part. It recites the deed of the 4th August, 1829, that to that supply, he took no part in the management of Lautour was indebted to the parties of the third part in the undertaking; that he was entirely ignorant of the the sum of 54397. 8s. 4d. for advances made by them transactions and of the business of the partnership, and, on account of Colonel Lautour, for the purpose of car- having fallen into pecuniary embarrassment, the derying on the partnership; and that it was agreed be- fendants, his partners, formed a scheme to exclude him tween the parties, in consideration of the said sum of from what they knew to be a very valuable concern, 5439. &. 4d. so due, and of 250%. to be paid to Lautour, and obtained from him a transfer of his interest therein he should release and convey to the parties of the third at an inadequate price; and that, for those purposes, part all his right to and interest in the property and they designedly kept him in ignorance of the true value, effects of the partnership, free of all claims, equity of which was known to them; and they wilfully and inredemption, and release all claims thereon, and declared tentionally took a fraudulent advantage of that ignothe dissolution of the partnership so far as regarded rance and of his distress, and by pressure compelled him, and stating the sum previously paid erroneously, him to execute the deeds which are now sought to be as I have before mentioned. It was witnessed, that, in set aside. Now, it is satisfactorily made out, that the pursuance of the agreement, and for the consideration plaintiff, although he might be imprudent, was not a therein mentioned, Marjoribanks & Ferrers, at the re- person wholly unacquainted with business or unmindquest and by the direction of Colonel Lautour, released, ful of his own interests. It is not true that he never conveyed, and assigned to Keate, Elphinstone, and interfered in the management, except in the procuring Marjoribanks all the right, title, and interest of Lautour a supply of horses and stock; and, on the contrary, it in and to all the property and effects of the partners, to appears, that, up to the 4th August, 1829, he took an hold the same to the use of Keate, Elphinstone, and active part in the concern, and had as good means of Marjoribanks, free of all right and equity of redemption, being, and probably was, as fully acquainted with the under the deed of August, 1829. He appointed them his transactions and business of the partnership as any of attornies for the purposes therein mentioned, and re- the other partners. Nothing was concealed from him. leased them from every claim which he might have All the partners were in more or less difficulty and against them for or in respect of, or by reason or on ac- embarrassment: they were engaged in a speculation count of, the co-partnership, or of any property or effects, which, to say the least of it, was very hazardous: matter or thing, belonging to them, or in any manner their expenses were greater than they had contemrelating thereto; and it was declared, that the partner- plated or were prepared for. It was impossible to ship was dissolved, and should cease, as far as concerned ascertain the true value of the concern; they were Colonel Lautour. The continuing partners did not obliged to depend upon agents, whose accounts were enter into this transaction without incurring the risks, not strictly to be relied on-accounts which were which could not be avoided, in consequence of Colonel flattering when advances were required, and the conLautour not having even then obtained his supersedeas trary when a want of return or profit was to be of the commission of bankruptcy, which was at that excused. All the partners were more or less at a time in force against him; but, subject to those risks, it loss what to do, or whom to blame; but, with respect was considered that a final settlement was made with to knowledge, they were on equal terms, at least; Colonel Lautour. The business of the establishment though, if I were at liberty to conjecture, there might was afterwards carried on by the continuing partners be some reason for supposing that the plaintiff Colonel for their own benefit, wholly independently of Colonel Lautour, by separate correspondence and his own speLautour, who, having executed the release in considera- culations, procured some information or experience tion of the 2501. agreed to be given in 1831, did not, more than the others possessed. Upon the other hand, ostensibly at least, interfere with them, or make any it does appear that the plaintiff Lautour became conclaim upon them, but, on the contrary, allowed them siderably embarrassed in his circumstances, being ento proceed with their business, upon the faith of the gaged or planning engagements in other speculations. arrangement into which he had entered, until the year It may be true that his contributions to the