forbearance to sue on the part of the creditor must be assumed to have taken place, and that this was sufficient to prevent the promise to hypothecate from being nudum pactum. The Alliance Bank v. Broom, 256

Condition precedent. See Lessor and Lessee.

Consideration by promise of legacy. See Frauds, Statute of.

-See Specific Performance.

CONTRIBUTORY-M. applied for 200 107. shares in a company, and paid 5007., being the amount of a call of 24. 10s. per share. Before any regis tration or allotment he expressed a wish that the number of shares should be reduced, and that the 500l. should oe applied to pay for fifty shares in full. The directors of the company thereupon passed a resolution accepting the 5007. as in respect of full payment on fifty shares, and treating the matter of the remaining 150 shares as remaining in abeyance, sent M. certificates for fifty shares paid for in full. M. having afterwards discovered that his name had been entered on the register for 200 shares, he complained, and requested that the entry might be altered so as to represent him as a holder of fifty paid-up shares, and he received a copy of resolution that the 150 shares had been forfeited as no calls had been paid. Upon the winding up of the company, it was held, by the Master of the Rolls, and, on appeal, by the Lords Justices, that M. had a right to modify his acceptance of the 200 shares before he became absolute owner by allotment and registration of any shares, and that he was not a contributory in respect of the 150 shares. Ex parte Miles; in re the Exhall Coal Mining Co. (Lim.), 123

The brokers, at Bristol, of a recently formed company sent to B, who resided in that neighbourhood, a prospectus of the company, and told him that the London share list was closed, but that they had some shares of the company to dispose of, and that the shares were quoted in the market at a premium. The statement as to the closing of the share-list was made on the authority of the secretary of the company: that, as to the shares being at a premium, agreed with certain reports in the newspapers, of which the authorship was not traced. Both statements were untrue. B. agreed to take 150 shares, paid the deposit, and received a scrip certificate; but having discovered that three persons named as directors in the prospectus had no shares, that the London share-list was not closed, and that there had been no sales of shares, he repudiated his shares and claimed a return of the deposit. The directors repaid the deposit and struck B.'s name off the share-register. By the articles of association, the cancellation of shares by the directors required the sanction of a general meeting; but no meeting was held. B. was never asked to pay any calis, and did not execute the deed of settlement. Six months after the repayment of the deposit to B. the company was

voluntarily wound up. It was held, that B. could not be made a contributory. A company may be treated as having, quà company, been guilty of fraudulent misrepresentation. Re the Life Association of England (Lim.), ex parte Blake, 278

The directors of a company made arrangements with S, a shareholder who was dissatistied with its management and desirous of obtaining a winding-up order, for enabling him to retire from the company by a forfeiture of his shares for non payment of calls upon the terms of the shareholder paying a sum of money to the directors. The stipulated sum of money was paid; a resolution of the board of directors was passed declaring the shares forfeited for non-payment of calls, and the forfeiture registered at the office for the registration of joint-stock companies; and from that time the name of S. was omitted from the list of shareholders in the share-register book, and in the next balance sheet the shares were entered as cancelled; but no other notice of the transaction was given to the other shareholders, and no notice of any of the transactions of the company was given to S. after the registration of his forfeiture. Twelve years afterwards the company was ordered to be wound up, and three years later an application was made by the official manager to add the name of S. to the list of contributories;-and it was held, reversing the decision of the Master of the Rolls, that the transaction was collusive between S. and the directors, and was not cured by lapse of time; and the name of S. was ordered to be added to the list of contributories. Brotherhood's case distinguished. A shareholder, who is permitted to retire from a company by an irregular arrangement entered into with the directors, cannot, by way of defence to proceedings impeaching the arrangement, successfully allege acquiescence therein on the part of the other shareholders, without shewing that the arrangement was brought to their knowledge. In re the Agriculturist Cattle Insur. Co. (Spackman's cuse), 321

In October 1846 A, in the belief that he must take shares in order to qualify for the office of director, which he had accepted in an assurance company, applied for and had certain shares allotted to him. Understanding shortly afterwards that no qualification was necessary, he thenceforward repudiated the shares, refusing to execute the deed of settlement or to pay calls. No dividend was ever received by him. In 1855, after intermediate communications, he offered to pay a special sum on being released from all further liability, and the directors, who were empowered by the deed of settlement to compromise disputed claims, passed a resolution accepting his proposal. This resolution was confirmed at a general meeting of shareholders, but no notice had been given of the intention to confirm the arrangement or of its terms, nor were the terms stated in the circular subsequently sent to the shareholders, containing the directors' report and the resolutions passed by the meeting.

