memorandum, dated the 29th of November, 1848, whereby the plaintiff agreed to sell, and the defendant agreed to purchase, for 2001. certain specified articles and things then being in or about the said demised premises; and whereby the plaintiff also agreed to execute an assignment of his interest in the said premises to the defendant from the 25th of December then next, on which day possession was to be given to the defendant. The bill further set forth a correspondence, shewing that the defendant, after postponing payment of the purchase-money, and requesting the plaintiff to prepare the assignment, ultimately broke off the contract; and it prayed a declaration that the defendant had accepted the plaintiff's title, and a decree for specific performance of the agree

ment.

The defendant demurred generally to the bill for want of equity.

Mr. Schomberg supported the demurrer. on three grounds: first, that no title was shewn on the bill, inasmuch as it did not allege that the surviving lessor was ready or willing to consent to license the assignment, or that the plaintiff could obtain his consent; secondly, that the consent of both lessors was required, and the bill contained no properly pleaded averment that one of them was dead; and, thirdly, that there was no allegation in the bill that the plaintiff had assigned his interest in the goods and chattels, for which alone the consideration-money was to have been given. Nothing was to be paid for the assignment of the lease; and the Court would not decree specific performance of a contract merely for the sale of goods and chattels. He cited

Wafer v. Mocato, 9 Mod. 112.

Lord Uxbridge v. Staveland, 1 Ves.

sen. 56.

Kemp v. Pryor, 7 Ves. 237.

Balls v. Margrave, 3 Beav. 284; s. c. 10 Law J. Rep. (N.s.) Chanc. 36. [WIGRAM, V.C.-The plaintiff has stated unnecessarily the covenant not to assign without licence, but no averment that the licence has been obtained. The only ques

tion is, how far is such an averment necessary in strict pleading?]

Mr. Wood and Mr. Southgate, in support

of the bill, relied upon Dumpor's case (1). The licence to assign having been once given, the power to give it afterwards was gone, and only the remedy on the covenant remained. In the present case the covenant only extended to the lessee, his executors and administrators, but not to his assigns. The lessee might be liable to an action on his covenant; and yet the assignment might be good. The bill did not shew any proviso that an assignment without licence would work a forfeiture. The solicitor of the surviving lessor had informed the defendant that the licence, if requisite, would be given. The Court would, at the hearing of such a cause as the present, refer it to the Master to inquire into the title.

Paul v. Nurse, 2 Man. & Ryl. 525; s. c. 7 Law J. Rep. K.B. 12.

Noel v. Hoy, cited in Sug. Vend. and

Purch. p. 413, 11th edit.

Mr. Schomberg, in reply, submitted that Dumpor's case was not applicable. In that case there was only a condition, which being once waived was lost for ever; but the present was the case of a covenant running with the land,

WIGRAM, V.C.-The objection taken by the demurrer is one of very strict pleading. The question is whether the omission in the bill of an averment that the licence would be obtained, would be sufficient at the hearing of the cause (and nothing more was admitted, stated, or proved than what appeared on the bill,) to deprive the plaintiff of a reference in respect of the title. The bill stated a covenant not to assign without licence, but did not state any proviso for re-entry on breach of the covenant. For anything, therefore, that appeared, the plaintiff might have a legal if not an equitable title to the premises, although he might still be liable for a breach of covenant. Without giving any opinion as to what might have been the effect on the case if there had been a proviso for re-entry, I think I shall be bound by the authorities to give the plaintiff at the hearing the benefit of a reference to the Master to inquire whether a good title can be made.

Demurrer overruled.

(1) 4 Rep. 119 b; and 4 Byth. Prec. 375, 3rd

edit.

A testator gave certain portions of his real and personal estate to trustees, for payment of his debts; and he specifically gave several portions of his real and personal estate to different parties "freed from his debts ;" and also bequeathed his residuary personal estate "freed from his debts." One of the devised estates was subject to a mortgage. The funds primarily applicable being insufficient to discharge all the debts, the property which passed under the residuary clause was held to be the next fund which ought to be resorted to for that purpose; and the devisee of the mortgaged estate was declared to be entitled to have the mortgage paid off out of the residuary

estate.

