Castellan v. Hobson, 39 Law J. Rep. (N.S.) Chanc. 490. Mr. Osborne and Mr. Fischer, for the trustees. MALINS, V.C. (on Dec. 22), after reviewing the evidence at great length, came to the following conclusions as to the facts: first, that it was not proved that the plaintiff's lands were subject to the custom, or within the scope of the Act; secondly, that the defence set up by the mining association to the claim of the plaintiff for rent and royalties under the lease granted by him, viz. that they were ignorant of any lease, and at all events were not bound by it, was displaced by the evidence, and he considered that it was clear that the lease was executed by trustees for the company after mature deliberation on the part of the company, with a full knowledge of all the circumstances of the case, and as the settlement of a doubtful question, the doubtful question being whether the lands were or were not subject to the mining custom. He therefore held that the association was bound by the terms of the lease, even if the plaintiff's land were subject to the custom, which was not proved. He was further of opinion that it was within the power of the managing committee for the time being to bind not only the then members of the partnership, but all who should succeed them in the business; and that the lease was therefore binding on the company, and the plaintiff was entitled to the relief he asked. With reference to the account claimed, he said "The right to an account under a lease of mines is clearly settled by the authorities which were cited by Mr. Jessel in the course of his argument, and particularly by the cases of Jesus College v. Bloom (1), and Parrott v. Palmer (2), which was fully considered in The Great Western Railway Company v. Rous (supra). "If, therefore, this bill had been against the lessee Pitt only, the right to the account would have been a matter of course; and though, according to the decision of Lord Cranworth in Walters v. The Nor(1) 3 Atk. 262. (2) 3 Myl. & K. 642. thern Coal Company (supra) and the Court of Appeal, consisting of Lord Justice Knight Bruce and Lord Justice Turner, in Cox v. Bishop (supra), the company, as cestuis que trust of the lease, are not liable to be directly sued; they must, I think, be treated as having worked under the authority of the lease, and as subject therefore to the payments which it imposes, or they must be treated as trespassers and liable to account as such." He accordingly made a declaration that the defendants should not work the mines except on the terms of the lease, and decreed an account against them of all former workings. The plaintiff was to pay the costs of Pitt, the trustee, and to have those costs and his own over against the members of the association, who were defendants. A testator bequeathed his leaseholds to executors and trustees upon trust for his nephews and nieces, with a power of sale. All the trustees who survived the testator renounced probate, and refused to accept the trusts. Administration with the will annexed was granted to another person, who paid all the debts and assented to the bequests. By the decree in a suit for the administration of the testator's estate, a sale of the leaseholds was ordered :-Held, that the administrator alone, without the beneficiaries, could make a title to the leaseholds, and had the same power to sell them as if he had been a trustee of the will. This was a summons taken out by the plaintiff in the suit for an order that Solomon Willott, the purchaser of certain leasehold property sold in the suit, might be ordered to pay into Court the balance of the purchase money due from him. The bill was filed for the purpose of ascertaining the rights of all persons entitled under the will of Thomas Swales. By his will, dated August, 1851, Swales gave all his leaseholds to W. Caslon, R. Tilling, and R. Elms, upon trust, to pay the rents and observe the conditions reserved by and contained in the leases, and subject thereto, as to the messuages, 10 & 11 Grove Terrace, and 7 & 8 Capland Street, Lisson Grove, upon trust during the life of his wife, to pay the rents and profits thereof to his two nephews and nine nieces therein mentioned, and the children of such of them as should be dead, in equal shares as tenants in common, and from the decease of his wife, upon trust to divide the said surplus rents and profits in three equal parts, and pay one of such parts to each of his nieces, Lucy Cock, Mary Caslon, and Hannah Leverett, for her life, and after the decease of each of his said three nieces upon trust for her children, if any, or in default for the testator's nephews, as therein mentioned. The said will contained a power of sale for the purposes of distribution, and the testator appointed W. Caslon, R. Tilling, and R. Elms his