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C. T. Simpson, in reply.

KNIGHT BRUCE, L.J., said, that the widow, having paid the testator's debts out of her own pocket, became entitled to stand in the place of the creditors; and the executor afterwards acting with perfect honesty, and without notice of any superior debt, allowed her to recoup herself out of the furniture, which had been duly valued. In the absence of fraud, there was no room for the argument founded on the suggestion of the widow being executrix de son tort. There was nothing exceptional in the present case; and the payments in question ought to be allowed.

TURNER, L.J., said, that he was inclined to think that it would require something like fraud to vitiate

two improved leasehold ground-rents, created by two several indentures of lease, the one comprising premises situate in the parish of Shoreditch, in streets running out of or fronting the Queen's Road, aforesaid; and the other, comprising premises situate in the parish of Hackney, which adjoins the parish of Shoreditch. None of the premises comprised in these leases were situate in the ward of Dalston, but at a distance of about a quarter of a mile from it.

The will contained dispositions (nominatim) of several other leasehold houses belonging to the tes tator, but no further reference to his ground-rents in the parishes of Hackney and Shoreditch. The plaintiff, James Tann, and one of the defendants, were appointed

executors.

The question for the Court was, whether or not the

the description of "the two improved ground-rents in the Queen's Road, Dalston."

Cottrell, for the plaintiff, James Tann.

1st. There is a latent ambiguity, and extrinsic evidence is admissible to explain the mistake,

the payment by an executor of a simple contract debt, ground-rents in Hackney and Shoreditch passed under without notice of a specialty debt. In this case, at all events, the executor could not be charged with unreasonable haste, ten months having elapsed before he adopted the payment of the simple contract debts. The fact that the widow paid them immediately after the testator's death, was immaterial, as she stood in the place of the creditors. Considering the delay necessarily incurred in obtaining the will from Ceylon, the executor could not be expected to defray the payment of debts until he could obtain probate in England. The certificate must be varied, by allowing the payment of the simple contract debts. Costs of all parties out of the estate.

Master of the Rolls.

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TANN v. TANN.

3 JUNE, 2 JULY, 1863. Will-Falsa descriptio-Latent AmbiguityExtrinsic Evidence.

A devise of "two improved ground-rents in the Queen's Road, Dalston." The testator had no such ground-rents, but owned one ground-rent issuing in respect of houses in the immediate neighbourhood of the Queen's Road, in the parish of H; and another issuing in respect of houses in the parish of S, not in the immediate neighbourhood of the Queen's Road. The houses in H and S were about a quarter of a mile out of Dalston:

Selwood v. Mildmay, 3 Ves. 306.

2nd. The Hackney and Shoreditch ground-rents passed to plaintiff, notwithstanding the false descrip

tion,

Doe d. Humphreys v. Roberts, 5 B. & Ald. 407;
Hart v. Tulk, 2 De G. M. & G. 300.

W. Morris, for the defendants (the co-executor and the residuary legatees), contrà on the second point. He cited, on the question of proximity,

Doe d. Dell v. Pigott, 7 Taunt. 552.

2 JULY, 1863.

The case having stood over for the purpose of procuring a plan of the property, it was mentioned again this day, when

THE MASTER OF THE ROLLS said, he was of opinion that the ground-rents in Shoreditch and Hackney passed to the plaintiff. The bequest was of "two improved ground-rents in the Queen's Road, Dalston." Literally and in fact the testator had no ground-rents in the Queen's Road, Dalston, but he had four houses in a street which was a continuation of the Queen's Road, in the parish of Shoreditch. If the testator

Held, that the ground-rents in H and S passed under had simply given his ground-rents in the Queen's the above description.

Special Case. Edward Tann, by his will, dated 19th of September, 1859, gave and devised to the plaintiff, James Tann, certain freehold houses, "situate in Hope Street, Hackney Road, in the parish of Bethnal Green, in the county of Middlesex, likewise the two improved ground-rents in the Queen's Road,

Dalston."

