Imágenes de páginas

that this was a valid contract, and he did not hesi. C joined as surety; and B afterwards deposited with A tate to follow that decision.

as collateral security for both debls a policy on his life That, however, was not the contract in respect of for 20001. A by his will gave C a legacy of 10001. which the promoters now claimed. The subsequent subject to the life interest of the testator's widow. After agreement was of a much moro questionable nature. A's death, B became bankrupt, and A's executors, in At the time when it was entered into those three order to prove the debt under the bankruptcy, surgentlemen were unquestionably directors, and it was a rendered the policy; and on the death of the widow, material variation from the old agreement. He was they claimed to set of part of the legacy to C against so therefore of opinion that, although the surrender of much of the dcot for which he was surety as was still the first agreement formed a good consideration for the unpaid :second, the latter required the sanction of the share- Held (following Courtenay v. Williams, 3 Hare, holders. It had been suggested that this was unneces- 539), that the legacy could be set off against the debt, sary in the present case, where the agreement was clearly although barred by the Statute of Limitations :beneficial to the company, it having been ascertained Held also, that the surrender of the policy by the that the 21. per cent. on the premiums would exceed creditor, without the consent of the surety, did not dis1001. a-year. The statute, however, contained no excep- charge the surety :tion of contracts beneficial to the company. Possibly, Held also (following Pearl v. Deacon, 1 De G. & J. if the agreement had been merely an agreement by 461), that the consideration money for the surrender of those three gentlemen to take il. per cent. upon the the policy was applicable wholly towards payment of premiums instead of 21. per cent., it would have been the debt for which the surety was liable. valid without the sanction of a meeting of the share- Where shares of parties bencficially interested under holders ; but this would have been upon the ground a will have been incumbered, one set of costs is that it was a mere relinquishment, not a contract. allowed in respect of cach share, but without deducting The agreement now in question, on the other hand, was the additional expense incurred by reason of the incuma new and distinct contract, in consideration of the sur

branccs. render of the former agreement, and the shareholders

Greedy v. Lavender, 11 Beav. 417, not followed. might very well entertain a different opinion from the directors upon the question, whether it was bene- This was a suit to administer the will and codicil of ficial to the company. It was observable, that the Benjamin Coates. The testator's nephews, John first agreement was limited to the duration of the Green and William Green, were at the time of his company; while the second extended to the lives of decease indebted to him on a joint and several prothe three promoters, whether the company continued missory note for 10001., advanced to John Green, or not.

and in a large arrear of interest thereon. John The result was, that the original deed of 1851 would Green was also indebted to the testator on another remain in force, and that the claimants would be en. promissory note for 10001. ; and some time after giving titled to 21. per cent. upon all premiums received the notes, he had deposited with the testator, as a between the 24th of March, 1857, and the transfer of collateral security for both debts, a policy on his life the business of the company in July, 1862.

for 20001. Baggallay, Q.C., said, that there were certain

The testator by his will gave his wife a life intequestions upon the construction of the deed of 1851 rest in the whole residue of his estate, and appointed which the official liquidator wished to raise.

her and his sister Mary Coates his executrixes ;

and by a codicil dated in 1841 he gave William Green THE MASTER OF TIIE ROLLS then said, that he a legacy of 10001., to bo paid on the decease of his should merely disallow the present claim, and leave widow. the claimants to carry in a fresh claim under the The testator died in 1843. arrangement of 185?, but the order would state his John Green became bankrupt in 1845, and the opinion that the original contract was valid. The executrixes of the testator proved against the bankofficial liquidator would have his costs out of the rupt's estate for the sum of 1,5601., (being 1,5001.. estate ; but the claimants would not have any costs. for principal, and 601. for interest,) which remained

due after the policy had been surrendered to the Master of the Rolls.

assurance office, and after 971. 10s. had been received 16, 21 Dec. 1863. COATES v. COATES.

in consideration of the surrender. And they subse14 Jan. 1864.

quently received under the bankruptcy two dividends

of 481. 15s. in respect of the balance duo on the Principal and Surety Legacy - Set off — 21 two promissory notes. Jac. 1, c. 16-Bankruptcy-Costs.