executors. By a codicil, the testator subsequently revoked the appointment of Elms as one of his executors, and appointed P. Walsh in his place. The testator died in December, 1857. W. Caslon, one of his executors, had died in his lifetime. The other two surviving executors renounced probate, and never accepted the trusts of the will. The plaintiff, William Carter, took out administration to the testator, with the will and codicils annexed. The testator left him surviving, his widow, and ten out of his eleven nephews and nieces named in his will, his niece, Lucy Cock, having died in his lifetime. The testator's widow died in June, 1866. This suit was instituted by James Wyman (or Weyman), the administrator of one of the testator's nieces deceased subsequently to his death, to have the estate of the testator administered, and the rights of the several persons entitled thereto ascertained. It appeared by the bill that the testator's debts had all been paid, and that the administrator had assented to the bequests of the leaseholds. By the decree, dated the 8th of February, 1870, it was ordered that the premises, Nos. 10 & 11 Grove Terrace, and Nos. 7 & 8 Capland Street should be sold, and the money paid into Court in the usual manner. The property was put up for sale by auction, and the respondent, S. Willott, was declared the purchaser thereof. The purchaser, amongst his requisitions, took an objection that the testator's administrator had no power to sell. It was impossible he could execute the power contained in the will, and since all the debts were stated to have been paid, and the administrator had assented to the bequests, he could not sell as administrator. Upon these grounds the respondent refused to complete the purchase. This summons was taken out by the plaintiff, to make him complete it. Mr. Kay and Mr. Ellis appeared for the plaintiff, in support of the summons. Mr. Ince, for all the defendants. Mr. Decimus Sturges, for the purchaser. The respondent was not an unwilling purchaser; but the administrator had no power to sell. He had assented to the bequest of these leaseholds, therefore he was functus officio, and he could not exercise the power given to the trustees. Не referred to Lewin on Trustees, p. 157, s. 14; and on the question of costs to Dart's Vendors and Purchasers, p. 1,096. BACON, V.C., without hearing a reply, said the purchaser was not justified in his objections. The trustees having declined to accept the trusts of the will, the property, as part of the assets of the testator, became vested in the administrator. He stood in the shoes of the trustees. The purchaser's scruples were unfounded, and, having failed in his contention, he must pay the costs. The summons must be allowed with costs. Solicitors-Messrs. Lydall & Sweeting, for plaintiff; Messrs. Gray & Berry, for purchaser. LORD ROMILLY, M.R. 1871. March 17. MENZIES V. LIGHTFOOT. whole debt of the defendant was within the 1,5007. limited by the mortgage deed. The plaintiff's claimed to have the money Mortgage for further Advances-Usage applied in payment of their charge, after of Trade Priority. Brewers and Distillers A brewer took from an innkeeper a mortgage to secure 1,250l. and any sums afterwards due from him not exceeding 1,500l. At the same time and place the innkeeper gave to a distiller, subject to the brewer's secu rity, a charge upon the mortgaged premises for a sum advanced. Subsequently, the mortgagor became indebted in further sums to the brewer:-Held, that the distiller had priority over such further sums as became owing after notice of the distiller's mortgage, and that neither an alleged custom of trade, nor the fact that the securities were given simultaneously could alter the legal meaning of the documents. The defendant, Lightfoot, a brewer, had taken from one Hall, an innkeeper, a mortgage to secure the sum of 1,2507. then advanced by Lightfoot, together with any sum or sums for which Hall might become indebted to Lightfoot for further advances, book-debts, or otherwise. It was provided that the whole sum to be secured should not exceed 1,500l. At the same time, Hall gave a charge upon the mortgaged premises to the plaintiff, Menzies, a distiller, to secure a sum certain and further advances, "subject only to the security already given" to the defendant. The mortgage to the defendant and the charge to the plaintiff were both given at the same time and place, and in the presence of the solicitors of both the plaintiff and defendant, and notice of the defendant's charge was given to the plaintiff, and of the plaintiff's charge to the defendant. The defendant had sold the mortgaged property under the power in his mortgage deed, and claimed that the proceeds of sale might be applied in payment (in priority to the plaintiff's charge), not only of the sum originally advanced by the defendant, but of a further sum in which Hall had become indebted to the defendant, after the original transaction and notice of the plaintiff's charge. The NEW SERIES, 40.