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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-herein before 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, &c., 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.

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Mortgage-Covenant not to Sell without Notice Covenant giving Action for Damages only -Jurisdiction of Equity.

A mortgage deed contained a covenant by the mortgagees not to exercise their power of sale without giving three months' notice, followed by a proviso that no purchaser should be affected by express notice that the notice had not been given, and a declaration of intention that the covenant should operate only so as to give the mortgagor a right to an action for damages against the mortgagees:

Held, that a Court of Equity had no jurisdiction to restrain the mortgagees from exercising the power of sale without giving the required notice.

This was a motion for an injunction to restrain the defendants, who were mortgagees, from exercising their powers of sale.

By an indenture, dated the 1st of January, 1863, a hotel and other property were conveyed to the defendants, their heirs and assigns, subject to a proviso for redemption by the plaintiff on payment of 9501. and interest at 41. 15s. per cent. on the 1st of July then next ensuing.

By another indenture, also dated the 1st of January, 1863, four plots of ground were conveyed to the defendants, their heirs and assigns, subject to a proviso for redemption by the plaintiff on payment of 3501. and interest at 47. 15s. per cent. on the 1st of July then next ensuing.

On the 19th of September, 1863, the defendants gave the plaintiff notice that unless all principal money and interest owing on the first mortgage deed were paid, they would at the expiration of three months proceed to sell the property. They never gave any notice as to the property comprised in the second deed.

Both properties having been advertised to be sold on the 29th of December, 1863, the plaintiff's bill was filed on the 24th of December, and an interim order restraining the defendants from selling before the 12th of January, 1864, was obtained the same day.

The defendants subsequently told the plaintiff that they should not sell for two months, and the question as to the plaintiff's right to an injunction thus became a simple question of costs.

In addition to the omission to give notice as to the four plots of ground, the plaintiff relied upon an alleged agreement not to call in the money so long as the interest was paid.

Selwyn, Q.C., and Osborne Morgan, in support of the motion, contended that, as regarded the four plots the covenant in the mortgage deed. of ground, no notice had been given as required by

Jessel, for the defendants, contended that the very peculiar clause in the mortgage deed did not give the plaintiff any right to come into equity for an injunc tion to restrain the sale. His only remedy against the defendant was an action for damages.

THE MASTER OF THE ROLLS held that he could

not interfere to prevent the defendants from selling. As to the covenant, he said that the construction had 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.

Master of the Rolls.]

BARKER v. YOUNG.

11 DEC. 1863, 12 JAN. 1864. Will-" And"-Express and implied powersDe facto, and effectual appointment—“ As aforesaid."

Each deed also contained a covenant by the defendants with the plaintiff not to exercise the power of sale without giving three months' previous notice. This covenant was followed by the following proviso, viz., "that no purchaser or purchasers under the power of sale shall be concerned to inquire whether the notice mentioned in the clause or proviso lastly herein before A testator gave all his residuary estate to his nephew contained has been given, or be affected by express for life, and after his nephew's decease, providing his

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Held, also, that no power could be implied in addition to the express power given, and that "any such appointment as aforesaid" referred not to a de facto appointment by will but to an appointment in pursuance of the express power.

Semble, that if the nephew had had a child, and had then exercised the power in favour of a third party, and afterwards the child had predeceased the appointor, the appointment would have been void.

Francis Const by his will, dated in 1839, devised and bequeathed his residuary estate, both real and personal, to his executors, their heirs, &c., upon trust first to pay the legacies and annuities given by his will, and after payment thereof to permit his nephew, Henry Coles, to receive the rents and interest thereof for his life for his own absolute use. And the will then proceeded, "And after the decease of my said nephew, providing he shall leave any child or children him surviving, or who shall be born in due time after his decease, then I declare that my said executors shall stand possessed of my said residuary estate upon trust for such persons and for such purposes as my said nephew shall by his last will direct or appoint, give, devise, or bequeath the same; but if my said nephew shall die without leaving any child or children him surviving, or who shall be born in due time after his decease, and the said Henry Coles, my nephew, shall not previous to his decease make any such appointment, gift, or bequest as aforesaid, then I declare that my said executors shall stand and be possessed of all my said residuary estate upon trust for and to be divided between Richard Barker, Henry Young, and James Ryland, and to and for their heirs, executors, and administrators, and I hereby give and bequeath the same accordingly."

