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Seale ought to repay Mr. Farwell the sum which he had paid; and secondly, that, under the 36 Geo. 3. c. 52. and the 45 Geo. 3. c. 28. the legacy duty was made a charge on the specific fund, out of which it was payable, and that the land, in this case, being the specific fund, the duty ought to be raised out of the land - Noel v. Lord Henley (1).
Mr. Bacon and Mr. Nevinson, for the defendants.-The legacy duty in this case was not charged on the fund by the 11th section of the 36 Geo. 3. c. 52. The case was provided for by the 22nd section of that act. When the money was paid to Mr. Farwell he ought to have procured the legacy duty to be ascertained, and to have paid it at once, and got rid of the question. The assignment of the legacy makes no difference. The burthen remains on the legatee, and is not shifted to the assignee -Hales v. Freeman (2). As to the question of hardship, it is the same for both. It is quite as hard for Sir J. H. Seale's representatives to pay a sum of money unexpectedly as for Mr. Farwell to do so.
Mr. Russell replied.
not, and that, I think, is the correct view of the case. I believe that not any of them thought of it. The consequence is, that Mr. Farwell probably allowed the money to pass through his hands without taking any precaution in respect of it. We must also suppose, upon the same theory, that Sir John Henry Seale regulated his bidding, and made his contract without any notion of this liability. We have it then that, so long ago as 1828, the interest of William Thomas Lear was absolutely sold to Sir John Henry Seale for valuable consideration, the money being treated as received by Mr. Farwell himself. It was a specific part of the contract between them that the matter should be so treated; the money was professed to be paid, as to two thirds, to him alone, and as to the other third to him jointly with Grace Lear and Dolly Lear, who are both dead. Mr. Farwell signed the receipt for the money, and, as between him and the estate of Sir John Henry Seale, he must be considered as having received it. That being the state of the circumstances when the suit was instituted more than nineteen years after the completion of the contract, more than six years after the reversion fell into possession, and after Sir John Henry Seale's death-can I treat Mr. Farwell as having a better equity in respect of this unlucky transaction than Sir John Henry Seale, or those who represent him ? I am of opinion that, if his equity is not inferior, it is not better. Considering it to be a hard case on both sides, I dismiss the bill, but without costs.
KNIGHT BRUCE, V.C.-I think that it is not necessary to say whether it would have made any difference in this case if I could have considered the defendants as bound, or affected, by this passage contained in the conditions of sale, namely, “subject to every incumbrance that can or may by any possibility affect it either at law or in equity," because, I am of opinion that I cannot treat the defendants as bound, or affected, by these words ; inasmuch as the deed of assignment was executed in 1828, the reversion fell into possession in 1835, Sir John Henry Seale died a few years ago, and, subsequently to his death, and not before, this suit was instituted. The question is whether, viewing the contract between the parties as depending upon that deed of assignment, I can, looking at that, and the other facts of the case, say that this legacy duty, or the possible liability to it, was in contemplation of either party at the time when the contract was made or the sale was concluded. All the counsel seem to agree that it was
(1) 7 Price, 241; s. c. 12 Price, 213.
K. BRUCE, V.C. NETTLETON V. STE
March 12. S PHENSON.
Will - Construction – Accumulation of Rents— Thellusson Act, 39 of 40 Geo. 3. c. 98.-" Per Stirpes” and “ Per Capita."
A testator devised real estate to trustees, upon trust for A. for life ; and directed them, after the death of A, to accumulate the rents for twenty-one years from the death of A, and, at the end of that period, to divide the accumulations in the manner mentioned in the will. The will did not contain any residuary devise or bequest. The testator died in 1824, and twenty-one years from his death
expired in 1845. A. died in 1837, and be divided into four equal parts, and paid twenty-one years from the death of A. would to the children of my said nephews and expire in 1858.-Held, that the heir-at. niece in manner aforesaid, or to such of law was entitled to the interest of the fund them as shall be living at that time.” accumulated between 1837 and 1845, and The testator then devised his estates after the rents of the property until 1858. the expiration of his term of twenty-one
A bequest of a fund to be divided among years, as in his will mentioned. The will the children of A, the children of B, the did not contain any residuary devise or children of C, the children of D, and to E, bequest. if he should then be living, and, if not, E.'s The testator died in July 1824. Hannah share to be divided into four parts, and paid Hallas, the tenant for life, died in February to the children of A, B, C, and D. “ in 1837. The term of twenty-one years, manner aforesaid:"—Held, that the fund reckoned from the testator's death, expired was divisible among the children per stirpes in July 1845. The term of twenty-one and not per capita.
