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constitute the bill a new bill so as to entitle the notice that the same has not been given, it being the plaintiffs to a fresh allowance of time. To hold that a clear intention of the parties hereto that the covenant mere formal amendment entitled a plaintiff to file in hereinbefore contained shall operate so as to give the terrogatories after the expiration of the sixteen days plaintiff, his heirs, &c., a right only to an action for would be merely allowing him to evade the orders of damages against the defendants, their executors, &e., the Court. The interrogatories must, therefore, be and not further or otherwise, and that the possession taken off the file, and the plaintiffs must pay the costs. of these presents by the defendants, or the survivors, He did not intend to say anything to prejudice any &c., shall as between vendor and purchaser be conspecial application for leave to file interrogatories; clusive evidence of the right of the defendants, or but the plaintiffs would have to explain why they had the survivors, &c., to exercise the said power of sale.” not interrogated earlier.

The plaintiff's covenants as mortgagor were interposed between these clauses and the power of sale.

On the 19th of September, 1863, the defendants gave Master of the Rolls.

} Prichard v. Wilson. the plaintiff notice that unless all principal money and 11 JAX. 1864.

interest owing on the first mortgage deed were paid, MortgageCovenant not to Sell without Notice- they would at the expiration of three months proceed

Covenant giving Action for Damages only to sell the property. They never gave any notice as -Jurisdiction of Equity.

to the property comprised in the second deed.

Both properties having been advertised to be sold A mortgage deed contained a corenant by the mort

on the 29th of December, 1863, the plaintiff's bill gagecs not to exercise their power of sale without giving was filed on the 24th of December, and an interim three months' notice, followed by a proviso that no pur order restraining the defendants from selling before chaser should be offected by express notice that the notice the 12th of January, 1864, was obtained the same day. had not been given, and a declaration of intention that

The defendants subsequently told the plaintiff that the covenant should operate only so as to give the mort- they should not sell for two months, and the question gagor a right to an action for damages against the

as to the plaintiff's right to an injunction thus became morljugees :

a simple question of costs. Held, that a Court of Equity had no jurisdiction to In addition to the omission to give notice as to the restrain the mortgagees from exercising the power of sale four plots of ground, the plaintiff relied upon an without giving the required notice.

alleged agreement not to call in the money so long as This was a motion for an injunction to restrain the the interest was paid. defendants, who were mortgagees, from exercising

Selwyn, Q.C., and Osborne Morgan, in support of their powers of sale.

the motion, contended that, as regarded the four plots By an indenture, dated the 1st of January, 1863, a hotel and other property were conveyed to the de- the covenant in the mortgage deed.

of ground, no notice had been given as required by fendants, their heirs and assigns, subject to a proviso for redemption by the plaintiff on payment of 9501. Jesscl, for the defendants, contended that the rery and interest at 41. 15s. per cent on the 1st of July peculiar clause in the mortgage deed did not give the then next ensuing.

plaintiff any right to come into equity for an injuncBy another indenture, also dated the 1st of January, tion to restrain the sale. His only remedy against 1863, four plots of ground were conveyed to the de. the defendant was an action for damages. fendants, their heirs and assigns, subject to a proviso

THE MASTER OF THE ROLLs held that he could for redemption by the plaintiff on payment of 3501. and interest at 41. 15s. per cent. on the 1st of July As to the covenant, he said that the construction had

not interfere to prevent the defendants from selling. then next ensuing. Each of these mortgage deeds contained a power however, now of opinion that the proviso took away

seemed to him one of considerable nicety. He was, for the defendants to sell the premises thereby conveyed without the consent of the plaintiff his heirs the jurisdiction of this Court, as the plaintiff was or assigns, in case default should be made in the pay- only to have a right to an action for damages. ment of the mortgage money and interest at the appointed time. Each deed also contained a covenant by the defend

Master of the Rights } BARKER v. Young.