Henry Coles survived the testator and died without issue, having by his will, dated in 1861 (in which he referred to his uncle's will and the difficulty of construction involved in it) appointed, devised, and bequeathed to his trustees, their heirs, &c., the whole of his uncle's residuary estate upon the trusts therein

mentioned.

The bill was filed by three of the children of Richard Barker, one of the residuary devisees and legatees under the will of Francis Const, against the trustees of the will of Henry Coles and other parties.

The Attorney-General and J. L. Bird for the plaintiffs, and Sir H. Cairns, Q. C., Baggallay, Q. C., W. M. James, Q.C., Selwyn, Q.C., H. F. Shebbeare, Pren

dergast, Rendall, and Locock Webb for other defendants in the same interest contended,

1st. That the present was a case in which the Court would read "and" disjunctively rather than reduce one clause of a sentence altogether to silence,

Maberly v. Strode, 3 Ves. 450.

2nd. That where, as in the present case, there were two independent self-contained sentences coupled by "and," the word "and" was simply equivalent to "and also if," and the sentence might be read, "If my nephew shall die without leaving any child, and also if he shall make no such appointment as aforesaid."

3rd. "Such appointment as aforesaid," meant such appointment as the nephew was before authorised to make. The power was expressly contingent upon the donee's dying leaving a child him surviving, and did not arise unless the contingency happened.

4th. A power of appointment independent of the contingency cannot be implied;

Addison v. Busk, 14 Beav. 459;
Andree v. Ward, 1 Russ. 260;
Greene v. Ward, 1 Russ. 262;
Brown v. Higgs, 8 Ves. 561.

Sir F. Kelly, Q.C., Hobhouse, Q.C., Druce, and Earle, for the appointees and representatives of Henry Coles, referred to

Seccombe v. Edwards, 28 Beav. 440,
Dillon v. Harris, 4 Bligh (N. s.) 321,

Grey v. Pearson, 6 H. of L. Ca. 61,

as authorities to show that the Court would hold that the double contingency was contemplated by the testator.

The words "such an appointment, &c., as aforesaid," referred not to the contingency upon which, but to the manner in which the power was to be exercised—i. e. by will. It had been argued that a power could not be implied in addition to an express power given; but this could be done in the case of a gift, and why should not the rule be extended to a power?

Jordan v. Fortescue, 10 Beav. 259;
Bibin v. Walker, Amb. 661.

It was a fair inference from the terms of the will, that the testator supposed that he had given a power not dependent on the contingency of his nephew having children: and the words "If my nephew shall not previous to his decease make such appointment as aforesaid," showed that the testator contemplated the creation of a power, the de facto exercise of which would be effectual, independently of the happening of the contingency.

The Attorney-General, in reply, said that
Seccombe v. Edwards (loc. cit.)

was distinguishable on the terms of the gift; that in Dillon v. Harris (loc. cit.)

the principal stress was laid on the words "so die 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

Jordan v. Fortescue (loc. cit.) required the supposition that Mr. Const, in making his will, forgot that he had given an express power, as soon as he had written it, and then proceeded at once to give an implied power.

THE MASTER OF THE ROLLS said that he could not accede to the construction proposed by the plaintiffs of reading "and" as "or," or as "and also if," which was practically the same. He had considered the matter in the case of Seccombe v. Edwards (loc. cit.), and he retained the opinion which he then expressed that the testator contemplated a double contingency; and the question then arose, whether both the events had occurred. Here the nephew had undoubtedly died without leaving a child; had he also died without making the appointment mentioned in the uncle's will? It had been argued with much ingenuity by Mr. Hobhouse, that the construction of the will must be the same whether the nephew had not had any child, or had had a child who did not survive him, and that if the nephew had made his will while he had a child still alive, that would have been a good execution of the power, and if so, then that the circumstance of the pre-decease of the child would not have destroyed the execution of the power which was previously valid. In other words, it was contended that the appointment spoken of in the uncle's will was an appointment de facto, not an appointment which became effectual by reason of a child having

survived the father.

