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rebut the presumption of notice to the grantee through about the mortgage, and it would be most unreasonable him; the case was, therefore, distinguishable from to hold that, because the solicitor employed by both Kennedy v. Green, 3 My. & K. 699;

parties in an annuity transaction was himself the Espin v. Pemberton, 3 De G. & J. 547.

holder of an incumbrance, which he suppressed, the

grantee had such notice of that incumbrance as was J. Pearson, for the respondent.

contemplated by the Act. Thomas Cartwright was the grantor,

He thought that the appeal was against reason and Daricin v. Lincoln (loc. cit.).

justice, and that it must be dismissed with costs. The Legislature, intending by the Act to protect vecessitous persons, excepted annuities charged on TURNER, L.J., said, that without expressing any land of the grantor of equal or greater value, con- dissent from the opinions of Knight Bruce, L.J., and ceiving the grantor, in such a case, to be able to the Master of the Rolls, which, as they agreed, were protect himself. See the observations of Lawrence, J., decisive of the case, he should refrain from giving any in

opinion upon this appeal. But, whatever might be the Ex parte Michell, 2 East, 140;

legal rights, the honesty of the case was with the and of Baily, J., in

respondent, and he saw no reason why the costs should Daruin v. Lincoln (loc. cit.).

not follow the result. and, although the land might be incumbered, yet, unless the grantee knew of the incumbrance, he could not take advantage of it in dealing with the grantor; Master of the Rolls. the notice, therefore, required by the Act must be


19, 25 Nov. 1863. actual knowledge. A3 to constructive notice, he cited,

Injunction-Lessor and Lessee - Covenant Hewitt v. Loosemore, 9 Hare, 449 ;

Private Dwelling-house "Conversion into Jones v. Smith, 1 Ph. 244 :

a Shop-Acquiescence in Breach of Coveand contended that, having regard to the covenant

nant. against incumbrances, it must be presumed that the solicitor concealed from the grantee the existence of

A lease contained a covenant to use a house as a private the prior mortgage.

dwelling-house only, and not to do any act or thing which The annuity of 1991. 16s. being reversionary and might be, or grow to be, an annoyance, damage, or discontingent at the time of the grant, could not be made turbance; but that if any of the adjoining premises, then the standard of value under section 10.

belonging to the lessor, should be converted into a shop,

the lessee was to be at liberty to convert the premises Cole, Q.C., in reply.

demised to him to a similar use: The legal meaning of the word “notice” was settled

Held (1), that to put up a notice, “A. Andrews, Coal long before the Annuity Act, in

Office,” was a breach of the covenant ; (2), that to build a Le Veve v. Le Neve, Amb. 436.

surgery and sell drugs there, was not a conversion As to constructive notice, he further cited,

into a shop :" (3), and that the assignee of the lessor, by Fuller v. Bennett, 2 Hare, 402.

allowing a photographer to carry on his business in one

of the adjoining houses for two years (the business KNIGHT Bruce, L.J., said, that the first question having been put an end to before the bill was filed), was, whether Thomas Cartwright was the grantor of

was not deprived of his remedy under the covenant, no the annuity within the meaning of the 10th section of the Annuity Act. It was said that he was not the structural alteration of the house having been made. grantor, because he did not make himself personally This was a motion for an injunction. liable ; but he was a party to the deed by which the John Sperling was the lessee of four adjoining annuity was granted, and he charged his land as a part houses, Nos. 37, 38, 39, and 40, Westbourne Grove ; of the same transaction ; and it would be not only an and by an indenture dated the 25th of January, 1859, illiberal and narrow, but an improper, construction of he sublet to W. Lewis his executors administrators the Act, to hold that such a case was not within the and assigns the house No. 39 ; and the said W. Lewis section, although in a sense Thomas Cartwright might thereby covenanted that he, his executors adminisbe said not to have granted the annuity.

