques as legacies, they were revoked by the subsequent instrument. — WaUh\. Gladstone, 13 Sim. 261. Ynt. 3. By Deed or Conveyance. A simple renewal of a lease executed subse- quently to the date of the lessees' will, though it amounts to a revocation at law, has no such effect in equity. D. being entitled to one undi- vided moiety of a lease of lives, with covenant for perpetu^ renewal, devised her interest to the plaintiff; the day after the date of this will a renewal was granted by D. to the defendant, as being entitled to the other moiety, and to his father C, who was mad« a party in consequence of his having been a party in the preceding renewal, the plaint^ having contracted with 3ie defendant for the sale of his moiety. Held, on a bill for a speciiic performance, that the renewal did not operate to revoke the devise to the plaintiff. — Poole v. Coates, 2 Dm. & W. 493. 1 Con. & L. 631. A contract to dispose of property is as much a revocation, pro ton^o, in the case of wills within 1 & 2 Vict. c. 26, as those not within it, though how it may work on the estate of the devisee is doubtful. — Greene v. Cra?ner, 2 Con. & L. 64. A single lady having, under a will, a general power of appointment over a fund, made a volun- tary appointment of it to trustees, in trust, for her separate use for life ; remainder for any hus- band whom she might marry, for life j remainder for her children by any husband or husbands whomsoever. A few months afterwards, she be- ing still unmarried, revoked the appointment (although she had not reserved to herself any power to do so), and made another voluntary ap- pointment of the fund to other trustees, in trust, as she should appoint by deed or will ; she then married ; and afterwards, by virtue of the power reserved to her by the last deed, she executed another voluntary deed, by which she declared that the trustees of the prior deed should stand pos- sessed o^ the fund, in trust, as she and her husband should appoint, and in default, in trust for her husband and herself for their lives respectively, remainder for their ohUdren. The fund stUl re- mained in the name of the trustees to the will. The court, in a suit by the wife emd the last-men- tioned trustees, against the husband, the trustees of the will, and the trustees of the first-mentioned deed, decreed (with the husband's concurrence), the trustees of the wUl to transfer the fund to the trustees of the last deed, upon the trusts thereof. — Sloane v. Cadayan observed upon. — JDlatson v- Beatson, 12 Sim. 281. Testator bequeathed a sum of stock, in trust, for all or such one or more, exclusive of the others of the children of his niece, as she should, 'by her will, appoint, and in default of appoint- ment, in trust for all her children living at his decease. The niece, by her will, appointed £6,000, part of the stock, to her daughter for her separate use for life, and after her death, to such persons, &c., as the daughter should, by will, appoint, and in default of appointment, to the niece s two sons. The two sons and the daughter were the niece's only children, and they were all living at the testator's death. After the death of the niece, her two sons and daughter and the husband of the daughter exe- cuted a deed, by which, after reciting that it was conceived that the testamentary power of appoint- ment given to the daughter was invalid, as buing an excessive execution of the power given to the mother, and that it was also conceived that if that power should be valid and should not be exercised, then, and in either event, the reversion of the £6,000, expectant on the daughter's death, belonged to her two brothers, and to herself, and to her husband ; the parties, in order to obviate any doubt respecting the same, and to carry their mother's intention into effect, assigned the fund to two trustees in trust for the daughter for her separate use for life, and after her death, for the husband for life, and after his death, for the children of the daughter and her husband, and if they should all die imder twenty-one, in trust for the daughter's next of kin, and the daughter alone was empowered to appoint new trustees to the deed. A few months afterwards, the daughter made a will in exercise of the power given to her by her mother, and appointed the fund to her husband absolutely. Some time afterwards, she executed a deed, by which she appointed a new trustee of the prior deed. Shortly afterwards, she died, leaving her husband and four children surviving. Held, that the testamentary power of appointment given to the daughter was valid ; that the first deed was not intended to operate unless that power should be either void or not exercised ; that the daughter's will was a good execution of the power, and was not revoked by the second deed. — Phipson v. Turner, 9 Sim 227. By a written contract for the purchase of an estate, it was stipulated, that the conveyance should be made to the purchaser, his heirs, appointees, or assigns. The purchaser, imme- diately afterwards, made a devise of the estate, and subsequently took a conveyance of it to hunself and his heirs, to the usual uses to bar^ dower. Held, that the devisee could not make such a title as a purchaser would be bound to accept, inasmuch as all the existing authorities shew that the devise was revoked by the sub- sequent conveyance.— B«//w v. Fletcher, 2 Myl. A., having the legal estate in leaseholds, and bemg beneficially entitled to one third part of them m right of his late wife, and being entitled, under the will of B., (whose executor he was,) to another third for his life, with remainder to his children as he should appoint, with remainder to them absolutely by his will, gave one third to one of his daughters for life, with remainder to her children, and the other third to another daughter tar life, with remainder to her children. A. afterwards joined vrith the other tenant in conv- mon in a deed of partition, by which they aa- 634 Revocation. WILL. By subsequent Will or Codicil. signed the leaseholds In trust, as to one portion for A., his executors, &c., as administrator of his late wife; as to another portion in trust for A., his executors, &o., as executor to B. ; and as to the remainder in trust for the other tenant in com- mon. Held, that the deed was not a revocation of the will. — Woodhouse v. OMll, 8 Sim. 115. A testator entered into a contract for the pur- chase of an estate, by which the veiidor agreed to convey the same to the purchaser, his heirs, ap- pointees, or assigns. Subsequently to the con- tract, he made a codicil to his will, by which, after reciting the contract, he devised the pur- chased estate to his executors and trustees upon trusts therein-mentioned. He afterwards took a conveyance from the vendor to the usual uses to bar dower. Held, that the conveyance operated as a revocation of the devise. — BuUin v. Fletcher, 1 Keen, 369. VIII. 4. By Obliteration. A testator, by his last will and testament, after making certain dispositions with respect to his property, and giving an annuity charged thereon and certain houses, &o., to his wife for her life, left the same upon her death, " to our three chil- dren now residing with me, our sons A. and B. and the before-named C. our daughter, such of them as may be living at their mother's death to be equally divided between them share and share alike, and to their, his, or her respective heirs, exe- cutors and administrators." The testator after- wards caused the words " and the before-named C. our daughter," to be struck out of the will, and subsequently re-acknowledged the will on two occasions in the presence of three witnesses. Held, that there was no revocation as to the share of the daughter C. ,the intention to revoke not having been completely carried into effect. — Boyd V. Martin, 2 Dru. & Wal. 355. Where a will was written in ink and formally executed, and the testator afterwards drew a line in pencil through a clause in the will : — Held, that the erasure in pencil raised no presumption of revocation, and that, without other explanation, it was properly regarded, not as a revocation of the clause, but as merely deliberative or indica- tive of some future and incomplete purpose. — Francis v. Grover, 5 Hare, 39. Testator directed his executors to pay an an- nuity to his sister, , the wife of Francis Betley, or to such persons as the said Elizabeth Betley should appoint, to the intent that the same might be for the separate use of the said E. Betley, and the receipt of the said , to be a sufficient discharge. The testator after executing his will drew his pen through his sister's name in those places where the blanks are left. Held, tlie bequest was not revoked. — Mar- lins v. Gardiner, 8 Sim. 73. VIII. 6. By Siibsequent Will or Codicil. A testator by his will gave the residue of his personal estate to his wife for her life, and after her decease to Sir C. E. D. absolutely ; he sub- sequently by a codicil, which did not affect the gift of the residue, altered his will in some respects and confirmed it in every other. Next day he made a second codicil, by which he gave some pecuniary and specific legacies, and con- cluded thus : — " All the rest and residue of my property, not hereinbefore (or by my will or any other codicil), disposed of, I give and bequeath to my nephew, C. P. Y. and to Sir C. E. D,, their executors, administrators, and assigns, after the death of my said dear wife, equally to be divided between them." Held, (the Lord Chan- cellor dissentiente), that the above clause of the second codicil was a revocation of the gift, by the will, of the residue to Sir C. E. D., and that he was accordingly only entitled to an equal share thereof with C. P. Y. — Earl of Hardwicke v. Douglas, 7 Clk. & Fin. 795. Testator devised lands to the use of H. for life, without impeachment or waste, remainder to trustees during his life to preserve, &c., remainder, after his decease, to trustees for a term of 500 years, upon trust, to raise portions for his younger children, remainder to his first and other sons in tail male, with several remainders over. By a codicil to his will the testator revoked any bequest or devise to H. by any former will or codicil, and he devised the same lands to H. during his life, subject to an annuity which he had by deed charged thereon, remainder to M. during his life, to preserve, &c., remainder to his first and other sons in tail, remainder to M. D., in fee ; and he directed ihat this codicil should be taken as part of his wLl. Semble: That the devise of the term of 500 years, and the trusts thereof, are revoked by the codicil. Where a codicil contains an unbroken set of limitations, not reconcileable with those in the will, and exhausted in fee, it is to be inferred that the testator intended to dispose of the whole fee by the codicil, which he had otherwise disposed of by his will. — Daly v. Dalt/, 2 Jon. & L. 752. A testator left two substantive wills, each dis- posing of his entire property. By the first, dated in 1838, he appointed executors, to one of whom he gave the residue of his estate. By the second will, dated in 1839, which contained no revoca- tion of the prior one, he gave the whole of his property to his wife, with the exception of £5, but appointed no executors. Held, (affirming the decree of the court below) that the second will operated as a revocation of the first vrill, and was aloneentitled to probate. — Uenfreyv. Henfrey, 4 Mo. 29. A testatrix, by her will, devised Blackacre to her nephew, F., for life, with remainder to his first and other sons in tail male, remainder to R. and several other nephews successively, for like estates ; and she devised Whiteacre to R. for life, remainder to his first and other sons in tail male, with remainders over to F. and several other nephews in the same manner. Afterwards she made a codicil, and, reciting the gifts to F. and B., and declaring her wish to give to E,. the property there devised to F., and vice versa, revoked the said gifts, and devised the provi- sion, by her will, given to F., to R., his heirs, executors, administrators and assigns, and in lieu thereof, devised to F,, his heirs, executors, administrators and assigns, the property she had, by her wUl, given to R. Held, that the limita- tions over, in the vrill, to the other nephews of the testatrix, were revoked, and that R. and F,, respectively, took absolute interests in their gifts. — Murray v. Jackson, 3 Dru. & W. 143 ; 2 Con. & L. 104. Testator gave part of his property to A., B., C. and D., upon certain trusts for the benefit of his children, and gave the guardianship of them to his wife and ms trustees, the said A., B., C, and D., who were to maintain and educate them out of the trust property. By a codicil, reciting that he had appointed A., B., C. and D., exe- By Subsequent Will WILL. or CodteiL 535 cutOTS and trustees of his will, he revoked his ap- pointment, so far as regarded B,, C. and D., and, in lieu of them, appointed E, and F. to act as trustees and executors of his will, along with A. Held, that the appointment of B., C. and D, to act as guardians to the children, joint y with A., remained unrevoked. — In re Park,-li Sim. 89. Testator bequeathed a year's wages and £160 to his servant, J. F. By a codicil, he revoked those bequests, and gave J, F, an annuity in lieu of them. By a subsequent codicil, he revoked every gift in his will bequeathed to J. F., his late butler, both the one year's wages and the further pecuniarylegacy of £150. Held, that the annuity given by the prior codicil was not revoked, — Pratt V. Pratt, 14 Sim. 129. Testatrix, by will, bequeathed £3,000 in trust for C. for life for her separate use, and after her death, for her children, and in case there should be no such children, in trust for P. By a codicil stating, that C. had been largely provided for from other sources, the testatrix deducted the sum of £2,900 from the legacy of £3,000, and revoked so much of the legacy accordingly, leaving C. £100 only, as a remembrance of her affection. Held, that the legacy of £3,000 was revoked in toto, and that in lieu of it, the legacy of £100 was given for the absolute benefit of C, and that P. took no interest either in the £100 or any part of the £3,000. Effect of con- flicting dispositions in a will and codicil of the same residuary personal estate. — Sandford v. Sandford, 1 De. G. & S. 67. Testator, by will, distributed £7,300 stock amongst several legatees, except £200 surplus of the stock, which he directed to be applied in de- fraying any necessary expenses. By a codicil, dated two years after the will, at which time, there was, by reason of certain erasures made in his will, a much larger surplus than £200 stock, he left "the surplus of his money in the funds" to be appropriated as his executors might think proper among the several legatees. By a subse- quent codicil, dated a few days after the former, tiie testator, after bequeathing certain snuffboxes, &c., and stating that there appeared a surplus remaining after the legacies aforesaid were paid, begged lus executor to distribute the same among the children of his son W. There was property of inconsiderable amount besides stock, to which the residuary bequest, contained in the last codicil, might be applied. Held, that that bequect did not operate as a revocation of the bequest of the surplus of the funds contained in the second codicil.— /»jfe/eW v. Coghlan, 2 Coll. C. C. 247. Testator, by his will,' devised the lands of K., held for a term of years, to H. and J. Kyan, and the longest liver of them. He afterwards executed two codicils on the same day. In the first, he did not mention K. by name, but after directing two bonds to be given to his eldest son "to create a fund to pay the rent of their land of Palas Green," he relinquished "a settlement, made by J. Ryan, of an interest concern on this occasion, and de- sired that the entire interest and property arising out of this farm after the demise and extinction of the present lease, be converted into one fund." By the other codicil, he gave certain property in trust to pay the head rent of K . Held, that the bequest of K. to J. Ryan was not revoked by the codicils. — O'Shea v. Howley, 1 Jon. & L. 391. A testator devised an estate X., and other estates to A., charged with annuities ; and an estate Y., and his residuary real and personal estate to B., subject to the payment of his debts, funeral expenses, and legacies. He afterwards revoked so much of the second devise as included Y., and devised it, subject to thesame annnuities, and in the same manner as the estate X. Held, that the charge of debts, &c., on Y., was revoked, — Ravens v. Taylor, 4 Beav, 425. A testator, by his wUl, gave £3,000 to his brother B. for life, with remainder, as to £1,000, to his wife for life, with remainder, as to the whole, to his children ; he then gave £6,000 to his sister S. for life, with remainder to her husband for Ufe, remainder to her children, and after bequeathing £10 a- year to each of his two maid servants for their lives, he gave all his real estate and the residue of his personal estate to his sister H., absolutely. By a testamentary paper, de- scribed as a codicil to his will, he left his brother B. an equal share of his effects with his sisters, to have the interest for his life, with remainder to his children, subject to a life interest in £1,000 to his wife if living at his death, and his sister S. was to have an equal share with his sister H. By a subsequent testamentary paper, also de- scribed as a codicil, he left his two maid servants £10 a-year each for their lives, and nominated a person to act as trustee with the executors named in the will. Held, upon the effect of all the testamentary papers taken together, that the will, though modified, wajs not wholly revoked by the first codicil, and that in lieu of the £6,000 legacy, given them by the will, S. and her children were entitled to one third share of the personal estate, in the same manner, and subject to the same limitations as had been expressed by the will with respect to that legacy. — Cookson v. Hancock, 2 Myl. & Cr. 606. E. K., by marriage articles, agreed to settle £50 a year on his wife in the event of her becoming a widow, payable out of the lands of C. E. K. subsequently made a will, in which was the following passage : — "I bequeath to my wife, during her life, the sum of £50 yearly, (£50 yearly being settled on her by me on our inter- marriage,) payable out of the lands of C." Held, that the widow took only one annuity of £50. — Tn the matter of Margaret Power, a minor, Fl. & K. 282. lestator devised lands, subject to an annuity to his wife, to his son for life, with remainder to the son's first and other sons in tail, with re- mainder, subject to another annuity to his wife, to his grandson, and the grandson's first and other sons in like manner, with remainders over, and he gave his residuary personal estate to liii. son. The son died without issue, and thereupon the testator, by a codicil, charged the lands with three further annuities ; one for his wife, ano- ther for his daughter, and the third for her husband, and gave his residuary personal estate to his wijfe. He afterwards made two other codi- cils, but they were not duly attested. He then made a fourth, which was duly attested, "re- voking several of the dispositions heretofore made by me in said will and codicils, of all my free - hold, copyhold, and personal estate of every kind ; and instead of such devise, disposition and be- quest thereof, I do give all my freehold, copyhold, and personal estate of every kind, and whereso- ever situate, unto my daughter for her life, and after the determination of that estate, unto my grandson and his heirs, in strict entail, as in my will directed." He then directed that his grand- son, who was an infant, should not be put in 636 Suhaequent Wilt, ^e. WILL. Uncertainly. possession of his estates until he attained thirty- one, and that in the interval the rents should be accumulated for the benefit of his grandson and his heirs, " and in faUure of issue of my said grandson, I order that my said estates and effects shall go and descend as is by my said will directed." The testator then confirmed the seve- ral annuities and donations bequeathed in his will and former codicils, and gave another annuity to his wife, thereay, in all other respects but what was above-mentioned, ratifying and confirming his will and codicils. Held, that the grandson took an estate, not an estate tail, but only an estate for life in the lands. If lands are devised, in trust, to be settled on A. and his heirs in strict entail, the lands ought to be settled on A. for life, and on the persons designated as his heirs in succession. — Graves v. Hioks, 11 Sim. 536. A legacy given to the testator's trustees and execntors as a mark of his respect for them : — Held, not revoked by a codicil appointing other trustees in their room, and giving a legacy of equal amount to the newly appointed trustees and executors in similar language, — Burgess v- Burqesa, 1 Coll. C. C. 367. Testator, by a will made since the Statute 1 Vic. 0. 26, bequeathed the residue of his personal estate and certain freehold and leasehold estates, in equal shares, to L., M., N., 0., and P., and, in a subsequent part of his will, he bequeathed to H. one-half of the legacy named to each of the other legatees, that is to say, one-half what his brother M. ought to receive. By a codicil the testator declared as follows : — " I revoke all that part, written in my former will, which leaves a legacy to H., written in my will on the 32nd and 33rd lines." Held, that, by force of this re- vocation, the will was to be read as if the gift to H. were not in it, consequently, that such revo- cation enured to the benefit of the other devisees and legatees.— ^HarWs v. Davis, 1 Coll. C C. 416. By her will, a testatrix gave legacies of £200 to the seven children of J. B. B., and also other interests. By her first codicil she revoked the legacies of £200 to the children of J. B. B., and all other legacies given by the will, and in lieu gave legacies of £200 each to Samuel and four other children of J. B. B., by name. By her second codicil she cancelled all legacies, left in her will, to J. B. B.'s children, and by a third codicil she revoked the legacy of £200, by a previous codicil to her will, given to Samuel. Held, that the legacies of £200 each given to the other four children, by the first codicil, were not revoked. — Btmrteyy. Bunney, 3 Beav. 109. A testator, by will duly attested, gave all his real and personal estate to trustees, to convert into money and pay his debts, and then to appro- priate and take out of his said trust monies £1,000, which he gave to the plaintiff. By a codicil, not properly attested so as to pass real estate, he re- voked the legacy. Held, that, in this will, the testator had made his real and personal estate a common fund for payment of this legacy ; that the revocation was inoperative as regarded the real estate, and that the plaintiff was entitled in the proportion which the real estate bore to the per» Bonal.— S^ocAer v. Harbin, 3 Beav. 479. Devise and bequest of real and personal estate to a person for life with limitations over. By a podicil, reciting the devise and bequest and also the limitations over, the devises and bequests were revoked, " so far as related to the tenant for lite ;" but estates, both real and personal, out of ■vyllich the interest of the tenant for life was raised, were directed to sink into the residue. Held, that this was a revocation of the interest of the tenant for life only. — Ives v. Ives, 4 Y. & C. 34. Vm. 6. By Sale. A. being seised in fee of an estate, subject to a term for raising £5,000 for B., made a devise in general terms, sufficient to comprise the estate. Afterwards, part of the estate was sold for the remainder of the term for 7,600, under a decree for raising the £5,000 ; and A. sold the reversion to the purchaser for a further sum, and an assign- ment and conveyance were made, to complete the sale. The £5,000 was paid to B. out of the £7,600, but the surplus remained in court until long after A.'s death. Held, that, as an excessive sale had been made under the decree, the surplus of the money raised retained the character of real estate ; and that, notvrithstanding the assignment and conveyance, the devise remained unrevoked with respect to A. — Jermy y. Preston,, 13 Sim, 356. A testatrix devised a real estate, and afterwards sold it ; the purchase was not completed until after her death. Held, that the purchase money belonged to the personal .representatives, and not to the devisees of the testatrix, notwithstanding her lien on the estate for the purchase money, and notwithstanding the 1 Vic, c. 26, s. 23, which directs "That no conveyance or other act made or done subsequently to the execution of a will, of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked, as aforesaid, shall prevent the operation of the vrill vrith respect to such estate, or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his deatii. — Fartar v. The Earl of Winterton, 5 Beav. 1. Vlil. 7. By Mortgage, A remainder man in fee joined •with his mother, the tenant for life, in a mortgage in fee, by which it was provided that, if the remainder man, his heirs, executors, &c., should repay the sum bor- rowed on a certain day, the mortgagee, his heirs or assigns, should re-convey the estates to the person or persons for the time being entitled to the reversion and inheritance of the estates, ana his, her, or their heirs or assigns, or unto such other person or persons, and in such other manner and form, as he, she, or they should direct or appoint. Held, that a devise of the estates, pre- viously made by the remainder man, was not revoked by the mortgage. — Youde v. Jones, 14 Sim. 162. IX. — Uncertainty, A testator gave to his executors, beneficially, in equal proportions, all his property which he might not dispose of, subject to his debts and any bequests which he might afterwards make. He afterwards made a codicil, in these words : — " In a codicil to my will, I gave to the Corporation of Gloucester £140,000 ; in this, I wish my exe- cutors would give £60,000 more to them, for the same purpose as I have before named. I would also give my friends " (several were named, with largelegacies) ; " and I confirm all other bequests, and give the rest of my property to the executors for their sole interest." No other codicil was produced, Held, (afiii'ming a decree of the Coui't Uncertainiy, WILL. Uncertainty. 