But in His Honour's opinion there was an error in that reasoning, for a power of appointment, which could be exercised only by will, did not take effect de facto until the death of the donee of the power. The instrument purporting to execute the power was, in fact, no execution of the power until it was a will, and it was no will until the donee of the power died.

Accordingly, the real question was, not, whether an appointment had been made, or rather, whether an instrument purporting and intended to exercise the power had been executed, but whether the power itself arose and could have been exercised by the nephew, and His Honour thought that the power did not arise until the death of the nephew leaving a child, and that that was the event which called the power into existence. It was true that the power was to be executed by anticipation, as, indeed, all powers to be executed by the will of the donee must necessarily be. But it was a conditional power to arise and to take effect only " provided the nephew left a child him surviving." His Honour could not strike those words out of the will or convert a conditional into an unconditional power. The condition imposed by the uncle was not fulfilled, and, consequently, the nephew had no power vested in him at his decease,

gift over took effect, and the plaintiffs were entitled to a declaration accordingly.

Master of the Rolls.

}

JONES v. BINNS

12, 13 JAN. 1864. Practice-Plea-Bankruptcy-12 & 13 Vict. c. 106, s. 145-24 & 25 Vict. c. 134, s. 117.

Three days after being served with a bill by a mortgagee of leaseholds, praying for an account and a sale of the property, a defendant filed a declaration of in ability to meet his engagements, and after the appoint ment of the creditors' assignee pleaded bankruptcy in bar of the relief and discovery sought by the plaintiff :Plea allowed, but with liberty to amend, and without costs.

The bill in this suit was filed on the 17th of November, 1863, and interrogatories served on the 28th of that month. The bill prayed that an account might be taken of what was due to the plaintiffs for principal and interest on a mortgage of leaseholds, and that in default the premises comprised in the that the defendants might be ordered to pay the same, mortgage might be sold. The plaintiffs also sought discovery as to other incumbrances on the premises in question. On the 20th of November the defendants signed a declaration that they were unable to meet creditors' assignee was appointed, and on the 22nd of their engagements. On the 15th of December the December the defendants filed a plea of bankruptcy in bar to the whole of the discovery and relief sought by

the bill.

The plea did not allege that the creditors' assignee had elected to take the mortgaged premises.

R. S. Tripp, in support of the plea, cited,
Lane v. Smith, 14 Beav. 49.

And contended that the real object of the bill was to obtain discovery, but that no discovery could be obtained from a bankrupt without a charge of fraud; here no such charge had been made.

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

cited

12 & 13 Vict. c. 106, s. 145.

The plea was deficient on the face of it, as it ought to have contained an averment that the creditors' assignee had elected to take the leaseholds,

Copeland v. Stephens, 1 Barn. & Ald. 593. That case was decided under 49 Geo. 3, c. 121, s. 19, the words of which were in effect the same as those of the 145th section of the Bankrupt Law Consolidation Act, 1849. They also referred to

Manning v. Flight, 3 Barn. & Ad. 211,
24 & 25 Vict. c. 134, s. 117.
Tripp, in reply, cited contrà,
Cartwright v. Glover, 2 Giff. 620.

THE MASTER OF THE ROLLS said that either the assignee or the bankrupt must be liable to make an assignment to the plaintiffs. He thought, however, that the bankruptcy was a bar to the suit, and he must allow the plea, with leave to amend, and without costs.

Master of the Rolls. 15 DEC. 1863.

