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Ian. 29, 1887. THE SOLICITORS’ JOURNAL. 213
B. and C. For this reason it was that if A., a lessor, had, by mort- l
as follows ;_
"named or not.
The reasons given by Lord Coke for these rules are not very
clear, and they led to much doubt amongst the judges in the case of Jllinshull v. Oal-cs (1858, 2 H. & N. 793). The covenant does not run as to a thing in futuro, he says, because the law cannot annex it to a thing not in existence ; hence, it can only be annexed by the intention of the parties exhibited in the naming of the assigns. But the former part of this reason depends upon a material view of the relation of the covenant to the thing which will not bear examination, for the law can enforce the agreement against the assign if it so chooses, whatever be the nature of the thing to which it relates; and the latter is really meaningless, for it is clear one man cannot bind another in a contract by merely naming him. A better reason is given for the second rule when it is remarked that the assign takes the benefit of the lease and so should bear its burden. But this, as was seen in .Mz'nshuZl v. Oalces, proves too much; for it applies equally whether the assigns are or are not named in the covenant. In Smith’s Leading Cases it is suggested that when the thing is infuturo the assign only gets the benefit of it at his own expense, and so, some special reason being wanted for binding him in this case, it is found in the use of the word assigns. But this is clearly only a good reason after the rule has been established, and when it has become the custom for intending assigns to peruse the original lease ; a reason for the continuance of the rule, not for its establishment. At the present day an assign who finds himself mentioned knows that he is to be bound, and it is this knowledge which really makes him a party to the contract. The principle is, therefore, that an assign is bound as of course if the thing to which the covenant relates is already in existence for his benefit; but if he has himself to incur the cost of calling it into existence, then he is only bound because the use of the word aasiyns makes him aware of the obligation he is incurring.
But, however well established tho distinction may be, and it has been as firmly settled since Minehull v. Oalm as it was before, its justification is not easy. The following is the opinion the Real Property Commissioners passed upon it :
“It a/ppenrs to us /hat these distinctions are little also than artificial. They lead to subtleties, and, in our opinion, may be usefully abolz'shad,- and, with reference to leases and all covenants entered into by the lessees, we think it should be enacted that all such covenants, of whatever nature anrlfor whatever purpose, unless an intention Io the contrary be empressul, or is to be inférrerl fiam the instrument, should be binding on every assignee of the term” (Third Report, p. 46). _ _
This recommendation, however, has never been carried into effect, and the rule of the common law, as settled by Speneer’s case, still remains for the mystification of the uninitiated. Its application, too, is by no means easy, and it is only by a careful comparison of the cases that we can decide whether a particular covenant relates to a thing in sass or a thing in future, or whether it does not concern the land at all, but is merely collateral. A good example of this is aflorded by Williams v. Earle (I868, 3 Q. B. 739), where, in considering whether a covenant not'to assign ran with the land, it was thought necessary to emphasize the fact that assigns were mentioned, although it seems clear that this did not refer to anything on the land not yet in existence, but to be made at the lessee’s expense (see, too, lVsst v. Dobb, 4 Q.- B. 637 n. (1) _
But, after it has been settled that the covenant is capable of running, we still have to satisfy the requirement of privity of estate. It will only bind those who take the very estate of the original lessee. Another man may enter and take possession with the assent of the lessee, but till he has taken an assignment of the lease he is not bound. Thus, in Moo:-e v. Gray (184_8, 2 I‘h. 717), M. leased to T. for twenty-one years, and T. deposited the lease with G. by way of equitable mortgage. Aiterwardsfz. took possession. Herc Lord Cottenham held that G. was not liable on the covenants. The mere possession went for nothing unless under a legal title. The court would not force a mere depositary of the lease to take a legal assignment, and so render himself liable on the covenants, and till then there was no pnvity by contract or otherwise. The same principle was enforced in Cox v. bishop (1857, 8 De G. M. & G. 815). In this case. the lessee hall eovenantcd to worlr mines. He agreed to assign to Bi who entered into possession, and. afterwards ceased to work. r was held that, as neither possession nor an equitable ass1§nl1l1)8B3g1"§ any legal right, so there was no reason for fixingt 0 111’ 811
the covenants on B. An assignment of an agreement for a_ lease creates no privity of contract between the lessor and the assignee, and the equitable assignment of a lease has no greater eifect. The covenants could only run where there was privity of estate. West v. Dobb (1869, 4 Q. B. 634) also was decided on the ground that there had never been any actual assignment of the term.
