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TABLE OF CASES.
During the sittings of the Courts THE WEEKLY NOTES will be published on Saturday, and will generally comprise Notes of the Decisions up to
and including those of the previous Wednesday. All cases of permanent Equity.
interest noted herein will be reported in full in THE LAW REPORTS. ATTORNEY-GENERAL 7, TERRY (Navigable River -Obstruction
Injunction) . . . . . . L. C. & L. JJ. 60 BITEMAN E. Revy (Injunction-Restraint on Publications-In
formation obtained as Servant). . . . V.-C. M. 62 BITTSFORD's Will, In re (Wil—No Words of Limitation)
V.-C. H. 65 Beck's Case. In re UNITED PORTS INSURANCE COMPANY (Winding-up-Contributory) . . . . . L. JJ. 60 L. C. & L. JJ. MILES v. HARRISON.
March 2 BOLLEY . BULLEY (Vendor and Purchaser-Valuable Considera
Will— Construction-Marshalling-Mortmain Act-Residue given tion without Notice- Legal Estate - Conveyance - General
to Charity. Words-Mistaken Rights – Admissions) . . V.-C. B. 63 This was an appeal from a decision of Vice-Chancellor Wickens Copa 7. Evass (Trade-mark-Similarity of Mark-No Evidence of
| (see Weekly Notes, 1873, p. 137).
The Rev. John Miles, by his will made in July, 1855, directed Deception) . . .
. . . V.-C. H. 64 his trustees and executors to sell, call in, and convert all his perCOTTERELL 0. STRATTON (Redemption Suit - Taxation of Costs -
sonal estate, and after payment of funeral and testamentary Mortgage under 10001.—Lower Scale of Charges) V.-C. M. 61
expenses, debts, and legacies, to invest the residue of the pro
ceeds of the sale and conversion and to pay the income of such DBEr. MASLEN (Will-Construction-Legal Estate in Trustees
investments to his wife so long as she should continue his -Rule in Shelley's Case-Referential Trust-Heir-at-Law) widow, and after her death or future marriage he directed his
V.-C. H. 65 trustees to purchase certain annuities out of the proceeds of the EUWARDS r. WARDEN (Bombay Civil Fund-Claim of Widow and
converted personal estate, and gave various legacies, including
one of 1007. to the Westmoreland Society Schools. Then folChild of Member-Performance of Condition rendered impos
lowed the residuary clause upon which the question in the case siblo-Construction-Acquiescence--Laches-Jurisdiction)
turned :V.-C. B. 63
"As to all the residue and remainder of my personal estate Frexess, Ex parte. In re Simpson (Partnership - Death of Part
and effects whatsoever and wheresoever which I may be posner - Partnership not dissolved by Death— Business carried on
sessed of or entitled to at the time of my decease, I bequeath oneby Surricors-Right of Creditors of original Firm to Assets
third thereof to St. Mary's Hospital, Paddington, one other third remaining in Specie)
part to the Society for the Propagation of the Gospel in Foreign . . . . . BNKCY. 66
Parts, and the remaining third to the Society for Promoting GAINEFORD 7. DUNN (Wil— Power of Appointment-Gift of Lega Christian Knowledge. And my will is, and I expressly direct,
cics followed by Gift of Residue of Property subject to Power that the three last-mentioned legacies or bequests shall respec
-- Charge of Legacies on Property subject to Power) M. R. 60 tively be paid and satisfied out of such part of my personal KREHL . PABK (Vendor and Purchaser-Waste-Damage-Occu
estate as can lawfully be applied to the payment thereof, and
which shall be reserved by my trustees or trustee for the time palion Rent) . . . . . . . L. JJ. 60
being for that purpose, and that such legacies and shares of LASCEFIELD 1. IGGULDEN (Administration-Specific Devise-De
residue shall respectively be applied to the purposes of the said ficient Estate) . . . . . . V.-C. B. 64 hospital and societies respectively, and the receipts of the reLILE 2. SCARTH (Mortgagee- Redemption-Costs of Suit—Tender)
spective treasurers of the said hospital and societies respectively V.-C. M. 62 shall be sufficient discharges for the same respectively."
