STANDING BY AND ALLOWING BUILDING STATUTES-continued.
continued.

the canal for the purposes of copperworks, of which
they were occupiers under an agreement for lease
with the Defendant. It was shewn that the use
of the water of the canal, though convenient and
economical, was not absolutely essential to the
Plaintiff's works :-Held, that such an under-
standing did not form the foundation of an equit-
able right. Secus, if the Plaintiffs with the
knowledge of the Defendants had incurred ex-
pense in establishing a manufacture for which
the use of the water was absolutely necessary.—
Clavering's Case (5 Ves. 690) considered. BANKART
2. TENNANT

-

141

2.- Corporation-Agreement not under Seal
-Acquiescence-Specific Performance.] A muni-
cipal corporation passed a resolution in January,
1860, agreeing to let land to C. for 300 years, to
be stumped out by a committee and himself at
his expense. The corporation did not stump out
the land, and C. afterwards stumped out the land
himself, took possession of it, erected a terrace on
the land, and paid rent to the corporation :-
Held, that C. was entitled to a decree for specific
performance, the corporation having acquiesced
in all that he had done :-Held, further, that the
right of the corporation to grant such a lease
could not be disputed in this suit. CROOK v. COR-
PORATION OF SEAFORD

678

-

246

99

-

275

-

17

17 & 18 Vict. c. 36-Bills of Sale
See BILL OF SALE.

c. 113-Locke King's Act
See LOCKE KING'S ACT.

20 & 21 Vict. c. 77, s. 70-Probate
See RECEIVER.

-

-

63

377

471

23 & 24 Vict. c. 124- Ecclesiastical Commis-
sioners
572
See APPORTIONMENT-TENANT FOR LIFE
AND REMAINDERMAN.

25 Vict. c. 19-Piers and Harbours
See CONSERVATORS OF RIVER.

232

354

479

See EXECUTION CREDITOR. 1.

c. 114, s. 5-Railways Abandonment 613
See RAILWAYS ABANDONMENT ACT.
STAYING PROCEEDINGS Practice Costs.]
When the Defendant offers to comply with
Plaintiff's demand, and would have done so, if
asked, before bill filed, the Court will stay all

c. 86, s. 12-Chancery Improvement 471 further proceedings without costs. RUDD v. Rowe
See RECEIVER.

-

Clauses

See SEWERS.

11 & 12 Vict. c. 45-Winding-up

See TRANSFER OF SHARES.

347 TENANT FOR LIFE AND REMAINDERMAN-
Appointment of additional trustee-
Costs of petition

See GIFT, ORIGINAL OR SUBSTITUTIONAL.
SUCCESSION DUTY-16 & 17 Vict. c. 51-Will-
Legacy-Bequest in Trust for Persons in Succession
-Foreign Domicil.] A testator who was domi-
ciled in Belgium, but for the last ten years of his
life resided and carried on business in England
by his will directed a sum of £12,000 to be invested
in consols and held in trust for A. for life, with
remainder for his nephews and nieces, most of
whom were Belgians :-Held, that upon the death
of A. succession duty was payable on the £12,000.
-In re Smith's Trusts (12 W. R. 933) and In re
Capdevielle (2 H. & C. 985) followed.-Wallace v.
v. Attorney-General (Law Rep. 1 Ch. 1) dis-
inguished. In re BADART'S TRUSTS
SUPPLEMENTAL ORDER:

See REVIVOR AND SUPPLEMENT.

-

-

See COSTS OUT OF INCOME.

Apportionment

-

45

See APPORTIONMENT- -TENANT FOR LIFE
AND REMAINDERMAN.

Impeachment of waste -

See EXECUTORY SETTLEMENT.
Ornamental timber

See TIMBER.