The testator had no ground-rents in the Queen's Road, Dalston, properly so called, but he was at the time of making his will, and of his death, possessed of

Road, Dalston, without saying how many, his Honour would have held that only the ground-rents of these four houses passed. But the testator used the word "two." This must point to two particular demises. It must mean ground-rents to which he was entitled in respect of two sets of houses comprised in two separate leases. These ground-rents were to be found in or in the neighbourhood of, the Queen's Road, Dalston, and included the ground-rents issuing in respect of the houses situate in Hackney, as well as those in Shoreditch. If both these ground-rents were

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Practice-Payment of Money out of CourtDisentailing Deed.

Where a sum in Court, representing the proceeds of an entailed estate, exceeded 2007., the Court refused to allow it to be paid out without a disentailing deed.

In this case a sum of 9647. was in Court, to which two tenants in tail, by the custom of gavel-kind, were entitled this was a petition for the payment out of Court of the 9647., and the Court was asked to dispense with a disentailing deed.

G. Lushington, for the petitioner, cited,

Re South Eastern Railway Company, 9 W. R. 404;

Sowry v. Sowry, 6 Jur. (N. s.) 890.

KINDERSLEY, V.-C., said, it was only in the case of small sums that a disentailing deed could be dispensed with. It would be unsafe and unsound to dispense with it in dealing with sums over 2001.

Stuart, V.-C. 25 JUNE, 1863.

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REED V. DOM PEDRO NORTH DEL REY GOLD COMPANY (Limited).

Bacon, Q.C. (Archibald Smith, with him), for the defendants, moved, that it might be referred to the Judge in Chambers to inquire, if the plaintiff could make a good title and when it was first shown that such title could be made, and that the reference should be without prejudice to any question in the cause:—

1st. It will be argued, that a reference will not be directed where a substantial question will still remain to be disposed of at the hearing. But

Foxlowe v. Amcoats, 3 Beav. 496,

is an authority to the contrary. See, also, Sug. V. & P. (3rd ed.)

2nd. There may be a reference at the defendant's instance,

Moss v. Matthews, 3 Ves. 279.

Malins, Q.C., and Fry, for the plaintiff, were not called on.

STUART, V.-C., after stating the facts as above set forth, said that the defendants, having thus two grounds of defence, desired a reference as to title, without waiving their other objection. Such a motion was contrary to the practice of the Court. In Witley v. Cottle (1 Sim. & Stu. 174), there was a motion for a reference on bill and answer. The motion was supported on the ground that there was no substantial defence other than the defect of title and on the authority of Lord Eldon's decision in Boehm v. Wood (1 Jac. & W. 419), and was resisted on the authority, Blythe v. Elmherst (1 Ves. & B. 1) and the other cases cited by Lord St. Leonards (V. & P. 352, n. z, 3rd ed.).

Sir J. Leach, feeling embarrassed by these conflicting decisions, desired that the motion should be made before the Lord Chancellor. It was so made, and is reported in Turn. & R. 78.

There Lord Eldon, after laying it down that the Practice-Specific Performance-Reference as Court would look into the answer to see that the other

to Title.

It is not the practice of the Court in a suit for specific performance to direct a reference as to title on motion, where any other substantial ground of defence would

still remain.

A motion by the defendant for reference as to title "without prejudice to any question in the cause,” refused with costs.

This was a suit for the specific performance of a contract for the sale, by the plaintiff to the defendants, of some mining property in Brazil. The defendants resisted performance on two grounds-1st, That the plaintiff could not make a good title; 2nd, That, even if he now could, he had failed to do so in due time; and that, under the circumstances of the present case, time was from the first, or at all events had eventually become, of the essence of the contract. To this the plaintiff, by amendment, replied, that any delay in the performance was occasioned by the wrongful acts of the defendants.

grounds of defence were not frivolous, said that he would do so in that case. He did so, and on a sub

sequent day said, "The objection which has been made to this motion is, that this is not a case in which the defendant puts the matter upon the question of title merely, but insists that time was of the essence of the contract, and that if a good title can now be made he is not bound to take it. . . . It seems to me that the short way of disposing of this case will be to set the cause down upon bill and answer, and discuss the point whether the nature of the property does make time of the essence of the contract."

Thus Lord Eldon evaded the difficulty which his decisions had created.

The rule of the Court, however, remained unaltered, that unless the other grounds of defence were manifestly frivolous, it was not the practice of the Court, on the application of either party, to make a reference on motion.

