MARCH 24, 1855.] COURT OF APPEAL. LAW TIMES REPORTS. COURT OF APPEAL. bankrupt. Upon a bill filed by the wife seeking to and agreed that the provisions before-written in favour The plaintiff, Harriet Grace Duncan, being the daughter of Lewis Inkson, a tradesman of London, was married, on the 2nd Aug. 1826, to Andrew Duncan, a Scotchman, then residing at Aberdeen. Their marriage-contract was prepared and executed in London in the Scotch form, and was as follows: "It is contracted and agreed upon matrimonially between Andrew Duncan, of the city of Aberdeen, merchant, on the one part, and Harriet Grace Inkson, daughter of Lewis Inkson, of the Adelphi, Strand, London, merchant-tailor, with the consent of her father, on the other part, in manner following: that is to say, that the said Andrew Duncan and Harriet Grace Inkson, have accepted and hereby accept of each other in marriage, and engage to solemnise the same in due form and without delay; in contemplation whereof, and in consideration of 1000l. sterling by the said Lewis Inkson, as a portion with his said daughter presently paid to the said Andrew Duncan, the receipt whereof is hereby acknowledged, and of the assignation by the said Harriet Grace Inkson underwritten, the said Andrew Duncan hereby binds and obliges himself, his heirs, executors and successors whomsoever, to make payment to the said Harriet Grace Inkson, his promised spouse, in the event of her surviving him, of a free yearly annuity of 100/. sterling during all the days of her lifetime after his decease, and that at the terms of Whitsunday and Martinmas in each year, by equal proportions, begining the payment at the first of these terms that shall happen next ensuing his decease for the first half year, and so forth to continue the payment of the said annuity of 100%. yearly, termly and proportionally down to the day of her death, together with one-fifth part more of such termly payment of the said annuity as liquidate penalty in the event of failure of the punctual payment thereof and the legal interest of each termly payment of the said annuity from and after the term when the same shall become due during the nonpayment thereof; and further the said Andrew Duncan binds and obliges himself and his aforesaid to aliment the said Harriet Grace Inkson, his promised spouse, from and after the day of his decease until the first termly payment of the said annuity shall become due; and also, in the event of her surviving him, to provide her with suitable furniture for a dwelling-house for her residence after his decease, which furniture shall become the absolute property of the said Harriet Grace Inkson, or in lieu thereof or in her option to make payment to her of the sum of 2001. sterling at the first term of Whitsunday or Martinmas that shall happen next ensuing his decease, for the purpose of enabling her to provide herself with one-fifth part more of the sum as liquidate penalty, in the event of failure in the punctual payment thereof and of the legal interest of the principal sum from and after the said term of payment during the nonpayment thereof. Moreover, the said Andrew Duncan binds and obliges himself and his aforesaid to make payment to the child or children that shall be procreated of the said intending marriage: if there be only one child surviving the father, to him or her the sum of 10002 sterling, and if there be two children surviving the father, to them the sum of 15001. sterling; and if there be more than two children surviving the father, to them the sum of 20007. sterling, divisible the said sum of 1000l. or 2000l. among the several children in such a manner and in such proportions as shall be directed and appointed by any writing executed by their father, or failing him, by their mother after his decease, and in the event of his surviving her or failing such direction and appointment, divisible among the said children in equal proportions, share and share alike, and payable the said sum of 1000%, or 1500%., or 20001. at the first term of Whitsunday or Martinmas that shall happen next ensuing the decease of the said Andrew Duncan, with one-fifth more thereof as liquidate penalty in the event of failure in punctual payment of the same and legal interest of the principal sum from and after the said term of For payment during the nonpayment thereof. which causes and on the other part the said Harriet Grace Inkson hereby assigns and makes over to and in favour of herself and the said Andrew Duncan, her promised spouse, in conjunct fee and liferent, and the child or children that shall be procreated of the said intended marriage, divisible as aforesaid, whom failing, the said Harriet Grace Inkson, her heirs and assigns whomsoever in fee, all estate, funds and effects heritable and moveable, real and personal, presently belonging or due and addebted to her, or that may be acquired by her during the subsistence of the said intended marriage, with the whole writs, vouchers and instructions thereof, and all following or competent to follow thereupon; and it is provided The Mr. and Mrs. Duncan resided in Aberdeen till 1841, The bill in the present suit was filed against the Upon the Scotch law as applicable to the marriagecontract the opinion of the Lord Advocate (Moncreiff), the Solicitor-General (Handyside), the Dean of Faculty (Inglis), the Lord Advocate (Rutherford), and Mr. Charles Baillie were in evidence. They agreed in holding that the husband was entitled to a life-interest in the wife's property, and that subject thereto it vested in the wife absolutely, the children taking nothing; also that the husband and wife could, according to Scotch law, jointly give a discharge for the corpus; but as to the question whether the husband alone could give such a discharge, the opinions differed. COURT OF APPEAL. interests under the contract. The rule that rights flowing out of a contract are governed by the lex loci contractus is true only of those rights which are of the contract: (Story's Conflict of Laws, ss. 55, 56, created by the express or implied force of the words 57, 73; Warrender v. Warrender, 2 Cl. & Finn. 488.) Several instances may be given in which rights, in some sense the consequences of a contract, are governed by other laws than those of the locus contractus. Litigious rights, or remedies, are governed by the lex fori; the rights of intestacy, of disposition by will, and of alienation inter vivos, are governed as to personalty by the lex domicilii: (Sill v. Worswick, 1 H. Bl. 665.) [KNIGHT BRUCE, L. J.