-

259

465

TIMBER-Ornamental Timber-Equitable Waste
-Damage to Inheritance.] Although the Court
of Chancery will grant an injunction to restrain
288
a tenant for life from cutting down ornamental
timber, irrespective of the question whether or
401 not any damage would be occasioned to the in-
heritance by such cutting; yet, when the orna-
reversioner claims damages from the tenant for
mental timber has been actually felled, and the
life in respect of such equitable waste, the amount
of damages can only be measured by the damage
Security for balance of current account 467 done to the inheritance. BUBB v. YELVERTON.
Ex parte HASTINGS

SURETY

- Co-sureties by separate instruments

-Contribution

See Co-SURETIES.

See SECURITY FOR BALANCE.

529

"Other

SURVIVORSHIP -Will-Construction
surviving" read" Other."] A testator devised real
estate in trust for his children, G., J., E., and M.,
in equal shares as tenants in common during their
respective lives, and after their respective deaths
in trust for such of the children of his said children
respectively as should attain twenty-one, or die
under that age leaving issue, and his, her, or
their heirs and assigns, if more than one, as
tenants in common; but so that the child or
children of each of his children should take his,
her, or their parent's share only; and in case of a
failure of such issue of either of his said children,
then in trust for his other surviving children or
child in like manner in all respects as their, his,
or her original shares or share were or was there-
inbefore given.-E. died in the testator's lifetime,
leaving a child; J. survived the testator and died
childless, leaving G. and M. and E.'s child surviv-
ing:-Held, that the words" other surviving"
must be read "other," and that E.'s child took
one-third of J.'s share.-Milsom v. Awdry (5 Ves.
465) disapproved. In re ARNOLD'S TRUSTS 252
SUSPENSION OF POWER-Transfer of mortgage
[482

See EXTINCTION OF POWER.

tice-Specific Performance-Inquiry as to Title-
Objection raised too late
Waiver.] Where a decree has been made for
specific performance of a contract for purchase
of real estate in the ordinary form, directing an
inquiry whether a good title can be made, it is
too late for the purchaser to take under that
inquiry, for the first time, an objection to title
disclosed by an abstract delivered previously to
within the time limited, as of the essence, by the
the commencement of the suit, but not taken
conditions. UPPERTON v. NICKOLSON

228

2. Specific Performance-Contract for
Sale-Waiver-Property required for Residence.]
Upon a contract for the sale of a house and land
required for immediate residence, the conditions
were that the purchase should be completed at
noon on the 26th of February, on which day the
purchaser, having paid his purchase-money, was
to be entitled to possession; but if, from any cause
whatever, the purchase should not then be com-
pleted, the purchaser was to pay interest on the
tion; and if any objections or requisitions as to title
purchase-money from that day until the comple-
should be made upon the delivery of the abstract
which the vendor should be unable or unwilling to
TAXATION OF COSTS-Solicitor - Payment-remove, then the vendor was to be at liberty to
Retention of Costs by Solicitor before delivering cancel the contract. The vendor failed to com-
Bill-6 & 7 Vict. c. 73, s. 41.] A solicitor re-plete his title by the day named; but negotiations
tained the amount of his bill of costs out of
money in his hands belonging to the client, and
the client, on receiving the balance of the money,
but before the bill of costs had been delivered,
signed an account in which the total amount of
the costs was an item, and gave a receipt for the
balance-Held, that there had been no payment
of the bill within the meaning of 6 & 7 Vict.
c. 73, s. 41: and that the client was entitled to
have the bill taxed more than a year after the
retainer of the costs and the signature of the
account-Held, also, that a special application
was necessary under the circumstances. In re
STREET -

165

were continued till the 7th of April, on which
day notice was given by the purchaser of imme-
diate abandonment of the contract. Upon bill
filed by the vendor for specific performance:-
Held, that as a possible postponement of com-
pletion of the contract was contemplated by the
terms of the agreement, time was not of the
essence of the contract, and that if it had been so
the purchaser, by continuing the negotiations as
to title after the day fixed for completion, had
waived it, and could not rescind without reason-
able notice.-Decree for specific performance,
with the usual inquiry as to title. WEBB ·
HUGHES

281

TITLE-DEEDS-Mortgagee parting with-Negli- UNCONSCIONABLE BARGAIN-continued.

