costs. After it has been determined, that the defendant is not at liberty to use that colourable imitation of the plaintiffs' labels, and that the plaintiffs are entitled as of right to an injunction to restrain him, it is impossible for the Court to avoid giving the plaintiffs the general costs of the suit as against the defendant who has failed, and who insists that he is not liable to pay that which generally follows the decision of a right, namely, the costs of obtaining that decision. The defendant at the hearing argues particular points of evidence, and asks for the costs relating to them; but I cannot accede to the defendant's view. A mass of costs has been caused by the defendant not giving way in a matter in which, in my opinion, he had no right to resist, and the consequence is, that the injunction must be made perpetual, and the defendant must pay the costs of the suit.

GASKELL v. CHAMBERS (No. 1).
(26 Beav. 252.)

A Company, though not formally dissolved, had practically ceased to exist, and had no office or officers. The Company being made defendants in a suit, the COURT ordered that service of the bill on the late chairman and the secretary should be good service on the Company.

BARNARD v. CAVE.

(26 Beav. 253-254; S. C. 7 W. R. 158.)

The plaintiff agreed to take a lease of a public-house from the defendant (a brewer), but the written contract said nothing as to the restrictive covenants of a brewer's lease. The plaintiff instituted a suit to obtain an unrestricted lease. The restricted parol agreement being established by extrinsic evidence: Held, that the bill must be dismissed. The plaintiff having then elected to take a brewer's lease, a decree was made, the plaintiff paying the costs of the suit.

THE plaintiff (a publican) agreed to take a lease of a publichouse belonging to the defendant (a brewer), and on the 8th of June, 1838, they signed the following memorandum of agreement:

"June 8th, 1857. Memorandum of agreement for a lease of fourteen years of a house intended for a tavern, situated at Aldershot, and called the Malakoff,' between William Cave on the one part, and James Barnard on the other part. The said James Barnard agrees to take and the said William Cave to let the above-named house for the term specified, and at the yearly rent of 120l. per annum. As witness our hands.

The draft of a lease was prepared in the form of a "brewer's lease," obliging the tenant to purchase the beer consumed in his house from the lessor, the brewer. The plaintiff refused

to concur in that restriction, and insisted on having a lease as of a "free public-house," and he filed a claim for the specific performance of this written agreement.

The defendant objected, that the real agreement come to between the parties, though not so expressed in the written instrument, was, that the lease should be a "brewer's lease." Considerable parol evidence was entered into, which it is unnecessary to state, the COURT having come to the conclusion, on the conflict of the evidence, that the parties had really agreed for a brewer's lease, though it was not so expressed in the written agreement.

Mr. Palmer and Mr. Cory, for the plaintiff.

Mr. Follett and Mr. Wickens, for the defendant.

Stangroom v. Townshend (1), Watson v. Marston (2), were

cited.

THE MASTER OF THE ROLLS:

On reading over the evidence in this case, I think it clear that the defendant never intended to allow the plaintiff to have what is called a "free public-house," but that it was intended that he should be restricted as to the sale of the beer consumed in it, and that it should be bought from the defendant. The written agreement, which specified only the amount of the rent and the term of years to be granted, left everything else open.

The agreement

as to the beer is a parol agreement, and is not

binding, the term being for fourteen years, and it could not be specifically enforced in this Court, but it is available as a defence. Nothing is more common than a parol agreement for a lease to be carried subsequently into effect by a lease in writing specifying more fully the terms.

BARNARD

In other cases besides the present, the Court has been made aware, that when a brewer lets his public-house, he usually stipulates for the sale of the beer to be consumed in it. The plaintiff was aware of this, and the evidence satisfies me that it formed part of the parol agreement between himself and the defendant. I am of opinion, therefore, that the plaintiff is not entitled to a decree for specific performance in the terms he

asks for it.

(Mr. R. Palmer: The plaintiff elects to take an ordinary brewer's lease.)

Then make a decree for settling the lease on that principle, and order the plaintiff to pay the costs of suit.

(1) 5 R. R. 312 (6 Ves. 328).

R.R.-VOL. CXXII.

(2) 102 R. R. 100 (4 D. M. & G. 230).

7

で、

CAVE.

[ 251]

Dec. 11.

1858. Nor. 5.

1858.

Nov. 11.

BOURDILLON v. BADDELEY.

(26 Beav. 255–256.)

Where by lapse of time a defendant's right to cross-examine the plaintiff upon his affidavit had expired, and the defendant applied for an opportunity of doing so, the COURT having heard the cause on motion for decree, and seeing no necessity for a cross-examination, made a decree.

[See now Order XXXVIII., r. 28.]

JONES v. THE CONSOLIDATED INVESTMENT

ASSURANCE COMPANY (1).

Rolls Court. (26 Beav. 256-260; S. C. 28 L. J. Ch. 66; 5 Jur. N. S. 214; 32 L. T. O. S. 307.)

ROMILLY,

M.R.

[256]

[ *257 ]

One of the conditions of a life policy was, that it should be void if the assured died by his own hand, except it should have been assigned to other parties, for valuable consideration, six months before his death Held, that a letter to A. B. charging it with a floating balance due to him, and made three years previous to the death of the assured by his own hand, assigned" it within the exception.

IN 1850, Edward Woolcott effected an assurance on his life with the Consolidated Investment Assurance Company for the sum of 6001.