-CHANC. satisfying the money owing to the defendant at the time of their mortgage, but in priority to the sums which had subsequently become due to him. The case was substantially similar to that of Daun v. City of London Brewery The only difference being, that in this case the mortgages to the plaintiff and defendant were made simultaneously, and part of one transaction. Mr. Jessel and Mr. Everitt, for the plaintiff, said that the case came within the rule laid down in Rolt v. Hopkinson, 9 H. L. Ca. 514; s. c. 28 Law J. Rep. (N.s.) Chanc. 41; and that it had already been decided by Vice Chancellor James in the case of Daun v. City of London Brewery Company (supra); that the alleged custom of trade set up by the defendant as applying to mortgages taken by brewers and distillers from publicans, did not alter the esta blished rule. Mr. Southgate and Mr. W. W. Karslake, for the defendant. This case is distinguishable from both those cited by the plaintiff's counsel, because in those cases the mortgages were not simultaneous and part of one transaction, as is the case here. Vice Chancellor James, in Daun v. City of London Brewery Company, said, "One can easily understand if the brewer and distiller are both present at the time, and both take their securities at the same moment; if in the presence of the distiller the brewer takes the security to cover further advances, a very different consideration, at all events, a moral if not a legal or an equitable consideration, would arise to prevent the distiller from afterwards questioning the validity of such security as to future advances." The Vice Chancellor therefore expressly guards against his judgment being applied to a 4 C Shaw v. Neale, 6 H. L. Ca. 581; s. c. 24 Law J. Rep. (N.S.) Chanc. 563; and on the question of custom, cited— Hutton v. Warren, 1 Mee. & W. 466; s. c. 5 Law J. Rep. (N.S.) Exch. 234; Smith v. Wilson, 3 B. & Ad. 728; Bayliffe v. Butterworth, 1 Exch. Rep. Grave v. Legg, 2 Hurl. & N. 210; 8. c. 26 Law J. Rep. (N.S.) Exch, 316; Humphrey v. Dale, 7 E. & B. 266; 8. c. 27 Law J. Rep. (N.S.) Q.B. 390. LORD ROMILLY, M.R., after stating that the case of Rolt v. Hopkinson had settled what construction must be put upon documents in the form of the defendant's mortgage, and that advances made by a prior mortgagee after notice of a subsequent mortgage, would be subject to it, said that as to the question of custom the case was covered by the decision in Daun v. City of London Brewery Company, and that he agreed with Vice Chancellor James that the alleged custom or usage could not control the settled meaning of the written documents. That he considered the fact that the mortgages were given simultaneously made no difference. The question was, what was the meaning of the documents? The security of the brewer might have been easily worded so as to give him priority for sums subsequently becoming due, but this had not been done, and therefore the usual rule applied, and the plaintiff was entitled to priority over any sums not due at the time the defendant had notice of this mortgage. Solicitors Messrs. Minett, Smith & Co., for plaintiff; Messrs. Bridges, Sawtell & Co., for defendant. Winding-up-Joint Stock Companies Acts, 7 & 8 Vict. c. 110, 19 & 20 Vict. c. 47, ss. 2, 107-20 & 21 Vict. cc. 14, 80 -Unregistered Insurance Companies. By section 2 of the Joint Stock Companies Act, 1856 (19 & 20 Vict. c. 47), it is enacted that the Act shall not apply to persons associated together for the purposes of banking or insurance, and by the 107th section, the Joint Stock Companies Act of 1844 (7 & 8 Vict. c. 110) is repealed; but by the 20 & 21 Vict. c. 80, it is enacted that that Act should not be deemed to have been repealed as to companies already formed for the purpose of carrying on the business of insurance thereunder, or as to companies thereafter to be formed for the said purpose:-Held, that the legislature had by this Act put a construction upon the Act of 1856, and by sweeping out of the repeal two classes of companies, had in effect declared that as to all other associas tions the Act was repealed. Therefore, an insurance association formed as a common law partnership between the passing of the Acts of 1856 and 1857, and never completely registered, not being within either of the exceptions, was liable to be wound up under the Companies Act, 1862, as an unregistered company. The Bank of London & National Provincial Insurance Association was intended to be formed into a joint stock company for the purpose of carrying on assurance business, except Marine Insurance, under the 7 & 