The testator's personal estate was valued at about 60,0001., of Vila . HARRISON (Will - Construction - Marshalling-Mortmain
which about 46,0001, was invested on mortgage, and about Ad-Residue given to Charity). . . L. C. & L. JJ. 59
14,0001. was pure personalty. SEATE . DENMAN (Demurrer - Inns of Court - Jurisdiction of
The Vice-Chancellor was of opinion that the words of the reCourts of Law or Equity as between the Inns and their Mem.
siduary gift wero not a sufficiently clear direction to marshal Lars-Prirate Corporations) . . . . V.-C. H. 65
the assets in favour of the charities to countervail the general
rule of law, and accordingly directed the funeral expenses, debts, Peet's TROSTS, In re (Securities in Court-Carrying over to
and legacies to be paid out of the pure and impure personalty Separate Account-liquot Parts of Fund). . M. R. 61 rateably. From this decision the charitable societies appealed. Pricz . MAYO (Administration Suit - Albert Life Assurance Com
Lindley, Q.C., and Graham Hastings, for the appellants, repany Arbitration-Call made by Arbitrator-Decree for Pay
ferred to Wills v. Lourne (Law Rep. 16 Eq. 487).
Hardy, Q.C., and Crossley, for the testator's widow. ment of Amount claimed and in Default for Administration)
V.-C. H. 66
| Greene, Q.C., and W. W. Cooper, and Dickinson, Q.C., and
| Whateley, for the next of kin. STEED T. PREECE (Infants Real Estate-Sale by Court-Conver Morgan, Q.C., and Anderson, for the trustees.
sion) . . . . . . . . M. R. 61 THE LORD CHANCELLOR (LORD CAIRNS) said that although he WILLIAISON . WILLIAMSON (Lessor and Lessee – Underlease
felt great hesitation in differing from the late lamented ViceCovenant)
Chancellor, whose opinion on questions connected with the . . . . . . . V.-C. B. 63
Mortmain Act was entitled to so much respect, yet he had come WILTS AND BERKS CANAL NAVIGATION COMPANY v. SWINDON
to the conclusion that his decision must be reversed in this case, WATERWORKS COMPANY (Right to Water - Riparian Pro which really turned entirely on the construction of the words of prietor).
. . L. JJ. 60 the will. He thought that the residuary gift amounted to a No.9.-1874.
clear direction to marshal the assets in favour of the three The plaintiffs appealed. charities, and that there was nothing in the previous part of the | J. Pearson, Q.C., and C, M. Roupell, for the plaintiffs. will inconsistent with that direction. The legacy to the West Glasse, Q.C., and Bristowe, Q.C., for the defendants moreland School created no real difficulty, because the marshaling THEIR LORDSHIPS said that the plaintiffs had long ago would only extend to those legatees who had two funds to resort become riparian proprietors, and had acquired a right to use to, which was not the case with the Westmoreland School; that the water under their Act. The defendants wished to divert legacy would therefore be dealt with as in the ordinary cases of the water for the supply of the town of Swindon, which was not charitable legacies, but the other legacies, as well as the debts, a proper use by a riparian proprietor. It was true that the funeral expenses, and the costs of the suit, must be paid pri- only occasion when the defendants had actually cut off the marily out of the impure personalty.
water so as to injure the plaintiffs occurred some time ago, but THE LORDS JUSTICES concurred.
the defendants by their answer claimed the right to do so. This Solicitors: Batty & Whitehouse ; Thomas Johnston, for Harrison made it necessary for the Court to decide the question. There & Son, Kendal; W. Tatham & Son ; Scott & Son.
must therefore be an injunction to restrain the defendants from using the water so as to injure the plaintiffs, and the defendants must pay the costs of the suit, except those of the appeal.
Solicitors : T. White & Sons; Crowdy.