Thus far we have treated of the matter as it stands at law; but, as we have already remarked, equity introduces different considerations, and these apply to the covenants in a lease. The doetiine of notice is quite independent of privity of estate. This has been chiefly useful when a lessor has wished to restrain a sublessee from violating the covenants in the original lease. Of course the sub-lessee does not take the estate of the first lessee, and hence, as there is no privity of estate, the covenants do not bind him at law. But, if he has notice of them, equity will restrain him from violating them. It is not necessary to inquire here into the nature of notice and what amounts to constructive notice. The latter point was considered in Flelzlen v. Slater (1869, 7 Eq. 523). But it was well settled in Parker v. TVh_1/fa (1863, l H. & M. 167, 32 L. J. Ch. 520) that a sub-lessee is bound to inquire into his lessor’s title and has notice of covenants contained in his lease. In Olammt v. FVellas (I865, 1 Eq. 200) a distinction was taken, on the ground that the covenant was first contained in a mesne assignment, and not in the original lease from the freeholder. But it was held, by Romilly, M.R., that this circumstance made no difference, and certainly not where, as in the case before him, tho sub-lessee had constructive notice.
Purchaser paying purchase-money but not taking conveyance.In favour of a purchaser or mortgagee whose money is paid, or of_ a person who has contracted to purchase (ante, p. 4), the court will not allow a subsequent judgment creditor of the vendor or mortgagor to touch the legal estate: Finch v. Winchelsea (1 P. W. 278); Burgh v: Frances (3 Swans. 536n); the reason apparently being that the judgment creditor has no specific lien on the land : Avarall v. Wade (Ll. & Goo., at p. 262): see anfe, p. 73.
Trusleesfizr saZe.—Searches for improvement charges must be made against the tenant for life. If his consent to the sale is not necessary, no other searches need be made against him, but if his consent is necessary, the same searches, except forjudgments, must be made against him as if he was owner in fee. Searches for lie pandens, and if the property is situated in Middlesex or Yorkshire, searches in the county registry, must be made against the trustees. It should be remembered that, if the court has authorized the tenant for life to exercise the powers of sale conferred by section 63 of the Settled Land Act, 1882, by an order under section 7 of the Act of 1884, which is in force only while registered as a lis pendens against the trustees, no sale can be made by the trustees without the consent of the tenant for life (sec section 56 of the Act_ of 1882), and in this case the same searches should be made against him as if his consent to the sale was required by the settlement.
Trustees having a power of .mle.——In this case, if there is a tenant for life, his consent is necessary to the sale (see the Settled Land Act, 1882, s. 56), and therefore the same searches ought to be made against him as if he was owner in fee : ante, p. 198. On a sale by the trustees before 1883, if the consent of the tenant for life was not required, no searches had to be made against him except for improvement charges; if his consent was required th, same searches had to be made against him as if he was owner ie fee. In all cases searches must be made against the trustees fol;
lis endens and if the ro ert is si ' ' i shirz, in the coiinty regigteiii y mated In Mlddlesex or Y°rk'
Tru-siees—Lis enrlens-.—It she _ although the eomgencement of B11l:1lI!(ll0If1eIt1da€:l’ml?:iBgfimethed that, of a settlement prevents trustees from exercisin a t rt e trusts of sale without the leave of the court even ifgth ms or power to sell before the commencement of the, action T ey cimtmcted to
formed, notwithstanding that general liberty to apply is reserved (Re llansel, Rhodes v. Jenkins, 33 W. R. 727), the trustees can act without leave of the court.