A.'s name had been originally put upon the register of shareholders, and was never removed. In 1861 the company was wound up; and the Master of the Rolls, on the authority of the judg ment on appeal in Spackman's case, put A. on the list of contributories; but the order was, on appeal, discharged by the Lords Justices, their Lordships holding (there being no ground for imputing fraud, collusion, suppression or concealment) that whether A. was originally liable as a shareholder or not, the arrangement under which he had been released must stand as a bond fide compromise. The decision in Spackman's case distinguished, as founded on the existence of collusion. Re the Agriculturist Insur. Co., cx parte Belhaven, 503

A. filled up a blank form of application, by which he agreed to accept a certain number of shares in a company, or any less number which may be allotted to him; and he paid a deposit, for which he received a banker's receipt. No shares were ever allotted; but he never made any formal claim for repayment of his deposit, which the company used. The company was wound up before it had commenced its intended operations, and A. was placed by the Master of the Rolls on the list of contributories. But on appeal, it was held, by the Lords Justices, that the contract was only to accept shares when an allotment should have been made, and that until allotment there was no complete contract, and consequently that A. was not a contributory. In re the Adelphi Hotel Company, Lim ( Best's case), 523

A, upon his appointment as agent to a limited assurance company, agreed to take shares upon the terms that payment for them should be deducted from his commission as agent, and no deposit was ever paid by him upon them, but he was registered as the holder of the shares. The company, very soon after his appointment, dismissed him; but as he contended wrongfully. On the winding up of the company, the Lords Justices, reversing a decision of the Muster of the Rolls to the contrary effect, held, that the company's cancellation of A. 's appointment as agent, whether justifiable or not, could not operate as a cancellation of A.'s agreement to become a shareholder, and that (subject to any question of account as to payment for the shares) A. was liable as a contributory. In re the Life Association of England, Lim. (Thomson's case), 525

Certain reserved shares in a banking company were, in June 1864, offered by the directors to the existing shareholders, on the terms that the price of the shares was to be paid on the 1st of October then next, and that the shares would then be entitled to one quarter's dividend at the end of the year, but that, if paid before tnat time, interest at 51. per cent. would be allowed. A, a shareholder, agreed in July 1864 to take certain of the reserved shares; and in August he paid for them in advance. The manager in. formed him that a certificate would be given for the shares on the 1st of October; but, on the

19th of September, the bank stopped payment. It was admitted that the directors had gravely misrepresented the financial position of the company in their annual report, adopted by a general meeting in February. It was held, affirming a decision of Kindersley, V.C. (but dissentiente Lord Justice Knight Bruce), that the contract was to take the shares in præsenti, and that A. was a contributory in respect of the reserved shares agreed to be taken by him. Held, also, (per Kindersley, V.C.) that A. could not be relieved on account of misrepresentations to which he was, as a shareholder, himself constructively a party; and (per Turner, L.J.) that having regard to the lapse of time between the date of the report and the taking of the shares, the misrepresentations in the report could not be regarded as the proximate cause of A. taking the shares. Re Leeds Banking Co, ex parte Barrett, 558

F. was the holder of fully paid-up shares in an industrial society formed, with unlimited liability, under the Industrial and Provident Societies Act, 1852. After the passing of the Industrial and Provident Societies Act, 1862, which repeals the act of 1852, the society being in difficulties was registered under the act of 1862 as a company with limited liability, for the purpose of being wound up, it having been held that a winding-up order could not be made under the repealed act. Upon motion to settle the list of contributories, it was held that F.'s name must be omitted, notwithstanding there were debts contracted before the registration of the company with limited liability. The Companies Act, 1862, sections 85. and 87, having taken away from the creditors their original remedy by action,-Semble, there were no means of enforcing F.'s liability to the debts of the company incurred before its registration with limited liability. Re the Industrial and Provident Societies Act, 1862; the Companies Act, 1862; and the Sheffield and Hallamshire Ancient Order of Foresters' Co-operative and Industrial Society (Lim.), Fountain's case, 593

CONTEMPT-After the institution of a suit for dissolution of a partnership and appointment of a receiver, an action was brought against the firm and a judgment recovered for 73l. 98. Before the receiver was actually appointed, but after he had been nominated, the sheriff took possession of certain property under a writ of fieri facias, and refused to give up possession after the appointment of the receiver. Upon motion to commit the sheriff for contempt of Court, it was held that there was no contempt. Defries v. Creed, 607

COPYHOLD-Freebench. See Marriage Settlement.