-So late as Lord Hertford's case, (Croker v. The Marquis of Hertford, 4 Moore, P. Ć. Č. 339), the question whether Many of these questions the validity of a will was to be governed by the lex loci actus or the lex domicilii was treated as open. are found not to be so when they come to be consiThat is now settled. arising upon domicil, which are supposed to be settled, dered.] So questions of personal capacity are decided by the law of the domicil: (Story, ss. 66, 141, &c.; Gambier v. Gambier, 7 Sim. 263; Sawyer v. Shute, 1 Anst. 63.) The validity of the present discharge must be deterEngland, by which a husband cannot release his mined by the law of the domicil, that is by that of wife's reversionary chose in action. The law of Scota power of testamentary disposition over this property, land would give Mrs. Duncan, while domiciled there, power to discharge follows the same rule. With respect but that is gone by her change of domicil. to the other point, a trustee would have a right to stop the husband's life-interest to make good his contract under the settlement: (Ex parte Mitford, 1 Bro. referred to the following authorities:-1 Fraser on C. C. 398; Ex parte Turpin, Mont. 443.) They also Personal Succession, App. 426; Black v. Pearson Personal and Domestic Relations, 417; Foubert v. Turst, 1 Bro. P. C. 38; Lashley v. Hog, Robertson on Series, 504; Macdonald v. Macdonald, 8 Cases in (Dauney's Trustee); 3 Cases in Court of Session, 2nd Court of Session, 2nd Series, 830; Este v. Smyth, 18 Beav. 112; Hitchcock v. Clendinen, 12 Beav. 534; Anstruther v. Adair, 2 Myl. & K. 513; Johnstone v. Beattic, 10 Cl. & Finn. 42; Leslie v. Baillie, 2 Y. & C. C. C. 91; Guépratte v. Young, 4 De G. & Sm. 217; Tatnall v. Hankey, 2 Moo. P. C. 342. The Sir F. Kelly, Lloyd, Q.C. and Giffard, who appeared Roberts for Andrew Duncan, were not heard. Lord Justice KNIGHT BRUCE.-Mrs. Duncan, the plaintiff, became, under the will of her father, Mr. Inkson, entitled, on the death of his widow, to a share of the capital of his personal estate, but not for the plaintiff's separate use; so that, according to our of the share in her right, subject to her equitable title to a settlement, but for the contract which I shall law, her husband was or would have been the owner man. The plaintiff's marriage took place in England presently mention. Mr. Inkson's will was English, in his lifetime; her husband I collect to be a Scotchand he died, as I understand, a domiciled Englishin Scotland. Before the marriage, and in contemman, and to have been, until and at the time of the marriage, and for some years following it, domiciled plation of it, they entered into a contract by way of settlement, to which her father was also a party-a contract Scotch in form, and prepared, I believe, by a to have left soon after the marriage for his home in Scotch lawyer, but prepared, I understand, as well as signed, in England, which the husband and wife seem Scotland. For some time afterwards they resided as well as had their domicil in Scotland; but at last they came finally southward, and became domiciled in England; and it was while they were so domiciled of him and the plaintiff, the payments on account of that the defendant Mr. Shuter, as Inkson's executor, made to the plaintiff's husband, on the joint receipts The cause was heard before the M. R., who held her share of the capital of Mr. Inkson's personal that the validity of the payments must be determined estate, of which the validity is disputed in this suit. by the Scotch law as applied to the marriage-con- She denies their validity, on the ground of the contract, and that accordingly the payments made to tract, of which Mr. Shuter, when he made the paythe husband upon the joint receipts were valid payments, knew. He asserts that they were well made. ever this may have been, I consider it to be clear, ments, but he held the payments to the assignees were Now it was, I think, conceded at the bar-but, howinvalid, and must be made good by the trustee. He also held that the future dividends payable to the from the Scotch form, the expressions, and the nature of the contract and the husband's Scotch domicil at husband could not be impounded to answer the sum which might be payable by him under the contract, the time when he entered into it, a domicil which he The judgment of the M. R. is reported 18 Beav. 128, does not appear to have intended at that time to 23 L. T. Rep. 318. From this decree the plaintiff change, and which continued at the time of the marriage that the contract must receive the same conappealed. struction, and produce the same effect, as it would have received and produced if it had been prepared and signed in Scotland, if the domicil of the intended wife had then been in Scotland, and the marriage had been solemnised in Scotland. The contract therefore must be construed by the law of Scotland, or with reference to that law; and upon this footing it is said by the plaintiff that its meaning and effect were after the marriage to give her husband a life-interest in her share of her father's personal estate, which I believe was wholly English (he had been a tradesman in London or Westminster), and subject to the husband's life-interest to give her an absolute right to The Solicitor-General, Anderson, Q.C. and Hemming for the plaintiff.-The effect of the marriage-contract was to give the wife an absolute property in the fund, subject to the life-interest of her husband therein. The jus mariti was excluded by the contract, but the jus administrandi or jus curatorium, a right flowing, not from the contract, but from the Scotch law, existed so long as the spouses were domiciled in Scotland, but ceased when their domicil was changed. The power, which it was admitted that the husband and wife had, while Scotch, to give discharges, did not arise jure contractus, but by the law of their country as applied to their relation of husband and wife, and to their taken to have sanctioned this by her signature, and this capital. The plaintiff further says that, according gagement locking up the capital from each during their joint lives. I will, at the risk of repetition, say distinctly, that in my opinion the contract on the face of it exhibits an intention, that the personal property which should be affected by it should, during the joint lives of Mr. and Mrs. Duncan, be, as to the capital, received or receivable by him with the assent of both. The words descriptive of property are general: there is no specification. The wife's father, whose will has furnished the materials for the present contest, was living at the time of the marriage. The contract does not appoint or provide for the appointment of any trustee other than the husband and wife themselves, and I find it impossible to ascribe to either of them such an intention in making it, as that the personal property subjected to it should, to use a familiar phrase with us," be brought into court," or that trustees or a trustee should be appointed for the purposes of it during the joint lives of Mr. and Mrs. Duncan, other than themselves. The instrument accordingly, as I have mentioned, seems to me ex facie to show, that if there were to be trustees under itor for its purposes, they were intended by it to be the trustees, and that into their hands or the hands of the husband, with the wife's assent, the personalty subjected to it was to come. Nor, if the English law ought to be looked to, does that prohibit the husband and wife from being their own trustees or trustee for either of them; it being clear that if a will or settlement, in every sense and for every purpose English, should provide that a husband and his wife, or either of them, should be the trustees or the trustee of personalty for the benefit of him for his life, and after his death for the wife absolutely, effect must be given