Com-ayances by mort_qa_qees.—-It will be remembered that a mortgagee in fee has a legal interest which at law can be taken under an elegit, or by process at the suit of the Crown; and that a registered judgment against a mortgagee gave a charge under I & 2 Vict. c. 110, s. 13, on his beneficial interest (Harris v. Daviran, 15 Sim. 128; Younghusbond v. Gisbarne, l De G. 8: Sm. 209; Russell v. fl[cC'ulloch, l K. & J. 313). It followed that it was necessary to search for judgments against a mortgagee or xi person entitled to any pecuniary charge on land on any dealing with his beneficial interest. In order to obviate this inconvenience it was provided (18 & 19 Vict. c. 15, s. ll) that hereditaments that have become vested in a purchaser or mortgagee for value shall not be taken in execution on a judgment against a mortgagee paid off at or before the conveyance, or in execution at the suit of the Crown against a prior mortgagee who was a debtor or accountant to the Crown and was paid ofi at or before conveyance: see this section discussed Dart. V. & I’. e. xi., s. 2.
The practical result is that, where a mortgagee sells for more than the amount of his debt, or, apparently, even if the sale realizes part only of his debt (see Dart. loe. cit.), or concurs in a sale by the mortgagor and is to be paid ofi out of the purchase-money, no searches for judgments, executions, Crown debts, or Crown executions against him is necessary. Searches, however, for lis pmrlens ought to be made against him; and, if he is not fully paid off, searches for judgments and Crown debts, where necessary, and for executions, both at the suit of a subject and the Crown, ought in strictness to be made. It is said—Dart V. and P. c. xi., s. 2—that “doubts may be suggested whether 18 & 19 Vict. c. 15, s. 11, provides for the simple case of paying off a mortgage without reference to a sale or ie-inortgage, or for the case of a transfer where the mortgage is not paid ofi’, but the debt is assigned and kept on foot, as is often_desirable even upon a sale; or for the case of judgments against s puisne mortgagee, whose concurrence is required to a sale of part of the land, although the purchase-money is received by the first incumbrancer; or for the case of a mortgagee releasing part of the land in consideration of a substituted security being given for the debt, or in reliance on the sufficiency of his remaining security.” It is apprehended that these doubts are not felt by most practitioners to be of weight, and in every case of a conveyance by R mortgagee searches for lis pendens alone are usually made agnlnil him (sec \Volstenholmc and Turner Conv. Acts, p. 141). This practice may possibly be supported by the following considerations :—In every case in which a mortgagee conveys part of the land comprised in his security, the transaction amounts to his beinfl paid off and giving a fresh loan on the land retained by him: if he transfers the mortgage debt so as to keep it alive, he is really pflld oil, so that in each case the transaction appears to fall within the meaning of the Act.
Where the mortgagor concurs in a sale by the mortgagee B" conveying party, all the same searches should be made as if he was the vendor. When the mortgagee sells under his power °f sale no searches need be‘ made against the mortgagor duri!18 the time after the date of the mortgage deed, except for improvement chfirgosi Whifih, generally speaking, take priority of mortgages in existence at the time of their creation. _
It appears advisable, however, to inquire whether any \\'1'1t°T l"'0cess of execution has been issued against the mortgagee und" which either the land or the mortgage debt can have been actually seized before completion.
Searches on a mortgage will be same as those on a purchflie. ‘nth the possible exception of those for improvement charges, &@-1 if the security is ample.
On the transfer of a mortgage searches for lie penrlens mnil be made against the mortgagee, arid if thought necessary for hBI1k' ruptcies, and if the mortgagor is a party the same searches must be made against him as on a mortgage by him.
