Jan. 14, 1865. vessel, to the extent of assuring the plaintiffs that they should have the benefit of the contract. In that state of the circumstances (and I have taken them from the admissions of both sides, founding my conclusions merely upon what the circumstances themselves abundantly prove), it is impossible to deny that the contract-made, as I take it to have been, between the plaintiff and Luccock, in the expectation that Luccock would become the owner-was a contract afterwards accepted, ratified, and confirmed by Roberts, and Roberts is as much bound by it as if Roberts's name had been written in the charterparty instead of the name of Luccock. If that be so, the material point in the case is determined, and determined in a manner which, I think, the parties will find proceeds upon a view of the facts of the case, which it is impossible to contradict as not being the correct view. We then come to the question, whether this transaction, admitting it to have that legal character which I have ascribed to it, still admits of being overreached, controlled, and set aside by the authority of the mortgagees? Now, Mr. Baily was desirous of introducing the case of the mortgagees by a statement, that the ship, anterior to this charterparty, was already a ship destined for sale, and not, therefore, at liberty to be let. But upon an examination of that, it turns out that there was no agreement whatever between the mortgagor and mortgagees, that the ship should be sold, and should not be chartered. All that does come out is the simple fact, that the mortgagor was desirous of selling her, and had one intention to that effect, which having been carried into operation by the agreement with Luccock, the mortgagor, finding it necessary, for the purposes of the purchaser, that the purchaser should be at liberty at once to charter the ship, accedes to that being done; and he was under no contract or agreement with the mortgagee other than that contained in the mortgage, that deprived him, by virtue of any agreement, of the right so to deal with his vessel, unless, indeed, there be in the mortgage, by virtue of the clauses in the statute, a power in the mortgagee ad libitum at any time to arrest everything that has been done by the mortgagor, and to take possession of the ship, stripping her entirely of any contract of any engagement to which she had been previously subjected by the mortgagor. Now, the inconvenience of such a construction of the statute is palpable. The injustice of such a construction of the statute is also palpable. First, the inconvenience. No mortgagor could deal with his vessel in the ordinary way. Every operation would be incumbered by the necessity of resorting to the mortgagee for his concurrence or approbation. The circumstance of the mortgage, the position of the mortgagor, and the examination of the contract-all these things would, of necessity, cause infinite difficulty, delay, expense, and inconvenience in the transaction of ordinary mercantile business. I could not possibly attribute to the Legislature, in passing this statute, anything like an intention to introduce a different course of dealing from that which hitherto had always been adopted. But the true history of this enactment, no doubt, is that which was adverted to by Mr. Osler and by Mr. Robinson. Antecedently, by reason of the earlier statates, the mortgagee, the moment a mortgage was made and registered, became, in the eye of the law, the owner of the property, and the result was, that the law was in the habit of regarding the mortgagor as standing in the capacity of quasi agent to the mortgagee; and the mortgagee frequently found himself bound either by the contracts of the mortgagor, or, at all events, by the necessary expenditure and outgoings of the vessel. That was a very serious injury and inconvenience to mortgagees, and it interposed con | siderable difficulty in the way of mortgagors getting money upon this species of security. Then the Legislature interposed by declaring a general principle. That principle in its declaration exactly fitted the ratio decidendi in the cases that had produced the inconvenience. The principle that was declared in opposition to the reason of those cases was, that the mortgagor should be deemed and regarded as the owner of the vessel. First, there is a negative declaration that the mortgagee shall not, by reason of his mortgage, be deemed to be the owner. Then there is an affirmative, that the mortgagor shall not be deemed to have ceased to be the owner; he shall continue to be the owner. The mortgagor, therefore, continues the owner; but it was necessary, of course, or at least in the prudent, cautious, way in which acts of Parliament are framed, it was deemed necessary, by the framer of the clause, to add these words, in declaring in what position the mortgagor shall stand, namely, that he shall be the owner, save so far as may be necessary for making the ship or share available as a security for the mortgage debt. As long, therefore, as the dealings of the mortgagor with the ship