537 of Chancery, on a bill filed by the Corporation of Oloucester, claiming the two legacies), that the purpose of both the legacies must be the same, and that both failed for uncertainty of purpose, — The Corporation of Gloiicester v. Oaboum, 1 Clk. & Fin. N.S. 273. A testator devised an estate to Elizabeth Abbott (a natural daughter of Elizabeth Abbott, of G., single woman, and who formerly lived in his service), for life, with remainder to her children. At the date of the will, there was no person answering this description ; for though Elizabeth Abbott, who had formerly lived in his service, had a natural chUd, yet, it was a son, and not a daughter, and was named John, and not Elizabeth. Besides this, Elizabeth herself was not then a single woman, but had married one Caddy, and had a legitimate daughter, Margaret. John Abbott being dead, the property was claimed : — first, by the plaintiff, on the ground that the gift was void for uncertainty ; secondly, by the chil- dren of John Abbott ; and thirdly, by Margaret. But the court Held, under the circumstances, that the children of John Abbott were entitled. — Ryall v. Sannam, 10 Beav. 536. Stock was transferred to trustees, in trust for such persons as A. and his wife should jointly appoint, and, in default of appointment, in trust, during their joint lives, for the separate use of the wife, and in case A. should die first, in trust for his wife absolutely, but if she should die first, in tiust for him for life, and subject thereto, in trust for such persons as his wife, not- withstanding her coverture, should, by will, appoint, and, in default of such appointment, in trust for her next of kin. The wife, in A.'s lifetime, made a will, in exercise of the last- mentioned power. A. died before her. On her death, her will was admitted to probate, but the probate was limited to the property which she had power to dispose of. Held, that the will was inoperative. — Price v. Parker, 16 Sim. 198. Testator bequeathed all his property in the Austrian and Russian funds, and also that vested in a Swedish mortgage security. The testator, at the date of his will, had several sums invested on different Swedish mortgages. Held, that the bequest was not void for uncertainty, but all the sums invested on Swedish mortgages passed by it. — Rioharch v. Pattefon, 16 Sim. SOI. Bequest to Lady C, widow of Sir W. C, con- sidered valid, although, at the date of the will, she had married a second husband, K., and the fact of that marriage was unknown to the tes- tator, and she continued to call herself Lady C. The bequest was a bequest of a fund to trustees, to pay to her the dividends so long as she should continue single and unmarried ; and if she should anticipate such dividends, then the fund to become part of the testator's residue. Held, that she took an absolute interest. — Riahton v. Cobb, 5 Myl. & Cr. 145. Testator devised all his real estates (except the hereditaments thereinafter particularly devised) to trustees, on certain trusts. In a subsequent part of his will, he devised his farm in A., in the possession of T. H., to T. R. He had two farms in A., both of which were in the possession of T. H., but at difierent rents and known by difierent names. There being no evidence to shew, with certainty, which of the two farms the testator meant to devise to T. R., the court Held the esception to be inoperative, and that both the farms passed by the general devise to the trustees. — Bhmdell v. Gladatone, H Sim. 83. Bequest to John Newbolt, second son to William Strang ways Newbolt, vicar of Somerton. The vicar of Somerton was William Robtrt Newbolt. His second son was Henry Robert, and his third son, John Pryce. Held, that John Pryce Newbolt was entitled to the legacy. — Neic- bolt V. Pryce, H Sim. 354. Testatrix bequeathed £200, reduced annuities, standing in her name, to her nephew. That bequest was copied &om a prior will, at the date of which she had £200 reduced annuities standing in her name. Afterwards she sold that sum, together with certain additions which she had made to it, and invested the proceeds in £25 long annuities. Held, that the long annuities, which were the only stock that she was entitled to at the date of her last will, and at her death, passed to hernephew. — King v. Wright, 14 Sim. 400. Bequest of residue to A. for life, " and what- ever she can transfer, to go to her daughters," B. and C. Held, that the gift to B. and C. was void for uncertainty. — Flint v. Hughes, 6 Beav. 342. Testator bequeathed his residue to his first cousins, the children of his father's brother, of the name of C. The testator's father had two brothers, of the name of C, both of whom had left children. Held, that the bequest was not void for uncertainty, but that the children of both the brothers were entitled to share in the residue. — Hare v. Cartridge, 13 Sim. 165. Thetestatrlx devised freehold premises, in which she carried on trade, to trustees, in fee, upon trust (after the decease of a person to whom she gave the beneficial interest therein for life) to dispose of, and divide the same amongst her (the testa- trix's) partners, who should be in co-partnership with her at the time of her decease, or to whom she might have disposed of her business, in such shares and proportions as her trustees should think fit or deem advisable. The testatrix dis- posed of her business in her lifetime. Held, that the devise in favour of the persons to whom she might have disposed of her business was not void, either under the Statute of Frauds or on the ground of uncertainty. — Sttibs v. Sargon, 3 Myl. & Cr. 607. Bequest of £800 to the four eldest children of the testatrix's cousin, A. B., and £200 to the three remaining children of her uncle, A. B.j the testatrix had a cousin and an uncle of that name. The cousin had seven children, and the uncle one, but he had three remaining grandchildren, one other having died. Held, that the three youngei children of the cousin were entitled to the £200. — Bristote v. Bristow, 5 Beav. 289. Testator bequeathed £5,000 in trust for all and every the child and children of his niece, C. A., and of his nephew, the late James C, to be di- vided amongst them, if more than one, share and share alike, and if there should be but one such child, then in trust for such only child; the shares of sons to be paid to them at twenty-one, and the shares of daughters at that age, or on their mar- riage. The testator never having had a nephew named James C, who had died leaving issue, tht children of his late nephew, Henry C, (who was the only one of liis nephews who had left issue,] claimed to be interested under the bequest, upoi which, the master was directed to inquire whal persons were meant by the testator. It appearec (amongst other things) from the evidence befort 538 Uncertainty. WILL. What Interest Passes — Generally. the master, that the testator had had four nephews surnaiBed C; that two of them were named James, and another Henry; that one James died forty years ago, and the other about sixteen years before the date of the will, and that Henry died about ten years before the date of the will, and •was the only nephew of the testator who left issue; and the master found that his children •were the persons intended. The court, however, on hearing exceptions to the report. Held, that the finding was not warranted by the evidence, and referred it back to the master to review his report. — Daubeny v. Coghlan. 12 Sim. 507. Testator devised his estates to the second son of Edward Weld, of Lulworth, Esq., for his life, with remainders to his sons successively, in tail male, with like remainders to the third and other sons (except the eldest) of the said Edward Weld, and their sons, with remainders to the first and other sons of each brother (except the eldest brother) of the said Edward Weld successively, in tail male, with remainders to the second and other sons (except the eldest) of Lady Stourton, one of the sisters of the said Edward Weld, suc- cessively, in tail male. The will was dated in 1834, and the testator died in 1837. There was not, either at the date of the will or at the tes- tator's death, any such person as Edward Weld, of Lulworth, but it appeared from evidence, as to the state of the Weld family, that Joseph Weld was then the possessor of Lulworth, and he had an elder brother, named Thomas, and had had another brother, Edward, older than himself, who died a bachelor in 1796 ; that he had two sons, Edward Joseph his eldest, and Thomas his second son, and that Lady Stourton was his sister. The question was, whether the second son of Joseph or of Edward, or of Edward Joseph, was intended to be the object of the first devise. The court decided in favour of the second son of Joseph. — Blundelly. Gladstone, 11 Sim. 467. Bequest of £600 to be applied towards payment of the debt to which Z. chapel was or might be subject at the testator's decease. The chapel was vested in trustees for a particular class of dissenters. The general body of that class had incurred a debt for building chapels, and £600 were laid on Z. chapel wmch it was expected would be raised by voluntary subscriptions of the members, but there was no legal liabUity, Held, that the legacy failed. — Daviea v. Hopkins, 2 Beav. 276. Devise to a corporation and other trustees, upon trust to distribute the rents and profits, an- nually, on a certain day, amongst certain families according to their circumstances, as in the opinion of the trustees they may need such assistance, whose names were thereafter mentioned, viz. ; — • (naming twenty-four persons.) Held : — First, not necessarily void for uncertainty. Secondly, not void as tending to create a perpetuity ; and Thirdly, a beneficial interest in persons who might lawfully take land by devise, and, therefore, not void within the Statute of Mortmain. — I.illif V. Hey, 1 Hare, 580. Devise of estates to A., upon condition thaf A.. should release in favour of her brother B. all \ .'s interest in £1000, " charged upon certain est.ites limited by the marriage settlement" of the father and mother of A. and B. The sum of £1,000 was comprehended in the settlement, and A. took an interest in it, but it was not charged on any estates. Held, nevertheless, that it was the sum referred to in the will. — Howard v. Conway, 1 Coll. C. C. 87. X. — What Intekest Passes. 1. Oenerally 533 2. Absolute Interest 542 X. 1. Generally, A testator seised of an estate, per outer vie, and possessed of personal property to the amount of about £4,500, by his will, bequeathed " the sum of £1,500, the other part of the £4,600, together with any other property," in trust for the use of his father, to be disposed of by him, share and share alike, as he by deed or will should appoint, among testator's brothers H. and J. and the daughter or daughters of his sister E. The will contained a residuary clause in these words : — " As to the rest, residue and remainder of my worldly estate and fortune, not heretofore and hereby disposed of, in trust to the use of my affectionate father J. C, and his heirs, executors, and administrators for ever." Held, that the estate, pur auter vie, passed under the residuary clause and not under the words " any further property," upon the construction of the whole will. E. had several daughters. Held, that the testator's father took a life interest in the £1,500, together with any further property, and that on his decease, without having executed his power of appointment, H. J. and each of the daughters of E., were entitled to equal shares. A testator seised under a lease, pur auter vie, devised the lease upon certain trusts. Upon the determination of the lease, the trustee of the will obtained a new lease, which comprised the pre- mises in the original lease together with additional lands. Held, that the trusts of the will did not attach on the additional lands. — AcAeson v. Fair, 3 Dru. & W. 612 ; 2 Con. & L. 208. A testator bequeathed an annuity to D., and to A., B., and C, the residue to be equally divided, &c., except the Swansea Canal Shares, which were not to be sold till after the death of D. Held, that the Swansea Canal Shares passed by the residuary gift. — James v. Irving ; James v. Gronouj, 10 Beav. 276. Testator bequeathed £2,042, in the 5 per cent, bank long annuities, for thirty years, which he had purchased. It appeared that he had bought £106 annuities for terms of years, ending January, 1860, for £2,042. Held, that the £106 annuities passed. —Att. Gen. v. George, 16 Sim. 138. Money of the testator in the hands of his sales- master, does not pass under a bequest of all his ready money and securities for money, there being no evidence that the salesmaster acted as the banker of the testator. — Smith y, "Sutler, 3 Jon. & L. 665. The testator devised that his trustees should retain in their hands any reasonable sum of money which should be sufficient to remunerate them for the trouble they should have in carrying the trusts of his will into execution. Held, a good bequest of such sum as the master found to be a reasonable remuneration ; though, shortly after the decease of the testator, a bill was filed to carry the trusts of the will into execution. — Jackson v. Hamilton, 3 Jon. & L. 702. The testator devised lands to trustees, in trust to convey the same to A., to hold for the life of his widow ; after the death of his widow, to convey same to B. and his heirs, subject, however, to the payment of an annuity to C, the first payment thereof to be made on the first day of May, or November, which shoiUd first happen after his decease. Held, that the annuity was What Interest Passes. WILL. Generally. 53 payable, in presenti, though the widow was living. — Id. A testatrix devised to trustees, their heirs and assigns, her copyhold dwelling house, garden, and ground, together with the furniture and eflfects therein, and the coach-house and stable thereto belonging; and also the ten cottages, and -two new cottages built by her, with the ap- purtenances at L., to hold the same, with the appurtenances, unto and to the use of the trus- tees, their heirs and assigns, upon trust that they, or the survivors or survivor, or the heirs or assigns of the survivor, should pay the rents, issues, and profits of the said hereditaments to Sarah S., wife of George S., or otherwise permit and suffer her to use and occupy the said hereditaments during her life, to the intent that the same hereditaments and the rents, issues, and profits thereof, might be for her sole and separate use, &c. ; and after her decease, in trust for George S., for his life, and after his decease, upon trust that the trustees, or the survivors or survivor of them, and the heirs and assigns of such survivor, shall be possessed of and interested in the said hereditaments, in trust for such persons, of a certain class, as Sarah S. should by will appoint, and in default of appoint- ment, upon trust that the trustees, or the survivors or survivor of them, and the heirs or assigns of such survivor, should sell and dispose of the said hereditaments and premises ; and the testatrix directed that the produce of the sale should form part of her residuary personal estate. Held, that no beneficial interest in the furniture and effects passed by the wUl. —S^jtSs v. Sargon, 3 Myl. & Cr. 507. Under a devise to A. of the testator's house, with the lands thereunto adjoining, as then used and occupied by himself, and also all the house- hold and other furniture, pictures, plate, books, and all other things whatsoever usually therein, or considered as belonging thereto, except only cash, bank notes, and securities for money, — neither carriages, carriage and riding horses, used by the testator for the accommodation of himself and his family, nor farming stock and utensils, used by him in cultivating said lands, pass, although same were usually in the stables and on the lands, and were there at the time of the testator's decease, — Pemiefather v. Bury, 3 Jon, & L. 727. Testator devised lands to trustees for one hundred years, upon trust to pay the whole and entire of the rents thereof to his wife, for her life, or until she should marry, and in case she should marry, upon trust to pay her an annuity ; and from and immediately after the decease or second marriage of his wife, but subject as aforesaid, and without prejudice to the same, upon trust to raise £3,500 ; £1,000, part thereof, to be paid to his daughter on her marriage, and £2,000 to his two sisters, in equal moieties, and £500 to his sister- in-law ; and he directed that said three sums be paid to his sisters and sister-in-law, respectively, as soon after his decease as might be convenient, and in the meantime, they should be paid interest thereon at 5 per cent. Held, that the interest was to be raised after the decease or marriage of the wife, with the principal of the charge out of the residue of the term ; and that it was not to be borne out of the wife's life estate, or to be paid out of the personalty. — Id. Bequest of £1,000 stock to a married woman, " solely and entirely for her own use and benefit during her life," is a bequest to her for life, to her separate use. — Inglefield v. Cogklan, 2 Col C. C. 247. Testator having freehold, copyhold, and lease hold estates, some of which were within th liberties of the City of H., and others within th County of H., but out of the liberties of the Citj devised all his freehold, copyhold, and leasehol tenements, in the City of H., or the libertie thereof, in the County of H., and his two lease hold houses on Ludgate Hill, in the City c London, to trustees, in trust to sell. In a codicil he spoke of the sale, authorised by his will, of hi estates in the City and County of H. Held, tha the estates in the County of H., but out of thi liberties of the City, did not pass by the devisi to the trustees. — Moser v. Piatt, 14 Sim. 95. Testator devised all his real estates to trustees as to his freehold messuages, farm lands, and heri ditaments, in the county of B., in trust, for G The testator had a farm in that county, consistin| of a messuage and one hundred and sixteen acrei of land, of which the messuage and the greatei part of the land were freehold, and the other parti leasehold for long terms of years, at peppercorr rents, and they were interspersed with, and un- distinguishable from the freehold part, and had been demised therewith as one farm at one entin rent, and the testator had always treated and dealt with them as freehold. Held, nevertheless, that the freehold parts were not comprised ic the trust. — Stone v. Greening, 13 Sim. 390. Testator devised real estates to the use of James David for life, with remainder to trustees during his life to preserve, remainder to the first and other sons of James David, in tail male, remainder to John for life, remainder to trustees to preserve, remainder to his first and other sons, in tail male, remainder to William for life, vrith similar re- mainders to trustees to preserve, and to his first and other sons, in tail male, with remainders over, and he bequeathed certain chattels, real and personal, to trustees, upon trust to permit James David to receive the rents and profits thereof during his life, and from and after his decease to permit each and every of the several persons aforesaid, to whom an estate for life in the said real estates was thereinbefore limited, successively, and as each of them should becoma seised of his said real estates under the aforesaid limitations thereof, to receive the rents and profits thereof during his or their life or lives respectively, and from and after thedeceaseofthelastofthesaid last-mentioned tenants for life as should become seised in manneraforesaid, or if noneof them should become seised, then from and after the decease of James David, upon trust, to assign said chattels, real and personal, to such person or persons as should then become seised of the said real estate, under any of the limitations aforesaid, their exe- cutors, administrators, or assigns, and made William his residuary legatee. James David had three sons :— James, who died without issue in his father's lifetime, having devised and bequeathed all his real and personal estate to his brother, William ; John Henry, who died in his lather's lifetime, leaving the plaintiff his eldest son and heir at law, the first tenant in tail oi the real estates, under the will of the testator, and William, who survived his father. Held, that the plaintiff was entitled to an assignment of the chattels, real and personal, from the trustees. — PotU v. Potts, 3 Jon. & L. 353. W. H., by his will, which was not attested so as to pass real estates, directed that his property 540 What Interest Passes. WILL, Generally. should produce for his wife an annuity of £100; for each of his daughters, M. and J. L., £100 per annum for themselves and their children; for his wife's mother, £100 per annum. The annuities given to his virife and her mother, after the death of the survivor, to go to his three children, W., M,, and J. L., in equal shares, and bequeathed the residue of his property to W. Subsequently M. died, and, by a codicil, the testator directed the £100 per annum, &c., provided for M,, to be equally divided between W. and J. L. ; by a second codicil, W. H. directed, that in the event of W.'s death without issue male, then after the decease of his (the testator's) wife and J. L., his remaining property should go over. J. L. had no children at the date of the will, or at the time of the testator's death, nor did she take any other benefit, under the will and codicils, than those mentioned. Held, that J. L. took only a life interest in the respective gifts to her, Semble: The rule in Wild's case is inapplicable to bequests of personal estate. — Heron v. Stokes, 2 Dru , & W. 89; ICon. & L. 270. TJpon the construction of a will : — Held, that it was the intention of the testator, in the event of his wife and any of his children, living at his death, surviving him, that there should, at some time or other, be an absolute sale and conversion of his real estate for their benefit. Held, also, the wife and one of the daughters having survived the testator, that the daughter did not take, by devise or descent from him, any real estate dis- cernible to her heir at law. — Tilt/ v. Smith, 1 CoU. G. C. 434. A bequest of " foreign bonds and other secu- rities," held to pass foreign securities only, not- withstanding that the testator had a very large personal estate vested in the British funds. — Ferguson v. Ogilby, 2 Dru. & W, 648. A bequest of " the whole of my Irish funded property, standing in my name in the Bank of Ireland :" — Held, not to pass government deben- tures issued under the 28th Geo. 3, c, 2, the testator being, at the time of the execution of his will, and also at the time of his death, entitled to a considerable sum invested in the 3 J per cent, stock, standing in his name in the books of the Bank of Ireland. — Bidge v. Newton, 2 Dru, & W. 239 ; 1 Con. & L. 381. A devise " of all my household furniture, plate, house-linen, and all other chattel property that I may die possessed of ; where another person is appointed " residuary legatee," does not carry all the personal property, — Lanphier v. Despwrd, X Con. & L. 200. The right to set aside a voidable conveyance by a client to a solicitor is devisable. — Uppington V. Bullen, 1 Con. & L. 291. Testator gave all his property whatsoever, and wheresoever the same might be, at his decease, to his wife, for her absolute use for ever. Held, that an estate vested in the testator, as a trustee, passed by the devise, — Lindsell v. Thacker, 12 Sim. 178, Testator, amongst other bequests, gave a free- .hold house, his furniture, and certain other chattels to his. wife, for life and willed that at her death his two daughters should divide equally as residuary legatees whatever he might die possessed of, except what was already mentioned in favour of others. The question was what was the effect of the words in italics with regard to certain real estates of the testator, which were not particiUarly mentioned in his will. Held, that the Court ought not, in order to determine that question, to enquire into the value and other circumstances of the real estates, nor ought those circumstances to be stated in a case made for the opinion of a court of law upon the question. — Davenport v. Coltman, 12 Sim, 605, A testator gave his residuary estate to his wife, for life, and then to be divided into three shares and he gave one-third between the children of his brother, T. B., living at the death of his wife, one-third to his niece, F. G., and the remaining one-third to his nephew and niece, T, B. and S. S., and in case sucb, any or either of them should di«, having left a child, or children, sur- viving them, he declared that the expectants share should go between his or her children, T. B's, children all died in the lifetime of the widow, but some left children. Held, that the latter were entitled to the first-mentioned one- third. — Garey v. Whittingham, 5 Beav. 268, T, M,, in 1764, upon his marriage, covenanted to settle certain estates, upon trust, for himself for life, with remainder (subject to a jointure of £150 per annum for his intended wife, in case she survived), to his children in strict settlement, with au ultimate remainder to his own right heirs ; but in case he should die without issue, or making a vrill, then to X,, her heirs and assigns. In 1773, T. M., having previously acquired other estates, and being then without issue, made his will, and thereby, after charging " his unsettled real estate" with his debts and legacies, gave the rest and residue of his said vmsettled real estate to his wife, Jane M., for life, with remainder to the Incorporated Society for promoting Pro- testant Charter Schools in Ireland, and their successors for ever. In a suit by the Incorporated Society, it was Held, that the estates comprised in the articles of 1764, passed under the will of T. M., by the words "his unsettled real estate," together with his other estates. — The Incorporated Society v. Richards, 1 Dru & W, 258, Semble ; The dictum in Forth v. Chapman (1 P. Wms. 666), and the doctrine in Doe v. Cooke (7 East, 269), that where there appears to be an intention on the face of a will to give the whole of a term of years away from an executor, a bequest of it, though only for a day, is a gift of the whole term, in case the limitations over are void, and cannot be sustained. — Ker v. Lord Dungannon, 1 Dru. & W. 509. Testator, by his wQl, gave £500 to A, and £1,000 to B., to be paid within twelve calendar months after his wife's death. By a codicil of the same date, he reduced those legacies to £300 and £500 respectively ; afterwards, he formally re- published his will. By a second codicil, after reciting the bequest, in his will, of £500 to A., he revoked that bequest, and, in lieu of it, gave A. £300, to be paid at the same time as the revoked bequest was directed by his will. By a third codicil after reciting, that by his will he had given to R, £3,000, he reduced that legacy to £2,000, and then directed that the £300 given to A., as well as the £1,000 given to B., should not be paid till twelve months after the death of his wife. Held, taking all the instruments together, that B. was entitled to a legacy of £1,000. — Grand v. Reeve, 11 Sim. 66. " I give my wife all my ready money at my bankers', in my dwelling house, or elsewhere, by which I mean, money not invested in security or otherwise bearing interest, but what I may have in hand for current expenses at the time of my decease." Held, that cash balances in the hands of the testator's bankers, and of his agent. What Interest Passes. WILL. Generally. 