Navigable River— Obstruction-Injunction.
March 11. restraining the driving of piles in the bed of the river Stour.
In re UNITED Ports INSURANCE COMPANY. The defendant appealed.
Beck's CASE. Fischer, Q.C., and E. Beaumont, for the appellant.
Winding-up-Contributory. Roxburgh, Q.C., and E. P. C. Hanson, for the relators.
THEIR LORDSHIPS considered that the Court ought to prevent! This was an appeal from an order of the Vice-Chancellor any obstruction, however small; and dismissed the appeal with Bacon refusing to place Mr. Beck on the list of contributories
to the company: noted ante, p. 48. Solicitors: Nelson & Jones ; Prior, Bigg, & Co.
Eddis, Q.C., and Brooksbank, for the official liquidator.
Solicitors : Pulbrook ; Beck.
GAINSFORD v. Dunn.
March 4. of land at Teddington, and had begun to build thereon a very large house, and had built stables and outbuildings. He informed
Will— Power of Appointment—Gift of Legacies followed by Gift of Mr. Park that he was in difficulties, and allowed Mr. Park to take
Residue of Property subject to Power-Charge of Legacies on possession of the property, giving up the purchase. Higgs then
Property subject to Power. became a bankrupt, and his assignees after some time filed This was a special case. a bill against Park for specific performance and damages. Under a settlement dated the 31st of August, 1841, the trusPark at once submitted to a decree, with an inquiry as to tees of certain funds were directed in certain events (which damages.
happened) to hold the same in trust for T. Dunn, Mary Dunn, The Vice-Chancellor Bacon bad on adjourned summons Elizabeth' Gainsford, S. R. Dunn, and J. I. Stainton (the brother allowed a sum of 4501. as damages for a part of the stables which and sisters of Anne Dunn) or their respective issue, in such Park had pulled down, 201. for damage by neglect of the garden, parts, shares, or proportions as Anne Dunn should by will and had charged Park with an occupation rent.
appoint. Park appealed.
Apne Dunn made her will, dated the 20th of November, 1869, Lindley, Q.C., and Dauney, for the appellant.
which (so far as it disposed of any property) was as follows: Kay, Q.C., and Shebbeare, for the assignces.
“I give and bequeath to my brother T. Dunn, and to my sisters THEIR LORDSHIPS said that as to the stables no one ventured Elizabeth, the wife of R. J. Gainsford, Esq., and Jane I., the to say that they were fit for or advantageous to the place. Park wife of H. T. Stainton, Esq., the sum of 51. each. All the rest conceiving himself to be owner, had pulled them down, and the and residue of my property of whatever kind and wheresoever present owner, to whom the assignees had sold the place, had situate, and over which I have any power of appointment or pulled the rest down. No damage had been done, and therefore disposition, I give, devise, and bequeath unto and to the use of nothing could be allowed. As to the damage by neglect of the my sisters Mary and S. R. Dunn, their heirs, executors, adgarden and the occupation rent, the decree did not direct apy ministrators, and assigns, respectively, for their own absolute use such inquiries or deductions. The order of the Vice-Chancellor and benefit.” must be discharged.
One question was, whether the will was a good exercise of the Solicitors: H. F. & E. Chester ; W. Eley.
Southgate, Q.C., and Owen, for the plaintiffs, contended that
the power, being non-exclusive, was not well exercised. L. JJ.
Kenyon S. Parker, for defendants in the same interest. WILTS AND BERKS CANAL NAVIGATION COMPANY v. SWINDON
1. Roxburgh, Q.C., Ince, and Morshead, for the other defenWATERWORKS COMPANY.
THE MASTER OF THE ROLLs held that the legacies of 51, were Right to Water-Riparian Proprietor.
charged on the settled property in accordance with the principle The bill in this case was filed to restrain the defendants from laid down in Greville v. Browne (7 H. L. C. 689), and that the obstructing the flow of water from a certain spring, and was appointment was good. dismissed by the Vice-Chancellor Malins, as noted Weekly Notes, Solicitors: Dobinson d Geare; Tanqueray-Willaume & Han. 1873, p. 222.
