His Lordship continued, that it would be collected from what he had already said, that, in his opinion, the judgment ought to have been entered for the company upon the fifth plea. He thought it was competent to a company, under 17 & 18 Vict. c. 31, to impose conditions upon the carriage of goods without having a signed contract, provided the conditions did not extend to exonerate them from liability for wilful neglect or misfeasance, and were such as ought to be adjudged to be just and reasonable. For the reasons above stated, he considered that the condition exonerating the company from responsibility for the loss of or injury to certain articles (including marbles), unless declared and insured according to their value, did not extend to losses or injuries arising from neglect or default of the company or its servants-and, therefore, that the condition ought to have been adjudged to be just and reasonable. In his opinion, the judgment of the Exchequer Chamber ought to be affirmed. Minute. Judgment of the Court of Exchequer Chamber reversed, and judgment of the Court of Queen's Bench affirmed. Lord Chancellor. REEVE v. WHITMORE. 5 Nov. 1863. } REEVE 9. WHITMORE Bill of Sale-Licence to Seize after-acquired Chattels. A licence to seize after-acquired chattels without an assignment or contract for the assignment of the same, does not operate as an equitable assignment of such chattels, or give the assignee any interest therein until actual seizure. This was an appeal from a decision of Kindersley, V.-C., reported 1 N. R. 352, where the facts are sufficiently stated. the moment it came upon the premises, and the licence enabled them to give effect to that interest by taking possession without being trespassers at law. They referred to, Holroyd v. Marshall, in Dom. Proc. 11 W. R. 171, as to the equitable title being complete without actual seizure; and Wood v. Leadbitter, 13 M. & W. 838, 844, as to the distinction between a mere licence and a licence coupled with a grant. Glasse, Q. C., and W. Pearson, for Reeve; and Baily, Q.C., and Fry, for Hendrick, were not heard. THE LORD CHANCELLOR said the question was, whether the deed of the 26th of May, 1859, operated as a present contract with respect to the future bricks. If there appeared on the face of the deed expressly, or were to be collected therefrom by necessary implication, a contract or agreement that the mortgagee should have a security on the future bricks, then the mortgagee would have a present interest in all that might be made or brought upon the premises after the date and during the continuance of the security. But neither was there any express agreement to that effect, nor could such a one be implied from the deed; on the contrary, the provisions of the deed were inconsistent with the existence of a contract comprising the after made bricks; the recital of Hendrick's mortgage, which contained an assignment of the future bricks, was in direct contrast with the terms of the mortgage to Green, and the words of the licence to seize the after-made bricks "in the like manner as if the same formed part of the chattels thereby assigned, or intended so to be," were conclusive that such after-made for the absence from Green's mortgage of any assignbricks were not intended to be assigned. The reason ment of the future bricks was probably to be found in the nature of the property assigned; the intention was, J. H. Palmer, Q. C., and Stevens, for the appellants, that the bricks should be made and sold as quickly as Messrs. Martin & Co. The licence to seize the after-acquired chattels, contained in the deed of the 26th of May, 1859, must be read in connection with the context. It was manifest, from the nature of the transaction, the recitals, and the deed taken as a whole, that the intention of the parties was, to charge the after-acquired chattels equally with those on the premises at the date of the security. Hendrick's security expressly assigned the after-acquired chattels. How could that be postponed to the security of the 26th of May, 1859, if the latter did not include the after-acquired chattels? From the instrument itself an agreement was to be collected to charge the after-acquired chattels; and the deed amounted to a present contract for the assignment of the future bricks. The licence to seize did not destroy the equity which the appellants had by virtue of that contract; but the object of the licence was to give a legal remedy to enforce their equitable right. The contract gave an immediate equitable interest in the future property possible, the stock of to-morrow being different from the stock of to-day; and for this purpose it was proper that no equitable interest should be created in the future fluctuating or transitory stock, so as to interfere with its sale. But, however this might be, there was an essential distinction between a present contract that the mortgagee should have an interest in the