54 and dividends of stock due at the testator's death, passed by the bequest, but that the rent of a house and the interest of a sum due on mortgage did not pass. — Fryer v. Ranken, 11 Sim, 55. Testator devised his real and personal estate to trustees, upon trust to sell and lay out so much as should be sufficient to raise three annuities of £100 each, and he directed that they should apply one of such annuities towards the mainte- nance and education of his grandchildren, the children of his late daughter, H., until the youngest of such children who should live to attain twenty-three, should attain that age, a-id! from and immediately after such youngest child should have attained that age, then he directed the capital fiom which such annuity was derived, to be paid and divided, unto and equally amongst his last-mentioned grandchildren, share and share alike, as tenants in common. He then directed the two other annuities to be paid to his daughters, C, and W., for their lives ; as to the respective capitals from which such annuities were derived, he directed his trustees to pay and divide each of them from and im- mediately after the decease of his daughters, C. and W., unto and equally amongst all and every his grandchildren then living (children of H.) and all the children of G. and W-, as well those then living, as those which might there- after be born, share and share alike, &c,, and as to the residue of the monies to arise from the sale of his real and personal estate, he directed his trustees to pay and divide the same, unto and equally amongst the children of H. then living, and the children of C. and W. then living, or to be born during his lifetime, share and share alike, 33 tenants in common. The will then contained a proviso that the legacies or shares should vest in the grandchildren at twenty-three, and that if any should die under twenty-three without issue, then the legacies or shares of them so dying, should go and accrue to the survivors and survi- vor of them, to be equally divided between them, share and share alike. At the testator's death, there were twelve children of H., C. and W,, of these, four died under twenty-three, then six attained that age, then two died under twenty- three ; and of H,'s children, who were five in number, three attained the age of twenty-three, of whom one, namely, J. H., died, after survi- ving M. H., who died under twenty-three, and pre-deceasing D. H., who died under that age. Held : — First, That J. H. took an original one- fifth share of the annuity fund provided for the children of H,, and one-third of M.'s share, but no part of D.'s share. Secondly, That the limi- tations over of the annuity fund, from which C. and W. took their life annuities, were void for remoteness. Thirdly, That J. H. took an origi- nal share in the residue, and an aliquot part of the shares of the four who died before him, but no part of the shares of those who died after him. Fourthly, That, for the purpose of the above con- struction, the words "survivors and survivor," were to be taken in their usual sense, and to be considered as referring to survivors in each class of grandchildren. — Cromek v. Lumb, 3 Y. & C, 665. Bequest of a pecuniary legacy to A. for life, with remainder to B, for life, with remainder to the children of A, living at the decease of the survivor of A. and B., to be paid at twenty-one, with benefit of survivorship in case of the death of any such children under twenty-one, with a gift over to X. if all such children died under twenty-one, A. had two children only who a1 tained twenty-one, and died in A,'s lifetimi leaving children. Held, that the gift over to S took effect,— >Fifeo» v. Mount, 2 Boav, 397. Under a bequest of household furniture, fixture belonging to the testator in a leasehold hous occupied by him will pass. — Paion v. Shepharc 10 Sim. 186. Testator bequeathed to his wife £600 per annur for her life, and after her death the said annuit to be equally divided between A., B., C, D., Ei and F., or the survivors or survivor, and he be queathed to the same six persons £100 per annun each during their lives, with power to leave thei annuities at their deaths to any person they migh marry, or any children they might leave ; but, ii case of either of them dying without exercisini such power, then to the survivors or survivor Held, by the Vice-Chancellor, that the abov bequests in favour of A., B., C, D,, E. and F passed the capital of the funds producing the an nuities, but the Lord Chancellor reversed hi Honour's decision. — Blewitt v. Roberts, 10 Sim 491. A general residuary devise and bequest of rea and personal property for such estate and interes as the testator had therein, the personal estate ti be subject to the testator's debts : — Held, to pasi the legal estate in real property, of which thi testator was merely trustee, the will creating n( inconsistent trust thereof. — Lanqfortl v. Auger 4 Hare, 313. A testator, having three places of residence ai A., B. and C, bequeathed the one at A. to hii nephew, and also " all his carriages, horses, im- plements, and his live and dead stock, anc chattels," in and about the house and premise! at A., " and also his household goods and fur- niture, pictures, plate, linen, china, liquors of al sorts, and brewing vessels, and likewise hii watches and personal ornaments." Held, thai the household goods, furniture, &c. at B. and C passed by the bequest, but whether a bust woulc pass under the latter words — Quaire. — Willis v Curtois, 1 Beav. 189- Manuscript note ot a physician of his attendancf on a patient, and which were bound up in volumes Held, to pass under a bequest of " all and everj my books in and about my house" at A. — Id. A pocket book, and a case of instruments usually carried about the person of the testator Held, not to pass under the words, " personal ornaments ;" but whether a gold pencil case tooth-pick case, lip-salve box and eye-glast similarly circumstanced would pass — Qwere. — Id A devise of real and personal estate to a fenu covert for life, for her independent use and benefit with remainder to her husband for life, " with remainder to the heirs of her body in tail," witl remainders over, accompanied by a declaration " that all the aforesaid limitations were intendec by the testator to be in strict settlement." Held that, subject to the husband's life estate, the wift took an estate tail in the real estate, and an ab- solute interest in the personalty. — Douglas v, Congreve, 1 Beav. 69. A testator, having three children, gave his pro- perty to his wife, so long as she lived unmarried and if she married and her children resided with her, an allowance was to be made to her ; and, " after her decease, the testator bequeathed hii property equally between his children thei living." He directed his farm to be allotted ai part of his son Thomas's shaie, and, "he wished whoever might enjoy his farm, if unfortunatelj 54-2 WAal Interest Passes. WlLIi. Absolute Interest. his children should fail of heirs,'' should take his name, and he directed his daughter's share to be secured for her separate use. The son died in the lifetime of the mother. Held, that he took no interest in the property. — Tawney v. Ward, 1 Beav. 663. A., being seised of the equity of redemption of lands in N., and also of the legal estate as heir to his father, to whom he had mortgaged the lands in fee, devised his estates in N. and elsewhere to trustees, in trust, to sell. Held, that the legal estate in the mortgaged property did not pass by the will. — Ex parte Marshall, 9 Sim. 555, X. 2. Absolute Interest. A testator left all his personal estate, subject to legacies, and all his houses, gardens, parks, and •woods, and all his landed estates, to his wife for her life, and then to the eldest son of G. B., and afterwards to G. B.'s second, third, or any later sons he might have by the testator's niece, A., and then to the eldest son and other sons, successively, of the Earl of B. by the testator's niece, C, but all these to be subject to out-payments and lega- cies by the testator's wiU given ; and if they and the conditions of his will were not complied with exactly, he left all the advantages of it to the next person in succession, subject to the legacies and so on, unless they were discharged. The testator, by codicils to the will, gave numerous legacies and annuities, upon the non-payment of which, he declared repeatedly, and in various forms of expression, that the persons taking his personal estate should be subject to the penalties. G. B. had several sons living at the death of the testator. Held, that the eldest son of G. B. took the per- sonal estate absolutely, subject to the prior life estate, and to the legacies and annuities given by the will and codioili. — Hoarev. Byng, 10 Clk. & Fin. 508. A., by his last will and testament, gave an an- nuity (which he directed his eldest son, W., to pay) to his daughter B. for life, with power to her to dispose of same to all or any of her children, by any vpriting witnessed by two or more credible witnesses. B., by her last will, reciting that this annuity was one for ever, devised the same to her two sons, share and share alike. W., by his last will and testament, (which was sub- sequent to the will of B.) " ratified and confirmed the annuity so given, by his father, to B., and, by her, bequeathed to her two sons," and directed his eldest son, his heirs, and assigns, to pay same. Held, that the annuity was a perpetual one, and not merely for the life of B. and her children.— Surfe v. Lambert, 2 Dru. & Wal. 608. Bequest of £8,000 to testatrix's daughter, a married lady, towards purchasing a country resi- dence. Held, to be an absolute bequest. — Knox V. Lord Botham, 15 Sim. 82. Bequest to testator's daughter for life, and on her death to the testator's son and his children. The son had no child at his father's death, but had children living at the death of the daughter. Held, that his children were neither joint tenants ■with him, nor entitled in remainder after his death, but that the fund belonged to him abso- lutely.— Scort V. Scott, 15 Sim. 47. Absolute interest cut down to a life interest for a limited purpose. — Held, to remain absolute upon failure of that purpose. — Winckworth v. Winckworth, 8 Beav. 676. A testator, being seised of an estate for lives renewable for ever, demised it, subject to a profit rent of £400, to his brother-in-law, H., for his life, and having in the commencement of his will recited this demise, and that he had this profit rent of £400 per annum, professed to devise same amongst his three sisters. A., B., and C, in man- ner following :— To his sister. A., £150, to her sole and separate use for ever, to be issuing and payable out of the said lands and premises ; to his sister, B., £150, in the same terms; and to his sister, C, £100, in the same terras, " said three sums, making together the sum of £400 sterling, yearly, reserved and made payable to him by said lease so made to said H.," and then he devised the reversion, share and share alike, amongst his four sisters. A., B., C, and D., the wife of H., after the payment of the said hequests of £400 yearly. By a second codicil he revoked the gift of £150 per annum to his sister, A., and devised £100 yearly, part of said £150, to the husband of said A. for life, with remainder to M. for life, with remainder to M's. issue male, for ever, share and share alike, and as to the remain- ing £60, he devised same to hia sister, D., tor ever. Held, that the annuitants, imder the wiU and codicU, were entitled to perpetual interests in the several annuities, that construction being aided by the class of cases which have decided that an intention to pass the inheritance vriU be efieetuated though the testator may have only dealt in express terms with a limited interest in that inheritance, — Ashton v. Adamson, 1 Dru & W. 198. A testator gave a fimd, subject to the life interest of his wife, to A., B., and C, equally to be divided between them ; but in case of the decease of C. without leaving lawful issue, he gave her one-third between A. and B. Held, that upon the decease of the wife, C, who was then living, became absolutely entitled to one- third of the fund. — Barker v. Cocks, 6 Beav. 82. Devise of leaseholds, in trust, for A., for life, and afterwards to his issue male, severally and respectively, according to their seniorities, and in default to his heirs, according to their seniorities, and in default; over. Held, that A. took an abso- lute interest. — Jordan v. Lowe, 6 Beav. 350. Testator bequeathed a leasehold house and £3,000 stock, to trustees, in trust, to permit her daughter to receive the rents and interest for life, for her separate use, and firom and immediately after her daughter's decease, she gave the rents and interest to the heirs of the body of her daughter, lawfully begotten, but in case her daughter should happen to die without leaving any lawful issue living at the time of her decease, she gave the house and stock over. Held, that the daughter took the property absolutely. — The Earl of Verulam v. Bathttrst, 13 Sim, 374. Under a bequest of personalty by a will exe- cuted subsequently to the 1st Vic, c. 26, to "A. and B., to be divided equally, with a request to A., that, should he die without lawful issue, the property which I bequeath him shall revert back to the sons of B." A. does not take the absolute interest in a moiety. — In re O'Beirne, 1 Jon. & L. 353. In ascertaining whether the words "die without issue," in a will made subsequently to the 1st Vic, c. 26, mean an indefinite failure of issue, an intention is not to be inferred from those very words. — Id. Testator, having 7,300 stock, bequeathed to his nephew, J. C, £200 stock, part of the aforesaid £7,300, in order that he might be effectually WTial Interest Passes. WILL. Absolute Interest. 643 enabled to resist, by law, any attempt to deprive him of the little property which he and his con- nexions possessed in Crookhaven j and in order the better to deter any person from attempting the same, he requested that £200 of the above- named stock should be placed in the National Bank of Ireland, subject to the control of the said J. C., and the testator's niece, M., should it be found necessary to call for or remove it from the bank, to defend any attempt that might be made to dispossess them. On no other account was the said £200 stock to be removed from the National Bank ; but the interest of the same might, never- theless, be drawn for the use and benefit of the said J. C. The principal to continue in the bank for ten years after the testator's death ; at the expiration of which time, it might be withdrawn for the benefit of his family, provided no threat or intimidation of a claim was made against the property. 'The property was recovered, by law, from J. C, in the testator's lifetime, and the testator paid the costs of the action. Held, that J. C. was entitled to two legacies of £200 stock each, absolutely. — IngUfield v. Coghlan, 2 Coll. C. C. 247. Testator gave his daughter. A., " 2,000 after marriage." In a subsequent part of the will was the following clause :—" As to my daughters, I trust that they will not dispose of themselves in marriage, wiUiout consulting my executors, and getting their assistance in drawing up proper articles, to the intent that, should any of them die without issue, then, on the decease of their respective husbands and themselves, their fortune to revert to their surviving brothers, share and share alike." The testator s daughter. A., mar- ried, and died without leaving issue, in the life- time of three of her brothers. The brothers afterwards died, in the lifetime of the daughter's husband. Held, that the gift (if any) in deroga- tion of the absolute gift of £2,000 having failed, the gift remained absolute, and the husband was entitled to it.— Eaton v. Barker, 2 Coll. C. C. 124. Testator, by his will, gave an annuity of £1,000 a-year to his wife for her life, and directed his plate andfiirniture at H., his family mansion, to be sold. By a codicil, he desired that his wife should be accommodated with any plate she might choose for her own use, and that an inventory should be made of it, and that it should be returned at her death ; "and I give to her, absolutely, any one of my silver inkstands which she may select ; I also give to my dear wife any part of the beds and bedding, linen, carpets, or other household fur- niture, at H., which she may require for her own use, as likewise, any wardrobes or glass cases, at H., according to her wish ; and I give her, in ad- dition to all other provisions, £400 per annum during her life, to be applied to the rent of any residence she may choose to live at, and to be raised and paid in like manner as the annuity bequeathed to her by my will." Held, that the wife was entitled, absolutely, to such parts of the furniture as she might select, and that she was entitled to be paid £400 a-year, although she had fixed her residence, with her son, at the family mansion. — Lord Amherst v. The Duchess of Leeds, 12 Sim. 476. Testator gave to his son all his plate, jewels, trinkets, and all his furniture and other articles of domestic use and ornament. By a codicil, he gave to his wife all his provisions, wines, cariiages, horses, and all his musical instruments, and the use of all his books, and all his money in his dwelling-house, and in his banker's and land steward's hands, for her own sole use and benefit. Held, that the books were given to the son, abso- lutely, subject to a life interest in the wife. — Cornewall v. Comewall, 12 Sim. 303. A testatrix, by her will, bequeathed all her personal estate to C, whom she appointed one of her executors, for his own use and benefit for ever, trusting and wholly confiding in his honour that he would act in conformity with her wishes. Afterwards, on the same day, she executed a testamentary paper, which contained a list of a number of persons, by name, and among others, the name of the person who was her sole next of kin, with several sums to be given to them, res- pectively, and concluded with a declaration that such was the testatrix's wish. Held, upon appeal, that C. took the personal estate for his own use, absolutely, subject only to the payment of the legacies specified in the testamentary paper, and of three other sums which C, by his answer, admitted that the testatrix had directed him, and which he submitted to pay. — Wood v. Cox, 2 Myl. & Cr. 684. A testator gave his personal and landed estates to A., for life, and afterwards to B. for life, and then to the eldest son of C, and afterwards to his second, third, or any later sons he might have by D. ; and then to the eldest son and other sons successively of E., but all these to be subject to the out-payments and legacies following : — ^The testator declared " that if the legacies and con- ditions of his will were not complied with exactly, then he left all the advantages of it to the next person in succession, subject to those legacies, and so on, unless they were discharged." He gave many legacies and annuities by thirteen codicils, which, if not paid, those who were tc inherit his personal estate were to be subject tc the penalties in his will, and his personal estate was to go to the next he had entailed it on. C had several sons. Held, that subject to the prioi life estates, the eldest son of C, took the per- sonal estate absolutely. — Byng v. Lord Stafford, i Beav. 558. It is the duty of the court, to give efiect to th< intention of testators as far as the rules of lav will permit ; but if a testator uses words, which by their plain import, give an absolute estate, thi circumstance of his giving the same absoluti estate to a succession of legatees in a manner in compatible and inconsistent with the free enjoy ment of the property, plainly given to the first will not authorise the court to alter the effect o the words by which that property is given. — Id. The first legatee of a qitasi estate tail, in per sonalty, takes the absolute interest, notwith standing a manifest and avowed intention to giv a succession of limited interests. — Id. If an absolute interest be given upon an expres condition, which may be lawful in itself, but i incompatible with the free enjoyment of the pro perty, the coiut does not modify the absolut interest, for the purpose of giving efiect to th condition, but declares the condition void, for th purpose of supporting the absolute interest.- Id. Where the condition intended to be annexe to a gift, is inconsistent with, and repugnant t the gift itself, the condition is held to be wholl void. — Id. If a testator were to give all his estate to A. i fee, and then to B. in fee, and afterwards to C. i fee, or to give all his personal estate to A., an then to B., and afterwards to C, there is no ru of construction authorising the court to restrii 544 What Interest Passes. WILL. Ahsolute tnteresi. the estate given to A., to a life interest, for the purpose of giving effect to the gifts to B, and C. —Id. It has been established, that the words of a ■vi\\\ must be construed, vpith reference to the subject matter, and that the same words, even in the same sentence, may have one effect in their application to real estate, and another to personal estate. — Id. The testator gave his real and personal estate, in trust for his nephew, John, for life, and after his death, to be conveyed and transferred to the eldest son of John, on his attaining twenty-one, with limitations over in like manner, if there was no such son of John, to two other nephews of the testator, and their sons successively, and in case none of them, the said three nephews, should have a son who should survive the survivor of them and attain twenty-one, the testator then devised the estate, in like manner, to a fourth nephew and his sons, with remainder over to their respective daughters. Held, that the testa- tor, in the words of the devise to the fourth nephew, must be construed to mean, that such limitation should take effect in case none of the iirst three nephews should leave a son surviving his parent and attaining twenty-one, a different construction being repugnant to specific directions as well as to the general scheme of the will, creating cases of intestacy and supposing a capricious and irra- tional intention, and that, therefore, a son of John, surviving his father and attaining twenty- one, was entitled to an absolute conveyance and transfer of the real and personal estate. — Hillers- don V. Lowe^ 2 Hare, 355. Testator bequeathed eighty thousand rupees to his daughter absolutely upon her attaining twenty-one, and in the event of her dying under twenty-one, he bequeathed the fund to his brother's children. He then directed, that, should his daughter live to marry, her interest in the said rupees was to be enjoyed by her during her natural life, and at her decease, the principal to be divided amongst her children. Held, that the latter clause weis to be confined to the case of a marriage under twenty-one, and, consequently, that the daughter who did not marry until after she had attained the age of twenty-one took the fund absolutely. — Vulliamy v. Huskisson, 3 Y. & C. 80. Testator bequeathed two leasehold houses to his sisters, H. and M., to be held by them during their natural lives, they keeping them in good repair, and to be disposed of at their deaths as follows : namely, the house. No. 79, to descend to his sister H.'s eldest son or daughter, and the next heir, male or female, until the expiration of the lease ; and the house, No. 80, to descend to M.'s eldest son or daughter, &c., in the same words as before. Held, that H. and M. took an absolute estate in the leaseholds. Qitoere : Whether, if it had been a devise of freeholds, H. and M. would have taken estates in fee or in tail. — Ex parte Harrison^ In the matter of the Commercial Railway Act^ 3 Y. & C. 275. Bequest of £1,000 to A. S., and the children that may be lawfully begotten of her body. A. S., being unmarried at the death of the testatrix, takes the legacy absolutely. — Read v. Willis, 1 Coll. C. C. 86. If a testator bequeaths consumable articles to A. for life, with a limitation over, by way of re- mainder, to B., as the gift to A. is absolute, the limitation to B. cannot take effect, even though A. die in the testator's lifetime. — Andrew v. - Andrew, I Coll. C. C. 686. Testator, by his will, directed that the fourth part of the net annual income of his property, (which was personal) should be paid in quarterly payments to the eldest son of E., and that, on his decease, the quarterly payment of his annuity should be continued to his heir at law, and failing the latter by death, so on in like manner as long as there should be an heir. Held, that this was an absolute gift of one-fourth of the property to the eldest son of E. — Thompson v. Thompson, 1 Coll. C. C. 388. Bequest to trustees, to be divided between the testator's wife and six poor members of a chapel, share and share alike. Held, that the wife was entitled to one-seventh, absolutely, and that the other six sevenths formed a permanent charitable fund, the interest alone of which was, from time to time.payable to the poor. — Gregory v. The Att. Gen., 2 Beav. 366. Testator gave £2,000 to trustees, in trust, to invest the same in government securities, and to empower Lady C, the widow of Sir N. C, to re- ceive the dividends so long as she should continue single, and unmarried ; but in case she should sell, assign, dispose of, or anticipate such dividends the testator revoked the bequest, and directed that the £2,000 should become part of the re- sidue of his estate, which he gave to J. C. At the date of the will and at testator's death, Lady C. was married, to one E., but he had de- serted her and gone abroad, and she always called herself Lady C, and represented herself to be a single woman, and the widow of Sir N. C. ; and the testator and others always considered her so to be. Held, that she and her husband, R., in his right, were absolutely entitled to the £2,000. — Rishton v. Cobb, 9 Sim. 615. Testator commenced his will as follows : — "All my property in the several public funds, ex- cepting that in the 3 per cent, consols, is to be sold out, and after defraying, from the produce thereof, my funeral expenses and debts, the remainder is to be placed in the 3 per cent, consols, in which fund I now stand possessed of £3,700 capital stock. The annual dividends I leave, in trust, to my executor and executrix, to be paid by them, as the dividends shall become due, to the persons under-mentioned, during their natural lives ; viz. : — £30 per annum to my niece, H., and £20 per annum to my niece, S. The testator, in a subsequent part of his will, gave aU his house- hold furniture, and all his property of every kind not specified above, to his wife. Held, that tlie capital producing the two yearly sums of £30 and £20 passed to the wife. — Clowes v. Clowes, 9 Sim. 403. Testator directed his trustees and executors to apply the income of his residuary estate, for the maintenance, &c., of all his children, and to ac- cumulate the surplus for their benefit, until the youngest should attain twenty- one, and then to divide the capital into as many equal shares as the number of his children, who should be then living, should amount to, an equal share being allotted to each of them, and to the issue of such of them' as should be then dead, such issue taking their parents' share ; the shares of such of his children as should be sons to be paid to them or their issue, on his youngest child attaining twenty-one ; and the shares of such .of them as should be daughters, and of the issue of such of his daughters as should be then dead, he directed ^Vhat Interest passes. WILL. l)eb(s and Legacies, ^'c. to remain in the hands of his trustees, upon trust, to pay the interest to eacli of his said children, being daughters, during their lives for their sepa- rate use ; and on the decease of each of his said daughters, or in case any of them should be dead, leaving issue, when his youngest chiJd should attain twenty-one, then he directed his trustees to pay the sha*e of each such daughter to her issue. One of the dauglrtcrs who was living when the youngest child attained twenty-one, died a spinster. Held, that she took an absolute interest in a share of the residue. — HiUoie v. Hahne, 9 Sim. 644. The testator bequeathed a leasehold house and premises, with the furniture and plate, to his son, and added, " and should he die without heir or will, the profits of the said house to bo equally divided between all my grandchildren, by the consent of his mother." Held, that the son took an absolute interest in the house, — Gi-een v. Harv&i/, 1 Hiuo, 42S. Under a gift by a testator to his wifcj of his residuary personal estate, to the intent that she might dispose of the same for the benefit of herself and their children, in such manner as she might deem most advantageous ; the wife does not take an absolute interest. — Raikea v. Ward, 1 Haie, 455. The testator desired his daughter's share to be secured in the funds, and for his trustee to pay her the dividends, and he wished that neither the principal or interest of the funds should be subject to the controul of any husband she might marry, but that the same should stand, sul^t to her will only, properly executed, whether covert or sole, at her decease. Held, that the daughter took an absolute interest for her separate use. — Tawney v. Ward, 1 Beav. 563. The testator gave the sum of £500 stock to S. T., to receive the interest during life, and then to her issue ; but, in case of her death without issue, the said £500 stock to be divided between her father's children by his second wife, and, in default of any children by his second wife being living at the testator's death, over. Held, that S. T. took an absolute interest in the sum of £500 stock.