March 7. I thereto, the respective amounts of the capital stock of the Securitius in Court-Carrying over to Separate Account-Aliquot mentioned in the second and third columns of the schedule
Scinde, Punjaub, and Delhi Railway Company, and of cash Parts of Fund.
thereto, set opposite such respective accounts, and making This was a petition under the Trustee Relief Act and tho together 43901. like stock and 1531. cash. Trustee Relief Extension Act by two out of the three trustees Solicitor: J. Elliott Fox. of the will of John Perry, who died in 1872. The will authorized the investment of the testator's estate in (amongst other securities) the stock or shares of any railway company in India inCorporated by Act of Parliament or Royal Charter; and directed M. R.
STEED v. PREECE.
March 7. certain shares of his estate to be appropriated for his six daughters
Infant's Real Estate-Sale by Court-Conversion. therein named, and each such share to be held upon trust for the
By an indenture dated the 29th of May, 1857, certain real daughter, for her separate use, without power of anticipation,
estate was vested in trustees upon trust for John Preece and during her life, and after her death upon trusts for the benefit
Edward Preece (both then infants) as tenants in common in tail of her children.
with cross remainders between them. The petition'stated that the testator's estate had been got in, and the daughters' shares ascertained, and that the aggregate
The present suit was instituted in 1868 by the trustees of the
indenture against John Preece (who had attained 2l) and Edward amount of such shares was represented by 43901. stock of the Scinde, Papjaub, and Delhi Railway Company, standing in the
Preece seeking for administration of the trusts, and also that, if DACES of the three trustees, and of 153!. cash in their hands;
The for the benefit of the defendants, a partition might be decreed of that the third trustee was permanently resident abroad, and
By the decree made on the 19th of June, 1868, the Master of that the petitioners were desirous of transferring and paying
od paying the Rolls, being of opinion that it would be for the benefit of the into Court upon the usual affidavit (which had already been
infant Edward Preece that the property should be sold, and John made by the petitioners), under the provisions of the Trustee
Preece consenting to a sale, ordered the property to be sold, and Relief Act the said suins of stock and cash; and that the same
the costs of the infant were declared to be a charge on his share. when su transferred and paid might be carried over in the aliquot
The property was sold accordingly, and under an order made parts and to the separate accounts mentioned in the affidavit;
on the 19th of December, 1868, one moiety of the proceeds was bat that as the concurrence of the third trustee could not be
paid to John Preece, and the other moiety was carried to “the procured the proposed transfer and payment could not be effected
account of the infant defendant, Edward Preece.” without the assistance of the Court, and it prayed that, pursuant
Edward Preece died in January, 1874, without having attained to the provisions of the Trustee Relief Extension Act, the peti
the age of 21, and John Preece now petitioned for payment of tioners, as the major part of the trustees of the will of John
the fund to the separate account to himself as tenant in tail in Perry, might be ordered to transfer the stock and pay the cash into Court to the credit of Re Trusts of the Will of John Perry,
remainder under the deed of May, 1857.
| Edward Preece was illegitimate, and the petition was served deceased, without the concurrence of the third trustee, and that
| on the Attorney-General. on such transfer and payment the stock and cash might be
| Blackmore, for the petition, contended that the devolution of carried over in the proportions and to the separate accounts the
parato accounts the property was not changed by the fact of its being sold. mentioned in the affidavit.
Hemming, for the Attorney-General. An order was made according to the prayer of the petition :
| THE MASTER OF THE ROLLS held that after the decree and but upon the order coming to be drawn up, it was pointed out
order of December, 1868, to which the petitioner was party, the that difficulties were likely to arise in working it out:
petitioner could not dispute that the estate had been validly and First; The stock and cash had been apportioned by the trus
properly converted into personalty; and further expressed the te s according to the shares of the parties, and without regard
opinion that wherever property is rightfully converted by the tJ the fact that the company's regulations did not permit of
Or Court or a trustee, all the consequences of conversion must division of the stock below 11. Thus one of the shares to be
8 to be follow: and he made a declaration that the fund was payable to carried over to a separate account was to consist of 8141. 10s.111.
the legal personal representative of Edward Preece. stok, and 28. 78. 91. cash.
