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Analytical Digest of Cases: Appeals in Chancery.

ing the decision of the Master of the Rolls, reported 18 Beav. 80, that he had no claim against the owner of the unmortgaged share for freight, and could, at the utmost, only claim to adopt the mortgagor's contract, and to stand in his place as to the profits of the adventure, after deducting all expenses. Alexander v. Simons, 5 De G., MN., and G. 57.

Case cited in the judgment: Green v. Brigg, 6 Hare, 395.

Sce Legatee.


1. Of contract by railway-Security-Annuity on land taken.-A bill filed against a railway company by the grantee of an annuity charged on land taken by the company stated, that, before the grant of the annnity, the land was subject to a mortgage in fee, which had since been paid off, but that there had been no reconveyance; that the defendants under the powers of their act had given the plaintiff notice to treat for the land charged with the annuity, but without any further proceeding had taken possession of the land. The prayer was, that the company might be decreed to pay the arrears of the annuity, and to secure the future payment of it. The defence made by the answer and evidence was, that the company had purchased from the prior incumbrancer under a power of sale: Held, reversing the decision of Vice-Chancellor Kindersley, that the plaintiff could not on such pleadings enforce a specific performance of the notice to treat regarded as a contract to purchase the plaintiff's interest.-Hill v. Great Northern Railway, 5 De G. M'N. and G. 66.

2. Agreement for lease after expiration of term-Recovery of rent as equitable debt-Winding-up acts.-In pursuance of an arrangement made on behalf of a joint stock company, with certain persons to purchase the beneficial interest in a colliery lease agreed to be granted to them for a term of forty years, a lease was granted in March, 1842, to three persons as trustees for the company for a period of forty years, at a fixed rent, together with a royalty. The lease contained a stipulation enabling the lessees, at the end of any period of three years from its commencement, to determine the lease by giving twelve months' notice. The company entered into possession in December, 1841, and remained in such possession till November, 1842, when the working proving unprofitable was abandoned and never afterwards resumed. In January, 1850, the company was dissolved, and its affairs ordered to be wound up under the provisions of the Joint Stock Companies Winding-up Acts. The lessor became bankrupt in August, 1853. Some time prior to his bankruptcy his interest in the mine became vested in the plaintiff. In May, 1852, the official manager of the company, under protest that the lease was not binding on the company, gave notice to terminate the lease on the 31st of May following, when one of the triennial periods expired. On the 23rd of February, 1853, the plaintiff filed his bill against the official manager of the company, praying a declaration that the company had accepted the lease and were bound thereby, and that the official manager might be ordered to pay the arrears of the stipulated rent since March, 1842, together with compensation for all breaches of covenant: Held, dismissing with costs an appeal from Vice-Chancellor Wood, that no relief in the nature of specific performance, nor any equitable relief, could be granted either against the persons to whom the


demise was made or against the company in respect of their occupation, the rights of the plaintiff, if any, being legal.

The case of Clavering v. Westley, 3 P. Wms. 402, so far as it might be an authority for the recovery of rent as an equitable debt, disapproved.-Walters v. Northern Coal Mining Company, 5 De G. M'N. and G. 629.

Case cited in the judgment: Nesbett v. Meyer, 1 Swanst. 223.

And see Vendor and purchaser, 2, 5.

See Assignment.



See Will, 7.


See Frauds, statute of.


See Tenant for life.


See Limitations, statute of


See Public company.


Limitatious-Pleading-Statute of Fraudulent DeDischarging bond debts-Presumption—Statute of vises-Affidavit.-A tenant for life discharging an incumbrance upon the estate is presumed to have intended to keep the charge alive against the inheritance for his own benefit, and the absence of an assignment will not conclude him; but a similar presumption does not arise from the payment by a a tenant for life of bond debts, which, even if assigned, only place him in the same position as any other bond creditor.

A testator, being indebted by bond, devised certain real estate to his son for life with remainder, subject to a term for the payment of legacies, to his grandson in tail, and died. Upwards of twenty years after the date of the latest of the bonds, the tenant for life and his assignee for value filed their bill against the tenant in tail and the legatees, alleging that the tenant for life had paid off the bonds, and seeking to stand in the shoes of the obligees as against the inheritance. The tenant in tail pleaded the Statute of Limitations; the other legatees did not: Held, dismissing, with costs, an appeal from V. C. Stuart, that the payment of the bonds by the tenant for life did not constitute him an incumbrancer on the estate, and that the bonds themselves, being more than twenty years old, the presumption was that they had been satisfied.