— TAe AiU Gen. v. Bright, 2 Keen, 57. Devise and bequest of freehold, leasehold, copyhold, and £1,000 stock to A., B. and C, tenendum ; the said last-mentioned freehold and leasehold messuages, tenements, estates and pre- mises, and the £1,000, upon trust, for A. Held, that A. was not interested in the copyholds, which descended to the customary heir. A testator gave real and personal estate to his daughter A., and to two other persons, upon trust, to permit A. to receive the rents and in- terest for life for her separate use, and, after her decease, in trust, to convey to her heirs, exe- cutors, &c. ; but in case A. should marry and have no children, then the property to belong to D., or in case of his decease before A,, then to his childlen. Held, that A. took an absolute equitable estate, with an executory gift over to D. and his children ; and D. having died in the lifetime of A., leaving no children ; Held, that A. was absolutely entitled to the property. — Jackson v. Noble, 2 Keen, 590. A testator bequeathed personalty to trustees, to pay the interest to Sir Gilbert A., Bart., for life, and, after his decease, to his eldest son ; but, in case he shotijd die leaving no son, then, in trust, for the person on whom the baronetcy should devolve, so that each baronet shoiUd take the interest for life, and', after the extinction of the baronetcy, to fall into the residue of his estal At the death of the testator. Sir Gilbert A., ai his two brothers, James and Robert; on whom t baronetcy successively devolved, were livin Sir Gilbert A. afterwards died without havij had any issue ; — Held, that Sir James becan absolutely entitled to the property. — Mackwor V. Hinxman, 2 Keen, 658. A testator bequeathed the residue of his pe sonal estate to his widow, in tnist, to apply the ii terest and proceeds for her own use, and, aft her decease, he gave what should be remainir of such residuary monies unto and equally amor all the daughters of T. D. and their issue, wil benefit of survivorship and accruer. T. D. hs three daughters living at the testator's deatl One of them died without issue in the lifetime i the testator's widow ; the two others survive the widow, and had issue living at her deatl Held, that the two surviving daughters were ci titled to the whole of the residue absolutely.- Gibbs V. Tait, 8 Sim. 132. Testator gave all the residue of his effects ( be equally divided between his two daughtei and their husbands and families. The court n jected the words " husbands and families," an Held, that the two daughters took the reside equally and absolutely .^iJo6s»so» v. WaddeUn> 8 Sim. 134. Testator bequeathed his real and personal estat to trustees, in trust, to pay an annuity to hi wife, and to raise and pay to each of his childre £2,000, on their attaining twenty-one, and to ac cumulate the surplus income of the trust propert during the life of his wife, and after her deat to sell the property and divide the proceed amongst his children on their attainins; twenty one ; and in case all his children should die ii the lifetime of his wife, or under twenty-one, am without leaving issue, then after his wife's deatl to sell the trust property and divide the proceed amongst certain other persons. Held, that " or' ought to be read " and," and that the childre: having attained twenty-one, were absolutely en titled to the property though their mother wa living. — Miles v. Dyer, 8 Sim, 330, XI. — Dhbts and Legacies on what) Chakqeable. A testator gave certam portions of his real anc personal estate to trustees, for payment ot hii debts, and he specifically gave certain portioni of his real and personal estates to different parties " freed from his debts," and also bequeathed hii personal estate " freed from his debts ;" one o the devised estates was subject to a mortgage The funds, primarily applicable, being insufficien to discharge the debts, the property, whicl passed under the residuary clause, was Held t( be the next fund which ought to be resorted t( for that purpose ; and the devisee of the mort^ gaged estate was declared to be entitled to have the mortgage paid out of the residuary estate.— Lord Brooke -v. The Earl of Warwick, 1 Hall & T 142. A. B., being indebted to her law agent, in i considerable sum, for costs, and also a promissorj note, 'by her will, ordered, in the first instance her debts to be paid as soon as convenientlj might be after her decease; she then devisee her real estate to her brother, and directed, " tha) all costs and charges which might be due to hei law agent," at the time of her decease, should b( 546 Debts and Legacies, WILL. on What Chargeahle. paid by her brother out of the rents of the real estate. Held, that the real estate was charged ■with the amount of the promissory note as well as the costs. — Forater v. Thompson, 4 Dru. & W. 303 ; 2 Con. 8s L. 668. A testator, by his will, directed that his debts and legacies should be paid by his brother, whom he appointed his executor and residuary legatee ; he then charged two legacies, of three given by his will, on the timber growing on his estate of Finane, and bequeathed that timber to the same brother. Held, that the general personal estate of the testator, was exonerated from the payment of those legacies. — Lamphier v. Despdrd, 2 Diu, &W. 5. Testator bequeathed all his personal estate to A., subject to the payment of his debts and funeral and testamentary expenses, and after charging his real estates with the payment of certain lega- cies and annuities, he devised them to B. Held, that he had not exempted his personal estate from tlie payment of the legacies and annuities, — Davies v. Aahford, 15 Sim. 42. Testatrix, after expressing her intention to dispose of all her real and personal estates as thereinafter mentioned, gave certain legacies, and appointed A. and B. her executors, and gave to them and their heirs, all lawful powers and authority to conduct and manage her freehold estates, so as that the same might, at their dis- cretion, be sold and converted into money, and the net money to form part of her personal estate, and for those and every other purpose connected with her property, whether real or personal, she invested them, and the survivor of them, and his heirs, executors, and administrators, with her full authority ; and she directed, that any im- disposed of, and surplus of monies, should be paid, as she should, by any future writing or will, direct. Held, that the real estate was converted, out and out, into money, and subjected in com- mon with the personal estate, to the payment of the testatrix's debts andlegacies. — Flinty. Warren, 14 Sim. 554. Testator devised all his real and personal pro- perty, in Ireland, to trustees, upon trust, after payment of all his just debts and funeral expenses, and testamentary expenses, to raise, out of the rents or by sale or mortgage, an annuity for his wife for her life, and subject, thereto, in trust, for A. and his heirs ; and having directed his exe- cutors to pay certain legacies, he devised and bequeathed all his real and personal estate, in England, to such uses as his wife should, by deed or will appoint, and, in default of appointment, to the use of his wife for life, and after her de- cease, to the use of the trustees, upon the same trusts as were declared concerning his Irish estates, and declared it to be his will, that, in case his personal estate, in Ireland, should be insufficient for payment of his debts and legacies, his trustees should raise sufficient to pay same, by sale or mortgage of his real estates, in Ireland, which he thereby charged with the same, it being his intent to exempt his real and personal estate, in England, fiom payment thereof. The testator died in England, and his will was proved in England and Ireland. Held, that all his funeral and testa- mentary expenses, were exclusively charged on the real and personal estate in Ireland. — Coote y. Coote, 3 Jon. & Jj. 176. The gift of property, subject to charges to which it is already liable, does not create a new charge ; it may be a recognition or confirmation of the charge already existing, but does not create a charge more extensive than what existed or was supposed to exist. — DooUm v. Smith, 3 Jon. & L. 547. Testatrix, by her will gave £15,000, reduced annuities, " part of a larger sum standing in my name," to S. J., and £3,500, like annuities, " being further part of such annuities standing in my name," to J. L. By her second codicil, after reciting that by her will she bequeathed £15,000, reduced annuities, standing in her name, to S. J., and that she was desirous of making a further provision for J. W. (another legatee), she re- voked the bequest to S. J. so far as related to the sum of £6,000, " part of the said sum of £15,000, reduced annuities," and directed her executors, as soon as conveniently might be after her death, to transfer to J. W. " the said sum of £6,000, reduced annuities," and after further reciting that by her will she had bequeathed £3,500, "like reduced annuities," to J, L., and that she was desirous of increasing such bequest she thereby revoked the last-mentioned bequest, and in lieu of it gave £4,500, "like reduced annuities," to J. L. By her third codicil, in order that J. W. might have the full benefit of the bequest of £6,000, reduced annuities, given to him by her second codicil, she directed that such legacy should not be subject to any deduction for legacy duty or other charges, and that the same should be transferred to him before, and in preference to any other legacies and bequests given by her out of, or as part of her reduced annuities. The testator had £21,300, reduced annuities, standing in her name at the date of her will. At the date of her second codicil that sum was reduced to £18,300, like annuities ; at the date of her third codicil It was reduced to £ 1 6,700, like annu jties,and at her death it was reduced to £16,100, like annuities. Held, that the legacy of £4,500, " like reduced annu- ities," given by the second codicil to J. L. was not a specific, but a general legacy, and that J. W. was entitled to have £6,000, reduced annuities, trans- ferred to him out of the £16,000, like annuities, without any deduction or abatement whatsoever. —Johnson v. Johnson, 14 Sim. 313. Testator devised an estate to trustees, upon trust, to raise thereout one moiety of the legacies given by his will, and one moiety of such sums as might be requisite, with his personal property, to pay his debts, and subject fliereto, to convey the same to his eldest son and his issue in the manner therein mentioned. In like manner he devised three other estates to trostees, upon trust, toraise thereout, respectively, one-fifth, one-tenth, and one-tenth of his debts and legacies, and sub- ject thereto, to convey the same respectively to his second, third, and fourth sons, and their issues. He then devised another estate to trustees, upon trust, to raise thereout one-tenth of his legacies, and subject thereto, to convey same to his fifth son and his issue, as therein-mentioned ; and he directed that his personal estate, not spe- cifically bequeathed, should be applied in pay- ment of his debts, and that such further sum as might be requisite to pay his debts should be raised out of his landed property in the piopor- tions above-mentioned. Held, that the estate devised to the fifth son was charged with one- tenth of the deficiency of the personal estate to pay debts. — Purcell y, Blennerhasseit, 3 Jon. & L. 24. A testator, by his will, which was confined exclusively to real estates, after devising same among the several members of his family, con- cluded by "desiring that all his just debts should be paid as soon aa convenient after his decease." Debts and Legacies, WILL. on What Chargeable. 54 Held, that under this will the debts of the testator were charged generally upon his real estate. Whenever debts are directed to be paid they become a primary charge on the fund out of which they are so directed to be paid, unless there is something in the will to confine the gene- rality of the charge. — Harding v. Grady, 1 Dru. & W. 429. A testator made his will in the following terms : — " I devise and bequeath unto S. H., all my real and personal estate for life, she paying thereout the several legacies hereinafter-men- tioned, in three years after my decease." The testator then gave annuities to several persons, and added, " the said several legacies and annui- ties to be chai'ged on my real estate, the first payment to be made three years after my death." The testator then bequeathed legacies to other persons, and gave all his real and personal estate, after the death of S. H., to T. P. H., for his life, with remaunder over if he should die witholit issue. Held, that the legacies were charged upon the inheritance. The filing of a bill without the serving of the subpcena is sufficient to prevent the bar of the Statute of LimitatiouB. — Boyd v, Eig- gitison, Fl. & K. 603. A testator, who was possessed of considerable real estate, comprising, among other property, three houses in N., upon which he owed a sum of £2,900, secured by mortgage, devised his three houses in N., together with several other houses therein described, "the whole subject to the pay- ment of the mortgs^e debt of £2,900, borrowed on mortgage of the houses in N.," to C. and H., in fee. He then devised and bequeathed the residue of his real estates and all his personal estate and efiects whatsoever, subject nevertheless as to his personal estate to the payment of his debts, except such debts as were therein excepted, therefrom to trustees in trust, as to the particular estates therein specified, and among others as to his four messuages therein described, subject to the mortgages made on the same, and from the payment of which, he thereby exempted his per- sonal estate, and as to all ike residue and re- mainder of his said real and personal estates, in trust for the persons therein-mentioned. Held, that the testator's personal estate was the primary fund for the payment of the mortgage debt of £2,900.— BicAAam v. Cruttmell, 8 Myl. & Cr. 763. Specific legacies sind devised real estates must contribute, rateably, to the payment of specialty debts. — Gervia v. Gervis, 14 Sim. 654. This case overrules CometoaUy. Comeioall, 1% Sim. 298 ; where it was Held, that specific lega- cies are to be applied in payment of specialty debts in priority to real estates devised. Whether, where a residuary legatee by artful and fraudulent misrepresentation, to the testator, of the character of B., induces the testator to revoke a legacy given to B., the benefit of which revocation results to A., this court has jurisdiction to aSix a trust on A., in favour of B., to the extent of the fruit of the fraud possessed by A, ; or whether the matter belongs exclusively to the Ecclesiastical Court; and Secondly, Whether such trust can be declared after a sentence of the Ecclesiastical Court, in which the question of undue influence was in issue — Qutere. Held, in the affirmative, by the Master of the Rolls, and in the negative, by the Lord Chancellor. The parties, thereupon, appealed to the Ho'use of Lords. — Allen v. M'Phenon, 5 Beav. 469. A testator gave all his messuages, lands, tene- ments, and hereditaments, and all his personal estate to trustees to hold them, their heirs, exe cutors, administrators, and assigns, according t the nature and quality of them respectively, upo trust, to receive the rents, issues, and profi( thereof, and to retain thereout, yearly, £10, fc their trouble in the execution of the will, an then to pay legacies and annuities, with a direc tion, that certain charitable legacies should b paid out of his personal estate. Held, that th whole of the property, both real and persona was to be considered as one mass for the purpos of paying, rateably, the annuities and legaciei except the legacies expressly made payable ou of the personal estate. — Boughton v. James, Coll. C. C. 27. Upon the construction of a will: — Held, tha a particular freehold estate of the testator wa the primary fund for the payment of a mortgag debt, which had been charged thereon by th testator, in his lifetime, in exoneration of th personalty and other estates. — Evans v. Cockeram 1 Coll. 0. C. 428. Legacies Held, to be charged, by the will of ; testator, upon his real estate in exoneration a his personalty, — Ashby v. Ashhy, 1 Coll. C. C 649. Construction of the word " other" containei in a residuary bequest of "all other the rest am residue " of the testator's personal estate. — Martv, V. Glover, 1 Coll. C. C. 269. Bequest of £1,000 stock, in a certain event, "ti the person or persons who would, under thi Statute of Distribution of Intestate's EflFects, hav( been entitled to my personal estate in case Ihad no disposed of the same by will." The descriptioi of the legatees is not one of persons but of interest and, therefore, their shares will not be equal bu according to the statute. — Id. Upon the construction of a will. Held, tha the effect of general words of charge, at the com mencement, was not cut down by subsequen words. — Jones v. Williams, 1 Coll. C. C. 156. Damages occasioned by a breach of a covenan for quiet enjoyment, after the death of the cove nantor, are a debt of his within the meaning of i devise in his will of his lands to trustees, upoi trust, by sale or mortgage, to pay off and dis charge all such just debts of every kind as hi should happen tooweathisdecease. — Birmingham V. Burke, 2 Jon. & L. 699. Testator directed that his debts, and all chargei and incumbrances affecting his estates be paid b; the application, in the first instance, of all read] money and securities for money which he shoulc die possessed of, and he charged his estates of C exclusively with the payment of such, if any which should remain after such application. Hi devised his real estate to trustees and their heirs as to the residue thereof not before disposed o (which included C.) to the use of his wife for he life, and he bequeathed to her, in case she shoulc survive him, all his personal property not befori bequeathed. He then be(^ueathed a legacy, pay able immediately after his decease, and gave devised and bequeathed after the decease of hi wife two other legacies, and appointed his wifi executrix. Held, that the legacies were no charged on the lands of C, tliat money of thi testator, which at his death vras in the hands o a salesmaster in Smithfield, was not ready mone; within the meaning of the will. — Smith v. Butler 1 Jon. & L. 692. Estates were settled after the death of a husbanc and wife to trustees for a term, and subject theret( to the husband in fee. The trusts of the tern 548 Delts and Legacies, WILL. on What Chargeable. were, in case the wife should die in the lifetime of the husband, leaving children living at her de- cease, to raise £8,000 for the portions of such children, to be divided between them in such shares as the husband should, by deed or will, appoint. By his will the husband devised part of the settled lands to his eldest son in strict set- tlement, with powers of jointuring and charging portions for his younger children, and other part of the settled lands to his second son in like manner ; and, after reciting that he had by his settlement a power of appointing £8,000 amongst his children, he in pursuance of said power, and of every other power to him reserved, gave and appointed the £8,000 amongst his ehildren, and bequeathed to his daughter E. £1,000 in addition to the sum already appointed to her, and directed that in case all his younger children should die before their portions became payable, the said sum of £8,000 should sink into the inheritance, and that his personal estate should be applied, pro tanto, in discharge of the £8,000, in exone- ration of his real estate charged therewith. The husband died, leaving his wife and several children him surviving. Held, that the £8,000 was well charged on the real estate of the testator. — Mandeville v. Roe, 1 Jon. & L. 371. V. H. devised and bequeathed all his real and personal property to trustees, to pay S. an annuity, out of the lands of M. and B., during her life, and to pay unto his children, viz. : — to Ellen H., £2,000, and to Edward, Anne, Francis and William, £1,000 each, and to pay to J. H. an annuity for his life out of the lands of B. and E. ; and as to all his interest in all his estates, lands, houses, and landed property, to the use of his son, H. H., and he appointed Ellen H. his residuary legatee, and his trustees to be his executors. By a codicil executed the same day, he bequeathed all his household furniture, and his horses, stock, &c., to his son, H. H., and directed that all rents then due by the tenants on the respective lands should belong to H. H. By a second codicil, P. H. declared it to be his intention that all his lands, houses, &c., should revert to his son, H. H., and he be- queathed all his money and securities for money, equally, to Ellen, Anne H., and Francis H., and he left to William H. the lands of T.; "these bequests subject to a bequest already made in my will ;" and he desired that all rents due on his property in those respective lands should belong to his son, H. H. Held, that an I. 0. XT. given to the testator for goods sold by him was not a security for money within the meaning of the codicil. That head rents due by the testator at his decease were properly payable out of the general personal estate, and not out of the lands in respect of which they had accrued due, or out of the arrears of rent due at the death of the testator by the under-tenants of the same lands, and which had been be- queathed to the devisee of the lands. That, on the construction of the will and codicils, the specific legacies were charged with the payment of the general legacies of the testator, and were to be applied in payment thereof, in priority to real estates devised. — Barry v. Harding, 1 Jon. & L. 475. A., by his marriage settlement, after reciting that he was seised in fee of certain estates, sub- ject to mortgage debts, the amount of which was mentioned, and which he had contracted, settled the estates, subject expressly to the debts, on himself for life, remainder to secure a jointure for his intended wife, remainder to the first and other sons of the marriage, in tail male, re- mainder to himself in fee, and covenanted for the title, excepting the debts ; and he reserved to himself power to raise £10,000, by mortgage of the estates, the mortgage to be made redeemable by the person, for the time being, entitled to the freehold or inheritance. A. exercised the power, reserving the equity of redemption to himself, his heirs, executors, &c., or the person, for the time being, entitled as aforesaid, and covenanted for payment of the mortgage money. He then died without issue, having, by his will, charged his real and personal estate with his debts, and bequeathed the residue of his personal estate, after payment of bis debts, to B,, and having devised his remainder in fee, expectant on the failure of his issue male, to his brother and to his brother's sons in strict settlement. Held, that they were not entitled to have his personal estate applied to exonerate the devised estates from any of the mortgages and debts. — Ibbetson v. Ibbetson, 12 Sim, 206, A testator, after bequeathing a number of pecuniary legacies to difierent persons, and giving a certain field to his godson, directed that all his debts and the above legacies should be paid and discharged within six months after his decease, and all the rest and residue of his estate, both real and personal, he gave to N. The per- sonal estate proving insufficient to pay the debts and legacies, it was Held, upon demurrer to a bill by some of the legatees seeking to charge their legacies on the real estate, which passed under the residuary devise to N. : — First, There was no equity in favour of pecuniary legatees, to have the assets marshalled, so as to throw the debts upon the real estate devised to N. ; but. Secondly, That both the debts and legacies were, by the words of the will, effectually charged upon that estate, — Mirehouae v. Scaife, 2 Myl, & Cr. 695. Held, upon the construction of a will, that a primary direction for payment of all the testator's debts, did not render his real property equitable assets ; but this decision was reversed upon a rehearing. — Price v. North, 4 Y, & C. 509. Testator, by his will, after devising his real estates and giving pecuniary legacies, directed his debts, funeral and testamentary expenses, and the legacies thereby given, to be paid as soon as conveniently might be after his death, " and I charge my debts and legacies on my real and per- sonal estate." By a codicil, he gave to A. and B. a sum of stock, and directed the trustees and exe- cutors of his will, (who were the same persons) to purchase and transfer the stock to A. and B., in trust for C. for life, and subject thereto, in trust, to permit the same to return to and become part erf his personal estate. Held, that the chaige, in the the will, extended to the legacy given by the codicil, — Rooke v. Worral, 11 Sim. 216. A testator directed his widow to carry on his business until his youngest child should attain twenty-one, and for that purpose, gave her the "entire use, disposal, and management of the capital, stock, and effects, which should be now due and owing, or belonging to him in his said trade," at the time of his decease ; and he au- thorised his executors to augment the capital employed therein ; the executors renounced and the widow took out administration. Held, that the specific property of the testator, only, was liable to the debts contracted by the widow in carrying on the trade. — Cutbmh v. Cutbush, 1 Beav. 184. Lantls Purchased, Sfc. WILL. Conditional Sequesl. 549 A testator directed his real and personal estate to be sold, and the monies arising from the sale to be applied, in the first place, to the payment of his debts, funeral and testamentary expenses, and «dso the legacies which he might bequeath by any codicil, or codicils, to his will. He after- wards gave an annuity to his wife, by an unat- tested codicil. Held, that the annuity was well charged on the real estate. — Swift v. Nash, 2 Keen, 20. Where introductory words in a will directing payment of all the testator's just debts were fol- lowed by specific devises to two of the executors, it was Held upon the whole context of the will that the testator had not charged his real estate generally with the payment of debts. — Braith- toaite V. BrUain, 1 Keen, 208. The testator commenced his will with the words : — "In the first place I direct my just debts, funeral expenses, and the charges of proving this my will, to be duly paid." He then made several devises, and he gave to J, G. a small quantity of plate, together w^ith the rents and profits of his freehold and leasehold premises, due and accru- ing up to the quarter-day next after his decease, which rents and profits he charged with the payment of his said debts, funeral expenses, and the charges of proving his will. Held, that the testator had not charged his real estates generally with the payment of his debts. — Palmer v. Greaves, 1 Keen, 545. Testator directed all his debts, legacies, and fmieral expenses to be paid as soon as conve- niently might be after his decease ; afterwards he devoted a particular estate to the payment of his debts, legacies, and funeral expenses in aid of his personal estate, and devised the rest of his estates to his children, in strict settlement. Held, nevertheless that all his real estates were charged with his debts. — Graves v. Graves, 8 Sim. 43. A testator bequeathed to his daughter and ftier husband £300, and directed, if the husband should be indebted to him at the time of his death, the debt should be deducted out of his legacy. The husband died in the lifetime of the testator indebted to him in £250, and the testator afterwards died. Held, that the debt was not to be deducted from the daughter's legacy. — Davis v. Elmes, 1 Beav. 131. •/ Xn. Lands Poechased After Date of Will. Lands purchased after the date of a will, Held, to pass, by a codicil made subsequently to their purchase, the codicil containing no expressions limiting the effect of the devise to lands com- prised in the will. — Yamold v. Wallis, 4 Y. & C. 160. XIII.