to that intention. The law of England too does not regard as inconvenient or ineffectual, but allows, a contract between a man and a woman intending to marry each other, that after their marriage she shall, with his consent or otherwise without it, have power and capacity to dispose of all such reversionary deferred and contingent interests in property, as under the contract or otherwise may during the marriage belong or come to her or to him in her right. What else substantially is there in the point now under consideration ? If we place the contract out of view, of course the payments to the husband must stand good. If we introduce it we must introduce it as a Scotch contract with all the incidents of a Scotch contract, so far at least as not prohibited by the English law, and it is not, I repeat, prohibited by the English law, that a married woman should have conferred upon ber the power and capacity just referred to. Whether, therefore, we regard or disregard the contract, whether we consult the English law or the law of Scotland, or both, the decree seems to me plainly right in this respect. It was perhaps arguable, whether the receipt for the largest amount was good to the extent of the sum allowed by the husband as a debt due from him to the testator; but according to the true import of the language of the document, the wife must, I think, be COURT OF APPEAL. of her contingent annuity. I do not think that this am of Feb. 27 and March 22. (Before the Lords JUSTICES.) EWART v. WILLIAMS. Practice-Special directions as to vouching accountsStat. 15 & 16 Vict. c. 86, s. 54. A decree was made in 1845, in a suit by a stockbroker against his customer, directing an account of dealing between them. The account not having been taken. the plaintiff applied, in the end of 1854, that the master might be directed under the stat. 15 & 16 Vict. c. 86, s. 54, to receive the plaintiff's books as prima faciees dence of the items of the account. The clerk cho hai made the entries died in 1847. Held, by Turner, L. J. (dubitante Knight Bruce, L. J.). that the 54th section of the statute was applicable to an account directed before the passing of the Act: But held, that this section being in derogation of the ordinary law of evidence, would be very cautiously used, and that the plaintiff had not shown a case for op plying it. This was a motion by the defendant Williams to discharge an order made by Kindersley, V. C., on the 7th Dec. 1854, that in taking the accounts directed by the decree dated the 7th July 1845, the plaintiff's books of account should be taken as prima faci evidence of the truth of the matters contained therein. The bill in the cause was filed on the 29th Jan. 1844, by Ewart and Bell, stock brokers in London, prașing an account of certain dealings and transactions in the way of their trade with the defendant Williams in the year 1843, and that a security given by the defendant by deposit of title-deeds might be realised, and the balance due to the plaintiffs paid. A crossbill was filed, on the 16th April 1844, by Williams, praying that all the dealings and purchases not beni fide had and made by the stockbrokers might be disallowed. A decree was made by the V. C. of England on the 7th July 1845, directing the usual accounts. There had been great delay in carrying out the decree, and the matter being still in the master's office, the plaintiff, on the 7th Dec. 1854, applied before Kindersley, V. C., for a special direction under the 54th section of the statute 15 & 16 Vict. c. 86, as to the mode in which the account should be taken and vouched. One of the grounds upon which the motion was supported was, that some of the witnesses who might have proved the items of account were dead, and in particular that the plaintiffs' clerk who had made the entries in the books, had died in 1847. Upon this motion, the V. C. made the order now appealed from. The judgment of the V. C. is reported, 3 Drew. 21. raised by the appeal is, whether the defendant Shuter Bagshawe, Q.C. and Rasch, in support of the order, cited Martin v. Hadlow, 16 Jur. 964; and on the subject of entries being taken as evidence, referred to Doe v. Turford, 3 B. & Ad. 890; Poole v. Dicas, 1 Bing. N.C. 659; Furness v. Cope, 5 Bing. 114. March 22.-Lord Justice TURNER, after stating the object of the motion, said that the accounts to which the order of the V. C. applied were accounts between Messrs. Ewart and Bell, who were stockbrokers, and Mr. Williams, who was one of their customers. The decree by which the accounts were directed was dated in 1845, and was therefore anterior to the statute 15 & 16 Vict. c. 86, under which the order of the MARCH 24, 1855.] COURT OF APPEAL. V.C. had been made. His Lordship treated it as made under the statute, because, whatever length the court might have gone in giving special directions as to evidence, particularly in trust accounts, in which this court had an exclusive jurisdiction, and which in that respect were distinguished from other accounts over which courts of law and of equity had a common authority, still he thought that the present order would, in the absence of the statute, not have been maintainable. It would have been contrary to precedent and to practice to make such an order. Treating it, therefore, as made under the statute, it was objected in the first place, that the statute did not extend to cases of accounts directed before the Act passed. But looking to the evil which the statute was intended to meet, and to the difficulty frequently attending the taking of accounts without some special directions as to evidence, and looking at the language of the section, which was very general and gave the court a power to be exercised either by the order directing the account, or by any subsequent order, and looking at the large discretion reposed in the court, he thought, though in that he wished to be understood as expressing his own opinion only, that where an the section was applicable in cases account, already directed, had not been taken before the passing of the Act. In such cases the court might give special directions as to the mode of taking the account, including of course the direction that the books should be prima facie evidence of the truth of Upon this point, the matters therein contained. therefore, his opinion agreed with that of the V.C. But this practice required to be applied with the utmost possible circumspection. Regard, he thought, should be had to the date of the decree directing the accounts, and to the nature and circumstances of the accounts themselves. The practice was in derogation of the rules of law as to evidence, and those rules ought not to be departed from withoat sufficient reason. If the account was capable of proof by means of independent evidence, those means ought first to be employed. With this view his Lordship had looked into the affidavits, and he was not satisfied that it was beyond the power of Messrs. Ewart and Bell to prove some at least of the items by the ordinary legal evidence. If this were done, it would serve as some corroboration of the entries in the books; and as to other items it might perhaps be right ultimately to resort to the aid