within the period mentioned were to be excluded from all benefit thereunder, notwithstanding any rule in law or equity to the contrary. The plaintiff, who was a creditor, resided within six miles of the place appointed for signing the deed, and on the forenoon of the 2nd of June, her son called at the solicitor's office, where the deed lay, for the purpose of signing it, but was not permitted to do so, as he had not a power of attorney to do so from his mother. The plaintiff made no further claim in respect of her debt until late in October, when the property was being sold, and then she gave notice that she had a claim on the estate for the amount of a judgment, and that the purchasers would take subject thereto. Sir John Romilly was of opinion that she would not have been bound by the non-execution on or before the 2nd of June, if it had occurred by accident, and she had come the next day and offered to execute it; but having allowed more than four months to elapse, and having set up a claim adverse to the deed, he considered that she was precluded. "If she had intended to come in under the deed, she must have released her claim under the judgment, and it was her duty to inform the trustees, without delay, that she intended to claim under the deed, and to release her judgment." LANDS CLAUSES CONSOLIDATION ACT.-TENANT FOR LIFE.— INCOME. In Re Hungerford, and in Re The Rugby and Stamford Railway Company, 1 Kay & Johns, 413. A tenant for life of certain lands required by a railway company contracted for the sale of the same in fee to the company, under the Lands Clauses Consolidation Act. Part of the contract was that the vendor was to have five per cent. interest on the purchase-money for his own benefit, until a conveyance should be executed. Vice-Chancellor Wood said it was not unusual to pay five per cent. on unpaid purchase-money; and, in the absence of any direct fraud, he could not say that the tenant for life had taken an improper advantage of his position. DEBT. SURETY.-JOINT AND SEVERAL LIABILITY. Other v. Iveson, 3 Drew, 177. Two persons wanted to borrow money of a bank, but the bank would not lend it without the security of W, a third person, who consented, and joined with the two others in signing a cheque for the amount, and with them received the money. Vice-Chancellor Kindersley held that this was not a joint and several liability. His Honour considered that if he were to treat W as a principal, even then it would have been a joint debt, and not a joint and several debt. "Suppose the money to have been received by the three, and afterwards the bank brings an action against W alone, or either of the others alone, I cannot conceive," said his Honour, " on what principle such an action could be maintained; if it could, there is an end of all distinction between joint liability and joint and several liability." W, then, being regarded as a surety only, a bill against his executors after his death was dismissed, there being no liability on his estate, at law or in equity. FINES AND RECOVERIES ACT, 3 & 4 Wм. 4, c. 74.—AcknowLEDGMENT BY MARRIED WOMAN.-INROLMENT. In Re The London Dock Company's Act, Exparte Taverner, 25 Law T. 241. The question here was, whether the acknowledgment of a married woman must be taken before inrolment under the Fines and Recoveries Act; and the Master of the Rolls held that the acknowledgment was good and valid, even though taken after inrolment. TRUSTEES.-PAYMENTS BY, AFTER FILING BILL FOR Sillibourne v. Newport, 1 Kay and Johns, 602. Vice-Chancellor Wood decided, in this case, that trustees who had filed a bill to have the trusts of the will performed and carried into execution under the direction of the Court, had not thereby deprived themselves of the discretionary power of applying any part, not exceeding a moiety of the income of the trust estate, for the benefit of the testator's daughter, as directed by his will; and his Honour held further, that payments made by the trustees to the daughter of a moiety of the income of the trust estate, after filing the bill, were properly made. RAILWAY COMPANY.-CORRESPONDENCE "6 WITHOUT PREJUDICE." Woodward v. The Eastern Counties and London and Blackwall Railway Company, Weekly Rep. 1854-5, p. 330. In this case there were lengthened negotiations between the defendants' company and the plaintiff, in relation to land of the plaintiff required for the railway. There was subsequently a voluminous correspondence, which it was agreed was to be "without prejudice." Upon this point Vice-Chancellor Wood, in his judgment, makes the following remarks:-"The correspondence was to be without prejudice,' which means, not that the parties are not to be bound by the statements made in the course of that correspondence, but only that the whole is to be considered as an amicable treaty, not to be strictly construed to the injury of any party. When a party has exhibited what he considers reasonable terms on a treaty without prejudice,' his course is quite evident, and why he adopts it. It is as if he were to say, 'I send you a proposal and expect your answer, and shall make use of your answer with a view to costs.'' MORTGAGOR AND MORTGAGEE.-EQUITABLE TENANT FOR REMAINDER-MEN.