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tiff claimed to be entitled to half of any profit accruing to dants could take the soil under the surface without proceeding Doulton out of the transactions connected with the Mineral Hills to give notice under the Act, and compensato the plaintiff in the Silver Mines Company, but the amount of his interest was dis- manner thereby provided. puted, and after a suit had been instituted, was referred to arbi- ! An injunction had been granted, and was afterwards dissolved tration, and by an award of the 22nd of July, 1871, the plaintiff on the terms of the defendants paying 1001, into Court, without was adjudged to be entitled to receive from Doulton 17001. com- prejudice to any question. . pensation, and Doulton was ordered to pay the plaintiff that The defences were, that the subsoil was vested not in tho amount out of the first moneys after he should have received the plaintiff, but in some public body, either the Board of Works or sum of 40001. from any source in connection with the Mineral the vestry, and that the company were entitled to take the same Hills enterprise.
without making compensation to the plaintiff. Notice of this award was given to Grant by the plaintiff's Jackson, Q.C., and Bailey, for the plaintiff. solicitor.
Fooks, Q.C., Davey, and Fooks, for the defendants. By a deed of the 26th of October, 1871, between Doulton and THE VICE-CHANCELLOR observed that the case involved no Grant, after reciting certain matters in dispute as to the Mineral principle of public importance. The company bad simply Hills Company, and that 30001, was due to Grant from Doulton neglected to do that which it was their plain duty to have done. in respect thereof, and that Doulton claimed various sums from That the subsoil belonged to the plaintiff was not seriously disGrant, and that it was agreed that Grant should pay Doulton puted; he was entitled to have compensation in the words of the 50001., and give him 1000 shares in the Mineral Hills Company, 68th section of the Lands Clauses Act for such damages as he the parties mutually released each other, and Grant paid Doulton had sustained; and inasmuch as the company had held him at the 50001.
Jarm's length and refused to answer his letter, they must pay the Tho Mineral Hills Company became a failure, and Doulton costs to the hearing. having died insolvent, the plaintiff now contended that the award | Solicitors: Russell, Son, & Scott; Wilson, Bristows, il Carpmael. was equivalent to an equitable assignment of the moneys payable to Doulton in respect of the Mineral Hills Company transactions, and that notice of the assignment having been given to Grant, he was bound out of the 50001. payable under the release to pay V.-C. B.
PUXLEY v, PUXLEY,
March 24. the 17004, found due to the plaintiff by the award, and that
Injunction-Jurisdiction, having paid it to Doulton he must pay it over again to the Eddis, Q.C., and Loudon, moved on behalf of a purchaser, plaintiff.
under an order of the Court, to restrain an action at law to reCotton, Q.C., and W. P. Beale, for the plaintiff.
cover the interest upon the purchase-money. Glasse, Q.C., and Speed, for Grant, contended that the award | The property having been sold under an order of the Court. could not be considered to amount to an equitable assignment. I the vendor was informed that the purchase-money. 23.0002..
Miggins, Q.C., and Grosvenor Woods, for the California Mining with interest up to the 5th of April, 1873, would be paid by a Company.
cheque of the Paymaster-General, and that the cheque was Warmington, for Blyth, a formal defendant.
made payable to the vendor personally. Some difficulty having THE VICE-CHANCELLOR beld that the submission to the award
been raised as to the receipt of the money, it was not paid until constituted an agreement to pay out of a specific fund so much
the 24th of April. The vendor took out a summons to obtain as should be found due under the award, and that was oquiva
payment of interest on the purchase-money from the 5th to the leut to an equitable assignment, and the award settled the 24th of April (471.) The summons having been dismissed the amount which ought to have been paid by Grant, under the
vendor sued for the amount at law, and the purchaser now release, to the plaintiff instead of to Doulton.
moved, without bill filed, to restrain such action. Solicitors : ), Vernon Musgrave; West & King.
Kay, Q.C., and Romer, on behalf of the vendor, opposed the motion.