concern, 1839. An order in his bankruptcy was made on 22nd added to his embarrassments, had made his other speDecember, 1838; and thereby it was ordered, that the culations more difficult; but it does not appear that persons therein mentioned, Brown and others, should his co-partners had any concern with his embarrassconvey and assure Colonel Lautour's share of the part-ments, or were even acquainted with them, until a late nership grants of land, and cattle, stock, and implements, period of this transaction, any otherwise than as his with the accretions thereof, to Colonel Lautour him- difficulties might be inferred from his failure to pay self, or to a trustee to be nominated by him. Colonel the contributions which were due from him. The mere Lautour nominated his co-plaintiff in this cause, Joseph non-payment of the contributions which he was called L. Knight, to be his trustee; and, in consequence of on to pay was of itself very injurious to his partners; the order, indentures dated the 6th and 7th February, but accompanied, as it was, by the knowledge that the 1839, were made and executed by and between the plaintiff was engaged in other speculations, necessarily persons named in the order of the first part, the plain- expensive and hazardous, and also competing with the tiff Knight of the second part, and Colonel Lautour of business of the partnership, and that he intended to go the third part, and thereby Colonel Lautour's alleged out to Van Diemen's Land, a state of things arose shares of the property and effects of the partnership which made it very important to the other members of were conveyed and assured to the plaintiff Mr. Knight, the partnership not only to obtain security for what in trust for the plaintiff Colonel Lautour, for the purwas or might become due from the plaintiff, but also to poses therein mentioned. These deeds were almost control him, and prevent his interference in the maimmediately followed by the demand of Lautour to nagement of the concern; and I am of opinion that the have what he called his share, or the value of his share, plaintiffs have wholly failed in their attempt to imof the partnership; and that demand being resisted, he peach the deed of the 4th August, 1829. It is probable, filed his original bill in this cause on the 22nd March, that when that deed was executed the other partners 1839. The object is to set aside the deeds of the 4th would have been glad to get rid of the plaintiff altoAugust, 1829, and the 2nd May, 1836, upon the ground gether; but such does not appear to have been the that they were obtained by direct fraud, and for in- object of the deed, which, as I have stated, was twoadequate considerations. It is alleged in the bill, that fold: first, to obtain security; and, secondly, to prevent the plaintiff was a party wholly unacquainted with the plaintiff's interference while he continued indebted. business; that he did, indeed, procure a supply of By paying the debt he might have been freed from the horses and other stock for the concern, but, except as control which was imposed upon him; he obtained the forbearance which the deed gave him by submitting to those terms; and it does not appear to me that it was unreasonable to impose those terms, or that any advantage was taken of the plaintiff to obtain them. After the execution of the deed, the plaintiff did not interfere; and though his debt remained, and was increasing, calls for contributions were not made upon him, and no longer added to his embarrassments, which, however, seemed to have pressed more and more heavily upon him. His co-partners had nothing to do with those embarrassments, and did not refuse to give any information he asked for respecting the concern. This, in one instance, appears by the answer made to an inquiry in July, 1830. It seems unnecessary to comment at any length on the correspondence, which affords the best information we have respecting the state and prospects of the concern between August, 1829, and December, 1831. I think that nothing had occurred to make reasonable men consider the prospect much, if at all, better than it was in August, 1829. The partner ship necessarily suffered great inconvenience from the situation and circumstances of Colonel Lautour. The real value of his interest on the amount of what might be due from him on a final winding-up of the concern could, of course, be ascertained accurately only by a winding up and sale; but, taking the accounts as they were kept on behalf of all, as they were binding on all, unless errors could be proved, it seemed, in the year 1831, very probable at least, that, if the whole property had been sold, and the concern wound up and settled, nothing would have been found coming to Colonel Lautour. After the year 1830, I do not find that any attempt was made by the other parties to obtain Colonel Lautour's share by any direct assignment from him, till, in