ROLLS COURT. the case; and being of opinion that nobody but the person appearing on the register as the holder of the shares is liable for calls at the instance of the company, I think the plaintiffs are not entitled to the relief they ask, and the bill must be dismissed with costs. May 28 and 29 and June 9. ROWLEY v. ADAMS. Trustee Act, 13 & 14 Vict. c. 60-Notice to trustee to convey-Surrender of copyhold-Vesting order-Refusing trustee. A decree was made in a cause directing certain copyhold estates on which legacies were charged, to be sold, with the approbation of the Master, and a conveyance to be made to the purchasers, "wherein all proper parties were to join as the Master should direct." The copyholds, which happened to be vested in a married woman, who, as well as her husband, was a party to the suit, were accordingly sold in lots, and as to three of the lots the sales were confirmed and the purchasers had paid the purchase-money into Court. Notice was served on the trustees requiring them to convey and surrender the copyholds, stating that in default of their doing so for twenty-eight days application would be made to the Court for a vesting order. The married woman wrote to the purchasers of two of the lots expressing her determination never to surrender, and after the expiration of twenty-eight days a petition was presented by the plaintiffs, the legatees, for a vesting order, on the ground that the married woman was a trustee within the 13 & 14 Vict. c. 60: Held, that as to the two lots as to which she had refused to convey, a vesting order might be granted; but as to the third, the case did not come within the 17th section of the Act. - Held also, that the notice was not a sufficient tender of a conveyance within that section. Bemble, that a tender of deed constituting an attorney to take a surrender, and a neglect or refusal for twenty-eight days to execute the same, would bring the case within the Act. C 7 An objection being taken that the petition ought to have been presented by the purchasers, and not by the plaintiffs, the legatees, it was removed by an undertaking to make the purchasers copetitioners. therefore, it is said that the words of the section are satisfied. But I am of opinion they are not, for a notice can in no sense be said to be a deed. The parties may tender a deed to Mr. and Mrs. Wyatt, constituting some person an attorney for them to convey, and that might do, and might satisfy the Act; but all I can do at present is to make an order against Mr. and Mrs. Wyatt as to the two lots which she has refused to surrender, vesting the same in the purchasers. The parties, however, may put themselves in a position to make a proper declaration as to the other lots, and I shall then do what I can. executed a conveyance or assignment of the lands in R. Palmer and Erskine, for the plaintiffs in support of the petition, said, that the purchase-money having been paid, Mr. and Mrs. Wyatt refused to convey, and they insisted that they were within the provisions of the 13 & 14 Vict. c. 60. Prendergast, for Mr. and Mrs. Wyatt, contended Chandless for Mr. Wood, the purchaser of lot 1. VICE-CHANCELLOR KNIGHT Barrister-at-Law. February 22 and March 8. JACKSON v. CRAIG. A testator, by his will, after giving certain direc- Held, that the real estate descended, and the personal estate was distributable, as if the testator had died intestate. This was a special case, under the 13 & 14 Vict. c. 35, in which the executor of the will to be construed was the plaintiff, and the widow and children of the testator were the defendants. The Rev. Edward Craig, the testator, made his will, which was dated the 4th of April, 1850, in the following terms:-"In the name of my blessed Saviour, I appoint this my last will and testament. I appoint J. H. Jackson, esq. of Islington-green, and John Barstow, esq. barrister, of the Fig-tree-court, TemThe following cases were cited :-Billing v. Webb, ple, my executors; and the Rev. Horatio Dudding, 1 De G. & Sm. 716; King v. Leach, 2 Hare, 57; clerk, of St. John's, St. Alban's, and my dear wife, Hood v. Hall, 19 L.J. Ch. 312; Re Blake, 3 Jon. joint guardians of my children. I hope he will & L. 265; Thomas v. Gwynne, 9 Beav. 275; Simp-educate my boy. I have a house in Edinburgh; a son v. Pitchers, 1 Coll. 13; Barfield v. Rogers, farm at Revel-end, Redbourn, Herts; a piece of land 8 Jur. 229. at Burton Latimer; a leasehold interest in my house at Barnsbury; and railway bonds in the hands of Smith, Payne, and Co. Let my dear wife's settlement be regularly paid. Let my few debts be justly paid. Let all my goods and chattels be sold, and the fund accumulated, except so far as is needed for the comfortable settlement of the family somewhere, excepting 2001. a year to be laid by as a marriage portion for my dear daughter, Adelaide Amelia Craig. Edward Cunningham Craig is heir to the whole real estate." Shortly after the date of the will the testator died, leaving his widow and the two children named in the will, his only children, him surviving. The will was proved by Mr. Jackson, the plaintiff. At the date of his will the testator was absolutely entitled to a house at Edinburgh, and to real estate at Burton Latimer, which, together, produced 1507. per annum, and to personal estate of the value of about 7,5007. Upon the occasion of the testator's marriage in 1838, an estate called Revel End (which belonged to him, and produced about 2601. per annum), and also a sum of stock belonging to Mrs. Craig, were, by two indentures, settled upon the ordinary trusts. All the property settled produced about 3807. per annum. The points raised upon the construction of the will were whether, in consequence of the settled estate of Revel End being mentioned, a case of election was raised; and what was the effect of the directions as a person to convey in his place. Mrs. Wyatt, how-to the 2001. a year for the daughter. ever, as to two of the lots, has refused to surrender, and therefore I may make an order appointing some person in place of Mrs. Wyatt to convey those two lots, and I will accordingly do so. As to the remaining lot she has given no such refusal, and Saturday, March 8.