trators and assigns should keep and use the said Then, as to the value, he agreed that the annuity of messuage as and for a private dwelling-house only, and 1991. 163. was alone to be considered ; but he was should not do, nor suffer to be done upon the said satisfied that, if the prior mortgage for 10001. were premises or any part thereof, any act or thing which out of the way, the land was shown to have been of might be, or grow to be, an annoyance damage or sufficient value to satisfy the words of the section. disturbance to the said J. Sperling, the superior

The question remained, -was this mortgage one of landlord or landlords for the time being of the said which the grantee had “notice" within the meaning premises, or the tenants for the time being of the said of the Act. Now, in fact, the grantee knew nothing J. Sperling, or the superior landlord or landlords of the


and the words “Mr.

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adjoining or adjacent premises. But if any or either Andrews, Coal Merchant,” the case might have been of the adjoining or adjacent premises then belonging different. to the said J. Sperling should be converted into a

J. Hinde Palmer, Q.C., and Boyle, for the defenshop, the said W. Lewis should be at liberty to con

dant Rogers, said that, in all the cases cited, the vert the premises thereby demised to a similar use.

words “no business whatsoever” were introduced Sperling and Lewis afterwards assigned their respective interests to the plaintiff and the defendant into the covenant; there were no such words in the

present case. Out of the ninety-four houses in WestRogers. The bill prayed for an injunction to restrain the bourne Grove, two only were now occupied strictly

as private dwelling-houses; the remainder were either defendants, Rogers and his sub-lessee Andrews, from using the house and premises, No. 39, Westbourne shops or had the professions or trades of their occu

piers prominently written up. Again, the house Grove, for a coal office, and from carrying on, or allowing to be carried on, the business of a coal merchant No. 40, had been used for upwards of two years as a thereon ; and from exhibiting a placard or notice, in shop with the plaintiff's acquiescence.

They also argued that the covenant did not bind the the words

assignee, and submitted that the justice of the case “Alpheus Andrews,

would be satisfied by leaving the parties to their “ Coal Office,

remedies at Law. “And at the Corn Exchange ;” and from using, or allowing the said house and Locock Webb, for the defendant Andrews, took no premises to be used, other than as a “private dwell- part in the argument. ing-house ; and from in any manner violating the covenants of the indenture of the 25th of January, that this was a covenant which ran with the land, and

THE MASTER OF THE ROlls said, he had no doubt At and after the time when the defendant Andrews since Spencer's Case, it had never been doubted that came into possession of No. 39, the adjoining houses such a covenant bound the assignee, though not named. were occupied as follows: No. 37 by a surgeon, who As to the point whether a breach of the covenant had had built a small shop or surgery where he sold drugs, been committed by the defendants, his Honour had

himself inspected the houses. The defendant Andrews, Surgeon,” were put up over or on the doors of the house and surgery. No. 38 by had put up, on the blind of the front part of a bay a dentist ; “Mr. - Dentist,” was written over the window, the notice complained of in the bill, and also front door of the house, and on plates attached to the the words “ Coal Office” on each of the side blinds. front rails and front window. No. 40 was occupied the house ; but it was said, that no coals were supplied

It was admitted, that orders for coals were taken at by a photographer, who took portraits on the premises, and exposed photographic pictures for sale ;

from, nor any samples shown on the premises; but Photographer,” was painted conspicuously on the front coals, unlike other minerals, were not sold by sample, door-post. The photographer occupied the house from at least, not to retail customers; and he was of opinion, June, 1861, to September, 1863, when he left under that to open an office where all the inhabitants of the notice from the plaintiff's solicitor, for breach of the neighbourhood might come, if they chose, to order

coals, was not using the house as a "private dwel. terms of his lease by making a show of business on the premises occupied by him.