Solicitor: Fortune; Raven & Bradley. Secondly; The Bank of England would hold for the Chancery Paymaster only certificates for 43901. Stock, and not as there pnght to be separate certificates for the exact amounts of stock married to the separate accounts. In order to avoid these difficulties it was suggested by the
COTTERELL V, STRATTON.
Feb. 28. Registrar that the stock and cash should be re-apportioned so as to Redemption Suit - Taxation of Costs-Mortgage under 10001.avoid division of the stock below 11. (for example, the above men
Lower Scale of Charges. tioned share would in this way be represented by 8151. stock and This was an adjourned summons upon the application of the 271. 18. 81. cash); and that instead of transferring and paying defendants that the taxing master might be ordered to review into Court one sum of stock and one sum of cash, to be after his taxation of costs in the cause, and that he might be directed
ards carried over as mentioned in the affidavit, the petitioners to tax the defendants' costs upon the higher scale of charges shogid be ordered to transfer and pay the six several apportioned instead of the lower scale. mounts of stock and cash to six separate accounts.
The bill was filed by the plaintiff for the redemption of a Begg, for the petitioners, mentioned the matter to the Court. mortgage made in November, 1858, to the Lambeth Benefit THE MASTER OF THE ROLLS, after fully stating the diffi- Building Society, under which the society advanced to the plainalties which had arisen, sanctioned the suggestion made by the titf 9001. upon security of certain leasehold houses. The plainegistrar; and the petition having been amended accordingly, tiff had subscribed for fifteen shares of 601, each in the society od a fresh affidavit having been filed by the trustees, the order amounting to 9001., under an arrangement that he should repay as made.
the amount in ten years by monthly instalments of 101. 12s. bd., The order was drawn up in the following form :
or 1271. 10s, annually, which in ten years would amount to Order the petitioners without the concurrence of [the 12751., and the mortgage was made for securing that sum and hird trustee] to transfer and pay into Court to the credit of such other payments in respect of the fifteen shares as were proke Trusts of Will of John Perry,deceased, to each of the six vided for by the rules of the society. The plaintiff duly paid leveral accounts mentioned in the first column of the schedule his instalments up to February, 1861, but afterwards failed in bis payments, and the society took possession of the property and tion in the bill of any special cause of injury to the plaintiff by received the rents. In December, 1864, the plaintiff was desirous reason of the publication. of redeeming the mortgage, but not being able to obtain a satis- Cotton, Q.C., and Speed, for the plaintiff. factory account of the amount due, he filed this bill for redemp- Glasse, Q.C., and Phear, for the defendant. tion. Upon taking the accounts it turned out that the amount THE VICE-CHANCELLOR, though he considered that on the due from the plaintiff was 5171., and a decree having been made evidence as it stood it was clear that the defendant bad made the master taxed the defendants' costs to be paid by the plain- an improper use of information received when the servant of the tiff on the lower scale instead of the higher scale of charges. The plaintiff, held that since there was no definite form of injury dcfendants now sought to have the taxation reviewed.
alleged, while on the other hand the loss by stopping the pubHugh Williams, in support of the summons, referred to the lication of the book was certain, and the injunction was the sole rule “ that in all suits for redemption in which the mortgage subject matter of the suit, the case was not one for making an whereon the suit is founded shall be under the amount or value order on an interlocutory application. of 10001.” the lower scale of charges should be applicable, and Solicitors: Baxters & Co.; Prior, Bigg, & Co. submitted that this was a mortgage to secure 12751., and that the suit involved accounts of rents and other sims far exceeding 10001., and therefore the case did not come within the van
LYLE v, SCARTH.