-The VICE-CHANCELLOR therefore I cannot appoint a person to convey that said, that the first question in this case was, whether lot on the ground of refusal. The next question, on the two settlements, or either of them, a case of then, is as to the application for the order, under election against the widow or either of the children the 17th section of the Act, which directs the ap- had been made out. He thought that the language used pointment of a person to convey, if the parties in the will was too vague and obscure to render such having the legal estate neglect or omit to convey an interpretation safe or allowable. He thought, for twenty-eight days next after a proper deed of indeed, that the will did not dispose of the dividends, conveyance has been tendered to them. Are those interest, or any beneficial interest in any part of the words satisfied? As to Mr. Wyatt, he has neglected testator's property, with the single exception, if it for twenty-eight days, and if a deed of conveyance was one, of the 2001. a year mentioned with respect was duly tendered he comes within the provision. to his daughter. But was it an exception? He Now, notice was served on Mr. and Mrs. Wyatt, thought that, on the whole, it could not be conrequiring them formally to do all that was required sidered as an exception, and that the testator ought to vest the property in the purchasers, but that notice does not satisfy the words of the clause which we are considering, for it cannot be looked upon as in any sense a deed. But, then, it is said that the interpretation clause shews that the words refer to the execution of the conveyance, &c. by such persons, and it is admitted by Mr. Chandless that this section must be read as if the interpretation were inserted in that place, and, Monday, June 9.-The MASTER of the ROLLS.By a decree made in 1845 it was declared that the This was a petition under the 13 & 14 Vict. c. 60, laintiffs were entitled to have certain copyholds of asking that an order might be made appointing some he testator in the cause sold for the payment of person in the place of Mr. and Mrs. Wyatt, to conScheir two legacies of 12,0001. each, and it was ordered vey or to surrender certain copyholds sold by order hat the estates should be sold, with the approbation of the Court. The legal estate in these copyholds is of the Master, and that a conveyance thereof to the in Mrs. Wyatt, who, with her husband, is the party purchasers should be made, wherein all proper to surrender; and not having done so, the Court parties were to join as the Master should direct." must consider whether Mr. and Mrs. Wyatt are The copyholds happened to be vested in Emily, trustees within the Act. The plaintiffs are entitled the wife of the defendant, George Wyatt, to a charge on the copyholds, and subject thereto - both of them being parties to the cause. The Mr. and Mrs. Wyatt are entitled. An order was copyholds were accordingly sold in lots; and made by the Court for the sale of the copyholds for the lots numbered 1, 13, and 4, formed the subject the purpose of paying off the charge, and the proof the present petition. As to these, the sales had perty was accordingly sold to certain persons, and been confirmed, and the purchasers had paid their an application was made to Mr. and Mrs. Wyatt for purchase money into court. On the 12th of April, a surrender to the purchasers. Mrs. Wyatt refused 1850, George Wyatt and Emily his wife were served in writing as to two of the three lots. In this state with a written notice, requiring them to convey and of things the plaintiffs presented their petition, and surrender the three lots of copyholds to the use of the first objection is, that the petition is by the the several purchasers, and to execute all deeds and plaintiffs, whereas if Mrs. Wyatt be a trustee at all, documents, and to do all such acts as might be she is a trustee not for the plaintiffs, but for the purnecessary. The notice stated that the steward of the chasers, who ought, therefore, to have been the petimanor would attend at any reasonable time or place tioners. The purchasers, however, have consented for the purpose of taking the surrenders, &c.; and to be made co-petitioners with the plaintiffs, and that in default of their complying within twenty- that objection, therefore, is removed. Mr. Wyatt eight days, application would be made to the Court has not refused to convey, and therefore I cannot, for a vesting order under the Trustees Act. Emily on the ground of refusal, make an order appointing Wyatt, on the 14th of April, 1850, wrote to the purchasers of lots 13 and 4, expressing her determination never to surrender the copyholds. And no surrender having been made within the time specified, the plaintiffs in the cause presented a petition, alleging that Emily Wyatt was a trustee of the copyholds for the petitioners, or for the respective purchasers within the meaning of the Trustee Act (of 1850), and praying for an order vesting the property in the respective purchasers. The application was made under the 17th section of the Act, which is in these words:-"That where any person jointly or solely seised or possessed of any lands upon any trust, shall, after a demand by a person entitled to require a conveyance or assignment of such lands, or a duly authorised agent of such last-mentioned person, have stated in writing that he will not convey or assign the same, or shall neglect or refuse to convey or assign such lands for the space of twenty-eight days next after a proper deed for conveying or assigning the same shall have been tendered to him by any person entitled to require the same, or by a duly authorised agent of such last-mentioned person, it shall be lawful for the Court of Chancery to make an order, vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct; and the order shall have he same effect as if the trustee had duly Archibald Smith appeared for the plaintiff. The Attorney-General and Shapter, J. Parker and Frederick Wood and Wigram and Hanson appeared for the several defendants. not to be considered to have meant by what he said on the subject anything more than a direction how his daughter's property, whatever it might happen to be, or a part of it, should be applied; a direction which, if not perfectly intelligible, was certainly ineffectual. It followed, in his Honour's opinion, that the testator's real estate had descended, and that his personal estate must be applied as if he had died intestate. V. C. KNIGHT BRUCE'S COURT. Thursday, Feb. 27. A testator, who died in 1815, gave his residuary R. Palmer and Miller for the plaintiff, contended that the proportions in which the two funds were to be applied for the maintenance of the lunatic were to be determined with reference solely to the interest of the lunatic. (Foljambe v. Willoughby, 2. Sim. & Stu. 165; Re Ashley, 1 Russ. & Myl. 371; and Bruin v. Knott, 1 Phill. 572.) The Attorney-General, Metcalfe, and Fooks, for the defendants, contended that as the mother must be taken to have known the provision made by her husband for the lunatic, her intention was to supply from the income of her estate any deficiency which V. C. LORD CRANWORTH'S COURT. The VICE-CHANCELLOR said that although the testatrix must have been aware of the provisions contained in her husband's will, he did not consider that her mind had been at all addressed to them when she made her will. She must be taken to have made her will without reference to the income to which the lunatic was entitled from other sources. He was of opinion that according to the true construction of the testatrix's will, she devoted the whole income of her estate for the benefit of her son for his life, with the restriction only that if this income were more than sufficient for his maintenance, the surplus should be added to the principal. He considered that the question as to the contribution of the father's and mother's estates must be decided solely with reference to