VICE-CHANCELLOR STUART'S COURT. In re The Joint-stock Companies Winding-up Acts, 1848 and 1849, and in re The Royal Bank of Australia, ex parte Walker.-Galloway and Others' Case.-(Banking Company-Unregistered Company-Power of Directors to bind ShareholdersDeed of Settlement, Construction of-Ratification by Shareholders-Liability of each Shareholder upon Notes in Form "jointly and severally promise to pay"-Principal and Agent-NoticeMaclae v. Sutherland, 3 El. & Bl. 1, followed).... 885 VICE-CHANCELLOR WOOD's Court. Tatlock v. Jenkins.-(Will-Construction-Apportionment between Real and Personal Estate) ADVERTISEMENTS. 891 PRICE 18. VICE-CHANCELLOR WOOD'S COURT-(Continued). EXCHEQUER CHAMBER. Bougleaux v. Swayne.-(Costs in Error-Security- 1 COURT OF QUEEN'S BENCH. Le Feuvre v. Lankester.-(Mayor-Disqualification- COURT OF ADMIRALTY. 893 894 894 ... 899 The Tenth of June.-(Distribution of Salvage-3 & 4 the abandonment of the arrangement would have been The Scale of Charges for Advertisements will in future be made by such parties a condition of the realisation of s follows: £ s. d. 020 026 030 036 040 the expectations. (Woodhouse v. Shepley, 2 Atk. 535; Cock v. Richards, 10 Ves. 429). An exception to this rule has been made in a case where a person, being on bad terms with his father, and not admitted to his presence, on a treaty for the marriage of his daughter with an infant, gave a bond, conditioned to settle on his daughter and the issue of the marriage, if the marriage took place, a third of the estate that should come to him from his father, within one month after his death. (Hobson v. Trevor, 2 P. Wms. 191). There is, however, nothing inequitable or against public policy in an agreement between parties, who ever such party may leave them. (Beckley v. Newland, 2 P. Wms. 182; and see Hobson v. Trevor, Id. 191). In regard to bonds or other securities founded on expectations, or given by persons having no present pro In regard to staying proceedings at law under un-have expectations from a third party, to divide whatawful instruments, the Court does not require certainty f the unlawful foundation of a security to justify its nterference; but if, upon the answer, (or now it is resumed on the affidavits), it sees sufficient to raise a reat degree of doubt whether the consideration of the strument is lawful, although there is no actual evi-perty, and only expectations from persons living, it is ence that it was not so, the Court will restrain proeedings at law until it is in a position to come to a onclusion as to the rights of the parties. (The Earl of Hilltown v. Stewart, 3 My. & C. 18). Under the head of fraud may be considered the cases a settled principle that the Court will restrain proceedings at law upon such instruments, unless the actual value has been given. (Marsack v. Reeves, 6 Mad. 108). A purchaser, however, at a sale by auction of a reversion, is not of necessity bound to establish that he purchased at a full price. (Shelly v. Nash, 3 Mad. 232). But if the sale is so conducted as to shew on the face of it that the vendor is in the power of those who deal with him, the Court will not consider the sale by auction as affording fair evidence of the market price, and will grant an injunction till the hearing, the plain-intoxication simpliciter, it is settled that equity does tiff paying into court the auction price, with interest. not interfere against an instrument merely on the (Fox v. Wright, 6 Mad. 111). ground of the party being intoxicated at the time of executing it. (Johnson v. Medlicott, 3 P. Wms. 130, note (a), and Cooke v. Clayworth, 18 Ves. 12). It is, indeed, well settled as a general doctrine of equity, that to persons in the position of an expectant heir, a degree of protection is extended, approaching nearly to an incapacity to bind themselves by any contract; and that it is incumbent upon those who have dealings with expectant heirs relative to their reversionary interests to make good the bargain—that is, to be able to shew that a full and adequate consideration was paid. (1 Bro. C. C. 9; 9 Ves. 246; Peacock v. Evans, 16 Ves. 512; Gowland v. Defaria, 17 Ves. 20). And while the pressure of the distress, which induced originally the expectant heir to enter into the contract, continues, no length of acquiescence, nor even confirmation, will prevent such heir from coming to equity to set aside the contract. (Gowland v. Defaria, 