-LIEN. LIFE. Briggs v. The Earl of Oxford, Weekly Rep. 1854-5, p. 588. An equitable tenant for life having mortgaged his life-estate as a security to creditors, afterwards committed waste by felling timber: the remainder-men were held to be entitled to a lien as against the incumbrancers upon the rents and profits, to make good the waste. REVOCATION OF WILL. CONTRACT FOR SALE BY TESTATOR. SECONDARY EVIDENCE AS TO PARCELS, THE MAP being Lost. Andrews v. Andrews, Weekly Rep. 337. The plaintiffs were devisees under the will of the testator in the cause, and the contention was between them and the heirat-law as to a certain estate devised to them. After the date of the will, the testator agreed to sell the estate to A. Lees and W. H. Lees, the parcels being particularly delineated and described in the map or plan annexed to the contract. The purchasers entered into possession, and upon the death of W. H. Lees, A. Lees, his heir-at-law, received the rents and profits until he became bankrupt. Only a small deposit was paid to the testator at the time of the purchase, and by an order of the Court of Review he was declared to have an equitable lien on the premises for the unpaid residue of the purchasemoney; and it was ordered that the premises should be sold by auction, and that the testator should be at liberty to bid at the sale. The testator thereupon became the purchaser for a less sum than the original purchase-money. Upon a reference to the Master, the Master found that the testator had entered into the above-mentioned contract, but that the map or plan was lost. The question for the Court was, whether this contract was a revocation of the will. Vice-Chancellor Stuart held that it was. The plaintiffs contended that there was no contract, for the subject-matter was uncertain, the map or plan being lost, and parol evidence, they urged, was inadmissible, except to identify the particular map. They also argued that the re-purchase by the testator amounted to an abandonment of the contract for sale. In reference to the question of secondary evidence, the Vice-Chancellor remarked: "It would have been strange indeed if, on a contract under which possession had been taken and enjoyed by a purchaser, and under which the vendor's lien had been enforced in a judicial proceeding, and on re-sale and new title acquired by a re-purchase at a different price—that upon a question of the equitable revocation of the will, when all the facts were proved, the loss of the original plan could exclude secondary evidence as to the parcels of land which were the subject-matter of these transactions and contracts.” SPECIFIC PERFORMANCE. - INJUNCTION.-EQUITABLE DEFENCE AT COMMON LAW. The Duke of Beaufort v. Glyn, Weekly Rep. 1854-5, p. 502. In this suit, which was for specific performance, a motion for an injunction was resisted, on the ground that under the Common Law Procedure Act the defendant in the action might make an equitable defence; but Vice-Chancellor Stuart granted the injunction, observing that "when the Court entertains jurisdiction in specific performance, it is not the course of the Court to permit an action to proceed." SPECIFIC PERFORMANCE.-COMPROMISE.-VOLUNTARY AGREEMENT. Houghton v. Lees, Weekly Rep. 135. It is a clear doctrine of Courts of Equity that they will not grant specific performance of a voluntary agreement, nor even of a voluntary covenant under seal. But when the agreement is between members of the same family, and is in the nature of a family arrangement, made fairly and with deliberation, the Court will not look to the amount of consideration. WILL.-CONSTRUCTION.-"COUSINS." Stanger v. Nelson, V. C. S. Where the word "cousins was employed in a will, without any words in the context to limit its meaning, Vice-Chancellor Stuart held that first cousins once removed and second cousins of the testator were within the terms of the gift. EXECUTOR.-DEVASTAVIT.-PRIORITY.-NOTICE.-MORTGAGOR AND MORTGAGEE.-PRINCIPAL AND AGENT. Collinson v. Lister, 19 Jur. 835. It was decided by Lord Manners, in Downes v. Powers (2 Ball & B. 491), that whoever will deal with an executor for the assets of a testator, for a purpose perfectly inconsistent with the due admininistration of those assets, subjects himself to the consequences of a devastavit. Sir John Romilly, Master of the Rolls, in the present case considered that the same rule applied to a person who advanced money to an executor, confessedly for a purpose relating to the testator's estate, which is perfectly inconsistent with the due administration of the trusts, and that he does not thereby acquire any charge on the assets of the "When a person lends money," said his Honour, "to an executor, in order that he may apply it for the purposes of the testator's assets, this is a personal debt of the executor; but if, in addition to that, the lender claims repayment out of the testator's assets, it can only be in case he can show that the executor himself would have been allowed that sum in taking the accounts of the testator's estate." testator. This was a suit for the administration of a testatrix's estate. In March, 1850, the testatrix advanced 1,500l. to Fletcher on the security of a steam-vessel. Shortly afterwards she consented, at the request of the mortgagor, to permit the engines to be removed to another ship, on the terms of having a mortgage of that vessel, which the mortgagor covenanted to assign as soon as the repairs were completed. The plaintiffs were her residuary legatees, and the defendant the executor under her will. The defendant was also manager of a bank. mortgagor paid a sum of money on account of the repairs to the ship-builders prior to the testatrix's death; but afterwards, being unable to pay a further sum which was demanded, he applied to the defendant to pay the same, as the ship-builders refused to proceed with the repairs unless their demand was VOL. LIV. NO. CIX. 3 G The |