Ex parte MACKAY. In re JEAVONS.

Bankruptcy-Appeal-Re-hearing by Registrar-Practice.

A Registrar sitting as Chief Judge may re-hear a case, although his order has been appealed from and varied by the Court of Appeal, if the special point to be re-argued was not dealt with on the appeal.

IN this case an application had been made by the trustee in the

liquidation to Mr. Registrar Spring Rice, sitting as Chief Judge, for a re-hearing; but he declined to re-hear the case without the direction of the Court of Appeal.

The debtor, J. Jeavons, before the liquidation, executed three indentures, dated respectively the 30th of March, 1870, by the first of which he assigned a patent for making iron armour plates, and the royalties payable thereon, to certain of his creditors; by the second he assigned his interest in the Millwall Ironworks, which were held by him under an agreement for a lease, together with the machinery and trade fixtures, to the same creditors; and by the third he agreed to give a bill of sale to the same creditors of certain chattels and effects, not being trade fixtures. Neither of those deeds was registered under the Bills of Sale Act. The Registrar made an order declaring that the creditors were entitled to a charge on the machinery, engines, and plant in the nature of trade fixtures, and on the royalties under the patent, but refused to make any order as to the chattels included in the third indenture, on the ground that it ought to have been registered under the Bills of Sale Act. This order was appealed from, and was reversed as to the royalties under the patent, but affirmed as to the rest of the order. On that occasion it was assumed by the counsel both for the trustee and for the creditors, that the assignment of the machinery and other trade fixtures attached to the leasehold premises did not require registration under the Bills of Sale Act, and the point therefore was not brought to the attention either of the Registrar or of the Court of Appeal; but subsequently to the decision of the Court of Appeal, the case of Ex parte Daglish (1) was decided, by which Boyd v. Shorrock (2) was over(1) Law Rep. 8 Ch. 1072. (2) Law Rep. 5 Eq. 72.

L. C. and L. J. M.

1873

Dec. 19.

L. C.

and L. J. M.

ruled, and it was held that where trade fixtures are included in a demise of leasehold premises, the deed requires registration as a bill of sale. The trustee accordingly applied to the Registrar to Ex parte re-hear the case on this point.

1873

MACKAY.

In re JEAVONS.

Mr. De Gex, Q.C., and Mr. Finlay Knight, for the trustee, now mentioned the case to the Court of Appeal.

LORD SELBORNE, L.C.:—

We think that the Registrar may exercise his discretion to rehear the case, and deliver his judgment thereon, notwithstanding the previous appeal.

Solicitors for the Trustee: Messrs. Lewis, Munns, & Longden.

A testatrix advanced to the Defendant £900 on the security of an assignment by him of a covenant by F. to transfer a sum of £1000 stock, and to pay interest in the meantime. By her will she gave F. £3000, and all sums due to her from him, and directed her executors not to require payment of the £900 due from the Defendant, but out of the £3000 given to F. to retain enough to purchase £1000 stock for the benefit of her estate, and if the stock were worth more than the £900 and interest, the surplus to be paid to the Defendant. F. having predeceased her, she, by a codicil, directed that the £3000 should form part of her residuary personal estate, but directed her executors not to call on F.'s representatives for transfer of the £1000 stock, nor to enforce payment of the £900 from the Defendant :

Held, that the Defendant was not at liberty to enforce performance of the covenant to transfer the £1000 stock against F's estate, except as to the difference between the £900 and the value of the stock.

THIS

Decision of James, L.J., for Wickens, V.C., varied.

was an appeal from a decision of Lord Justice James, acting for Vice-Chancellor Wickens, on a special case (1).

The facts stated in the special case are given at length in the

(1) Law Rep. 15 Eq. 389.

previous report. The following short statement will be sufficient for the purpose of the present report :—

By an indenture dated the 23rd of April, 1858, between Francis H. Synge of the one part, and the Defendant, Millington H. Synge, of the other part, Francis H. Synge, for the considerations therein mentioned, covenanted with the Defendant that within twelve months after the death of Sir J. M. Tylden he would transfer £1000 £3 per Cent. Reduced Annuities into the name of the Defendant, his executors, administrators, or assigns, and would in the meantime pay interest at the rate therein mentioned.

By an indenture dated the 8th of March, 1866, between the Defendant, M. H. Synge, of the one part, and Mary A. Synge, of the other part, in consideration of £900 lent by Mary A. Synge to the Defendant, the Defendant assigned to her the indenture of the 23rd of April, 1858, and the principal and interest thereby secured, with full power to receive and demand the same in the name of the Defendant, and give discharges for the same; subject to redemption on payment of the sum of £900 and interest.