But it was said that Lord Langdale decided the contrary in Foxlowe v. Amcoats. But there no one of

the cases above mentioned was cited in behalf of the motion, and the only authority referred to was the 5th General Order of the 9th of May, 39 (Cons. Order, 20). The words, "without prejudice to any question in the cause," were taken from that Order. His Honour, therefore, had no doubt that it was by reference to it that Lord Langdale decided, and not upon the general principle. In the present case it is plain that the title might eventually turn out to be of no importance. It was not, therefore, a case for a reference on motion. The motion, however, was well intended, and he should refuse it without costs.

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STUART, V.-C., said, that the motion must be refused, inasmuch as this case was entirely within the mischief pointed out by Turner, L.J., in Halliday v. Temple. The books of account in the plaintiff's possession were essential parts of his evidence; and, the object of the suit being to impugn their accuracy, if he were to allow the defendant to have these accounts before him while framing his answer, he might be able to frustrate the intention of the plaintiff. The motion must be refused with costs.

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Practice-Partition-Commissioners.

The usual and proper course in a summons to have commissioners appointed for a partition, where the parties cannot agree, is for each side to name a certain number (generally two), and for a portion of these to be struck out by the opposite side, and, if necessary, in order to secure an uneven number, for one commissioner to be appointed by the Court.

This was a motion to discharge an order made in Chambers to have commissioners appointed for a partition. The plaintiff applied to have the commissioners

This was a motion by the defendant, asking that he might be allowed, for putting in his answer, a month from the time when certain accounts and docu-appointed by each side. The defendant asked that ments in the possession of the plaintiff had been produced for inspection. The suit was instituted

by the plaintiff against the defendant, who had been his agent and collector of rents, for the purpose of obtaining true accounts; and the bill alleged that certain accounts, which were particularly described, and which had been rendered by the defendant, were not accurate accounts. The defendant now asked that he might be allowed a month to put in his answer after the plaintiff should have produced these accounts, and he should have been allowed to inspect and copy

them.

Bacon, Q.C., and W. Foster, for the defendant, argued that it would be in accordance with practice and justice that the defendant in putting in his answer should be enabled to put in a full and sufficient answer, and that when it appeared from the bill itself that this would be impossible without the production of documents in the plaintiff's possession, the defendant had a right to require such documents to be produced for his inspection, and to take copies of them. They referred to

four should be appointed by each side, liberty being given to each of the opposite sides to strike out two.

Malins, Q.C., Greene, Q.C., Freeling, and Osborne Morgan, appeared for the various parties.

STUART, V.-C., said, that the usual and proper course was for each party to appoint two commissioners, one of these to be struck out, and, in order to secure an uneven number, for the Judge in Chambers, if necessary, to appoint a commissioner. Here, he should allow the plaintiff to nominate four commissioners, and the defendant four, two of each four to be struck out, and he should himself nominate a fifth.

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Where a person, having contracted to sell or lease an estate, dies leaving a will, which renders the institu Princess of Wales v. Lord Liverpool, 1 Swans. 114; tion of a suit for specific performance necessary, his

Shepherd v. Morris, 1 Beav. 175;

Taylor v. Hemming, 4 Beav. 235;

Jones v. Lewis, 2 S. & S. 242 (but see 4 Sim. 324);

Bate v. Bate, 7 Beav. 528;

Halliday v. Temple, 8 De G. M. & G. 96.

estate must bear the costs :

Secus, if he dies intestate.

Thomas Chadwick, being entitled to an estate in fee simple in a house in Throgmorton Street (subject to a life estate in George Thorn), covenanted to grant a Malins, Q.C., and Nalder, for the plaintiff, were not lease thereof to the plaintiff, to commence at Thorn's

called upon.

death.

After having entered into this covenant he made his will, under which the house in question was settled on the defendant Sarah Chadwick for life, with remainder to his children, some of whom were infants, and one resident in Australia. Sarah Chadwick was the sole executrix of the will.

and South Coast Railway Company, and two of its directors.