622

683

92 cent. on punctual payment, and advanced only
£123, but claimed interest on the whole amount
secured. The Court declared that the securities
should stand as a security for the money actually
advanced with interest at 5 per cent., although
the Plaintiff had been assisted by a solicitor, who,
however, stated that he was not accurately in-
formed of the transaction. The jurisdiction of
the Court over unconscionable bargains is not
affected by the repeal of the Usury Laws, or by
the 31 & 32 Vict. c. 4, s. 1. MILLER v. COOK 641
UNREGISTERED MORTGAGE - Company
Act, 1862,

See COUNTY COURT JURISDICTION.
TRANSFER OF SHARES-Winding-up Act, 1848
-Contributory-Transfer subsequent to Presenta-
tion of Petition.] Where shares in a company
have been transferred in the interval between the

ANCE ASSOCIATION. GLANVILLE'S CASE

Transfer in blank

-

479

See ACCEPTANCE OF SHARES.
TRANSLATION-Foreign dramatic work-Copy-
right -
193

See INTERNATIONAL COPYRIGHT.
TRUST-Declaration of-Voluntary gift
See VOLUNTARY GIFT.

Executory

-

See EXECUTORY SETTLEMENT.

-

-

475

207

267

Gift for benefit of herself and family
See GIFT, ABSOLUTE OR IN TRUST.
Succession duty-Testator domiciled abroad
See SUCCESSION DUTY.
[288
TRUSTEE-Appointment of new-Costs-Tenant
for life and remainderman
See COSTS OUT OF INCOME.
Costs-Unnecessary suit

Winding-up-Directors-Companies

8. 43.] In the winding up of a company regis-
tered under the Companies Act, 1862, directors
will not be allowed to set up against the general
creditors a mortgage of, or charge on, the pro-

presentation of a Petition for winding up the
company under the Joint Stock Companies Wind-
ing-up Act, 1818, and the date of the order, the
transferor, and not the transferee, is the proper
person to be settled on the list of contributories
in respect of the shares. In re CONSOLS INSUR-perty of the company not registered pursuant to
the 43rd section of the Act.-Quære, whether an
659 unregistered mortgagee, not being a director, can
set up his mortgage against the unsecured
creditors.-A company, whose articles of associa-
tion authorized the directors, with the sanction of
a resolution of the company, to borrow money on
mortgage, being indebted to their bankers on an
overdrawn account, the payment of which some
of the directors had personally guaranteed, passed
a resolution authorizing the directors to raise
money on a mortgage of the property of the
company, to be applied in discharging the liabi-
lities of the company, or any director or other
person on behalf of the company, to the bankers;
the resolution also confirmed the acts of the
directors and any sureties of the company in
reference to the creation or continuance of the
liabilities to the bankers, and declared that the
bankers, directors, and sureties should stand in
the same position as to their claims against the
company as if such liabilities had been originally
loans specially authorized and secured by mort-
gage under the articles. No mortgage was ex-
ecuted, the resolution was not communicated to
the bankers, and no charge on the property of the
company in favour of the bankers or the guaran-
teeing directors was registered under the 43rd
section of the Companies Act, 1862:-Held, in
the winding-up of the company, that the resolu-
tion not having been communicated to the bankers
did not entitle them to a charge on the property
of the company; and that, assuming the resolu-
tion to have created a charge in favour of the
guaranteeing directors, their omission to register
it disentitled them to set it up against the general
creditors of the company. In re WYNN HALL
COAL COMPANY. Ex parte NORTH AND SOUTH
WALES BANK
USER-Interruption of

See TRUSTEES' COSTS.

45

664

Investment by-Foreign securities-French
railway

See INVESTMENT BY TRUSTEES. 2.
Investment by-Railway stock

-

39

26

See INVESTMENT BY TRUSTEES. 1.
TRUSTEES' COSTS Payment into Court-Un-
necessary Suit.] Any trustee who entertains a
reasonable doubt or difficulty as to the title of
the person who claims to be his cestui que trust,
should pay the funds into Court under the Trustee
Relief Act. A trustee, who, entertaining such
doubt, did not pay the funds into Court, but by
his conduct caused the institution of a suit, was
allowed out of the funds only the costs that he
would have been entitled to if he had paid the
funds into Court under the Act, and the costs of
appearing on the petition. GUNNELL v. WHITEAR

708

INDEX.