THE VICE-CHANCELLOR held that the proceedings of the V.-C. B.
vendor were wholly unjustifiable, and granted the injunction, SOUca v. EAST LONDON RAILWAY COMPANY.
directing the vendor to pay all the costs. Compiny--Lundowner-Subsoil — Notice to treat-Compensation-1 Solicitors : Rooper ; Tacon.
Lands Clauses Act, ss. 18, 68.
March 25. between them, called Victoria Place, opening at one end from Victoria Street, and at the other end closed. Defendants, the com
Sale of Commission-Mortgagee— Notice-Priority. pany, gave the plaintiff notice that they required to purchase The plaintiff was a first mortgagee in point of date of the six of the houses nearest Victoria Street; and upon this notice proceeds of the sale of a commission in the army. These prothey entered, and were in possession. Defendants had not given ceeds consisted of two sums, 2501. payable by the officer (an notice that they required to purchase any part of Victoria Place, ensign) promoted, and 4501. payable when (as in this case) tho and the plaintiff called upon the defendants to undertake befure ensigncy was absorbed, out of a fund called the Reserve Fund, 1.30 on Wednesday, the 9th of October, 1872, not to enter into kept by the defendants, Cox & Co., the army agents, making possession of any part of the passage; but the defendants took together the full regulation price of 7001. The retirement of the no notice of the application,
mortgagor, a Mr. Clarke, was gazetted on the 9th of May, 1871. The bill was filed on the 10th of October, 1872, praying for an On the 10th of May the plaintiff and several other mortgagees injunction to restrain the defendants from entering upon or taking gave Cox & Co. notice of their incumbrances; but it was not such part of Victoria Place as lay between the premises already until the 13th of May that an order came from the Horse required to be taken, or any portion of the same, until defen- Guards directing Cox & Co. to transfer the 4501, to the credit dants had given due notice under the Lands Clauses Act of of Clarke; and the first incumbrancer who gave notice of his their reqniring to purchase such part, or such portion of such claim after the 12th of May was not the plaintiff, but another part, as the case might be, and also such other adjoining pro- mortgagee, named Davis. perty of the plaintiff as they might be bound to purchase. The The question was, as to the 4501, only, whether Davis bad defendants said they did not intend to interfere with the pas- obtained priority over the plaintiff. sage, or the rights of the plaintiff or the public to the footways Eddis, Q.C., and Bradford, for the plaintiff.! in Victoria Place, and the sole question was whether the defen- Chitty, Q.C., and Watson, for Cox & Co.
Swanston, Q.C., and Kisch, for Davis, relied on the decision in giving certain pecuniary legacies, gave all the residue of his Addison v. Cox (Law Rep. 8 Ch. 76).
estate to his son E. S. Bigg and his daughters Sarah A. and Dixon, and Romer, for other incumbrancers.
Emma F. Bigg as tenants in common. He also appointed them Eddis, in reply, argued that Addison v. Cox was distinguish - executor and executrix. He died on the 23rd of July, 1823, and able.
his will was proved on the 20th of November, 1823, by E. S. THE VICE-CHANCELLOR thought that the case was decided by Bigg and Sarah A. Bigg. E. S. Bigg mainly acted in the trusts, Addison v. Cox. Until the order came from the Horse Guards and paid his sisters the income of their shares, but made no paythere was no fund representing this 4501. which any notice ment of capital. Emma F. Bigg died intestate on the 9th of May, could affect; there was no appropriation. Davis therefore, if he 1844, leaving the plaintiff her next of kin. Sarah A. Bigg died should establish the validity of his securities, would be entitled on the 18th of July, 1865, and E. S. Bigg on the 7th of Septo priority.
tember, 1869, having appointed the defendant, L. M. Bigg, his Solicitors: Peard; Fladgate, Clarke, & Smith ; E. J. Sydney & executrix. On the 25th of January, 1873, administration of the Son ; Dyke.
estate of Emma F. Bigg was granted to the plaintiff, who on the
31st of January, 1873, filed this bill for the administration of the V.-C. B.