At the time of the bankruptcy William Green was

in Australia, and could not be communicated with A advanced to B two sums of 10001. on the security respecting the surrender of the policy. of two promissory notes for 10001. each, in one of which The widow of the testator died in 1859, having


by will released William Green from all liability Pearl v. Deacon (loc. cit.). to pay the interest on the joint promissory note for In the present case there was such "active negligence" 10001.

as would discharge the surety, It was admitted that both debts were barred by the Capel v. Butler (loc. cit.); Statute of Limitations, but the executors of Mary Straton v. Rastall, 2 T. R. 366 ; Coates, the surviving executrix, claimed to retain the Watson v. Alcock, 4 De G. M. & G. 242; legacy of 10001. to William Green against so much of Samuell v. Howarth, 3 Mer. 272 ; the debt of 10001., for which he was surety, as still Rees v. Berrington, 2 Ves. 540. remained unpaid.

Baggallay, Q.C., and Peake, for incumbrancers on W. F. Robinson (Southgate, Q.C., with him), for the some of the shares, took no part in the argument. plaintiff ; and J. Hinde Palmer, Q.C., and W. J. Bovill, for other parties in the same interest, con- Robinson, in reply, asked that the costs of the suit, tended :

80 far as they had been increased by the incumbrances 1st. That the statute 21 Jac. 1, c. 16, was no bar on the shares of the parties beneficially interested, to the right of the representatives of the surviving might not be allowed. He cited, executrix to retain so much of the legacy as was Greedy v. Lavender, 11 Beav. 417. necessary to satisfy the debt, Courtenay v. Williams, 3 Hare, 539 ;

His Honour said, that he could not ask the Tax: Rose v. Gould, 15 Beav. 189.

ing-Master to calculate this. His practice was to 2nd. That the release by the widow and executrix give one set of costs in respect of each share.* of the testatrix to William Green only extended to

14 Jan. 1864. her life interest, and not to the capital of the debt.

THE MASTER OF THE Rolls said, as to the first 3rd. That the surrender of the policy by the repres point, that it was settled by Courtenay v. Williams sentatives of the creditor did not operate to release | (loc. cit.) that a legacy might be set off against 2 the surety.

debt barred by the Statute of Limitations. As to the The general rule that a surety is entitled to the second point, the release given by the executrix was benefit of all the securities which the creditor has only a release of the interest on the debt, not of the against the principal debtor, was not without excep. debt itself. The third point presented some difficulty

. tion,

When John Green became bankrupt it was probable

, Purdon v. Purdon, C. P. Cooper, 617.

if not certain, that he would not keep up the policy. It There was no neglect of the creditor in the pre

was not incumbent on the executrixes of the testator sent case, as in

to do so, and it would in fact have been a mere specuCapel v. Butler, 2 Sim. & St. 457 ;

lation on their part, which, if it had turned out unfawhich had been followed up

vourably, might have been complained of by the surety. Strange v. Fooks, 2 N. R. 507.

The executrixes did what it was their duty to do; The case of

they realised the security, and sold it for what it Mayhew v. Cricket!, 2 Swanst. 135, was distinguishable. There it was held that the with the bankrupt for the balance due on the two promis

would fetch, and then proved against the estate of drawal of an execution by the principal creditor had released the surety, but here it was necessary to sur.

Although the collateral security were a reversion, render the policy in order to prove the debt and relieve the surety pro tanto with the dividends received under be sold with any probability of its realising as

or other property, which at the time could not the bankruptey,

much as it would afterwards produce, still it was the 6 Geo. 4, c. 16, s. 50; Browne v. Carr, 2 Russ. 600 ; s. c. 7 Bing. 508 ; he could make the estate of the principal debtor avail

duty of the creditor to sell it, if, by so doing alone, and this circumstance distinguished the present case from such cases as

able for the payment of a dividend on a debt for which

the surety was liable. Newton v. Chorlton, 10 Hare, 616 ; s. C. 2 Drew.

On the authority of Pearl v. Deacon (loc. cit.), his

Honour held that the 971. 108., which was the produce Pledge v. Buss, Johns. 663; Pearl v. Deacon, 24 Beav. 186; 1 De G. & J. of a collateral security for both debts, ought to be set

off against the amount due on the note to which the 461. There was no obligation on the creditor to pay the surety was a party. Thus as 7501. was the sum due in premiums on the policy, nor any covenant to keep it respect of the joint note at the date of the proof, after up: it was a mere deposit, and not even part of the deducting from that sum the 481. 158. due in respect of original transaction.

the dividend, and 481. 15s, in respect of the surrendered

policy, 6521. 10s. would remain to be deducted from Selwyn, Q.C., and Turner, for William Green, the legacy of 10001. ; and the balance, with interest at cited,

41. per cent. per annum from six months after the


sory notes.