of the statute. At present he thought the order went too far, and it must therefore be discharged The without prejudice to any future application. motion would be ordered to stand over to the hearing of the cause on further directions. Lord Justice KNIGHT BRUCE said, that he was Friday, March 16. LAW TIMES REPORTS. COURT OF APPEAL. The counsel for the appellants were proceeding to Lord Justice KNIGHT BRUCE said, that he thought argue upon the question of title, when it questionable whether this point could be adjudicated upon in the proceeding under the Trustee Relief Act. The trustees under a deed containing intelligible trusts had paid the fund into court, and a petition was presented claiming the fund against the trust-fund. deed. This was an adverse title. Unless the respondents to the petition (the appellants here) expressly consented to the court determining the question in the present proceeding, he thought they could not go on, subject to what the counsel for the petitioner might advance upon the question of jurisdiction. Lord Justice TURNER said, that in a similar case which came before him as V.C., he had directed a bill to be filed. Rolt and Browell, upon the question of jurisdiction, submitted, that the present case came within the mischief intended to be remedied by the Trustee Relief Act. The enactment was, that "all trustees, executors, administrators, or other persons having in their hands any moneys belonging to any trust whatsoever" should be at liberty to pay the same into court. The trustees in this case had a fund in their possession which they held upon some trust, and they had paid it into court upon the very ground that they did not know whether they held it under the trusts of the marriage-settlement, or for the persons claiming against the settlement. Lord Justice KNIGHT BRUCE.-This matter must stand over for a bill to be filed by the petitioner, the other party not consenting to have the point determined upon the proceeding under the Trustee Relief Act. Lord Justice TURNER concurred. Saturday, March 17. (Before the Lords JUSTICES.) MARTIN v. FORSTER. ---Settlement. Marriage of ward without consent of court-Contempt ROLLS COURT. Her and But there appeared to be nothing criminal or morally depended upon the circumstances of the case. blamable in the conduct of the husband. was not to be the marriage was nevertheless a contempt; It was possible that it might not be that act had fastened upon the parties the jurisdiction of the court, which removed by the wife's consent to part with the in the power of the court to enforce a settlethe court might decline to part with the fund, even ment against the wishes of the wife and the husband. Upon this point his Lordship gave no opinion. But and with the wife's consent in court, until such a settlement had been made as the court should consider upon the application of both the husband and wife, was dangerous to the authority of the court and to advisable. The doctrine which had been advanced the good of society, and it was therefore desirable Unless upon the execution of a proper settlement, not a shilling of this fund should be touched during the that the court should express its opinion upon it. joint lives of the husband and wife. Lord Justice TURNER said that he had always considered the case of Austin v. Halsey decisive upon When the this question. The marriage without permission of time during the husband's life, and the wife could not the court created a jurisdiction to be exercised at any band, she asked that the money might be paid to a purge that contempt by any act of hers. to consider whether it would or would not accede to wife asked that the money might be paid to the husperson who was in contempt, and it was for the court immediate fund for their advancement in life, the this request. His Lordship suggested that in order to court might approve of an arrangement by which the meet the wishes of the petitioners as to having an husband, upon insuring his life for 1500l. and charging the premium upon his leasehold property so as to secure the replacement of the sum at his death, might be allowed to take 15001. out of the fund. ROLLS COURT. Barrister-at-law. without the consent of the court, even though the husWhere a female infant being a ward of court is married band is not aware that she is a ward, a contempt is Reported by GEORGE WHITELEY, Esq., of the Middle Temple committed, which gives the court jurisdiction not to part, during the husband's life, with a fund belonging to the wife, unless upon a satisfactory settlement being made. March 1 and 2. ATTORNEY-GENERAL v. THE CORPORATION OF GREAT YARMOUTH. This jurisdiction will be exercised, even though the wife, Municipal Corporations Act, 5 & 6 Will. 4, c. 76, ss. being separately examined, consent to the husband receiving the fund. Re FOZARD'S TRUST. Practice-Jurisdiction-Trustee Relief Act. When a trustee of a marriage settlement paid moneyposal was made to settle anything on his part. Under into court under the Trustee Relief Act, and a petition was presented claiming the fund under a title adverse to the settlement: Held, that the court had no jurisdiction in this proceed ing to establish a title adverse to the trust, and that a suit must be regularly instituted for this purpose. This was an appeal from the decision of Wood V. C., reported ante, p. 267, upon a petition presented under the Trustee Relief Act, 10 & 11 Vict. c. 96. A sum of money had been paid into court by the trustees of the marriage-settlement of Mrs. Fozard, deceased, under the trusts of which settlement the fund vested in the sole issue of Mrs. Fozard's first marriage, Sarah Anne Garner deceased, whose husband and administrator Francis Garner was the respondent in the petition. The petitioner, Helen Rosina Fozard, was a daughter of Mrs. Fozard, by her second marriage, and claimed to be entitled to the fund as administratrix of her mother's estate, alleging that the fund was never effectually subjected to the trusts of the settlement. The nature of the con test between the parties may be seen in the report The V. C. made an order for the payment of the fund This was a petition by a husband and wife, for the The petitioner Mrs. payment of a fund out of court. White had been a ward of court, and had become entitled, upon her attaining twenty-one years, as one The marriage of the of the children and residuary legatees of Christopher Charles Forster, the testator in the cause, to a sum of 2519. Consols, and 6951, cash. petitioner had taken place during the infancy of Mrs. White, without any application to the court, but with the consent of the mother and friends of the wife, the husband not being aware that she was a ward of to settle 10007. of the lady's fund for her separate use. court. Upon that occasion, an agreement was made a settlement had been prepared, by which 1000% The wife attained twenty-one years in Oct. 1854, and use of the wife during her life, and after her decease Consols were proposed to be secured for the separate for her children, and in default of children as she should appoint generally, with an ultimate trust for her next of kin. The husband was a clerk in a mercantile