are consistent with the sufficiency of the mortgagee's security, so long as those dealings do not materially prejudice and detract from, or impair the sufficiency of, the security of the vessel as comprised in the mortgage, so long is there parliamentary authority given to the mortgagor to act in all respects as owner of the vessel; and if he has authority to act as owner, he has, of necessity, authority to enter into all these contracts touching the disposition of the ship, which may be necessary for enabling him to get the full value and the full benefit of his property. Whenever a mortagee is in a position to shew that the act of the mortgagor prejudices or injures his security, then, I apprehend, the parliamentary declaration that the mortgagor shall be deemed the owner, ceases to have any binding effect as against the mortgagee, and the mortgagee is in a strong position to claim and exercise the full benefit of the rights given to him by his mortgage. But, subject to that qualification, every contract entered into by the mortgagor remaining in possession, is a contract which derives validity from the declaration of his continuing to be the owner. At the same time it is a contract, into the benefit of which the mortgagee may at any time enter, by giving notice to the party who is to pay the mortgagor under that contract, that he require the payment to be made to him, the mortgagee. I think that would be a reasonable interpretation, which would make the law with regard to this description of property, in a great measure analogous to the law as it exists with regard to the mortgages of real estate. But, as I am told this point is somewhat a novel one, and at present is not touched by any decision, I should not like to give any absolute and final opinion upon that point without further examination. If that is the view that I shall adhere to of the true interpretation of the statute, then it will be sufficient to say, in this case, that nothing has been done, attempted to be alleged or proved by the mortgagees, whereby this charterparty, if permitted to be carried into execution, is a charterparty that will at all prejudicially affect the sufficiency of their security. Therefore, if I adhere to that view of the statute, I should by no means allow the mortgagees to interfere with the execution of this charterparty, and I should grant an injunction in these terms, namely, to restrain the defendants, the mortgagees, and the purchaser, their assignee, from dealing with the ship in any manner inconsistent with, or which may interfere with or prevent the execution of the charterparty, and there let the order stop. I will consider the point, and look at the different cases which the counsel, to whom I am much obliged, have referred me to, and I will mention it again in a day or two; but if I see no reason to change my opinion as to the construction of the statute, if I do not come to the conclusion that the mortgagee has a right to step in and arrest, and stop all that has been done, then it will be considered that I am of opinion that this is a good charterparty, made by the authority and by virtue of the ownership of Roberts; and that it is a charterparty, therefore, binding Roberts, and those claiming under him, binding the mortgagees, and binding the purchaser pendente lite, inasmuch as it is a charterparty that has not been shewn to me in any way whatever, to be prejudicial to the sufficiency of the security. Dec. 9.-LORD CHANCELLOR.-I have again considered this case in regard to the relative position of the mortgagor and mortgagee, and I see no reason to alter my opinion. 14 Then the act has undertaken the difficult duty of defining the circumstances under which a certain number of the creditors shall have authority to bind the rest. Now, for the first time, in order to introduce somewhat more beneficial advantages to creditors, in order to lessen the expenses of bankruptcy, and to avoid the evils that sometimes accompany public exposure, that difficult task has been to a certain extent fulfilled by the Legislature. There are other difficulties necessarily inherent in the subject; but these difficulties, in nineteen cases out of twenty, are greatly aggravated by the carelessness of the parties, or want of proper attention to necessary formalities. In this particular case it appears the parties assumed that something would be done which was not done. Now, the act of Parliament must be followed expressly, as its provisions require certain things to be done. One of these provisions is, that "if a trustee or trustees be appointed by such deed or instrument, such trustee or trustees shall execute the same." A deed was executed by the debtor for the benefit of his creditors, by which trustees were appointed; but such an instrument does not fulfil the requisites imposed by the Legislature, unless the deed be signed by such trustees. The result, therefore, necessarily is, that the deed is not such a deed as the Legislature contemplated; it has not been registered; and its registration would be imdeed-proper, even if it had been, because it does not answer the statutory requirements. I think that the learned commissioner arrived at a very correct conclusion. I have no power to remedy the defect; and if I were to accede to this application, I should be simply repealing that particular clause of the act of Parliament. The application must be refused. Under the statute, so long as the mortgagee of the ship does not take possession, the mortgagor, as the registered owner of the ship, retains all the rights and privileges of ownership, and all contracts made by him are valid, so long as they do not impair the rights of the mortgagee. The order of the Vice-Chancellor must be discharged. Ex parte KING, re KING.