Master of the Rolls

. }

widow's death, would be the amount payable to The deed recited that the Commercial Bank of William Green.

London was a joint-stock company, carrying on busiNote."-See,

ness as bankers, and that part of the business of the Remnant v. Hood, 27 Beav. 74, 613.

banking company consisted of making advances of money to customers and others on approved securities

for the repayment thereof at a time agreed on with HOPKINSON v. LUSK.

interest, and that in all such cases the securities were ,

vested in some of certain shareholders in the bank

selected to be trustees. Construction-General WordsConveyance by The deed next recited the respective appointments Retiring Trustee.

of Oxenford, Hopkinson, Underwood, Chowne, and A deed contained recitals showing that the securities Hunter, and of John Taylor and Thomas Barnewall, taken by the C bank were always vested in some of cer

both then deceased, to be trustees of the bank. tain trustees, and that certain policies and leaseholds

The deed next recited the following deeds : had been rested in 0, either solely, or jointly with H,

1st. An assignment of a life policy effected with the or jointly with four other trustces, as securities for Equitable Society for 10001. to Taylor and Oxenford,

as tr ees for the bank, to secure moneys owing moneys owing from certain debtors of the bank, and

from C. B. a further recital that I was to retire and transfer "the trust estate vested in him." The deed contained three

2nd. An assignment of a life policy, effected with separate witnessing parts, adapted to the different modes the Metropolitan Life Assurance Society for 10001., in which the properties were vested in 0, and by these o

to Taylor, Barnewall, and Oxenford, as trustees for assigned the moneys owing from the several deötors and the bank, to secure moneys owing from T. W. the securities for the same, and particularly the recited

3rd. A life policy for 30001., etlected with the Pallasecurities and all other moneys, securities, property

dium Life Assurance Society, in the names of Barneand effects vested in 0 as a trusice for the bank" to other wall, Oxenford, and Hopkinson, as trustees for the trustees. It was afterwards discovered that valuable bank, to secure moneys owing by E. M. leasehold premises belonging absolutely to the bank were

4th. An assignment of certain leasehold messuages at vested in 0, as to part jointly with H, and as to the Notting-hill, to Barnewall, Chowne, Hopkinson, Hunrest jointly with the four other trustees :

ter, Oxenford, and Underwood, for the residue of Held, that this property did not pass by the decd.

certain terms of years, and subject to certain rents

and covenants as trustees for the bank to secure This was a special case to determine whether certain moneys owing from R., and further advances. leaseholds were included in the property assigned by The deed next contained the following recital :a certain indenture dated the 22nd of December, “And whereas the said John Oxenford is desirous of 1860.

retiring from the office of trustee of the said banking The plaintiff was one of the public officers of the company, and the directors have accepted his resigCommercial Bank of London. The defendants were nation of that office, and have requested him to transfer trustees for the Imperial Bank (Limited).

the trust property vested in him in manner hereinafter The Commercial Bank of London from time to time contained.” appointed trustees, in whose names the various pro- Then followed the witnessing parts. perties belonging to the company might be legally By the first witnessing part, Oxenford bargained, vested.

sold, and assigned to Hopkinson and Hunter, their Edward Oxenford had been appointed one of such executors, &c., “all and every principal and interest trustees in 1840. In 1855 he became embarrassed and other moneys, debts, dues, and demands whatand went to reside abroad, and the Commercial Bank soever payable to or receivable or capable of being became desirous of having the bank property vested made by the said Edward Oxenford, as the survivor in him transferred to persons more under their of the said John Taylor and Edward Barnewall, by, control.

from, or on the said C. B. and the said T. W. In 1860 some communications took place between respectively, together with all securities whatever for the Commercial Bank and Oxenford, when Oxenford the same moneys, debts, dues, and demands, or any agreed to formally retire from the trusteeship, and to of them or any part thereof, and particularly” all that assign all the property to the other trustees of the policy, &c. (the Equitable policy), and the said sum of bank. A deed was accordingly prepared which he 10001. thereby assured, and all bonuses, &c., by the executed.

herein before recited indenture of, &c., assigned to This deed was dated the 22nd of December, 1860, Taylor and Oxenford, or intended so to be, and toge. and was made between Oxenford of the 1st part, ther with the said indenture. And also, &c. (similar Chowne, Hopkinson, Hunter, and Underwood, of the words as to the Metropolitan policy), “and all other 2nd part, Hopkinson and Hunter of the 3rd part, and moneys, securities, property, and effects now vested Hopkinson of the 4th part.