March 26. estate of Edward Bigg, the original testator, against Lucy M. CORPORATION OF HUDDERSFIELD v. JACOMB.
Bigg the executrix of E. S. Bigg, and S. H. Bigg the heir-at-law Partition-31 & 32 Vict. c. 40-Minority desirous of Sale- | of E. S. Bigg. Partition ordered.
The answer of the defendants admitted that certain leaseholds Bill for partition by the plaintiffs, who were entitled to six
is which had been given by the will of Edward Bigg remained unelevenths of a farm of about 13 acres, situate on high land about S
#sold. The answer pleaded the Statute of Limitations. live or six miles from Huddersfield. Under powers contained in
Dickinson, Q.C., and Bunting, for the plaintiff. the Huddersfield Water Act, 1859, the plaintiffs had taken a strip
Morgan, Q.C., and Marcy, for the defendants. of land, about an acre in extent, passing through the farm.
THE VICE-CHANCELLOR said this was an express trust within The object of the plaintiffs was to huve their six elevenths
the 25th section of the Act 3 & 4 Wm. 4, c. 27, and was not
barred by the statute. Moreover, it appeared that a part of the allotted to them specifically, for the purposes of their under
property still remained in specie. The plaintiff was entitled to taking. They had powers to take adjoining lands. The defendant who was entitled to four elevenths, and who
a decree for the administration of the estate of Edward Bigg. claimed to be entitled to the remaining eleventh under a
Solicitors for the plaintiff: Singleton & Tattershall. conveyance, which was in dispute, from the other defendant,
Solicitors for the defendants: Prior, Bigg, Church, & Adams. Schofield, asked for a sale; alleging that the farm could not conveniently be partitioned; that the plaintiffs (who had already taken possession) had already cut off the water supply, and had
March 24. cut off nearly the whole of the land from access to the farm buildings, and that there were mines of coal, fireclay, and other
Will-Estate-Devise in Fee. minerals under the soil.
James Launchbury, by his will, dated the 13th of March, 1800, Kay, Q.C.. Bagshawe, Q.C., and F. G. Bagshawe, for the plain after directing certain parts of his property to be sold, gave to tiffs : - The onus is on the minority of shareholders to shew the his brother William his land and estate at Ramsden, Oxford, propriety of a sale, where the majority ask for a partition.
for life, and if he should die before his wife Martha, he gave his Jackson, Q.C., and William Barber, for Jacomb.
brother's widow 201, a year for life out of his landed estate above Chitty, Q.C., and Caldecott, for Schofield, supported the plain- mentioned to be paid by the person next in possession; and after
his brother's death he left his houses and estates as aforesaid to THE VICE-CHANCELLOR said that the case turned entirely his nephew for life, and after his death to his sister's eldest son upon the language of the Act of Parliament. Before the statute Edward for life, and after his nephew Edward's death then to Co-owners had a clear right to a partition. The statute did not his brother William for life, and after their deaths as aforesaid, take away that right; but it gave power to the Court, if it should then he gave all the said houses, land, and estate unto his five appear that by reason of the nature of the property, or the nieces. The testator directed a small property to be purchased number of parties interested, or other circumstances, a sale and added to his other adjoining property, to be held in rotation would bo more beneficial for the parties interested, to direct a during the several lives as heretofore he had left and beqeathed sale. That meant more beneficial for all” the parties interested. his other lands. The testator died on the 2nd of April, 1802, In this instance, tbe plaintiffs were a public body; they had leaving all his five nieces him surviving. taken part of the property under their compulsory powers, of A question was raised whether the devise to the five nieces the rest they were owners in undivided shares, and found it was for life or in fee, and the plaintiff, who represented one of necessary to become the owners absolutely-and this, for public nieces, filed this bill praying for a declaration of the rights of the purposes. The public had to be considered in the matter; and parties. in His Honour's opinion, the defendant had not made out that a Greene, Q.C., and Ward, for the plaintiff, contended that the sale would be more beneficial than a partition for all the parties word “estate” conveyed the whole interest of the testator. interested. As to the mines, the evidence failed to show that H. Fawcett, Davenport, Lindley, Q.C., Roupell, Dunn, J. Cutler, they were of workable value.