It 5h°111d. Perhaps, be noticed that a mortgagee can safely 1'9°°n"9§' t0 the mortgagor on being paid oil without mflkingany searches 889-lllit him except for bankruptcies where I9‘l""ed'
_ The Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 2, authorizes oflicial searches to be made in the central oflice for entries of “ judgments, deeds, or other matters or documents whereof entries are required or allowed to be made in that oflice by any Act described in Part I. of the lst schedule to the Conveyancing Act, 1881, or by any other Act." Rules of the Supreme Court for the pgiégose of putting this Act into operation were made in December,
Oflicial searches are made in pursuance of a requisition by the person requiring the search, accompanied by a declaration in the prescribed form as to the purposes of the search; a certificate of search is filed in the ofiice, and an oflice copy is delivered to the person requiring the same.
The principal subject-matters for which ofiicial searches can be made are (I) deeds and documents enrolled in the Enrolment Office within two years of the time of search: see R. S. C., 1883, ord. LXI. r. 13. (2) Bills of sale. (3) Certificates of acknowledgments of deeds by married women, judgments, Us pendens, &c. (4) Crown debts and accountantships. (-5) Executions. (6) Annuities and rent-charges.
Provision is made by the ltulcs of December, 1882, for making a supplemental search in any name already searchcd against to a date not_more than one calendar month subsequent to the date of thc certificate, and for indorsing the result on the original certificate and any oilice copy thereof. s
Thislittle book will be found more useful than some more retentious works. It does not pretend to be a complete treatise on 1518 law of bankruptcy. but appears to be intended as a handy book of reference In court. We have taken some ains to verify the statement in the preface that every decision on the Bankruptcy Act, 1883, has been Inserted, and we find that it is substantially correct, the latest case cited lielllilit l'mIc1lii'll (W. N., 1886, Nov. 27).
R The boo contains the Bankruptcy Act, 1883, and the Bankruptcy
ules of l88§ at length, with notes containing the appropriate 9”-599; a selection from the County Court Rules, 1886 ; judicial orders and regulations under the Bankruptcy Act, 1883; Board of Trade Orders and forms under the same Act ; scale of solicitors’ costs; the order as to fees and percentages under the Bankruptcy Act, 1883;
1tg§2Debtors’ Act, 1869, with notes ; and the Bills of Sale Acts, 1878,
ugsrmlgeisaugttzuon our space compels us to hold over two letters
CORRESPONDENCE. THE REBIUNERAIION ORDER. |_T0 the Editor of the Solicitors’ Journal.'_l_
Sir,—-In perusing the recent decisions on the question of solicitors’ remuneration for preparing leases and agreements, I have been much struck with the fact that, under the scale, solicitors may be required to carry on the business.of their clients at a decided loss, without ineluding the ordinary ofioe and establishment expenses. I am sorry to perceive that her Majesty's judges, in the cases referred to, expressed no regret that the effect of the decisions would be to involve the unfortunate solicitor in almost certain loss.
Probably it may be thought that the scale in other cases so liberally remunerates the solicitor that he can afford to transact a large amount of business at a loss to himself. But this is not the case. Even in my somewhat limited experience it too often happens that the solicitor is practically unable to charge his client with the full scale costs, not because the scale is too high, but because the business transacted has been of a simple and brief character. A client looks at the amount of business actually done by his solicitor, and does not like to pay a. larger remuneration, though warranted by the scale, than the nature of the business, irrespective of pecuniary value, really justified. Hence it comes about that the solicitor does not derive the benefit possibly contemplated by the jud es.
Is a solicitor, directly a client enters his oificc, to thrust into his hands a notice that his charges will be made under schedule 2 of the Remimeration Order, before the solicitor has the least notion of what the business is likely to involve ? In these days agreements for leases and leases are very often of a complicated character, and involve long negotiations and much trouble, which are impossible to be foreseen. In most cases the scale does not pay, unless there is a large premium paid by the lessee, but even then the lessee's solicitor cannot claim any extra charge.