— Class. When there is a gift to a class of persons, and an enquiry becomes necessary to ascertain the persons entitled, the settled rule of the court is to send it to the master in the first instance to enquire who are the individuals constituting that class. — Kimberleyv. Tew, 4Dru. & W. 139. Bequest of residue, in trust, after payment of an annuity of £50 to A. for life, to apply the residue of the interest towards the maintenance of the children of B., until twenty-one ; and in case of the death of A. during their minority, to ^ apply the whole, or so much as was necessary, ■ in the same way ; and after the death of A,, when such children att^ed twenty-one, to transfer the principal to them. There was a gift over in case there should be no children of B. living at the death of A, The fund was more than sufiicient to provide for the annuity. Held, that the gift to the children was not confined to those living at the death of the testatrix, — Gardner v. James, 6 Beav. 170. Bequest to testator's wife of the use and usage of all his eifects for her life, and at her death, be- quest of the same to four nieces, by name, to be by them equally divided, share and share alike, and at their deaths to go equally, share and share alike, to their children. Held, to give the re- spective children their parent's share only. — Arrow v. MellersJi, 1 De. G. & S. 355. Testator bequeathed his residue to several classes of persons ; some of the parties were mem- bers of two of the classes. Held, nevertheless, that they were entitled to only one share each of the residue. — Pruen v. Osborne, U Sim. 132. XIV. — Conditional BEauEgr. Testator directed, that if his daughter should marry a professional gentleman or a man em- barked-in trade or business, and not possessed of a landed property, whereon to charge a suitable provision for her, certain trust funds should be settled upon her for her life, and after her decease, the principal to the issue of the marriage ; but if she should marry a gentleman possessed of a landed estate, and he should make a suitable provision for her, and settle his estate on the issue of the marriage, that the trust funds should be paid to her husband. The daughter married a country gentleman not possessed of any landed estate, and not a professional gentleman, or em- barked in trade or business. He afterwards purchased a landed estate, and ofiered to make a settlement of it, on being paid his wife's fortune ; but. Held, that the trust funds should be settled according to the directions in the will, and that the husband was not entitled to a life interest therein. — Briscoe v. Briscoe, 1 Jon. & L. 334. Testator bequeathed a fund, in trust, for his next of kin, of the surname of Crump, who should be living at the decease of A. B. A lady, whose maiden name was Crump, was the testator's sole next of kin at A. B.'s death ; but she mariied after the testator's death, and then took, and ever afterwards bore, her husband's surname, which was Carpenter. Held, nevertheless, that she was entitled to the fund. — Carpenter v. Bott. 16 Sim. 606. Testator bequeathed £4,000, in trust, for his daughter (a single woman) for her life, for her use, independently of any husband with whom" she might intermarry ; and after her death, in trust for her children, and if there should be no children, then, if she should survive any husband with whom she might intermarry, in trust for her executors, &c. ; but if her husband should survive her, then in trust as she should, by will, appoint, and in default of appointment, in trust ior her next of kin, as if she had died intestate, and without having married. The daughter died a spinster. Held, that the words, "if my daughter shall survive any husband with whom she may intermarry," were words of condition and not of mere limitation, and consequently, the residuary legatees, and not the daughter's executor, became entitled to the £4,000 on her death. — Lenox v. Lenox, 10 Sim. 400. 550 fVhen Legatee Takes, WILL. Accumulation. Where residuary property was bequeathed to a woman, to be paid to her at twenty-five, with a proviso that it should be put in settlement in the event of her marrying before that time, but no gift over of the property,in the event of her dying before that time. Held, that upon her attaining twenty-one, unmarried, she was entitled to the income of it. — Grant v. Grant, 3 Y. & C. 171. XV. — When Legatee Takes. Testator bequeathed his residuary estate to trustees, in trust, to pay the interest to his niece lor life, and directed that after her death the trustees should pay, apply, transfer and dispose of the residue amongst her children equally, to be divided between them, share and share alike, to be paid to sons at twenty-one, and to the daughters at that age, or on their marriage ; and lie empowered the trustees after his niece's de- cease, or in her lifetime, with her consent, to raise, pay and apply for the preferment and advance- ment of any of her children all or any part of their presumptive portions under trusts aforesaid. Held, that there was no gift to the children, ex- cept in the direction to pay them, and, therefore, their portions did not vest in them until such of them as were sons attained twenty-one, and such of them as were daughters, either attained that age, or were married, — Chevaux y. Aislabie, 13 Sim. 71. A testator gave some pecuniary legacies to in- fants, to be paid to them on their attaining twenty- one ; and, by a codicil, he directed that, as far as it might be practicable, all his legacies should be paid within six months after his decease. Held, that the direction in the codicil did not accelerate the time of payment to the infant legatees. — Frost V. Capel, 3 Beav. 184. Testator directed his trustees to invest the pro- ceeds of his real and personal estate, and to accu- mulate the interest until the youngest child of his brother should attain twenty-one, and then to stand possessed of the trust fund and its accu- mulations, in trust, for all the children of his brother who should be then living. The brother had seven children, and all of them were living at the date of the will, and at the testator's death. All the children except the second died, and none of them except the eldest, the second, and the fourth attained twenty-one. The fifth was the last that died. Held, that the trust for accu- mulation did not continue until the seventh child would have attained twenty-one if living, but that it ceased on the death of the fifth child, and that the second child then became entitled to the trust fimd. — Evaru v. Pilkington, 10 Sim. 412. Testator devised and bequeathed all his real estates, and all the residue of his personalty to trustees, upon trust, to pay his wife an annuity for her life, and subject to such annuity, upon trust, as to the whole of his said real and personal estate for his son F., his heirs, executors, ad- ministrators and assigns, as and when he should attain the age of twenty-five ; and in case his said son should die after the age of twenty-one, but before twenty-five, then as his said son should, by will or deed, appoint ; but in case his said son should not make any such appointment, or should die before attaining twenty-five without leaving issue, then upon trust for the testator's own heirs, executors or administrators. Held, that the last limitation embraced those persons only who were entitled to the testator's property at the time of his death, and that it was no objection to this construction that F. himself happened to be one of those persons. — Wilkimon v. Garrett, 2 Coll. C. C. 643. A testator devised an estate to A., sulgect to the payment of five shillings a-week to B., and in case B. should have any children, he charged the estate with the payment of five shillings weekly to such children until they should attain twenty-one, and he further charged the estate with the payment of £100 "to the child or children of B., when and so soon as he, she, or they should, respectively, attain theageof twenty- one," equally to be divided, with a gift over to the issue of any of them dying under twenty-one. B, had one child, who attained twenty-one, and B., being still living. Held, that the £100 be- came raiseable for his child immediately on her attaining twenty-one. — Pearae v. Cation, 1 Beav. 352. Testator gave his residuary personal estate to J. J., an infant, and directed his executors to place it out at interest to accumulate, and pay the principal to the infant on his attaining twenty- four, and, in the meantime, to allow £60 a-year for his maintenance, and the testator gave the re- sidue over on the infant's dying under twenty- one. The court Held, that the residue was actually given to the infant, and that what fol- lowed the gift was merely directory as to the management of it, and on the infant's attaining twenty-one, allowed the residue and accumula- tions to be transferred to him. — Joaaelyn v. Josse- lyn, 9 Sim. 63. A person attains his twenty-fifth year when he becomes twenty-four. — Grant v. Grant, 4 Y. & C. 2S6. XVI. — AoCDMtTLATION. A testator, after bequeathing to his daughtCT (a widow) an annuity, and directing his trustees to set apart a sufficient sum of stock to answer the growing payments, bequeathed his residuary personal estate to, and to be equally divided be- tween his grandson and granddaughter {by name) as tenants in common, but in case of the death of the granddaughter, and under twenty-one, and unmarried, in the lifetime of the grandson, or in case of the death of the grandson, in the lifetime of the granddaughter, under twenty-one, he be- queathed the whole to the survivor, and after directing payment during the minority of the grandchildren for their maintenance, the testator directed that the clear surplus of the income of his residuary estate should accumulate in the hands of his executors, and be added to the prin- cipal of the share of his grandchildren in the residue, and directed, that his grandchildren, re- spectively, should not be entitled to receive his or her share, or the accumulations, until after the death of their mother, (the annuitant). 'The granddaughter married under age, and articles were executed on her marriage, whereby it was agreed, that when she became entitled to the ab- solute and immediate possession of any pan of the residuary estate, the same and all accumula- tions should be settled on certain trusts for the separate use of the wife for life, with subsequent trusts for the husband and children, and a proviso referring to, and dependent on the trust for accu- mulation in the will. On a bill filed by the granddaughter, during her mother's lifetime, for a transfer of the fund :— Held, that the direction to To Charity. "WILL. To Charity. 551 accumulate, in the will, was precarious and inef- fectual, and was not rendered otherwise by the settlemeat, and that tlie granddaughter's moiety became capital at the marriage, and that the ac- cumulations, since that period, belonged to her for her separate use. — Swaffield v. Orton, 1 De. G. & S. 326. A testator directed the income of his property to be accumulated for the term of twenty-one years from his death. The testator died on the 5th January, 1820. Held, that, in the computation of the term, the day of his death was to be excluded, and, consequently, that the dividends on stock, which became due on the Sth January, 1841, were subject to the trust for accumulation. — Oorat V. Lowndes, 1 1 Sim. 434. XVII.— To Chauitt. A testator, born in Scotland and educated at Glasgow College, by his will, dated in 1677, when he was resident in England, where he died in 1679, gave the residue of his estate to trustees, for the maintenance and education, at the TJniversity of Oxford, of scholars born and educated in Scotland, who should have spent a certain time as students at Glasgow College; and he declared it to be his will that every such scholar should, upon his admission at Oxford, execute a bond, conditional for payment of £S00 to the college if he should not enter into holy orders, and if he should accept any spirituid promotion, benefice, or other preferment in En- gland or Wales, it being the testator's will that every such scholar should return to Scotland, there to be preferred and advanced, as his capa- city should deserve, but in no case to come back into England, nor to go into any other place, but only into Scotland for his preferment. Glasgow College was Presbyterian while the testator was a student there, but Episcopalian at the dates of his will and of his death ; soon after which, Pres- byterianism became, by law, the established form of church government in Scotland, and has so continued, the Protestant Episcopal Church being always tolerated, and recently recognised by law, but not endowed. In 1693, a decree was made establishing this charity, and thereby it was declared that Baliol College should receive the testator's exhibitioners according to the con- dition of his will, and directions were given as to the number of students and their stipends, but no scheme was directed. This decree was adopted by Lord Hardwicke, in 1744, and a decree was then made directing a scheme for the administration of the charity, cy pres, it being impossible to carry the testator's intentions strictly into effect. The scheme was confirmed by a decree of Lord Henly, in 1759, with certain variations as to increasing the number of exhibi- tioners and their stipends. Under these decrees, students had been admitted for many years at Baliol College, from Glasgow College, without regard to their destination for holy orders or their return to Scotland. Upon an information filed in 1845, at the relation of members of the Protestant Episcopal Church in Scotland, a decree was made directing the master to enquire whether the scheme sanctioned by the former decrees, and according to which the charity had been administered, could be varied so as to make it more effectually conducive to the supply of the present Protestant Episcopal Church of Scotland with competent clergymen, being natives of Scotland, and educated at Glasgow and Oxford ; and in making such inquiry, the master was to have regard to the said will, and to the circum- stance that, at its date, the Established Church of Scotland was Episcopal, and is now Presbyterian. Held, that the proposed inquiry contemplated a new scheme, inconsistent with that under which the chaiity had been administered for more than a century, as near to the testator's intentions as was practicable ; and that the proposed altera- tion of it was not warranted by any alteration in the state of the law and church in Scotland. — Officers of Glasgow College v. The Att. Gen., 1 Clk. & Fin. N. S. 800. A testatrix, by her will, devised all her fee simple fireehold and leasehold estates to R. E. for life, remainder to J. E., for life, with remainder (save a certain rent-charge), to the Commis- sioners of Charitable Donations, in trust, to pay the head-rents, to renew the leases, and to apply the annual profits for certain charitable purposes specified in the will. The commissioners tiled a bill against R. E. and J. E., charging that the testatrix was seised of estates in fee simple and fee tail (not stating where situate, or any other particular), and seeking a discovery of her per- sonal estate, and praying that the charitable donations should be declared to be payable during the lifetime of the defendants. To this bill the defendants demurred " as to so much of the bUl as sought any discovery relating to the estate taU, and to the personal estate of the testa- trix (except her chattels real). Held, that R. E. and J. E. took beneficial interests for their lives. Held, also, that the demurrer stated with suffi- cient certainty the parts of the bill to which it applied. — The Commissioners of Charitable Dona- lions V. Espinasse, Fl. & K. 164. T. M., in 1764, upon his marriage, covenanted to settle certain estates upon trust for himself for life, with remainder (subject to a jointure of £150 per annum for his intended wife, in case she survived), to his children in strict settlement, with an ultimate remainder to his own right heirs ; but in case he should die without issue or making a will, then to X., her heirs and assigns. In 1773, T. M., having previously acquired other estates, and being then without issue, made his will, and thereby, after charging " his unsettled real estate," with his debts and legacies, gave the rest and residue of his said unsettled real estate to his wife, Jane M., for life, with re- mainder to the Incorporated Society for pro- moting Protestant Charter Schools in Ireland, and their successors for ever. In a suit by the Incorporated Society it was Held, that the estates comprised in the articles of 1764, passed under the will of T. M., by the words, " his unsettled real estate," together with his other estates. — The Incorporated Society v. Richards, 1 Dru. &W. 268. A testator devised property, then in lease at a rent of £26, to the principal of Brazen-nose College, the Bailiff of Birmingham, and the Mayor of Haverfordwest for the time being, to hold to them and their successors for ever, the said yearly rent to be paid in manner following : — The sum of £8 13s. 4d. as an additional main- tenance to the school at Birmingham, to be paid to the schoolmaster by the direction of the bailiff and his brethren; £8 13s. 4d. to Brazen-nose College for a scholar; and £8 13s. 4d. to the schoolmaster of Haverfordwest. And he directed that, at the expiration of the lease, the land shoiild be " set forth and improved by the said principal bailiff and mayor for the time being, or their successors, either by fine or otherwise, so &i2 Money to le Invested, S^c. WILL. Yotmjer Becomes Eldest Son. that the said rent of £26 be for ever reserved and paid as before expressed, and the fine, if so set, should be equally divided betwixt the said schools and college. Held, that this was a devise to the three persons as joint tenants in fee, and de- scended to the heir of the last survivor. — The Alt. Gen. v. Gilbert, 10 Beav. 517. XVIII. — Money to bh Invested in Land. Testator being seised in fee of T., S. and B., and also seised as of freehold of divers lands, and possessed of considerable personal property, by his will devised T. to his daughter L. and her issue, taking his surname in strict settlement, and in default of such issue, to his nephew, K. T. T., and his issue, in strict settlement, with divers limitations over, but left the ultimate re- version in fee undisposed of; he also devised S. and B., in strict settlement, lestving the ul- timate reversion in fee undisposed of, and after making several devises of parts of his freehold properties, devised the residue of my properties, both freehold and personal I may die possessed of to my brother R. T., and if my brother R. T. shall survive me, I request and desire that he shall convert all the personal property into fee simple property, and, at his decease, leave the same entailed on his son B,. J. T. in the same manner as I have myself entailed the T. estate. Held, that the direction to entail applied as well to the freeholds which passed by the residuary devise as to the fee simple lands, to be purchased with the residuary personal estate. The circum- stance that the reversion in fee of the T. estate could not be entailed in the manner directed, is not a clear indication of an intention that nothing but the real estate to be purchased with the per- sonalty was intended to he entailed. — Tennent v. Tennent, 1 Jon. & L. 379. XIX — BEttUEST BY Mabkied Women. A married woman having freehold estates, which were settled on her marriage to her sepa- rate use, with a testamentary power of appoint- ment over them, made a vyilj, by which, without j'eferring to the power, she disposed of certain of the estates, nominatim, and then gave all the rest of her goods, chattels, estate and estates to R. C. Held, that the residuary clause was a good exe- cution of the power as to all the estates not pre- viously mentioned.-T-C'AurcAJK v. Dibben, 9 bim, 447. If a married woinan, having a testajpentary power of appointment, makes a will, it roust be intended to he an exercise of the power, although it contains no reference to it, — Id. A married woman, having real property settled to her separate use, with a testamentary power over it, may dispose of leaseholds and other chattels purchased with the produpe of it, but not pf real estate so purchased.-rr/rf. XX. — Specific Legacy, See also Legacy. A testator bequeathed to trustees, a sum of je 15,000, in the 3 per cent, consols, to be deemed a legacy of quantity, and to be due at his death, ps if the same was a specific legacy ; and he di- j-eet?d, that if he should not die possessed of 3 per cent, consols sufficient to satisfy the said sam, his executors should, within two months after his decease, purchase so much consols as should make up the deficiency or full amoimt thereof, as the case might require ; and he created a term in his real estates, one trust of which, was to raise the full amount or deficiency of the said sum of consols, in case he should not have, at his decease, a sufficient sum in that fund to answer the legacy. The will was dated in 1832 ; the testator died in 1835, having only £3,000, 3 per cent consols, which had been purchased in 1834 ; he had, in 1824, sold out £12,000, consols, wliici then stood in his name, and paid the produce to his brother, upon mortgage of freehold estates subject to redemption, by re- transferring or re-placing, on request, £12,000, consols, in the name of the testator or his executors, and payment of interest, equal to the dividends, until replaced. Held, (afiirming the Vice Chancellor's and Lord Chan- cellor's decrees) that the £ 12,000, consols, secured by the mortgage to be replaced, were well be- queathed, to make up the legacy of £15,000, 3 per cent, consols. — CoUinsmi v. Curling, 9 Clk. & Fin. 88. A testatrix having £115, long annuities, standing in her name at her death, of which £65, like annuities, had been purchased for her by T. B., bequeathed her residuary estate to trustees, to be invested or continued by them in the public funds, or at interest ; the stocks, funds, or securities to be varied at discretion, in trust to pay certain annuities out of the interest, dividends, &c., and subject thereto, to pay the income of the said trust monies, stocks, funds, and securities, to S. N. for life; and subject thereto, she gave all tip residue of her estate to the trustees, absolutely. By a codicil, she gave all the money funded by T. B., in her name, in the long annuities, (which she mentioned to be £50 per annum) to C. D., after the death of S. N. Held, that £50, of the long annuities, were specifically bequeathed to C. H.—D'Aglie v. Fryer, 12 Sim. 1. XXI.-i-In Restkaint op Alienation, Testatrix bequeathed a share of her residue, in trust, for her nephew for life. By a codicil, after reciting that her nephew had become a bankrupt and insane, she directed the trustees to apply, during his life, the whole or such part of the interest of the fund, at such times, in such proportions, and in such manner, for the main- tenance and support of her nephew, and for no other purpose whatsoever, as they, in their dis- cretion, should think most expedient. Held, that the nephew's assignees were not entitled to any portion of the provision made for him.— Twopenny v. Peyton, 10 Sim. 487. xxn.- -.Wben Younger Becomes Eldest Son. Testator, by his ■will, directed the income of one-half of his personal estate, to be paid, in equal shares, to the eldest sons of his sisters, E. and M. ; at the date of the will, an eldest-bom son of M. was living, but he afterwards died in the testators's lifetime, leaving a second-bom son of M. surviving him. After his death, and with knowledge of it, the testator, by a codicil, directed the trustees of his will to divide a certain sum among E, and M,, with the ejtceptiqn of th? t/ViQ Testamentary Receiver. WILL. Cumulative Legacy. 553 .provicled for in his.wiU. -Seld, that the second- born son of M. took the share given by the will to her eldest son.— JViompsonv. Thompson, 1 Coll. C. C. 388, ZXIJI. — Testamentabt Receiver. A testator devised certain real estates to trus- tees for the use of W. S. for life, with remainders over, and he directed the residue of his personal estate to be invested in the purchase of other real estates. The will then contained this proviso :— "And it is also my particular desire, that my said executors, whilst acting in the management of all or any of my affairs under this, my will ; as also my friend, W. S., when he shall enter into the receipt tind perception of my said rents of jf. V. and K., shall continue the said B. E. L. in the receipt and management thereof, and likewise shall employ and retain him in the receipt, agency, and management of the rents and issues of such other land and premises as shall and may be purchased and settled in pursuance of the direc- tions thereinbefore contained, at the usual fees Allowed to agents, he having acted for me since I became possessed of said estates fully to my satis- faction." Held, by the House of Lords, reversing the judgment of the court below, that these words did not create a trust in favour of B. E. L, —Sham V. Lawless, 6 Clk. & Fin. 129. XXIV. — CONIINGENT BeQBEST. Testator directed his residue to be converted into money, and his wife to receive the interest of it for the maintenance of herself and children, and at her death, he bequeathed the whole, share and share alike, to all the children she might have by him. The testator left a son and a daughter. Some years after his death, the daughter married. Held, that, thereupon, her right to maintenance ceased. — Bowden v, iMng, 14 Sim. 113. A limited fund was given to A. B., until some child of his should attain twenty-one, and £1,000 consols was to be paid thereout to each of his children as they attained twenty-one. The fund was insufficient to provide for all the children. A child attained twenty-one: — Held, that he was, notwithstanding the deficiency, entitled to £1,000 consols. A. B. had issue at the death of the testatrix. Held, also, that the children born after her death, were also entitled. — Evans v. Harris, 5 Beav. 45. Testator directed the rents of his estates to be accumulated for five years, " at the end of which time I leave as follows ; — to H. G., £200, and to W. B., W. C, E. M., or as many as are then living, £100 each, and to M. N., S. H., S. S., or as many as are then living, £50 each, and the same sum to be given at the expiration of ten years from the time of my death, and ditto at the end of ten, and fifteen, and twenty years, from my death." Two of the legatees died between the end of the tenth and the fifteenth years after the testator's death, 'having received the payments which became due to tlj^m at the end of the fifth and tenth years. Held, that the rights of the legatees, named in the wUl to receive the payments, were contingent on their surviving the times of pay- ment, and consequently that the executors of the, then deceased legatees could not claim any pay- ment at the end of the Kfteenth year. — Bruce v, C/tarlton, 13 Sim, 65. Testator bequeathed to his daughter, Elizabeth, £2,000 for life, the principal to be equally divided among her children, should they have attained twenty-one, and to the two children of his late daughter, Jemima, £1,000 each, to be paid on their attaining twenty-one. Held, that the legacies of the children were contingent on their attaining twenty-one, and that they were not entitled to in- terest in the meantime. Testator left to his daugh- ter, Jane, the sum of £2,000, to be settled on her when she married, or to be paid to her on her attaining twenty- one ; should she die not leaving issue, £2,000 to fall into the residue of the estate, Jane married in her father's life time. The court directed the legacy to be settled, in trust, for her separate use for life, remainder for her children living at her death, according to her appointment ; in default of appointment, for her sons at twenty- one, and her daughters at that age or on their marriage, remainder for her next of kin, and if she had no child living at her death the legacy to become part of the testator's residue. — Young -I, ilMinioih, 13 bim. 445. XXV. — Cumulative Legacy See also Leqact. Testator, after devising a real estate to his natural son, A., bequeathed as follows : — " I give and bequeath unto my sister, E., to be paid out of the rents and profits of the aforesaid lands, the sum of £250 per annum, and to live free from rent in the house I now occupy in H., with the lands and buildings I now occupy, containing about nine Lancashire acres, with the use of my household furniture, plate, linen, books, wines, spirits, carriages and horses, cows, hay, and farming utensils and stock, for her sole use, during her natural life, or so long as she shall remain un- married ; in either events, then to go to A. ; but should she marry, then my will and mind is, that my executors shall pay her £100 per annum, for her own use, during her natural life, out of the rents and profits of my said estate." The sister married in the testator's life time. Held, that the consumable articles did not go to A., but fell into the residue, and that that the annuities of £250 per annum, and £100 per annum were not cumulative. — Andrew v. Andrew, 1 Coll. C. C, 686. Testator gave all the residue of his real and personal estate unto, and equally between and amongst all his relations who might claim and prove their relationship to him by linesvl descent. He had no wife or issue at the time of making his will, nor afterwards. He died leaving several first cousins liis next of kin. Held, that the first cousins were entitled to the residuary estate, both real and personal, — Ciaik v. iMmb, I Coll. C. C. 489. Testator gave the interest of £50,000 to his wife, for life, and directed that after her death £10,000 should be set apart out of that sum in aid of his residuary estate, and he directed that the interest of the monies aiising from the sale and conversion of his real and personal estate not specifically devised or bequeathed, and also of the £10,000, should be paid to A., for life. By a codicil, the testator bequeathed to A. " the legacy or sum of £10,000, to be paid to him out of my residuary estate." Held that the sum of £ 1 0,000, given by the codicil, was distinct from the sura of £10,000, given by the will.