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 debts a policy on his life for 20007. A by his will gave C a legacy of 1000l. subject to the life interest of the testator's widow. After A's death, B became bankrupt, and A's executors, in order to prove the debt under the bankruptcy, sur rendered the policy; and on the death of the widow, they claimed to set off part of the legacy to C against so much of the debt for which he was surety as was still unpaid : Held also, that the surrender of the policy by the creditor, without the consent of the surety, did not discharge the surety: That, however, was not the contract in respect of which the promoters now claimed. The subsequent agreement was of a much more questionable nature. At the time when it was entered into those three gentlemen were unquestionably directors, and it was a material variation from the old agreement. He was therefore of opinion that, although the surrender of the first agreement formed a good consideration for the 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 that the 27. per cent. on the premiums would exceed 1007. a-year. The statute, however, contained no exception of contracts beneficial to the company. Possibly, if the agreement had been merely an agreement by those three gentlemen to take 17. per cent. upon the premiums instead of 21. per cent., it would have been valid without the sanction of a meeting of the shareholders; but this would have been upon the ground that it was a mere relinquishment, not a contract. The agreement now in question, on the other hand, was a new and distinct contract, in consideration of the surrender of the former agreement, and the shareholders might very well entertain a different opinion from the directors upon the question, whether it was beneficial to the company. It was observable, that the first agreement was limited to the duration of the company; while the second extended to the lives of the three promoters, whether the company continued or not. The result was, that the original deed of 1851 would remain in force, and that the claimants would be en. titled to 21. per cent. upon all premiums received between the 24th of March, 1857, and the transfer of the business of the company in July, 1862. Baggallay, Q. C., said, that there were certain questions upon the construction of the deed of 1851 which the official liquidator wished to raise. THE MASTER OF THE ROLLS then said, that he should merely disallow the present claim, and leave the claimants to carry in a fresh claim under the arrangement of 1851, but the order would state his opinion that the original contract was valid. The official liquidator would have his costs out of the estate; but the claimants would not have any costs. Held also (following Pearl v. Deacon, 1 De G. & J. 461), that the consideration money for the surrender of the policy was applicable wholly towards payment of the debt for which the surety was liable. Where shares of parties beneficially interested under a will have been incumbered, one set of costs is allowed in respect of each share, but without deducting the additional expense incurred by reason of the incumbrances. Greedy v. Lavender, 11 Beav. 417, not followed. This was a suit to administer the will and codicil of Benjamin Coates. The testator's nephews, John Green and William Green, were at the time of his decease indebted to him on a joint and several promissory note for 1000l., advanced to John Green, and in a large arrear of interest thereon. John Green was also indebted to the testator on another promissory note for 10007. ; and some time after giving the notes, he had deposited with the testator, as a collateral security for both debts, a policy on his life for 2000l. The testator by his will gave his wife a life interest in the whole residue of his estate, and appointed her and his sister Mary Coates his executrixes; and by a codicil dated in 1841 he gave William Green a legacy of 10007., to be paid on the decease of his widow. The testator died in 1843. John Green became bankrupt in 1845, and the executrixes of the testator proved against the bankrupt's estate for the sum of 1,5607., (being 1,5007.. for principal, and 607. for interest,) which remained due after the policy had been surrendered to the assurance office, and after 971. 10s. had been received in consideration of the surrender. And they subsequently received under the bankruptcy two dividends of 481. 