I have not long entered the profession, but I shall have to gain my livelihood by it, and I shall not be in a position to offend any clients with whose business I may be favoured, nor shall I be able to work for nothin . I have always thought that the Council of the Incorporated Law gociety did their best to protect the interests of thvq1lprofession, and I shall watch with interest to see whether they ' go to sleep on this question, or whether they will, in a wise an vigorous manner, address themselves to provide a remedy for the grievance caused by tho decisions referred to, possibly right in point of law, but absolutely wron as a matter of morality and general practice. The council have undoubted ppwer and influence, and I confidently hope that, supported by t e countenance which your valuable journal has ever given to the promotion of the just interests of the profession, they will not be found wanting. _
I trust that you will permit the insertion of the _vicws I have ventured to express, notwithstanding that I am, as I sign myself,
Jan, 25, Ax ARTICLED Oman.
Sir,—In your excellent series of articles “ On the Form of Mortgage Bills of Sale,” which, if carefully followed, should prove, of much use to the profession, owing to the multiplicity of decisions thereon, there are_a-eéew slight inaccuracies and omissions which I happen to
have notic _ _
Under “ maintenance of the security.” at p- 196, It 18 Stated that llcovenant to deliver to the grantee the receipts for the rates and taxes of the place where the goods were, yitiates tho instrument._ It should have been said that, in the opimon of Fry, L.J., in Davis v. Burton, as reported in 32 W. R., at p. 424, the grantee must not be enabled, by the bill of sale, to seize the goods upon the failure to comply with a L‘(’l‘lI(ll demand for the production of such receipts, as the Bills of Sale Act, 1882, provides for such adeinand being in wnting. Again, Re Morritt does, I think, decide that a power of sale may be safely inserted in bills of sulc ; for Cave, J., says, “ The Act prescribes no particular fonn of the power of sale. That is left to the parties," It might have been added that, in the_opiuion of_Bacon, V.C., m Ea: parie Pearce (32 R., at p. I39, 20 (:Jl1- D- 697), 3 _P°We!‘al8l’47 enter on non-production of receipts for msuranoe premiums_ _ 0 renders a bill of sale irnpeachable, and, further, that the provision that the grantee may pay rents, rates, taxes, and other outgoings, and, if the same are not repaid, seize the gciods, vitiates the bill of sale: Bianclii v. Oflord (l7 Q- 3- D- Bl? _P- 457 - _ _
When book debts are part of the lsubyect of the bill of salei)e("flicml Receiver v. Tailby (35_W. R. 91, 17 Q: B. 88) nfiust fiottit “$19; looked nor, when settmg out the consideration on t e su s 11
R Jan. 26.
This case, which was argued on November 9, raised an important question as to the right of sailors and passengers on board a Elilp injured by the negligent navigation of another ship, but herself guilty of contributory negligence, to recover damages from the owners o the other ship. It was an appeal from the decision of Butt, J ., upon a special case. There were three actions brought under Lord Lampbel ’s Act, by the personal representatives of John Armstrong, Thomas Owen, and Moses Toeg respectively against the owners of the steamship Bernina to recover damages sustained by the deaths by drowning of these persons in consequence of a collision between the steamship BC/‘fllllfl and the steamship Bushfire. Both vessels were to blame for the collision. At the time the collision took place John Armstrong was one of the crew of T/ie Bus/m'e as first engineer, but was oif duty and had nothing to do with the navigation of that ship. Thomas Owen was also one of the crew as second otficor and was directly responsible for the negligent navigation of The Bushiri-. Moses Toeg was a passenger on board T/M Biishiz-e, and had nothing to do with her navigation. The questions for the opinion of the court were (1) whether the defendants, in each of the three cases, were responsible for the damage sustained by the respective plaintiifs; (2) whether, if the defendants were liable in either or all of the cases, they were liable for the whole of the damages sustained or for a moiety only. Butt, J ., considered that he was bound by the authority of T/wro_r/and v. Bryan (8 C. B. 115), in which the principle was laid down that a passenger is so far identified with those in charge of the vessel or carriage in which he is that he is precluded by contributory negligence on their part from maintaining an action for injuries received by him from a collision with another carriage or vessel. He therefore held that the defendants were not liable in any of the three cases, and he was also of opinion that the cases did not come within the Judicature Act, 1873, s. 25, siibsection 9. From his decision the plaintiffs appealed, and it was contenldelg on their behalf that the case of T/im'o_/[nod v. Brynn could not be up e .