17 Ves. 20; Crowe v. Ballard, 3 Bro. C. C. 117). But the extraordinary protection of equity must be withdrawn if it shall appear that the transaction was known to the father or other person standing in loco parentis, even although such parent or other person took no active part in the negotiation, provided the transaction was not opposed by him, and so carried through in spite of him: and further, if the heir flies off from the transaction, and becomes opposed to him with whom he has been dealing, and repudiates the whole bargain, he must not in any respect act upon it, so as to alter the situation of the other party or his property; at least, if he does so, the proof lies upon him of shewing that he did so under the continuing pressure of the same distress which gave rise to the original dealing. (King v. Hamlet, 2 My. & K. 456). Under this division of the subject also falls the class of cases where instruments are obtained under undue influence. In those cases equity will restrain the parties, claiming under the instruments so obtained, from proceeding at law. (Goddard v. Carlisle and Others, 9 Price, 169; Lady Strathmore v. Bowes, 2 Bro. C. C. 345; Peel v. 16 Ves. 157). Equity will interfere against a deed or an agreement entered into by a party while in a state of intoxication, if any unfair advantage has been made of his situation; (Cory v. Cory, 1 Ves. sen. 19, and see the cases there cited; Butler v. Mulvihill, 1 Bligh, 137); or if there has been any contrivance or management to draw him into drinking; (Johnson v. Medlicott, 3 P. Wms. 130, note (a)); or even over-readiness to acquiesce in and countenance his disposition to drink; (Say v. Barwick, 1 V. & B. 195); or, perhaps, if upon the face of the agreement it appears that the offer was such as necessarily discovers absence of judgment in the person making, or a degree of unfairness in those accepting, it. (See the observations of Sir W. Grant in Cooke v. Clayworth, 18 Ves. 17; and see Dunnage v. White, 1 Swanst. 137, and Butler v. Mulvihill, 1 Bligh, 137). The principle of the decisions is not merely that the party must have been actually intoxicated, but that the fact of his being intoxicated, taken in conjunction with the fact of the rent actually reserved being grossly inadequate, and different from that previously agreed upon, affords an inference of fraudulent advantage taken of the intoxication of the plaintiff. For as to In cases where persons, having entered into a general arrangement with creditors for a composition, have entered at the same time into a secret arrangement with certain creditors, the effect of which would be to give them a superiority over the general mass of creditors, and to defeat the presumed intention of the general body-viz. that they shall all receive equally, and that the debtor, after the payment of the composition, shal! be free-equity will prevent such agreement, made in fraud of the intent of the general creditors, from taking effect. (Eastabrook v. Scott, 3 Ves. 457; Mawson v. Stock, 6 Ves. 300). Under the head of marriage brocage bonds, and the like, are to be considered several cases of a mixed nature, in which the vice of the transaction consists partly in its being fraudulent as against individuals, and partly in its being inconsistent with public policy. Of this kind are what are called marriage brocage bonds, (Drury v. Hooke, 1 Vern. 212; Arundel v. Trevillian, 1 Ch. Rep. 47; Williamson v. Gihon, 2 Sch. & L. 357; Smith v. Bunning, 2 Vern. 392); bonds or other securities given in consideration of obtaining places in the public service, (Hartwell v. Hartwell, 4 Ves. 811; Thrale v. Ross, 3 Bro. C. C. 57; Hannington v. Duchatel, 1 Bro. C. C. 124; Symonds v. Gibson, 2 Vern. 308; Whittingham v. Burgoyne, 3 Anst. 900; Morris v. M'Cullock, Amb. 432); or for the exercise of influence over others in the disposition of their property, (Debenham v. Ox, 1 Ves. sen. 276; Keat v. Allen, 2 Vern. 588); or for other objects fraudulent in intention and mischievous in policy. The general rule in this sort of case is, that the party claiming under a title thus tainted shall be restrained in equity; although in some cases (Law v. Law, 3 P. Wms. 390; see also Hannington v. Duchatel, 1 Bro. C. C. 124; Morris v. M'Cullock, Amb. 432; Debenham v. Ox, 1 Ves. sen. 276; and see also, on this subject, Smith v. Aykwell or Haytwell, 3 Atk. 566; Amb. 66; Drury v. Hooke, 