15s. in respect of the balance due on the Principal and Surety — Legacy-Set off-21 | two promissory notes. A advanced to B two sums of 10001. on the security of two promissory notes for 1000l. each, in one of which At the time of the bankruptcy William Green was in Australia, and could not be communicated with respecting the surrender of the policy. The widow of the testator died in 1859, having by will released William Green from all liability to pay the interest on the joint promissory note for 1000%. It was admitted that both debts were barred by the Statute of Limitations, but the executors of Mary Coates, the surviving executrix, claimed to retain the legacy of 10007. to William Green against so much of the debt of 1000l., for which he was surety, as still remained unpaid. W. F. Robinson (Southgate, Q.C., with him), for the plaintiff; and J. Hinde Palmer, Q.C., and W. J. Bovill, for other parties in the same interest, contended : 1st. That the statute 21 Jac. 1, c. 16, was no bar to the right of the representatives of the surviving executrix to retain so much of the legacy as was necessary to satisfy the debt, Courtenay v. Williams, 3 Hare, 539; 2nd. That the release by the widow and executrix of the testatrix to William Green only extended to her life interest, and not to the capital of the debt. 3rd. That the surrender of the policy by the representatives of the creditor did not operate to release the surety. The general rule that a surety is entitled to the benefit of all the securities which the creditor has against the principal debtor, was not without exception, Purdon v. Purdon, C. P. Cooper, 617. There was no neglect of the creditor in the present case, as in Capel v. Butler, 2 Sim. & St. 457; which had been followed up to Browne v. Carr, 2 Russ. 600; s. c. 7 Bing. 508; Pearl v. Deacon (loc. cit.). In the present case there was such "active negligence" as would discharge the surety, Capel v. Butler (loc. cit.); Straton v. Rastall, 2 T. R. 366; Baggallay, Q.C., and Peake, for incumbrancers on some of the shares, took no part in the argument. Robinson, in reply, asked that the costs of the suit, so far as they had been increased by the incumbrances on the shares of the parties beneficially interested, might not be allowed. He cited, Greedy v. Lavender, 11 Beav. 417. HIS HONOUR said, that he could not ask the Taxing-Master to calculate this. His practice was to give one set of costs in respect of each share.* 14 JAN. 1864. THE MASTER OF THE ROLLS said, as to the first point, that it was settled by Courtenay v. Williams (loc. cit.) that a legacy might be set off against a debt barred by the Statute of Limitations. As to the second point, the release given by the executrix was only a release of the interest on the debt, not of the debt itself. The third point presented some difficulty. When John Green became bankrupt it was probable, if not certain, that he would not keep up the policy. It was not incumbent on the executrixes of the testator to do so, and it would in fact have been a mere specu lation on their part, which, if it had turned out unfavourably, might have been complained of by the surety. The executrixes did what it was their duty to do; they realised the security, and sold it for what it the bankrupt for the balance due on the two promiswould fetch, and then proved against the estate of sory notes. Although the collateral security were a reversion, be sold with any probability of its realising as or other property, which at the time could not much as it would afterwards produce, still it was the duty of the creditor to sell it, if, by so doing alone, he could make the estate of the principal debtor avail and this circumstance distinguished the present case able for the payment of a dividend on a debt for which from such cases as Newton v. Chorlton, 10 Hare, 646; s. c. 2 Drew. 333; Pledge v. Buss, Johns. 663; Pearl v. Deacon, 24 Beav. 186; 1 De G. & J. 461. the surety was liable. On the authority of Pearl v. Deacon (loc. cit.), his Honour held that the 977. 10s., which was the produce of a collateral security for both debts, ought to be set off against the amount due on the note to which the surety was a party. Thus as 7507. was the sum due in respect of the joint note at the date of the proof, after deducting from that sum the 487. 15s. due in respect of the dividend, and 487. 15s. in respect of the surrendered policy, 6527. 10s. would remain to be deducted from Selwyn, Q.C., and Turner, for William Green, the legacy of 10007.; and the balance, with interest at 47. per cent. per annum from six months after the There was no obligation on the creditor to pay the premiums on the policy, nor any covenant to keep it up: it was a mere deposit, and not even part of the original transaction. cited, Construction-General Words-Conveyance by Retiring Trustee. A deed contained recitals showing that the securities taken by the C bank were always vested in some of certain trustees, and that certain policies and leaseholds had been vested in O, either solely, or jointly with H, or jointly with four other trustees, as securities for moneys owing from certain debtors of the bank, and a further recital that O was to retire and transfer “. 