-Dec. 17. Bankruptcy-24 & 25 Vict. c. 106, s. 192–Trust Refusal of trustee to execute. At a meeting of the creditors of a debtor, it was resolved that there should be an assignment of the debtor's estate, under the 192nd section of the Bankruptcy Act, 1861, and that two creditors who were present should be appointed the trustees. At the instance of the solicitor of an absent creditor, his client was also nominated one of the trustees. The deed was subsequently prepared and executed by the two original trustees, but the third refused to sign it:-Held, that the Court had no power to direct the deed to be registered without his signature. This was an appeal from a decision of Mr. Commissioner Winslow, who had refused to dispense with the execution of a trust deed by one of the trustees, under these circumstances:-The debtor had called a meeting of his creditors, when it was unanimously resolved that the debtor should execute a trust deed, under the 192nd section of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 106). Two creditors were appointed trustees. After the resolution was carried, but before the meeting separated, it was suggested by a solicitor for an ab sent creditor that his client, a Mr. Booth, should also be a trustee, which was acceded to, and the deed was accordingly prepared and executed by the two original trustees; but Mr. Booth, on being applied to, refused to execute the deed. The deed was then presented for registration without his signature, but the officer declined to register it; and an application was then made to the commissioner upon the subject, but his Honor was of opinion, that as the second condition of the 192nd section, which provides, that "if a trustee or trustees be appointed by such deed or instrument, such trustee or trustees shall execute the same," gave him no power to dispense with the signature of Mr. Booth. Reed appeared for the debtor, the two trustees, and creditors, in support of the application. LORD CHANCELLOR.-It is impossible that I can do anything in this matter. It is an unfortunate thing that the creditors did not refuse entirely the improper suggestion that was made to them by the solicitor at the meeting. If this solicitor desired his client's name added to the deed as trustee, or the creditors desired to add his name as trustee, they were bound first to inquire whether this gentleman had given his assent. ROLLS COURT. Re THE PATENT ARTIFICIAL STONE COMPANY (LI- The holder of fully paid-up shares in a limited company A petition by a shareholder to wind up the above company. The company was formed in 1862, to work a patent for the improvement of the manufacture of artificial stone; the nominal capital was 20,0007., divided into 2000 shares of 107. each. Of the shares, 1500, fully paid up, were allotted to the patentee, for the purchase of his patent rights; and of the remainder, only 110 had been allotted. The petitioner was the holder of five shares, which were fully paid up. The greater part of the subscribed capital had been employed in the purchase of a wharf, and plant, and fixtures, for carrying on the business. Very little business had been done, and the balance at the banker's was only 251. A creditor had obtained judgment for 2407., but had not issued execution. Neither the creditors, nor the shareholders, with the exception of the petitioner, desired that the company should be wound up. The directors had advanced money from time to time to carry on the business. Selwyn, Q. C., and De Gex, in support of the petition. Locock Webb, contra. Dec. 17.-Sir J. ROMILLY, M. R.-I am of opinion that no sufficient grounds have been shewn for winding up this company. As the petitioner has fully paid up all his shares, he has no interest in the matter beyond this, that if the assets should prove sufficient, he would be entitled to be repaid a portion of the surplus; but this is too remote a contingency, in the absence of other circumstances, to warrant me in making a winding-up order. If I granted this petition, every shareholder who had fully paid up his shares would be entitled to present a petition for winding up. In my opinion the company has not yet had a fair trial, to determine whether it is likely to carry out the object for which it was formed; the principal creditor, who has obtained judgment, takes no steps to wind up the company; and the principal shareholders are desirous that the company should go on. The petition must, therefore, be dismissed, with costs. Note for reference-Shelf. Joint-stock Companies Act, 105. HOLGATE V. JENNINGS.