This was a suit for the administration of the estate of Frederick John, Lord Monson; and the principal question was raised between the residuary legatee and the devisee of a mortgaged estate: the point in dispute being whether the residuary estate ought to be applied in satisfaction of the debt secured by mortgage of the devised estate. The testator made his will, dated the 5th of August 1841, and thereby appointed and devised, "freed and discharged from all his debts, and all annuities, legacies and bequests," the manors of Gatton and Linkfield, and all other his freehold estates in Surrey, for the benefit of his mother, the Countess of Warwick, for her life, with remainders over for the benefit of the present Lord Monson and his issue. And he gave and devised all his copyhold estates in the county of Surrey upon such trusts as would best correspond with the uses and trusts thereby declared of his freehold estates in that county; and he gave and bequeathed, "freed and discharged from all his debts, annuities, legacies, and other charges effected by him," certain leasehold tenements in Surrey, and all his household furniture, &c., in his house at Gatton, or upon any part of his Surrey estates, upon such trusts as would best correspond with the uses and trusts of his freehold estates

in Surrey. And he gave and bequeathed,

NEW SERIES, XVIII.-CHANC.

"freed and discharged as aforesaid," certain family jewels, upon trust for the Countess of Warwick for her life, and then upon the same trusts as were therein declared by him concerning his household furniture at his house at Burton in Lincolnshire; and he gave and bequeathed, "freed and discharged as aforesaid,” all his household furniture, &c., at Burton, and some family plate, upon such trusts as would best correspond with the uses declared by his father's will concerning the freehold estates thereby devised, comprising the mansion-house at Burton, and other property; and the testator appointed and devised all his Lincolnshire estates, which were at his own disposition, to trustees, upon trust to sell; and after providing for the due payment of an annuity to the Countess of Warwick during her life, upon trust in the next place to pay and apply the monies arising from such sale, in satisfaction of all debts, whether secured by mortgage, judgment, or otherwise, which at his decease might be charged upon all or any of his freehold or copyhold estates in Surrey; and in the next place, to pay off all his other debts, and his funeral and testamentary expenses, and the annuities and pecuniary legacies given by his will, together with the legacy duties; and to stand possessed of the surplus, if any, upon the trusts therein mentioned. And he directed that until the sale of the Lincolnshire estates, the trustees should hold them upon proper trusts for indemnifying his freehold and copyhold estates in Surrey from all incumbrances which might be charged thereon at the time of his decease; it being his intention that the said Surrey estates should be held and enjoyed freed and discharged from all incumbrances whatsoever effected by him. And the tes

tator gave and bequeathed all his debts secured by mortgage, warrant of attorney, bond, or other specialty, arrears of rent and cash at his bankers to trustees, upon trust to apply the same in payment of his funeral and testamentary expenses, and his simple contract debts, and subject thereto, upon the same trusts as the monies to arise from the sale of his Lincolnshire estates. The testator then gave divers annuities and pecuniary legacies; and he lastly gave and bequeathed, "freed and discharged from all

T

his debts and liabilities, and the legacies therein before bequeathed, and the duties payable on those legacies and annuities," all the rest and residue of his personal estate to the plaintiff Lord Brooke, for his own benefit.

The testator died in October 1841. The Master, by his report, dated in February 1848, found that the real and personal estate which the testator had directed to be applied in payment of his debts, legacies and annuities, were deficient for the payment of his debts alone, and that the Surrey estates were still subject to incumbrances to a considerable extent, although part of them had been paid off in manner directed by the will by monies arising from the sale of the Lincolnshire estates, and from the personal estate appropriated by the testator for this purpose. The cause came on to be heard before Vice Chancellor Knight Bruce for further directions in July 1848; and by the order then made, it was, among other things, declared that after such parts of the testator's personal estate as were included in the bequest of "debts secured by mortgage, &c." and the monies arising from the sale of the Lincolnshire estates had been exhausted, the residue which had been bequeathed to the plaintiff was next to be applied in discharging the mortgage debt still due on the Surrey estates; and it was ordered that so much of the mortgage debt as might not be discharged by those means should remain a charge on those estates. The plaintiff appealed from that decision, and contended that he ought to have the residue discharged from the obligation to pay off any part of the mortgage on the Surrey estates.