— Foi 6c4 v. Law. rence, 1 Coll. C. C, 495, 554 Taking hy Substitution. WILL. After-Born Children. Legacies given by different instruments : — Held, under the circumstances of the case to be cumulative. — l/yon v. Colvile, 1 Coll. C. C. 449. Annuities, held upon the construction of the will, to be cumulative, and not substitutional.— Mackinnon v. Peach, 2 Keen, 53S. XXVI. — Taking by Substitutiow. A testator, S. D., having by his will bequeathed to his " natural" or reputed daughter, M. S., £2,000, for her sole and separate use, afterwards, by a codicil, says :— " 1 add £3,000 to the £2,000 to which M. S, is entitled under my will ;" and, by a subsequent testamentary instrument, stating his wish to alter his will if he had time so to do, adds : — " I charge the whole of my estates, &c., with the sum of £20,000 for my daughter M. D." M. D. and M. S. was the same individual, D. being the name of the testator. Held,, that the legacy of the £20,000 was substitutional and not cumulative, and that it bore interest from the death of the testator ; no other provision having been made for M. D. — Bussell v. Dickson, 2 Dru. & W. 133. By articles of agreeraeni, it was provided that the interest of a fund which was vested in trustees should be paid to Lady C. for her life, and after her death, the principal to go amongst the then unmarried children of herself and her husband as the husband should by deed or will appoint, and in default of appointment equally among the children who should be living at the death of the husband. The fund was invested in lands pur- suant to a trust in the articles contained, and the testator, by his will, appointed the lands among his four sons, as follows : — A. to John, B. to George, C. to Henry, D. to Nelson, to go to them immediately from and after the decease of Lady C, with a clause of survivorship among the brothers if any of them should die before they became respectively entitled thereto. The tes- tator, by two subsequent deeds of appointment, iiTevocably appointed A. to John, and C. (before given to Henry) to George ; and by a codicil (in which these two deeds were recited), he revoked the appointment of C. to his son Henry in the will contained, and instead thereof appointed to him B. Henry died after the testator, but before the death of Lady C, having, by liis will, devised the lands of C. upon certain charitable trusts. Held, that upon the true construction of the will of the testator, the lands of C. were to be con- sidered as vested when Henry made his will, the death of the sons there provided for meaning a death in the lifetime of the testator, and not of the tenant for life, Lady C, and that the gift over was only to take effect in such event. — Tho Com- missioners of Charitable Vonations and Bequests V. Cotter, 1 Dru. & W. 498. A testatrix by her will devised the lands of D. to trustees, to the use of her son Y., the plaintiff for life, with remainder to his children in tail. She then bequeathed a number of annuities to different members of her family, and, among the rest, an annuity of £100 to the defendant H. ; and she directed that these annuities should be paid without any deduction, and charged them " on the lands so devised to the use of my son Y.," the plaintiff, and on the residue of certain other lands which she directed to be sold. The testatrix subsequently made a codicil to her will, in which the following clause occurred : — " And, whereas, I did, by my said will, give the lands of D. to the use of my son Y. as therein ; now I do hereby revoke so much of my said will as gives said lands of D. to my son Y., and I direct that my trustees shall stand seised of the said last-meutioned lands to the use of my daughter H. (the annuitant) for her life, in addition to what I have left her by iny said will." Held, that the testatrix merely meant to substitute one devise for the other, and did not intend to discharge the lands of D. fl:om contributing to the payment of the annuities with which, by the wUl, they were charged. A codicil is never held to revoke a will further than is necessary to give effect to the intentions of the testator. — Yowng v. Hassard, 1 Dru. & W. 638. Testator bequeathed one-sixth part of hiJs resi- duary estate amongst the children of his late sister, J. T., and directed that their shares should be paid to them at twenty-one, and that in case any of them should die under that age leaving issue, their shares should be paid to their issue as soon as such issue could give a legal dis- charge for the same, but if any of the children should die without leaving issue, their shares should be paid to the surviving children and the issue of such of them as should be then dead, such issue taking no greater share than their de- ceased parents would have been entitled to if living ; and he bequeathed another sixth part to his sister, M. C, for life, and after her death unto and amongst her issue, and to be payable at the like times, and with the like benefit of survi- vorship, and in like manner as was thereinbefore expressed concerning the sixth part thereinbefore given to the children of J. T. M. C. had six children living at testator's death, and she had had another child who died before the date of the win. Held, that as the latter clause of the wUl referred to the former, the word "issue" in it must be taken to mean " children." Held, also, that, under the former clause, no grandchild of J. T. could take, except by way of satisfaction, for its parent, and therefore, under the latter clause, no grandchild of M. C. could take, except by way of substitution for its parent. — Peel v. Cathv), 9 Sim. 372. XXVn. — Apter-Bokn Childrek. Testator bequeathed his residue, in trust for his mother for life, remainder in trust for the children of his two sisters, in equal shares as tenants in common, and to be vested interests in che sons at twenty-one, and in the daughters at that age or on marriage, and if any of them should die under age, or as to the daughters un- married, then as to the original shares belonging to the children so dying, and the shares to which they might become entitled under the now stating trust, in trust for the others of them, in equal shares, their executors, &c., and in case no child should live to attain a vested interest in the trust funds, then in trust for the testator's next of kin. The testator then empowered the trustees (but during the life of his mother, with her consent) to apply the whole or any part of the principal trust monies to which the children of his sisters should be entitled under the trusts thereinbefore con- tained for their advancement, notwithstanding they should be under age, or as to daughters unmarried ; and he directed, that in case, at the death of his mother, any child who, under the trusts thereinbefore contained, might be entitled to any vested or presumptive share or shares of the trust monies, should, if a son be under age, or if a daughter under age and unmarried, the trus- tees sho -dd pay the interest of their shares to his Construction WILL. of Words. 655 sisters fot the maintenance of their children. The testator's mother died a few months after him. His sisters had several children, some of whom were born after the death of his mother. Held, that the mother's death was the period at which the shares vested, (subject, however, to be divested,) and consequently, that the after-born children were not entitled to participate in the funds. — Berkeley v. Smnburne, 16 Sim. 275. Bequest of residue, in trust, after payment of an annuity of £50 to A. for life, to apply the residue of the interest towards the maintenance of the children of B., until twenty-one, and in case of the death of A. during their minority, to apply the whole, or so much as was necessary, in the same way ; and after the death of A., when such children attained twenty-one, to transfer the principal to them. There was a gift over, in case there should be no children of B. living at the death of A. The fund was more than sufficient to provide for the annuity. Held, that the gift to the children was not confined to those living at the death of the testatrix. — Gardner v. James, 6 Beav. 170. A testator devised a freehold estate to A. for life, and, after his death, he devised the same to be equally divided into four parts, between one child of A., one child of B., one child of C, and one child of D., for them to receive the rents, and divide the money between them; and it was his desire that his estate should never be sold out of the family ; and, provided A., B., C. and D. should never have any lawfiil children the testator's desire was that their parts should go to their next of kin. At the time of making the will, and at the death of the testator, B. had only a child, namely, a daughter, but after the testator's death, B. had a son. At the death of A . , there were children, both sonsand daughters, of A., C. and D. Held: — First, That the gift to " one child," was not void for uncertainty. Secondly, That the daughter of B., and the eldest child of A., C. and D., respectively, whether a son or a daughter, who came into esse after the testator's death, were entitled; and. Thirdly, that under the words, the fee passed. — Powell -v. Daviea, 1 Beav. 632. Testator gave legacies of £200 to each of the children of his nephews or nieces, begotten or to be begotten, and directed that the legacies should be paid to them at the usual periods. Held, that the children of the nephews and nieces who were bom after the testator's death, were not entitled to participate in the legacies. — Butler v. Lowe, 10 Sim. 317. Testator bequeathed a fund in trust for A. for life, and after her death, in trust for all and every the children of B. and C, who should attain twenty-one. Held, that all the children of B. and C. who were bom before the eldest child attained twenty-one, though after A.'s death, would be entitled to a share on attaining twenty-one. — Clarke v. Clarke, 8 Sim. 59. yyVTTT — Construction of Woeds. < In construing a will, the words " younger son," used by the testator in a proviso for the shifting, in certain events, of an estate thereby devised, are to be taken in their plain and ordi- nary sense, as meaning, "younger in order of birth," unless it satisfactorily appears from other parts of the will, that they were usfed by the tes- tator in another sense, — Wilbraham v. Scarisbrick, 1 Clk. & Fin. N. S. 167. A testator, who described himself as of " Ashford Hall, in the county of Salop," devised all my estates in Shropshire, called Ashford Hedl," to trustees, for sale. Held, that this description was not confined to the mansion- house, properly so called, and the lands imme- diately adjoining, but extended to such other other lands in Shropshire, as he possessed at the time of making his will. — Rioketta v. Twqtiand, 1 Clk. & Fin. N. S. 472. Held also, that the Court of Equity, in a suit to enforce the trusts of the will, might receive parol evidence to shew what the testator had been accustomed to consider the Ashford Hall estate. — Id. A testator gave his farm of A., with the stock and one-third of the residuary property, to his grandson, X., and his farms of B. and C., with the remaining two-thirds of the residue of his property, to his grandsons, Y. and Z., and bequeathed to his wife an annuity, to be paid to her, during her life, by his said three grand- sons, share and share alike. The farms of A., B. and C. were held, under terminable leases, and the testator declared that his said grandsons or their heirs, " on the fall of any lease, were to be equal sufferers, pursuant to their respective proportions." The testator, at the time of making his will, and at the time of his death, was also seised, for two lives, of the farm of Blackacre. which passed under the will as part of the residuary property. Held, that on the fall of the leases under which A., B. and C. were held, a Surchaser of Blackacre would not be liable to a eraand for contribution, for that the true con- struction of the clause, declaring that the grand- sons were to be equal sufferers on the fall of any lease was that which confined its operation to the leases specifically mentioned and devised by the will. — Spunner v. Dwyer, 4 Dru. & W. 477 ; 2 Con. & L. 432. A testator, after devising a freehold to two, and their heirs, and a leasehold to two others and the survivor, her heirs, executors, administrators, and assigns for ever, proceeded : — " and I give all the rest of my household furniture, books, linen, and china, except as hereinafter-mentioned, goods, chattels, estate, and effects, of what nature and kind soever, and wheresoever the same shall be, at the time of my decease, unto R. and S., their executors, administrators, and assigns, in trust." He afterwards bequeathed his ready money and various chattels. Held, by the Court of Exchequer, that the word " estate" thus cir- cumstanced did not pass real estate; but this court not being satisfied, directed a case to the Common Pleas. — Sanderson v, Dobson, 10 Beav. 478. Illustrations of the distinction between a di- rection in a will, which goes to cut dovra or qualify a prior absolute gift, and one which only goes to regulate the mode in which such gift shall be dealt veith and enjoyed. — Gompertz v. Gom- pertz, 2 Phil. 107. In construing limitations to a parent for life, and afterwards to his children, with a provision relating to survivorship annexed, whether oc- curring in wills or settlements, the rule for deter- mining both the class who are to take and the contingency to which the survivorship refers, is to lean to that construction which will in- clude as many objects of the gift as possible, consistently with the declared purpose of the author of the instrument. — Bouverie v. Bouverie 2 Phil. 349. • Testator, in the eighth clause of his will, directed his executors to purchase a piece of ground 556 Construction WILL. of Words. which he described, and to erect a monument upon it, for the interment of his own body and the bodies of his parents and sister, and to pay the expense out of the surplus of his property, after d^charging his debts and legacies. By the ninth clause, he gave the remainder of his pro- perty to a charity. The owner of the piece of land refused to sell it. Held, that the subject matter of the ninth clause, was not so implicated with the Subject matter of the eighth, as that the eighth having failed the ninth must fail also ; and that the eighth having failed, the whole surplus of the testator's property passed by the ninth clause. — Mitford v, Reynolds, 16 Sim. 10.5. Testator devised freeholds and copyholds to his son for life, and after his decease, to his first and other sons, paying £10 a-year to M. C. for life. Held, the word " paying" created a charge and not a trust. — Hodge v. Churchward, 16 Sim. 71. A bequest of all the property that the testator might die possessed of: — Held, from expressions in the codicil of even date, to pass only a part of the testator's property. — Att. Gen. v. Wiltshire, 16 Sim. 36. A devise to the second son of Edward Weld, of Lul worth : Held, upon the context of the will, and upon extrinsic evidence as to the state of the Weld family, and the degree of the testator's acquaint- ance with the different members of it, to mean a devise to the second son of Joseph Weld, of liulworth, although there was a person named Edward Joseph Weld, (the eldest son of Joseph Weld) who resided with his father at Lulworth, and who usually went by the name of Edward, only ; and although a former will of the testator, made several years before the will in question, contained a devise to the same Joseph Weld, his right name. — Blundell v. Gladstone, 1 Phil. 279. A testator's balance at his bankers'. Held, upon the construction of his will, to pass under the words " ready monev." — Parker v. Marchant, 1 Phil. 356. A mere gift of money may pass whatever is the representative of money. The expression ' ' money' ' may represent the entire personal estate. — Strat- ton V. Hillas, 2 Dru & W. 51. The tendency of modem decisions, is to read the different clauses of the same will referentially to each other, unless they are clearly independent. Ford V. Ford, 6 Hare, 492. B. B. being seised of certain lands atK., de- nused them to S. for three lives. S. agreed to assign the lease, for lives to T. G. ; and T. G. entered into possession of the lands, and obtained fiova. B. B. a lease of the same lands for nine hundred and ninety-nine years, at a peppercorn rent, during the continuance of the lease for lives, and afterwards at £100 a-year. T. G. having these interests in the lands, made his will, in which was the following clause : — " I order all my freehold interests in the county of C, &c., except my interest in K., which I hold under B. B., to be sold, and the money arising, &c., to be divided." Held, affirming the decrees of the Court of Chancery, of Ireland, thatT. G.'s interest in the lease for lives, was disposed of by this clause in the will. — Gurley v. Gurley, 8 Clk. & Fin. 743. Testator gave all his property to his mother for life, and directed that at her decease it should be divided amongst his three sisters or their children, in such proportions as she should appoint. The mother and one of the sisters died in the testator's lifetime. The deceased sister left no issue ; but one of those that survived had childien, Held, that "or" must be read "and," and that, under the circumstances of the case, the property must be considered as given to the three sisters and their children in equal shares. — Penny v. Tur- ner, 16 Sim. 368. Testatrix bequeathed as follows: — "To my niece, M. M., daughter of my nephew, T. M., £30. To A. L. and M. L., son and daughter of my late niece, M. L., £30 each," and she gave all the residue of her property, not thereinafter dis- posed of, unto and equally to be divided amongst all her nephews and nieces. Afterwards she gave a specific legacy to M. L., whom she de- scribed as her niece. Held, that, by the words "and my nephews and nieces" in the residuary bequest, the testatrix meant, not only her nephews and nieces, but their children also. — James v. Smith, 14 Sim. 214. Where, in a will, there is a general absolute devise of real and personal estate, and in a subse- quent clause, the testator uses language plainly restrictive of the absolute gift in one species of property, but not in words confining it to that one, the restriction will be held applicable to both unless there exists a clear necessity for ex- cluding the other from its operation. The tes- tator having translated the "issue" to mean " children," the technical meaning of that word is thereby altered. When a word occurs twice in the same instru- ment, it is to receive the one meaning in both places unless there appear a clear intention to the contrary. — Ridaeway v. MunUttrick, 1 Dru. & W. 84. Testator directed all his property, except ready money or monies in the funds, to be converted into money, and the other clear monies arising from such conversion, to be invested in the names of the executors, in £3 per cent, consols, or other government securities in England. Held, that Greek bonds, though guaranteed by this country, were not comprehended in the word "funds," and that they were a proper subject of conver- sion under the terms of the will. — Burnie v. Get- ting, 2 Coll. C. C. 324. Upon the construction of a will : — Held, that the word "legacies" did not include annuities. — Cornfield v. Wyndham, 2 CoU. C. C. 184. Devise of the house, in Cambden Place, and "all therein" to M., for life; "at her death, I give and bequeath the house, &c., &c., to my nephew, T., and his heirs." After the death of M., T. is entitled to all the chattels which were in the house at the testatrix's death, except the consumable articles. — Twining v. Powell, 2 Coll, C. C. 202. A testator entitled, in fee, to some messuages and lands in A., and entitled, for life, to other messuages and lands in A., devised his messuages and lands in A. to his son, and charged his tene- ment in A., occupied by H., with certain legacies. The tenement, occupied by H., was part of the property in A., to which the testator was only entitled for life. — Held, that it was not to be in- ferred, from the descri])tion as his own of the tenement in A., occupied by H., that the testator intended to describe and devise, as his own, the other property in A., in which he had only an estate for lite.— Parker v. Carter, 4 Hare, 400. Generally, choses in action do not pass by a bequest of " goods and chattels," in a particular locality. — The Marquis of Hertford v. Lord Lou>- ther, 7 Beav. 1. Polish bonds and Neapolitan bordereaux. Held, not to pass by a bequest of " goods and chattels," Construction WILL. of Words. 557 money at the bankers, &c., at M. — The Marquis qf Hertford v. Lord Lotother, 7 Beav. 1 . Testatrix concluded her will as follows : — "My house, in Trevor-square, I give to my brother as residuary legatee of my remaining property, for the benefit of his children." Held, that the brother took the residue as well as the house, in trust, for his children. — Inderwick v. Inderwick, 13 Sim. 652. The testator devised all his real estates to trus- tees, as to his freehold, messuage, farm lands iind hereditaments, in the county of B., in trust, for C. The testator had a farm in that county, con- sisting of a messuage, and one hundred and six- teen acres, of which the messuage and the greater part of the land were freehold, and the other parts leaseholds, for long terms of years, at pep- percorn rents, and were interspersed and undis- tinguishable from the freehold part, and had been demised therewith as one farm, at one entire rent, and the testator had always treated and dealt with them as freehold. Held, nevertheless, that the leasehold parts were not comprised in the trust. — Stone v. Gree^iing, 13 Sim, 390. A legacy of £10,000 consols, "now standing in my name." Held, from the context of the will, not to be speciiic. — Auther v. Auther, 13 Sim. 422. "Male children," in a Dutch will. Held, to mean " male descendants," and male descendants, Held, to mean according to the English law [and Semble, according to the Dutch law also], descend- ants claiming through males only. — Bemal v. Bemal, 3 Myl. Se Cr. 659. The following passage at the end of a will :— " I guess there will be funds sufficient in my banker's hands to defray and discharge my debts, which I hereby desire E. M. to do, and keep the residue for her own use and pleasure," was Held, under the circumstances, and upon the whole context of the will, to amount to a gift of the general residuary personal estate to E. M.— Boys V. Morgan, 3 Myl. & Cr. 661. Testator, by a will made since the Stat. 1 Vie. c, 26, after directing payment of his debts and bequeathing several specific articles of plate to his sister, L., desired that all his other plate, jewellery, books, pictures and other property, except freehold and leasehold, should be sold, and the produce, after deducting funeral and other expenses, be divided in equal parts amongst L., M., N., O., and P. He then directed that his freehold hovise and his leaseholds (some of which were held for years, and others for years deter- minable on lives), should be kept in handand let to the best advantage, and the produce be divided every half-year to the. above-named L., M., N., O. and P., or their lawful heirs j and in case of there being no heir, the share or shares to be divided in equal parts among the surviving lega- tees. The testator, at his death, left L. his heiress- at-law and sole next of kin ; M., N., O. and P. were not related to L., but were related to, and capable of inheriting from each other. M. died unmarried in the testator's life time. Held : — First, That M's. share of the residuary personal estate lapsed for the benefit of the next of kin. Secondly, ThatM's. shareof the freehold property did not lapse, but went to the surviving devisees, the words, " heir" and ". lawful heirs," referring to the heirs of the body ; and "or," being con- strued " and." Thirdly, That M's. share of the leaseholds for years, lapsed, and fell into the re- sidue, the words, " there being no heirs," refer- ring to an indefinite failure of issue, and the word, " stirviving," meaning "other. — Harris y, Davis, 1 Coll. C. C. 416. Testator bequeathed to trustees for the use of his wife and children, the interest of his property in the English and French funds, and he gave the capital to his surviving children, that is to say, to be equally divided, at the period of his eldest surviving child attaining the age of thirty. By a codicil he bequeathed to his executors, for the use of his children, "whatever sum now stands in my name, or may hereafter, in the Dutch funds, or any other funds, including the interest arising therefrom." Held, that the words, " any other funds," included stock in the British funds. — Montresorv. Montreaor, 1 Coll. C. C. 693. Devise of "all that freehold farm called the Wick farm, containing two hundred acres, or thereabouts, occupied by W. E., as tenant to me, with the appurtenances," to uses applicable to freehold property only. At the date of the will, and of the death of the testator W. E. held under a lease from the testator, two hundred and two acres of land, which were described in the lease as the Wick farm ; of these, twelve acres were leasehold. Held, that the twelve atius did imc pass by the devise. — Hall v. Fisher, 1 Coll. C. C. 47. Gift of a residue of real and personal estate to a trustee, to sell, get in, and pay and divide the money arising therefrom unto, and equally among, the testator's children, so soon as the youngest should attain twenty-one ; the daughter s shares to be invested and secured, and the interest paid to such daughter, and the principal to be disposed of amongst her children, as she might direct ; if no child, the share to be divided amongst the survivors of the testator's children, equally, and in case of the death of any of his children, leaving lawful issue, the testator gave to such issue the share the parent would have been entitled to have. Held, that the residuary share of a child who attained twenty-one and died before the time of division, passed to his representatives. — Leeming v. Sherratt, 2 Hare, 18. That no child who did not attain twenty-one, was intended to take any interest in the residue-— S^mble, — Id. That the word, " survivors," in the residuary clause must be construed in its natural sense, and not as importing "others;" and that this con- struction of the word in one part of the will must govern the construction of the same word in the other part. — Id, That the gift of the part or share of a parent, dying, leaving issue, to such issue, applied both to the original and accruing shares of the residue, but not to the particular legacies. — Id. Testator devised his estates to his son, if he should attain the age of twenty-three years, or should be married with the consent of his trus- tees, which should first happen, and to his heirs and assigns, absolutely, for ever. And in case his son should die, vrithout attaining such age or being married with such consent as aforesaid, should die without lawful issue, or such issue should die under the age of twenty-one years, then to the testator's daughters, as tenants in common, and the heirs of their bodies. 