years reckoned from the death of Hannah
Hallas would expire in February 1858. Thomas Nettleton, by his will dated the The trustees accumulated the rents from 4th of May 1824, devised all his real February 1837, the time of the death of estates in the county of York to trustees Hannah Hallas. upon trust for Hannah Hallas for her life, The bill was filed by the heir-at-law of and then declared that his trustees should, the testator for the purpose of obtaining the immediately upon the death of H. Hallas, opinion of the Court as to his rights. let the said estates to any respectable Mr. Russell and Mr. C. C. Barber tenant or tenants for the term of twenty- the plaintiff, contended that, under the one years ; and, upon receipt of the rents Thellusson Act, (39 & 40 Geo. 3.c. 98), he, and profits, to place the same out yearly as heir-at-law, was entitled-first, to the upon Government or real security, and the income of the fund accumulated between interest thereof to receive yearly, and again 1837 and 1845, until 1858 ; secondly, to place the same out at interest as aforesaid the fund already accumulated from 1845, during the whole of the said term of the expiration of the first period of twentytwenty-one years; and, upon the expira- one years, to the present time; and thirdly, tion of the said term of twenty-one years, to the rents of the property until 1858. or as soon thereafter as could be, call in They cited the whole of the said twenty-one years' Eyre v. Marsden, 2 Keen, 564; s. c. rent, and the interest and accumulations of 7 Law J. Rep. (n.s.) Chanc. 220. interest thereon, and of every part thereof, Attorney General v. Poulden, 3 Hare, and, in the next place, to reimburse them
555, and selves all reasonable and necessary ex
Elborne v. Goode, 14 Sim. 165; s. c. penses attending the execution of his will, 13 Law J. Rep. (N.s.) Chanc. 394. or of the trusts thereby in them reposed. The will then proceeded as follows“And, Mr. Malins and Mr. T. C. Wright, for after such payment, then to divide the some of the children of the testator's same between and equally amongst all and nephews contended :— first, that, under every the children of my nephew John the act, the period for distribution among Nettleton, (except his two sons Thomas and the children had been accelerated; and William who have been already otherwise that they were entitled, at once, to the fund provided for), the sons and daughters of accumulated between 1837 and 1845, the my nephew Joseph Nettleton, and the sons expiration of the first period of twenty-one and daughters of my nephew Francis Net- years; and secondly, that the children of tleton, and the sons and daughters of my the nephews and nieces were entitled to niece Mary, the wife of Percival Terry, the benefits given by the will per capita and John Nettleton the son of my late and not per stirpes. nephew Thomas Nettleton, if he shall then Mr. Nalder, for the other children, also be living, and, if not, then I give his part contended that the period for distribution or share, and order and direct that it shall had been accelerated.
Mr. C. P. Cooper, Mr. Glasse, Mr. Bacon and Mr. Elmsley, for the other parties.
KNIGHT BRUCE, V.C. said that he thought that the trust for accumulation was void, so far as it exceeded twenty-one years from the death of the testator, and that the period for the division of the accumulations among the legatees had not been thereby accelerated. The heir-at-law was therefore entitled to the interest of the fund accumulated between 1837 and 1845, until 1858, to the capital of the fund accumulated between 1845 and the present time, and to the rents of the property until 1858. He also thought that the fund, which was divisible among the legatees, should be divided between them per stirpes and not per capita ; the terms in which the testator had given the share of John Nettleton in the event of his death strongly leading to that conclusion.
directors from applying to general purposes funds authorized to be raised for specific purposes. Demurrers on the grounds of want of equity, no right of suit, inconsistent kinds of relief, and want of parties, were overruled.
The bill alleged the intended misapplication of two specific funds :-Held, that the misapplication of one only of the two funds gave the plaintiff a right in equity to restrain such misapplication. - The plaintiff had purchased two scrip certificates, upon which he had paid calls, and in respect of one of which he had since become registered holder of the shares repre. sented by it in certain new stock created by the company :-Held, that the interest which both scripholders and registered shareholders had in the stock entitled them to sue in equity in respect of it; that the company was properly made a party ; that the rights and liabilities of a scripholder were not so conflicting with those of a shareholder of stock as to render the relief prayed by the plaintif in one character inconsistent with that sought by him in the other; and that the original subscriber for the scrip or the vendor of it to the plaintiff was not a necessary party.
The question of costs was then discussed; and it was stated that, probably, they would exceed all the fund already accumulated.
KNIGHT BRUCE, V.C. said that he thought that the costs of all parties should be paid, in the first instance, out of the fund already accumulated from 1837 until 1845; and, that, if that fund was not sufficient, the deficiency should be raised out of the fund accumulated since 1845, and the rents and profits of the estate until 1858.
By arrangement, it was agreed that the plaintiff should be let into possession of the estates, he undertaking to account for the rents and profits.