house, in receipt of a salary of 2001. a year, and was stated to be possessed of leasehold property of the yearly value of 1007. or thereabouts. No prothese circumstances, Mr. and Mrs. White applied to permit the payment of the fund out of court, the wife the court to sanction the proposed settlement, and to attending in person to be separately examined and give her consent. The petition was heard before desired, and directed a settlement of 2500l. Consols. Kindersley, V. C., who refused to make the order Roupell, Q.C. and W. D. Lewis for the petitioner, From this decision the petitioners appealed. submitted that the court had not jurisdiction to enforce a settlement of the fund against the wishes of the wife. At all events in such a case as the present, there having been no culpable contempt, the court would not disregard the wife's consent, but would give effect to the arrangement proposed. The immediate possession of this fund would enable the petitioners considerably to advance their position in the world. They cited Bennett v. Biddles,, 10 Jur. 534; Leeds v. Barnadiston, 4 Sim. 538; Long v. Long, 2 Sim. and St. 119; Austin v. Halsey. Ib. in notis, 123; 326; Day v. Day, 11 Beav. 35; Abraham v. Newcombe, Stacpole v. Beaumont, 3 Ves. 89; Re Walker, Llo. & Goo. Lord Justice KNIGHT BRUCE said, that as to the 12 Sim. 566; Stubbs v. Sargon, 2 Beav. 496. jurisdiction, it would be wrong to allow it to be supwas a point with which the question whether the posed that the court entertained any doubt. This contempt was criminal, or merely technical, had consent of the court, this jurisdiction arose; but nothing to do. Upon the marriage of a ward without whether or how the contempt should be punished 94 95-Leases by corporations-Renewals-Custom Practice Rent-Rack-rent. A corporation is not authorised by the Municipal Corporations Act to renew a lease, except at a rack-rent, unless there has been a previous custom or practice of granting renewals of an uniform character. This was an information to restrain the Corporation of Great Yarmouth from granting a lease of a than a rack-rent, contrary to the provisions of the small piece of land with a building thereon, at less 94th section of the 5 & 6 Will. 4, c. 76, which proThe 95th section authorises corporations, where they hibits municipal corporations from granting leases are warranted by ancient usage, or by custom, or except at a rack-rent, and without taking any fine. practice, to make any renewal of any lease, at a fine ditions, or where they have ordinarily made renewals certain, or under any special or specific terms or confor years, &c., upon payment of an arbitrary upon the payment of such fine or premium, either fine, to renew leases for such period, at such rent and certain or abitrary, as such corporation might have done if that Act had not passed. The first lease proved to have been granted by the corporation of a rent of 58. without fine, to one Moore; but there was no evidence whether this was or not a renewal of an the piece of land in question was dated the 8th May 1778, for twenty-one years from Michaelmas 1776, at was dated the 17th June 1798, and the land was earlier lease, or whether the rent reserved was or not then the annual value of the land. The next lease from the expiration of the prior lease, at a fine of thereby demised to one Ferrier, for twenty-one years ration of this lease, the son of Ferrier (who was then 78. 6d., and subject to the same rent. lead) continued in possession of the land for six mas then next, at the same fine and rent. He built a stable on the land, and in 1840 sold his interest in years, as tenant, without any lease. In Feb. 1824, a new lease was granted to Ferrier, to commence from Michaelwho had continued in possession ever since. The the premises to Moore, a defendant to this information, Follett, Q.C. and Cairns for the information. Palmer, Q.C. and Hall for the corporation, and corporation now proposed to grant a new lease to him, at a fine of 78. and the annual rent of 6s. 3d. section of the 5 & 6 Will. 4, c. 76. S. Scott, for the defendant Moore, relied on the 95th After the expi The MASTER of the ROLLS.-The question as to the right of the corporation to grant this lease, must deIt is an 95th section of the Municipal Corporations Act. This pend upon the construction which is to be put on the section creates certain exceptions to the general proenabling section, intended to give corporations the hibition contained in the 94th section. power to do what is just, and therefore must be con ROLLS COURT. strued liberally. It is not contended that this case comes within the second division of the cases mentioned in that section, in which a lease may be renewed upon the terms thereby authorised; nor do the defendants rely upon any ancient usage or on a custom, but they contend that in this case there has been a "practice of renewal of the lease upon special terms or conditions within the meaning of this section. Now it is necessary to inquire what is the meaning of the word renewal. The corporation insist that a renewal means only the grant of a new lease to the holder of a former lease in respect of his previous occupation, upon any terms they may think proper. I dissent from this wide interpretation of the word. If it were correct, it would enable a corporation, in effect, to alienate their property whenever a practice could be shown to have existed of letting it at a fine certain or under special conditions. I do not say that a new lease, in order to be a renewal within the meaning of the 95th section of the statute, need be precisely similar in all its terms to the former lease; but it must be so in substance, so as to show that it is a renewal of the old lease. To constitute a practice to renew a lease there must have been a series of leases during a considerable period made according to some uniforin rule with regard to fine and rent, and under covenants substantially the same. I agree that it is not necessary to prove a custom to renew in the strict legal sense of the word, but I think there must have been a series of leases of an uniform character, amounting to what, according to the ordinary interpretation of the term, though not technically, would be termed a custom. I do not think such a custom or practice is made out here, and I must therefore hold that the proposed lease is not warranted by the statute. Dec. 12 and 13. If any part of the consideration-money for an annuity V. C. KINDERSLEY'S COURT. Accordingly, in this case I think that the payment of V. C. KINDERSLEY'S COURT. Dec. 9 and Jan. 17. Statute of Limitations, 3 & 4 Will. 4, c. 27, sections Where the Statute of Limitations has commenced run- This case came on upon a summons adjourned from In April 1846 two persons of the name of Pease, who afterwards became bankrupts, granted to the defendant an annuity of 75l. in consideration of the sum of 750%. It appeared from the evidence that the parties met to settle the matter on Saturday the 10th April, at the office of Mr. Wills, the defendant's solicitor, when the consideration-money was paid in four notes, one note of 5001. and two other notes of 1007. each, and a fourth note of 50%. Of these