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THE MASTER OF THE ROLLS:

The question now raised was not alluded to at the hearing, but I now think, that the difficulty arising from the statute. of 5 & 6 Vict. c. 27, is insuperable.

At the hearing, I made a decree for specific performance, with a reference to chambers to settle the lease; the draft of a lease was carried in, and this objection being then taken the matter was brought before me on an adjourned summons. It was argued, that this objection to the lease would be an objection to the decree for specific performance, but although the decree has been enrolled and the cause cannot be reheard, still it appears to me, that it is impossible to get over the objection. The agreement for a lease between the incumbent and the defendant is express, that the rent shall be reserved half-yearly, and the Act of Parliament imposes certain conditions upon incumbents in granting leases, it empowers them to grant leases for fourteen years, so that there be reserved or payable quarterly" the "best and most improved yearly rent."

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The question resolves itself into this: whether the Act of Parliament is imperative in saying, that the rent shall be reserved quarterly, and if it is, then, whether I can force on the defendant a lease reserving the rent quarterly. Secondly, whether, notwithstanding the Act, I can approve of a lease in which the rent is reserved half-yearly.

I am of opinion that the Act is imperative, and that it is impossible to get over the words of it; it is a permissive clause enabling incumbents to grant farming leases, but with this express condition: that the best rent shall be *reserved quarterly. The agreement, on the other hand, is precise, that it shall be paid half-yearly. It is true that in Kerr v. Pawson (1), I held, that when there is an Act of Parliament which relates to the subject-matter of the contract between two persons, it must be assumed that they had the Act present to their minds, and that as to all matters left in doubt by the contract, the Act must be considered as incorporated in and as forming a portion of it. I should act here on that principle in all matters which are not provided for in the written agreement. But when the contract is precise and at variance with the Act of Parliament, it is impossible to come to the conclusion that the parties had the Act in their minds, and that they intended it to control the express terms of their contract.

I think the mode of reservation of the rent is an essential part of the contract, and not a mere formal matter; for it

(1) 119 R. R. 470 (25 Beav. 394).

may be of great importance to a person whether he receives his rent half-yearly or quarterly. Therefore, I cannot say that the rent may be reserved quarterly.

The only other question is, whether, under this Act, I am at liberty to approve of a lease which reserves it half-yearly. As far as the defendant is concerned, if he had not raised the objection, and the lease had been granted sub silentio with the sanction of the patron and Ordinary, I am of opinion the defendant would have had a perfectly good and valid lease. The fourth clause was introduced to meet this difficulty, and I am of opinion. that a perfectly good title would have been given to the defendant. But the difficulty is this: it is for me to approve of the lease as well as the Bishop *and Ordinary, and can I, with propriety (having come to the conclusion that the Legislature has made this condition imperative, that the rent shall be reserved quarterly, and that I have no power to enforce it on the defendant) approve of a lease which reserves the rent halfyearly, and assume that the Ordinary would consent to it? I am not entitled to throw the burden on the Bishop and say, "if you consent I will consent also," or to say, if you approve of it I will force the lease on the defendant." I think also, that I cannot disregard this clause in the Act, and say, that a lease which reserves rent in a manner different from that authorized by the Act is a proper lease.

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All I can do on the present summons is, to say that I cannot approve of a lease, and, to prevent further expense, it would be well for the parties to consider whether it would not be better to consider the cause before me for further consideration. I may then dismiss the bill, upon a good title not being shown, notwithstanding that on the first hearing a decree was made for specific performance.

[The case being in chambers was again brought before the consideration of the MASTER OF THE ROLLS with reference to the question whether the proposed lease, being valid under 13 Eliz. c. 10 (which did not impose any restriction as to reserving rent half-yearly or quarterly), was subject to the restrictions imposed by the later enabling Act (5 & 6 Vict. c. 27), which did not propose to destroy any previous existing right created by the earlier statute. The case was reargued by the same counsel on both sides, and the MASTER OF THE ROLLS delivered judgment as follows.-O. A. S.]

THE MASTER OF THE ROLLS:

I am of opinion that the lease agreed to be granted by the plaintiff would have been perfectly valid if granted

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the 5 Vict. c. 27, for it in no way contravenes the restrictions imposed by that statute.