Mr. Bacon and Mr. Shadwell appeared for the appellant.

Jan. 18.-The LORD CHANCELLOR, after stating the will.-The contest in this case is between the devisee of the Gatton estate, which is subject to the mortgage, and the residuary legatee; and the question is, whether the money which still remains due on the mortgage must be paid out of the Gatton estate or out of the property which passed under the residuary clause; and I feel no difficulty in coming to the conclusion that the Vice Chancellor put the right construction on this will. The devisee of the Gatton estate and the residuary legatee were both intended by the testator to be freed from the debts. But the testator could not discharge the residuary estate from his debts, although he might exonerate any particular portion of his property. Independently of other arrangements, there is a provision in the will which renders his intention evident respecting the Gatton estate. I refer to the provision where he says, "It being my intention that the said Surrey estates should be held and enjoyed freed and discharged from all incumbrances whatsoever effected by me." The manifest intention of the testator is, that the estate which he devised, and which was subject to the mortgage, shall be freed and discharged from debt. He has expressed no such intention that the residuary estate should be dealt with in a similar manner. In that view of the case, there can be no doubt that the devisee is to have the devised estate discharged from its incumbrances by means of the estate liable at law to pay the debts, that is, the personal estate. Has, then, the testator expressed any intention applicable to the particular facts which have occurred? No; but he has shewn an evident intention of discharging the devised estate. How, then, can the devisee of the Gatton estate be prejudiced by the insufficiency of the particular fund which was

only way in which the case was attempted to be argued was this: that the gift of residue was a specific gift. This is founded on the supposition that the testator has disposed of it as a particular fund. There may be many cases where residuary clauses must be considered not as general dispositions of the residue, but as dispositions of the residue of a particular fund; and such gifts would be equally specific with gifts of

other parts of the fund. In an ordinary gift of the residue, part to A. and part to B. and the residue to C, C. is as much a specific legatee as either of the former legatees A. or B. But this is a general gift of the residuary estate. What, then, is residuary estate? That which remains after payment of the debts. The testator gives it discharged from his debts; but he cannot do that unless he provides for the payment of them by other means; therefore, if he has expressed an intention of doing what he is incapable of effecting, it must fail. The appeal must be dismissed with costs.

Joint-Stock Companies Winding-up Act, 11 & 12 Vict. c. 45.

A mining company on the cost-book system, formed before the passing of the JointStock Companies Winding up Act is not within its operation.

A dispute having arisen between a mining company and one of the shareholders respecting his liability to pay calls, the company procured one of their creditors to bring an action against him. He served notice of the action on the company as required by the act, but they took no steps to stay the action, or indemnify the shareholder, who thereupon presented a petition for the dissolution and winding up of the company. There were no circumstances to satisfy the Court that the company were not in a solvent condition :· Held, that although the case came within the strict letter of the act, yet as the action arose out of the dispute between the shareholder and the company, and not from their inability to pay, he was not entitled under the circumstances to an order for winding up the

concern.

Where the tests which are directed by the act to be applied to try the solvency of a company, strictly and literally apply to a particular company, but the presumption arising therefrom is rebutted by evidence, so that there is no reason to believe that the company are insolvent, the Court will refuse to interfere.

In 1845 an association was formed for the working of certain tin mines in the parish of Wendron, in the county of Cornwall, called the Wheal Lovell Mining Company, divided into 500 shares of 251. each, and carried on upon the principle known as the cost-book system. The petitioner Mr. Wyld subscribed his name for five shares in the company, and paid 251. for calls thereon. It appeared from the balance sheets, which had been made out by the manager, that the expenditure of the association exceeded the receipts, and the petitioner declined to pay more monies upon his shares, and was desirous of retiring from the association. The other shareholders, however, objected to his withdrawing, until he had paid his proportion of the losses of the association; and at the instigation of the manager an action was