11 Dec. 1863, 12 Jan. 1864. ants with the plaintiff not to exercise the power of sale without giving three months' previous notice. This Will—" And—Express and implied power3– covenant was followed by the following proviso, viz., De facto, and effectual appointment—" As “that no purchaser or purchasers under the power of

aforesaid." sale shall be concerned to inquire whether the notice mentioned in the clause or proviso lastly hereinbefore A testator gave all his residuary estate to his nephele contained has been given, or be affected by express for life, and after his nepher's deccase, providing his

nephew should leave a child, he gave it to such persons dergast, Rendall, and Locock Webb for other defendants as his nephew should by will appoint with a gift over in the same interest contended, if the nephew should die without leaving a child, and 1st. That the present was a case in which the Court should not "previous to his decease make any such would read “and” disjunctively rather than reduce one appointment as aforesaid."

clause of a sentence altogether to silence, The nephew made a will purporting to exercise the Maberly v. Strode, 3 Ves. 450. power of appointment, and died without issue :

2nd. That where, as in the present case, there were Held (following Seccombe v. Edwards, 28 Beav. 440,) two independent self-contained sentences coupled by that "and" could not be read disjunctively :

" and," the word "and" was simply equivalent to Held, also, that no power could be implied in addi-"and also if,” and the sentence might be read, “If tion to the express power given, and that any such my nephew shall! die without leaving any child, appointment as aforesaidreferred not to a de facto and also if he shall make no such appointment as appointment by will but to an appointment in pur- aforesaid.” suance of the express power.

3rd. “Such appointment as aforesaid," meant such Semble, that if the nephew had had a child, and appointment as the nephew was before authorised to had then exercised the power in favour of a third party, make. The power was expressly contingent upon the and afterwards the child had predeceased the appointor, donee's dying leaving a child him surviving, and did the appointment would have been void.

not arise unless the contingency happened.

4th. A power of appointment independent of the Francis Const by his will, dated in 1839, devised

contingency cannot be implied ; and bequeathed his residuary estate, both real and

Addison v. Busk, 14 Beav. 459 ; personal, to his executors, their heirs, &c., upon

Andree v. Ward, 1 Russ. 260 ; trust first to pay the legacies and annuities given by

Greene v. Ward, 1 Russ. 262; his will, and after payment thereof to permit his

Brown v. Higgs, 8 Ves. 561. nephew, Henry Coles, to receive the rents and interest thereof for his life for his own absolute use. And the

Sir F. Kelly, Q.C., Hobhouse, Q.C., Druce, and will then proceeded, “And after the decease of my Earle, for the appointees and representatives of Henry said nephew, providing he shall leave any child or Coles, referred to children him surviving, or who shall be born in due Seccombe v. Edwards, 29 Beav. 410, time after his decease, then I declare that my said Dillon v. Harris, 4 Bligh (N. S.) 321, executors shall stand possessed of my said residuary

Grcy v. Pearson, 6 H. of L. Ca. 61, estate upon trust for such persons and for such pur- as authorities to show that the Court would hold that poses as my said nephew shall by his last will direct the double contingency was contemplated by the or appoint, give, devise, or bequeath the same; but testator. if my said nephew shall die without leaving any child The words "such an appointment, &c., as aforesaid,” or children him surviving, or who shall be born in referred not to the contingency upon which, but to the due time after his decease, and the said Henry Coles, manner in which the power was to be exercised—i. e. my nephew, shall not previous to his decease make by will. It had been argued that a power could not be any such appointment, gift, or bequest as aforesaid, implied in addition to an express power given ; but this then I declare that my said executors shall stand and could be done in the case of a gift, and why should be possessed of all my said resiiluarg estate upon trust not the rule be extended to a power ? for and to be divided between Richard Barker, Henry Jordan v. Portescue, 10 Beay. 259 ; Young, and James Ryland, and to and for their heirs, Bibin v. Walker, Amb. 661. executors, and administrators, and I hereby give and it was a fair inference from the terms of the will, bequeath the same accordingly."

that the testator supposed that he had given a power Henry Coles survived the testator and died without not dependent on the contingency of his nephew issue, having by his will, dated in 1861 (in which he having children : and the words “If my nephew shall referred to his uncle's will and the difficulty of con- not previous to his decease make such appointment as struction involved in it) appointed, devised, and aforesaid,” showed that the testator contemplated the bequeathed to his trustees, their heirs, &c., the whole creation of a power, the de facto exercise of which of his uncle's residuary estate upon the trusts therein would be effectual, independently of the happening of mentioned.

the contingency. The bill was filed by three of the children of Richard Barker, one of the residuary devisees and legatees

The Attorney-General, in reply, said that under the will of Francis Const, against the trustees

Seccombe v. Edwards (loc. cit.) of the will of Henry Coles and other parties.

was distinguishable on the terms of the gift ; that in The Attorney-General and J. L. Bird for the plain Dillon v. Harris (loc. cit.) tiffs, and Sir H. Cairns, Q.C., Baggallay, Q.C., W. M. the principal stress was laid on the words "80 die James, Q.C., Selwyn, Q.C., H. F. Shebbeare, Pren- unmarried ;” and the question whether “and” could

be read disjunctively did not fairly arise. The argu- which could be exercised by will, and, therefore, the ment founded on

gift over took effect, and the plaintiffs were entitied Jordan v. Portescue (loc. cit.)

to a declaration accordingly. required the supposition that Mr. Const, in making his will, forgot that he had given an express power, as

Master of the Rolls. soon as he had written it, and then proceeded at once

} JONES v. Bixxs. to give an implied power.