'I_‘i-is Cociir (Lord Esnzu, M.R., LINDLBY and Lorss, L.JJ.) now delivered judgment, overruling. the decision in T/mrogooil v. Bryan. Lord ESHER, 11.8.. after most elaborately reviewing the English and American decisions on the point, said that he could not see any principle on which Thoiagood v. Jh-yan could be supported. The proposition maintained in it was essentially unjust and inconsistent with the recognized propositions of law. The question now came for the first time before the English Court of Appeal, although from the time of its publication it had been constantly_ criticized. 'l‘he preponderance of judicial and professional opinion (with the exception of the weighty opinion of Lord Bramwell) both in England and America, was against the case and it must therefore be now overruled. The personal representatives of Armstrong and Toeg who were in no way responsible for the negligent navigation of T/id BlM)|iI‘6, would therefore be entitled to judgment, but in the cuse of the represents: tives of Owen, who was himself in part directly responsible for the negliwent navigation, the appeal must be dismissed. His lordship agreed with Bautt, J .,_t iat actions brought under Lord Campbell’s Act were not admiralty actions at all, andwerc not touched by the Judicature Act, 1873, s. 25 subsection 9. LINIILEY and Loi-as, L.JJ., concurred with the judgmeiit of Lord Esher, M IL, but said that they considered the case so important in overruling a decision of such long standing as Tlwrognoii v. Br;/rm that they had each written separate judgments, which they read and which were to the same effectas that of the Master of the R0ll8.—,COUNBEL Bueknill Q-G-, and Nelson ; Sir Walter Phillimorc, Q,.C., and J. Barnes, SOLICITORS, Lawless §~ Co. ; I’ritcharrZ gr Sam. '
This was an appeal from a decision of North, J. (30 s0l.lCl'l"UR5 J°V1"_"\L. 537), the question being whether a specific legacy to B Peer: deacnbed simply by his title, had lapsed by reason of the death. during the life of the testator, of the persoii who bore the title at ill? date of the will, or whether the gift was to be treated as made to llJ° holder of the title for the time being. The will of the testawf» lmde on the 8th of October, 1881, contained the following bequest :--“I bequeath to Lord Sherborne and his heirs my Oliver Cromwell cup, P19‘ sented to our common ancestress Dame Ursula Whorwood, for all heirloom.” The Lord Sherborne who held the title at the date of the will died in the testatoi-’s lifetime in March 1883. The testator died in §“B“5l7» 1331, and by a codicil to his will dated July 6, 1883, he bequeathed
_unto my faithful friend and servant Charles Rixom absolutely, 1111 ml silver and plated articles, jewellery china glass books pictures, print‘: fl"'""11l'@. and household elfects whatsoevei and,al1 other the content! 01 my dwemllg-liouse which may be in and about the same at the time Oi my decease! B-lid Which are not otherwise specifically disposed of bl’ my lull» excel“ m°n°.Y» B°!'iP, 01' any other -documents relating to B11! °th°r Investments b°1°!18i118 to me, and which may be in and about 111! dwell"-\8'11°\1Be at the time of my death " There was evidence that the fetstqr had no personal acquaintance with Lord Sherborne and that hi! attention had been called to the announcement of his dehth in MB-T011:
1883. North, J., held that the cup passed under the gift in the codicil to Charles Rixom. On behalf of the appellant it was argued that there was a clear intention upon the face of the will that the cup should be preserved as an heirloom in the family, and that that intention could only be carried out by construing “ Lord Sherborne " to mean the person who was Lord Sherborne at the date of the testator's death. Reliance was placed on Ra Harris’s Trusts (2 W. R. 689), in which \V0od, V.C., held thsta gift to “the eldest child of my sister" was a gift to the eldest child of the sister at the time of the testat0r’s death, and not at the date of the will.