I am also of opinion that the last statute in no way impairs the powers of incumbents under the former Act.

It was contended, on behalf of the defendant, that *all the statutes must be read together; but if I acceded to this argument, to its full extent, I must, in fact, decide that the earlier statutes are repealed by the last, which contains no such repealing clause. I think the object of the 5 & 6 Vict. c. 27, was to give additional power to grant leases of land attached to benefices, in cases where no such power previously existed. Thus, for instance, by the former Act, no power was given to let lands which had not been accustomed to be let, for the accustomed rent must be reserved, but such a power is conferred by the later statute.

The discrepancy pointed out between the two Acts renders it impossible to read them together, and, according to the rules of interpretation of statutes, the former statute cannot be held to be repealed merely by inference.

The incumbent has agreed to grant a lease of these lands, which he has been accustomed to let, and conformable with all the restrictions in the first Act; I think the last Act does not restrict his power, and that he is able to grant the lease.

SMITH v. EVERETT.

(27 Beav. 446-456; S. C. 29 L. J. Ch. 236; 7 W. R. 605.)

The good-will in a partnership business does not, on the death of one partner, survive beneficially to the others; when it has any value, a due proportion belongs to the estate of the deceased partner, but the surviving partner has still the right to carry on the same business and at the same place (1).

After the decease of one of two partners in a Bank, the survivor sold the business for 10,000l.: Held, that the estate of the deceased was entitled to a share of so much of the 10,000l. as was attributable to the good-will, and special inquiries were directed to ascertain the value, having regard to the fact, first, that the partnership premises belonged to the survivor, secondly, that he had still the right to carry on the same business in the same locality, and thirdly, that the sole right of issuing notes, under the Bank Charter Act, 1844 (7 & 8 Vict. c. 32), belonged to him.

One of several executors may settle an account with a person accountable to the estate, and in the absence of fraud the settlement will be binding on the others, though dissenting (2).

CHARLES WILLIAM EVERETT and William Smith carried on business in partnership as bankers at Salisbury. The Bank,

(1) The modern leading case upon this point is Trego v. Hunt [1896] A. C. 7, 65 L. J. Ch. 1, 73 L. T. 514, where the earlier cases are cited and considered. Later decisions on the same point are Jennings v. Jennings [1898] 1 Ch. 378, 67 L. J. Ch. 190, 77 L. T. 786: I David and Matthews [1899] 8 L. J. Ch. 185; Curl

1

Brothers, Ltd. v. Webster [1904] 1 Ch. 685; 73 L. J. Ch. 540, 90 L. T. 479; Hill v. Fearis [1905] 1 Ch. 466, 74 L. J. Ch. 237.-O. A. S.

(2) Astbury v. Astbury [1898] 2 Ch. 111, 67 L. J. Ch. 471, 78 L. T. 494; Midgley v. Midgley [1893] 3 Ch. 282, 62 L. J. Ch. 905, 69 L. T. 241.

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called the New Sarum Bank," was established in 1811 by Mr. Everett and others, and Mr. Smith, who had formerly been a clerk in the Bank, was admitted as a partner about 1835. The partnership between Mr. Everett and Mr. Smith was carried. on under the style of "Everett and Smith." The Bank was one of issue and deposit, and, under the Bank Regulation Act (7 & 8 Vict. c. 32), it was entitled to issue notes to the extent of 15,6951. On these notes were printed the arms of the city of Sarum and the name of the firm, and of "The New Sarum Bank." The partners had executed no articles of partnership, and were entitled to the profits in equal moieties. The house in which the business was carried on was Mr. Everett's own freehold property, and had been rented, from year to year, by the partnership firm.