Again, the covenant was “not to do, or suffer to be Sclwyn, Q.C., and Swanston, for the plaintiff, argued done, upon the premises, any act or thing which might that the defendants had committed a breach of the be or grow to be an annoyance, damage, or disturbcovenant, and that it was no defence to say that the ance.” If, therefore, any annoyance to the plaintiff, or tenants of the adjoining houses had done the same, his tenants, were shown to have resulted from the use Kemp v. Sober, 1 Sim. (N. s.) 517,

of the house as a “coal office," the defendant must provided that they had not converted their houses into be restrained om so using the house; and his Honour shops within the meaning of the covenant. In was clearly of opinion, that such a use of the house Doe d. Bish v. Keeling, 1 Maule & S. 95,

might “grow to be an annoyance, damage, or disturbthe business of a schoolmaster was held to be an in- ance," within the meaning of the covenant. fringement of a covenant not to carry on “any trade On the other hand, the defendants had not succeeded or business" on the demised premises ; and, again, in in showing that the plaintiff had forfeited his right Johnstone v. Hall, 2 K. & J. 414,

to enforce the covenant by allowing his other three where the covenant was to keep the house as a "private houses to be used as shops. It was true that, with dwelling-house." To put up “Coal Office,” was an the exception of the plaintiff's houses, the whole street invitation to customers, and destroyed all privacy; was a street of shops, and the object of the plaintiff's but a private dwelling house might have on the door application might be obtain possession of the house the name and profession or trade of the occupier : had in order to convert it into a shop, and thus increase the words in the present case been only “Alpheus its value, but the Court could not regard that.

The case stood thus : there were four houses, retained directors, and Jones, after reciting that the said 50001. as private dwelling-houses, and which would require was in fact advanced by Jones, it was covenanted that considerable alterations to make them fit for use as the said 50001. should be applied in paying the 30001. shops. The surgeon and dentist had not, by putting advanced by Jones as aforesaid, and the 1,8001, up their notices, converted their houses into “shops ;” secured by the aforesaid promissory notes, and certain but a person might well be deterred by the notice other items ; and by another deed of even date, of the defendant Andrews, from taking one of the Norton declared himself a trustee for Jones of the said houses as a "private dwelling-house."

mortgage security. Another question was, whether the plaintiff had In February, 1861, the association paid to Norton as forfeited his right under the covenant by acquiescence trustee for Jones, the sum of 1,6731. 58. 3d. in the photographer's use of his house as a shop. His In March, 1861, the society was wound up under Honour would not have entertained the plaintiff's the order of the Court. motion, if the photographer were still carrying on his In March, 1862, Norton filed a bill against the business there, and he thought that the plaintiff had been association and the society for the moneys due to him, tardy in putting an end to it. But the plaintiff had and the association by consent paid into Court to the now put an end to it; and although the houses were in credit of that cause the sum of 2,0691. 128. 11d. in one sense “converted into shops,” when they were used full satisfaction of their liabilities under the agreement as shops, they could not be so converted as to bar the of March, 1859. plaintiff's remedy under the covenant, without a The bill, in the present suit, charged (inter alia) structural alteration of their present form as private that the deeds of July 5, 1860, never received the dwelling-houses. He had no option but to restrain assent of a general meeting, and prayed, 1st, that it the defendant from keeping up the blinds complained might be declared that the deeds of the 5th of July, of in the bill.

1860, were void, or that their effect was to make Norton a trustee for the society ; 2nd, that the said

2,0691. 12. 11d. might be transferred to the credit of THE BRITISH PROVIDENT the official manager; and, 3rd, that the executors of Kindersley, V.-C.