One of the conditions endorsed on the said policy was as follows: "The policy of a person assuring his own life will become void if he dies by his own hand or by the hand of justice," &c., &c. 'But should such policies have been assigned to other parties, for a valuable consideration, six calendar months before the death of the assured, they remain in force, to the extent of the beneficial interest therein of the parties to whom they shall have been so assigned."

Edward Woolcott was in the habit of obtaining advances of money from the plaintiff on bills of exchange and promissory notes; there was a current account between them, and the plaintiff held the policy as a security for the amount due to him, from time to time, on such account current.

In June, 1854, Edward Woolcott signed and gave to the plaintiff the following letter: "I hereby authorize *and empower you to hold the policy of insurance you hold upon my life for 600l. as security, in case of death or otherwise, for any notes of hand or bills of exchange you may have cashed for me."

The same course of dealing afterwards went on between the parties down to the death of Edward Woolcott, and the plaintiff continued to hold the policy as a security.

On the 10th of November, 1857, Edward Woolcott shot himself.

He was indebted to the plaintiff at the time in a sum ex

(1) See the note to Dufaur v. The Professional Life Assurance Company in 119 R. R. at p. 564.--O. A. S.

ceeding 6001. His debt consisted of the returned cheques and the dishonoured bills and promissory notes of Sanders and Woolcott, amounting (after deducting the amount received) to 1,080l. 10s. All the items constituting this balance were subsequent to 1856.

The plaintiff claimed the amount of the policy, but the Company objected to his claim, and their solicitor stated, that the objections would probably be the following: "1. That there was no assignment of the policy. Should this be waived, as to which however we now offer no opinion. 2. Then the letter only covers the personal accommodation to Mr. Edward Woolcott, and has nothing to do with Sanders and Woolcott's unpaid cheques or dishonoured acceptances."

JONES

r.

THE CONSOLIDATED INVESTMENT ASSURANCE

The Company's solicitor afterwards stated the objections in the following terms: "Looking at the terms of the letter of 29th of June, 1854, first, it is open to doubt if it intended to relate to any bills beyond such as had been then cashed for Mr. Woolcott. You may have cashed for me' are the words. 2. In the next place, as we have already stated, it is not an assignment under the condition indorsed on the policy. 3. Nor, if treated as an assignment, does it appear to come within the condition, as it was not for valuable consideration.' 4. Nor can it be contended, as we think, that advances to Sanders and Woolcott' are advances to Edward Woolcott."

The plaintiff instituted this suit against the Company, praying a declaration of his right, and a decree for payment of the full amount of the policy out of the "stocks, funds and securities of the Company."

Mr. Lloyd and Mr. Bagshawe, jun., for the plaintiff, argued that the several objections above stated were untenable, and that it had been decided, in this Court, that an equitable assignment of the policy was within such an exception as the present: Dufaur v. The Professional Life Assurance Company (1).

COMPANY.

Mr. R. Palmer and Mr. Schomberg, for the Company, in opposition to the plaintiff's claim, relied on the several objections raised by the solicitor of the Company.

THE MASTER OF THE ROLLS:

On

I think the plaintiff is entitled to a decree in this case. the first point, I think there was an assignment to the plaintiff "six months before the death of the assured," within the terms of the special condition. Here is a letter written on the 29th of June, 1854, and the question is, whether that is an assignment.

(1) 119 R. R. 564 (25 Beav. 599).

[ *258 ]

JONES

ተ.

THE CONSOLIDATED

or not? *I entertain no doubt that this letter constitutes an assignment in equity, where alone, as it is a chose in action, it could be assigned. That being so, it is clear, that in the terms of the condition endorsed on the policy, it "has been COMPANY. assigned to other parties," and that this assignment was made, [ *259 ] not six months, but four years, before the death of the

INVESTMENT

ASSURANCE

L

[ *260 ]

assured."

66

I dissent from the doctrine, that, according to the terms of this letter, the assignment must be considered as constantly recurring, and that a fresh assignment would be required as each liability was incurred. It was given to a person with whom the assured intended to have dealings, as a security for the balance on the transactions.

As to the consideration, I think that the moment a sum became due from Edward Woolcott to the plaintiff, it constituted a good and valuable consideration for the purpose of supporting the assignment so made. It is true that if nothing had been due on it at the time, or if the balance had been on the other side, there would be no beneficial interest in the plaintiff or anything which this Court could give effect to. But the assignment would be perfectly good, though the beneficial interest in the thing assigned, viz. the policy, might sometimes be very small and sometimes very considerable.

I do not therefore doubt that there was here a perfectly good and valid assignment, within the terms of the policy, and that it was made "six months before the death of the assured."

The next question is, what is the construction of the letter, because, if it is only a security for money then *actually due, it will not cover subsequent advances. Though this is obscure, I do not think that such is the construction of the letter; but the parties themselves, in their subsequent dealings, seem to have put a construction on it of which it is susceptible, and which is favourable to the plaintiff's claim. The policy is to be held as a security, in case of death, "for any notes of hand or bills of exchange you may have cashed for me." This means not "now," but "then," that is, at any time when the event. may occur. The policy was not taken back when the sum actually due at the date of the letter was paid off, but it continued for more than three years in the hands of the plaintiff, and the parties continued to deal with each other on the same footing and in the same manner as if the policy were a security for the floating balance; and on the death of Woolcott there were bills and notes which the plaintiff had cashed and discounted for Woolcott.

I am therefore of opinion, first, that there is a good assign