William Smith died on the 8th of July, 1856, having appointed his widow (the plaintiff), and Mr. Everett, and two gentlemen named E. and J. Nicholson, his executors. Mr. Everett renounced and disclaimed on the 11th of June, 1857, and the others proved the will. *After the testator's death, the business was carried on by Mr. Everett alone on the same premises, and under the style of Everett and Smith, until the 7th of February, 1857. In December, 1856, Messrs. Pinckney entered into negotiations with Mr. Everett alone, for the purchase of the banking business; they were willing to give 10,000l. for it, but being advised that any new firm would lose the privilege of issuing notes, under the Bank Regulation Act of 1844 (7 & 8 Vict. c. 32), unless Mr. Everett remained in the firm, they required him to enter into a temporary partnership with them. Ultimately, on the 27th of January, 1857, an agreement was signed, by which, in consideration of 10,000l. paid to Mr. Everett, he agreed to enter into partnership with Messrs. Pinckney for one year, and Mr. Everett agreed to grant to Messrs. Pinckney a lease of the Bank premises for seven years, with the option of becoming the purchasers during that period. Messrs. Pinckney were to take and bear all profits and losses, and to indemnify Mr. Everett, who, on his part, bound himself, during the first six months, to take an active part in the management of the Bank.

They carried on the business under the old name of the "New Sarum Bank," but changing the style or firm to "Everett and Pinckney," they continued to issue their notes in a similar form to the old ones, with the variation as to the firm.

Subsequently to this, Mr. Everett, on the 3rd of March, 1857, sent to the solicitors of E. and J. Nicholson (the executors) a copy balance sheet, which was examined with the books by

SMITH

ľ.

EVERETT,

[ *447 ]

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the 5 Vict. c. 27, for it in no way contravenes the restrictions imposed by that statute.

I am also of opinion that the last statute in no way impairs the powers of incumbents under the former Act.

It was contended, on behalf of the defendant, that *all the statutes must be read together; but if I acceded to this argument, to its full extent, I must, in fact, decide that the earlier statutes are repealed by the last, which contains no such repealing clause. I think the object of the 5 & 6 Vict. c. 27, was to give additional power to grant leases of land attached to benefices, in cases where no such power previously existed. Thus, for instance, by the former Act, no power was given to let lands which had not been accustomed to be let, for the accustomed rent must be reserved, but such a power is conferred by the later statute.

The discrepancy pointed out between the two Acts renders it impossible to read them together, and, according to the rules of interpretation of statutes, the former statute cannot be held to be repealed merely by inference.

The incumbent has agreed to grant a lease of these lands, which he has been accustomed to let, and conformable with all the restrictions in the first Act; I think the last Act does not restrict his power, and that he is able to grant the lease.

SMITH v. EVERETT.

(27 Beav. 446-456; S. C. 29 L. J. Ch. 236; 7 W. R. 605.)

The good-will in a partnership business does not, on the death of one partner, survive beneficially to the others; when it has any value, a due proportion belongs to the estate of the deceased partner, but the surviving partner has still the right to carry on the same business and at the same place (1).

After the decease of one of two partners in a Bank, the survivor sold the business for 10,000l. Held, that the estate of the deceased was entitled to a share of so much of the 10,000l. as was attributable to the good-will, and special inquiries were directed to ascertain the value, having regard to the fact, first, that the partnership premises belonged to the survivor, secondly, that he had still the right to carry on the same business in the same locality, and thirdly, that the sole right of issuing notes, under the Bank Charter Act, 1844 (7 & 8 Vict. c. 32), belonged to him.

One of several executors may settle an account with a person accountable to the estate, and in the absence of fraud the settlement will be binding on the others, though dissenting (2).

CHARLES WILLIAM EVERETT and William Smith carried on business in partnership as bankers at Salisbury. The Bank,

(1) The modern leading case upon this point is Trego v. Hunt [1896] A. C. 7, 65 L. J. Ch. 1, 73 L. T. 514, where the earlier cases are cited and considered. Later decisions on the same point are Jennings v. Jennings [1898] 1 Ch. 378, 67 L. J. Ch. 190, 77 L. T. 786; In re David and Matthews [1899] 1 Ch. 378, 68 L. J. Ch. 185; Curl

Brothers, Ltd. v. Webster [1904] 1 Ch. 685; 73 L. J. Ch. 540, 90 L. T. 479; Hill v. Fearis [1905] 1 Ch. 466, 74 L. J. Ch. 237.-O. A. S.

(2) Astbury v. Astbury [1898] 2 Ch. 111, 67 L. J. Ch. 471, 78 L. T. 494; Midgley v. Midgley [1893] 3 Ch. 282, 62 L. J. Ch. 905, 69 L. T. 241.

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