future chattels which attached thereon whenever they were brought upon the premises, and a contract for a power of entry, for the purpose of seizing what, at the time of seizure, might happen to be found upon the premises. If there had been an assignment of the future property, or any present contract that the mortgagee should have an interest or charge thereon, then the case would have been within the principle of Holroyd v. Marshall; but there was no such assignment, and no such contract. The operation of the deed of the 26th of May, 1859, was to give the mortgagee a security on the property then existing on the premises in question, accompanied by a power to enter and take possession of any future property which, at the time of entry, might there be found. Such a power was not an interest in the future property, and no interest was created under the power until actual entry and seizure. His Lordship was, therefore, of opinion that the ViceChancellor had rightly declared that the deed of the 26th of May, 1859, did not operate as an assignment in equity of any chattels which were not on the brickfield at the date of its execution, and, consequently, dismissed the appeal with costs. } FLOYER V. BANKES. Lord Chancellor. 11, 15 JULY, 5, 7 Nov. 1863. Succession Duty-16 & 17 Vict. c. 51, s. 17Jointure Rent-Charge, without Deduction in respect of Taxes. Freehold estates were settled to such uses as H B and W B should jointly appoint, and in default, to the use of H B for life, remainder to W B for life, remainder to his first and other sons successively in tail male, remainder to G B for life, remainder to his first and other sons successively in tail male, with remainders In consideration of marriage between G B and G N, the estates were by H B and W B appointed to the use that G N should, in case she should survive G B, receive during her life for her jointure, and in lieu of over. dower, thirds and freebench, a yearly rent-charge of 8001. without any deduction in respect of any taxes then taxed, or charged, or thereafter to be taxed or charged on the hereditaments, or on the rent-charge, or on G N or her assigns in respect thereof; and to the further use, that if H B and W B should both die in the lifetime of G N, and there should happen during the joint lives of G B and G N, a default or failure of issue male of W B, and if G N should survive G B, then G N should receive a further charge of 7001. per annum, without deduction as aforesaid; the hereditaments were appointed to the use of trustees for a term of years upon trust for securing payment of the said several rent-charges with out any deduction as aforesaid, and subject thereto, were appointed to the above-mentioned uses : Held (reversing the decision of the Master of the Rolls), that succession duty was payable in respect of the jointure rent-charges:— Held, ALSO, that the jointress was entitled to the rent charges without deduction in respect of succession duty, and that, as between her and the owners of the estates, the amount of the duty payable on her succession to the rent-charges, was to be borne by, and was a charge on, the estates. This was an appeal from the decision of the Master of the Rolls, reported, 2 N. R. 217. The facts of the case, and the nature of the arguments of counsel, sufficiently appear from the report (id. 7, 217) in the Court below. The Solicitor-General and Hanson, for the Crown. They referred to the following additional cases, as to the words "money's worth" in the Annuity Acts, 17 Geo. 3, c. 26, ss. 3, 8; 53 Geo. 3, c. 141, s. 10. James v. James, 2 Br. & B. 702; Morris v. Jones, 2 B. & C. 232; Blake v. Attersoll, 2 B. & C. 875. Hobhouse, Q. C., and Freeling, for the jointress. Selwyn, Q.C., and Lovell, for the infant tenant for life of the charged estates. Baggallay, Q.C., and Charles Hall, for the trustees. 5 Nov. 1863. THE LORD CHANCELLOR said, that the question depended entirely on the construction of the 17th section of the Succession Duty Act (16 & 17 Vict. c. 51). It was clear that the jointure rent-charges in favour of Mrs. George Bankes, were "successions" within the meaning of the 2nd section of that Act, and, consequently, succession duty would be payable thereon, unless the case were brought within the operation of section 17. The framers of the Act had employed the word "succession" to denote any property which passed on the death of one person to another, by gift, descent, or contract, as distinguished tended to be exempted from the tax. It was not every from a bona fide purchase for money, which was incontract for valuable consideration that was exempted from the payment of the duty, but only contracts for value in money or money's worth; marriage was a contract for valuable consideration of the highest order, but such a contract was not exempted, and the additional words "in money or money's worth" were meant to exclude, and did exclude, ordinary marriage contracts. The 