Semble, the plea of the Statute of Limitations, under the circumstances, by the tenant in tail, enured for the benefit of all the defendants.

In June, 1854, the tenant for life made an affidavit, verifying payment of the bonds, and died in August following. A supplemental suit was instituted by the surviving plaintiff, who, in February, 1855, filed the affidavit in the original and supplemental suits: the Lord Chancellor, in the absence of any motive attributable to the plaintiff for not having filed the affidavit in the interval between the dates of its being sworn and the death of the deponent, received it with the qualification that less credit would be given to it than to any evidence which might be adduced by the


Analytical Digest of Cases: Appeals in Chancery.

other side to rebut it, there being no opportunity of cross-examining the deponent. Morley v. Morley; Harland v. Morley, 5 De G., M'N., and G. 610.

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2. Breach of trust-Acquiescence by cestuis que trustent. A testator by his will gave the residue of his property to three trustees, whom he appointed executors, upon trust to sell, and invest the same, and to pay the income thereof to his widow for life, and after her decease to his children, who were all infants at the time of his death. The eldest child attained twenty-one in the year 1839, and the youngest in 1846. The three executors proved the will, but one of them almost exclusively acted. The money, which was the proceeds of the estate, was suffered by two of the executors to remain in the hands of the third, who ultimately became insolvent. On the youngest child attaining twenty-one, he, on behalf of himself and his brothers and sisters, attempted to obtain payment from the acting executor, and in 1848 wrote him a letter consenting to receive payment of the amount then admitted to be due, by annual instalments. In 1849, and shortly before the insolvency of the acting trustee, a bill was filed by all the children against the three trustees, for the purpose of making them each responsible: Held, by the Lord Chancellor, varying the decision of V. C. Wood, that inasmuch as it was the duty of the three trustees to have explained to their cestuis que trustent what their rights were, and as they had not done so, there was nothing in the conduct of the children to deprive them of their remedy against the three trustees, who were accordingly declared to be jointly and severally liable to make good the deficiency. Burrows v. Walls, 5 De G., M'N., and G. 233.

Case cited in the judgment: Walker v. Symonds,
Swanst. 1.

3. Claim paramount the trust-Evidence. — An executrix, by a deed, reciting that she intended to appropriate a part of her testator's assets in payment of a debt due from him to her, declared trusts of the fund intended to be thus appropriated. She died without making the appropriation, which was made after her decease by her executors. New trustees of the deed, subsequently appointed, executed a declaration of trust (contained in the deed appointing them), whereby they declared that they would hold the fund upon the trusts. On their inquiring before their appointment for evidence in verification of the recital as to the existence of the debt from the testator to the executrix none could be discovered: Held by Lord Justice Turner, agreeing with Vice-Chancellor Wood (dissentiente Lord Justice Knight Bruce), that the trustees could not be compelled to execute these trusts without further evidence of the settlor's title to appropriate the fund.-Neale v. Davies, 5 De G. M'N. and G. 258.

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of a vendor's land, the vendor and purchaser entered into mutual covenants prohibiting building, except in a specified manner, on the sold and unsold parts, with a stipulation for payment of liquidated damages in case of breach of covenant: Held, by the Lords Justices, confirming the decision of V. C. Wood, reported 1 Kay, 75 :

1. That a subsequent owner of the unsold part claiming through the grantor by means of deeds, one of which referred to the deed containing the prohibitory clause, but not to that clause, was bound by the prohibition in equity,

2. That the circumstance of the grantor not having performed a covenant, to obtain for the grantee a direct covenant from the former purchaser, did not constitute a defence, it not appearing that any application had been made to the grantor for that purpose.

3. That notice of a right to prevent building, and of an intention to enforce it, given before any expense was incurred, followed by a bill for an injunction, though not filed for four months afterwards, was insufficient to exclude a defence on the grouud of laches, it appearing that the plaintiff could not sooner establish his right to enforce the prohibition.

4. That the clause as to liquidated damages did not exclude the interference of the court by interlocutory injunction. Coles v. Sims, 5 De G., M'N., and G, 1.

Case cited in the judgment: Tulk v. Moxhay, 11 Beav. 571; 2 Phill. 774.