the interest of the lunatic, and that the fund in question belonged to the plaintiff. V. C. LORD CRANWORTH'S COURT. May 30 and June 3. THORNHILL V. MANNING. And this, although the decree had been made This was a motion to enlarge the time for pay- V. C. LORD CRANWORTH'S COURT. might occur in the income from her husband's clear opinion of the Lord Chancellor, and I think The sum of 5,7241. the amount of principal, interest, and costs, found due by the Master, ought to have been paid on the 3rd February, 1851, which was six months after the date of the report. This sum not having been so paid, the foreclosure was made absolute on the 12th February, 1851. The notice of motion was dated the 11th April, 1851. Affidavits had been filed in support of the motion. Bethell and Bilton, in support of it, which, upon the fact that the value of the mortgaged premises was very much greater than the sum found due by the Master, and that the Court would always relieve against such a loss as this, when the mortgagee could be fully indemnified by the payment of any subsequent interest and costs, which he might have incurred. They relied on Jones v. Creswicke, 9 Sim. 304; Nanfan v. Perkins, Ib. 308; Ford v. Wastell, 2 Phill. 591. Stuart and Terrell, in opposition, argued that the order absolute having been enrolled, it was in effect the order of the Lord Chancellor, and, therefore, the Vice-Chancellor had not jurisdiction, and that, until vacated, the application should be to the Lord Chancellor. The VICE-CHANCELLOR thought it was not necessary to have the enrolment vacated. On the 3rd June was given the following JUDGMENT. The VICE-CHANCELLOR.-When this motion was made, the counsel for the plaintiff objected that, if I enlarged the time for payment of the sum found due to the plaintiff, I should vary the order absolute; and as that order had been signed by the Lord Chancellor, and enrolled, I had no jurisdiction to alter it. It appears, however, from his lordship's judgment in Ford v. Wastell, that the extension of the time is something collateral to the order, and that the enrolment of the order is no obstacle to the extension; the order remains the same order, notwithstanding the time is extended to a future day. That was the JULY 12, 1851.] V. C. LORD CRANWORTH'S COURT. THE LAW TIMES. V. C. TURNER'S COURT. V. C. TURNER'S COURT. It appears to his me that vivor of them, all my aforesaid estate and effects." made his report on the reference hereinafter directed. amalgamate the parties agreeing to take shares give, devise, and bequeath unto them, or the surRefer it to the Master to compute subsequent interest, with the promoters. This was a special case, submitted for the opinion and to tax subsequent costs, including costs of the it did what the Legislature intended it should- After the date of the will the testator acquired copyejectment (because I think that the mortgagee had left the rights as it found them, except that it regu- hold estates of inheritance, of which he died seised a perfect right, after the decree was made absolute, lated the course each party was to take; and there- to him and his heirs. to deal with the estate as her property), and in-fore it followed, even if you found ambiguous excluding also the costs of redeeming the land-tax (I pressions in the Act, the rights and obligations were of the Court under the statute 13 & 14 Vict. c. 35 do not know that that would be allowed to a mort- not touched, but a machinery given to regulate com- (Sir Geo. Turner's Act). It stated that W. L. Jengagee, but she had a right to treat herself as the plicated affairs. First, to make out lists of contribu-kins was admitted to the copyhold property as deowner), and including all money bona fide expended tories, members of the company, and all other per-visee under the will, and after he attained the on the faith of the order of the 12th of February, sons liable to contribute to the expenses thereof. age of 21 years he sold the same to the plaintiff, who 1851, and refer it to the Master to take an account Had the Court at first more strictly adhered to the after admittance contracted to sell to the defendant, Greene, for the plaintiff, relied on the 3rd and Vict. c. 26, and cited of the rents received by the mortgagee since the language of the Act, these difficulties would not who refused to complete unless the customary heir date of his report of the 3rd of August, 1850; and have occurred; but, unfortunately, without the of the testator concurred in the sale. But subseon payment of what shall be found due to the mort-slightest disrespect to those who had done so, winding-quently the present case was agreed to. gagee, let her reconvey the estate to the mortgagor, up orders had been made rather hastily of companies This was 284; Doe dem. Wall v. Langlands, 14 East, 370; the reconveyance to be settled by the Master if the not formed affecting those who, until the company 24th sections of the statute v. Dring, 2 Mau. & Selw. 448; Doe dem. Evans v. parties differ, and to be subject to any contracts for was formed, were necessarily by-standers, and had the cases of Tanner v. Morse, Cas. temp. Talbot, proved in Walstab v. Spottiswoode, for the parties Woollam v. Kenworthy, 9 Ves. 137; Doe dem. Hick Adol. & El. 719; Ford v. Ford, 6 Hare, leases, &c. which the mortgagee may have entered individual rights, and not as a class. were continually changing, and there was no common into on the faith of the order absolute. fund, and the rights were those of creditors, no Evans, In the latter it was decided that 293, Q. B.; and Morrison v. Hoppe, 17 Law T. 1. doubt of a peculiar nature. Then came Cottle's and 486; Doe dem. Evans v. Walker, 19 L. J. (N. S.) Upfill's cases. was extremely difficult to understand the ground of there was a liability for something; and although it that decision, it must have been that a man taking | shares, and becoming a member of the provisional committee, authorised the said members sufficiently act for me." He (Lord Cranworth) must to make him liable as a contributory, as if he had said, " that was the governing decision. confess he did not see why that should follow; but On the 4th of July the Vice-Chancellor pronounced Order accordingly. June 25 and July 4. CARRICK'S CASE. A person, who, as member of the preliminary The application in this case to take the name of Mr. Carrick off the list of contributories, upon which it had been placed by the Master, arose from the circumstances attending the contemplated formation of the above company, which were fully detailed in England's case, 17 Law T. 175. Similar acts bad been done by Mr. Carrick, as had been done by Mr. England, and they had, with others, signed the paper set out at length in our report of that case. Bethell and Bagally in support of the motion to take the name off the list. Roxburgh, in support of the Master's decision, argued at considerable length upon the late authorities, which have been so often before quoted, that what had been done by Mr. Carrick was equivalent to a legal liablity to contribute to the expenses of the winding up. That if a party was a contributory to receive money or other advantages, he must necessarily be a contributory to pay expenses, which might have been necessary as inceptive of profit. At the conclusiou of the argument for the respondent in another case on the 3rd July. JUDGMENT. The VICE-CHANCELLOR.