17th section clearly defined what was necessary to bring a contract within its operation; it was necessary that there should be a contract by one person to pay to another, and that such contract should be bona fide for valuable consideration in money or money's worth; the section moreover prevented the contract from creating a succession only as between the contracting parties. Did then the settlement of 1822 proceed on such a contract, between Henry and William Bankes on the one hand, and Miss Nugent on the other hand, as came within the requirements of the 17th section? There was no personal contract at all: there was an agreement to exercise the power of appointment in such manner as that the two rentcharges should issue out of the estates; but there was no contract, express or implied, to pay the annuities, by the donees of the power, or either of them. And if there were, a valuable consideration in money or money's worth was still necessary. The Master of the Rolls had thought that the release of dower would be a consideration in money's worth within the 17th section; but the intended husband, at the date of the settlement, was not possessed of any real estate out of which his wife would be dowable, and the bare possibility of dower out of his after-acquired estate was not sufficient to satisfy the words of the section. The Master of the Rolls had also thought that a contract in consideration of marriage might be taken out of section 2 by force of section 17; but this could only be by rejecting from the latter section the words "in money or money's worth." His Lordship entirely dissented from such a construction of the statute; the rent-charges were clearly "successions" within the Act, were not within the exemption conferred by the 17th section, and, consequently, were liable to succession duty. 7 Nov. 1863. In consequence of this decision of his Lordship, the further question arose, under the words of the settlement of the 7th of June, 1822 (see 2 N. R. 7), whether the jointress was chargeable with the succession duty on the rent-charges, or was entitled to the rent-charges without any deduction in respect of succession duty, leaving the latter to be borne by the estates out of which the charges issued. Selwyn, Q.C., and Lovell, for the infant tenant for life of the estates, argued that the jointress herself ought to pay the succession duty in respect of her jointure; the settlement was made upwards of thirty years before such a thing as succession duty existed; the Court, in construing the settlement, was entitled to put itself in the place of the parties at the time of execution, and the succession duty, then non-existent, and never having existed, could not have been within the contemplation of the parties. The taxes covered by the words of the settlement were the taxes then existent, and those ejusdem generis which might thereafter be imposed; Marchioness of Blandford v. Dowager Duchess of And the succession duty was a novel tax, not ejusdem They also referred to, Brewster v. Kidgell, 1 Ld. Raym. 317; Freeling (Hobhouse, Q. C., with him), for the jointress. The words upon which the question turned occurred not only in the declaration of trusts of the term for securing the rent-charges, but also in the grant of the rent-charges; they were part of the grant, and entitled the jointress to the clear sums of 8007. and 700%.; the words in the grant were the strongest possible to express exoneration from any present or future taxes; there was nothing to confine the future taxes to such were ejusdem generis with those imposed at the date of the settlement; and, even if there were, the Festing v. Taylor, 1 N. R. 32; 32 L. J. (N. 8.) Colbron v. Travers, 31 L. J. (N. s.) C. P. 257 ; Selwyn, Q.C., in reply. and THE LORD CHANCELLOR said, that the intent and design of the settlement of 1822 was, that the jointress should enjoy the rent-charges without any diminution whatever in respect of any taxes, charges, impositions, or assessments already or thereafter to be taxed, charged, imposed, or assessed on the estates, or on the rent-charges, or on the jointress in respect of the rentcharges. The charges were created by way of use, the use would extend according to, and be governed by the intent; it would, therefore, extend to enable the jointress to require payment of any tax by which her jointure was affected. The words were to be taken in connection with the grant, and defined the extent and comprehension of the grant, and made it include any such diminution as was within the fair construction and meaning of the words. His Lordship had been pressed with the judgment of Lord Hardwicke in The Marchioness of Blandford v. The Dowager Duchess of Marlborough, but he could not do otherwise than hold that the words "without any deduction in respect of any taxes, &c., already taxed or hereafter (i. e. so long as the charge should last) to be taxed," &c., included the