Mary A. Synge made her will, dated the 8th of September, 1871, in which she bequeathed as follows:-"To my late husband's nephew, Millington H. Synge, thirty-six B shares in the Westonsuper-Mare Gas Company. To my late husband's nephew, Francis H. Synge, £3000, and all such sums of money (if any) as he may be indebted to me at the time of my death except as hereinafter mentioned." And the testatrix directed that in case any pecuniary legatee should die before her, his or her legacy should not lapse, but be paid to his or her personal representatives as part of his or her personal estate. The will then, after reciting the indentures of the 23rd of April, 1858, and the 8th of March, 1866, proceeded as follows:-"Now I do hereby will and direct that if at my death the sum of £900 and its interest so secured to me by the said indenture of the 8th of March, 1866, or any part thereof, shall still be due to me, and if the aforesaid covenant on the part of the said Francis H. Synge contained in the indenture of the 23rd of April, 1858, shall be still unperformed, my executors shall not require payment of the said sum of £900 from the said Millington H. Synge, but they shall retain

L. C.

and L. J. M.

1874

SYNGE

v.

SYNGE.

L. C.

and L. J. M.

1874

SYNGE

v.

SYNGE.

out of the legacy of £3000 bequeathed by me to Francis H. Synge so much as should be sufficient to purchase for the benefit of my estate the sum of £1000 Reduced £3 per Cents., and the costs attending such purchase, and such purchase when made shall be in satisfaction of the aforesaid covenant of Francis H. Synge; and if the said £1000 stock shall be worth more than the said debt of £900 and the interest then due thereon, the surplus shall be paid to the said Millington H. Synge by my executors."

F. H. Synge died on the 17th of September, 1871, having by his will given all his real and personal estate to his widow, and appointed her sole executrix. By a codicil dated the 30th of October, 1871, the testatrix made the following disposition:"Whereas since the date of my will Francis H. Synge has died, Now I hereby declare that notwithstanding anything contained in my will to the contrary, the legacies bequeathed to him shall not go to his representatives, but shall form part of my residuary estate, subject to payment of debts and other legacies. I will and direct that my executors shall not call upon the representatives of Francis H. Synge for payment of any moneys or for the transfer of any stock pursuant to the deed of covenant of the 23rd April, 1858, nor enforce payment by Millington H. Synge on the security of the deed of 8th March, 1866."

The market value of the £1000 £3 per Cent. Reduced at the date of the will was £915 12s. 6d. ; at the date of the codicil, £911 13s. 4d.; at the date of the testatrix's death, £910 12s. 6d.

The Defendant claimed to take the benefit of the forgiveness of the debt of £900 and the share legacy, and to enforce the covenant against Francis H. Synge's estate; but if put to election, he elected to take under the will. The Plaintiff, was the executrix of F. H. Synge, and the questions submitted to the Court were, whether Millington H. Synge was entitled to enforce the covenant to any and what extent, and whether the Plaintiff was entitled to have the deed of covenant delivered up.

The Lord Justice James decided that the Defendant, M. H. Synge, could not enforce against the executrix of Francis H. Synge the covenant in respect of the sum of £1000 £3 per Cent. Reduced Annuities, or any part thereof, and answered the questions accordingly. From this decision the Defendant appealed.

Mr. Dickinson, Q.C., and Mr. Cookson, for the Appellant :This is not a case of election, for the testatrix has not assumed to give anything which was not her own. It simply depends on the construction of the will, and we say it is plain that the object of the codicil was to release both the Defendant and the executors of F. H. Synge so far as her estate was concerned, but she had no intention to alter the relations between them. When she made her will she had an intention of benefiting F. H. Synge and his representatives, but she altered her mind and withdrew her bounty. If she had intended to prevent the Defendant from enforcing the covenant she might have done so, but she has only directed her own executors not to enforce it, and has left the Defendant at liberty. At all events the Defendant is entitled to recover from the estate of F. H. Synge the difference between the sum of £900 and the value of the £1000 stock.

Mr. Hemming, for the Plaintiff, was desired by the Court to confine himself to the last point raised by the Appellant :—

The testatrix considered herself the owner of the whole stock because she had advanced what was substantially the whole value of it. But in fact she disposed of what was not entirely her own, and so raised a case of election, The effect of the will and codicil taken together is, that the testatrix, by releasing both the covenant and the debt, intended entirely to extinguish the debt and to prevent the Defendant from enforcing the covenant as to any part of it. It is not necessary, in order to raise a case of election, that there shall be express words of intention to do so; but the Court will take the natural construction of the will: Wilkinson v. Dent (1).

LORD SELBORNE, L.C:

It appears to me that the decision of Lord Justice James, sitting for Vice-Chancellor Wickens, is substantially correct; but I think that it needs some alteration so as to make a distinction between the sum of £900 and the difference between that sum and the value of the stock.

The testatrix in her codicil takes notice of the death of Francis

(1) Law Rep. 6 Ch. 339.

L. C. and L. J. M.

1874

SYNGE

v.

SYNGE.