'the trust estate vested in him." The deed contained three separate witnessing parts, adapted to the different modes in which the properties were vested in O, and by these 0 assigned the moneys owing from the several debtors and the securities for the same, and particularly the recited securities "and all other moneys, securities, property and effects vested in O as a trustee for the bank" to other trustees. It was afterwards discovered that valuable leasehold premises belonging absolutely to the bank were vested in O, as to part jointly with H, and as to the rest jointly with the four other trustees :— Held, that this property did not pass by the deed. This was a special case to determine whether certain leaseholds were included in the property assigned by a certain indenture dated the 22nd of December, 1860. The plaintiff was one of the public officers of the Commercial Bank of London. The defendants were trustees for the Imperial Bank (Limited). The Commercial Bank of London from time to time appointed trustees, in whose names the various properties belonging to the company might be legally vested. Edward Oxenford had been appointed one of such trustees in 1840. In 1855 he became embarrassed and went to reside abroad, and the Commercial Bank became desirous of having the bank property vested in him transferred to persons more under their control. In 1860 some communications took place between the Commercial Bank and Oxenford, when Oxenford agreed to formally retire from the trusteeship, and to assign all the property to the other trustees of the bank. A deed was accordingly prepared which he executed. This deed was dated the 22nd of December, 1860, and was made between Oxenford of the 1st part, Chowne, Hopkinson, Hunter, and Underwood, of the 2nd part, Hopkinson and Hunter of the 3rd part, and Hopkinson of the 4th part. The deed recited that the Commercial Bank of London was a joint-stock company, carrying on business as bankers, and that part of the business of the 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 interest, and that in all such cases the securities were vested in some of certain shareholders in the bank selected to be trustees. The deed next recited the respective appointments of Oxenford, Hopkinson, Underwood, Chowne, and Hunter, and of John Taylor and Thomas Barnewall, both then deceased, to be trustees of the bank. The deed next recited the following deeds: 1st. An assignment of a life policy effected with the Equitable Society for 1000l. to Taylor and Oxenford, as trustees for the bank, to secure moneys owing from C. B. 2nd. An assignment of a life policy, effected with the Metropolitan Life Assurance Society for 10007., to Taylor, Barnewall, and Oxenford, as trustees for the bank, to secure moneys owing from T. W. 3rd. A life policy for 30007., effected with the Palladium Life Assurance Society, in the names of Barnewall, Oxenford, and Hopkinson, as trustees for the bank, to secure moneys owing by E. M. 4th. An assignment of certain leasehold messuages at Notting-hill, to Barnewall, Chowne, Hopkinson, Hunter, Oxenford, and Underwood, for the residue of certain terms of years, and subject to certain rents and covenants as trustees for the bank to secure moneys owing from R., and further advances. The deed next contained the following recital :"And whereas the said John Oxenford is desirous of retiring from the office of trustee of the said banking company, and the directors have accepted his resignation of that office, and have requested him to transfer the trust property vested in him in manner hereinafter contained." Then followed the witnessing parts. By the first witnessing part, Oxenford bargained, sold, and assigned to Hopkinson and Hunter, their executors, &c., "all and every principal and interest and other moneys, debts, dues, and demands whatsoever payable to or receivable or capable of being made by the said Edward Oxenford, as the survivor of the said John Taylor and Edward Barnewall, by, from, or on the said C. B. and the said T. W. respectively, together with all securities whatever for the same moneys, debts, dues, and demands, or any of them or any part thereof, and particularly" all that policy, &c. [the Equitable policy], and the said sum of 10007. thereby assured, and all bonuses, &c., by the herein before recited indenture of, &c., assigned to Taylor and Oxenford, or intended so to be, and together with the said indenture. And also, &c. [similar words as to the Metropolitan policy], "and all other moneys, securities, property, and effects now vested solely in the said Edward Oxenford as trustee for the said banking company," with full power to sue for, &c., the moneys and other subjects thereby assigned, and all the estate, &c. ; to hold the premises thereby assigned to Hopkinson and Hunter, their executors, &c., "upon such and the same trusts, and subject to such and the same equities of redemption, and with such and the same powers as he the said Edward Oxenford now holds the same, or but for the execution of these presents would have held the same.' By the second witnessing part, Oxenford released and assigned to Hopkinson in similar terms all moneys owing from E. M., together with all securities