Tris Coca-r or APPIAL (Co-rrorz, LINDLBY, and L01-iis, L.JJ.) affirmed the decision.—Cov.\'ssL, Cutler, Q.C. ; I’/iipson Beale. - Soiicirons, .AIdr€d_//e Q C0. ,' Jolm Grnllam.
In s partition action an order for inquiries and sale in certain events had been made, the property had been sold, and the chief clerk had certified the persons interested, of whom one had not been heard of for twelve years, and that service upon him had been dispensed with. It appeared that no attempt had been made to give notice of the proceedings to him by advertisement. It was now proposed to carry over his share to a separate account and distribute the rest of the estate.
Ker, J., said that, under the Act, the court had no discretion. The order dispensing with service should have provided for advertisements. There would be no distribution for six months, and then only upon application to the judge personally, and advertisements must be issued forthwith in such form and number as should be settled by the chief clerk.—Coi'_\'ssi., Szwarrl Bzice, Q.C., and fllnnby; Melliold. Soucrrons, Iiomll Q Bacall, for Frmnan, Gvll, 4' C'o., Brighton; Emmet, Son, Q Stubbs.
This was an at p(I1'f¢‘~ application for an order under R. S. (J., XVIL, 4, for leave to add parties to an action. It appeared that the action was instituted by tenants for life under the will of a deceased tcstator against the executors and trustees of the will for administration of his estate. The usual administration judgment was made in 1881, and the chief clerk's certificate being made in 1886, the action had been set down on further consideration. After judgment, children being born who were interested under the will and necessary parties to the action, and various proceedings in the action having been taken subsequently to their births, application was made by the defendants to the plaintiffs, subsequently the chief clerk's certificate, to add certain of the infants as parties, hut this the plaintiffs declined to do. The defendants having presented a petition for an order of course under ord. 17, r. 4, for the continuance of the proceedings as between the plaintiffs and defendants and certain of the infants, an order to that effect was made by the registrar, the petition containing an allegation of the plaintiffs’ neglect to apply. A similar petition having been presented by the defendants afterwards to another registrar with regard to the remaining infants, the registrar declined to make the order on the ground that such order could not be made of course on the petition by defendants after judgment in an action for account, even if the plaintiffs refused to apply for an order ; but could be made only u on motion on notice to the plaintiffs, and because such an order would have the effect of giving to the defendants the conduct of the action. Peter v. Thomas Pater (32 W. R. 515, 26 Ch. D. 181), Bi:-null v. Fearon (24 Ch. D. 127), and Sliepperd v. Hughes (21 W. R. l36) were referred to.
Qnirrr, J ., directed that upon the allegations in the petitions that the plamtiifs had refused to proceed, it should be referred to the registrar to make the usual order on both the petitions, with leave for the defendants to canyon the necessary proceedings, notwithstanding that they were accounting parties, and that the matter be referred to chambers if any diillculty should arise in carrying out the direction of the court.—Cor.\'seL, Broke Freeman. SOLICITORS, Ilaimns ¢~ Clullon.