LIFE AND FIRE ASSUR- Jones might be ordered to refund the 1,6731. 58. 3d. 24, 25 Nov. 1863. ANCE SOCIETY v. NORTON. The only evidence produced by the defendants to

show that the assent of a general meeting had been Winding-up—7 & 8 Vict. c. 110, s. 29—Pre- given to the deeds of the 5th of July, 1860, consisted sumption of AssentRefunding.

of the minute of a general meeting, held on the 17th A minute of a general meeting, showing that a finan- financial statement, with reference to proceedings for

of June, 1960, from which it appeared that cial statement was made of the affairs of the company, winding up the society, was submitted to the meeting ; is not sufficient evidence for the Court to presume the but, save as aforesaid, the minute contained no allusion, coent of the recting to a previous mortgage.

direct or indirect, to the deeds of the 5th of July, Where part of a company's mortgage debt has been

1859. murid, the Court will not order it to be refunded, although on the winding up of the company the mortgage-deed be

Osborne, Q.C., and Karslake, for the plaintiffs. declared roid.

Baily, Q.C., and G. Lake Russell, for the executors This was a suit by the official manager of the British of Jones. Provident Society to set aside some deeds made between the directors and the defendant Norton.

Glasse, Q.C., and Lawson, for Norton. By an agreement made in March, 1859, between the

The following Act and cases were cited :society and the British Nation Life Assurance Associa- 7 & 8 Vict. c. 110, s. 29; tion the life-assurance business and effects of the

Murray's Case, 5 De G. M. & G. 746 ; society were transferred to that association for a sum Baker's Case, 1 Drew. & Sm. 55 ; of money to be determined and paid as therein

Grady's Case, 1 N. R. 407; mentioned.

Lane's Case, 3 N. R. 50 ; Previously to July, 1860, John Jones, one of the

Troupe's Case, 29 Beav. 353 ; directors of the society, had for the benefit of the Power's Case, 30 Beav. 225. society advanced 30001., and joined with three other directors in promissory notes for 1,8001.

KINDERSLEY, V.-C., said, that the deeds of the 5th By an indenture, made on the 5th of July, 1860, of July, 1860, constituting, as they did, a transaction between the society, the directors, and Norton, the between a director and the society, were void by 7 & 8 moneys payable to the society under the agreement of Vict. c. 110, s. 29, unless they had been approved by March, 1859, were mortgaged to Norton for 50001., a majority of the votes of the shareholders at the and interest at 6 per cent. per annum ; and by an general meeting held next after the transaction. The indenture of even date made between the society, the question therefore was, whether upon the evidence the Court could presume that the provisions of the Act no such child, then upon trust for such persons as had been complied with ? In Grady's Case and Lane's P. H. Daniel should by will appoint, and in default Case the Lord Chancellor had admitted presumptive of such appointment, upon trust for his next of kin evidence, and held, that, upon the special facts of those under the Statute of Distribution. cases, the transactions then in question must be deemed By the same indenture P. H. Daniel covenanted to have been brought before and ratified by a general with the trustees that he would settle upon the trusts meeting. But his Honour could not presume that in thereinbefore declared any real or personal estate to a statement of the assets and liabilities of the company which he might become entitled as next of kin of any specific mention had been made of advances made by person or persons in each instance, when the same Jones, and securities received by him, and he was there should exceed 2001. fore of opinion, in perfect consistency with the principle

In 1847 P. H. Daniel became entitled to a sum of of the cases before his Lordship, that, under the exist. money exceeding 2001., as one of the next of kin of ing circumstances, the deeds of the 5th of July, 1860, his uncle Arthur Dewell, an intestate, and Thomas were void. That being so, the official manager was Dewell, the administrator of Arthur Dewell, with full entitled to have transferred into his name the sum of knowledge of the provisions of the settlement of the 2,0691. 128. 11d., after deducting costs ; but as it was 5th of January, 1831, paid over such sum, amounting standing to the credit of another cause, application to 6961. 19s. 8d., to P. H. Daniel, without requiring must be made in that cause. The sum of 1,6731. 55. 3d. it to be settled. P. H. Daniel and his wife thereupon paid by the association to Norton, was, in fact, a partial signed a memorandum, which was as follows :repayment to Jones of moneys advanced by him ;