1 Vern. 212; Stribblehill or Scribblehill v. Brett, 2 Vern. 455; 4 Bro. P. C. 144; Hall v. Potter, Show. P. C. 76; Cole v. Gibson, 1 Ves. sen. 503; and Turton v. Benson, 1 P. Wms. 496) the Court has proceeded on the principle of not interfering, and leaving the parties to do the best they can respectively at law. With respect to transactions falling under the head of marriage brocage, although the general rule has been long well settled, there have been some differences in the decisions as to the precise ground of interference. (See Smith v. Aykwell or Haytwell, 3 Atk. 566; Amb. 66; and see, ante, Drury v. Hooke, and the cases there cited). The cases in which equity has refused to interfere have been principally those arising on conveyances made in order to give to a party a colourable qualification to enable him to sit in Parliament, or to kill case cited by Lord Eldon in Curtis v. Perry, (6 Ves. game. The doctrine in these cases is laid down in a 747); in Platamone v. Staple, (Coop. 250; and see 9 Ann. c. 5); and in Brackenbury v. Brackenbury, (2 J. & W. 391). There are other cases also in which equity has refused to interfere between parties to a contract of doubtful or of admitted illegality, on the ground of public policy. (See The Earl of Westmeath v. The Countess of Westmeath, Jac. 126). It is not easy to extract from the cases on this subject any general principle governing the disposition of the Court to distinguish between those cases in which it will interfere, and those in which it will leave the parties to law. In some of the cases the Court, treating the contract as clearly against public policy, has acted positively against it. (Law v. Law, 3 P. Wms. 390). In another, the Court, thinking the validity of the deed doubtful at law on grounds of public policy, refused to restrain the party claiming under it; (The Earl of Westmeath v. The Countess of Westmeath, Jac. 126); while in others, again, the Court, holding the agreement clearly against public policy, has also refused to act positively against its being enforced at law. (Evans v. Richardson, 3 Mer. 469). The authorities seem, however, to justify the following as general propositions-first, that the Court will in no case give any active support to instruments founded on fraud, or on considerations against public policy; secondly, that in selecting between positive interference, and leaving the parties to law, it will take that course which will be most likely to defeat, not the effect of the instrument, but the success of the fraud originally intended by it. On the same principle as that which is applicable to the cases we have been discussing, equity will interfere where parties set up a contract apparently fair, but in fact entered into fraudulently, merely for the purpose of covering an usurious transaction. Where, for instance, a partnership transaction is merely colourable, for the purpose of obtaining, under the name of a partnership, usurious interest for a loan, equity will treat it as a fraudulent contract, and relieve against it. But the Court will not relieve against a transaction, as in fraud of the usury laws, merely on the ground that the lender, either by the very nature of the contract itself, or by some of its possible consequences, may in fact, as between him and the borrower, secure a rate of interest, which, taken simply as such, would be usurious. (Fereday v. Hordern, Jac. 144; Clark v. Giraud, 1 Mad. 511. See Searle v. Lord Carpenter, Amb. 242). But if fraud in the party obtaining a legal title will prevent him from being permitted to use it; on the other hand, fraud in the party from whom the title passes will have the effect of preventing the parties taking it from losing the benefit of it; where, if there had not been such fraud, they might not have been permitted to use it. (Taylor v. Sheppard, 1 Y. & C. 271). Courts of equity do not assume in general any jurisdiction in questions of insurance, except for the purpose of facilitating the trial of the validity of the policy. Thus, where the facts on which the liability turns, have taken place abroad, equity will grant a commission to examine witnesses, and will restrain proceedings at law until the return of the commissioners; (Chitty v. Selwin, 2 Atk. 359); or, on suspicion of fraud, will compel the plaintiff at law to make discovery of the circumstances within his knowledge. (See Park Ins. c. 