March 7. rule. Bristowe, Q.C., and T. A. Roberts, for the plaintiff.
Mortgagee—Redemption-Costs of Suit— Tender. THE VICE-CHANCELLOR said this was a simple redemption suit, This was a summons taken out for the purpose of determining in wbich there was nothing to be done but to ascertain the sum whether the mortgagor or mortgagee was to pay the costs of a due from the plaintiff. That sum amounted at the time of filing redemption suit. the bill to 5171. It therefore came within the rule as to redemp John Lyle and Joseph Lyle were successive tenants for life of tion suits where the mortgage whereon the suit was founded an estate, and by a deed of the 15th of April, 1864, they mortshould be under 10001. The master was right in taking the gaged their life estates for 65001. to L. R. Hamilton, the same lower scale of charges, and the summons must be dismissed with being further secured by certain policies of assurance. costs.
By a deed of the 2nd of March, 1865, a second mortgage of Solicitors : Dinn ; Wyatt, Hoskins, & Hooker.
the same property was effected to secure a sum of 4001. advanced by G. T. Woodrooffe.
On the 27th of August, 1866, a suit was instituted by John V.-C. M.
Lyle against Joseph Lyle for the purpose of taking accounts BATEMAN v. REVY.
relating to transactions between them; and by a mortgage of Injunction-Restraint on Publications-Information obtained as the 28th of June, 1870, made in pursuance of the decree in Servant.
the suit, Joseph Lyle's life estate in the same property was This was a motion for an injunction to restrain the publica- charged with a further sum of 29031. 12s. 44. in favour of John tion by the defendant of a book called “Hydraulics of Great Lyle.
ny book containing the results of observations made John Lyle died on the 7th of August, 1872, having appointed on the rivers La Plata, Parana, and Uruguay, by the defendant, the plaintiff his executrix, and on the allegations of the bill there or the plaintiff and defendant together, while the defendant was due to her on the security 54351. 4s. 80. was employed as the assistant engineer of the plaintiff.
· L. R. Hamilton had recently died, having devised estates In the year 1867 the defendant began to be permanently em-vested in him as mortgagee, to the defendants Scarth and Woodployed by the plaintiff, who was an eminent civil engineer, as a rooffe, the latter being also the second mortgagee. The plaintiff mechanical draftsman and assistant engineer, and in October, gave a notice to pay off Hamilton's mortgage, which expired in 1870, the plaintiff, having entered into a contract with the March, 1873. Argentine Republic for the construction of a harbour and other On the 17th of June, 1873, Scarth and Woodrooffe commenced works at Buenos Ayres, by which he bound himself to send out actions of ejectment to recover possession of the property, in a first class assistant engineer to that place to take preliminary order to put themselves in the same position as against Joseph observations, selected the defendant for that office. The latter Lyle as Hamilton was against John Lyle. accordingly left England for Buenos Ayres in October, 1870, and on the 15th of July, 1873, the plaintiff wrote to Scarth and the plaintiff followed a month later.
Woodrooffe's solicitor with a view to appointing an interview to A series of observations were carried out, partly by the plain- make a tender of the sum due on Hamilton's and Woodrooffe's tiff and defendant together, and partly by the defendant alone mortgages but no arrangement was effected. On the 23rd of on behalf of the plaintiff,
| July the plaintiff and her solicitor endeavoured to see Scarth for It appeared that under any view of the case the defendant the purpose of making a tender. He declined to see them, but continued in the employment of the plaintiff till February, 1871, they left a notice of their intention to take proceedings against but disputes subsequently arose between them, partly from the him, and to seek to throw the costs upon the mortgagee, and fact that the defendant, while still acting as assistant engineer to on the following day they called at the office of the mortgageo's the plaintiff, took contracts in his own dame with the Argentine solicitor and tendered 69101., as being the amount due on the Government for other works, which the plaintiff alleged were mortgage of the 15th of April, 1864. He declined to take the part of the general scheme which he had undertaken to prepare, sum so tendered at once, stating that he required some notice but were not those in respect of which the observations above to enable him to ascertain what amount was due. But the next mentioned had been taken.