"Memorandum this 28th day of June, 1848. his Honour, following the principle laid down in

“Whereas Thomas Dewell, Esquire, as administrator Baker's Case, would not order his executors to refund.

of Arthur Dewell, deceased, at my request, and with Minute.—Ordered accordingly.

my full sanction and approbation, has paid over to the undersigned Philip Howe Daniel, my portion as one of the next of kin of the said Arthur Dewell, deceased,

the one-tenth part or share of certain moneys in which Stuart, V.-C. CRESSWELL v. DEWELL.

the said Arthur Dewell was interested, notwithstanding 23 Nov. 1863.

I the undersigned Harriette Daniel may have any claim Practice-Married Woman-Reversionary Inte- to have the same or any portion thereof settled to or

restReal AssetsBill on behalf of single for my benefit under the terms and provisions of the Creditor-- Statute of Limitations.

settlement made and executed on my marriage with my

said husband ; and I hereby declare that the payment Where a fund to which a married woman was en- so made was with my full consent, and that I will titled for her life, in remainder expectant on her wholly oppose and discountenance any proceeding husband's death, was paid over to her husband, with whatever being taken by the trustees of my said settleher written consent, by a person who had notice of her ment, or any party or parties, or any claim being made interest in the fund:

on my behalf for the purpose of the same being settled Held, that the wife and her trustee were entitled on or otherwise; and that I will be no party to such proa bill filed after the husband's death (which occurred ceedings, either by myself or by any next friend, an nearly nineteen years afterwards) to have an annuity, my behalf; and that this assurance, with the full payable to the wife during her life and equivalent to the assent of my said husband, is to be taken by the said interest of the money so improperly paid, raised out of Thomas Dewell, free from any application or annoythe real asscts of the person by whom such payment had ance whatever. been made, without praying for a decrec on behalf of

« PHILIP HOWE DANIEL. all the other creditors.



This suit was instituted to make the assets which Thomas Dewell died in 1853, having by his will had descended to the defendant Dewell from his father left all his real and personal estate upon trusts for Thomas Dewell, liable for a breach of trust committed the absolute benefit of his son, the defendant Charles by Thomas Dewell in 1848.

Goddard Dewell. A suit was instituted for the By an indenture of settlement dated the 5th of administration of the estate of Thomas Dewell, in January, 1831, and executed previous to the marriage which a decree was made on the 10th of June, 1854. of the plaintiffs Harriette Daniel and Philip H. The usual advertisements for creditors were published; Daniel, certain moneys were assigned to trustees upon but no claim was made on the estate in respect of the trust to invest upon government or real securities, sum paid over to Philip Howe Daniel. and to hold the fund upon trust for P. H. Daniel All the debts which were proved against the estate during his life, with remainder to Harriette Daniel were paid out of the personal estate, and out of part of during her life, with remainder to the children of the the real estate which was sold for the purpose, the marriage, as therein-mentioned : and if there should be personal estate having proved insufficient; and, under a further order of the Court, the real estate remaining such debt ought to have been brought within six unsold was conveyed to the defendant C. G. Dewell on years, the 25th of July, 1849.

Thorne v. Kerr, 2]Kay & J. 54; In January, 1862, P. H. Daniel died intestate and Fordham v. Wallis, 10 Hare, 217. insolvent without ever having had any issue.

In Greig v. Somerville and Gillespie v. Alexander, the The bill was filed by the surviving trustee of the plaintiffs were following the original estate in respect settlement of 1831, and Harriette Daniel, against of which the breach of trust was committed. Charles Goddard Dewell, and the surviving executor of 3rd. The bill is in effect a bill to administer real Thomas Dewell. It alleged that the trustee had only estate only, and being such, it ought to have been recently become aware of the payment to P. H. Daniel, filed on behalf of all the other creditors, whereas it is and prayed a declaration that the real and personal filled on behalf one creditor only ; it is demurrable, estates of Thomas Dewell were liable to make good the and ought to be dismissed, share of the personal estate of Arthur Dewell to which Ponsford v. Hartley, 2 J. & H. 736. P. H. Daniel became entitled as one of the next of kin of Arthur Dewell, with interest from the death of

Hemming, with him, cited on the first point,

Ardesoi v. Bennet, 2 Dick. 463 ; Arthur Dewell; and for an account; and that the defendant, to the extent of the estate of Thomas Dewell,

Barrow v. Barrow, 4 Kay & J. 409.