14 JAN. 1864.

and made between the three promoters of the one part, and Joseph Deacon and John Teulon, the provisional trustees of the company, of the other part; after reciting (amongst other things), that Deacon and Teulon, as such trustees, had contracted with the three promoters for the purchase of the leasehold premises and the treatise for 7501., to be paid to them by the comRe WATERLOO, &c., As-pany upon the complete registration thereof, and that SURANCE COMPANY. it had also been agreed that the company should PAUL AND BERESFORD'S pay the promoters respectively, during their lives, CASE. if the company should so long continue, 27. per cent. commission upon all premiums received by the company in respect of life policies effected therewith; the promoters, for the considerations thereinbefore mentioned, assigned to the trustees on behalf of the company all their right, title, and interest in the premises No. 355, Strand, and in the treatise.

Company-Contract with Promoter-Contract with Director-7 & 8 Vict. c. 110, s. 29. Section 29 of 7 & 8 Vict. c. 110 only applies to contracts between a company completely registered and any of the directors, and not to contracts between a company provisionally registered and any of its pro

moters.

Three promoters of a provisionally registered assurance company sold certain leasehold premises, held at a rackrent, and a treatise on life assurance, to the company, in consideration of 7501. and commissions of 21. per cent. on all premiums. These promoters were named as directors in the deed of settlement executed a fortnight afterwards:

Held, that this transaction was binding upon the company, although it had never been confirmed at a general meeting of shareholders, pursuant to the 7 & 8 Vict. c. 110, s. 29.

The three promoters afterwards, when directors, agreed to give up their commission, which was payable during their lives, if the company should so long continue, on having life annuities of 2001., 1007., and 1001. respectively secured to them :

Held, that this second agreement, not having been

submitted to a meeting of shareholders, was invalid.

The Waterloo Life, Education, Casualty, and SelfRelief Assurance Company was formed under the 7 & 8 Vict. c. 110. It was provisionally registered on the 4th of February, 1851, the claimants, Edwin Paul and William Beresford, together with one Edward Baylis, since deceased, being the promoters.

The company was formed to carry out certain principles relative to life assurance, described in a book entitled "A Treatise on the New Application of the Principles of Life Assurance," of which Baylis, Paul, and Beresford were the proprietors, and which had been registered under the Copyright Act (5 & 6 Vict. c. 45).

The 7507. was paid to the promoters in shares of the company, with 5s. credited thereon, about the 24th of November, 1851.

It had been originally intended that the arrangement effected by the deed of the 27th of October, 1851, should be included in the deed of settlement of the company, and it appeared from the minute-book of the directors, under the date of the 16th of September, 1851, after the provisional, but before the complete registration of the company, that at a so-called board-meeting, at which the three promoters, and four other persons, who were also afterwards appointed directors of the company, were present, the board approved of a clause to be inserted in the settlement, with reference to the claims of the promoters. This clause was, however, not inserted, the reason for its non-insertion, according to a statement made at the bar, being, that it would have been objected to by the Registrar of Joint-Stock Companies.

By the deed of settlement dated the 10th of November, 1851, the three promoters were appointed three of the directors of the company.

At a meeting of the directors held on the 22nd of December, 1851, at which the three promoters and five other directors were present, it was resolved that the deed of the 27th of October, 1851, should be confirmed, and that the terms thereof should be carried out by the company.

The commission of 21. per cent. was accordingly paid out of the funds of the company to each of the three promoters until September, 1856, at which time it amounted to 1757. a year, and was increasing.

In March, 1857, it was arranged between the three promoters and the other directors that, in consideration of the promoters releasing all claims which they had, or might have against the company, the company should secure the following life annuities to the three promoters, -to Baylis 2001. a-year, and to Paul and Beresford 1007. a-year apiece. This arrangement was embodied in two letters, both dated the 24th of 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.

The three promoters had also entered into an agreement for a lease of certain premises at No. 355, Strand, upon which it was intended that the business of the company should be carried on, for thirty-five years, at a rent of 2301. This agreement had been made on the 2nd of September, 1851, and there was no premium paid.

These annuities were paid down to November, 1860. Neither the deed of the 27th of October, 1851, nor the arrangement of the 24th of March, 1857, was ever submitted to any general meeting of the shareholders, and though the payments of the 27. per cent. commission, and of the annuities, were included in the accounts annually submitted to the shareholders at the general meetings, it was not in such a manner as to call attention to them as distinct from ordinary commissions or annuities.