for the same, and particularly the Palladium policy, “And all other moneys, securities, property, and effects now vested jointly in the said Edward Oxenford and Jonathan Hopkinson as trustees for the said banking company." By the third witnessing part, Oxenford released and assigned to Chowne, Hopkinson, Hunter, & Underwood, in similar terms, all moneys owing from R. together with all securities for the same, and particularly "the leasehold messuages [the Notting-hill leaseholds] wheresoever situate, and other the property whatsoever comprised in the hereinbefore recited indenture of the 27th day of January, 1854, and thereby assigned to, and now remaining vested in, the said Thomas Barnewall, John Alfred Chowne, Jonathan Hopkinson, Mark Hunter, Edward Oxenford, and Joseph Underwood, or intended so to be, together with the last-mentioned indenture, and all and every benefit and advantage thereof, and all other moneys, securities, property and effects now vested jointly in the said John Alfred Chowne, Jonathan Hopkinson, Mark Hunter, Edward Oxenford, and Joseph Underwood as trustees for the said banking company, or on which they have any lien." The habendum was expressed to be subject to "rents, covenants, and equities of redemption." bury, upon which the Commercial Bank had been carrying on their business, and which they had lately agreed to sell to the defendants the trustees of the Imperial Bank. Part of this Lothbury property had been, in 1844, demised to Barnewall, Hopkinson, Oxenford, and Taylor for the residue of a term of twenty-one years from Midsummer, 1844, and in 1853 it was further demised to Barnewall, Hopkinson, Oxenford, Chowne, Underwood and Hunter for a reversionary term of thirty-eight years from Midsummer, 1865. The rest of the Lothbury property was, in 1853, demised to Barnewall, Oxenford, Hopkinson, Underwood, Chowne, and Hunter, for a term of 50 years from Midsummer, 1853. Oxenford, who was residing in France, had raised difficulties about joining in any assignment to the purchaser; but he had never claimed any interest in the property to be assigned. Hobhouse, Q. C., and H. M. Jackson, for the plaintiff. The Lothbury freeholds vested in Oxenford and Hopkinson passed in the 2nd witnessing part, under the words "all other property vested jointly in them as trustees for the banking company." Similarly the the four other trustees passed under the 3rd witnessing Lothbury leaseholds vested in Oxenford jointly with part. matical force of these words. There was nothing to limit the literal and gramOn the contrary, there was a recital that the bank had requested Oxenford to transfer the trust-estate vested in him, i.e., all the trust-estate. The word "property" is appropriate to describe leaseholds. leaseholds in this very deed, the expression "mesIn the assignment of the Notting-hill suages and other property" occurred with reference to leaseholds. The deed contained a covenant by Oxenford against incumbrances, and a proviso that nothing therein con-formance, and the defendants were, therefore, not This was a special case, not a bill for specific pertained should prejudice any action or suit, or causes of action or suit, accounts, reckonings, claims or demands which Oxenford had, or might thereafter have, against the Commercial Bank, or which the bank had, or might hereafter have, against Oxenford. The Equitable and Metropolitan policies and the Notting-hill leaseholds were respectively vested in the trustees of the bank, upon trusts for securing moneys due to the bank, and subject thereto in trust for the several debtors. The Palladium policy was the absolute property of the bank. Since the execution of the deed of the 22nd of December, 1860, Oxenford had never been treated by the bank as being a trustee for them, but it had lately been discovered, that besides the properties specifically mentioned in that deed there were at the date of the deed other properties of the bank vested in Oxenford jointly with other trustees of the bank. One of these other properties was the leasehold premises in Loth entitled to the benefits of the doctrine of doubtful titles. In consideration of the defendants allowing the question to be tried in this manner, the plaintiff had agreed to pay the costs in any event. Baggallay, Q.C., and Rendall, for the defendants. The general words only included property cjusdem generis with that specifically mentioned in the deed, Moore v. Magrath, Cowp. 9; Rooke v. Lord Kensington, 2 K. & J. 753, 768— 773. If there had been any intention that this important property, the premises upon which the business of the bank was carried on, should be assigned by this deed, they would never have been left to pass by mere general words. The general recital as to "the trust estate," was limited by the previous recitals, and in particular by the first recitals which showed that the scope of the deed was limited to securities vested in Oxenford. Although the word "property" by