-Dec. 3 and 6. Will-Substitutionary gift-" Then dead, leaving issue." A testator gave his residuary estate upon trust for his wife for life, and after her decease, upon trust to distribute and divide the same among his nephews and nieces; but if any of them should then be dead leaving issue, for adopting the conclusion which I arrived at in that case. The words here are, “but if any of them shall then be dead, leaving issue," which are not grammatically correct, as applied to the present case, the issue being then dead. To support the case of the representatives of the deceased issue, the words should have been, "if any of them shall be then dead, having left issue." The distinction may appear to be fine; but the expressions, leaving issue" and "having left issue," are not equivalent expressions. At the death of the widow, Edward Jennings Martin was dead without issue. It was not so, so long as his daughter was alive; but upon her death, and at the period of distribution, he was dead, without issue. I have carefully considered all the cases bearing upon the question. I am of opinion that the daughter of the deceased nephew did not take any share; and the residuary estate will, therefore, be divided into thirds. Note for reference-2 Jarm. Wills, 172, 3rd ed. such issue was to be entitled to their parent's share. One VICE-CHANCELLOR KINDERSLEY'S COURT. of the nephews died leaving issue, who also died before the period of distribution:-Held, that the issue took no interest in the residue. Observations upon the state of the authorities, and Re Corrie's Will (32 Beav. 426) followed. Petition.-William Jennings, the testator in the cause, bequeathed his residuary estate to his trustees, upon trust to pay the income thereof to his wife for her life," and from and immediately after her decease, to distribute and divide the same unto and amongst such of his four nephews and two nieces," naming them, "as should be living at the time of her decease, in equal shares, as tenants in common; but if any of them should then be dead, leaving issue, then his will was, that such issue should be entitled to their father's or mother's shares, but in equal proportions." The widow survived the testator, and was since dead. Two of the nephews died in her lifetime without issue. Another nephew, Edward Jennings Martin, also died in her lifetime, leaving issue Augusta Mary Martin, who also died in the lifetime of the widow. The question upon this petition was, whether the representatives of Augusta Mary Martin were entitled to a share of the testator's estate. Selwyn, Q. C., and Shebbeare, for the petitioners, contended that Augusta Mary Martin did not take any share. [They cited Re Corrie's Will (32 Beav. 426); Turner v. Sargent (17 Beav. 515); Macgregor v. Macgregor (2 Coll. 192); Bennet v. Merryman (6 Beav. 360); and Atkinson v. Bartrum (28 Beav. 219).] Freeman and H. F. Shebbeare, for parties in the same interest. Baggallay, Q. C., and G. L. Russell, for the representatives of Augusta Mary Martin, cited Crause v. Choper (1 Johns. & H. 207); Re Wildman's Trust (Id. 299); Lyon v. Coward (15 Sim. 287); 2 Jarm. Wills, 172. 3rd ed.; and Hayes & Jarm. 158, 5th ed. Dec. 6.-Sir J. ROMILLY, M. R.-It is unnecessary for me to go into the various cases cited, which are both numerous and irreconcilable. It is very desirable, and, in fact, essential, that sooner or later the question raised upon this will should be decided by authoritative decision; and as the trust property in this case is large, it may afford every opportunity for carrying the case to the House of Lords. I adopt the observations which I made in Re Corrie's Will (32 Beav. 426); but the language here is stronger MARTIN v. HEADON.-Nov. 11 and 12. Ancient lights-Alteration. Semble, where the owner of a dominant tenement has altered an ancient light, and the owner of a servient tenement has built up an erection to prevent the acquisition of a new easement thereby, the owner of the dominant tenement cannot, by restoring the altered light to its original form and shape, reacquire the ancient light. Renshaw v. Bean (18 Q. B. 112) and Jones v. Tapling (12 C. B., N. S., 826) observed upon. This was a motion for an injunction to restrain the defendant from raising in height any part of his house, so as to interfere with, or prejudicially affect, the access of light and air to the plaintiff's windows. It was not disputed that some of these windows were ancient lights; but, as to one of them, a question was raised by the evidence, whether it had not been materially altered by the addition of an upper tier of lights to the sash. Glasse, Q. C., and Cracknall, in support of the motion, cited Renshaw v. Bean (18 Q. B. 112; 16 Jur. 814); Hutchinson v. Copestake (9 C. B., Ñ. S., 863; 8 Jur., N. S., 54); Jones v. Tapling (12 C. B., N. S., 826; 9 Jur., N. S., 462); Turner v. Spooner (1 Drew. & Sm. 466; 7 Jur., N. S., 1068); Wilson v. Townend (1 Drew. & Sm. 324; 6 Jur., N. S., 1109); Cooper v. Hubbuck (30 Beav. 160; 7 Jur., N. S., 457); Weatherby v. Ross (1 Hem. & Mil. 348); and Gale on Easements, 373, 374, 375. Baily, Q. C., and Martindale, contra, referred to Jackson v. Newcastle (10 Jur., N. S., 688); Isenberg v. The East India Railway Company (Id. 221); and The Attorney-General v. Nichol (16 Ves. 338). Glasse, Q. C., in reply. Sir R. T. KINDERSLEY, V. C.