Hardy, Q.C., Grosvenor Woods, and Locock Webb, appeared for There would be an order for partition ; with an inquiry as to the different parties. the number of shares and the rights of the parties, with a direc
THE VICE-CHANCELLOR said that the word “estate" must be tion for a division in chambers according to those rights. No taken to mean the whole interest of the testator, unless the context costs up to the hearing.
controlled the construction. Here the testator expressly, as to Solicitors: Van Sandau & Cumming, for J. Batley, Hudders the preceding gift, cut down the gift to a life estate in express field; Williamson, Hill, & Co.; Shum, Crossman, & Crossman, for terms. The inference therefore was that when he did not so J. Sykes & Son, Huddersfield.
qualify the word in the last gift, that he intended the word to be used in the larger sense. He must therefore hold that the whole
interest of the testator passed to the nieces, and there must be V.-C. H. MUTLow v. Bigg.
March 1 a declaration to that effect.
Solicitor for the plaintiff: Biller,
Solicitors for the defendants : Boyle; Clinch & Alderton; PhilEdward (Bigg, by his will, dated the 6th of January, 1820, after pot; Davenport; Purkis & Perry; White & Sons.
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 interest noted herein will be reported in full in THE LAW REPORTS,
House of Lords.
House of Lords.
. . . . 81
Equity. ANGERSTEIN, Ex parte. In re ANGERSTEIN (Bankruptcy-Costs of Trustee) . . . . . .
· L. JJ. 82 BLAXALL V. ALLAN (Bankrupt-Order of Discharge-Order and
Disposition Clause-Purchase by Bankrupt) . M. R. 83 Brand v. Blow (Injunction—Payment of Money into Court-New
Practice) . . . . . . . V.-C. H. 87 CLIVE's ESTATE, In re (Fund in Court-Apportionment Act, 1870
- Instrument coming into operation before the passing of the
Act) . . . . . . . . Y.-C. M. 84 CREDLAND v. POTTER (Mortgage-Registration-Subsequent Charge
--Priority) . . . . . . . V.-C. B. 86 ELDER v. New ZEALAND LAND IMPROVEMENT COMPANY (Company
- Insufficient Capital-Bill for Return of Deposits— Demurrer
ocerruled) . . . . . . . V.-C. M. 85 HARTLEPOOL COLLIERIES COMPANY v. Moon ( Production of Docu
ments-Privilege--Letter from Defendant's Solicitors to her
Agent) . . . . . . . . L. JJ. 82 HOPKINS, Ex parte. * In re HART (Bankruptcy-Liquidation by
Arrangement-Removing Trustee and Committee of Inspec-
1870, rr. 305, 307) . . . . . . L. JJ. 82 JERVIS v. WOLFERSTAN (Trustee -Indemnity-Payment by Executor
-Refunding). . . . . . . M. R. 83 LYLE v. SCARTH (Mortgagee - Redemption-Costs of Suit—Tender)
L. JJ. 82 MANCHESTER AND LIVERPOOL DISTRICT BANKING COMPANY, E.
parte. In re LITTLER (Composition-Creditor holding col
lateral Security-Right to retain Security). . Bnecy. 87 ORIENTAL STEAM COMPANY, In re (Judgment Creditor-Winding
up-English Company-Attachment on Goods out of the Juris.