On the second point, he arguedmight be ordered to pay to the plaintiff Cresswell, as the surviving trustee of the settlement, what should

If the plaintiffs had come here to administer the be found due from the estate of Thomas Dewell upon

estate of Arthur Dewell, they would have had twenty

years within which to institute their suit. If they taking such account. The plaintiffs, at the hearing, limited their claim to had come to follow the money wrongfully paid to

P. H. Daniel, and to recover it from his estate, they the life interest of the widow.

would have had twenty years likewise. For the purMalins, R.C., for the plaintiff.

poses of the present suit they had only six years : and The payment to the husband and wife was payment as to those six years, the trustee is clearly barred, and to the husband only.

the coverture of the widow cannot save the bill, because The concurrence of the wife in respect of her rever- she is not the party to sue. Cestui que trust is not sionary interest was a nullity,

allowed to sue in person for the recovery of the trust Purdew v. Jackson, 1 Russ. 48;

estate, except in particular cases when the trustees are Cocker v. Quayle, 1 Russ. & My. 535.

made defendants, and the bill charges collusion on The decree of the 10th of June, 1854, did not their part. deprive the wife of her right to institute this suit-a On the third point he cited, decree in a creditor's or administration suit only Thorne v. Kerr, 2 Kay & J. 65; discharges the executor, and not the assets—a creditor Seton on Decrees, 117 (3rd ed.) ; who has not come in under the decree may follow the and cases there mentioned. assets in another suit, Greig v. Somerville, 1 Russ. & My. 338;

STUART, V.-C., without calling for a reply, said Gillespie v. Alexander, 3 Russ. 130.

that Thomas Dewell had been clearly guilty of a The wife could not be charged with laches or acqui- breach of trust in paying to P. H. Daniel the money escence, nor did the Statute of Limitations run against which he ought to have paid to the trustees of the her while she was under the disability of coverture. settlement. The memorandum was of no avail for the He also referred to the

defence, as it was not binding on the wife during her 23 & 24 Vict. c. 38, s. 13.

coverture : and though she might have confirmed it Freeman, with him, cited,

when that disability ceased, she had not done so. Whittle v. Henning, 2 Phil. 731 ;

It had been said that, notwithstanding the wife's Hopkins v. Ryall, 2 Russ. & My. 86.

coverture, she was barred by the Statute of Limitations.

But when did her right to sue accrue? In 1862, Greene, Q.C., for the defendants

when her husband died. Then it was said that the Ist. The widow has had the benefit of the money trustee was barred, but that was equally out of the already; her course of conduct in signing the memo- question, because he had been no party to the breach randum, in concealing the entire transaction till her of trust, and it appeared by the evidence that he knew husband's death, and then instituting this suit, nothing of the payment in question till shortly before amonnts to such fraud as will disentitle her to relief, the bill was filed. He was sueing along with his cestui Savage v. Poster, 9 Mad. 35;

que trust, the party injured ; and to such a case no 2nd. The liability incurred by Thomas Dewell in Statute of Limitations was applicable. Greig v. respect of the breach of trust committed by him was Somerville and Gillespie v. Alexander made the right only a simple contract debt-his estate was not of the wife to come upon the remaining part of the affected with any trust in respect of such liability, assets perfectly clear. He would make a declaration and any proceedings against his estate in respect of that she was entitled for her life to an annuity to be

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