notes the two notes of 1007. each, and the 501. note got into the possession of a Mr. Shaw, who was the solicitor of a judgment-creditor for 2201. but there was no evidence to show whether the balance of 30%. was paid to the bankrupts. The note for 500%. was paid into the bankers of the defendant, either that evening or early on the Monday morning following, but under what circumstances did not appear. After the meeting at the defendant's solicitor's office, the defendant and the grantors of the annuity went The following were the facts:-Under the limitato the office of the grantors, and thereupon, according tions of the settlement made on the marriage to the evidence of the defendant, he produced certain of Richard Darlington, dated the 13th Jan. 1759, securities consisting of promissory notes and I O U's Job Darlington, in the year 1809, became entitled of the bankrupts, and they paid him the amount due as tenant in tail in possession to a certain piece of upon them, and gave him the 500%. note for that pur-land called Pig How and other hereditaments in pose. The bankrupts gave evidence that the consi- Cheshire, with remainder to his brother Richard Darderation-money was paid to them, that it was in their lington in tail, with remainder to his three sisters, hands, that they might have done with it what they Ann Skerratt, Sarah Darlington and Martha Goodall, pleased, and that they voluntarily paid the debt to as tenants in common in tail, with cross-remainders the defendant, and that the defendant's debt was a between them. In the year 1820 Job Darlington good and bond fide debt. One of the bankrupts stated sold the piece of land called Pig How, to his nephew, that he had received about 40%. out of the considera- the defendant James Skerratt, but never executed any tion-money; the other stated that he had received conveyance of that field to him. The defendant has nothing, for the reason that the amount which he been and still is in possession of that field, without owed to the defendant exceeded the share which he having acknowledged the title of any other person to was entitled to receive. This suit was instituted by it. Job Darlington died in the year 1830, without the assignees of the bankrupts for the purpose of issue, and without having barred the estates tail in impeaching the transaction and of setting aside the remainder, Richard Darlington having predeceased deed of grant of the annuity. him without issue. Ann Skerratt died in the year 1829, leaving Samuel Skerratt her eldest son and heir in tail. On the death of Job Darlington, the estates tail in remainder of the said Samuel Skerratt, Sarah Darlington and Martha Goodall, became vested in possession. Sarah Darlington died in the year 1831, without having been married and without having barred the entail as to her share, whereupon the said Samuel Skerratt and Martha Goodall became entitled in equal moieties to that share under the settlement. Samuel Skerratt died in the year 1837, without issue, and without having barred his entail, leaving the defendant James Skerratt heir in tail of his share, Martha Goodall died in the year 1852, and on her death this suit was instituted by her husband for a partition of the property. An inquiry having been directed as to the lands subject to the settlement, the defendant James Skerratt claimed to be entitled to the field called Pig How, as the purchaser of it for valuable consideration from Job Darlington, and as having been in the undisputed possession of it for more than twenty years. Palmer, Q.C. and Bird for the plaintiffs. Roupell, Q.C. and J. V. Prior for the defendant. The following authorities were cited: Finley v. Gardiner, 6 Bar. & Cres. 165; Phillips v. Champion, 6 Taunt. 3; Gorton v. Champneys, 1 Bing. 287; Cook v. Tower, 1 Taunt. 372; Girdlestone v. Allan, 1 Bar. & Cres. 61: Blackie v. Clark, 15 Beav. 595. The MASTER of the ROLLS.-I am of opinion that, upon the facts of this case as appearing on the evidence, this transaction cannot be supported. Now it is undoubtedly true there are many authorities showing that where the purchase-money of an annuity is paid to the grantor of the annuity, he may do with the money what he pleases, that is, he may pay any debts he thinks fit with it, and if he pays a debt to his own solicitor who is engaged in the transaction, or even if he pays a bona fide debt due from him to the solicitor of the grantor, that is not treated as a return of the purchase-money for the grant of the annuity, and neither the courts of common law nor this court will set aside an annuity upon that account. V. C. KINDERSLEY'S COURT. Glasse, Q. C. and Waller for the defendant James Skerratt. Swanston Q.C. and Renshaw for other parties. The VICE-CHANCELLOR, after stating the facts as above, continued:-The share of Ann Skerratt, on her eldest son Samuel Skerratt dying in 1837 without issue. devolved on the defendant James Skerratt under the limitations of the settlement. With regard to the share of Sarah Darlington, as she died without having been married, in 1831, her one-third went in moieties, one to Samuel Skerratt, and then to James Skerratt, and the other to Martha Goodall. With respect to the one-third of Martha Goodall, as that fell into possession on the death of Job Darlington, she would have been barred by the Statute of Limitations as to it, had she not then been under the disability of coverture. The question now relates to the share of Sarah Darlington which, upon her death in 1831, devolved upon Martha Goodall; and that depends upon the 21st and 22nd sections of the Statute of Limitations, the 3 & 4 Will. 4, c. 27. [His Honour read sect. 21.] By that section, if Sarah Darlington had lived twenty years without making entry or commencing proceedings, she would have been barrel, and any remainderman would also have been barred. But she did not live twenty years; in fact, she only lived one year. [His Honour then read sect. 22] Therefore, the remainderman would be barred, unless an action was brought during the time in which Sarah Darlington might have brought it; that is to say, the time she lived is to count, and the remainderman would have only time enough to make up the twenty years. But then two questions are raised which I have to consider, and I do not find any decided cases upon either of them. One of them is this:-Job Darlington died in 1830; Sarah Darlington died in 1831, and the statute was passed in 1833. Is the statute retrospective? that is to say, are these two clauses retrospective? The Act generally is, and most of the clauses are retrospective; for instance, the second and third clauses are clearly so, and I see no reason why the 21st and 22nd clauses should not also be retrospective: in fact it would be inconsistent not to hold them to be so; for the object was to put remaindermen in tail, whose estates might be barred by tenants in tail, on the same footing as if they claimed under tenants in tail; that is to say, tenants in tail allowing any portion of the twenty years to run without making entry or bringing action does, to the extent of the period, bind the remainderman. I cannot find any decided cases upon this point; but in the work of