| day he proposed that the same amount should be paid to the The defendant some time after leaving the service of the executor's account at a bank. plaintiff published the book in question. His name alone ap- Some further correspondence took place, and the plaintiff's peared on the title page, and he described the above river obser- solicitor on the 29th of July again attended with the money, vations in such a manner as to lead to the inference that he but did not produce it as the parties could not arrange whether alone was engaged in them and had received his instructions the securities were to be transferred, and the mortgagee's solicitor direct from the Argentine Government. The plaintiff's name did declined to give up the deeds without an arrangement. not appear anywhere in the book.
| The actions would have been tried on the 2nd of August, but The plaintiff contended that the results of these observations on the 30th of July the bill was filed and the actions were were his property, and that the defendant had no right to pub- stayed. lish them without his sanction. There was however no allega-! A decree was taken for redemption, reserving the costs, and
in taking the accounts it appeared that the sum tendered was v.-C. B.
BULLBY v. BULLEY.
Mar. 4. more than sufficient. Glasse, Q.C., and Hastings, for the plaintiff.
Vendor and Purchaser-Valuable Consideration without Notice J. Pearson, Q.C., and Phear, for the defendants.
Legal Estate -Conveyance-General Words-Mistaken RightsTHE VICE-CHANCELLOR considered it clear on the correspond-! Admissions. ence that on the 29th of July the plaintiff's solicitor would have By a disentailing deed, dated the 22nd of October, 1841, the paid the money previously offered if the parties had been pre- freehold part of an estate called Ashman's, at Woodham Walter, pared to band over the deeds, and held that the mortgagees had Essex, was conveyed by Richard Bulley, then tenant in tail, for disentitled themselves to the costs of the redemption suit, and the purpose of barring the estate tail; but the deed was not inthat they must pay the plaintiff's costs out of pocket.
rolled within six months. Richard Bulley died in September, Solicitors: John Taylor ; Plaskilt.
1852, having purported to devise by will the property in trust for his four children, William, John, Ruth Naomi Potter, and
Jane Bulley, and a grandchild, Emily Elizabeth Bulley, who was V.-C. B. EDWARDS v. WARDEN.
his heir at law, and a minor, in equal shares. Emily E. Bulley
came of age on the 6th of August, 1867. Shortly before this Bombay Civil Fund-Claim of Widow and Child of Member
date, her uncle John corresponded with her as to the sale of her Performance of Condition rendered impossible-Construction-1supposed fifth share, and by a deed, dated the 19th of August, Acquiescence- Laches–Jurisdiction.
1867, in consideration of 2501., she, without taking independent The plaintiff, Mrs. Edwards, born in 1821, was the only child advice, conveyed her fifth "and all other the estates, parts, of Thomas Flower, civil servant of the East India Company, who shares, and interests of her the said E. E. Bulley, of and in " tho in 1804 became, upon the formation in that year of the Bombay freehold to Joba Bulley. On the 20th of August, 1867, John Civil Fund, a member of that institution. In May, 1825, new Bulley mortgaged “the one-fifth part or share and premises" to rules were made. On the 8th of September, 1825 a set of resolu- which he had become entitled under the deed of the day before tions called Farish's resolutions were proposed, and on the 8th to White, to secure repayment of 2501, and interest, and on of May, 1826, were carried, but by another resolution of the the 26th of February, 1869, he mortgaged the same property, same date their operation was suspended, and they did not in and all other his freehold lands, to the South Essex Investfact come into operation until tho 5th of January, 1830. By ment Company Limited, to secure 1501, and interest. He these resolutions, in order to entitle a member to the benefit of made a further charge to the company on the 23rd of December, them on behalf of his widow and children, after he had accepted 1869, to secure a sum amounting with the former to 6201., and an annuity, it was rendered necessary that he should subscribe on the 1st of May, 1871, made an additional further charge for 1501. to the charitable fund 11. per cent. on his annuity.