brought against him in the Court of Exchequer for the sum of 1617. 2s. 8d., for a debt alleged to be due from the mining company for machinery. The petitioner thereupon, on the 30th of October 1848, served a notice upon the purser or secretary of the association, under the provisions of the Joint-Stock Companies Winding-up Act, 11 & 12 Vict. c. 45, stating, that unless the debt and costs were paid or secured within ten days he should present a petition for the dissolution and winding up of the affairs of the association. The association neglected to make such payment, and this petition was now presented, praying that the Wheal Lovell Mining Company might be ordered to be dissolved and wound up, either forthwith or conditionally on the non-fulfilment of such terms and by such parties as the Court should think fit, or that it might be referred to the Master to make preliminary inquiries as to the necessity or expediency of the dissolution and winding up of the company. The petitioner, by his affidavit, stated his belief that the whole 500 shares had not been subscribed for and paid up. From the affidavits filed on behalf of the company it appeared that calls had been made on the shareholders in respect of which a sum of 115. was alleged to be due from Mr. Wyld on account of his shares: that the purchase-money for the mine was 11,2007. : that the whole of this sum, and the expenses of working, except 1,4177., had been paid

out of the profits; that the machinery was worth 6,000l., and that the mine was likely to be worked at a remunerating rate.

The Vice Chancellor Knight Bruce ordered that the petitioner should be at liberty to pay to the plaintiffs in the action at law their debt and taxed costs, without prejudice to any question; and that William Carne, the purser of the company, should within ten days after notice of such payment, and of the amount paid, and also of the amount of the petitioner's costs in the action should have been left at the countinghouse of the company, be at liberty to pay to him the amount of the said debt and costs, after deducting therefrom the sum of 1157., the amount due from him in respect of the calls, and that the same be received and paid without prejudice to any question between the parties; and that in case such payment be not made by the company within the time aforesaid the affairs of the company ought to be wound up, and the company dissolved. A motion was now made on behalf of the company to discharge that order.

Mr. Rolt and Mr. Follett, in support of the motion, contended that the company did not come within the operation of the act, and that even if it did, there were no circumstances in this case which would induce the Court to interfere, the company being perfectly solvent, and the petition being presented with the view of inducing the company to come to terms with the litigant shareholder.

Mr. Bacon and Mr. J. H. Palmer, for the petitioner, insisted that the terms of the act were so comprehensive as to embrace all mining companies even if the concern consisted of only two partners, and that the facts of the case came literally within the meaning of the act, an action for debt having been brought against a shareholder, of which the company had notice but which they neglected to pay or secure. The petitioner therefore was entitled to the relief he prayed.

January 29.-The LORD CHANCELLOR. -The company or co-partnership in question is a mining association which had existence before the passing of the 11 & 12 Vict. c. 45, and consequently under the 1st section of that act would not be in

cluded among the companies affected by it. The 1st section of the act brings all the companies affected by certain recited acts of parliament within its operation, and then comes this general description: "And to all companies, associations, and partnerships to be formed after the passing of this act, whereof the capital or the profits is or are divided or to be divided into shares, and such shares transferable without the express consent of all the copartners." The company in question therefore would not be within the act unless the 2nd section includes it. Now, the 2nd section is in these words: "And be it enacted, that all associations or companies formed for the purposes of working mines or minerals, and all benefit building societies other than such as are duly certified and inrolled under the statutes in force respecting such societies, shall be liable to the operation of this act." is contended that this section brings all mining companies, whether they answer the description in the 1st clause or not, within what is called the operation of the act; and the question which I have to consider is, whether that is the right construction of the 2nd clause, or whether, as it is contended for on the other hand, it is merely a mode adopted by the legislature of declaring that such associations are to be associations considered as among the enumerated associations to be operated upon by the act.

act.

It

Now the 1st section describes the sort of companies that are to be the subjects of the It therefore describes certain companies which were within the operation of prior acts, particularly the 7 & 8 Vict. cc. 110, 111; and then it uses those general words, confining the operation of the act, as might be expected, to such companies as should be formed after the passing of the act. One construction therefore contended for is simply this, that the 2nd clause is merely an addition to the description of companies to be affected by the act. The other construction is, that all companies and all partnerships within one description or another, provided they relate to mining, are to be within the operation of the act. Now, in the first place, taking the words by themselves without any reference to the consequences that might flow from one