See Custom.

COSTS-By an order made, with the consent of the mortgagee, for the sale of mortgaged property, the money to arise from the sale was directed to be applied, in the first place, in payment of the mortgage. It was held, that it was not compe. tent for the Court, by an order made on subsequent further consideration, to direct the payment of the costs of the sale in priority to the mortgage debt. Semble-The payment of the costs of a sale ought not to be ordered out of the proceeds in priority to the debt of a consenting mortgagee, whether or not a party to the cause. Re Mackinlay; and Ward v. Mackinlay, 52

In a suit for general administration, there being no personal estate and no debts, and the only questions decided being as between the devisees inter se and between the devisees and heir-at-law or his representatives, it was held, the costs of the suit must be borne by the devised estates and descended estates pro ratâ. Bagot v. Legge, 156

Upon motion, after a decree in an administration suit, to restrain a creditor from prosecuting an action to recover a disputed debt, it was held that payment of the creditor's costs of the motion and action must be made dependent on his establishing his debt in the suit. King v. King,

195

Under an order in an administration suit to tax the costs of executors, including any costs, charges and expenses properly incurred by them as executors, not being costs in the cause, their costs of litigation, though unsuccessful, in other suits in their fiduciary character, may be allowed; and the omission of any directions in those other suits respecting the executors' costs is not equivalent to a refusal of them out of their testator's estate. Graham v. Wickham, 220

G. B. having contracted to sell real estate, died, before completion of the purchase, intestate as to real estate, leaving an infant heir, and on bill for specific performance of the contract by G. B.'s executrix against the purchaser an infant heir, it was held the heir was entitled to his costs as between solicitor and client out of the purchase-money. Barker v. Venables, 420

The Court will in its discretion give to a successful appellant his costs of appeal. Baring v. Harris, 105

Upon affirming a decree of the Lord Chancellor affirming a decree of the Master of the Rolls, the costs were given, though their Lordships differed in opinion. Hopkinson v. Rolt (House of Lords), 468

Allowance of. See Jurisdiction.

of redemption suit. See Mortgage.

Taxation of. See Solicitor.

See Administration of Estate. Appeal. Lunacy. Marshalling.

COUNSEL-have no authority to bind their clients in the suit to the terms of a compromise made out of court. Such compromise, if enforceable at all, must be the subject of a separate suit for specific performance. Green v. Crockett; Crockett v. Green, 606

See Practice.

COVENANT-running with the land. See Mine. CUSTOM-The 1st section of the Prescription Act (2 & 3 Will. 4. c. 71.) applies only to cases where a person claims by custom, prescription, or grant, a profit or benefit from the land of another, and has no application to the case of a right claimed by a copyholder in respect of his own tenement according to the custom of the manor. Consequently, where copyholders claimed a customary right to dig and carry away sand from their tenements, and the evidence was such that an inference of the existence of the custom might be readily drawn therefrom, it was held, reversing the decision of one of the Vice Chancellors, that it was not necessary to prove that the right had been enjoyed for the period of thirty years. Semble-Where a custom has been enjoyed for a shorter period than is required by the act for its establishment, the 6th section of the act does not preclude the Court from taking the fact of such enjoyment into consideration along with other circumstances as evidence of the existence of the custom. Hanmer v. Chance, 413

DAMAGES-The jurisdiction conferred by the Chancery Amendment Act, 1858, of awarding damages in suits to restrain the commission of wrongful acts, applies to the case of suits to restrain the infringement of patents; and the circumstance that the Court was in the habit, before the act, of affording a partial remedy in such suits by directing an account of profits, constitutes no ground for excluding the jurisdiction newly conferred. Observations as to the relative convenience of ascertaining damages by inquiry at chambers and by a jury. Betts v. De Vitre, 289

A decree had been made in a suit by purchaser against vendor for the specific performance of an agreement for the sale of freeholds. The bill asked also for damages in consequence of the delay in the completion of the contract. No special damage, such as deterioration in the value of the property, was shewn, and it was held, that an inquiry as to damages occasioned by delay in completion ought not to be directed. Chinnock v. the Marchioness of Ely, 399

A Court of equity will not, in the absence of fraud, interfere to prevent the obstruction of light and air, or other easements, if the obstruc

tion has been completed before the filing of the bill, and in such a case the Court has no jurisdiction to award damages. But where a small portion of a building which obstructed the plaintiffs' light and air was completed after the filing of the bill, the Court ordered such portion to be pulled down, and directed an inquiry as to damages in respect of the injury caused by the other part of the building. Lawrence v. Austin; and Durell v. Pritchard, 598