consequence of the treaty entered into on behalf of Messrs. Gale & Son, and of the plaintiff, the agreement of December, 1831, was entered into. I think that the plaintiff was bound by the acts of Nind & Cotterill, who, if not then his solicitors, were certainly employed or authorised by him to act as his agents, for the purpose of the arrangement then contemplated. It seems extraordinary that the plaintiff, after having acquiesced at the time, and having so often afterwards sought the benefit of that agreement, should now think himself at liberty to disclaim the authority of Messrs. Nind & Cotterill, and to insist that the arrangement, of which he claimed the benefit, was not binding upon him. If the plaintiff had been, as he hoped to be, in a situation to perform that agreement immediately after it was entered into, there is nothing to shew or make it probable that he would not have done so without any hesitation. That the agreement was not then completed was, it is probable, rather his misfortune than his fault; the other parties to the agreement were in no respect the cause of the delay; they were, on the contrary, great sufferers by it; and I think the agreement was a valid agreement, and that this Court would not have permitted Colonel Lautour to act in violation of it. The draft of the deed, by which it was intended to be completed, was not finally settled in December, 1831, the order for the supersedeas not having been then obtained. The plaintiff was not in a position to complete the agreement even in April, 1836; and at his request, and for his relief, in the circumstances of distress in which he represented himself to be, the deed of the 2nd May, 1836, was executed. It was prepared upon the plan of the draft which was sent to Nind & Cotterill in December, 1831-not at the request of, or the suggestion of a claim by, the defendants, but at the special and urgent request of the plaintiff Colonel Lautour himself. It is alleged, for the defendants, that information was offered to the plaintiff, which he declined to receive, saying that he knew all about it, and only wanted to be free of the concern. This is stated in the answer, and said to be so stated in the evidence of Mr. Ferrers, which was not read. That evidence not being read, and as I cannot say, that, in strictness, the statements in the answer are so necessarily connected with the passages read by the plaintiff as to entitle the defendants to read it on their behalf, the allegation to which I have referred is not proved; but it is by no means inconsistent with the rest of the case; and, independently of it, I think there is sufficent evidence to shew that information was not wilfully and fraudulently concealed from the plaintiff. I am of opinion that the plaintiff well knew what he was about, and was not induced to execute the deed by any misrepresentation or concealment whatever; and though, having regard to his whole conduct, it is extremely probable that his pecuniary distress was, in his own mind, his motive-perhaps his only motive-for executing the deed, I am of opinion that his distress was in no way resorted to or employed by the other parties for the purpose of compelling him to submit to a scheme of theirs, and that his distress at the time was not their motive, I will not say for asking him to execute the deed, but for consenting to comply with his request, that the deed should be executed. This distress may, indeed, have been their motive for paying the money before the supersedeas was obtained. More than four years had elapsed since he had entered into the agreement of 1831; he had thought of it, and referred to it again and again as valid, and in 1836 he desired an end to be put to the long delay in completing it. He now says, that he impeached the deed as soon as he could; that the commission is not yet superseded; but the assignment, by order of the Court, being made in February, 1839, the bill was filed in the following month of March; as to which it may be observed, if the plaintiff conceived himself to be the victim of undue pressure and fraud by the defendants, and to be defrauded by the agreements of 1831 and the deed of 1836, and if he received the money at that time, and always afterwards intended to impeach the instrument as soon as he was able, he has, by his own conduct towards his partners, placed himself in a situation of some difficulty and suspicion. A man. who is in distress may, nevertheless, contract; and if, being in distress, he procures other persons to consent to an agreement which he would not himself have requested or consented to if he had not been in distress, and afterwards successfully urges and obtains the performance of that agreement, and receives the money secured by it, and after that acquiesces for a length of time in the performance, without any notice of dissatisfaction or complaint, he is not entitled to set aside the transaction, on