1851.

PARKIN

v.

THOROLD.

Defendant would consider the contract as at an end. The settlement was not produced; and so, on the 7th of November, the Defendant's solicitors finally gave notice of abandonment: and I think they had a perfect right so to do. The Defendant was at liberty to insist on completion on the 25th of October. He never did any act to forfeit this right, except by voluntarily extending the day, for the convenience and at the request of the Plaintiff, to the 5th of November: and, default having been then made, the Defendant was in the same position as if he had never allowed any extension, and had refused to go on with the contract after the 25th of October.

I may remark, as indeed I did at the time of the hearing, that the case of King v. Wilson (c), has no bearing on the present question. There, the parties had clearly waived the day fixed for completion, and negotiations proceeded, after that day, on the subject of the title. Pending these subsequent negotiations, the purchaser gave notice that, unless everything was completed in a week, he would be off his bargain. Lord Langdale held that he could not do this: but the ground of that decision was that, by dealing with the vendor after the appointed day, the purchaser had agreed to treat the contract as an open contract, to be performed if the title was completed in a reasonable time, and that a week was not a reasonable time. This has obviously no bearing on the case.

The result is that the Defendant in this case, was at full liberty to bring his action for recovering back his deposit; and so, the order nisi for dissolving the injunction, must be made absolute.

(c) 6 Beav. 124.

IN THE MATTER OF THE WINDING-UP ACTS,
AND OF THE CHEPSTOW, GLOUCESTER,
AND FOREST OF DEAN RAILWAY COM-
PANY.

THE attempt to form the above-mentioned Com

1851:

7th and 19th July.

Joint-stock Companies Windingup Acts.

A petition to pany, was abandoned in 1846; and, on the 25th of discharge a January 1850, an order for winding up its affairs, was winding-up order, dismissed made on a petition presented by a gentleman named with costs, on Mann, who had been a shareholder in the Company. account of delay More than a twelvemonth after the making of that in presenting it. order, and after an official manager had been appointed and other proceedings under it had taken place in the Master's office, the directors of the Company presented a petition praying that the order might be discharged, on the ground that Mann, when he obtained it, had no interest in the affairs of the Company; inasmuch as, not long after the abandonment of the undertaking, the directors returned him a certain portion of the deposits on his shares, and he agreed to accept the amount in full satisfaction of all demands upon the Company and the directors.

Mr. Stuart and Mr. Terrell, supported the petition.

Mr. Bethell and Mr. Glasse opposed it.

The VICE-CHANCELLOR said that, as the petitioners had suffered more than a twelvemonth to elapse before they applied to discharge the order, and as an official manager had been appointed, and the winding-up of the

1851.

IN RE THE
CHEPSTOW,

GLOUCESTER
AND FOREST OF

DEAN RAILWAY

COMPANY.

Company had been proceeded with, and, thereby, expense had been incurred, he should dismiss the petition with costs.

1851:

HARCOURT v. SEYMOUR.

14th, 16th 21st By the settlement or articles for a settlement made in and 23rd July. contemplation of the marriage of William Harcourt with Mary Lockhart widow, dated the 21st of September 1778, William Harcourt assigned the sums of 5000,

Conversion.
Election.

21st September
1778. Settle-
ment or articles on the marriage of William afterwards Earl Harcourt.
By a marriage settlement, dated in 1778, 32,000l. was directed to
be invested in land which was to be conveyed to the use of the hus-
band for life; to the use that the wife might receive a jointure of
3001. a year; to the use of trustees for a term to secure the jointure
and to raise 50007. for the wife after the husband's death; to the
use of trustees for another term, to raise portions for the children of
the marriage, and to the use of the husband's right heirs. There
never was any issue of the marriage. The trustees invested 20,0097.
of the 32,000l. on mortgage, and the rest, in the funds. In 1823,
the husband made a statement of his personal property, in which
he included both the mortgage-money and the stock. In 1828, he
and the mortgagee and one of the trustees executed a deed by which
the mortgage-money as well as the interest of it was treated as payable
to him, his executors or administrators, and by which he covenanted that
the principal should not be called in, for five years, by him, his execu-
tors or administrators, or by the trustees, in case the interest should
be regularly paid. Afterwards, in the same year, he made his will,
by which he made a provision for his wife (which she accepted) in
satisfaction of the provision made for her by the settlement; and
devised all his real estates to trustees in trust to convey them to cer-
tain of his relations for their lives, successively, with remainders
to their first and other sons in tail male, and, ultimately, to his own
right heirs and he gave 80,000l. to the same trustees, and directed
them to invest it in land, and to settle the land in the same manner
as he had directed his real estates to be settled. He died in 1830.