See Interest. Mortgage. Receiver. DEBENTURES-A company established under the Limited Liability Act, 1856 (19 & 20 Vict. c. 47), borrowed money upon debentures, which charged the same upon "all the lands, tenements and estate" of the company, and all their "undertaking." Upon the company being wound up voluntarily, it was held, as between the simple contract creditors of the company and the debenture holders, that the debentures did not include arrears of unpaid calls, or monies to arise from future calls. King v. Marshall, 163 DEBTOR AND CREDITOR. See Judgment Debt. DEBTS. See Voluntary Settlement. DECEIT. See Company.

DEED-of separation. See Baron and Feme.

DEVISE-W. O. devised an estate to his son H. O. in fee simple, and declared that it was his "earnest hope," and he "particularly requested" his son to keep the devised estate, and all such real estate as he was or might become entitled to under certain settlements, "or otherwise howsoever," and not to sell, alien or dispose of the same, except by way of exchange, or for reinvesting the value in the purchase of other estates; and in case H. O. should die without leaving issue male of his body him surviving, testator expressed his anxious desire that he should so settle and devise the estates so devised to him, and also the estates to which he was or might become so entitled as aforesaid, in such manner and to such persons that the same might continue in the name of O. It was held, H. O. took an estate in fee simple in the devised estate unfettered by any condition. Hood v. Oglander,

528

Testator, in 1827, devised lands to trustees, their heirs and assigns, upon trust to stand seised of the land during the life of W, and until testator's debts and legacies should be satisfied, upon trust to let the land, and apply the rents in discharge of the debts and legacies until the same should be fully paid, and thenceforth to pay the rents to W. for life; and after the death of W, and the payment of the debts and legacies and the expenses of the trust, testator devised the land to the heirs of the body of W, with remainder to his own right heirs. The trustees, after paying the debts and legacies, conveyed the legal estate to W. for his life, and NEW SERIES, 34.--INDEX, Chane, & Bankr.

W. suffered a recovery to the use of himself in fee. In a suit for specific performance by W. against a purchaser from him, it was held, that the trustees took under the will an estate determinable on the death of W. and payment of the debts and legacies; that the estate limited to the heirs of the body of W, was a legal estate; that the conveyance by the trustees to W. did not enable him to defeat the contingent estate limited to the heirs of his body; and that if such conveyance had had that effect, the Court of Chancery would have relieved against it as a breach of trust. Collier v. M'Bean, 555

Testator, possessing a farm in the parish of G, and a small piece of land in the adjoining parish of A, which had always been occupied and let at an entire rent with the farm in G, devised all his lands and hereditaments, "situate, lying and being within the parish of G, with the appurtenances," to G. for life, with remainder to the child or children of G. in tail, and he empowered P. and J. the trustees of his will, during the minority of a tenant in tail entitled in possession, to take possession of the property on behalf of the minor, and to grant leases; and he devised the residue of his real estate to P. and J, during the life of M, in trust for M, with remainders over. Testator died in 1842, and thereupon G. took possession of the lands in G. and A. In 1850 G. died, leaving an only daughter, an infant, and P. and J. took possession of the land in G. and A, and in 1861 they granted a lease of the whole farm in pursuance of the power. In 1863 the daughter of G. came of age and took possession of the whole farm. In 1864 M. filed a bill to establish his right to the land in A. It was held, the land in A. did not pass by the specific devise, but formed part of the residuary estate, and that M.'s right was not barred by the Statute of Limitations, inasmuch as the possession of P. and J. from 1850 to 1863 must be attributed to their character of devisees in trust of the residuary estate, and was therefore not adverse to that of M. Lister v. Pickford, 582

A devise of "all that messuage wherein D. now resides, with the appurtenances thereto belonging and therewith occupied "-held to pass a piece of land purchased by testator after the date of his will, which adjoined the house and was occupied therewith as a garden by D. at the time of testator's death. Re Otley and Ilkley Joint Line Committee, 596

Residuary devise of realty. See Administration of Estate.