succession duty, if the succession duty were a tax charged on the rent-charges or on the jointress in respect thereof. There could be no doubt that the succession duty was a tax or imposition charged both on the rentcharges and on the jointress. She was a successor within the Succession Duty Act, and it followed therefrom that her succession was charged with, and that she was personally liable for, the duty. She was, therefore, entitled under the grant, i. e. by virtue of the use, to the amount of the rent-charges, together with so much as would prevent any diminution of her jointure by reason of the imposition of the succession duty. The trusts of the term agreed with the words of the grant, and the lady was entitled to call upon the trustees (if necessary) to pay the rent-charges without any deduction or abatement on account of the duty ; and the trustees would have the right to raise the amount of such deduction, and it would be their duty to take care that the rent-charges were paid in full, and without any such deduction. His Lordship, having regard to the words of the settlement and the mode of creation of the rentcharges, held, that there was a grant of something additional to the annual sums of 8007. and 7007., viz., the amount of any deduction which might at any a larger amount by way of commission than he was entitled to. The case is fully reported in 2 N. R. 267 and 1 H. & M. 123. Wood, V.-C., in giving judgment, said on the question of law, "I think I ought to give my reasonsthey will be very short-in differing, or rather not acceding to Mr. Jessel's view upon the old authority in the 6th Vesey,* and Philips v. Philips, in 9th Hare; namely, that you cannot have an account where the account is all on one side; that is to say, where it consists of receipts by A on account of B, and payments made by A on account of B. Where the receipts and payments are wholly on one side, you cannot have an account; but where each side has been paying and receiving, having mutual confidence in each other, then the account arises. Mr. Jessel's argument would have been perfectly right if it had been the case of a simple commercial traveller, if the defendants had not entered into a contract on their part that, for everything they sold upon the plaintiff's introduction, and which, of course, he would know nothing of, they would pay Finally, at the suggestion of their Lordships, the 3 per cent. Therefore, I apprehend, the whole thing suit was compromised, and judgment withheld. Held (reversing the decision of the Vice-Chancellor), that the plaintiff could not maintain a bill for an account against the defendants. This was a bill for an account brought by the plaintiff, a commercial traveller, against the defendants, wine merchants, residing in Liverpool. The agreement between the parties was, that, in all business done by the plaintiff, either in London or in his distriet, he was to receive from the defendants a commission of 7 per cent., and an allowance of 3 per cent. on all orders received from his friends first introduced by him, so long as he continued to exert himself in the working out of the business. On this footing the plaintiff acted as agent for the defendants, who accepted bills, drawn on them by the plaintiff, on account of the commission payable to him. In 1861, the plaintiff ceased to travel for the defendants, and disputes having arisen as to the settlement of accounts, he filed the present bill for an account. The defendants declined to demur; but, in their answer, submitted that this bill ought not to have been filed, and that the plaintiff's remedy, if any, was by action at law. They also alleged, on the pleadings, that the accounts, if taken, would show that the plaintiff was indebted to them, having received arises, and the account must be taken." And his Honour ordered accordingly. Willcock, Q.C. (Roxburgh with him), supported the decision of the Vice-Chancellor. J. M. Giffard, Q. C., and Jessel, denied that the present was a fit case for relief in a Court of Equity. There No case had been shown for discovery, nor any comwas not a particle of equity apparent upon the bill. plexity of accounts alleged, nor was there any mutu ality of accounts. The plaintiff's proper remedy was to be found in a court of law. Willcock, Q.C., in reply.