the mere ground of his poverty and distress, in the absence of any deception or fraud proved to have been practised upon him. His own conduct does not appear to me to be free from the imputation of fraud. But it is further said, that, even if it should appear that no fraud was practised or intended, yet still, consider ing the deed of August, 1829, as a deed by which Marjoribanks & Ferrers became trustees of the plaintiff-considering that the deed took from the plaintiff his right to interfere, and that, in fact, he did not interfere in the business, but was personally ignorant of the particulars and details of the accounts and valuations, which were then known to the other parties-it was the duty of the defendants to protect the plaintiff, and to refuse to accept of his execution of the deed of 1836, without satisfying themselves; and being now able to prove and to satisfy the Court that the plaintiff, at the time of executing the deed, had before him all the information which it was proper for him to possess, and in the power of the defendants to give, with a view to a due consideration of his interest. The plaintiffs have produced evidence, and a correspondence and documents of very great length, the discussion of which occupied much time, for the purpose of proving, that, in August, 1829, and May, 1836, the defendants had very importance to, that prior to the month of May, 1836, nothing ant knowledge and information which the plaintiff took place which was material, in the consideraColonel Lautour had not, and from which, if produced tion of the plaintiff's position, with respect to the conto him, he would have known, as he alleges the fact to cern, or to make it the duty of the defendants to refuse be, that his interest was of a much greater value than it to deal with the plaintiff in respect of his share, when was represented to be. I think that the question is he earnestly requested it, unless he first consented to only to be considered with reference to what took make a full examination of the reports of the value, and place after the 4th August, 1829, before which time the of the accounts subsequent to the time when he ceased plaintiff had at least as much information as any of to interfere, pursuant to his covenant in August, 1829. the other partners. Having looked at the evidence and Under the deed of that date, Marjoribanks & Ferrers Carrespondence, I am of opinion that the plaintiff has were trustees for the partners in the concern, for the not proved that the interest of the plaintiff Colonel Lau- debts due and to become due from Lautour to them; tour was of any greater value than it is represented to and they were trustees for the plaintiff Colonel Lautour be, and that during the whole time nothing took place himself for any surplus. The plaintiff was at liberty, to induce reasonable and prudent men to consider the if he had been able, at any time to make Marjoribanks concern to be of greater value than it was represented & Ferrers trustees for himself alone, by paying the to be. The concern had not become profitable, nor was debt. From circumstances, not in any way arising from there any sufficient reason to believe that a sale, if it his partners, he was not able to do that; but, not doing could have been effected, would have produced any that, he was nevertheless entitled, at any time, to call thing to Colonel Lautour in respect of his share. It is for an account, and he did so when he desired to have true, that, in one sense, you cannot ascertain the correct it; and if, in December, 1831, his partners had said, and accurate value of a share of one of the partners in "You have not seen the reports and accounts since a joint concern, without converting the property of the August, 1829; we hold security which is in the naconcern into money, ascertaining the surplus, if any, ture of a trust, and whatever may be the pressure upon after satisfying all the demands of other persons, and, you which induces you to desire to settle with us at after taking the accounts between the concern and each this time, we will not do so, without you first make a partner, finding the balance due to or from each partner full investigation of the accounts, or without bringing severally. It is lawful for partners to deal with each the whole concern to market; and, from the sale and other in quite a different way; if they think proper, the accounts to be thereupon taken, ascertain one way they may lawfully rely on the stock-takings, valua or the other what is the full sum due from you to us, tions, and accounts which appear by the books, and the or from us to you;" or if after the agreement of Desecounts kept in the manner known to, or acquiesced cember, 1831, and his subsequent demands to have the in, by the partners. The stock-takings and valuations agreement completed, and his admission that the sum will be more or less accurate, according to the