_ln this case a question arose as to the jurisdiction of the Chancery Division, imder section 34 of the Trustee Act, 1850, to make a vesting order on appointing a new trustee. Section 34 provides that “ it shall be lawful for the Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order, to direct that any lands subject to the trust shall vest in the person °Y P9110118 who, upon the appointment, shall be the trustee or trustees tor. such estate as the court shall direct.” In the present case the plaintiff company had purchased an estate for the purpose of re-sellin g it in small lots. The estate was conveyed, not to the company, who paid fl‘° Purchase-money, but to the defendant, who was their secretary, as a trustee for them, but no declaration of trust was executed by him. After some parts of the estate had been sold and conveyed to purchasers, the deflfll out became in a bad state of health, and incapable of attending to bum-5". and the company petitioned under tho Trustee Act for the
appointment of a new trustee in his place, and for a vesting order as to those parts of the estate which had not been sold and conveyed to purchasers. It was contended that there was an "implied trust" within the meaning of section 2 of the Act. There was evidence that the secretary was suffering from softening of the brain and general paralysis of the brain centres and loss of nerve power, and that he was, and always would bc, unable to attend to or comprehend any business, but that he was not a lunatic or of unsound mind. North, J., felt a doubt as to his jurisdiction to make the appointment on petition, and suggested that the company had better bring an action against the secretary. The present action was accordingly brought by the company, as plaiutifis, against the secretary, as defendant, claiming a declaration that the defendant was a trustee for the company of all the land which had been conveyed to him, except the plots which had been sold and conveyed to purchasers ; that he might be removed from being trustee and a new trustee appointed in his place, and an order made vesting the property in the new trustee.
Non-ri-r, J., declined to make a vesting order, but granted the other relief claimed. He thought that the evidence as to the condition of the trustee’s health was, in substance, the same as the evidence as to the condition of the trustee in Re DvwI|ir.vt‘s Trusls (33 Ch. D. 416), and in that case the Lords Justices appeared to have considered that the trustee was a person of unsound mind, and that a vesting order should be made in the unacy jurisdiction. His lordship therefore thought that in the present case application ought to bo made to the Court of Lunacy for a vesting order.—Coi'.\'ssi., S. Berldall; .l[i:I.'Iem. Soucii-on, F. J. Mann.
Thiswas an application on behalf of all the shareholders in this company to rectify the register of members, for the purpose of correcting an oversight which had been made on the formation of the company in not registering s contract previously to the issue of the shares, which were issued as partly paid in consideration of the assets of an old partnership being made over to the company. The company was formed in 1S7l§ to take over the business of a then-existing firm. All the shares were issued to the partners or their immediate friends. No price was given for the goodwill of the business. The other assets were valued at a sum which amounted to £78 a. share on the 770 shares into which the capital of the company was divided. The nominal value of the shares _was fixed at £100 each, and T70 shares, with £78 per share paid up, wereissucd to the five partners in the old firm and three nominees, in proportion to the interest of the partners respectively in the old business, but no cont:ract_for the issue of the shares as partly paid u(p otherwise than in cash was registered, as required by section 25 of the ompanies Act, 1567, nor was any such contract, in fact, entered into, and the result was that, m the event of a winding up of the company, the shares would have to be treated as wholly unpaid. The shareholders now moved to have the register of shareholders rectified by striking their names out, and that a contract might be registered and new shares issued to them. _
Noxrn, J., said that the object of the motion could be obtained by a voluntary winding up and a reconstitution of_ the company. B_11§ he thought he should be able to accede to the application on two_ conditions. The existing debts of the company must_ be provided for—-he d1d_ not mean actually paid; and the contract which it was proposed to register must be produced to him. The motion must stand over to allo_w these two things t/0 be done, and he should probably then grant the application.-Cor-.\~ssi., Cozem-Hardy, Q.C., and E. Beaumont ; C/iadwyck-liealsy. Soticrroits, Jlimmr 4- Lonyzlm.
In an action for specific performance the defendant rlelivegld pi sftatement of defence, but neglected _to answer interrogatories._ a 6 6:16: was then struck out. The plaintiff moved for judgment, his sta m<>1l1‘_ 0 claim being for specific performance and ancillary relief, but nctift as fill; for a declaration of lien. It was urged on behalf of tlleipltilllltls toll: 0 1113 was entitled nevertheless to such a_ judgment as that in grip Rig] that Decrees, 4th ed., vol. 2, pt. l,_ p. 1-3.50, which contains a _ ti(!_t1l‘t:test at £5 the plaintiff is entitled to 9. lien on the hereditaments, wi in percent. _ _ b t ted as
Srinuso, J ., held that as the motion for udgment was to e _rea
f lt f leadin the laintiff was only entitled to such judgment