2. Specific performance-Restrictive stipulation— Annuity. By an agreement for the sale of a reversionary estate in fee, it was stipulated, that a statement in a deed of 1836, to the effect that a life annuity granted to A. B. had not been paid or claimed for eight years (supported by a declaration of the vendor that no claim had been made upon him since 1841, and that he believed the annuity had not been claimed for the last twenty years) should be conclusive evidence that the annuity had determined. It appeared that the annuity was granted by a person entitled in reversion, and was. granted for the life of the survivor of four persons, two at least of whom were living: Held, confirming the decision of Vice-Chancellor Stuart, 2 Smale and G. 225, that the omission to state these circumstances disentitled the vendor to enforce the stipulation in a specific performance suit instituted by him.-Drysdale v. Mace, 5 De G. M'N. and G. 103.

Case cited in the judgment: Cox v. Dolman, 2 De G.
M'N. and G. 592.

3. Misrepresentation of value-Mine-Diligence.Misrepresentations to constitute sufficient grounds for setting aside a purchase, must be material, as being of such a nature as, if true, to add to the value, must not be evidently merely conjectural statements, and must be made without a belief in their truth or without reasonable ground for such a belief.

Where advertisements for the sale of shares in a mine had been issued containing unfounded statements, but the purchaser had not relied upon them, and had had opportunities of judging of their accuracy: Held, confirming the decision of the Master of the Rolls, 17 Beav. 234, that he was not entitled by reason of them to have the contract rescinded.

In suits to rescind contracts for fraud, particularly where the subject is of variable value, it is the duty of the plaintiff to put forward his complaint at the earliest possible period.--Jennings v. Broughton, 5 De G. M'N. and G. 126.

The Legal
Legal Observer,





I. BANKERS' DRAFTS. II. INTESTATE'S ESTATES. III. EVIDENCE IN FOREIGN SUITS. SOME Notes on the Statutes of the last session of Parliament which materially alter the law and the practice of the courts, and in which the members of the profession are peculiarly interested, have been already submitted to our readers-namely, on the Settled Estates Act, p. 265; the County Courts Act, p. 345; the Mercantile Law Act, p. 361; and the Stamp Duties Act, p. 297. We now proceed to notice briefly some other statutes, though possessing a less degree of importance than

the others.


(19 & 20 Vic. c. 25).*

It will be recollected that before this act passed it was held that a draft on a banker payable to A. B., or bearer, could not be refused payment to any one who presented it because it was crossed with a banker's name. It was of the very nature of an unstamped draft payable to the bearer that it should be receivable by any one who presented it unless the banker had reasonable grounds for concluding that it was fraudulently obtained.

The act recites that doubts have arisen as to the obligations of bankers with respect to cross-written drafts, and that it would conduce to "the ease of commerce, the security of property, and the prevention of crime," if drawers or holders of drafts payable to order, or to order on demand, were enabled effectually "to direct the payment to be made only through a banker."

It is therefore enacted that where a draft on any banker made payable to bearer or to order on demand "bears across its face an addition in written or stamped letters of the name of any banker, or of the words "and company,' ," in full or abbreviated, either of such additions shall have the force of a direction to the bankers upon whom such draft is made, that the same is to be paid only to or through some banker, and the same shall be payable only to or through some banker."†

It may be presumed, therefore, that if the

* See the Act verbatim, p. 154, ante. "Banker" includes corporations, joint-stock companies, or other companies acting as bankers. VOL. LII. No. 1,492.

drawer should write across the draft "Bank of England," or "Union Bank," or the name of any private or other banker, the holder of the draft may strike it out, and write the name of some other banker. This, in the words of the preamble, may "conduce to the ease of commerce;" for the holder may desire to have a different banker; transfer the draft to another person, who may or the banker's drawer, and trouble may be saved by the name may be written in mistake by the liberty of passing the draft through any however, if a draft should be misappropriated, banker's hands. It is not very improbable, that the question may be mooted whether the banker is justified in paying the amount to any other banker than the one written across by the drawer, for it may be the object of the drawer that the money should be credited in the drawee's account with the banker actually specified.


It being deemed expedient that one uniform rule should prevail throughout England and Wales concerning the distribution of the personal estate of persons dying intestate, the present act, after the 31st December, 1856, repeals the 4th section of 22 & 23 Car. 2, c. 10, "for the better Settling of Intestates' Estates," and so much of the 18th section of 11 Geo. 1, c. 18, "for Regulating Elections in the City of London," as preserves the custom of London in the case of persons dying intestate, save only with respect to the distribution of the personal estate of persons who may have died before the 31st of December next.

It is then enacted that the special customs concerning the distribution of the personal estates of intestates observed in the City of London, or in relation to the citizens and freemen of such City, and in the province of York and certain other places,† with reference to all persons dying on or after 1st January, 1857, shall wholly cease; and the distribution of their personal estate shall take place as if such customs had never existed, and as if the rules in the province of Canterbury had prevailed throughout England and Wales.