-His Honor in delivering judgment made the following observations:If I were now about to decide the very peculiar and difficult questions which arise in this case, I should certainly take time to consider very carefully the cases cited in which such questions have been raised and discussed. One of those questions was raised in Renshow v. Bean (18 Q. B. 112), and, in fact, amounts to this:-If the owner of what is called the dominant tenement has acquired an easement or servitude by the possession of ancient lights, what is the effect of his throwing out such new lights on the same side of his house, as, if not interfered with by the owner of the servient tenement, would give the owner of the There being, then, these difficult questions of law, and perhaps others in this case, they clearly ought to be decided, not upon an interlocutory application, but at the hearing of the cause. His Honor then considered the questions of fact arising in the case, and directed the motion to stand over to the hearing of the cause upon certain undertakings by the defendant. Notes for reference-Renshaw v. Bean (18 Q. B. 112; 16 Jur. 814) and Jones v. Tapling (12 C. B., N. S., 826; 9 Jur., N. S., 462). dominant tenement, by the lapse of time, a servitude or easement which he did not possess before? It was held in Renshaw v. Bean, that inasmuch as the owner of the servient tenement, in exercise of his right to prevent the owner of the dominant tenement from acquiring an easement which he did not before possess, had a right to make any erection, the effect of which would be to prevent the access of light through the new lights, in short, the acquisition of a new easement or servitude; if, in making such an erection for such a purpose, the access of light through the ancient lights was impeded, that was lawful in the owner of the servient tenement; for it was the fault of the owner of the dominant tenement in making the attempt to acquire a new easement; and he, being the aggressor, could not complain if the party who had a right to prevent such acquisition, in the exercise of that right also damaged the easement which the owner Charge of debts-Mortgage by executor-Priority of mortof the dominant tenement had acquired with respect to his ancient lights. That was the broad point dealt with in Renshaw v. Bean. Then comes another question which presents, perhaps, even more difficulty, and it is this-Supposing the principle of Renshaw v. Bean to be right, and that the owner of the dominant tenement has altered an ancient light so as to make it a different light, or different mode of receiving the access of light, and the owner of the servient tenement has exercised his right to block it up, what is the effect of the owner of the dominant tenement afterwards restoring the altered light to the exact shape and form it possessed before the alteration? Does he thereby recover his ancient light to such an extent as entitles him, not only to prevent the owner of the servient tenement from thereafter doing anything to interfere with the right, but also to require him actually to pull down that which he has erected? That was the question which was raised in Jones v. Tapling (12 C. B., N. S., 826); and speaking, not with reference to the particular circumstances, but in the abstract, if the Legislature were now considering what ought to be the law upon the subject for the purpose of passing an act of Parliament, I say it is an extremely difficult question, and one as to which, as at present advised, and without having had, of course, the opportunity of going very carefully through the reasoning of the different judges who have expressed opinions upon the subject, I confess I should be led rather to question the right of reacquiring an ancient light where that ancient light has been altered, so that it is no longer the ancient light it was. Again: there arises the question just now suggested, may there not be a difference where the act done by the owner of the dominant tenement is not the alteration of his ancient light, but an attempt to acquire an entirely independent light or easement by the opening of an independent new window, so that while preserving his ancient lights he endeavours to acquire a new easement? The ancient light remains where it was, therefore there may be a difference in these two states of circumstances. I am not, however, expressing any opinion, except, as I have already stated, in common frankness, that my leaning would be against the right. I have great difficulty in comprehending at first sight how an ancient light can temporarily cease to be an ancient light and afterwards reacquire that character without any new lapse of time. Of course, if it were continued in its realtered state for twenty years, it would be an ancient light, but how otherwise it can be said to be so I am at a loss to conceive. This, however, is rather an off-hand than a well-considered opinion, for if I were now about to decide these questions, I should take much more time for consideration. VICE-CHANCELLOR STUART'S COURT. BARROW v. GRIFFITH.