Recital as Bill for tion of Company, and opposition by C. Introductory recitals. XXIV. AGREEMENT between the PROMOTERS of a RAILWAY TION to the COMPANY'S BILL. PARTIES, A. & B., some of the provonal committee (a) of the intd Rly Co hinafter mentd (who are hinafter called the Promoters, 1. The Co hinafter mentd as intd to be incorpd under the name of the landowner, 3. to Rly Co (hinafter called the Co, 2. C., WHAS the promoters & others are promotg a bill now pendg to pending in parliamt, intituled, &c., whby it is proposed to incorporate incorpora- the Co, & to authorise them to make & maintain a rly from the line of wch rly wd pass for a considerable distce through a farm & lands situate, &c., of wch the sd C. is tenant for life: AND WHAS the sd C. has lodged in the House of Commons a peton agst the sd bill: AND WHAS, in order to the obviatg of all opposon by the sd C. to the sd bill & for the other pposes hrin appearg, the pties hto of the first & third pts. have entd into the agrmts hinafter contd, with the intention that the Co shl become pty to & exte these psnts forthwith Agreement. after their incorporon: NOW THEREFORE THESE PSNTS WITS that for the consons hrin appearg it is hby mutually agrd by & betn the promoters, on behalf of themselves & all other the promoters of the pendg bill, & with the intent to bind the Co, on the one hand, & the said C. for himself & his assns, & also for the trees & beneficial owners from time to time of the farm & lands afsd (& who is & are comprd in the expression "the sd C." as hinafter employed), on the other hand, & also by way of septe agrmt betn the Co on the one hand, & the sd C. on the other hand, as follows :— 1. [Special agrmts, see last Precedent.] Certain clauses to be inserted in the Bill. 2. THE promoters will use their utmost reasble endeavours to procure the insertion & enactmt in the pendg bill of the clauses wch are set forth in the schdle hto. (a) As the provisional committee cannot bind the company when incorporated (Hodges on Railways, pp. 142, 143; Browne & Theobald on Railways, p. 536), it is important to have the personal guarantee of some responsible person. 3. [Provon as to costs to be paid by Co or promoters, see last Precedent.] to be executed by Company when incor porated (b). 4. If the pendg bill be passed into law in the psnt session, Agreement the promoters will within days thrafter procure the Co to exte, under their common seal, eir these psnts & the duplicate thof, as the pty thto of the second pt, or some other deed or instrumt to be prepared by the Co adoptg this agrmt, & on the same being so exted by the Co, all the future liability of the promoters under this agrmt shl cease: [And in case the Co shl refuse or neglect to exte this agrmt or such other deed or instrumt as afsd within the time hinbfe limd, & in this respt time shl be of the essce of the contract, the sd A. & B. & their respive hrs, exs & ads, shl be jtly & sevlly liable to pay on demand the sum of £- to the sd C., his exs or ads, as liquidated damages.] drawn. 5. On the faith of this agrmt being on the pt of the pro- Opposition moters & the Co resply in all respts specifically pformed & to be withobserved, the sd C. will not in any mner, eir by himself or his agents, further oppose or orwise impede the passage of the sd bill through parliamt. IN WITS, &c. [Schdle.] XXV. AGREEMENT for WORKING a QUARRY. A Short AGRMT, &c., betn A., hinafter called the owner, 1; B., farm by the owner upon the terms (b) It would, of course, be better to get a clause inserted in the bill making the agreement binding on the Company; see as to this above, p. 65, note (a). (e) It will be seen that this is merely a working agreement, not operating as a demise. For forms operating as demises of quarries, &c., see LEASES, MINING. As to quarries more than twenty feet deep, see The Quarries Act, 1894. THE CONTRACTOR SHL AT HIS OWN EXPSE— 1. GET and cord bldg & rough blue stone from the sd quarry for the use of the owner. 2. REMOVE the whole of the stone from any pit bfe openg anor. 3. FILL in every pit as soon as it is exhausted, or sooner if required, & replace the top mould so as to render it as fit as circes will admit for agricultural operons. THE OWNER SHL 4. PAY to the contractor the sum of shillings per cubic yard for gettg & cordg bldg stone, & the sum of per cubic yard for gettg & cordg rough blue stone. AND IT IS HBY AGRD AS FOLLOWS shillings 5. THE Contractor shl cord the stone at the option of the owner at the mouth of the quarry or by the side of the turnpike road, but in the latter case the owner shl cart the stone from the quarry to the side of the turnpike road at his own expse. 6. THE contractor shall rece a weekly paymt on acct in proportion to the work actually done, but not to exceed £- a week for each man actually employed. Such paymt is to be brought into acct when the corded stone is measured, & the balce, if any, pd to the contractor. If the balce shd be agst him, he shl forthwith repay the same to the owner. 7. EIR pty may determine this contract on givg one week's written notice, & thrupon the contractor shl, if required by the owner, fill in every open pit & replace the top mould so as to render it as fit as circes will admit for agricultural pposes. But if the owner shl determine the contract, the contractor shl be at liberty prior to fillg in any pit to get & cord the stone from the same, he workg with all pper despatch & being pd for the stone after the rate afsd. IN WITS, &c. APPOINTMENTS. PRELIMINARY NOTE. SE Elph. Introd. 