On the 1st of June, 1871, the company got in White's mortgago On the 27th of December, 1829, Flower left India on furlough. of the 20th of August, 1867. After this, in the course of the wheren pon he ceased to be liable to subscribe to the fund; and same year, it was discovered that the disentailing deed of October, on the 1st of May, 1830, he retired from the service. He died 1841, had not been jorolled. John Bulley then proposed to his on ihe 11th of February, 1834. On the 23rd of December, 1863, niece to execute a disen tailing deed, and sent her the engrossMrs. Flower, the widow, died, and Mrs. Edwards, who had mar- ment of a deed to be executed by her, to which deed both be ried in 1845, became her legal personal representative.
and the company were mode parties, and which contained reMrs. Edwards and her husband filed the bill in July, 1867, citals stating the true title. She then made inquiries, and against the trustees of the fund and the Secretary of State for refusing to execute, was met by the statement that all her ludia, in whom the fund was now vested; Mrs. Edward's claim. estate and interest bad passed under the general words of the ing, as executrix, arrears of an annuity of 3001., with interest conveyance of the 19th of August, 1867. during the widowhood of Mrs. Flower; and in her own right, The bill was then filed by her against Jobn Bulley and the arrears of an apnuity of 1001, to her own age of 19, and then of company, to have the deed of the 19th of Angust, 1867, set a sum of 5001, on her completing her 18th year, with interest. aside and to have her title as tenant in tail to the freeholds estab
The defences were that owing to the non-payment by Mr. / lished. Flower in his lifetime of the 1l. per cent. required by Farish's Kay, Q.C., and E. Leigh Pemberton, for the bill. resolutions, the rights of his widow and child were lost; also that Eyre, for John Bulley. Mrs. Edwards was not entitled under the rules, inasmuch as she Swanston, Q.C., and Everitt, for the mortgagee. possessed other property; and further, lapse of time (this being, Kay, in reply. it was contended, not an express trust), laches, and want of THE VICE-CHANCELLOR said that if there had been no other jurisdiction.
evidence in the case than that afforded by the admissions conKay, Q.C., Miller, Q.C., and J. Beaumont, for the plaintiffs. tained in the engrossment sent by the defendant John Bulley to Cotton, Q.C., Kekeucich, and Hornell, for the trustees.
the plaintiff, the defendants would have been bound by thoso Macnaghten, for the Secretary of State.
admissions, and the plaintiff would have established her right to Kay, in reply.
recover the freehold in ejectment. But the deed of the 19th of THE VICE-CHANCELLOR Over-ruled the defences of lapse of time, August, 1867, though it could have no effect on the plaintiff's acquiescence, and want of jurisdiction (which last had not been estate tail, did, in His Honour's opinion, pass all such estate as argued); and on the first point held that as the society them- the plaintiff could grant and convey, and its operation was to selves by suspending the operation of Farish's resolutions bad pass a legal estate in the freeholds to John Bulley. The same taken away the hand which was authorized to receive Flower's legal estate was afterwards conveyed to the company, wbo thus subscription, until the 1st of May, 1830, wben he retired, had became purchasers for value without notice, and in possession of put it out of Flower's power to comply with the terms of the the legal estate. The plaintiff's claim must therefore fail, and resolations; hence that the right of his widow had not been lost. the bill be dismissed, but without costs. Upon the second point His Honour thought that under the Solicitors: Woodbridge & Sons; Ernest Digby, for Digby, Son, & rules, Mrs. Edwards's claim failed by reason of her having been Evans, Maldon. otherwise provided for; and made a decree substantially as prayed by the former part of the prayer, with interest on the arrears of the annuity at 5 per cent.; the costs of all parties to /y.-C. B. WILLIAMSON v. WILLIAMBON. March 6. come ont of the fund. Solicitors: W. A. Day; Freshfields & Williams; Lawford &
Lessor and Lessee-Underlease-Covenant. Waterhouse.
Adjourned summons raising a question upon the form of a