'ITie son married under the age of twenty-three, with the consent of the trustees, and afterwards attained that age. Held, that the «on was seised of an absolute estate, in fee, or if not, that under the words of the gift over, " shall die without lawful issue," he was seised of an estate tail ; those words not being confined by the words " or such 558 Who Take. WILL. Children. issue shall depart this life under the age of twenty-one years," to dying without issue living at his death, and consequently, that he would make a good title to the devised estates. — Grim- shaw V. Pickup, 9 Sim. 691, A testator gave the income of his personal, and the rents of his real estates to his daughter, for life, for her separate use, and after her decease, and the decease of liis wife, he gave the residue of his real and personal estate to trustees, in trust to sell, and pay half the produce "to the issue" of his daughter, equally, to be paid at twenty-one, and if only one child, only then to such one child ; and he directed the trustees to apply the interest in the maintenance and educa- tion of such issue, " and in default of such issue," he gave the residue between his nephews and nieces, living at the death of his daughter. And he gave and devised the other moiety of the resi- due of his estate, at the decease of his wife, and liis daughter without issue, to the same trustees, to permit his godson to receive the income for life, and after his decease, to certain charities. Held, that " issue," in the first clause, was to be construed " children," but in the second clause, in its ordinary unrestricted sense, and that, con- sequently, the gift over of the first moiety, upon the death of the daughter without issue, was good, but was too remote as to the second. The word " issue," in a will. Held, on the con- text, to have two different meanings as to two moieties of a devised estate. — Carter v. Sentall, 2 Beav. 551. Devise to testator's widow for life, with re- mainder to trustees and their executors, to pay costs, &c., and to divide the residue of the rents amongst the testator's brothers and sisters "who should be living at the time of the decease of his (testator's) wife, and their issue, male and female, after the respective deceases of his said brothers and sisters, for ever, to be equally divided among them." Held, that the words, " issue, male and female," were to be construed as words of limita- tion, and not of purchase ; and that the children of a sister of a testator, who died in the lifetime of the widow, took no interest under the devise. A similar decision was made with respect to personal estate. — Yate v. Clarke, 1 Beav. 100. Devise of the testator "of all the lands and hereditaments vested in liim as trustee or mort- gagee in fee ;" Held, to pass trust estates vested in the testator, but not in fee. — Greenwood y. Wakeford, 1 Beav. 576. XXIX.— Who Take. Brothers and Sisters 658 Children 658 Grandchildren 562 Nephews and Nieces 563 Husband 564 Widow 664 Aunt 565 Heirs-at-Law 665 Cousins 566 Next of Kin 666 Personal Representative 567 Residuary Legatees 569 Per Capita and Per Stirpes 670 Generally 671 Servants 573 XXIX. 1. Brothers and Sisters, Testator gave all his property to his mother, for life, and directed that, at her decease, it should be divided amongst his three sisters or their children, in such proportions as she should appoint. The mother and one of the sisters died in the testator's lifetime. The deceased sister left no issue ; but one of those that sur- vived had children. Held, that " or" must be read " and," and that, under the circumstances of the case, the property must be considered as igiven to the three sisters and their children, in equal shares. — Penny v. Turner, 16 Sim. 368. Bequest to A. lor life, and at her death, for her brother and sister, and the testator's brothers and sister, equally. At the date of the will, A. had one brother and sister, and the testator had three brothers and one sister. Held, that this was not a gift to an unascertained class, but to the brothers and sisters living at the date of the will. — Havergal v. Harrison, 7 Beav. 49. Residuary bequest to a brother of the testator for life, and after his death, to his wife, and at her death, to go to such of the testator's relations as survived them. Held, to give the whole to the only one of the brothers of the testator who survived the tenant for life, to the exclusion of the children and representatives of brothers of the testator, who survived him, but died in the lifetime of the second tenant for life. — Bishop V. Cappel, 1 De G. & S. 411. A testator bequeathed his personal estate to his brothers and sisters, absolutely, and declared that if any of them should die in his lifetime or afterwards, without leaving lawful issue him surviving, his share should go amongst the survivors, and that if any should die in his lifetime or afterwards, leaving issue him survi- ving, his share should be divided amongst his issue, and he declared that none of the lega- tees should be entitled to any bequest until they attained twenty-one. Held, that on at- taining twenty-one, the brothers and sisters took absolute interests ; and that the limitation over was to take effect only in the event of the death of a legatee under twenty-one, in the life- time of the testator or afterwards. — Monteith v. Nicholson, 2 Keen. 719. XXIX. 2. Children. A testator gave a surplus fund, constituted of the accumulation of certain rents issuing out of freehold and leasehold estates, to be divided in equal parts amongst all his children living at his death. By a codicil, the testator revoked the gift to W., one of the children. Held, that the share which had been given by the will to "W., belonged to the other children, and did not deTolve to the heir ai, law and next of kin of the testator. Cres- xell V. Cheslyn, (2 Eden, 123) was well decided. —Shaw V. M'Mahon, 4 Dru. & W. 145 ; 2 Con. «s L. 628. Bequest of a sum of money to a trustee, in trust to pay to A. N. the interest during her life, or until she married, for the support of her children, W. and K., and in case of her death or marriage, to apply it to the use of her children, and on their coming to the age of twenty-one, to divide the said sum betw'een them. The children of A. N., born after the date of the will, and in the lifetime of the testator, do not take under this bequest. — In re Connor, 2 Jon. & L. 456. Testator bequeathed a fund, in trust for Eliza- beth D. for her life, and after her decease, In trust Who Take. WILL. Children. 559 for four of her children, wliom he named, "or the survivor or survivors of them, for their mainte- nance until they severally attain the age of twenty-one years, when each of them will be entitled to claim a fair proportion of the prin- cipal." Only one of the children survived the mother. Held, that that one was entitled to the whole fund, though twoof the deceased children at tained twenty-one. — Dorville v. Wolfe, 15 Sim. 510 Bequest to a married daughter for life, and if she survived her husband and children, to transfer it to her, but if she left children, then to her husband. Captain W., for life, with remainder to her children, with a gift over in the event of her dying, in the life of her husband, without leaving children. She died, leaving children by Captain W., and by a second marriage. Held, that the latter were not entitled to participate in the fund. — Slopfard v. Chaamth, 8 Beav. 331. Semble : A bequest to future illegimate children is void, and there is no distinction between ille- gitimate children described as the children of a particular mother, without reference to their paternity, and those who are described as the children of a pai-ticular father, — /» re Connor, 2 Jon. & L. 456. Testator bequeathed his residuary personal estate to tmstees, in trust, to pay the interest to, and amongst all the children of his brother, for their respective lives ; and after their deaths, as they should respectively die, he gave the prin- cipal of their respective shares to their respective children, and if any of his brother's children should die without leaving any child, he gave their shares to theii' surviving brothers and sis- ters, for life, and afterwards to their respective children, in the same manner as their respective shares were given. One child of the testator's brother had three children, one of whom was bom after the testator's death, and that child and another, died, in their parent's lifetime. Held, that on the death of the parent, the surviving child became entitled to the whole share of which the parent had been tenant for life. — Amies v. Skillern, 14 Sim. 428. A testator, after disposing of certain property, gave to his wife for her life only, all his remain- ing estates, and then proceeded in the following words : — " As also I leave, give and bequeath to my dear wife, all my capital in trade, with the three quarters of the profits arising therefrom, for her life, but, nevertheless, in trust, at her death for my then surviving children, share and share alike, independent of the rental of my said estates, which I give and bequeath to my sur- viving female children, to be paid to them as fol- lows, by my executor, J. C. W., or his heirs or assigns, &c." The testator then, after directing his executor to pay such rents at certain parti- cular times, proceeded thus : — "On the decease of any of the children, should they die without issue, lawfully begotten, that share to fall to the rest, and so on to the last female child ; but should they marry and have children, then their share to go to the said child or children, and from the last female child to the males of my body, lawfully begotten, with the same restric- tions as before expressed, and to the heirs and assigns of the last of them. But be it remem- bered that my daughter, Mrs. Eliza J., is exempt from any benefit arising from this will, the said Mrs. .T. having had her share of my property at her marriage. One of the daughters having sur- vived the testator, married, and afterwards died in the lifetime of his widow, leaving children. Held, that such children did not become entitled to their mother's share. — Wordsworth v. Wood, i Myl. & Cr. 641. Bequest of £100 each to the two children of the testator's nephews, A. and B. ; A. had three children, and B., two children. Held, that the five children who were living at the date of the will, and at the death of the testator, were enti- tled, under the bequest, to £100 each. — Morrison V. Martin, 5 Hare, 607. By deed, £10,000 was settled on A. B. for life, with power to appoint to her children or their issue, and in default, in trust for her children ; ptfwer was also given to A. B., to appoint a life interest to her husband. Afterwards, by will, the settlor gave a similar sum, "to be laid out for the sole benefit of C. D., in the same manner, as nearly as might be, as the £10,000 secured for A. B. by the deed. Held, that C. D. was enti- tled to power of appointment, in favour of her children, their issue, and her husband ; but that the children took nothing, except through the power. — Countess Berchtoldt v. The Marquis of Hertford, 7 Beav. 172. Testatrix gave to the eldest son of her daughter who should be living at her own decease, ten guineas, and added, that she left him no larger sum, because he would have a handsome provi- sion from the estate of her late husband, and the estate of his own father (who was still alive) ; and she gave the residue of her property to all the children of her daughter, except the daughter's eldest son, or such of her sons as by the death of an elder brother, should become an eldest son, equally to be divided amongst them when the youngest should attain twenty-one. The daughter's eldest son was provided for in the manner mentioned, but he died before the youngest child attained twenty-one, and the pro- vision did not devolve on the daughter's second son. Held, nevertheless, that the latter was excluded from participating in the residue. — Livesey v. Livesey, 13 Sim. 33. A testator gave £200 a-year to S. for her life, and after her decease, he gave £6,666 13s. 4d. consols to be divided equally among such of her children as should attain twenty-one. S. survived the testator, and died leaving six children, five of whom had attained twenty-one in her lifetime. Held, that the testator's residuary legatee was excluded from claiming any portion of the divi- dends of the fund. — Stone v. Harrison, 2 Coll. C. C. 716. 'Testator gave certain fee farm rents and stock in the funds to trustees, upon trust to pay the annual produce and dividends to his two nieces, M. and N., for their lives, and the life of the sur- vivor, and after the decease of the survivor of them unmarried, to convey or transfer the rents and the stock to the children of B., with a pro- viso, however, that if his nieces or either of them should marry, the trustees should have power to settle the share of the party m arrying, for her benefit, and that of her husband and children, and that in the event of a marriage, and children of the mar- riage who should attain twenty-one, (but not otherwise,) the limitations over in favour of B.'s children should be void. And the testator gave the residue of his property to M. and N. abso- lutely. M. and N. both married, but had no children, and their settlements provided, that in the event of their having no children, the persons interested under the will should take. Held, that the children of B. were entitled, — Doyne v. Cartwright, 1 Coll. C. C. 482. 560 Who Take. WILL. Children. Testator devised certain messuages to trustees upon trust, to pay the rents to his wife for her life, and after her decease, he gave and devised the said messuages to the same trustees upon trust, to sell and apply the proceeds amongst all his, the testator's, nephews and nieces, children of his brothers, A. and B., and his sister, C, and the survivors and survivor of them, share and share alike, to be paid to them respectively as they attained the age of twenty-one years. The tes- tator's wife survived him. Held, that the pro- perty was divisible among such only of the children of A., B., and C, as survived the yfidovr.— lVilliatm v. Tarte, 2 Coll. C. C. 85. ' Testator bequeathed one-fifth of his residuary personal estate to trustees, upon trust, for all and every the children or child of his son, 3. B., born, and to be born, and who being a son, or sons, should live to attain twenty-one, or being a daughter, or daughters, should live to attain that age, or be married, to be equally divided between them ; if more than one, share and share alike, as tenants in common, and he directed that the dividends, interest, and income of the share or expectant share of each such child should be paid to his son, J. B., during his life ; and after his decease, then, during the mino- rity of each such child, should be retained by his said trustees, or trustee, and be applied by him or them as the event should happen, in, for or towards the maintenance, clothing and advance- ment of each such child, in such proportion, manner and form, as his said son, J. B., or, as the event might happen, his said trustee, or trustees, should think fit. At the date of the will, and of the testator's death, J. B. had three children, one of whom, a son, afterwards attained twenty-one, married, and lived separately from his father. Held : — ^First, That a trust was constituted in J. B . of the income, for the maintenance, clothing and advancement of his children, which trust did not terminate upon all or any of his three children attaining majority in his lifetime. Secondly, That J. B. was not entitled to apply the income arbi- trarily according to his own will and pleasure. Thirdly, that he was entitled to apply the income of a child's prospective share towards that child's maintenance, clothing and advancement, without reference to his ability to maintain and educate tliat child ; and Fourthly, That the son who had attained his majority, was not entitled to an im- mediate transfer of one-third of the fund, inas- much as it did not appear that the testator intended to exclude after-bom children, and at all events he did intend to authorise an unequal distribution, from time to time, of the income for the benefit of J. B's. children. — Bateman v. Foster, 1 Coll. C. C. 118. Testatrix bequeathed £1,300 to trustees, in trust, as to one-third, for such of the children of A. S., then deceased, as should be living at the testatrix's death ; and in trust, as to the remaining two-thirds, for the children of S. P. and T. P. living at the same time. S. T. had grandchildren, but no child, living, either at the date of the will, or at the testatrix's death ; but A. S. and T. P. had, each of them, children living at those times. Held, that the grandchildren of S. T. could not claim the benefit of the trust. — Moor v. Saisbeck, 12 Sim. 123. Testator gave all hia property to his wife and two other persons, in trust, for the under-men- tioned purpose, namely ; to pay the income to his wife, for the education and support of his ciildren by her, and after her death, the property to be divided among his children j and he gave his furniture, plate, &c., to his wife, absolutely. Held, that the children were not entitled to the trust property on their father's death, but that their mother was entitled to the income for her life, she maintaining and educating the children out of it,— Gilbert v. Bennett, 10 Sim. 371. Testatrix having two sons and two daughters living, gave a legacy to each of them, and then gave the residue to Mary, one of her daughters, for life ; " and after her decease, I will that the said property be equally divided amongst such of my sons and daughters as may be living at the decease of the said Mary ; and in case of the decease of any of my said sons or daughters, the surviving children of any of ray said sons or daughters to have their fathers' or mothers' part." The testatrix had another son and daughter both of whom were dead at the date of her will, leaving children. Held, that their children were entitled to shares of the residue.— /e last female child ; but should they marry and have children, then their share to go to the said^ child or children from the last female child to the males of my body." Held, that the children of a daughter of the testator who survived him, but died in the lile of the widow, took no interest under the will. — Wordsworth v. Wood, 2 Beav. 25. A testator bequeathed one-sixth part of his residuary estate amongst the children of his late sister, J. T., and directed, that their shares should be paid to them at twenty-one, and that in case any of them should die under that age leaving issue, their shares should be paid to their issue as soon as such issue could give a legal discharge for the same, but if any of the children should die without leaving issue, their shares should be paid to the surviving children, and the issue of such of them as should be then dead, such issue taking no greater share than their deceased parents would have been entitled to if living. And he bequeathed another sixth part to his sister, M. C, fur life, and after her death, unto and amongst her issue, and to be payable at the lil^e time, and with the like benefit of survivorship and in like manner as was thereinbefore expressed concerning the sixth part thereinbefore given to the children of J. T. M. C. had six children living at the testa- tor's death, and she had had another child, who died before the date of the will. Held, that as the latter clause of the will referred to the former, the word "issue" in it must be taken to mean •'children." Held, also, that under the former clause, no grandchild of J^. T. could take, except by way of substitution, for its parent, and, there- fore, under the latter clause, no grandchild of M. C. would take, except by way of substitution, for its parent, — Peel v. Catloia, 9 Sim. 372. Testator gave one-third of his residuary estate to his wife, and the other two-thirds to trustees, in trust for his children at twenty-one, and di- rected that until the shares of his children should be payable to them, the income thereof should be paid to his wile, to be by her applied, or in case of her death, to be applied by the trustees for the maintenance of the children. Held, that the wife was entitled to the income of the children's shares during their minorities, she maintaining them in a proper manner. — Hadow v. Hadow, 9 Sim. 438. • A testator bequeathed the residue amongst his five grandchildren, A., B., C, D., and E., his grandson, A.'s two children, F. and G., and his niece's two children, H. and K., and declared, that " in case any of the said last-mentioned Children should die before their attaiping their respective ages of twenty-one, and should leave no lawful issue, then the survivors were to have his or her share." F. died under twenty^one, and left no issue. Held, that his share became divisible among the eight surviving legatees, children and grandchildren. — Walker v. Moore, I Beav. 607. A testator having given property to his wife, while unmarried, and after his decease, to his children " then living :" — Held, that the children living at that time alone would take, unless it appeared upon the construction of the whole will, and to effectuate a clear intention appearing in other parts of it ; that the words " then living " ought to be rejected as repugnant, or to be quali- fied in order to give effect to other words incon- sistent with them. — Tawney v. Ward, \ Beav. 563. A testator being entitled to a sum of £15,000, raisable out of an estate, bequeathed the same to trustees, in trust, during twenty years, to invest the interest and accumulate the same by way of compound interest, and subject to certain pay- ments; he gave "the £15,000 and the interest and accumulations of the same " for the benefit of the children of A. B., and after the end of twenty years, he directed " the principal of the sum of £15,000 " to merge in the estate. lu other parts of the will, the testator had referred to the fund given to the children of A. B., as " the interest of the said sum of £15,000," and as " the sura of £15,000." Held, that the children of A. B. were entitled to the accumu- lated interested interest only, and not to the capital sum of £15,000. — ScoU v. The Earl of Scarborough, 1 Beav. 154. Testator bequeathed a fund, in trust for A. for life, and after her death, in trust for all and every the children of B. and C, who should attain twenty-one. Held, that all the children of B. and C. who were born before the eldest child attained twenty-one, though after A.'s death, would be entitled to a share on attaining twenty- one. — Clarke v. Clarke, 8 Sim. 69. Bequest of copyhold and leasehold property to the testator's widow, for life, and at her death the whole to be sold and to be divided into five parts, one of which was to be paid to each of the testator's four sons, living at her decease ; and in case of either of their deaths, his share to be paid to his issue ; and in case either should die with- out issue, his share to be divided amongst the surviving children. Held, that the child of a son who died in the testator's life, was entitled to such share as her parent, if he had survived the widow, would have been entitled to. — Le Jeune V. Le jetme, 2 Keen, 701. Testator, by his will dated 1828, bequeathed a fifth of his residue to "W. R., E. R., and J. R., and all other the children of E. R., the elder, and to the issue of such of his children as should have departed this life, such issue to take such portion of the fifth as their parents would have taken if living. Tlie testator diedinl829 ; J. R., the elder had two children besides those named in thewill ; one of them, N. R., went abroad, in 1809, and had not been heard of since 1815. Both before and after the testator's death, endeavours were made, by inquiries and advertisements, to ascertain whether N. R. was living or dead, but without success. Held, that he must be presumed to have died before the date of the will, but nevertheless, that his children were entitled to the share which he would have taken if he had survived the testator. — Smt v. Baker, 8 Sim. 443, OO .f62 Who Tah. WILL. Grandchildren. Testator bequeathed his residue to trustees, in trust, for all his children living at the decease of his wife, as tenants in common ; and if any such children should die before his wife, and should leave issue, then the children of such, his son or daughter, should be entitled to the por- tion of such, his son or daughter, who might be deceased before the decease of his wife ; provided that, until the portions thereby provided for any of the said children, of his said sons or daughters, •who might have died before their mother, should become vested, it should be lawful for his trustees to apply the interest of the portion, to which any such ciuld might be entitled, in expectancy, for the maintenance of such child, The testator, at the date of his will, had four sons and one daughter, sind he had another daughter who was then dead, leaving children who survived the testator. Held, that those children were entitled to a share of the residue. — Giles v, Giles, 8 Sim. 360. __ XXIX. 3, Grandchildren, A testator, after devising real estates to trus- tees, to the use of J. D. P., for life, remainder to his first and other sons in tail male, with like re- mainders to J, T. D., for life, and to her sons in tail male, and to several others, bequeathed real and personal chattels to the same trustees, to permit the said J. D. P. to receive the profits for his life, and from his decease, to permit each of the several other persons, to whom an estate for life, in the real estates, was before limited, as each of them should become seised of the said real estates under the aforesaid limitations, to receive the rents and profits thereof, for his and their life and lives respectively ; and from and after the decease of the last of the said tenants for life, as should become seised in manner aforesaid, or if none of them should so become seised, then, from the decease of the said J. D. P.. upon trust, to assign and convey the chattels " to such person or persons as should then become seised of the said real estates, under any of the limitations aforesaid." Held, that the chattels, vested in an infant grandson of J. B. P., who was tenant in tail of the real estates at J. D. P.'s death, and not in his eldest son, a prior tenant in tail, who died in J. D. P.'s lifetime. — Potts v. Potts, 1 Clk. & Pin. N. S. 671. Testator bequeathed certain houses, in trust, for his granddaughter, Martha, for her separate use for her life, and on her decease, in trust, to apply the rents for the maintenance of her children then living, and when they should all attain twenty-one, in trust, to sell the houses and divide the produce amongst them equally ; and in case Martha should die without leaving issue, to divide the produce amongst such of the testator's grand- children, thereinafter named, as should be living at her decease. And the testator, by three sepa- rate and subsequent clauses, bequeathed other houses, in trust, for his grandaughters, Charlotte, Sarah, and Harriett, for their separate use for their lives, and repeated after each clause " and after her decease, in trust, for the issue of her body, in the same manner, and subject to the same conditions and limitations, as hereinbefore expressed, in the bequest to my granddaughter, Martha." In a subsequent part of his will, he declared, that if all his said granddaughters should die, without leaving issue, all the houses mentioned in his will, should fall into the residue of his estate. Charlotte died leaving issue ; Harriett died without issue. Held, that the houses bequeathed in trust for hrar, went over ta Martha and Sarah, as being the only grandchildren of the testator, living at his death. — Dmighty v. Saltwell, 16 Sim. 640. A settlement directed the trustees, immediately after the decease of the survivor of the husband and wife, to transfer a fund unto and amongst all and every the son and sons, daughter and daughters of the husband and wife, and the children of such son and sons, daughter and daughters, in case any of them should be dead leaving issue, share and share alike ; but the child or children of such of the said sons or daughters as should be then dead, were to be entitled only to a parent's share, and in case there should be no child or children of the husband and wife living at the death of the survivor of them, then in trust to transfer the fund to the survivor, his or her executors, &o. There were three children of the marriage, but they all died before either of their parents ; two of them left children, some of whom survived both their grandfather and theix grandmother. Held, that the surviving grand- children were entitled to the fund. — Green v. Bailey, 14 Sim. 635. A testator gave his real and personal estate upon trust, after payment of his debts, and funeral, and testamentary expenses, and the costs and charges attending the execution of his will, to pay, out of the annual produce, certain annuities to his three children for their lives, requesting that the surplus of the annual income might be applied in accumulation of the capital of his property for the benefit of his grand- children, and that at the death of the survivor of his children, the trustees should convert all his property into money, and divide the same, after deducting the expenses of performing the will, among all his grandchildren living at ms decease, and in case any of his grandchildren should die before their shares should become payable by virtue of his will, leaving issue, such issue should be entitled to the share which their parent would have been entitled to if then living ; but in case of the death of any of his said grandchildren with- out leaving issue, and before becoming entitled to receive their respective shares, the testator then gave the shares of such deceased grand- children equally among his surviving grand- children, to be paid at the same time, and in the same manner as before mentioned, touching the original shares of his grandchildren. "The testator left his three children, and also ten grandchildren surviving him. A suit was afterwards instituted for uie administration of the estate in which the annual income was paid into court, and acciunulated during the lives of the annuitants. At the death of the last surviving annuitant, which took place about thirty years after his death, only five of the grandchildren were living, but two of those who were dead had issue living, and the remaining three were dead without issue. It was Held, that the issue of the two deceased grandchildren were entitled, not only to the original shares of their respective parents, but also to the interests which such parents, if living, would have taken in the shares of those grandchildren who were dead without issue. — Eyre v. Marsden, 4 Myl. & Cr. 231. Bequest to testator's brother and sisters. A., B., and C, for their several lives, share and share alike, and after the decease of either of them, then as to the share or shares of one or either of them so dying, the testator bequeathed the same to the issue of the body or bodies of him, her, or Grandchildren. WILL. Nephews and Nieces. 