20). But, except in these cases, all issues upon policies of insurance must be tried at common law. (Ib.; and De Ghettoff v. The Governor and Company of London Assurance, 4 Bro. P. C. 436, where a demurrer to a bill for payment of the sum insured by a policy was allowed). However, in a case in Peere Williams, (De Costa v. Scandret, 2 P. Wms. 170), where a merchant, who having information of his ship being in danger, such as to induce him to believe that probably she was lost, insured without informing the insurers of those circumstances, on a bill for an injunction, and to have the policy delivered up, it was decreed, that, the premiums being returned, the policy should be delivered up. Under the second division of this section fall the cases in which parties, having legal rights originally fair, are guilty of either positive acts or of acquiescence, actually or constructively fraudulent, whereby they vary, or permit to be varied, the rights and liabilities of other parties, to their own advantage, and to the detriment of such other parties. (Aston v. Aston, 1 Ves. sen. 396; Cawdor v. Lewis, 1 Y. & C. 427). Where a party having title has suffered another in possession with an apparent title to grant fair leases, and has stood by and allowed the tenants to expend their money in improvements, he will not be suffered afterwards, under a decree (in a cause to which the tenants were not parties) restoring the possession to him, to evict such tenants, and will be restrained from bringing ejectment by perpetual injunction. (Shine v. Gough, 1 Ball & B. 436; see also Hardcastle v. Shafto, 1 Anst. 184). But if, in such cases as Aston v. Aston, the waste had been permitted by express agreement, it seems doubtful whether equity would interfere, because that may be pleaded at law. (Per Lord Chancellor, 1 Ves. sen. 399; and see Ray v. Ray, Coop. 264, and Nicholson v. Hooper, 4 My. & C. 179). In strictness, perhaps, this latter case should have been mentioned under a different head; but in substance it illustrates the proposition discussed in this section. (See also Edgecumbe v. Carpenter, 1 Beav. 171). It must not be overlooked, that the general principle of these cases is not mere laches, but fraudulent dealing or acquiescence; and therefore, in such cases, it is put upon the plaintiff to prove, not merely to raise a probable conjecture, but to shew upon highly probable grounds a case of bad faith and bad conscience against the defendant. (Per Lord Eldon in Dann v. Spurrier, see 7 Ves. 235). Another class of cases falling under this division of the subject is that where a creditor, having a title at law originally fair and equitable against a surety as well as against his principal debtor, by some transaction with the principal debtor, varies the position of the surety, and thereby taints his legal title with constructive fraud as against the surety. Thus, it is firmly settled in equity, that where a creditor gives time to his principal debtor without the consent of the surety, by so doing he discharges the surety; that is, if time is given by virtue of positive contract between the creditor and the principal. (Samuel v. Howarth, 3 Mer. 272; and see Nisbit v. Smith, 2 Bro. C. C. 579; Rees v. Ber rington, 2 Ves. 540; Boultbee v. Stubbs, 18 Ves. 20; Blake v. White, 1 Y. & C. 420; Eyre v. Bartrop, 3 Mad. 221; The Bank of England v. Beresford, 6 Dow, 233; Solly v. Moore, 8 Price, 631; Attwood v. Banks, 2 Beav. 192; and Bowmaker v. Moore, 3 Price, 214). The rule as between creditor and surety applies equally, though the surety should know the fact of time being given to the principal debtor; to take the case out of it, the surety must expressly consent. But if the time given is not by positive contract, but the case is only that the creditor is inactive, the surety will not be relieved in equity. (Samuel v. Howarth, 3 Mer. 272; see also 6 Ves. 734; Eyre v. Everett, 2 Russ. 381). PUBLIC GENERAL STATUTES. (Continued from p. 361). An Act to extend the Provisions of the Acts for the Augmen tation of Benefices. [10th August, 1854.] and sect. 14 of the 1 & 2 Vict. c. 107, may be exercised by Sect. 1. Powers given by sect. 21 of the 1 & 2 Will. 4, c. 45, incumbents, &c. 2. Incumbent entitled to glebe land, &c. may annex the same to church of district wherein situate. 3. Consents of archbishop or bishop and patron to annexa. tion and grant. 