solely in the said Edward Oxenford as trustee for the

said banking company,” with full power to sue for, bury, upon which the Commercial Bank had been &c., the moneys and other subjects thereby assigned, carrying on their business, and which they had lately and all the estate, &c. ; to hold the premises thereby agreed to sell to the defendants the trustees of the assigned to Hopkinson and Hunter, their executors, Imperial Bank. &c., "upon such and the same trusts, and subject to Part of this Lothbury property had been, in 1844, such and the same equities of redemption, and with demised to Barnewall, Hopkinson, Oxenford, and such and the same powers as he the said Edward Taylor for the residue of a term of twenty-one years Oxenford now holds the same, or but for the execution from Midsummer, 1844, and in 1853 it was further of these presents would have held the same."

demised to Barnewall, Hopkinson, Oxenford, Chowne, By the second witnessing part, Oxenford released Underwood and Hunter for a reversionary term of and assigned to Hopkinson in similar terms all moneys thirty-eight years from Midsummer, 1865. owing from E. M., together with all securities for The rest of the Lothbury property was, in 1853, the same, and particularly the Palladium policy, demised to Barnewall, Oxenford, Hopkinson, Under“And all other moneys, securities, property, and wood, Chowne, and Hunter, for a term of 50 years effects now vested jointly in the said Edward Oxenford from Midsummer, 1853. and Jonathan Hopkinson as trustees for the said Oxenford, who was residing in France, had raised banking company."

difficulties about joining in any assignment to the By the third witnessing part, Oxenford released and purchaser ; but he had never claimed any interest in assigned to Chowne, Hopkinson, Hunter, & Underwood, the property to be assigned. in similar terms, all moneys owing from R. together with all securities for the same, and particularly “the

Hobhouse, Q.C., and H. M. Jackson, for the plaintiff.

The Lothbury freeholds vested in Oxenford and leasehold messuages[the Notting-hill leaseholds] where

Hopkinson passed in the 2nd witnessing part, under soever situate, and other the property whatsoever comprised in the herein before recited indenture of the 27th the words “all other property vested jointly in them as day of January, 1854, and thereby assigned to, and now

trustees for the banking company.” Similarly the remaining vested in, the said Thomas Barnewall

, John the four other trustees passed under the 3rd witnessing

Lothbury leaseholds vested in Oxenford jointly with Alfred Chowne, Jonathan Hopkinson, Mark Hunter,

part. Edward Oxenford, and Joseph Underwood, or intended so to be, together with the last-mentioned indenture, matical force of these words. On the contrary, there

There was nothing to limit the literal and gramand all and every benefit and advantage thereof, and

was a recital that the bank had requested Oxenford all other moneys, securities, property and effects now

to transfer the trust-estate vested in him, 3.c., all the vested jointly in the said John Alfred Chowne,

trust-estate. Jonathan Hopkinson, Mark Hunter, Edward Oxen.

The word “property” is appropriate to describe ford, and Joseph Underwood as trustees for the said

leaseholds. banking company, or on which they have any lien.” | leaseholds in this very deed, the expression “mes

In the assignment of the Notting-hill The habendum was expressed to be subject to "rents,

suages covenants, and equities of redemption."

and other property" occurred with reference to

leaseholds. The deed contained a covenant by Oxenford against

This was a special caso, not a bill for specific perincumbrances, and a proviso that nothing therein contained should prejudice any action or suit, or causes

formance, and the defendants were, therefore, not

entitled to the benefits of the doctrine of doubtful of action or suit, accounts, reckonings, claims or

titles. In consideration of the defendants allowing demands which Oxenford had, or might thereafter have, against the Commercial Bank, or which the the question to be tried in this manner, the plaintiff

had agreed to pay the costs in any event. bank hal, or might hereafter have, against Oxenford.

The Equitable and Metropolitan policies and the Baggallay, Q.C., and Rendall, for the defendants. Notting-hill leaseholds were respectively vested in the The general worls only included property ejusden trustees of the bank, upon trusts for securing moneys generis with that specifically mentioned in the deed, due to the bank, and subject thereto in trust for the Moore v. Magrath, Cowp. 9 ; several debtors.

Rooke v. Lord Kensington, 2 K. & J. 753, 768– The Palladium policy was the absolute property of 773. the bank.