The first-named company were incorporated by an Act of Parliament, passed in 1861; and were thereby authorised to construct a line of railway from Tunbridge Wells to Uckfield. In December, 1862, the

Thorn being now dead, the plaintiff filed his bill for company applied to Mr. G. H. Bovill, an engineer, to specific performance.

No resistance was offered to the relief prayed; but the defendants contended that there should be no costs on either side.

Williams, for the plaintiff.

make arrangements with Messrs. Peto & Betts, to construct the line, in accordance with plans and sections supplied by him; and on the 2nd of February, 1863, the defendants, Cary, Fox, and Jameson, as directors of the company, signed and sent to Bovill, a letter in

The suit is rendered necessary by the plaintiff's will, the following terms :-and his assets ought to bear the costs.

Sheffield, for the defendants.

"We hereby authorise you to agree with Messrs. Peto & Betts, on our behalf, to execute the works of our railway, in accordance with the plans and sections

The suit is rendered necessary by the act of God, supplied to them by you, for the sum of 215,000l.,

and each party should bear his own costs,

Hanson v. Lake, 2 Y. & C. 328;

Hinder v. Streeten, 10 Hare, 18;
Scott v. Scott, 11 W. R. 766.

STUART, V.-C., said, that the principle applicable to cases of this nature was correctly laid down in Hinder v. Streeten (loc. cit.). The estate of a vendor

party bore his own costs.

or covenantor was not to be visited with costs for an act over which he had no control. If a suit was rendered necessary by the vendor having died intestate, and his estate having descended on an infant, each But that rule had no application in the present case. Here a man entered into a covenant, binding his assets, and then died, having made a will inconsistent with its performance. That was an act over which he had control, and his estate must bear the expense that it occasioned.

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Specific Performance-Negative Injunction
Contract to make a Railway.

Where a contract does not contain an express negative covenant, the Court will not interfere by injunction to prevent one of the parties acting contrary to the contract, unless the contract be such that the Court can do justice on both sides.

Therefore, the Court refused to restrain a railway company from dealing with shares which were to be the remuneration of the persons who had contracted to make the line.

The plaintiffs in this suit were Messrs. Peto & Betts, contractors; the defendants were, the Brighton, Uckfield, and Tunbridge Wells Railway Company, J. Cary, H. H. Fox, and R. O'Brien Jameson, the directors of that company; the London, Brighton,

payable by 65,000l. in debentures, bearing five per cent. interest, and the balance in shares of the company taken at par, the payments to be made in the usual way as the works progress."

On the 23rd of February, an agreement in writing was signed by Bovill, on behalf of the company, and by the plaintiff Betts, on behalf of Messrs. Peto & Betts, whereby the last-mentioned firm agreed "to make the Tunbridge Wells and Uckfield Railway Works, in accordance with the plans and sections supplied to them, for the sum of 215,000l., terms of payment and all other conditions as stipulated in the directors' letter of authority." On the same day Bovill informed the directors, by letter, that the contract had been concluded; and also attended a meeting

of the directors, when the terms of the contract were discussed, and the matter was treated as settled.

During the negotiations with Messrs. Peto & Betts, the directors were endeavouring to effect an arrangement for the sale and transfer of their line to the London, Brighton, and South Coast Railway Company. Accordingly, an agreement was entered into about the 23rd of February, though it was not formally concluded till the 18th of March, whereby the London, Brighton, and South Coast Railway Company were to obtain the sole control and management of the Brighton, Uckfield, and Tunbridge Wells Railway, and the privilege of constructing the same; and the whole of the debentures, and three-fourths of the shares of the latter company, were to be disposed of to nominees of the London, Brighton, and South Coast Company.

In consequence of this agreement the contract with the plaintiffs was repudiated by the company in a letter written by the secretary to Bovill on the 25th

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was valid and binding on the Brighton, Uckfield, and Tunbridge Wells Railway Company, and that the last-named company, and the directors thereof, might be decreed specifically to perform the same, the plaintiffs being willing on their part to perform the same; that the same company might be restrained by injunction from permitting the London, Brighton, and South Coast Railway Company, or any person or persons other than the plaintiffs, to construct the railway and works mentioned in the contract, and that they and the London, Brighton, and South Coast Railway Company might be restrained from dealing with the 215,0007. shares and debentures agreed to be applied in payment for the construction of the railway and works under the contract, and from entering into an agreement, or doing or causing to be done anything whereby the line of railway and works might be constructed otherwise than in accordance with the Act of 1861, or whereby the plaintiffs might be prevented or hindered from performing and having the full benefit of their contract.