nature of agreed to be given to him was payable to Messrs. Galethe business and the property employed or engaged in if the like language had been applied to him, he would, the concern. It would, in many cases, be absurd to ex- I think, have been justly surprised, and have thought pect perfect accuracy, or to conclude that a transaction himself a little aggrieved; he would, probably, have between parties, founded on statements appearing in the attributed their conduct to a desire to retain the money valuations and accounts stated in the books, could that belonged to him, or to Messrs. Gale & Son, in their be set aside, on the ground of some subsequent own hands. discovery of unintentional inaccuracy. Considering the position in which the When a ques- plaintiff was, I think it is to be regretted that the detion of that kind arises, each case must be considered fendants did not require him to look into the accounts with reference to its own circumstances. Now, in himself, or to employ somebody to do so for him. I this case, the transactions, upon which value and pro- believe, indeed, that the plaintiff would have resisted fit and loss depend, took place in Van Diemen's Land. any such proposal; and I think that the defendants None of the parties could have any personal knowledge would not have had a right to insist upon it against his of them; they were obliged to rely on the reports of will and their own agreements. On the other hand, it agents. The reports spoke of the time when they were is perfectly clear that the plaintiff was entitled to have made, and were received several months subsequently. the accounts fully examined, and to see all the docuThe future prospects of the concern were, or might be, ments from which the real value of his share and inaffected seriously by occurrences taking place between terest in the concern might be ascertained; but, as to the date and the receipt of any report. What was this, I certainly believe, that, if the investigation had most certain, in the view which the partners had to been asked for, it would have been afforded without take of the transactions, was, that new and frequently any difficulty. In these voluminous proceedings there nexpected demands for advances were continually is no evidence or indication of any desire to conceal anymade, and the hopes of remittances continually disap- thing, or to refuse to give the plaintiff any account or pointed or deferred. I think that parties, situated as explanation. I think that the clauses in the deed of these were, might fairly and honestly deal with each August, 1829, had not for their object to keep the plainother, with respect to the shares of each other, notwith- tiff in ignorance, but to prevent his interference in the standing the ignorance they were in as to the exact management of the business in a manner which they value. After all the inquiry which can be made in had reason to apprehend. Upon a careful and laborious such a case as this, and matters of this kind, the ques- consideration of the whole of this long and intricate tion of value becomes comparatively immaterial, if there case, the arguments of which, of necessity, were unwas no deception, no misrepresentation or fraud, no un- doubtedly rendered very long, I am of opinion, that the fair concealment. The plaintiff Colonel Lautour per- plaintiffs could entitle themselves to the relief prayed fectly knew the nature of the property, business, and for by this bill only by distinctly proving that a fraud transactions, the nature of the valuations and accounts had been practised on Colonel Lautour by his co-partthat were sent from Van Diemen's Land, and the pro-ners or by Marjoribanks & Ferrers; and although spects of success which were held out before August, 1829; and, notwithstanding the fluctuations that took place in the prospects of the concern, and the occasional hopes that were held out, I am persuaded, upon a consideration of the whole circumstances, and all that appears from the correspondence and the parol evidence as to value, which, I own, I cannot attach much import there are some things which, considering the circumstances of the person with whom they had to deal, might, perhaps, have been prudently done otherwise, I am opinion that the plaintiff has not proved that his interest in the concern was of more value than he received for it; and I am satisfied, that not only was there no direct fraud wilfully practised upon him, but no such conduct pursued towards him as, in the consideration of a Court of equity, ought to be deemed fraudulent, or of a nature to render invalid the transactions which are complained of; and for these reasons, and under these circumstances, I think that this bill must be dismissed, with costs.