diction). . . . . . . . IV. C. M. 84 PAGET . EDE (Mortgage— Foreclosure--Lands out of Jurisdiction)
V.-C. B. 85 PAYNE v. EvENs (Trustee and Cestui que Trust-Bill for Account
--Lapse of Time-Negligence in omitting to keep Accounts
Costs) . . . . . . . . V.-C. B. 86 PERRING v. TRAIL (Mortmain-Legacy charged on Land-Charity
--Private Act of Parliament). . · . V.-C. M. 84 POTTER U, DUFFIELD (Sale of Real Estate ---Memorandum of Con
tract-Name of Vendor-Statute of Frauds) . M. R. 83 POWELL 1. RawlE (Will--Legacy_Forfeiture if Legacy not
" claimed” within three Months) . . . V.-C. B. 86 PUTMAN, Ex parte. In re CRAWFORD (Fraudulent Preference
" Payee in good faith and for valuable consideration”-The
Bankruptcy Act, 1869, s. 92) . . . . Bnkcy. 87 Rasch v. Dowson (Solicitor's Lien on Documents-Equitable De.
posit-Evidence) . . . . . . L. JJ. 81 RICHARDS v. DELBRIDGE (Imperfect Voluntary Gift--Intended Transfer of Property-Declaration of Trusts) . M. R. 82
. . .
. . Ex. 88 MACDONALD v. Law UNION INSURANCE COMPANY (Policy of Life
Insurance-Proviso avoiding Policy if the Declaration on
. 2. B. 88 SMITi v. SMITH (Execution-Reasonable Time). . . Ex. 88
April 20. NORTH EASTERN RAILWAY COMPANY v, R. W. WANLESS.
Railway– Negligence. This was a proceeding in error against a judgment of the Court of Exchequer Chamber, which had affirmed a previous judgment of the Court of Queen's Bench. The action was brought to recover damages for a personal injury alleged to have been occasioned to the young man Wanless through the negligence of the company's servants. There is a branch of the North Eastern Railway which runs from Pensher to Sunderland. At the east end of the Hylton station on that branch there is a public highway, which crosses the railway on the level. There is a gate on each side for the passage of carriages, and two smaller swing gates for foot passengers. There is a gate keeper's box on one side of the line. On the 27th April, 1868, the plaintiff and three other boys were coming from the village of Hylton on the north side of the railway, intending to cross over the line by the level crossing. A train of forty-eight empty coal trucks was proceeding along the up or south line of rails from Sanderland to Pensher. The boys saw this train and waited till it had passed, when they began to cross. At that moment another train of loaded coal trucks was coming in the opposite direction, namely, from Pensher to Sunderland, and the plaintiff, advancing to cross the line, was struck by it, knocked down, and injured. There was, as usual, contradictory evidence, the company's witnesses asserting that if the boy had looked he might nave seen the approaching train; the plaintiff's witnesses saying that there was a projecting screen on the line which would intercept the view of a coming train. The jury found for the plaintiff, damages 1001. Leave was reserved to the company to move to enter a verdict or a nonsuit if the Court should be of opinion that there was no evidence of negligence on the part of the company's servants, or for a new trial as on a verdict against the weight of evidence. A rule was accordingly obtained, but was discharged, and the Exchequer Chamber upheld the decision of the Court of Queen's Bench (Law Rep. 6 Q. B. 481). The case was then brought up to this House.
Mr. Manisty, Q.C., and Mr. Kemplay, Q.C., appeared for the company.
Mr. Charles Russell, Q.C., Mr. R. G. Williams, Q.C., and Mr. W. Lewers, who appeared for the defendant in error, were not called on.
THE LORDS affirmed the judgment.
April 16. Solicitor's Lien on Documents - Equitable Deposit — Evidence.
This was a motion by the testator's creditors by way of appeal from a decision of Vice-Chancellor Malins (ante, p. 34).
Simmonds, for the appellants.