Held that he had elected to treat and had treated the 32,000l. as part of his personal estate, and that it remained personalty at his death.

20001., and 25,000l., to which he was entitled as therein mentioned, to his brother, George Simon Earl Harcourt, William Danby, and two other persons, in trust, with the consent of William Harcourt and Mary Lockhart, and, after both their deaths, of the proper authority of the trustees, to lay out those sums in the purchase of freehold or copyhold lands in fee simple, in possession, which were to be settled to the use of William Harcourt for life, with remainder to the use of trustees and their heirs during his life, in trust for him; and, after his decease, to the use that Mary Lockhart should receive, thereout, a yearly rent-charge of 500l.; and, subject thereto, to the use of other trustees, for 500 years, for better securing the payment of the rent-charge, and for raising 50007., and paying the same to Mary Lockhart, her executors, &c., in case she should survive William Harcourt, (and which, together with the rentcharge, was to be in bar of her dower); and, subject thereto, to other trustees, for 1000 years, for raising portions for the children of the marriage; and, subject thereto, to the use of the right heirs of William Harcourt; and it was provided that the settlement to be made of the lands so to be purchased should contain powers for leasing, selling and exchanging such lands and for investing the proceeds of the sale in the purchase of other lands, which, as well as the lands taken in exchange, should be settled to the uses thereinbefore declared: And it was declared that, until the 50007., 20007., and 25,000l. should be invested in the purchase of lands, the interest thereof, or of so much thereof as should not be so invested, should be paid to William Harcourt during his life, and that, after his decease, those sums and the interest thereof, or so much thereof as should not be so invested, should be subject to the payment of the 500l. a year and 5000l. to Mary Lock

1851.

HARCOURT

υ.

SEYMOUR.

hart, and also to the payment of the portions of the children of the marriage, and that the residue of such trust-monies should be paid to such person or persons as, by virtue of the limitations aforesaid, would be entitled to the immediate freehold, reversion and inheritance of the lands thereby agreed to be purchased and settled. And it was provided that, if William Harcourt, his heirs, executors or administrators, should, at any time. thereafter, procure an estate, called Pipwell Abbey, then belonging to his brother, to be settled to the uses thereinbefore declared (but which he never did), then the sum of 32,0007., the amount of the 50007., 2000l. and 25,000l. should be paid, assigned and made over to him, his executors, administrators and assigns.

Before the year 1808, 1000l., part of the 2000l., was paid to William Harcourt, and he applied it to his own use: and, in that year, the residue of the 20007., and the 5000l. and 25,000l. were paid to George Simon Earl Harcourt and William Danby, the only trustees of the settlement or articles who were then living. George Simon Earl Harcourt died in April 1809, and, thereupon William Harcourt and Mary his wife, became Earl and Countess Harcourt. In the same month Danby, at the request of the Earl and Countess, lent 20,000l., part of the trust-monies, to Sir George Lee, on a mortgage, of estates in Bucks, made to Danby his heirs and assigns; and, in the same month, 11,0002., the residue of the trust-funds, was laid out in Exchequer bills, which were afterwards sold, and the proceeds invested in the purchase of 12,7351. 3s. 4d. Navy Five per Cents, in Danby's name.

By an indenture dated in 1813, William Earl Harcourt covenanted to indemnify Danby, his heirs, execu