-BARROW v. NEWMAN.-Nov. 3, 4, and 5. gagees over creditors. Where a devisee and executor of estates charged with debts and legacies, mortgaged those estates, and in the deeds included property belonging to himself and forming no part of the testator's estates, the Court held, that these circumstances were not sufficient to rebut the ordinary presumption of law, that the money raised was for the payment of the debts, &c., and that the mortgagees were entitled to be paid in priority to the creditors of the tes tator. These causes now came on for hearing upon further consideration, and upon several summonses to vary the chief clerk's certificate; but the only question worthy of a report was one in reference to the rights of incumbrancers. The testator William Glynne Griffith, by his will, dated the 20th December, 1842, charged all his real estates in the counties of Carnarvon and Anglesey with the payment of his debts and certain legacies; and subject thereto, he devised his said estates to his son, the defendant David White Griffith, whom he also appointed executor. The testator was, at the time of his death, very considerably indebted. The defendant David White Griffith created several mortgages upon the estates devised to him by his father; but there was no evidence to shew for what purpose those mortgages (in some of which was included property belonging to himself, and which had never belonged to the testator) were made, or how the money raised was applied; but it did appear, that by a mortgage deed, dated the 27th February, 1845, parts of the testator's real estates, together with property belonging to the defendant David White Griffith personally, were mortgaged by him to Mr. Westmacott for the sum of 2701.; and that by another mortgage deed, dated the 12th June, 1845, other parts of the estates of the testator were mortgaged by the defendant David White Griffith to a Mr. Foster for the sum of 20001. By another deed of the same date, and between the same parties, David White Griffith mortgaged property which belonged to himself to Mr. Foster for the sum of 20007. Another deed, dated the 20th March, 1848, was, under similar circumstances as the deed of the 12th June, executed; but with the exception of the fact, that parts of David White Griffith's own property were included in each security, there was nothing in any of the deeds to fix the mortgagees with notice, that the moneys were raised for any purpose other than that of paying the testator's debts. The present suits were instituted for the purpose of having the testator's estates administered by the Court, and for determining the priorities of the respective incumbrancers; and the question now was, whether the creditors of the testator were entitled to Jan. 14, 1865. be paid their debts out of the mortgaged estates in priority to the mortgagees. Bacon, Q. C., and F. O. Haynes, for the plaintiffs, contended, that although mortgages made by an executor of his testator's estate must be presumed to have been made for the purpose of paying the testator's debts, and that in such a case the mortgagees were entitled to priority over creditors, yet that the circumstance, that property belonging to the executor was included in the mortgage deed, was sufficient to destroy that presumption, and to fix the mortgagees with notice that the money was raised by the executor in his private capacity only, and, therefore, the creditors were entitled to priority. Cole, Q. C., Greene, Q. C., Malins, Q. C., Osborne, Q. C., Kenyon, Q. C., Macnaghten, Jones, Bateman, Chisholm, Batten, Langworthy, Rowcliffe, Johnson, Dickenson, and Kingdon appeared for the numerous incumbrancers and judgment creditors. The cases and authorities cited were-Colyer v. Finch (5 H. L. C. 923); Kinderley v. Jervis (22 Beav. 1); Carter v. Sanders (2 Drew. 248); Elliot v. Merryman (2 Atk. 41); Miles v. Durnford (2 De G., Mac., & G. 641); Eland v. Eland (4 My. & C. 420); Lord St. Leonards' V. & P. 661, and cases there referred to; Watkins v. Cheke (2 Sim. & S. 199); Page v. Adam (4 Beav. 269); Show v. Borrer (1 Kee. 559); Ball v. Harris (4 My. & C. 268); Haynes v. Forshaw (11 Hare, 93); 2 Dav. Prec. 832, note; Macleod v. Drummond (17 Ves. 152); and stat. 1 & 2 Vict. c. 110, s. 11. Sir J. STUART, V. C.