-In his opinion, there VICE-CHANCELLOR TURNER'S J. Templeton Wood, for the defendant, cited Doe 66 The VICE-CHANCELLOR.-I feel satisfied that no In each particular case the question whether the real will, is to be determined only from the intention of general rule applicable to every case can be laid down. estate passes or not under the general words of a the testator as expressed in the will. All that can be done is to collect the intention from the context of the whole will; and it is the duty of the Court to examine with this object in view every clause of the will, and apply thereto the general rules of construction adopted by the Courts. Now, it is a well established rule of construction, that general words must be allowed their full effect, unless it is perfectly In considering the circumstances under which the clear that such effect is controlled by the context. cited in support of the passing of the real estate, testator in this case made his will, and the cases this fact appears. The will was made after the passing of the Wills Act (1 Vict. c. 26), and with a knowledge, therefore, of the provisions of that Act; for the testator must be presumed to have a knowledge of the contents of the Act of Parliament. The testator, therefore, must be presumed to have estate of which he might die seised, although he had known, that if he used several words of disposition, applicable to real estate and competent to pass such estate, those words would operate upon all the real not a single acre of land belonging to him at the or must be considered as knowing, that any future The VICE-CHANCELLOR said, that although he time of making his will. Examining, then, the dishad partly written his judgment in this case, he positions contained in the will, while bearing in would now state the conclusion he had come to. A mind that, at the time he wrote, the testator knew, brace them; first, the testator says, "I give, debeing a devise very able argument had been addressed to him by vise, and bequeath," the word Mr. Roxburgh, to prove that Mr. Carrick had acquired real estates would pass by any general word of itself applicable to real estate. The testator done something more than merely taking shares, records in the will which were large enough to empointproceeds, "all my estate and effects whatsoever and the word "wheresoever" and upon the effect of mere allotments; and he wheresoever; (Lord Cranworth) had looked into the case to see not stop ing to locality, and being, therefore, peculiarly He does if it resembled Upfill's case, and he thought at first that it did. What was the liability before the late applicable to real estate. there, but goes on to say, "of what nature and A clear intenstatutes? Certain persons endeavoured to form a kind soever the same may be." company, and in the progress of that endeavour tion appears on the will, therefore, to pass all his other persons agreed to take shares, and very large expenses were incurred. Ultimately the endeavour proved unsuccessful, and the expenses must of course be borne by those who unsuccessfully to give it to William Langford Jenkins. The words tried to form the company. There could be no comproperty, wheresoever and of whatsoever nature, and I have just referred to, if standing by themselves, be contended that they would not pass it. Then munity between the persons who failed to form the would undoubtedly pass real estate. It can hardly association and those who only agreed to take shares. There was no doubt that if, in addition to William Jenkins, by his will, dated 13th Septem- come other words, which may or may not operate to taking shares, a party had paid a deposit, he was entitled to recover it back; it was in effect a legal contract on certain valuable considerations. Thus ber, 1839, devised as follows:-"I give, devise, and control those general words. It is very remarkable, paid, the matter stood, independently of the recent statutes. bequeath all my estate and effects whatever and and it shews the necessity of attending closely in In consequence of the argument on this case, he had wheresoever, and of what nature or kind soever the each case to the particular language of the will, that looked minutely into those statutes, and the question same may be, unto William Langford Jenkins, now at, the clause which created in my mind the greatest was, whether they altered the law. He could form &c. such estate and effects to be paid, assigned, or difficulty, was not particularly commented upon It would transferred unto the said William Langford Jenkins, during the argument. It is the clause directing that pay, assign, and transfer," in their more ordinary no other opinion than that they did not. sense apply rather to personal than to real estate, have been a most extraordinary thing that as between upon his attaining the age of twenty-one years." the testator's estate and effects are to be " parties forming a company and those agreeing to be- The tes ator then directed that in the meantime and assigned, and transferred." No doubt the words It is clear that real estate may be said to be come members, the Legislature should have had any until he should attain that age, the interest, divisuch intention; indeed it could not be attributed to dends, or proceeds of such estate and effects, or so it. The projects became so numerous as to be a much thereof, or so much of the principal thereof, but they are not necessarily confined to personal nuisance, and it became necessary to provide a as in the discretion of the executors should be estate. remedy. The Act, therefore, provided that provi- necessary for that purpose, should be applied to- transferred by any conveyance by which it passes sional registry was first necessary, but then nothing wards the maintenance, education, and putting forth from one owner to another. The testator, after I may observe, the word "proceeds but issuing handbills, making surveys, &c. could be in the world of William Langford Jenkins. The tes-directing it to be "transferred" on attaining twentydone, for by the 23rd section the parties were not tator then appointed E. W. Wadeson and R. Green one, goes on to say, that in the meantime, described as a company, but "promoters." If the executors of his will, and guardians of William interest, dividends, and proceeds of such estate and His proceeds of such estate ;" then come the words which affair was carried on by the Board themselves by a Langford Jenkins, and gave the power to alter and effects." deed, and obtained complete registration, and be- vary the securities, and to lay out the same on real would clearly include both real and personal estate. came a corporation, could choose directors, take or personal security, and to reimburse themselves all The testator directs "the interest, dividends, and shares, inspect accounts, &c. as partners, none of expenses out of the said "estate and effects." which things they could do up to that time, will concluded as follows:-"And I give and be- I confess, in the first instance, embarrassed my mind, not vary the case of preliminary ex- queath unto my said executors a legacy of 1001. each, and which, but for the case of Saumarez v. Saupenses being the subject of special contract be- and in the event of the said William Langford Jen- marez, I should have felt a difficulty in getting over.. tween the parties. The Joint-Stock Act did not kins not attaining the age of twenty-one years, I The words are, "the interest, dividends, and pro this did COURT. Reported by J. HENRY COOKE, Esq. Barrister-at-Law. Tuesday, May 13. 