12, 13 JAN. 1864.

Practice-Plea-Bankruptcy-12 & 13 Vict. THE MASTER OF THE ROLLS said that he could not

c. 106, s. 145—24 d: 25 Vict. c. 134, s. 117. accede to the construction proposed by the plaintiffs of reading "and" as “or," or as “and also if,” which Three days after being served with a bill by a mort. was practically the same. He had considered the gagce of leascholds, praying for an account and a sale matter in the case of Seccombe v. Edwards (loc. cit.), of the property, a defendant filed a declaration of inand he retained the opinion which he then expressed ability to meet his engagements, and after the appointthat the testator contemplated a double contingency; ment of the creditors' assignce pleaded bankruptcy in and the question then arose, whether both the events bar of the relief and discovery sought by the plaintiff':had occurred. Here the nephew had undoubtedly died Plea allowed, but with liberty to amend, and withwithout leaving a child ; had he also died without out costs. making the appointment mentioned in the uncle's will ? It had been argued with much ingenuity by

The bill in this suit was filed on the 17th of Mr. Hobhouse, that the construction of the will must November, 1863, and interrogatories served on the

28th of that month. The bill prayed that an account be the same whether the nephew had not had any child, or had had a child who did not survive him, might be taken of what was due to the plaintiffs for and that if the nephew had made his will while he principal and interest on a mortgage of leaseholds, had a child still alive, that would have been a good and that in default the premises comprised in the

that the defendants might be ordered to pay the same, execution of the power, and if so, then that the circumstance of the pre-decease of the child would mortgage might be sold. The plaintiffs also sought not have destroyed the execution of the power which discovery as to other incumbrances on the premises in was previously valid. In other words, it was contended question. On the 20th of November the defendants that the appointment spoken of in the uncle's will signed a declaration that they were unable to meet was an appointment de facto, not an appointment creditors' assignee was appointed, and on the 22nd of

their engagements. On the 15th of December the which became effectual by reason of a child having December the defendants filed a plea of bankruptcy in survived the father. But in His Honour's opinion there was an error in bar to the whole of the discovery and relief sought by

the bill. that reasoning, for a power of appointment, which could be exercised only by will, did not take effect

The plea did not allege that the creditors' assignee de facto until the death of the donee of the power.

had elected to take the mortgaged premises. The instrument purporting to execute the power R. S. Tripp, in support of the plea, cited, was, in fact, no execution of the power until it was Lane v. Smith, 14 Beav. 49. a will, and it was no will until the donee of the power And contended that the real object of the bill was died.

to obtain discovery, but that no discovery could be Accordingly, the real question was, not, whether an obtained from a bankrupt without a charge of fraud; appointment had been made, or rather, whether an here no such charge had been made. instrument purporting and intended to exercise the power had been executed, but whether the power

Baggallay, Q.C., and W. Forster, for the plaintiffs,

cited itself arose and could have been exercised by the nephew, and His Honour thought that the power did

12 & 13 Vict. c. 106, s. 145. not arise until the death of the nephew leaving a

The plea was deficient on the face of it, as it ought child, and that that was the event which called the to have contained an averment that the creditors' power into existence. It was true that the power was

assignee had elected to take the leaseholds, to be executed by anticipation, as, indeed, all powers

Copeland v. Stephens, 1 Barn. & Ald. 593. to be executed by the will of the donee must neces

That case was decided under 49 Geo. 3, c. 121, s. sarily be. But it was a conditional power to arise 19, the words of which were in effect the same as and to take effect only “ provided the nephew left a

those of the 145th section of the Bankrupt Law Conchild him surviving.” His Honour could not strike solidation Act, 1849. They also referred to those words out of the will or convert a conditional

Manning v. Flight, 3 Barn. & Ad. 211, into an unconditional power. The condition imposed

24 & 25 Vict. c. 134, s. 117. by the uncle was not fulfilled, and, consequently, the Tripp, in reply, cited contrà, nephew had no power vested in him at his decease, Cartwright v. Glover, 2 Giff. 620.