THEIR LORDSHIPS said that a claim against the estate of a THE LORD JUSTICE MELLISH said that the reason for ordering deceased person which was supported by no evidence but the the trustees to pay costs was, that applications of this kind to claimant's own unsupported evidence of conversations between the Court of Bankruptcy were substitutes for actions at law. In himself and the testator, could not be allowed. That moreover, an action at law a trustee in bankruptcy would be liable for in the present case the expressions stated to have been used by costs just as any other plaintiff. In a case where a trustee makes Mr. Dowson amounted to nothing more than a reference to the an application the success of which is doubtful, he ought before lien which the solicitors had on the documents in their posses- making it to get from the creditors an indemnity against the sion, and if the solicitors had at the time understood them as costs, if he knows that there are no assets out of which he can be intended to create an equitable mortgage, they would no doubt paid. He could see no difference between the case of an official have taken care to have a memorandum in writing. The order liquidator and that of a trustee in bankruptcy. With regard to of the Vice-Chancellor must therefore be discharged.
a liquidator the rule had been laid down that he must pay costs Solicitors : Sympson & Warner; J. M. Green.
when he failed in an application.
THE LORD JUSTICE JAMES said that Mr. Angerstein had been called into Court to meet an application which had failed, and he
had a clear right to be indemnified against the costs. The rule L. JJ. LYLE v. SCARTH.
April 16. had been established that no costs should be given of a successful Mortgagee--Redemption-Costs of Suit-Tender. appeal; but in all other cases, in the absence of special circum
stances, the costs ought to follow the event. This was an appeal from a decision of Vice-Chancellor Malins
Solicitors: Linklater & Co.; Lumley & Lumley.
Glasse, Q.C., and Graham Hastings, for the respondent.
Ex parte HOPKINS.
April 17. guilty of any unreasonable conduct, and varied the decree by
In re HART. giving them the usual costs. Solicitors: John Taylor; Plaskitt.
Bankruptcy-Liquidation by Arrangement-Removing Trustee and
Committee of Inspection-Bankruptcy Act, 1869, s. 83, 120
Bankruptcy Rules, 1870, rr. 305, 307. L. JJ.
April 17. This was an appeal from Mr. Registrar Brougham sitting as HARTLEPOOL COLLIERIES COMPANY v. Moon.
Chief Judge. Production of Documents—Privilege--Letter from Defendants H. A. Hart filed a petition for liquidation, which was agreed to Solicitors to her Agent.
by his creditors at a meeting, and a trustee and also a committee
of inspection were appointed. Afterwards a meeting was called This was an appeal from a decision of Vice-Chancellor Bacon, ho
acon: by a creditor with the concurrence of one-fourth of the creditors, ordering the production of certain letters from the solicitor of
under the 125th section of the Bankruptcy Act, 1869, and the the defendant to her agent in the management of her colliery;
304th, 305th, and 307th of the Bankruptcy Rules, 1870, at which some of which were written before and some after the institution the trustee and committee of inspection were removed, and a of the suit (ante, p. 56).
new trusteo and committee of inspection were appointed. Mr. Swanston, Q.C., and Waller, Q.C., for the defendant, who ap- Registrar Keene refused to register these resolutions, considerpealed.
ing that the meeting ought to have been summoned by a Caldecott (Kay, Q.C., with him), for the plaintiffs.
member of the committee or by the Court, under the 120th of THE LORD JUSTICE JAMES said that the order of the Vice-l the Bankruptcy Rules. The matter was then brought before Chancellor was right, having regard to the form of the affidavit Mr Regist
amdavit Mr. Registrar Brougham, who held that the meeting was of the defendant, which claimed privilege for all the letters. regularly summoned, and from this decision some of the crediBut the defendant might file a further affidavit claiming privi-l tors appealed.
h of the letters as had been written after the dispute Willis Bund, for the appellants. had arisen, and with reference to the defence in the suit, either
Winslow, Q.C., and Marcy, for the creditors who supported before or after the suit had actually been commenced,
the registration. THE LORD JUSTICE MELLISH concurred.
THE LORD JUSTICE JAMES said that the meeting was quite Solicitors: J. W. Hickin; Harcourt & Macarthur.
regular. There were two distinct sets of rules, one for bankruptcy and one for liquidation by arrangement. The 13th subsection of the 82nd section of the Act, which directed that
members of the committee of inspection might be removed at a L. JJ. Ex parte ANGERSTEIN.