66 وو the 210 V. C. TURNER'S COURT. 66 V. C. TURNER'S COURT. [Vol. 17. No. 432. V. C. TURNER'S COURT. ceeds of such estate and effects, or thereof, or so much of the principal thereof taken by the company shall be the property of agreement with the plaintiff, Mr. Phillip Barker so much that all timber and other trees on the lands to be other the promoters of the Act, entered into an as in the discretion of my executors shall be neces- the said P. B. Webb; and it is hereby de- Webb, an extensive landowner, near Godalming, in sary for the purpose to be applied towards the clared, that the sum of 4,500. is to be the Surrey, by which they agreed, amongst other things, maintenance, education, and putting forth in the purchase-money for the said land so to be taken by to build a bridge between certain points marked on world of the said William Langford Jenkins." The the company for the formation of their railway not the plan annexed to the agreement, to connect his words " so much of the principal thereof" cannot exceeding eight acres, according to such deviated property which should be divided by the proposed be applied to real estate. By that word most of the line as aforesaid, across the property of P. B. Webb, railway; to build an archway under the railway difficulty, in my mind, during the argument, was described in the plan, and for the consequential between certain other points mentioned in the plan, created. He then goes on and appoints executors of damage to such property." his will, whom he names guardians of William plaintiff's agent wrote at the foot of the agreement proposed to be divided by the railway, and to allow Langford Jenkins, and he authorises them to invest the following memorandum:-"It is understood the plaintiff to cross over the railway on a level On the same day the so as to continue the Shrubbery-walk, which was his said "estate and effects in real or personal se- and agreed by and between the parties above named, between certain points; and, further, that they curity." Upon those words another difficulty arises, that, in the event of the Act of Parliament referred should not erect any station on any part of the lands just the same as the difficulty on the word "prin- to in the foregoing agreement not being obtained, of the plaintiff, which might be seen from the cipal," and one which must be answered in the same the agreement for purchase hereinbefore contained mansion-house or the grounds surrounding the manner; then come the words "I direct my exe- shall be null and void." cutors to repay and reimburse themselves out of my their Act in June following. In April, 1847, the enter upon, nor deposit soil or refuse, earth, or other said estate and effects." I think that may apply company, by an indenture under seal, ratified and materials on the plaintiff's lands (except such as The company obtained same; and, ninthly, that the company should not both to real and personal property. nothing more in the will except that in the event of the plaintiff's withdrawal of his opposition to their railway), for any purpose whatever, without the plainThere is confirmed the above agreement in consideration of should be taken by the company for the site of the W. L. Jenkins not attaining the age of twenty-one, Bill. It was alleged that subsequently the company tiff's consent; and, lastly, that the company should the testator gives, devises, and bequeaths all his had entered on the plaintiff's lands for the purpose pay to the plaintiff 4,5007., together with his costs, aforesaid trust estate and effects to his executors. of marking out the line, and that they had removed charges, and expenses, incurred up to the day of the Upon that will nothing can be more clear than that some trees and parts of the fences. In June, 1849, date thereof, by reason of the intended formation of the testator did not intend to die intestate as to any the power of taking land by the company ex- the railway (not exceeding the sum of 1501.), before portion of the property belonging to him either at pired, the project of forming the line from the company should enter on any of the plaintiff's the period of his will or of his death. Words occur Epsom to Portsmouth having been abandoned. lands, for the purpose of making their railway; and in the will and in the devising clauses thereof, On behalf of the plaintiff it was argued, that the that all timber and other trees on the lands, to be peculiarly applicable to real estate, and which are entry on the land was made in pursuance of the taken by the company, should be the property of the undoubtedly competent to embrace such estate. agreement, and that where no fixed time for pay-plaintiff; and it was thereby declared, "that the [His Honour then examined with great minuteness, ment is made in such an instrument as the agree- sum of 4,5001. was to be the purchase-money for the the authorities bearing on the question. In New-ment in question, the money becomes payable on said land, so to be taken by the company for the land v. Majoribanks, the words possessed," occurred. In Doe dem. Spearing v. Bland v. Crowley, decided in the Court of Ex. (not according to such deviated line, as aforesaid, across estate," and the event, namely, the Act passing. The cases of formation of their railway, not exceeding eight acres, Buckner, there were the words "estate," and ecutors and administrators;" in Doe Hurrell v. Liverpool and Manchester Railway Company, de- and for the consequential damage to such property." ex-reported) in May last, and that of Preston v. The the property of the plaintiff, described in the plan, Hurrell, 66 executors, administrators, and assigns," cided by Lord Cranworth in the present month, At the foot of the agreement a memorandum was though Morrison v. Hoppe, was decided against were cited and relied on. For the defendants it was written, signed by the plaintiff's agent, by which it the passing of real estate to such persons. Woollam contended, that the agreement was not absolute was understood and agreed by and between the parv. Kenworthy, was not a devise of real estate. and unconditional, but depended upon the line being ties, that in the event of the Act of ParliaSaumarez v. Saumarez, seemed to govern the pre-actually formed. This was