The bill was filed on the 29th of December 1848 (amended on the 31st of January 1849), by the plaintiff as a proprietor both of scrip certificates for perpetual 61. per cent. stock, 1849, in the Eastern Union Railway Company, and also of some of the same stock, on behalf of himself and all other the proprietors of like scrip certificates for the said stock in the said company, or of like stock in the said company, who should come in, &c., other than and except the defendants thereinafter named, against the Eastern Union Railway Company and all the then directors.
By the Eastern Union Railway Act, 1844, incorporating the company (1), the directors were empowered to manage and superintend the affairs of the company, make and enforce calls, enter into contracts for the execution of the works, pur
(BAGSHAWE v. THE EASTWIGRAM, V.C.
ERN UNION RAILWAY March 5, 6, 28.)
COMPANY. Railway Company-Demurrer-Misapplication of Specific Funds to general Pur poses-Suit by Owner of Scrip and Stock.
A bill was filed by a holder of scrip and registered shareholder of railway stock, on behalf of himself and others, holders of like scrip or stock, to restrain a company and the
NEW Series, XVIII.-Chanc.
(1) The 7 & 8 Vict. c. lxxxv., " An Act for making a Railway from Colchester to Ipswich"; amended in 1845 by the 8 & 9 Vict. c. xciv., “An Act to amend the Act relating to the Eastern Union Railway Company, and to raise a further Sum of Money for the Purposes of the said Undertaking."
chase land, and give effect to the resolu- Junction Railway Sale Act(5) the Eastern tions of the company, but subject, as to the Union Railway Company was empowered exercise of all such powers, to the controul to create an additional numberof s hares, and regulation of any general meeting, and to borrow a sum of money not exceeding specially convened for the purpose.
100,0001., for the purchase and completion By another act in 1847 (2) the company of the Hadleigh Junction Railway (6). was amalgamated with the Ipswich and At the half-yearly meeting of the comBury St. Edmunds Railway Company (3). pany, on the 21st of August 1847, the
All the works authorized by the acts directors, in their general report, comof 1844 and 1845 had been for some time mented in strong terms on the importance completed and in a state fit for traffic. of the last two acts and the advantages to
By the Eastern Union and Harwich Rail. be derived from them. They recommended way and Pier Act, 1847 (4), the Eastern that the sum of 300,0001. should be at Union Railway Company was empowered once raised, and stated they had every to raise, for the purposes of that act, in ad- hope that they would have sufficient funds dition to the capital authorized to be raised to construct the very important branch to by other acts, any further sum not exceed- Harwich (having previously remarked that ing 200,0001., such sum to be considered this railway might be treated as a national as part of the general capital of the com- work) in a very short space of time ; and pany, and to be subject to the same pro- that a new source of revenue arising from visions in all respects, whether with refer- it, over all parts of the line, would counterence to the payment or non-payment of balance entirely every guaranteed prefercalls, forfeiture of shares, or otherwise, as ence in the stock, by which they proposed if it had been part of the original capital. to increase the capital for the purposes of The company was also thereby empowered those acts. to construct, amongst other works, a line The engineer, in his report to the direcof railway diverging from the line of the tors, at the same meeting, thus expressed Eastern Union railway at two separate himself on the Harwich line :-“It being points in the parish of Lawford, in Essex, of great importance to the company to and terminating at Harwich, and also two complete the branch line to Harwich at an small branches in Mistley. These works early period, it is desirable that advantage were to be completed within three years should be taken of as much of the present from the passing of the act (22nd of July season as possible for opening out the 1847).
works and otherwise forwarding arrangeBy the Eastern Union and Hadleigh ments for making vigorous progress in the
ensuing spring. The Harwich traffic will (2) The 10 & 11 Vict. c. clxxiv., “An Act to
then be obtained at the earliest period; amalgamate the Eastern Union and Ipswich and and when it is considered that the working Bury St. Edmunds Railway Companies.”
expense over the Eastern Union line will (3) Incorporated by the 8 & 9 Vict. c. xcvii.,
not be appreciably increased thereby, it "An Act for making a Railway from the Eastern Union Railway at Ipswich to Bury St. Edmunds"
appears important that no time should be (the Ipswich and Bury St. Edmunds Railway Act, lost; and by taking advantage of the pre1845); amended in 1846 by 9 & 10 Vict. c. cclxxx., sent autumn, it may happen that nearly a “An Act to amend the Ipswich and Bury St.
year may be saved in getting the line into Edmunds Railway Act, 1845'; and for making a Railway from the said Ipswich and Bury St.
beneficial operation. In pursuance of your Edmunds Railway to Norwich with a Branch directions, arrangements have been made for therefrom"; and amended in 1847 by 10 & 11 Vict. c. cxxxvii., “ An Act to amend the Acts relating to (5) The 10 & 11 Vict. c. xix., “An Act for the Ipswich and Bury St. Edmunds Railway Com authorizing the Sale of the Eastern Union and pany; and to enable the Company to construct a Hadleigh Junction Railway to the Eastern Union Railway from the Ipswich and Bury St. Edmunds Railway Company." Railway near Ipswich to Woodbridge.”