[EQ. VOL. X

VARIANCE BETWEEN PROSPECTUS AND ME- VOLUNTARY SETTLEMENT continued.
MORANDUM-continued.

representation Scienter - Jurisdiction.] A person
who has had his name removed from the register
of shareholders of a company for variance between
the memorandum and prospectus is not entitled
to file a bill for the purpose of compelling the
directors personally to refund the deposit and
calls he has paid in respect of the shares, unless
they have been guilty of fraud; and, semble, his
relief against the company is at law. A pro-
spectus issued early in May stated that more
than half the capital had been subscribed for.
On the 28th of May the Plaintiff applied for
shares, which were allotted to him on the 1st of
June. At the time when the prospectus was
issued half the shares had not been applied for;
but before the 28th of May applications for more
than half the capital had been received, and
before the 1st of June for more than the whole:-
Held, that there was no misrepresentation for
which the Plaintiff was entitled to relief.-
Stewart v. Austin (Law Rep. 3 Eq. 299) and
Henderson v. Lacon (Law Rep. 5 Eq. 249) dis-
cussed. SHIP v. CROSSKILL
73
VENDOR AND PURCHASER-Doubtful title 449
See DOUBTFUL TITLE.

-

-

-

were empowered, at the settlor's request, to raise
£700 out of the fund, and pay the same to her
for her separate use. Power of appointing new
trustees was reserved to the surviving or continu-
ing trustees, or to the executors or administrators
of the last surviving trustee. The deed was pre-
pared under the advice of a solicitor, who was
the solicitor and friend of the stepfatber, and
known to the Plaintiff. Upon bill, nine years
afterwards, by the settlor (who had remained un-
married), to have the settlement set aside :-
Held, that the deed was void, and must be set
aside, on the ground of improvidence, and having
regard to the age of the settlor; but, owing to
the absence of all improper motive, the trustees
were allowed their costs, charges, and expenses
properly incurred.-Observations on the proper
form of a settlement executed under the above
circumstances. EVERITT v. EVERITT

405

WAIVER OF IRREGULARITY-Practice-Mo-
tion to dismiss-Waiver.] A Defendant who has
been added to the record by revivor cannot, after
moving to dismiss for want of prosecution, move
to discharge as irregular an order of course to
amend, obtained before he was made a party to
the suit. KETTLEWELL v. Barstow
210

-

WIFE'S SETTLED PROPERTY-Marriage Arti-
cles-Husband's Adultery-Dissolution of Marriage
Subsequent Suit by Wife for Payment of Trust
Fund.] Under marriage articles, the personal
property of the wife, who was then an infant,
was agreed to be settled upon the usual trusts,
with an ultimate trust for the wife absolutely, if
she survived. No settlement was executed on
the wife's attaining twenty-one. There were no
children of the marriage. A decree for dissolu-
tion of the marriage was made by the Divorce
Court on the suit of the wife. The wife filed her
bill against her late husband and the trustee of
the marriage articles for payment of the trust
fund-Held, that she was entitled to have the
trust fund paid to her. SWIFT v. WENMAN