evident from the other ment referred to in the foregoing agreement sent case, both for the general principle laid down clauses of the agreement, providing for bridges, not being obtained, the agreement for purchase by Lord Cottenham, and for the word "transfer " being used. He then concluded as follows:] "The possible by the expiration of the powers of the com- This agreement was entered into while the comarches, &c. The formation of the line was now im- thereinbefore contained should be null and void. result is, that in consideration of the context of the pany; and the plaintiff still remained in possession pany's Bill was pending in Parliament, Mr. Webb whole will I find nothing of necessity controlling or of this property. As the company were incorporated, being a landowner upon the line of railway, the conconfirming the meaning of the general word but their power of taking land was gone, they could sideration for it being the withdrawal of his oppo"estate; a term which, in its literal sense, is not hold any without violating the Mortmain Act. sition to the Bill. After the agreement was entered, strictly applicable to real estate. therefore, is, that the copyhold premises in question the Lands Clauses Consolidation Act, with the liament was passed. On the 5th of April, 1847, the My opinion, The entry which had been made was merely under namely, on the 26th of June, 1846, the Act of Parpassed by the will. I have given my opinion the provisions of which the plaintiff must be pre- company executed an indenture under seal, by which more readily without reference to the authorities or sumed to a court of law from my recollection of the nume- If the company proposed to pay this large ments which they had entered into in July 1845. It rous instances in which contradictory certificates sum of 4,500l. for eight acres of land, any share- was for the specific performance of the latter agreeto be as familiar as the company. they agreed to keep all the covenants and agreehave been returned to questions of construction holder might restrain the directors from so applying ment that the present claim was filed. The comreferred to these courts. the capital, as it would be very unjust to compel pany, it appeared, had entered upon the lands compayment for that which had not been actually taken. prised in the agreements for the purpose of setting Harnett v. Yalding, 2 Sch. & Lef. 549, were cited pressly admitted that the company had in no other The cases of Kimberley v. Jenning, 6 Sim. 340, and out the line and taking out the levels. It was exto shew that equity would not lend its aid to en-way taken possession or interfered with the lands of Court would not compel the company to buy land ficulties, and having abandoned the railway, had force what, at the least, was a hard bargain. The the plaintiff. The company had fallen into difwhich by reason of the expiration of their powers no occasion for the land in question. Four points they could not use, and in consequence of the law of had been urged in opposition to the claim; mortmain they could not hold, but would leave the first, that the agreement was conditional upon plaintiff to his remedy at law, if he had any. In the company requiring the lands for the purreply, it was urged that the title of the plaintiff to pose of making the railway, and that the was purpose, was no agree Jaly 5 and 9. WEBB V. THE DIRECT LONDON AND PORTSMOUTH Specific performance-Railway company. hardship in compelling the company to perform their contract; and it was contended that the bargain was a good bargain at the time the company obtained their Act. The scrip rose, and profits were doubtless made upon the shares. It was no answer to say that they did not now want the land. A man who had purchased a pair of spectacles might as well say he ought not to pay for them, because he had become This was a claim filed by Mr. Philip Barker Webb a hardship to compel these companies to perform blind. The Legislature had decided that it was not against the Direct London and Portsmouth Railway their contract. Company praying the specific performance of an abandon their railways, but their contracts for the agreement entered into by them for the pay-purchase of land, and a Bill for that purpose had They sought power not only to ment of 4,500l. for the purchase of a por- passed through the House of Commons. The House tion of his land, amounting to about eight of Lords, however, had introduced the 19th section acres. The case made by the claim was, that in the Railway Abandonment Act (13 & 14 Vict. c. the company, having introduced their Bill into 83), providing that nothing therein contained should Parliament for making the railway, were opposed extend to release the companies from any liability to by the plaintiff, through whose land the line was in-purchase land where the agreement was part pertended to pass; that in July, 1845, they entered into an agreement, in consideration of the withdrawal of his opposition, in which, after providing for the erection of a bridge for the plaintiff over the railway, for making a deviation so as to avoid interference with his meadow, for building an ornamental archway under their railway so as to connect a shrubbery with another part of his garden, and after stipulating said that the claim was filed for the specific performJUDGMENT. Wednesday, July 9.-The VICE-CHANCELLOR against the erection of any station, and other mat-ance of an agreement, dated the 23rd day of July, ters, they agreed as follows:-"Lastly, that the company shall pay to the said P. B. Webb 4,500l. together with the costs, charges, and expenses incurred up to the day of the date hereof, by reason of the intended formation of the said railway (not exceeding the sum of 1507.), before the company shall enter upon any of the lands of the said P. B. Webb, for the purpose of making their railway; and formed, or the price of the purchase money was The Solicitor-General and Moxon for the plaintiff. 1845. On that day, Mr. Charles Sedgefield Crowley, of Croydon, Mr. Benjamin Baines, of Islington, and Mr. John Laurie, of Charles-street, St. James'ssquare, three of the promoters of an Act of Parliament for making a railway from the Croydon and Epsom Railway, at Epsom, to the town of Portsmouth, to be called "The Direct London and Portsmouth Railway," on behalf of themselves, and all ment to bind them. Secondly, that the 4,5007. was the price not only of the lands, but of the consequential damage, and that the price to be paid for the lands could not be distinguished, and the Court could not decree a specific performance of the agreement to pay the purchase-money. Thirdly, that the powers of the company having ceased they could not now take the land. And, fourthly, that the from decreeing a specific performance. The first hardship of this case ought to preclude the Court ment taken altogether, and not upon any particular clause of it. If the construction contended for were point depended upon the construction of the agree right, the agreement in effect would be an agreement for a right