563 tTiem BO dying, begotten, or to be begotten by their present husbands, share and share eilike for ever. Assuming that A., B., and C, took life estates only in the fund, the court was of opinion that the words "issue of the body" compre- hended not only children but grandchildren, and more remote descendants of A., B,, and C. — Evans v. Jones, 2 Coll. C. C. 616. Testatrix bequeathed £ 1 , 380 to trustees in trust, as to one-third, for such of the children of A. S., then deceased, as should be living at the testa- trix's death, and as to the remaining two-thirds, in trust for the children of S. T., and T. P., living at the same time. S. T. had grandchildren, but no child, living either at the date of the will or at the testatrix's death ; but A. S. and T. P. had, each of them, children living at those times. Held, that the grandchildren of S. T. could not elaim the benefit of the trust. — Moor y, Baisieck, 12 Sim. 123. Testator gave his real and persiShal estate to trustees, and directed them to invest his personal estate in the purchase of land, and to pay the rents, subject to certain annuities, to his son for life ; and in case his son should die leaving no legitimate issue, then he directed the trustees to pay the rents to his (the testator's) widow, for life ; but in case his son should die, leaving legi' timate issue, then, at the end of six months, after the eldest male child then living, of his son, should have attained twenty-five, or in default of male issue, the eldest female child then living, of his son, should have attained twenty-one, to con- vey all the estates to the eldest male child, or, in default of male issue, to the eldest female child, and to his or her heirs of his or her body, law- fully begotten, absolutely, for ever. The testator then (in case his son should die during the minority of such eldest male or female child) provided for their maintenance out of the rents, until he or she should attain the respective ages as before-mentioned ; and declared, that in case his son should not die during such minority, his estates should continue, on the trusts aforesaid, until six months after his son's death, and then pass to his son's eldest male or female child in manner before expressed ; and in case his son should die leaving no legitimate issue, then that the trustees should, after the death of the tes- tator's wife, convey the estates to certain other persons. The testator's son married, and had a son born after the testator's death. The court Held, this trust, for the grandson, not to be void for remoteness, and the grandson having survived his father, and attained twenty-one (but being under twenty-five) and all the annuitants being dead, ordered the estate to be conveyed to him. — Jackson V. Majoribanks, 12 Sim. 93. Bequest, in trust, for all the children of the testator's late uncle, J. B., deceased, to be divided equally amongst them and the issue of such of them as should be deceased, share and share alike ; such issue to be entitled to the share of their deceased parents equally amongst them. Held, that a grandchild of J. B., whose parent was dead at tie date of the will, was entitled to take. —Bebb v. Beekwith, 2 Beav. 308. ' Testator devised his real and personal estate to trustees, who were also executors, upon trust, to raise thereout, by sale or otherwise, £4,500, and invest the same in government or mortgage secu- rities, and pay so much of the annual proceeds as should be necesssary for the maintenance of his granddaughter, M. A., until her age of twenty- five years, and then to pay the anjxual proceeds to her for her life, and, upon her death, to divide the principal among her children, and if she died without without children, among the testator's other grandchildren, B., C, andD. j and as to residue of the testator's real and personal estate, he directed his trustees to pay the rents, interest, and annual proceeds of it, to the said B., C, and D., equally, till the eldest son should attam twenty-five, and upon that event happening, to convert so much of the residue, as should not consist of money, into money, and divide the same equally among B., C, and D. ; and power was given to the trustees to advance to B. and D,, part of their expectant portions, before they at- tained twenty-five. Held, that it was the duty of the trustees to set apart, and invest as soon as possible, the sum of £4,500, and for that purpose, to sell the testator's real estates, notvrithstanding that none of the grandchildren might have at- tained twenty-five ; and, in consequence of the non-performance of this duty by the acting trus- tee and executor, and other acts of misconduct on his part, a receiver was appointed. — Sichards v. Perkins, 3 Y. & C. 299. A., by his will, directed the residue of his es- tate to be placed out and invested, by the trustees of his will, on freehold or government securities, the interest and dividends of which securities he directed to be paid to his several children during their respective lives, and from and after the de- cease of his said children upon trust, that his trustees should receive and take the rents, issues, and produce of all the trust estate and effects, and pay and divide the same unto and equally be- tween all his surviving grandchildren who should be then living, share and share alike, until the the youngest of them should attain the age of twenty-one years, and upon the youngest of them attaining such age, to sell and dispose of his real and personal trust estate, and convert the whole into money, and pay and divide the same unto Emd equally between all such his said grand- children, and child of any such grandchild who may be then dead leaving lawful issue ; such child or children to take only his, her, or their parents' share, and if there shcdl be but one such grand- child who may live to attain the age of twenty- one years, then upon trust for such grandchild, his or her heirs, executors, administrators, and assigns. Held, that the bequest to the children of the grandchildren was confined to the children of the grandchildren who should be Uving at the death of all the testator's children, and that the children of a grandchild, who died in the lifetime of some of the testator's children, did not take any interest under his will. Quccre : Also, if the bequest was not void for remoteness. — Smith v. Farr, 3 Y. & C. 328. The testator gave legacies out of a sum of stock to the grandchildren, named in his will, on their attaining the age of twenty-one, and if any of them should die under twenty-one, their portion to be equally divided among such of them as should attain twenty-one, but if the whole of the said grandchildren should die under that age, then he gave the interest of the sum of stock to the father of the send grandchildren for his life, and after his decease, the principal as therein- mentioned. Held, that the grandchildren were entitled to the interest during their minority.— Boddy V. Dau}es,\ Keen, 362. XXIX. 4. Nephews and Nieces. Testator gave all his property, both real and personal, to his -wife for life; " and after the death 564 JVho Take— Widow. WILL. Widow, of my wife, my nephew is to be considered as heir to all my property j but I direct, that whatever portion of my property may hereafter be possessed by him shall be secured, by my executors, for the benefit of his family." Held, taking the whole of the will together, that the testator, by the word "family" meant the "children," but not the wife of his nephew ; and that the property ought to be settled on the nephew for life, and on his children after his death. — White v. Briggs, 15 Sim. 17. Testatrix bequeathed as follows: — "To my niece, M. M., daughter of my nephew, T, M., £30. To A. L., and M. L., son and daughter of my late niece, M. L., £30 each." And she gave all the residue of her property, not thereinafter disposed of, unto and equally to be divided amongst all her nephews and nieces. Afterwards she gave a specific legacy to M. L., and described her as her niece. Held, that by the words "my nephews and nieces" in the residuary bequest, the testatrix meant, not only her nephews and nieces, but their children also. — James v. Smith, 14 Sim. 214. Testator gave certain real and personal property to trustees upon trust, to pay the annual income to his two nieces, in equal moieties, during their lives, and after the death of either of them un- married, then upon trust to pay the whole income to the survivor during her life. Upon the death of one of the nieces who had married : — Held, upon the construction of the entire will, that the survivor was entitled to the whole income for her Yiie.—Doyne v. Cartwright, 1 Coll. C. C. 482. Testator devised his real estates to trustees, in trust to sell as soon as conveniently might be after his decease ; and as to the proceeds, together •with the intermediate rents, after payment of the testator's funeral and testamentary expenses, debts, and legacies, to pay one moiety to his nephew, and to invest the other moiety in the funds, in trust for his nephew for life, and after his death, for his children. The real estates were not sold until some years after the testator's death. Held, that the rents accrued in the meantime ought not to be invested for the benefit of the nephew and his children, but that the nephew was entitled to them. — Vigor v. Earteood, 12 Sim. 172. XXIX. 5. Husband. Testatrix gave a sum of stock to trustees for the separate use of her daughter for life, and after her death, in trust for her executors or adminis- trators, for their own use and benefit absolutely. The daughter, who was married, but lived sepa- ate from her husband, made a will, by which she appointed the stock to A. and B., her exe- cutors, in trust, subject to the payment of her debts, &c., for her nephews and nieces. The will was not proved, but the husband took out administration to his wife. Held, that the wife had no power to dispose of the stock, and that the husband was entitled to it. — Wallis v. Taylor, 8 Sim. 241. XXIX. 6. Widow. Testator bequeathed two leasehold houses to trustees, in trust, out of the rents to pay £50 a-year to his daughter-in-law, so long as she should remain his son's vridow, and to invest the surplus in stock, to be held in trust for his wife for life, remainder for his grand-daughters ; and after his death, in case his daughter-in-law should be then married, or after her decease or second marriage, whenever the latter event might happen, to sell the houses, and invest the proceeds in stock, to be held in trust for his wife for life, re- mainder for his grand-daughters. The daughter- in-law continued single, and the trustees paid her the £50 a-year out of the rents, and disposed of the surplus in the manner directed, until the lease of the houses expired. Held, that, after the death of the testator's widow, the stock purchased with the surplus rents was not subject to the payment of the annuity, notwithstanding the lease had expired. — Darbon v. Richards, 14 Sim. 637. Devise to trustees in fee, upon trust to demise until the testator's youngest chUd attained twenty one, and during the minority of such youngest child, to pay the rents to the testator's wife, for the maintenance of herself and children ; and when and so soon as the youngest surviving chUd should attain twenty-one, to sell, and divide the produce "between and amongst the testator's wife and all his children who should be then living, in equal shares ; and in case of the death of any child before the estates became saleable, his children were to take his share. The children all died under twenty-one, without issue. Held, that the wife was entitled to the whole estate. — Castle v. Bate, 7 Beav. 296. Testator gave a freehold house to his wife, for her sole use and benefit, and another freehold house to her for her life, and he also gave to her all his household goods, plate, &c. ; but if she married again, the whole of the above property was to become the property of his daughter ; and in case his wife should remain unmarried, then he gave the second-mentioned house to his daughter, for her life, and to her children, after his wife's death. "I also appoint my wife, pro- vided she remains immarried, sole executrix and residuary legatee to all other property I may possess at my decease." Held, that the fee simple in the first-mentioned house passed to the wife. — Day v. Daveron, 12 Sim. 200. Testator bequeathed to his wife as follows : — "all my interest in my house at Lavender Hill; the furniture, books, pictures, wines, &c., &c." After the date of his will, the testator removed from Lavender Hill to Spencer Lodge, taking with him furniture, books, pictures, vrines and plate. He afterwards purchased more of these articles, and died at Spencer Lodge. Held, that his wife was entitled to the furniture, books, pictures, wines and plate which he had at the time of his death. — Norris v. Norris, 2 Coll. G. C. 719. Testator gave to his wife the use of all his pro- perty for the benefit of herself and unmarried children, that they might be comfortably pro- vided for 80 long as she should live ; and after her death, he disposed of it amongst all his children. The testator left four married and three unmarried children. One of the three married after his death. Held, that the widow and three children, who were unmarried at the testator's death, were entitled equally to the income of the property during the widow's life. — Jttbber v. Jubber, 9 Sim. 503. Testator bequeathed his residuary estate to trustees, in trust to pay the income to his wife for life, to be by her applied for the maintenance of herself, and such children as he might leave at his death. Held, not to be a trust for the sepa- rate use of the wife. — Wardle v. Clayton, 9 Sim. 624. Testator commenced his will as follows : — "All Who Take, WILL. Heirs-at-Law. 565 my property in the several public funds, ex- cepting that in the 3 per cent, consols, is to he sold out, and, after defraying, from the pro- duce thereof, my funeral expences and debts, the remainder is to be placed in the 3 per cent, consols, in which fund I now stand possessed of £3,700 capital stock. The annual dividends, I leave in trust to ray executor and executrix, to be by them paid, as the dividends shall become due, to the persons under-mentioned, during their natural lives ; namely, £30 per annum to my niece, A., and £'20 per annum to my niece, S. The testator, in a subsequent part of his will, gave all his household furni- ture and all his property of every kind, not specified above, to his wife. Held, that the capital producing the two yearly sums of £30 and £20, passed to the wife. — Clows v. Clows, 9 Sim. 403. Testator divided his will into several clauses or articles, which he numbered ; and after appointing several trustees, and providing for their succession, he, by the second article of his will, bequeathed to his trustees, in trust, for the use of his wife and children, as thereinafter detailed ; viz. : all his household furniture, plate, medals, china, linen, books, paintings, prints, wines, provisions, horses, carriages, cows and sheep, and all other live and dead stock in and about his premises, with all his ready money in his house and at his agent's and banker's, with all monies due to him at the time of his decease ; also he gave and devised all and every his dwelling-house and mansion, buildings, garden and lands, with the appurtenances, and all his real estates, upon trust as aforesaid, and upon the uses thereafter stated ; that is to say, all his real ■estate in and about Denne Hill, &c., until the youngest of his surviving children attained the age of twenty-five years ; at that period, he willed that his eldest surviving child should be put into possession of all his freehold and leasehold pro- perty, including all timber and underwood ; and all personal property on the estates. By a sub- sequent article, he appointed his eldest son, or next surviving child in seniority, his residuary legatee. There were other clauses in the will, and also a testamentary writing, from which it appeared to have been a principal object of the testator, to give his children the advantage of having the same house for a period after his death as they had enjoyed in his lifetime. Held, upon these clauses taken together, that the enjoyment and rents of the testator's real estates devised by the will belonged to the testator's wife and children, generally (subject or not subject to a discretionary power of regulation in the trustees), until the attainment by the youngest surviving child of the age of twenty-five. Held, also, that the property described as all the testator's ready money, in his house, &c., did not belong to the residuary legatee, and did not fall within the description of all personal property on the estates, &c.,»but was to be applied for the benefit of the wife and children. — Montresor v. Montresor, 1 Coll. C. C. 693. XXIX. 7. Aunts. Testator bequeathed to J. W. £1,000; to his sister, M. W., £200 ; to their mother, £200 ; and to the three aunts of J. \V. and his sister, M. W., £100 each. Held, that the last bequest included the aunts, but not the sisters.— Trail v.Kibblew/iite, 12 Sim. 5. XIX. 8. Heirs-at-Law, Devise of real estate to W. R. W. and his heirs, upon trust to receive the rents and profits, and apply the same in discharge of the testator's debts and legacies, and after payment thereof, to convey a portion of said real estate to testator's brother, R. W., for his life, and the residue thereof, and the part so devised to R. W., after his decease, to such of the sons of W. R. W. as should, at his decease, be his second son, for life, with remainder to his first and other sons in tail male, with remainder to the third, fourth, and every other son of W. R. W., successively, in strict settle- ment. The will concluded thus : — "And as to all my personal estate, &c., subject, however, to my debts and legacies heretofore bequeathed, I give and bequeath same to my relative, W. R. W., whom I appoint executor of this my will, and also, in case of any residue, I appoint him my residuary legatee." The debts and legacies having been a^l paid, and R. W. having died in the lifetime of the trustee, W. R. W. : — Held, that the intermediate rents and profits of the real estate, having been undisposed of during the life of W. II. \V., be- longed to the heir at law of the testator. Held, that the residuary clause was confined to the personal estate ; and that, under it, these rents and profits did not pass to W. R. W. for his life. QutEre^ as to the case of Huxstep v. Brooman, (1 Bro. C. C. i27).— Wills v. Wills, 1 Dru. &. W. 439. Testator devised his real estates to trustees, in trust to sell, and to pay the proceeds to the person or persons who, at the decease of S. M. & M. W., was or were their heirs or co-heirs at law, respec- tively, in equal moieties. One of the trustees was the testator's heir ; and he and his co- trustees sold part of the estate, shortly after the testator's death. The heir then died ; and after his death, it appeared that the persons who were the heirs of S. M. and M. W. at their respective deaths, had died in testator's lifetime ; and consequently, the trusts declared in their favour failed. Held, that the testator's real estates were not absolutely converted by his will into personalty, but only for the purpose expressed therein ; and that purpose having failed, that they descended to his heir. Held, also, that the proceeds of that part of the estate which had been sold by the testator's heirs and his co-trustees, was sold under an erroneous impression that one or more of the intended cestui que trusts might be in existence ; and consequently, that those proceeds also must be considered as part of the real estates of the heir. — Davenport v. Coltman, 12 Sim. 610. Upon the construction of a will, the court Held, that a testator did not intend a conversion out and out, and that the purpose for conversion having partially failed, the heir at law was entitled. — Ex parte Pring, 4 Y. & C. 507. The testator gave all his lands, tenements, and hereditaments, and the residue of his personal estate, to trustees, &c., to the use of his grandson, H. T., for life, and after his decease, in trust for the child and children of H. T., at his or their ages of twenty-one, as tenants in common ; but, in case H. T. should happen to die mthout leaving ■ any lawful issue of his body living at the time of his decease, then over. H. T. had two children : a son, who died in his infancy ; and a daughter, who attained twenty-one, but died intestate, in the lifetime of H. T., leaving children. Held, that, in the events which happened, the personal estate belonged to the personal representative of the daughter of H. T. ; and that the real estate 566 Who Take. WILL. Next of Kin. Tested in the heir at law. — HutcAinaon v. St^hena, I Keen, 213. XXIX. 9. Cousins. Testator bequeathed his residue to his first cousins, the children of his father's brother, of the name of C. The testatcar's father had two brothers of the name of C, both of whom had left children. Held, that the bequest was not Toid for uncertainty, but that the children of both brothers were entitled to share in the residue. — Hare v. Cartridge, 13 Sim. 165. Testator bequeathed a fund in trust for his eecond cousins. Held, that a first cousin once re- moved was not entitled to a share. — Corporation of Bridgnorth v. Collins, 1.5 Sim. 541. A bequest to the testator's "first cousin or cousins gerraan," does notinclude the descendants of first cousins. — Sanderson v. Bayley, 4 Myl. & Cr. 66. Testatrix bequeathed her residue to her second cousins, of the name of S., and the issue of such of them as were dead. She had no second cousin, but she had three first cousins once removed of that name, two of whom were living at her death, and had children, but the third was then dead, leaving children. Held, that the two surviving first cousins once removed, and the children of the one who was dead, were entitled to the residue, to the exclusion of the children of the former, although they were in the same degree of relationship to the testatrix as her second cousins would have been, had she any. — Slade v. Fooks, 9 Sim. 386. Testator, by his will, gave legacies to several -persons, describing ?ach of them as his cousins. By a codicil, he gave his residuary estate to all such of his cousins, both on his father's and mother's side, as should be living at his decease, and to all the children of such of his said cousins as might have theretofore died or might die in his lifetime. The testator left several first cousins and children of first and second cousins, and one first cousin once removed. Held, that none of them were included in the residuary bequest, except the first cousins living at the testator's death, and the children of first cousins who died in his lifetime. — Caldicott v. Harrison, 9 Sim. 467. Upon the construction of a will : — Held, that the residue to the testator's personal estate de- volved to his cousins german living at his death, except, that the issue of any cousin dying between the date of the will and the death, took the pro- spective share of the parent. — Cort v. Winder, 1 CoU. C. C. 320. Upon the construction of the same will, the shave of a cousin dying without issue between the date of the will and the death of the testator was Held, not to have lapsed, but to have fallen into the bequeathed residue. — Id. XXIX. 10. Next of Kin, A testator gave his residuary estate to his wife, and appointed her his executrix, to provide for his younger children. And as to his son John, he " would have £250 a-year paid him, until a sura of £10,000 can be invested in land or some other securities, which is to be invested in trus- tees, for his use, as to the interest of such money, or produce of such lands, for his natural life ; and if he marries, &c., that he may make such settlement on such wife, &o., as you judge proper, and that the remainder may go to such child or children he may have lawfully begotten ; but in failure of these, to ray eldest son, IsaaC) and his heirs for ever." The sum of £10,000 was vested in personal securities, and partly on mortgage of real estate ; and on the death of John, without any child, his widow being entitled to the interest for life, and Isaac entitled, absolutely, on her death, by their acts, indicated their intention to take it as a money fund ; Isaac survived the widow, and died intes- tate. Held, that even if the fund had been im- pressed, by the will, with the character of real estate, which was doubtful, it was re-convertcd into personalty, by the subsequent acts of the parties entitled, and therefore, the next of kin of Isaac, and not his heir, were entitled.— CooAt ;» ov^Allpnt.. and the statement of the law clear and concise. — Mnrninn public appreciation of the manner in which it has been treated. The ability, industry, and devotion which Mr. Jagoe has employed in producing a work no less needed by laymen than by lawyers, has been pre-eminently successful. — Observer. 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