8 Vict. c. 110, and was provisionally registered under the 14th section of the Act on the 28th of April, 1856, by the name of the Bank of London Fire & Life Insurance Association, and the office was first opened for business on the 22nd of September, 1856. A deed of settlement was prepared and executed by the required proportion of shareholders, but just before it was left with the registrar of joint stock companies, the Joint Stock Companies Act, 1856 (19 & 20 Vict. c. 47), was passed. This Act, which received the royal assent on the 14th of July, 1856, enacted (section 2) that "this Act shall not apply to persons associated together for the purpose of banking or insurance." By the repealing clause (seccion 107), it repealed the 7 & 8 Vict. c. 110, but enacted that such repeal should not take effect with respect to any company completely registered under that Act, until such company should have obtained registration as therein mentioned. In consequence of the passing of this Act, when the deed was lodged, the registrar considering that the act of 7 & 8 Vict. was entirely repealed, declined to receive it. The consequence was, that the association never was completely registered, and the promoters of the association, in order to avoid a delay that would have been ruinous to the scheme, executed a new deed of settlement dated the 21st of July, 1856, constituting the association as a private partnership. The Joint Stock Companies Act, 1857 (20 & 21 Vict. c. 14), enacted, section 2, that the Act of 1856, "the principal Act," and that Act should, so far as was consistent with the context and objects of such Acts, be construed as one Act, and be cited as the Joint Stock Companies Acts, 1856 and 1857, and by the 23rd section, it repealed section 107 of the principal Act, and enacted in lieu thereof that the Act of 7 & 8 Vict. c. 110, should be deemed to have been and still to remain unrepealed as to any company completely registered, which had not obtained registration under the principal Act, until such time as such company should obtain registration under the Acts of 1856 and 1857, but from and after such time, and not before, should be repealed as to such last-mentioned company, and subject, as aforesaid, the 7 & 8 Vict. c. 110, should be repealed. The 20 & 21 Vict. c. 80, enacts that "the Joint Stock Companies Acts, 1856 and 1857, shall not, nor shall either of them, be deemed to have repealed, as respects companies already formed for the purpose of carrying on the business of insurance, under the Act 7 & 8 Vict. c. 110, or as respects companies hereafter to be formed for the said purpose, the said Act, 7 & 8 Vict. c. 110, or any other Act amending the same, or relating to such companies. Provided that, if any insurance company formed under the said Act of the 8th year of her present Majesty, or the directors of or shareholders in any such company have, during the interval between the passing of the said Joint Stock Companies Act, 1856, and of this Act, acted as if the said Act of the 8th year of her present Majesty had, as to such company, been repealed by the said Joint Stock Companies Act, 1856, then, so far as affects the mutual rights and relations of the said company, its directors and officers, and late or present shareholders, and so far as affects any penalties which the said company or its directors, officers, or shareholders may have incurred by non-observance of the said Act of the 8th year of her present Majesty, the said Act of the 8th year of her present Majesty shall, as regards the actions of the said company, its directors and shareholders, during such interval as aforesaid, be deemed to have been repealed." In 1858, the association was amalgamated with the Albert Life Assurance Company, which was ordered to be wound up in August, 1869, and on the 22nd of January, 1870, upon the petition of a creditor claiming an annuity granted by the association, Vice Chancellor James made an order for the winding up of the association separately, under the provisions of the Companies Acts, 1862 and 1867, and on the 16th of December following, the present appellants, who were the executors of a deceased shareholder, were settled upon the supplemental list of contributories. Hence the appeal. Mr. Mackeson and Mr. W. W. Cooper, for the appellants, contended that the association never was a company within any of the Joint Stock Companies Acts, or any other Act of Parliament, and therefore, as it could never incur any debts or liabilities as a company, there could be no contributories. The 7 & 8 Vict. c. 110, enacted (section 7) that it should not be lawful for any Joint Stock Company thereafter to be formed for any purpose within the meaning of the Act to act otherwise than provisionally in accordance with the Act, until it should have |