VOLUNTARY GIFT-Memorandum of Transfer
of Bond Non-delivery-Implied Declaration of
Trust.] A memorandum of a voluntary gift in
this form, "I hereby give and make over to M.
an India bond, value £1000," was signed by S.,
and given by him to M., without handing over
the bond. S. died, and the residuary legatees
under his will claimed the bond:-Held, that
the memorandum was a good declaration of trust
in favour of M., and that he was entitled to the
bond. MORGAN v. MALLESON
475
VOLUNTARY SETTLEMENT-Young Lady only
just of Age-Improvidence-Deed set aside-Form
of Voluntary Settlement for the Benefit of the Settlor,
a young unmarried Lady.] By a settlement exe-
cuted by an unmarried lady a few months after
she attained twenty-one, it was declared that a WILL-Appointment-Property ineffectually ap-
sum of money to which she was entitled abso-
lutely should be held by the trustees (who were
her stepfather and uncle), upon trust to invest
the same in certain specified classes of securities,
and vary the same at the trustees' discretion,
and pay the income to the settlor for life, for her
separate use, with restraint on anticipation if and
when married, and, after her death, to hold the
fund in trust for the settlor's children, as she
should by will appoint; in default of appoint-
ment, for the children absolutely; and in default
of children as the settlor should by will appoint,
and in default for her next of kin. The trustees

pointed

-

15

1

246

See APPOINTMENT BY WILL.
Charity-Gift to establish hospital
See GIFT TO ESTABLISH HOSPITAL.
Charity-Gift to such charities as trustees
should think proper
668

See GIFT TO SUCH CHARITIES AS TRUSTEES
SHOULD THINK PROPER.

Charity-Secret trust
See SECRET TRUST.
Executory gift -

See EXECUTORY GIFT.

488

-

501

See DEATH COUPLED WITH A CONTIN-
GENCY.

36

Lien for legacy-Condition of conveying
438

real estate

See LIEN FOR LEGACY.
Mistake in description of devisee

29

-

See WITNESS IN WINDING-up.

160 WINDING-UP PETITION — Jurisdiction — Com-
panies Act, 1862, s. 199-Canal Company incor-
porated by Act of Parliament.] The Court has
jurisdiction under the Companies Act, 1862,
s. 199, to wind up a canal company incorporated
by Act of Parliament, and will make a winding-
up order in such a case, although it may be
necessary to apply for an Act of Parliament to
enable the property of the company to be sold.
-A canal company, whose canal had been dis-
used for three years, in consequence of an in-
junction of the Court of Chancery restraining
the company from supplying the canal with
water from a stream which had become pol-
luted, and of the impossibility of obtaining a
supply of water from any other source without
incurring very great expense, was ordered to be
wound up on its own Petition. In re BRADFORD
NAVIGATION COMPANY
331

347

See MISTAKE OF TESTATOR.

Original or substitutional gift

See GIFT, ORIGINAL OR SUBSTITUTIONAL.

224

562

Residuary gift-"Rest of my lands at H."

See SECRET TRUST.

[488
Special power-Direction for payment of

debts

550

347

See GIFT, ORIGINAL OR SUBSTITUTIONAL.
"Surviving"

See SURVIVORSHIP.

252

2. Petitioners abroad-Affidavit verifying
Petition-Place of Business-Service of Petition.]
Where a winding-up Petition was presented under
a power of attorney executed by Petitioners resident
in a colony to a solicitor in this country, it being
impossible to comply with Rule 4 of the Order of
November, 1862, the Court made the order upon
verification of the Petition by an affidavit of the
solicitor, deposing of his own knowledge to the
facts stated in the Petition.-Where the registered
place of business of a company had been demo-
Îished, service on directors at the present place of
business, though not registered, was held suffi-
cient. In re FORTUNE COPPER MINING COMPANY

3.

[390

Petitioner in Arrear of Payment of
Calls.] A Petition for winding up a company,
presented by a shareholder who, at the date of
such presentation, is in arrear of payment of calls
due from him to the company, will on that ground
be dismissed. In re EUROPEAN LIFE ASSURANCE
SOCIETY
403
WITNESS IN WINDING-UP— Companies Act,
Fraudulent preference - Security to di- 1862, s. 115- Practice Examination of Wit-

See CREDITOR HOLDING SECURITY.
Executors of deceased shareholder-Lia-
bility

See DECEASED SHAREHOLDER.

rector

477

-

390

-

377

See WINDING-UP PETITION. 2.

See LOCKE KING'S ACT.

11

Transfer of shares

Proof for feu duties

See PROOF FOR FEU DUTIES.

See TRANSFER OF SHARES.

413