Messrs. Peto & Betts had incurred some expense in going over the proposed line with the plans furnished to them; but had not actually executed any portion of the works.

return for the performance of certain acts. Unless the Court can undertake the superintendence of such acts (which it manifestly cannot in the present case), it will not grant an injunction.

In considering whether the jurisdiction ought to be exercised, the present case must be treated as if the company were plaintiffs,

Ogden v. Fossick, 1 N. R. 143;
Farebrother v. Arkell (unreported);
Stocker v. Wedderburn, 3 K. & J. 393 ;
South Wales Railway Company v. Wythes, 1
K. & J. 186; s. c. on appeal, 5 De G. M.
& G. 880;

Pickering v. Bishop of Ely, 2 Y. & C. 249;
Johnson v. Shrewsbury and Birmingham Railway
Company, 3 De G. M. & G. 914;

Horne v. London and North Western Railway
Company, 10 W. R. 170.

He pointed out that, in event of the failure of the plaintiffs to perform their part of the contract, the defendants would be unable to obtain any compensation for the depreciation in value of the shares which it was sought to tie up.

2nd. The contract is too uncertain to be enforced; though plans have been supplied by Bovill, they are

The case now came on, on a motion for an injunction only such as are deposited for Parliamentary purposes, in the terms prayed for by the bill.

Evidence was gone into at considerable length on the part of the defendants with the view of showing that Bovill's authority, as given by the letter of the 2nd of February, had been revoked by parol on the same day; and that, in the subsequent transactions, including those of the 23rd of February, he had acted as the agent of the plaintiffs, and not of the Uckfield Company. His Honour was, however, of opinion, that so far from this case being made out, it was clear that the Uckfield Company had been guilty of a gross breach of faith towards the plaintiffs.

The arguments of Counsel were mainly directed to the question, whether the contract was of such a nature, that the Court could give the relief sought by the motion.

Giffard, Q. C., and Druce, for the plaintiffs.

1st. This is a contract to execute works for remune

ration, not in money, but in shares. The Court will decree specific performance of a contract for a sale of shares,

Duncuft v. Albrecht, 12 Sim. 189.

2nd. This is not the case of the company seeking to enforce specific performance against the contractor, but of the contractor seeking to prevent the company from parting with specific chattels which are to form his remuneration. And the contractor, under the cir

not working plans: the payments are also stipulated to be made "in the usual way," which was considered objectionable in

Ogden v. Fossick, loc. cit.

3rd. The shares are all gone: under the agreement with the Brighton Company they have been disposed of to the public.

Speed, and F. Waller, on the same side.

1st. The directors could not grant such an authority as that contained in the letter of the 2nd of February: and the contract is, therefore, not binding on the company,

Kirk v. Bromley Union, 2 Ph. 640;

Jackson v. North Wales Railway Company, 6
Rail, Ca. 112.

2nd. This contract contains none of the usual provisions relating to the superintendence of the works; and the directors would be liable, if anything went wrong, for a breach of trust in entering into such a contract. The Court will not compel specific per formance of a contract which might lead to a breach

of trust,

Shrewsbury and Birmingham Railway Company v. North Western Railway Company, 6 H. of L. Ca. 113.

3rd. The contract is one which the Court will not

cumstances, is entitled to an injunction on the prin- specifically enforce, by reason of the want of mutuality,

ciples laid down in

Lumley v. Wagner, 1 De G. M. & G. 604;

De Mattos v. Gibson, 4 De G. & J. 276.

Sir H. Cairns, Q.C., for the Uckfield company.

1st. The plaintiffs are to receive certain chattels in

South Wales Railway Company v. Wythes, loc. cit.; Jackson v. North Wales Railway Company, loc. cit. ; Heathcote v. North Staffordshire Railway Com pany, 2 Mac. & G. 100;

Dietrichsen v. Cabburn, 2 Ph. 52.

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