DOMICIL-Upon a question whether the domicil of a testator, who was a native of France, was English or French, the principal evidence went to shew, in support of the English domicil, that he came to England when he was eighteen; that he carried on a business in London for above twenty years; that he always resided in England, with occasional visits to his native country; that he married an English woman according to the

B

English rites; that he took leases of his business premises in England for twenty-one years; that he voted at an election; that he served the office of headborough; that he consulted a lawyer as to obtaining letters of naturalization; that his children were registered and baptized in England according to the English form; that he made an English will which would have been inoperative in France; and that he repeatedly expressed his intention of making England his home, and becoming an Englishman. And in support of the French domicil: that he purchased a piece of land in his native village, and often said he should build a house there, and return to live in France; that he paid a visit every year to France; that he placed his children at school in France, and, by his will, appointed his brother, who resided in France, one of the executors and guardians of his children. It was held, upon the balance of evidence, that testator's domicil was English. Drevon v. Drevon, 129

DOMICIL (continued)-In order to acquire a new domicil there must be an intention to abandon the existing domicil. Consequently, a native of one country who goes to another, with the intention of residing there for the mere purpose of trading or making a fortune, does not, by length of residence alone, gain a domicil there. Whether in the absence of all other evidence an intention of abandonment of domicil might be inferred from long residence elsewhere than at the place of domicil-quære. The principle and exceptional nature of the decisions establishing that the acceptance of a commission or office, in the East Indies, under the East India Company, amounted to an adoption of an Anglo-Indian domicil, considered and explained. Jopp v. Wood, 212

DOWER-A widow's right to sue in equity for dower held to be barred where she had not, for upwards of thirty years, taken any proceedings, either at law or in equity, to have it assigned to her. Semble-the Statute of Limitations is applicable to an action at law for dower. Marshall v. Smith, 189

See Apportionment.

EASEMENT-Wayleave. See Mine.

See Damages. Prescription Act.

EAST RIDING REGISTRATION ACT. See Priority.

ELEGIT. See Judgment.

ENROLMENT of decree. See Practice.

EQUITABLE ASSIGNMENT AND MORTGAGE-By a deed executed and registered in the manner required by the law of Ceylon, certain estates there were mortgaged to a banking company, to secure the payment of bills of exchange which had been discounted by the bank, and subject to this mortgage, the same estates were, by another deed, also duly executed and registered, mortgaged to R. & Co., and by

a deed not executed as required by the law of Ceylon, the banking company covenanted on payment of the bills to transfer the mortgage securities to R. & Co. The bills were paid at maturity, and R. & Co. by letter directed the banking company to transfer the mortgage securities to S, to whom they were indebted, but afterwards R. & Co. themselves demanded and obtained possession thereof as being the next registered incumbrancers. S. then filed a bill against the banking company and others, alleging that the deed of covenant and the letter of R. & Co. constituted the banking company trustees for him, and that in delivering the securities to R. & Co. they had committed a breach of trust, and praying consequential relief. It was held, affirming the decision of one of the Vice Chancellors, that although the transactions would by the law of this country constitute plaintiff equitable assignee of the securities, yet as it appeared by the evidence that they were insufficient for that purpose according to the law of Ceylon, and that according to that law the banking company had no legal defence against the demand of R. & Co., the bill must be dismissed with costs as against the banking company. Sichel v. Raphael, 106

J. S. mortgaged leaseholds to M. and T. to secure 1,000l. and interest, and by way of further security charged the principal and interest on O, a freehold estate, and deposited the O. title-deeds with S. & T, who acted as solicitors for both parties. Subsequently, by representing to S. & T. that he was about to sell O. to a railway company, J. S. again obtained possession of the O. title deeds under a promise to return them. Instead of returning them, he deposited them with D. as security for a debt. D. had no notice of the previous incumbrance, and there was no evidence that S. & T. had made any application to J. S. to return the deeds, or had inquired after them for several years after parting with them. S. & T. on discovering what had been done with the deeds, paid off their clients, and took an assignment of the mortgage to themselves. It was held, that S. & T. had been guilty of gross negligence; that they took subject to all defects in the title caused by their own act, and that D.'s security was entitled to priority. Dowle v. Saunders, 87

M, a solicitor, having in his hands 2,0007. belonging to the estate of J, of which he and A. were trustees, and 600l. belonging to the estate of R, of which A. and B. were trustees, and being pressed by A. to give security for the two sums, in A.'s presence placed a parcel, which he represented to contain deeds of his own, worth 4,000l., in a box belonging to the estate of J, and a parcel, which he represented to contain other deeds of his own, sufficient to secure 600l., in a box belonging to the estate of R, both boxes being in his custody as solicitor to the respective trusts. At the death of M. it was found that both parcels had been removed from the boxes; and thereupon M.'s widow, who