to take the land, and not for the purchase of the land itself; it would be an agreement that if they took the land they would give 4,500%. and for consequential damage. This was not a very probable contract for a landowner to enter into, the consideration for it being that he was to give up his to be considered whether it was so or not. If such opposition to the Bill. It might be a question had been the meaning of the parties, all the provi were absolute, and depending upon no condition, and sions of the agreement would have been subject to provisions to build the bridge and make the arch the land for these purposes must be vested in the that condition; but that was not the case. The company. The clause upon which the argument was founded could hardly be intended to be conditional, the sum to be paid for costs being mentioned in the most positive manner. The construction contended for was not a necessary one; it was arrived at by considering the clause as to the payment of the 4,500l. as over-riding the whole of the argument. He saw no reason for such a construction as that the same date the uses were declared to be to B. This was a case directed by the Court of Chancery JUDGMENT. QUEEN'S BENCH. contended for by the company. It might well be, the intended fraud. John Tarleton soon afterwards, that the latter part of the clause, "and it is hereby on the 22nd June, 1815, became bankrupt; and on the declared, that the said sum of 4,500l. is to be the 11th of July, 1816, the usual conveyance of all his purchase-money for the land so to be taken by the estates and property was made to his assignees. On company for the formation of their railway, not extheir petition the Court of Chancery, on the 2nd of ceeding eight acres, according to such deviated line July, 1819, directed an issue at law to try whether as aforesaid, across the property of the said P. B. the deeds of recovery were fraudulent and void in Webb, described in the said plan, and for the conselaw as against the creditors of John Tarleton. The quential damage to such property,"-it might well be issue was tried, and the jury found that they were that that was an independent agreement, and thus a fraudulent and void as against the creditors. After clause, which was said to override the whole agreethis finding the Court of Chancery, upon the 16th of ment would become a clause making 4,500l. payDecember, 1819, decreed that the deeds of recovery able before the company could enter upon any of were fraudulent and void as against the creditors, the land of the plaintiff. Having regard to the and that the assignees were entitled to possession; other clauses of the agreement, and to the proviand on the 12th of March, 1821, further ordered that sion as to the cost. His Honour was of opinion the deeds should be delivered up to the assignees to that this was the sound construction of the agreebe cancelled, which was done accordingly. The dement, and that the company's first point could not cree does not profess to reverse the recovery, or to be maintained. But, then, it had been said that set it aside, nor indeed had the Court any power or the 4,500l. were to be paid for the land, and for conjurisdiction to do either the one or the other; but sequential damages, and the Court could not enforce an the Court ordered the deeds to be cancelled, which agreement where no definite price was fixed for the they clearly had jurisdiction to do; and if by that deland, and that this was not a case for compensation cree and order the deeds of the 17th and 18th of under the Act of Parliament, where there had been March, to lead to the uses of the recovery, were a separate and distinct agreement to accept a sum in wholly inoperative, the present plaintiff cannot have full for the purchase, and for all damage sustained any interest in the estates, because it is only by the by the use the company were about to make of the release giving John Collingwood Tarleton an estate land. But it could surely be maintained that a for life only, with remainder to his first son in tail company were to be discharged from their contract male, that the plaintiff can found any claim. It because they were unable to use the land for the was contended for the plaintiff that the proceedings purpose contemplated. He could not hold that in Chancery were altogether void; that the the substance of the agreement, which was deeds of the 17th and 18th of March, 1815, were for the purchase of the land, was to be defeated, or executed on good consideration and valid in law, against the vendor, because there had been a default but no consideration given to John Collingwood on the part of the purchaser. The second point Tarleton for extinguishing the estate tail in remade by the company was, therefore, not sustainmainder, and taking back only an estate for life was able. The third point made was, that the company shewn, except that of his having his father John could not now take the land. He had expressed a Tarleton's estate for life in the settled property, and strong intimation of his opinion on this point during also an estate for his own life in the unsettled prothe argument, and he saw no reason for changing The case was argued Friday, April 25 (a) by Pea-perty conveyed to him. The conveyance being that opinion. The argument was founded upon the cock (with him W. T. S. Daniel) for the plaintiff; clearly fraudulent and void, under the 13 Eliz. company's private Act, by which it was provided, Butt (with him Crompton and Prior) for the defen- nothing whatever passed to John Collingwood Tarlethat the railway should be completed within five dant. Cur. adv. vull. ton by the deeds; and the consideration having years, and that at the expiration of such period the utterly failed, not by matter ex post facto, but by powers given by the general Act for executing rail- Lord CAMPBELL, C.J.-The question in this case reason of the original fraud in John Tarleton, the way works, or otherwise relating thereto, should being, whether the plaintiff, Bannister Tarleton, an father, nothing in the estates, therefore, passed to cease to be exercised, except as to so much of the infant, had any estate or interest in certain estates his son, and the case stands the same as if there had railway as should then have been completed. This comprised in an indenture of settlement of the 30th never been any consideration or professed conclause, as he thought, clearly took away the powers of September, 1790, of which estates a common sideration whatever. The case of Doe v. Mitton granted to the company, but it did not affect their recovery was suffered in Easter Term, 1815; it and Others, 2 Wilson, 356, which was relied on by obligations. It had been argued that one of their is material to see who were the parties living the plaintiff's counsel, is wholly different from the powers was to take land, but that was gone. The an- and interested in the estates at the time of the reco-present; for there the party conveying and settling swer to that was, that they had actually taken the very. John Tarleton, the