78, 338. For conveyances by way of appointment, see CONVEYANCES; for testamentary appointments, see WILLS; and see also SETTLEMENTS; and for the appointments of new trustees, see that heading. The law as to appointments is chiefly important in connection with Law as to appointments under special powers, i.e., powers exercisable in favour of a appointlimited class of objects, as to which the following points principally require notice : ments un der special powers. Exclusive By the Act 37 & 38 Vict. c. 37 (which, though it does not expressly so declare, is considered, and has, it is believed, been treated, as undoubtedly appointapplying to powers previously as well as subsequently created), the Illusory ments. Appointments Act (1 Wm. 4, c. 46), was extended so as to enable an exclusive appointment to be made, although not expressly authorised by the power, without leaving a nominal sum for the excluded objects. Care must, of course, be taken to keep within the power as to the objects Objects of in whose favour an appointment may be made, bearing in mind that under power. a power to appoint to children an appointment cannot be made to the issue of a child (Brudenell v. Elwes, 1 East, 442, 7 Ves. 382); nor to the representatives of a deceased child (Maddison v. Andrew, 1 Ves. Sen. 58), for whom provision can only be made by leaving a share unappointed to devolve on them under the trust in default of appointment (with the aid of the hotchpot clause, if any), assuming that the deceased child had attained a vested interest; but a power to appoint to "issue" prima facie includes all descendants (Leigh v. Norbury, 13 Ves. 344; Marshall v. Baker, 31 Beav. 608; Re Warren, 26 Ch. D. 208); and therefore under such a power an appointment may be made to a child, with remainder to his issue, the class of issue who take being restricted as to perpetuity. Special care must also be taken in exercising such a power to keep within Perpetuithe limits of the rule against perpetuities, both as regards the objects of the ties. appointment and the time at which their interests are to vest, the criterion being whether the interests created by the appointment would have been valid if inserted in the instrument creating the power: see 3 Dav. Prec. 154; Tudor's L. C., Conv. 484 et seq., notes to Cadell v. Palmer. Thus, under a power in an antenuptial settlement to appoint to issue generally, an appointment to a son for life with remainder to such of the son's children as attain 21, is of course too remote (Re Warren, ubi sup.); so under a similar power the vesting of the shares of the children of the marriage cannot be postponed to a later age than 21, except as to those who attain the specified age within 21 years from the death of the surviving parent; and where the Delegation of power. Other points. appointee was unborn at the time of the creation of the power, although a life interest can be validly given to him, with remainder over to an object of the power, a restraint on anticipation cannot be annexed to the life interest in the case of a female, so as to restrict the power of disposition beyond the legal limit (Fry v. Capper, Kay, 163, and later cases referred to in Vaizey on Settlements, p. 836, note (1); Whitby v. Mitchell, 42 Ch. D. 494, 44 Ch. D. 85); and the life interest cannot be made forfeitable on bankruptcy or alienation, or any other event, so as to create such a restriction (Hodgson v. Halford, 11 Ch. D. 959, where the clause of forfeiture was on a change of religion; and see 1 Jarm., Wills, p. 828). The rule against perpetuities has not superseded, but exists independently of, the old rule against "a possibility on a possibility;" which latter rule does not apply to personalty, but only to legal limitations of real estate; see the discussion in Re Frost, 43 Ch. D. 246; Whitby v. Mitchell, 42 Ch. D. 494, 44 Ch. D. 85. It should also be remembered that a special power being fiduciary cannot be delegated (Sug. Pow. 179), so that if an appointment under a power to appoint to children or issue is made to a child for life with remainder to its issue, a power of appointment among the issue cannot be given to the child (Ingram v. Ingram, 2 Atk. 88; Williamson v. Farwell, 35 Ch. D. 128); and for the same reason, although the life interest of the child can be validly made determinable on bankruptcy, &c., if the child was born before the creation of the power, the usual trust (creating a protected life interest) for the application of the income after forfeiture at the discretion of the trustees for the benefit of the child and other objects, even although the latter are within the power, would be bad. The equitable doctrine as to frauds on powers must also be carefully borne in mind; see as to this the notes to Aleyn v. Belchier, 1 White & T. L. C., Eq. 437. As to what conditions may lawfully be annexed to an appointment, see remarks of Hall, V.-C., in Hodgson v. Halford, 11 Ch. D. 966. Where an appointment is made under a settlement, containing a power to the husband or wife to withdraw part of the funds from settlement on a second marriage or otherwise, this power should be expressly reserved or negatived where it would clash with the appointment. As to the effect of the donee of a special power releasing or covenanting not to exercise it, or to exercise it in a particular manner, see infra, SETTLEMENTS. An appointor exercising a special power cannot supersede the trustees of the settlement creating the power and substitute other trustees, Re Tyssen, [1894] 1 Ch. 56. See further as to appointments under special powers, 3 Dav. Prec. 144 et seq.; Tudor's L. C., Conv., notes to Alexander v. Alexander, p. 403 et seq. Instances of miscarriage in the case of appointments under special powers owing to want of attention to one or other of the points above mentioned, are frequent. As to the stamp duty on appointments, see the Stamp Act, 1891 (54 & 55 Vict. c. 39), sched. tit. APPOINTMENT, SETTLEMENT. |