itself would be sufficient to pass leaseholds, the words "moneys, securities, property, and effects" would not. In the third witnessing part, which included the Notting-hill leaseholds, the assignment was expressed to be subject to rents and covenants, which words did not occur in the other witnessing parts, as they would have done if there had been any intention of including leaseholds. No conveyancer would have included leaseholds held under different titles in the same deed. Hobhouse, Q.C., in reply. The rule restricting general words to things ejusdem generis was not applicable to the present case, where 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 hitherto only been applied to conveyances of beneficial interests in property, and the reason of the rule, the improbability that the grantor should have intended conveying other property of great value which was not mentioned, only applied to such cases. The plaintiff did not contend that the draftsman, when settling the deed, had these particular leaseholds or any leaseholds in his mind, but only that he intended to pass all the property, including leaseholds, vested in Oxenford as a trustee in the three particular manners specified in the three witnessing parts. Even according to the rule noscitur a sociis, the words, "moneys, securities, property, and effects," included the leaseholds, the absolute property of the bank, for the third witnessing part included leaseholds, and the second witnessing part included a policy which was the absolute property of the bank. The practice of including properties held under different titles in the same deed had become much more common now that there were so many vesting orders made under the Trustee Act. 16 JAN. 1864. THE MASTER OF THE ROLLS said that notwithstanding Mr. Hobhouse's able argument, he could not come to any other conclusion than that the leasehold premises in question were not included in the property assigned by the deed. It was a well-drawn deed, and consistent with itself, but its sole object obviously was to convey the securities which were vested in Oxenford as one of the trustees of the bank. The general recital as to the trust estate vested in him must be construed with reference to the previous recitals as to securities. The general words in the 1st and 2nd witnessing parts could not be construed as including leaseholds. In the 3rd witnessing part by which leaseholds were expressly assigned, special words were introduced with reference to them. was satisfied that if any conveyancer had received instructions to convey securities and also leaseholds the absolute property of the bank, he would He have recommended that they should be conveyed by two deeds. Suppose that now a second deed were to be produced reciting the title to these leaseholds and conveying them to different trustees, it would then be impossible to argue that the leaseholds had passed under this deed. These leaseholds were not in the minds of the parties at the time, and although general words were inserted as usual, yet they must be considered as having reference to the general scope and object of the deed as shown by the recitals and by the nature of the property specifically mentioned. It was impossible to make a title to the property through the deed. Minute.-Question answered in the negative. Practice-Costs-Assignment Pendente lite. A defendant may be dismissed at any stage of the suit. A defendant to a foreclosure suit, who had assigned pendente lite, and offered to have the bill dismissed as against him, without costs up to the date of the notice of the assignment, allowed his costs subsequent to such notice. This case came on upon motion for decree. A suit for foreclosure had been instituted by the plaintiff. The defendant, Holden, who was interested in the mortgaged premises, was made a party, and interrogatories were filed for his examination. But, before he had put in an answer, he parted with his interest, and immediately gave the plaintiff notice thereof, at the same time offering to have the bill dismissed as against himself, without costs. The plaintiff, however, refused compliance, on the ground, that, as interrogatories had been filed, the defendant could not properly be dismissed till he had put in at least a formal answer. W. M. James, Q.C., and Eddis, for the plaintiff. Batten, Bevir, and W. Pearson, for different defendants. Cutler, for the defendant Holden, applied for his costs incurred since the notice, Talbot v. Kemshead, 4 K. & J. 93. KINDERSLEY, V.-C., said, that he would make a decree for foreclosure. The only question in the case concerned Mr. Holden's right to his costs subsequent to notice of the assignment of his interest. The plaintiff had erred in supposing, that, there being interrogatories on the file, a defendant could not be Mr. Holden dismissed till he had answered them. had made a proper offer to the plaintiff, and must have his costs subsequent to the notice. |