-The defendants allege that they have over-paid the plaintiff, so that there is money owing from him. Moreover, we deny the plaintiff is a mere agent. He is also a person entitled to participate in gains made under certain conditions without his prescribed district. Counsel on either side cited and commented on the several cases referred to in the report in the Court below. KNIGHT BRUCE, L.J., said, that the bill stated a case for an action at law; but not one for a suit in Equity, according to the rules of this Court. With great deference to the Vice-Chancellor, in his Lordship's opinion, the bill must be dismissed. considered in other cases the nature of the relief now TURNER, C.J., said, that, having previously often sought, he could not hesitate to pronounce his opinion allowed. The bill did not venture to allege that there He considered, that the appeal must be was any contract whatever on the part of the defendants to keep an account respecting the commission of the at once. * Dinwiddie v. Bailey. The defendants, by their answers, denied the agree ments of March, 1860, and did not plead the Statute of Frauds. The Vice-Chancellor made a decree for specific per plaintiff. There was here nothing more than a simple undertaking on the part of the defendant to pay a commission. On the plaintiff's contention every customer of a banker might file a bill to have an account taken between himself and his banker. It would be impos-formance of the agreement of March, 1860, against the sible to tell where the line was to be drawn, if a corporation, and dismissed the bill against the other claim of this nature was supported in Equity. Here, defendants, with costs. there were no mutual accounts, no complication of accounts, nor any allegations thereof. The bill must be dismissed. From this decree the corporation appealed. Little and E. R. Turner for the appellants. Minute.-Bill dismissed with costs. No costs of plaintiffs could not have been compelled to perform appeal. Deposit to be returned. Specific Performance-Statute of Frauds- In a suit for specific performance, a defendant, who, by his answer, denies the agreement, but does not claim the benefit of the Statute of Frauds, cannot set up the Statute at the hearing. Ridgway . Wharton, 3 De G. M. & G. 677, not followed. Where the plaintiff has acted upon an agreement, want of mutuality is not a sufficient ground for refusing specific performance. This was an appeal from a decision of the ViceChancellor of the County Palatine of Lancaster. Under an agreement dated the 23rd July, 1859, and signed by the plaintiffs and one James Hodgson, the plaintiffs became the lessees for one year of a schoolhouse belonging to Hodgson, with the option of purchasing the house for 607. within two months from the date of the agreement. On the 16th of March, 1860, Hodgson signed another agreement in these words :-"I am willing that the letting of the schoolroom be prolonged for five years instead of one, at the usual rent of three shillings per week, and the parties now holding the same to have the chance of purchasing the same school during that time." Another agreement to the same effect was signed by Hodgson on the same day, but this being unstamped, was not in evidence. Hodgson died in 1861, and his devisee sold the property to one Tomlinson, who, in April, 1862, resold it to the Burnley Improvement Commissioners, and they, in pursuance of the Municipal Corporations' Act, transferred all their rights, powers, estates, property, and liabilities, to the mayor, aldermen, and burgesses of the borough of Burnley. The plaintiffs, having continued in possession of the school-house, in May, 1862, claimed to exercise their right of purchase under the agreements, and their claim being resisted, instituted this suit for specific performance against Hodgson's devisee, Tomlinson, and the corporation. their part by taking a lease for five years. The agreement of March, 1860, is not a sufficient agreement within the Statute of Frauds, inasmuch as it does not fix the amount of the purchase-money; it contains no direct internal reference to the agreement of July, 1859, and parol evidence is inadmissible to connect the two, Clinan v. Cooke, 1 Sch. & Lef. 22; Lord St. Leonards, V. & P. (13th ed.) 111. This is a case in which time is of the essence of the contract; at the end of the two months the first agreement was gone, Pyke v. Northwood, 1 Beav. 152; The defendants having denied the agreement may plead it by their answer, set up the Statute of Frauds, though they did not Ridgway v. Wharton, 3 De G. M. & G. 677; [Knight Bruce, L.J.-Has that decision been followed? in which it was not followed.] Turner, L.J.-I remember a case before this Court, The decision has been approved by Lord St. Leonards, The defence may be raised by demurrer, (V. & P. 122.) Wood v. Midgley, 5 De G. M. & G. 41. Christie, for the respondents, was not called on. KNIGHT BRUCE, L.J., said, that, even assuming the doctrine of part performance to be out of the way, he was not satisfied that the Statute of Frauds had any application to the present case; but, however that might be, as the defendants had not pleaded the statute, they were prevented by the rules of pleading from resorting to it at the hearing. That being so, the agreement was clearly proved, and the appeal must be dismissed with costs. TURNER, L.J., said, that, in his view, it was unnecessary either to express an opinion upon the case of Ridgway v. Wharton (although he agreed that the long established rule of pleading ought not to be dis |