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THE MASTER OF THE ROLLS said that either the and made between the three promoters of the one part, assignee or the bankrupt must be liable to make an and Joseph Deacon and John Teulon, the provisional assignment to the plaintiffs. He thought, however, trustees of the company, of the other part; after that the bankruptcy was a bar to the suit, and he reciting (amongst other things), that Deacon and must allow the plea, with leave to amend, and with. Teulon, as such trustees, had contracted with the three out costs.

promoters for the purchase of the leasehold premises and

the treatise for 7501., to be paid to them by the comMaster of the Rolls.

Re WATERLOO, &c., As- pany upon the complete registration thereof, and that

SURANCE COMPANY. it had also been agreed that the company should 15 DEC. 1863.

PAUL AND BERESFORD's pay the promoters respectively, during their lives, 14 JAN. 1864.

CASE.

if the company should so long continue, 21. per cent.

commission upon Company_Contract with Promoter-Contract

all premiums received by the comwith Director_7 & 8 Vict. c. 110,

pany in respect of life policies effected therewith ; the 29.

promoters, for the considerations thereinbefore men. Section 29 of 7 & 8 Vict. c. 110 only applies to tioned, assigned to the trustees on behalf of the contracts between a company completely registered and company all their right, title, and interest in the any of the directors, and not to contracts between a

premises No. 355, Strand, and in the treatise. company provisionally registered and any of its pro

The 7501. was paid to the promoters in shares of the moters.

company, with 5s. credited thereon, about the 24th of Three promoters of a provisionally registered assurance

November, 1851. company sold certain leasehold premises, held at a rack

It had been originally intended that the arrangerent, and a treatise on life assurance, to the company, in ment effected by the deed of the 27th of October, consideration of 7501. and commissions of 21. per cent. 1851, should be included in the deed of settlement of on all premiums. These promoters were named as

the company, and it appeared from the minute-book of directors in the deed of settlement executed a fortnight the directors, under the date of the 16th of September, afterwards :

1851, after the provisional, but before the complete Held, that this transaction was binding upon the registration of the company, that at a so-called company, although it had never been confirmed at a

board-meeting, at which the three promoters, and general meeting of shareholders, pursuant to the 7 & 8

four other persons, who were also afterwards apVict. c. 110, s. 29.

pointed directors of the company, were present, the The three promoters afterwards, when directors,

board approved of a clause to be inserted in the setagreed to give up their cornmission, which was payable tlement, with reference to the claims of the promoters. during their lives, if the company should so long con

This clause was, however, not inserted, the reason tinue, on having life annuities of 2001., 1001., and for its non-insertion, according to a statement made 1001. respectively secured to them :

at the bar, being, that it would have been objected Held, that this second agreement, not having been to by the Registrar of Joint-Stock Companies. submitted to a mecting of shareholders, was invalid.

By the deed of settlement dated the 10th of Novem

ber, 1851, the three promoters were appointed three The Waterloo Life, Education, Casualty, and Self- of the directors of the company. Relief Assurance Company was formed under the At a meeting of the directors held on the 22nd of 7 & 8 Vict. c. 110. It was provisionally registered December, 1851, at which the three promoters and on the 4th of February, 1851, the claimants, Edwin five other directors were present, it was resolved that Paul and William Beresford, together with one Edward the deed of the 27th of October, 1851, should be conBaylis, since deceased, being the promoters.

firmed, and that the terms thereof should be carried The company was formed to carry out certain prin. out by the company. ciples relative to life assurance, described in a book The commission of 21. per cent. was accordingly entitled “A Treatise on the New Application of the paid out of the funds of the company to each of the Principles of Life Assurance,” of which Baylis, Paul, three promoters until September, 1856, at which time and Beresford were the proprietors, and which had it amounted to 1751. a year, and was increasing. been registered under the Copyright Act (5 & 6 Vict. In March, 1857, it was arranged between the three c. 45).

promoters and the other directors that, in consideraThe three promoters had also entered into an agree. tion of the promoters releasing all claims which they ment for a lease of certain premises at No. 355, Strand, had, or might have against the company, the com• upon which it was intended that the business of the pany should secure the following life annuities to the company should be carried on, for thirty-five years, at three promoters,—to Baylis 2001. a-year, and to Paul a rent of 2301. This agreement had been made on the and Beresford 1001. a-year apiece. This arrangement 2nd of September, 1851, and here was no premium was embodied in two letters, both dated the 24th of paid.

March, 1857, and signed, the one by the three proBy an indenture dated the 27th of October, 1851, moters, and the other by four of the other directors.