4. Sect. 13 of the 1 & 2 Will. 4, c. 45, to extend to annexations under this act. re-rent-charges, with the consent of archbishop, &c. But although the creditor may, if he chooses, main entirely passive, he cannot act, and then withdraw his act, without the consent of the surety. (6 Ves. 734; 2 Swanst. 191). Thus, if he takes the goods of his debtor in execution, and afterwards withdraws the execution, he discharges the surety, both at law and in equity. (Mayhew v. Crickett, 2 Swanst. 185; see p. 191). But if after such withdrawal the surety makes a fresh promise to pay, he renders himself liable, not as contracting a new, but as reviving the old debt. (Ib.) 7. Act to be construed as though contained in the 1 & 2 Will. 4, c. 45. belong to the same patron. CAP. LXXXVI. Offenders in Great Britain. [10th August, 1854.] CAP. LXXXVII. But if a creditor cannot by his own act vary the An Act for the better Care and Reformation of Youthful extent of the liability of the surety; on the other hand, a surety in a bond cannot in general, by his mere intimation that he will no longer hold himself liable, discharge himself from his liability, without the acquiescence of the creditor. (Browne v. Carr, 2 Russ. 600; Gordon v. Calvert, 2 Sim. 253; 4 Russ. 581). It must be observed also that an injunction will not be maintained to restrain the obligees of a bond from suing the surety, because the obligees have lent a further sum to the principal obligor, and taken his separate bond for it, nor because they have simply abstained from suing him, not expressly giving him time; for, as already noticed, the surety is not discharged by the mere passive conduct of the creditor in not suing, but he must himself use diligence, and take such effectual means as will enable him to call on the creditor either to sue, or to give him, the surety, the means of suing. (Eyre v. Everett, 2 Russ. 381). (To be continued). An Act to make further Provision for the Burial of the Dead Sect. 1. Her Majesty may, by Order in Council, invest c. 134. 3. Expenses to be paid out of borough fund or borough rates. 4. Money may be borrowed at lower rates of interest to pay off securities bearing a higher rate. 5. Power to borrow money to pay off former mortgages. 6. Council how to act under this act, and conveyances and sales of lands how to be made. 7. Burial ground to be deemed to be for the parishes in the borough. 8. Council may fix a higher rate of payment for interment, &c. in respect of outlying part of any parish partly situate in the borough. 9. Order in Council may except parishes already having burial grounds; and in such case, if a rate be necessary, a separate rate to be made on the rest of the borough. 10. Powers of vestry, with consent of bishop, of fixing and revising the fees payable to incumbent, &c., transferred to the COMMISSIONERS TO ADMINISTER OATHS borough council. 11. Council may appropriate land belonging to the borough. 12. Burial ground not to be within 100 yards of a dwelling house. CAP. LXXXVIII. The Lord Chancellor, under the powers of the 16 & 17 Vict. c. 78, intituled "An Act relating to the Ap- An Act to render valid certain Marriages of British Subjects pointment of Persons to administer Oaths in Chancery, and to Affidavits made for Purposes connected with Registration," has appointed the following gentlemen to be Commissioners for administering Oaths in Chancery: To be London Commissioners. James Hartley, Earl-street, Blackfriars. To be Commissioners in England. in Mexico. [10th August, 1854.] been solemnised in Mexico to be valid. Sect. 1. Certain marriages of British subjects which have 2. Certificates received by the Secretary of State to be sent to Registrar-General, and certified copies to be evidence, as under 6 & 7 Will. 4, c. 86. 3. Right to search and have copies. CAP. LXXXIX. An Act to amend the Laws for the better Prevention of the Sale of Spirits by unlicensed Persons, and for the Suppression of illicit Distillation, in Ireland. [10th August, 1854.] 1 CAP. XC. An Act to repeal the Laws relating to Usury and to the In- Sect. 1. Acts, &c. named in Schedule repealed. 2. Transactions previous to passing of this Act not to be affected. 3. Legal or current Rate of Interest to mean the same as if this Act had not passed. 