April 17. general meeting, applied both to bankruptcy and liquidation, In re ANGERSTEIN.
but the mode of summoning the meeting was different in the Bankruptcy-Costs of Trustee.
two cases. In the present case the meeting had been properly In this case the trustee in the bankruptcy applied to the registrar
summoned under the 305th rule for the removal of the trusteo for an order for payment to him of a sum of 50001., which he
as well as of the committee of inspection. The appeal must be alleged to belong to the bankrupt's estate, and the registrar
dismissed with costs. granted the application. Mr. W. Angerstein, the father of the
THE LORD JUSTICE MELLISH concurred. bankrupt, claimed the fund, and appealed from the registrar's
Solicitors: Matthews & Matthews; T. W. Payne. decision.
Fry, Q.C., Thesiger, Q.C., Winslow, Q.C., and F. H. Linklater,
April 16. THEIR LORDSHIPS discharged tho order of the registrar, anal Imperfect Voluntary Gift--Intended Transfer of Propertyordered the trustee to pay the costs of the application to the
Declaration of Trusts, registrar, which he might recover from the estate.
Demurrer. Roxburgh said that the estate was very scanty, and that the! The bill stated that on the 7th of March, 1873, John Doleffect of the order would be that the trustee would have to pay a bridge handed over to his daughter, Mrs. Richards, the lease of great part of the costs personally,
the premises wherein he resided and carried on his business of a
banufacturer of bone manure, having previously indorsed upon | M. R.
Blaxall v. ALLAN.
April 18. he lease, and signed, the following memorandum: “ This deed, Bankrupt- Order of Discharge-Order and Disposition Clausend all thereto belonging, I give to Edward Bennetto Richards
Purchase by Bankrupt. rom this time forth, with all the stock-in-trade.” John Delbridge died in April, 1873.
This was a suit by mortgagees of an annuity against Dr. Allan The bill was filed by Edward Bennetto Richards, an infant, I
+ (the annuitant) and his assignee in bankruptcy, seeking forebo was the son of Mrs. Richards, praying that it might be de
closure. The cause was heard in December, 1873. At the lared that the memorandum and delivery of the lease to
hearing the objection (which had not been taken by answer) Irs. Richards created a valid trust in favour of the plaintiff of
was raised that notice of the mortgage had not been given to the be lease, and the interest of John Delbridge in the premises,
trustees of the fund out of which the annuity was payable, and good will, and stock-in-trade.
consequently that the annuity remained in the order and dispo| The defendants, who were parties claiming under a testamen
sition of the mortgagor. The Master of the Rolls directed an ary disposition by John Delbridge, demurred for want of equity.
inquiry to be made whether the plaintiffs had given notice of Fry, Q.C., and Phear, in support of the demurrer, contended
their charge; and if they had, then the usual decree for forehat the memorandum could not amount to a good gift of the
closure. asehold, as it was not under seal, nor of the stock-in-trade, as
The plaintiffs now presented a petition for leave to file a supiere was no delivery; and that inasmuch as it was intended
plemental bill in the nature of a bill of review, alleging that
since the decree was made they had for the first time discovered sa transfer, it could not be converted into a declaration of
that in July, 1873, during the pendency of the suit, the assignee W. R. Fisher (Southgate, Q.C., with him), for the plaintiff,
in bankruptcy had sold the annuity to a trustee for Dr. Allan, ontended that, though there was no equity to perfect an imper
the mortgagor, who had previously obtained his order of disct gift, yet, where the intention was clear, the Court would
charge in the bankruptcy. old the instrument, however informal, to be a good declaration
Southgate, Q.C., and Angelo Lewis, for the petitioners, conI trust.
tended that whether or not the mortgagees had given notice of Thx MASTER OF THE ROLLs held that the case was governed
this incumbrance, the mortgage was good as against the morty Vilroy y. Lord (4 D. F. & J. 264), and that where a gift was
gagor, and consequently the direction for an inquiry ought to tended to take effect by transfer, the Court would not hold
be omitted from the decree.