These annuities were paid down to November, 1860. the 29th section of the 7 & 8 Vict. c. 110, as a con

Neither the deed of the 27th of October, 1851, nor tract between the company and certain of the the arrangement of the 24th of March, 1857, was directors, ever submitted to any general meeting of the share- Ernest v. Nicholls, 6 H. of L. Ca. 401. holders, and thongh the payments of the 21. per cent. The exception only related to annuities granted in commission, and of the annuities, were included in the ordinary course of business. the accounts annually submitted to the shareholders

[The Master of the Rolls concurred in this view.] at the general meetings, it was not in such a manner as to call attention to them as distinct from ordinary

2nd. That the arrangement of 1851 was also void. commissions or annuities.

The company really received no consideration. The Baylis continued a director until his death in 1861,

leasehold premises assigned were held at a rack-rent, and Paul and Beresford continued such as long as the fixed less than two months before. The result showed company carried on their business.

the value of the new principles of Life Assurance conIn July, 1862, the business of the company was sold tained in the treatise, and even if the contents of the with the sanction of two extraordinary general meet treatise had had any value, the copyright could not ings, upon terms which left the company to collect its have been of any use to the company. own assets, and provide for its own liabilities.

If the arrangement of 1851 had been entered into On the 6th of December, 1862, the affairs of the after the three promoters became directors, it would company were ordered to be wound up under the have been void under the 7 & 8 Vict. c. 110, s. 29, Companies Act, 1862.

and it was clear,

7 & 8 Vict. 110, s. 23, In the winding-up proceedings Paul and Beresford took out a summons claiming to prove for the arrears

The Leominster Canal and Narigation Company of their respective annuities, and for the value thereof,

v. The Shrewsbury and Hereford Railway Com and these claims having been allowed by the Chief

pany, 3 K. & J. 654, Clerk, the summons was adjourned into Court to be that the promoters of a company had no power to do argued upon an agreed statement of facts.

anything before registration that the directors could

not do afterwards. Sclwyn, Q.C., and W. W. Cooper, for the claimants, contended :

Selwyn, Q.C., in reply. 1st. That the arrangement of October, 1851, was A considerable sum had been realised by the sale of binding upon the company.

the leaseholds for the residue of the term. The validity of a deed, an exact copy of that of the The 29th section, imposing a personal disqualifica27th of October, 1851, and executed under similar tion upon directors, could not be extended to persoas circumstances, was upheld in,

who merely became directors afterwards. Burt v. British Nation Life Assurance Association

14 JAN. 1864.
(V.-C. S.), 5 Jur. (n. s.) 555; affirmed on other
grounds, 4 De G. & J. 158.

The MASTER OF THE ROLLS said, with reference to The company having had the benefit of the book on the arrangement of 1851, that the official liquidator Life Assurance, and of the leasehold premises, could insisted that it was void, 1st, for want of a sufficient not now repudiate the arrangement.

consideration, and, 2nd, under the 29th section of the The 23rd section of the 7 & 8 Vict. c. 110, made 7 & 8 Vict. c. 110. valid all contracts entered into by the promoters con

As to the first ground, he was of opinion that, eren ditionally upon the complete registration of the com- assuming the treatise to have been of no value, and the

lease to have been at a rack-rent, there was a sufficient pany.

2nd. That if the validity of the arrangement of consideration for the arrangement. 1851, was established, it followed that the agreement

The question as to the effect of the 29th section of 1857 was also binding upon the company.

was one of greater difficulty ; but, as it was a disabling The release by the three promoters of their rights enactment, it must be construed strictly, and althongle under the arrangement of 1851, was a good considera- the claimants became directors a fortnight afterwards, tion for the agreement of 1857, which, in fact, could they did not hold that office at the time of the execunot be otherwise than beneficial to the company.

tion of the deed. In the absence of any collusion for The 29th section of the 7 & 8 Vict. c. 110, did not the purpose of evading the statute, he considered such apply to grants of annuities to directors.

a contract valid. He was of opinion that the owner 3rd. If the agreement of 1857 were held invalid, of a mine or a brewery might validly sell the conthe claimants would be entitled to fall back upon the cern to a joint-stock company, notwithstanding that

he was one of the promoters of the company, and that arrangement of 1851.

the transaction would not be rendered void by his Baggallay, Q.C., and Swanston, for the official afterwards becoming a director of the company.

The liquidator, contended :

Vice-Chancellor's decision in Burt v. British Nation, 1st. That the agreement of 1857 was void under &c., Association (loc. cit.), was an authority for holding

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