4. Not to affect the Law as to Pawnbrokers. Whereas it is expedient to repeal the laws at present in force relating to usury: be it enacted &c. as follows: Sect. 1. The several acts and parts of acts made in the Parliaments of England and Scotland, Great Britain and Ireland, mentioned in the schedule hereto, and all existing laws against usury, shall be repealed. 3 Geo. 4, c. 92. 7 Geo. 4, c. 75. and to substitute other Provisions in lieu thereof,'" except so much thereof as repeals the said act of the seventeenth year of King George the Third. The whole of an act passed in the third year of the reign of King George the Fourth, intituled "An Act to explain an Act of the fifty-third Year of the Reign of his late Majesty respecting the Inrolment of Memorials of Grants of Annuities." The whole of an act passed in the seventh year of King George the Fourth, intituled "An Act to explain an Act of the fifty-third Year of the Reign of his late Majesty respecting the Inrolment of Memorials of Grants of Annuities." 2. Provided always, that nothing herein contained shall prejudice or affect the rights or remedies of any person, or dimi- 5 & 6 Will. 4, c. 41. So much of an act passed in the session nish or alter the liabilities of any person, in respect of any act done previously to the passing of this act. 3. Where interest is now payable upon any contract, express or implied, for payment of the legal or current rate of interest, or where upon any debt or sum of money interest is now payable by any rule of law, the same rate of interest shall be recoverable as if this act had not been passed. 4. Provided always, that nothing herein contained shall extend or be construed to extend to repeal or affect any statute relating to pawnbrokers, but that all laws touching and concerning pawnbrokers shall remain in full force and effect, to all intents and purposes whatsoever, as if this act had not been passed. SCHEDULE REFERRED TO BY THE FOREGOING Acts and Parts of Acts of the Parliaments of England, Great 37 Hen. 8, c. 9. 13 Eliz. c. 8. 21 Jac. 1, c. 17, made perpetual by 3 Car. 1, c. 4, s. 5. 12 Car. 2, c. 13. Confirmed by 13 Car. 2, stat. 1, c. 14. 12 Ann., stat. 2, c. 16. 53 Geo. 3, c. 141. The whole of an act passed in the thirty. The whole of an act passed in the thir- So much of an act passed in the third of Parliament holden in the fifth and sixth years of the reign of King William the Fourth, intituled "An Act to amend the Law relating to Securities given for Considerations arising out of gaming, usurious, and other illegal Transactions," as relates to securities given for considerations arising out of usurious transactions. 13 & 14 Vict. c. 56. The whole of an act passed in the session of Parliament holden in the thirteenth and fourteenth years of the reign of her present Majesty, intituled "An Act to continue the Act for exempting certain Bills of Exchange and Promissory Notes from the Operation of the Usury Laws." Acts of the Parliament of Scotland. An act of the eleventh Parliament of King James the Sixth, c. 52, "it is not lesum to take ane greater annual rent for the 100 poundes nor ten poundes, or five bolls victual." An act of the fourteenth Parliament of King James the Sixth, c. 222, "for punishment of committers of usury.' An act of the fifteenth Parliament of King James the Sixth, c. 251, "it is not leasum to take mair annuall rent or profet nor ten for the hundreth." An act of the sixteenth Parliament of King James the Sixth, c. 7, "explanation of the acts of Parliament anent ocker and usury." An act of the twenty-third Parliament of King James the Sixth, c. 28, "anent taking of annual rent beforehand to be usurie." Acts of the Parliament of Ireland. An act of the tenth year of King Charles the First, sess. 2, c. 22, intituled "An Act against Usury." An act of the second year of Queen Anne, c. 16, intituled "An Act for reducing of Interest of Money to Eight per Cent. for the future." So much of an act passed in the thir- An act of the eighth year of King George the First, c. 13, intituled "An Act for reducing the Interest of Money to Seven per Cent." An act of the fifth year of King George the Second, c. 7, intituled "An Act for reducing the Interest of Money to Six per Cent." The whole of an act passed in the twelfth year of the reign of Queen Anne, inti- Interest, without any Prejudice to Par- CAP. XCI. CAP. XCII. [10th August, 1854.] An Act to continue an Act of the eleventh Year of her present Majesty, for the better Prevention of Crime and Outrage in certain Parts of Ireland. [10th August, 1854.] |