-Bill dismissed, with costs. VICE-CHANCELLOR OF ENGLAND'S COURT. Specific Performance-Time. A Railway Company contracted to purchase Lands, agree ing to pay Interest on the Purchase-money from the Day they should commence their Works on the Lands till the Purchase-money should be paid. The Company did not enter into Possession, or commence Works, for Two Years: Suit for immediate specific Performance dismissed. decreed specifically to perform the above-mentioned agreement, and to pay the plaintiff the said sum of 14507., together with interest for the same, from the 1st January, 1847, until such purchase-money should be paid. The cause came on for hearing on bill and answer. land, 6107. for severance and other damage. In case additional land shall be required for the Company, for the purpose of constructing the railway, as distinguished from buildings and stations, the same to be taken and paid for after the rate per acre as is above stated. And it is hereby further agreed, that the said Company shall pay interest on the said sum of 1450, at the rate of 41. per cent. per annum, from the day they shall commence their works in any of the said closes until the said purchase-money shall be paid." Shortly after the date of this agreement, Messrs. Poole & Sons, at the request of Mr. Stevens, the solicitor of the Great Western Railway Company, furnished him with an abstract of plaintiff's title. On the 21st August, 1846, Mr. Stevens sent a draft conveyance of the lands in question to Messrs. Poole & Sons, for their approval; and on the 25th August the latter returned the draft, approved by them on plaintiff's behalf. The Company had never entered into possession of the land; neither had they, notwithstanding On the 16th February, 1846, the Oxford and Rugby applications from time to time, made to them on behalf Railway Company gave notice in writing to the plain- of the plaintiff, urging them to complete the purchase, tiff, John Bodington, that certain lands in the parish taken any further steps towards its completion. There of Southam, in the county of Warwick, the fee simple had been much correspondence between the two parin which lands was vested in the plaintiff, were re- ties; and a question was raised as to whether the soliquired by them for the purposes of their railway. citors of the Company had not agreed, on the part of Under the provisions of the Oxford and Rugby Rail- the Company, to pay interest on the purchase-money way Act, 1845, and of a subsequent act of the 9 Vict., from 1st January, 1847. Under these circumstances, for amending and enlarging some of the provisions of the plaintiff, on the 2nd May, 1848, filed the bill in this the acts relating to the Great Western Railway Com- cause against the defendants, the Great Western Railpany, and for confirming the purchase of certain rail-way Company, praying that the defendants might be ways by the said Company, the Oxford and Rugby Railway became vested in the Great Western Company, and part of the Great Western line; and thereupon the Oxford and Rugby Company ceased to exist. Previously to the vesting of their line in the Great Western Company, the Oxford and Rugby Company had employed Richard Hall, as their agent, to treat with plaintiff for the purchase of the lands required; and subsequently Hall was employed by the Great Western Company, as their agent, to conclude the purchase. The Company and Hall gave the usual no- T. Stevens, (Bethell and Rolt with him), for the defendtices under their acts to the plaintiff, and ultimately, ants.-The only question is as to the construction of on the 20th June, 1846, Hall, on behalf of the Great the contract; and, upon that, plaintiff's application to Western Company, but in the name of the Oxford the Court is premature, the time for completion of the and Rugby Company, which had in fact then ceased purchase not having arrived. Plaintiff knew that the to exist, and William Savage Poole, of the firm of land was required for the railway; and, by the Oxford Poole & Sons, solicitors, who were employed by plain- and Rugby Act, (8 & 9 Vict. c. clxxxviii), sect. 31, the tiff as his agents in the transaction, entered into an period of seven years was limited, within which the line agreement in writing, which was ratified by plaintiff, was to be completed, but that has not yet expired. Plainand, so far as is material, was as follows: The Ox- tiff must be taken to have been aware of the provisions of ford and Rugby Railway Company. Memorandum of the statute, as the notices were given and Hall was apan agreement made this 20th June, 1846, between pointed under the statute, and this makes the case difRichard Hall, of Cirencester, an able practical sur- ferent from that of a contract between individuals. The veyor, nominated for and on behalf of the above Com- Company, under the agreement, have power to take adpany, who agrees to give and pay the sum of 14507. ditional lands from time to time, if necessary; and, up to for the purchase of the freehold and inheritance in fee the present time, it is doubtful what lands may be