-There is nothing in this case to shake the ordinary rule of law. From the time of Ball v. Harris (4 My. & C. 268) the rule has been clearly established, that mortgagees and purchasers claiming under an executor who has an estate subject to a charge of debts, must be protected, and that in order to deprive them of the benefit of that rule, the transaction must be such as in itself will afford conclusive evidence that the mortgagee or purchaser must have known that the money raised was not to be applied in the discharge of the testator's debts. The case of Macleod v. Drummond (17 Ves. 152) was an appeal from a decision of Sir W. Grant. Lord Eldon did not approve of the principle laid down by that learned judge, though he afterwards arrived at the same conclusion as Sir W. Grant had done. Lord Eldon did not consider that the circumstance, that property belonging to the executor, which was included in a mortgage, was sufficient in itself to deprive the mortgagees of their rights. The mortgagees in this case must, in my opinion, take priority over the creditors of the testator. POLLACK V. THE BIRMINGHAM, WOLVERHAMPTON, On a petition by husband and wife and mortgagee, a small sum of money belonging to the wife was ordered to be paid out of court to the mortgagee, without requiring the wife to be examined in court, and without the mortgage deed being acknowledged. This was a petition by Mr. and Mrs. Beddoe and David Howard, a mortgagee, for payment out of court to David Howard of a small sum of money (under 301) which belonged to Mrs. Beddoe, who was entitled to certain lands which had been taken by the above railway company. There was an affidavit that no settlement had been made, and that the land had been mortgaged by Mr. and Mrs. Beddoe to David Howard, to secure 50%, but without the mortgage deed having been acknowledged by Mrs. Beddoe. Bury, for the petitioners, referred to Re Hayes (9 Weekly Rep. 769). Martineau, for the railway company. Sir J. STUART, V. C., made an order for the payment of the money out of court, without requiring an examination of Mrs. Beddoe, and without requiring her to acknowledge the deed. Note for reference-Morg. Ch. Acts, 53. LATOUR v. THE ATTORNEY-GENERAL.-Nov. 22. Contract with Crown-Lapse of time-Demurrer. Demurrer to a bill for specific performance of contract with the Crown, alleging that regulations were in 1828 issued by the Colonial Office, offering grants of land to settlers in Western Australia, in fixed proportions to the money expended by them in the colony, or in sending out labourers, and that the plaintiff had expended large sums of money under the regulations, and that there had been a waiver of some of them, overruled, notwithstanding the plaintiff's rights, if any, accrued as far back as 1830. Demurrer. The bill was filed by Major-General Latour, under an order made by the Lord Chancellor (the case not being within the Petition of Right Act, 23 & 24 Vict. c. 34), permitting the plaintiff to file a bill, reserving to the Crown all its rights, except its prerogative not to be sued by bill. The bill alleged the title of her Majesty to large tracts of land, containing several millions of acres, situate in Western Australia, and that her Majesty had power to make grants of the same. It also alleged, that, in October, 1828, his Majesty King George IV determined to encourage the formation of settlements or plantations on the western coast of Australia, by such of his Majesty's subjects as were willing or desirous to emigrate themselves, or to send emigrants with proper supplies; that Sir James Stirling was sent out as governor, and received his Majesty's commission, and that soon after his appointment regulations were drawn up by the Secretary of State for the Colonies for the guidance of intending emigrants, and were afterwards printed, and many copies of them sent to the colony, one of which copies the plaintiff obtained from Sir James Stirling. The regulations were as follow: Although it is the intention of his Majesty's Government to form a settlement on the western coast of Australia, the Government do not intend to incur any expense in conveying settlers, or in supplying them with necessaries after their arrival; such persons, however, as may be prepared to proceed to that country at their own cost before the end of the year 1829, in parties, comprehending a proportion of not less than five females to six male settlers, will receive grants of land in fee-simple, free of quit-rent, proportioned to the capital which they may invest upon public or private objects in the colony, to the satisfaction of his Majesty's Government at home, certified by the superintendent or other officer administering the Colonial Government, at the rate of forty acres for every sum of 31. so invested, provided they give previous security, first, that all supplies sent to the colony, whether of provisions, stores, or other articles, which may be purchased by the capitalist there, or which shall have been sent out for the use of them or their parties, on the requisition of the Secretary of State, if not paid for on delivery in the colony, shall be paid for at home, each capitalist being to be held liable in his proportion; and, secondly, in the event of the establishment being broken up by the Government or superintendent, all persons desirous of returning to the British islands shall be conveyed to |