Batten, and Russel Roberts, for the defendants, were not called e intended transfer to operate as a declaration of trust. The emurrer must be allowed.
upon. Solicitors : Gregory & Co., agents for Carlyon & Paull, Truro;
THE MASTER OF THE ROLLs said that if the sale was good, D. Bolton, agents for Hill & Hill, Helston.
Dr. Allan was entitled to hold the annuity discharged from the mortgage, there being nothing to prevent a bankrupt who had obtained his order of discharge from buying of his assignee
goods or property which had been in his order and disposition, 1. P.
and after such purchase holding them against the true owners. POTTER v. DUFFIELD.
April 17. If on the other hand the sale was bad, the plaintiffs were not ale of Real Estate - Memorandum of Contract--Name of Vendor bound by it, and the alleged discovery was immaterial. The -Statute of Frauds.
petition must therefore be dismissed with costs.
April 20. ated to be the solicitors of the vendor, and Messrs. Beadel were Trustee- Indemnity-Payment by Executor-Refunding. 9 auctioneers. The plaintiff was the highest bidder at the In August, 1866, Swynfen Jervis transferred 625 shares in the ction, and signed a memorandum acknowledging himself the Albert Life Assurance Company into the names of the plaintiff trebazer, and agreeing to complete the purchase according to and defendant P. O. Jervis, who agreed to hold the same upon
conditions; and Messrs. Beadel signed at the foot of this the trusts declared by an indenture dated the 21st of August, morandum another in the following terms: “Confirmed on 1866, being for Catherine Jervis, the wife of the settlor, during malf of the vendor, Beadels."
her life, and after her death for the benefit of certain of the The bill was filed against Mr. Duffield, a member of the firm settlor's children and grandchildren. Duffield & Bruty, alleging that he was third mortgagee and On the 21st of August, 1866, Swynfen Jervis made his will, and or of the property.
thereby appointed the plaintiff and defendant P. O. Jervis his Mr. Daffield, by his answer, denied that he was vendor, and executors, and bequeathed his residuary personal estate to his wted that William Polley, the mortgagor, was the vendor, and daughters, Mrs. Broughton and Mrs. Brackenbury, and his son, Fanitted that there was no memorandum of the agreement | Walter Neil Jervis in equal shares. Ecient to satisfy the Statute of Frauds.
The testator died on the 15th of January, 1867. Kers. Beadel deposed that they were instructed by Bruty By a settlement made on the occasion of the marriage of Mrs. 1. Daffield's partner) to sell on behalf of Polley. Polley, on Broughton, the testator had covenanted to bequeath by his will other hand, gave evidence that he was not the vendor.
or otherwise provide that whatever residue of his personal estate Prata (Roxburgh, Q.C., with him), for the plaintiff.
should remain at his decease should be equally divided between katigaie, Q.C., and Begg, for the defendant, were not called his daughters, Mrs. Broughton and Mrs. Brackenbury, and his
son, Walter Neil Jervis, and it was thereby agreed that Mrs. MASTER OF THE Rolls held that there was no memoran-Broughton's share should be paid to the trustees of her settleof the agreement, such as to satisfy the Statute of Frauds, ment, and held upon the trusts therein declared, contracting parties not being named or sufficiently described ;| By Mrs. Brackenbury's marriage settlement her share in the
parol evidence could not be given to shew who the vendor testator's property was vested in trustees upon the trusts therein hard that even if it could, the result of the evidence adduced declared. Fared to be that the defendant was not the vendor, and he In May, 1869, the plaintiff and defendant, P. O. Jervis, knowing Bissed the bill with costs.
that the testator's estate might possibly be under some liability Oficitors: Denton, Hall, & Barker; Duffield & Bruty. in respect of the Albert shares, but believing such liability