Baylis continued a director until his death in 1861, and Paul and Beresford continued such as long as the company carried on their business.

In July, 1862, the business of the company was sold with the sanction of two extraordinary general meetings, upon terms which left the company to collect its own assets, and provide for its own liabilities.

On the 6th of December, 1862, the affairs of the company were ordered to be wound up under the Companies Act, 1862.

In the winding-up proceedings Paul and Beresford took out a summons claiming to prove for the arrears of their respective annuities, and for the value thereof, and these claims having been allowed by the Chief Clerk, the summons was adjourned into Court to be argued upon an agreed statement of facts.

Selwyn, Q.C., and W. W. Cooper, for the claimants, contended :

1st. That the arrangement of October, 1851, was binding upon the company.

The validity of a deed, an exact copy of that of the 27th of October, 1851, and executed under similar circumstances, was upheld in,

Burt v. British Nation Life Assurance Association (V.-C. S.), 5 Jur. (N. s.) 555; affirmed on other grounds, 4 De G. & J. 158.

The company having had the benefit of the book on Life Assurance, and of the leasehold premises, could not now repudiate the arrangement.

The 23rd section of the 7 & 8 Vict. c. 110, made valid all contracts entered into by the promoters conditionally upon the complete registration of the com

pany.

2nd. That if the validity of the arrangement of 1851, was established, it followed that the agreement of 1857 was also binding upon the company.

The release by the three promoters of their rights under the arrangement of 1851, was a good consideration for the agreement of 1857, which, in fact, could not be otherwise than beneficial to the company. The 29th section of the 7 & 8 Vict. c. 110, did not apply to grants of annuities to directors.

the 29th section of the 7 & 8 Vict. c. 110, as a contract between the company and certain of the directors,

Ernest v. Nicholls, 6 H. of L. Ca. 401. The exception only related to annuities granted in the ordinary course of business.

[The Master of the Rolls concurred in this view.] 2nd. That the arrangement of 1851 was also void. The company really received no consideration. The leasehold premises assigned were held at a rack-rent, fixed less than two months before. The result showed the value of the new principles of Life Assurance contained in the treatise, and even if the contents of the treatise had had any value, the copyright could not have been of any use to the company.

If the arrangement of 1851 had been entered into after the three promoters became directors, it would have been void under the 7 & 8 Vict. c. 110, s. 29, and it was clear,

7 & 8 Vict. 110, s. 23,

The Leominster Canal and Navigation Company v. The Shrewsbury and Hereford Railway Company, 3 K. & J. 654,

that the promoters of a company had no power to do anything before registration that the directors could not do afterwards.

Selwyn, Q.C., in reply.

A considerable sum had been realised by the sale of the leaseholds for the residue of the term.

The 29th section, imposing a personal disqualification upon directors, could not be extended to persons who merely became directors afterwards.

14 JAN. 1864.

THE MASTER OF THE ROLLS said, with reference to the arrangement of 1851, that the official liquidator insisted that it was void, 1st, for want of a sufficient consideration, and, 2nd, under the 29th section of the 7 & 8 Vict. c. 110.

As to the first ground, he was of opinion that, even assuming the treatise to have been of no value, and the lease to have been at a rack-rent, there was a sufficient consideration for the arrangement.

The question as to the effect of the 29th section was one of greater difficulty; but, as it was a disabling enactment, it must be construed strictly, and although the claimants became directors a fortnight afterwards, they did not hold that office at the time of the execu tion of the deed. In the absence of any collusion for the purpose of evading the statute, he considered such a contract valid. He was of opinion that the owner of a mine or a brewery might validly sell the concern to a joint-stock company, notwithstanding that he was one of the promoters of the company, and that 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,

3rd. If the agreement of 1857 were held invalid, the claimants would be entitled to fall back upon the arrangement of 1851.

1st. That the agreement of 1857 was void under &c., Association (loc. cit.), was an authority for holding

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