(6) Authorized to be constructed by 9 & 10 Vict. (4) The 10 & 11 Vict. c. ccxxv., “ An Act to c. liii. (1846), “ An Act for making a Railway from empower the Eastern Union Railway Company to the Eastern Union Railway in the Parish of Bentley make a Railway from the Eastern Union Railway to the Town of Hadleigh, all in the County of Suf at Manningtree to Harwich, with Branches thereout, folk, to be called the Eastern Union and Hadleigh and for other Purposes."
setting out the line for work immediately having paid 2501. to the Eastern Union that the ground is cleared of the harvest." Railway Company, and having engaged to
A resolution, from which the following make a further payment of 2501. on the is an extract, was submitted by the direc- 31st of December 1848, under an allowance tors to the meeting, and unanimously car- of discount from the day of payment to the ried :-“That for the purpose of construct- 1st of January 1849, at the rate of 6l. per ing the branch line from Manningtree to cent. per annum, to any of the bankers Harwich and for purchasing the Hadleigh hereinafter mentioned, viz., Messrs. Glyn railway under two acts passed in the late & Co. and others, will be entitled to 5001. session of parliament, the directors be au- stock of the said company, and to be thorized to raise, between the date hereof registered as proprietor thereof on fulfiland the 1st of January 1849, the sums of ment of such obligations ; such stock to 200,000l, and 100,0001.; to grant scrip bear interest at the rate of 61. per cent. per receipts for such amounts as may from time annum in perpetuity from the 1st of Janto time be paid up in respect of such sums uary 1849, with an option to the proprietor until each subscriber of 201, and upwards at any time during five years from that day, shall have paid the amount he may sub- to surrender such guaranteed stock for genescribe for in full, and such scrip receipts ral stock of the amalgamated Eastern Union shall entitle the holder thereof, on the 1st and Ipswich and Bury company, and such of January 1849, to become a registered dividends as such general stock may be shareholder in a new Eastern Union stock entitled to thereafter. As the above payfor the amount he has subscribed and paid ments are equally binding upon the present up in full ; upon which he shall receive a owner and his assignee, if parted with, a guaranteed dividend of 61. per cent. per condition hereof is, that in case of failure annum in perpetuity, and have the option of any of the above payments for thirty at the end of every six months within five days after the same is payable, the holder years, of converting his guaranteed stock shall forfeit his right to a guaranteed ininto the general stock of the company." terest and be entitled to participate only
The remainder of the resolution related in dividends upon such money as he shall to the fourth article of the terms of amal- have paid up, at such rate as shall be gamation between the Eastern Union and declared subsequently to the 1st of JanuIpswich and Bury companies, whereby the ary 1849, upon the general stock of the directors were bound, in the first instance, company." to offer to receive the sums proposed to be The secretary, by letter of the 13th of raised, exclusively from the holders of the January 1848, recognized the plaintiff as guaranteed 5l. per cent. and general exten- a proprietor of scrip in the Harwich branch sion scrip of the Ipswich and Bury company. line. On the 27th of December 1848 the
The whole of the 300,000l. was shortly plaintiff delivered to the secretary one of afterwards subscribed for, and all the calls the certificates, upon which he had prethereon were paid previously to the 2nd viously paid in advance the last call, and of June 1848, except the sum of 85,5001., requested that the shares represented by which would fall due and become payable it might be immediately registered in his on the 30th of December 1848. Before name. To this application the secretary the month of January 1848 the plaintiff sent the following reply: purchased two scrip certificates, numbered
“ Eastern Union Railway, London Office, 982 and 983. They were signed by the
Dec, 27, 1848. secretary of the company, and were in “ Dear Sir, I have received scrip certhe following form :-"Scrip for Eastern tificates of twenty-five shares 61. per cent. Union perpetual 61. per cent, stock, 1849, to be registered in the name of John Bagwith the instalments in course of payment. shawe, Esq., M.P. of Dover Court, Essex, Eastern Union Acts, Eastern Union and and for which purpose a new certificate Harwich Railway and Pier Act, Eastern shall be forwarded to your address. Union and Hadleigh Junction Railway “I am, Sir, your obedient servant, (Sale) Act, 1844, 1845, 1846, and 1847.
“ James F. Saunders, Secretary. Stock 5001. The holder of this certificate " To John Bagshawe, Esq. M.P.”