*See the act, p. 229.

The "other places" are not named in the act. BB


Notes on Recent Statutes.-New Statutes effecting Alterations in the Law.


19 & 20 Vict. c. 113.*

The object of this act is to afford facilities for taking evidence in her Majesty's dominions in relation to civil and commercial matters pending before foreign tribunals. The courts to which jurisdiction is given by the act are the Superior Courts of Common Law at Westminster and Dublin, the Court of Session in Scotland, and any supreme court in any of her Majesty's colonies or possessions abroad, or any judge of any such court; provided the Lord Chancellor, with the assistance of two of the judges of the Courts of Common Law at Westminster, shall frame rules and orders for giving effect to the act and regulating the procedure (s. 6).†

commission or some judicial document will be issued by the tribunal before which the matter is pending, directed to certain commissioners, authorising them to take the testimony of the ticating and returning the depositions, accordwitnesses and prescribing the mode of authening to the practice of the court in which they are to be produced. The act, in fact, enables land, and the Colonies, to authorise the exathe court or judge in England, Ireland, Scotmination, and compel the attendance of witnesses; but the foreign tribunal will, no doubt, direct the course of proceeding consistently with its own practice.

We trust that our Allies will follow the same course, in compelling the attendance of witnesses abroad to be examined for purposes of justice in this country. It will be observed cial, not criminal, proceedings. that the act applies only to civil and commer


On its being made to appear to any court or judge having authority under the act, that any court or tribunal of competent jurisdiction in a foreign country, before which any civil or commercial matter is pending, is de- NEW STATUTES EFFECTING ALTEsirous of obtaining the testimony of any witness, the court or judge may order the examination upon oath, on interrogatories or otherwise, before any person named in the order, and command the attendance of any person (within the jurisdiction) to be examined, and produce writings or documents; and such order may be enforced like any other order of court (s. 1).

A certificate of the ambassador or other diplomatic agent or consul of any foreign power shall be evidence of the matters required to support the application (s. 2).

19 & 20 Vict. c. 104.

1. Power to constitute new districts under recited

2. District containing a church to become a new parish on being constituted a separate district by order in council.

3. District may be constituted without providing endowment as required by sect. 9 of 6 & 7 Vict. c. 37.

The examination of witnesses is to be taken on oath; persons giving false evidence to be deemed guilty of perjury (s. 3). And it is 4. provided that the witnesses be paid their expenses and loss of time as upon attendance at a trial (s. 4).

Provided that persons so required to be examined may refuse to answer questions tending to criminate themselves, or other questions which a witness in a cause pending in a court here would be entitled to refuse answering; and no person shall be compelled to produce documents that would not be required at a trial (s. 5).

The rules of court, we presume, will set forth the form or substance of the certificate which will be required from the ambassador, diplomatic agent, or consul of the foreign country where the litigation is in progress, in order to bring the matter under the cognizance of the court or judge, either here or elsewhere in the British dominions; and it may be required that the application be supported by proper affidavits, verifying the papers from "the foreign court of competent jurisdiction," and shewing that it is "desirous of obtaining the testimony." We presume, also, that a

* See the act, p. 334, ante.

It would seem from this proviso that nothing can be done under the act till the rules and orders have been made.

Section 22 of 6 & 7 Vict. c. 37, to apply to ecclesiastical and collegiate corporations.

5. Right to pews in the old parish church not to be retained after occupation of sittings in the


6. Pew rents may be taken according to scale, and applied towards repair of church and providing endowment.

7. Upon permanent endowment of any church or chapel a proportionate number of sittings to be declared free, or scale of pew rents to be reduced.

8. Scale of pew rents may be altered.

9. Clerk and sexton to be appointed by incumbent.


Freeholds of titles of churches and burial grounds

to vest in incumbents.

11. Offices of the church to be performed in all churches or chapels, on application of the incumbent.

12. Reserved fees to belong to original incumbent until first avoidance, then to the incumbent of new parish.

13. Provisions of 19th section of 6 & 7 Vict. c. 37,


14. Districts may become separate and distinct parishes.

New Statutes effecting Alterations in the Law.