If there had been any intention that this important Since the execution of the deed of the 22nd of property, the premises upon which the business of the December, 1860, Oxenford had never been treated by bank was carried on, should be assigned by this deed, the bank as being a trustee for them, but it had lately they would never have been left to pass by mere been discovered, that besides the properties specifically general words. mentioned in that deed there were at the date of the The general recital as to “the trust estate," was deed other properties of the bank vested in Oxenford limited by the previous recitals

, and in particular by jointly with other trustees of the bank. One of these the first recitals which showed that the scope of the other properties was the leasehold premises in Loth- deed was limited to securities vested in Oxenford.

} Dillon v. Asuwis.

Although the word "property” by itself would be have recommended that they should be conveyed sufficient to pass leaseholds, the words “moneys, by two deeds. Suppose that now a second deed securities, property, and effects” would not.

were to be produced reciting the title to these leaseIn the third witnessing part, which included the holds and conveying them to different trustees, it Notting-hill leaseholds, the assignment was expressed would then be impossible to argue that the leaseholds to be subject to rents and covenants, which words did had passed under this deed. These leaseholds were not occur in the other witnessing parts, as they would not in the minds of parties at the time, and have done if there had been any intention of including although general words were inserted as usual, yet leaseholds.

they must be considered as having reference to the No conveyancer would have included leaseholds general scope and object of the deed as shown by the held under different titles in the same deed.

recitals and by the nature of the property specifically

mentioned. It was impossible to make a title to the Hobhouse, Q.C., in reply.

property through the deed. The rule restricting general words to things ejusdem generis was not applicable to the present case, where Minute. —Question answered in the negative. the property in question, though of great value in itself, was of no value to Oxenford, who might at any time have been compelled by a bill to convey the property as the bank might direct. The rule had Kindersley, V.-C. hitherto only been applied to conveyances of beneficial 13 JAN. 1864. interests in property, and the reason of the rule, the improbability that the grantor should have intended PracticeCosts-- Assignment Pendente lite. conveying other property of great value which was

A defendant may be dismissed at any stage of the not mentioned, only applied to such cases.

suit. The plaintiff did not contend that the draftsman,

A defendant to a foreclosure suit, who had assigned when settling the deed, had these particular lease- pendente lite, and offered to have the bill dismissed as holds or any leaseholds in his mind, but only that he against him, without costs up to the date of the notice of intended to pass all the property, including leaseholds, the assignment, allowed his costs subsequent to such vested in Oxenford as a trustee in the three particular

notice. manners specified in the three witnessing parts.

Even according to the rule noscitur a sociis, the This case came on upon motion for decree. A suit words, “moneys, securities, property, and effects,” for foreclosure had been instituted by the plaintiff. The included the leaseholds, the absolute property of the defendant, Holden, who was interested in the mortbank, for the third witnessing part included leaseholds, gaged premises, was made a party, and interrogatories and the second witnessing part included a policy which were filed for his examination. But, before he had put was the absolute property of the bank.

in an answer, he parted with his interest, and immeThe practice of including properties held under diately gave the plaintiff notice thereof, at the same different titles in the same deed had become much time offering to have the bill dismissed as against himmore common now that there were so many vesting self, without costs. The plaintiff, however, refused comorders made under the Trustee Act.

pliance, on the ground, that, as interrogatories had

been filed, the defendant could not properly be dis16 JAN. 1861.

missed till he had put in at least a formal answer. THE MASTER OF THE ROLLS said that notwithstanding Mr. Hobhouse's able argument, he could W. M. James, Q.C., and Eldis, for the plaintiff. not come to any other conclusion than that the lease

Batten, Bcvir, and W. Pearson, for different defenhold premises in question were not included in the

dants. property assigned by the deed. It was a well-drawn deed, and consistent with itself, but its sole object Cut'er, for the defendant Holden, applied for his obviously was to convey the securities which were costs incurred since the notice, vested in Oxenford as one of the trustees of the bank. Talbot v. Kemshcard, 4 K. & J. 93. The general recital as to the trust estate vested in him must be construed with reference to the previous KINDERSLEY, V.-C., said, that he would make a recitals as to securities. The general words in the decree for foreclosure. The only question in the case 1st and 2nd witnessing parts could not be construed concerned Mr. Holden's right to his costs subsequent as including leaseholds. In the 3rd witnessing part to notice of the assignment of his interest. The by which leaseholds were expressly assigned, special plaintiff had erred in supposing, that, there being words were introduced with reference to them. He interrogatories on the file, a defendant could not be was satisfied that if any conveyancer had received dismissed till he had answered them. Mr. Holden instructions to convey securities and also lease. had made a proper offer to the plaintiff, and must holds the absolute property of the bank, he would have his costs subsequent to the notice.

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