grandfather of the plain- the land did take a benefit, and had good consideraland by the contract, by which they had become in tiff, then a trader within the bankrupt laws, was tion in having part of the lands of which he was equity the owners, having a right to keep the land. tenant for life, with remainder to his wife, Isabella, seised in fee discharged from an annuity. We are, A different construction would put an end to all rail-for life; with remainder to his son, John Colling therefore, clearly of opinion that the proceedings in way contracts, where railways were not actually wood Tarleton, the father of the now plaintiff in tail Chancery were quite right. The only question is, made, and when the time granted by the Acts for male; with remainders to the younger son of John what is the effect of them with regard to the estate making them had passed. As to the fourth point, and Elizabeth Tarleton, namely, Edward Thomas of John Collingwood Tarleton, in which the assig namely, the ground of hardship, he saw no ground Tarleton, in tail male; with remainder to Margaret nees of his father, John Tarleton, had no interest? upon which he could refuse to interfere. The com- Ann Tarleton, the daughter of John and Isabella The 4th section of the 13 Eliz. c. 5, was relied on as pany had entered into the contract with their eyes Tarleton, in tail general; with remainder to Alexan- shewing that the recovery, though fraudulent within opened, and they had had the benefit of the consi- der Collingwood, the original settlor in fee. John that statute, would stand good as to other parties; deration by the withdrawal of the plaintiff's opposi- Collingwood Tarleton had attained twenty-one years and therefore, that as John Collingwood Tarleton tion to the Bill in Parliament. There was nothing of age in 1815, but was not married till many years was no party to any fraud, it would stand good as to to shew that the agreement was not a fair one. It afterwards. An indenture of bargain and sale, dated him, and enure to the uses which he had declared had been written, in the first instance, and some the 18th of March, 1815, was executed, by which by his deed. Now the words of the section, when time afterwards had been confirmed by a deed John Tarleton, Isabella his wife, and John Colling- examined, clearly shew that they apply only to perof the company under seal. It was not be-wood Tarleton joined in making William Ainge a sons who are not parties to the recovery, but have cause the company found themselves unable to tenant to the præcipe for the purpose of suffering a estates in remainder or reversion subsequent to and complete the railway that he could refuse to common recovery, in which Robert Black should be expectant on the estates of those who are parties to compel a specific performance at the instance demandant, to such uses as should be expressed in the recovery. This section speaks of recoveries had of the vendor. The decree must declare that the another indenture of the same date. That recovery against tenants in tail or other tenants of the freeagreement of the 23rd of July, 1845 was not condi-was suffered in which Isabella Tarleton and John hold, the reversion or remainder, or the right of retional upon the land therein mentioned being wanted Collingwood Tarleton were vouchers who vouched version or remainder then being in any other person for the purpose of the railway, but that according to over the common vouchee. It is plain that there or persons; and it enacts that "every such recovery the construction of the agreement, Mr. Crowley were proper parties to this recovery, and that it shall, as touching such person or persons, who are Mr. Baines, and Mr. Laurie, as promoters of the was in all respects regular. By indenture of lease in remainder or reversion, stand, remain, and be Act, were absolutely entitled to become purchasers, and release of the 17th and 18th of March, 1815, of such like force and effect, and none other, as if for 4,5001. of the land for the purpose of the intended John Tarleton, and Isabella his wife, and John Col- this Act had never been made." It is clear that the railway, and that by virtue of the indenture of the lingwood Tarleton being parties to the release, the uses persons there spoken of are not those against whom 5th of April, 1846, the company were bound by the of the recovery were declared to be to John Cola recovery is had. No doubt at all can exist as to agreement, and the plaintiff was entitled to have the lingwood Tarleton and his heirs during the life of the meaning, supposing the recovery to be suffered same specific performance. There must be a refer- John Tarleton, for his own proper benefit, with re- by the tenant in tail in possession; nor can it make ence to the Master to inquire into the title of the mainder to Isabella Tarleton for life; with remain-any difference that in this case the tenancy in tail land comprised in the agreement. der to John Collingwood Tarleton for life, with re- was in remainder, for the recovery is had not only mainder to his first and other sons in tail against the immediate tenant to the præcipe, but mail, under which Bannister Tarleton now claims; with remainder to Edward Thomas Tarleton for life, with remainder to the first and other sons in tail male, with remainder to Margaret Ann Tarleton for life, with remainder to her first and other sons in tail male, with sundry other remainders to unborn children, and with the ultimate remainder to John Tarleton in fee. By the same indenture other estates of which John Tarleton was seised in fee were conveyed by him to the said uses, except that John Collingwood Tarleton was to take an immediate estate for life in them. John Tarleton was at the time insolvent, and knew that he was so, and all this was done by him for the purpose of defrauding his creditors. But John Collingwood Tarleton was ignorant of the insolvency and of (a) Before Lord Campbell, C.J., Patteson, Wightman, and Erle, JJ. Common Law Courts. COURT OF QUEEN'S BENCH. Reported by ADAM BITTLESTON and PAUL PARNELL, Esqrs. Barristers-at-Law. Tuesday, June 17. TARLETON v. Liddell. Voluntary Conveyance-Fraud upon Creditors- against the vouchee; the meaning of the clause evidently is, that although the uses of a fraudulent recovery shall not prevail to defraud creditors, yet that the recovery shall stand good to bar those in remainder or reversion as if there had been no fraud. John Collingwood Tarleton is not a person having a remainder or reversion within the meaning of this section of the statute, and therefore nothing that he has done in regard to the recovery can be affected by it, and the now plaintiff was not such a person, for he was not born till many years afterwards. But Edward Thomas Tarleton (the younger brother of John Collingwood Tarleton and Margaret Ann Tarleton his sister), and Alexander Collingwood, the original settlor, may be said to have been persons having the remainder or reversion, and, therefore, as regards them, the recovery may stand good as they fall under that section of the statute. It |