the subsimple of and in all those parcels of land &c., con-ject of this agreement. The Company are not to be retaining 8 A. 1R. 24 P., situate &c.; the said sum of 1450l. to include all satisfaction or compensation for any damage, loss, or inconvenience occasioned by severance or otherwise to the remainder of the estate, and in full satisfaction of all culverts, bridges, drains, ways, passages, and watering-places, either over or under the railway of the said Company, or intercepted thereby, except a bridge over the railway in the field No. 4, and a level crossing in the field No. 2; and William Savage Poole, of Kenilworth, in the said county, gent., agent for John Bodington, of the Castle, in Kenilworth aforesaid, owner of the fee of the above premises, who agreed to accept the said sum of 14501. on the terms above mentioned. The land-tax on the above property is to be borne and charged on the remaining land of the vendor. The land is tithe-free. Of the above consideration, 8407. is declared for the Fooks, (James Parker with him), for the bill, contended, that, from the delay which had occurred, an immediate decree for specific performance, without any reference as to title, should now be made. quired to take different conveyances from time to time of the various pieces of land they may require; but the additional lands, if any, are to form, with the original land, the subject of one conveyance. The stipulation in the contract as to interest removes all doubt. Prima facie interest runs only from the time when the principal becomes due; and here the time for payment of the principal has not yet arrived. Fooks, in reply.-It is said that the purchase-money is not payable. Had the Company entered into possession and completed the works, would it not be payable? As to the seven years mentioned in the act, are we to wait for seven years in order to know what the purchaser intends to do? This is the ordinary case of vendor and purchaser, with no time mentioned for the performance of the contract; and the stipulation, that when they enter into possession they shall pay interest, is but the ordinary stipulation. This is the only stipulation. The only time mentioned is that from which interest is to be paid. We say the purchasers ought to have gone on with diligence and completed their purchase, and they have given no reason why they should not. They say they might have taken other lands; the answer to that is, that they have taken our lands, at all events. and then to pay M. Deakin an annuity of 1007., and to pay the residue of such annual produce to William Grayson for his life, and after his death to hold the real and personal estate so devised and bequeathed upon certain trusts for the benefit of the children of the said William Grayson, and upon trust to sell the real estate when the youngest child of William Grayson should attain the age of twenty-one years; and the testator deVICE-CHANCELLOR-I understand you to ask for a clared as follows: "And I declare and hereby empower decree immediately. Then the real question is, whether, my said trustees to lease any lands which they may upon a fair construction of this agreement, the pur- hold upon the trusts of this my will, for not more than chase-money is to be paid immediately; that cannot be twenty-one years, at rack-rents, subject to the usual the construction of the agreement. First of all, the covenants." That the testator died in 1843, leaving his agreement sets forth the sum agreed upon; then it widow and the said William Grayson, and several chilstates, that, in case additional land should be required dren of William Grayson, surviving; that at the date by the Company, it should be taken and paid for after of his will the testator was entitled to freehold estates, the rate per acre as was above stated. That applies conveyed to him to uses to bar dower, and copyhold to something future, which has not yet arisen. And estates held of the manor of Wimbledon, (which were it is further agreed, that the said Company shall pay subject to freebench, according to the custom of the interest on the said sum at the rate of 41. per cent. manor, and which custom was in all respects similar to from the day they shall commence their works until the law relating to dower at common law); that in 1845 payment." It appears to me, there is a time fixed for this suit was instituted by William Grayson against his the time at which interest shall commence, but there children and the trustees and executors of the will for is no time fixed for payment of the principal. I should the administration of the real and personal estate of the conceive, therefore, that payment of the principal, sup- testator; that Mrs. Grayson, the widow of the testator, posing the Company entered, would have to be made was not made a party to this suit; that she received either when the works were completed, or at the time the annuity from the