15. Incumbents of new parishes to have exclusive cure of souls therein.

16. Provisions contained in section 20 of 6 & 7 Vict. c. 37, extended.

17. Patronage may be conferred upon contributors to endowment or their nominees, upon certain considerations.

18. Assignment of patronage to be made with certain


19. Notices to be sent to patrons. 20. Who to be deemed patrons.

21. Patronage not to be sold; penalty of lapse for so doing.

22. Patronage may be vested in certain cases in incumbent of original parish.

23. Land, tithes, &c., and other endowments to vest in incumbent and his successors.

24. Appointment of trustees, &c.

25. Parishes may be divided, with certain consents. 26. In new parishes and parishes already divided, a division and resettlement of endowments may be made.

27. As to providing houses of residence for spiritual persons serving any church or chapel.

28. Churchwardens to be paid compensation for rights of common.

29. Nothing to affect provisions of 13 & 14 Vict. c. 41, &c.

30. Powers of 3 & 4 Vict. c. 113, and 4 & 5 Vict. c. 39, extended to this act.

31. Commissioners may apportion endowment. 32. For purposes of burial, parishes to be ecclesiastical districts.

33. Interpretation of certain terms. 34. Extent of act.

35. Short titles of act.

The following are the title, preamble, and sections of the act :

An Act to extend the Provisions of an Act of the Sixth and Seventh Years of Her Majesty, for making better Provision for the Spiritual Care of populous Parishes, and further to provide for the Formation and Endowment of separate and distinct Parishes. [29th July, 1856.]

WHEREAS it is expedient to afford increased facilities for the subdivision of populous districts, and for the formation thereout of separate and distinct parishes for all ecclesiastical purposes, and also to make better provision for the endowment and augmentation of poor livings in England and Wales; and whereas by an act passed in the sixth and seventh years of her Majesty, chapter thirty-seven, and by another act passed in the seventh and eighth years of her Majesty, chapter ninety-four, the ecclesiastical commissioners for England are empowered, in the case of parishes, chapelries, and districts of great extent and containing a large population, to constitute any part or parts thereof a separate district for spiritual purposes, such district not at the time of so constituting the same containing within its limits any consecrated church or chapel, and it is expedient that the provisions of the said act relative thereto, and to the matter and things consequent


thereon, should be extended and amended in manner following: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: That

1. It shall be lawful to constitute districts under the provisions of the said acts, notwithstanding that there may be within the limits of any such district a consecrated church or chapel, any local act to the contrary notwithstanding.

2. It shall be lawful for the commissioners, in the scheme for constituting any district, to specify some existing or intended church within the district as the parish church of such district, and immediately upon the issuing of the order of her Majesty in council ratifying such scheme such district shall become and be a new parish, and such church, when consecrated, the church thereof, and the incumbent of such church the incumbent thereof, in the same manner, and to the same extent, to all intents and purposes, as is contemplated with respect to new parishes formed under the said acts, and to the churches and incumbents thereof respectively; and the incumbent of such church shall be liable to the performance of all pastoral duties within the limits of such new parish.

3. It shall be lawful to recommend the constitution of such district without providing in the scheme for the same the permanent endowment required by the ninth section of the first-recited act, if it shall appear to the commissioners, and shall be declared in the said scheme, that there is reason to expect from other sources an adequate maintenance for the incumbent.

4. The powers and provisions contained in the twenty-second section of the said first-recited act, enabling any person or body corporate to give and grant lands, tithes, tenements, or other hereditaments, goods, or chattels, for the purposes of the said act, shall be construed and held to authorise any ecclesiastical or collegiate corporation, aggregate or sole, to give or grant any lands, tithes, tenements, or other hereditaments, goods, or chattels, belonging to such corporation, in such manner as in the said firstly and secondly recited acts mentioned, for the purposes of the said recited acts or of this act: Pro-vided always, that the said powers shall not be exercised by the incumbent of any benefice with cure of souls without the consent of the patron of such benefice.

5. Every person resident within the limits of any new parish or district already formed under any of the church building acts, or hereafter to be formed under the provisions of the said acts of the sixth and seventh years of her Majesty, chapter thirtyseven, and the seventh and eighth years of her Majesty, chapter ninety-four, or of this act, who shall have claimed and have had assigned to him sittings in the church of such new parish, shall thereby surrender, as to any right that he may have possessed, an equal number of sittings in the church of the original parish or other ecclesiastical district out of which such parish shall have been taken, unless such last-mentioned sittings be held by faculty or under an act of Parliament.

6. It shall be lawful for the commissioners, if it shall appear to them that sufficient funds cannot be provided from other sources, but not otherwise, with the consent of the bishop of the diocese under his hand, to order and declare by an instrument in writing under their common seal that annual rents may be reserved and taken in respect of any pews or

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