Lord St. Leonards upon this statute, though I do not find that he addresses himself to this precise point, I find in sect. 5 p. 92, that he considers these two sections together with the 23rd, and says, "This clause it is apprehended has not a retrospective operation;" which leads me to the conclusion that if Lord St. Leonards had thought either of these sections not retrospective, he would have said so. That is the nearest approach to an authority I can find, and I am of opinion that they clearly are retrospective. At first it struck me that this would impose hardship upon persons who would be affected by an ex post facto law; but it must be recollected that whilst the Act of Parliament abolishes real actions, it reserves a short period within which such actions may be brought; therefore there is no greater hardship in holding that these sections are retrospective, than is imposed by this enactment. I think, therefore, that, as Martha Goodall ought to have brought her action within nineteen years after the death of Sarah Darlington, but did not do so, she would be barred under the statute. The next point is, that assuming these sections to be retrospective, yet, as Martha Goodall was under disability when her own right accrued, she was under the same when this other right accrued. It appears to me that she is not saved; she would have been if Sarah Darlington had died before Job Darlington; but time having commenced running against her, it continued to run against her notwithstanding that when her remainder fell into possession she was under disability. Upon that point again I do not find any decided case, but only a clear expression of opinion by Lord St. Leonards in speaking of the 21st and 22nd sections, at p. 90 of his work. opinion is as follows:-"The neglect of the tenant in tail will bar all those-issue in tail and remaindermen-whom the tenant in tail might have barred, and if the whole time has not run against him, the persons' issue and remaindermen, who.n he could have barred, have only the time which remains to run in which to prosecute their right; and thus claiming, as it were, to stand in his place, they cannot claim the benefit of the savings in the Act in regard to their own disabilities." There is therefore that clear and express statement of opinion of Lord St. Leonards; and considering the sections and the objects of the Act, and what was the old law, it appears to me that the disability of Martha Goodall does not prevent the time from running. I am of opinion, therefore, that as to the moiety which upon the death of Sarah Darlington devolved upon Martha Goodall as tenant in tail, she is barred by the Statute of Limitations; and that the defendant James Skerratt is entitled as to this piece of ground, first, to his own third, then to a moiety of a third which upon Sarah Darlington's death devolved upon Samuel Skerratt and then That March 1 and 5. LUKEY v. HIGGS. Specific performance-Vendors' covenants-Purchaser held not bound to accept them. Vendors contracted with a purchaser to sell a portion of fee-simple property, liable to covenants; neither the particulars nor the conditions of sale nor the agreement contained any reference to the covenants; but the abstract of title, when delivered to the purchaser's solicitor, set forth the original conveyance of the property, and the covenants. The purchaser prepared a draft conveyance, omitting the covenants; the vendors' solicitor inserted a proviso in the habendum of the draft which would have had the effect of binding the purThe purchaser to the observance of the covenants. chaser then refused to complete his purchase: Held, on a claim for specific performance filed by the vendors against the purchaser, that he had a right to rescind the contract, or, if he elected to go on with it, he must accept the covenants. This was a claim for the specific performance of an agreement to purchase some lands at Marylebone, and filed by the vendors as devisees in trust for sale against the purchaser. It appeared that, by a deed dated 1832, the lands in question were conveyed to Samuel Jones and his heirs; and that the said Samuel Jones, by that deed, covenanted for himself, his heirs, executors, administrators and assigns, to keep the road opposite the lands, to the centre thereof, in repair; not to erect any buildings, except garden walls, within twenty-five feet of the road; not to do or permit any acts on the premises which should be a nuisance to the tenants of the adjoining property; and to drain the lands in a north-western direction. Samuel Jones died in Dec. 1835, having by his will devised the lands in question to the plaintiffs in fee, upon trust for sale; and accordingly, in May 1853, they entered into a contract with the defendant for a sale to him of a portion of the property for 3907. Neither the particulars, the conditions of sale, nor the agreement, contained any notice of the covenants above mentioned; but the agreement comprised the usual stipulation for delivery of the abstract of title The agreement was executed to the defendant. and the abstract delivered, setting forth in full the deed of 1832, and the covenants contained in it. Some correspondence ensued between the solicitors of the parties, as to the defendant's right to compensation, or indemnity in respect of the covenants; but ultimately the defendant's solicitor prepared and sent to the solicitor of the plaintiffs a draft conveyance, omitting any such covenants as those contained in the deed of 1832. The plaintiffs' solicitor then inserted in the habendum of the draft conveyance a proviso, similar in effect to the covenant entered into by their testator, and which they intended to be binding upon the purchaser. The defendant then refused to complete his purchase in that shape, and this claim was filed to compel him to do so. Selwyn (Rasch with him) for the plaintiffs-The defendant, by preparing the draft conveyance and not insisting upon an indemnity or compensation in respect of these covenants, had waived any right to object to the completion of his contract; he had in fact accepted the title and could not now abandon his purchase: (Moxhay v. Inderwick, 1 De G. & Sm. 708; Keppel v. Bailey, 2 Myl. & K. 517; Tulk v. Moxhay, 2 Pb. 774.) Chapman Barber for the defendant.-The question was, whether the agreement now sought to be specifically enforced against the defendant could be enforced by also directing him to enter into these covenants? He submitted that it could not; and that the claim ought to be dismissed with costs. This was an attempt to compel the defendant to perform that which he had never agreed to do, and was a very different case from that of the sale of leasehold property, where notice of the lease would be notice of the covenants contained in it. Here neither the particulars of sale, the conditions, nor the agreement contained any reference to the covenants, and nothing which had since occurred between the vendors' solicitor and the defendant's bound the defendant to accept a conveyance with these covenants, or to complete the purchase on such a footing. The VICE-CHANCELLOR.