death of the testator; that in 1847 when the works could not be completed at all. Here a portion of the testator's copyhold land was contracted it is said, that interest shall commence from the day to be sold to the Richmond Railway Company, and the they shall commence the works until the purchase-purchasers having required Mrs. Grayson to join in the money shall be paid. I understand they have not yet begun; my notion, therefore, is, if no interest at present is payable, that some hereafter will be payable, for a period which will be determined by some future act according to my construction of the agreement-for the period which may elapse between the time when interest and the time when principal must be payable. It appears to me, the bill must be dismissed, with costs. conveyance to release her freebench, the question arose whether she was entitled to it or not; that it being doubtful whether she was entitled to her freebench and her annuity, or whether she was bound to elect between them, the parties had agreed to present the present petition. The prayer was, that it might be declared that the widow Grayson was bound to elect between the annuity and her freebench. This petition was served on all parties to the suit, and on the widow, and was heard without prejudice to the rights of the infants, in case VICE-CHANCELLOR KNIGHT BRUCE'S COURT. the Court should be of opinion that the widow was en GRAYSON. DEAKIN.-Jan. 20. Annuity to Widow—Freebench-Election. A Testator, possessed of Freehold Estates to Uses to bar Dower, and of Copyhold Estates subject to Freebench, devised his Real and Personal Estate to Trustees, upon Trust out of the Dividends and out of the Rents to pay his Widow an Annuity for her Life; and subject thereto and to another Annuity, &c., to hold the Real and Personal Estate on certain Trusts: and the Testator gave his Trustees Power to lease any Lands they might hold upon the Trusts of his Will for not more than twenty-one Years:-Held, that the Widow was bound to elect between the Annuity and her Freebench. This was the petition of Mr. W. Grayson, presented in the cause, praying that the widow of the testator in the cause might be put to her election under the following circumstances stated in the petition; namely, that William Grayson, deceased, the testator, by his will, dated the 26th October, 1839, after directing that his funeral and testamentary expenses should be paid, specifically devised a part of his real estate and made several bequests, and then gave, devised, and bequeathed unto four persons named, their heirs, executors, administrators, and assigns, all the rest, residue, and remainder of his real and personal estate, of whatsoever kind and wheresoever the same might be, upon trust to invest the money, or securities for money, in the funds, and to receive the dividends thereof, and the rents, issues, and profits, or other annual produce of his real estate; and after payment of his just debts, funeral and testamentary expenses, to pay to his wife, Ruth Grayson, during her life, the clear annual sum of 207., by equal quarterly payments, on the four usual days for the payment of rent in the year; titled to both. Russell and Anderson, for the petitioner, said that the widow was bound to elect, and that as there tees, the whole was concluded by the authority of was in this case a power to lease given to the trusthe case of Hall v. Hill, (1 Dru. & War. 94), where Sir Edward Sugden held, that a power of leasing given to trustees by an executor had the effect of putting the widow to her election between her benefits given by the will, and her title to dower in the testator's estate. The power to lease, it was true, was expressed to be of any lands they might hold in trust; but that was explained by the fact, that part of the freehold estates were specifically devised, and the mention of the trusts was only to indicate that the power of leasing extended only to the lands so held in trust. The question solely depended on the leasing power, and it was not contended that the widow would have been put to her election merely from the fact that the annuity was charged on the real estate. The case of Hall v. Hill was recognised by the same judge in Chaine v. O'Hara, (1 Jones & Lat. 662). [They cited also Lowes v. Lowes, (5 Hare, 501).] Bacon and Archibald Smith, on behalf of Mrs. Grayson, appeared to oppose the petition, and contended that she was not bound to make any election, for that she was entitled as well to her annuity as her freebench. It had been admitted by the counsel for the petitioner, and it was clear by all authority, that the gift of an an nuity charged on real estate would not have the effect of putting the widow to her election. On her part we admit, that a widow will be put to her election by provisions made for her if the dispositions of the real estate by the will are inconsistent with her right to dower. |