-My present view is that the purchaser has a right to say, "I will not complete the contract." But, if he does complete it, he must execute a conveyance with these covenants. Selwyn in reply. The VICE-CHANCELLOR.-If the fact of the liabi- LAW TIMES REPORTS. V. C. STUART'S COURT. V. C. STUART'S COURT. tors of the Crystal Palace Company will find and Under these circum- Saturday, March 10. in the subject-matter of the suit, after which the (Signed) The following acceptance of this proposal was written at the foot of the same: "I agree to the above proposal, subject to the confirmation by the managing directors, 24th April 1854. JOHN C. DEANE." This agreement was, on the following day, confirmed by the board of the Crystal Palace Company.. The Crystal Palace Company were unable to perform the agreement by providing space, conveniences and 10th June; but shortly afterwards the plaintiffs were servants at the opening of the palace on the put in possession of the block mentioned in the agreeWhen this cause came on upon further directions,ment, and were allowed to send their own servants to Held, that his disclaimer was a bar to any such claim. answer disclaimed all interest in the subject-matter of in the building near the general refreshment-counters. the following question arose :-A defendant had by his conduct the sale of their chocolate at various counters answer had been put in, the master had made his the agreement, it was arranged that the rent should the suit; but he was still a party to it. Since the By way of compensation for the nonperformance of plaintiffs further claimed 1207. as wages of servants report, ascertaining the right of the parties, and find- be remitted up to the 10th Aug., and a new allocation estate. The defendant now therefore claimed that plaintiffs, was also by way of compensation. The up to August, which was subsequenly allowed by the ing the defendant to be entitled to a portion of the of space was then made, which, according to the Bailey, Q.C. appeared for the defendant. the payment of rent to the 18th Sept. Further portion, notwithstanding his disclaimer. Glasse, Q. C. Rogers, Rastrick, Forster, Bird, and Crystal Palace Company by their further postponing The VICE-CHANCELLOR said, had the defendant claims for compensation were also made in respect of Pigott, for other parties. counsel at the bar, and not by answer; and had the the exception of 801. no rent was paid. in this case disclaimed all interest in the suit, by his alleged breaches of the agreement of April, and with plaintiff then refused to let him be dismissed the suit, he might have said, "though I make no claim now, still, as you detain me here, if a cause of claim should arise, I may insist upon it:" and he would have been entitled so to do. But here the defendant has disclaimed by his answer, which is a matter of record, and I think that bars him for ever from making any such claim. 1 am of opinion also that the master's of the estate, does not revive the right which he having subsequently found him entitled to a portion might have had before the answer was put in. The point, I believe, has never arisen before. V. C. STUART'S COURT. Thursday, Feb. 8. THE PARIS CHOCOLATE COMPANY V. THE CRYSTAL On the 18th Jan. last, the Crystal Palace Company gave the plaintiffs a week's notice to quit, at the exwere not removed from the block mentioned in the piration of which time they proceeded to cut off the gas and water which had been supplied to the counters where the plaintiffs sold hot chocolate. The plaintiffs The bill agreement, which had been used only as a place for exhibition, and for the sale of the plaintiffs' dry prayed for specific performance of the agreement, and removing the plaintiffs or impeding them in the engoods, and not as a refreshment counter. joyment of the several counters where their goods had been sold. for an injunction to restrain the defendants from Malins and W. D. Lewis appeared in support of the motion, and cited Lumley v. Wagner, 5 De G. & Sm. 485; S. C. 1 De G. M. & G. 604. Bacon and Hemming for the defendants were not called upon. The cir The VICE-CHANCELLOR.-This is a bill for the now before the court is one that asks for an injuncspecific performance of an agreement, and the motion fendants, which are alleged to be in violation of that lations-Variation of terms of contract-Injunction. Specific performance-Agreement to let-Vague stipu- tion to restrain certain acts upon the part of the deThe court only grants relief by decreeing specific per- agreement. The case being one of specific performance, and is only asked to grant it, as auxiliary to the right formance where compensation by way of damages and in which the court can only grant the injunction, would be inadequate, where the stipulations of a contract are such as can be specifically performed, or, at of specific performance, the reference which has been least, where its main subject is such as to call for the made to the case of Lumley v. Wagner seems to me in no degree applicable to the present case. exercise of the jurisdiction of the court, and where to be a reference to a case which involved principles there is reasonable mutuality in the stipulations. was exercised on extraordinary principles, with which an agreement to let a certain spot at a certain rent, interference of the court was extraordinary, and it Therefore, where a bill prayed specific performance of cumstances of that case were extraordinary, the but the main relief sought was not in respect of the order asked by the plaintiffs must be their right to a main subject of the agreement, but in respect of certain I have not now at all to deal. The foundation of the vague stipulations contained in it, and there had been a departure from the original terms of the agreement, specific performance of the agreement. The principles of agreements are clearly settled. It is a discreand nonperformance by the defendants had been dealt on which the court enforces the specific performance with by the plaintiffs as matter of compensation: ance, and motion for an injunction by plaintiffs to Held, that the court could not decree specific perform-tionary and extraordinary jurisdiction, assumed by restrain certain acts alleged to be in violation of the agreement, refused. This was a motion for an injunction to restrain the sion of certain stalls, counters, spaces, kitchens and defendants from turning the plaintiffs out of possesother places in the Crystal Palace, or from their preventing the same by their agents. The bill was filed for the specific performance of an agreement dated terms:-"I propose on behalf of the Paris Chocolate the 24th April 1854, which was in the following Company, to take space in the Crystal Palace, situated in the Substances used for Food' section of the building, occupying a space of 8 feet by 8 feet, block No. 6, in the South-East Gallery, for the exhibition Chocolate Company. And I also propose, being duly of the several articles manufactured by the said Paris authorised so to do on behalf of the said company, to supply and sell to the public in each and all of the refreshment-rooms of the said Palace the company's several preparations as in schedule hereunto the court in cases where compensation in the shape of |