in the present case was in the form and terms directed in Taylor v. Jardine (13) as altered by the Lord Chancellor. It had been decided in the courts of common law since the statute, that a rule to pay the amount of an attorney's taxed bill had the effect of a judgment, and would give the attorney all the remedies of a judgment creditor- Neale v. Postlethwayte (14); that no order to pay costs was necessary after taxation Jones v. Williams (15); and that where the Master had by his allocatur on the back of a rule of court allowed to the defendant a sum for the costs of the day upon the plaintiff not proceeding to trial, execution might issue without any further rule of court directing the plaintiff to pay -Hodgson v. Paterson (16). WIGRAM, V.C. (without calling upon Mr. Kenyon Parker or Mr. Greene, who appeared for the plaintiffs) said That the difficulty which he felt was, not that the decree of the Court did not give a specific lien for the costs as suggested by the counsel in support of the motion, but that if reliance was placed upon the statute, whether it was not necessary to proceed in the manner thereby implied. If it was assumed that an order of the Court had the same effect as a decree, the proceedings under the one must be the same with those under the other. Under a decree of the Court, the party must file a bill in equity to enforce his judgment, and in the present case it would seem by analogy that the suit must be revived. At present there was no suit in which the motion could be made. There were certainly many decisions before the statute on the question of reviving for costs only, and Jupp v. Geering was a direct authority against such revivor being allowed; but the present was a very fair and equitable proposition, and one which it might be thought the Court would support. His Honour said that he would (13) 1 Hare, 316; s. c. 11 Law J. Rep. (N.s.) Chanc. 336. (14) 1 Q.B. Rep. 243; s. c. 10 Law J. Rep. (N.S.) Q.B. 134. (15) 8 Mee. & W. 349; s. c. 9 Dowl. P.C. 702; 10 Law J. Rep. (N.s.) Exch. 253. (16) 4 Man. & G. 333; s. c. 11 Law J. Rep. (N.S.) C.P. 289; nom. Hobson v. Paterson, 2 Dowl. P.C. (N.S.) 129. This was a petition filed, on behalf of a defendant who was out of the jurisdiction, for the payment out of court of the produce of a sum of 521. Os. 10d. consols, when sold, which had been carried to his separate account to the credit of the cause. The petition prayed payment to the solicitors of the residue of the money after payment to them of all costs due from the petitioner to be taxed as between solicitor and client, including the costs of and incidental to the present application. The petition was presented by the solicitors, in the name of their client, under the following authority: "Boston, Massachusetts, May 3, 1848. "In Chancery-Waddilove v. Taylor. "Gentlemen,-I hereby authorize and instruct you to take any proceedings in this suit that may become necessary for obtaining payment of my share of the fund in this suit out of court.—Signed, &c. "J. R. Waddilove. "To Messrs. R. Thomas & Son, Solicitors, Fen Court, Fenchurch Street." Mr. Bilton, in support of the petition cited Ex parte De Beaumont (1), in which the Vice Chancellor of England is reported to have made an order for the payment of (1) 13 Jurist, 354. Limitation, Statutes of-3 & 4 Will. 4. cc. 27, 42.—Arrears of Annuity charged on Land. An annuity and certain extra premiums for life insurance were charged upon lands of the grantor and secured by his covenant to pay, by a demise with power of sale of the lands charged, and by a judgment entered up and duly registered:-Held, on exceptions to the Master's report whereby six years arrears and the premiums paid within that period only had been allowed, that the representatives of the annuitant were entitled to recover the whole of the arrears of the annuity and all the extra premiums which had respectively become due to and been paid by them, or the grantee, within twenty years from the last payment by the grantor. This was the petition of John Dawson and G. W. Rowley, surviving executors of Henry Dawson deceased, the grantee of an annuity, and was in the nature of exceptions to the Master's report. The original bill was filed on the 18th of December 1846, and one of the subjects of controversy in the suit was the validity and priority of, and the subsequent dealings with the plaintiff's alleged charge on certain settled estates of Sir Francis Vincent, one of the defendants. A receiver over the estates had been appointed by the Court. By indenture of the 5th of February 1829, Sir F. Vincent and E. W. H. Schenley, in consideration of 9991. paid to them by H. Dawson, granted to him an annuity of 111. for the term of ninety-nine years if the grantors should so long live, payable quarterly, and charged by Sir F. Vincent upon part of the estates settled upon his marriage, in which he had a life estate subject to certain terms of years for raising rent-charges and other sums of money. By this indenture Sir F. Vincent covenanted with the grantee that the latter might enter and distrain for the annuity when in arrear for twenty-one days; and for better securing the annuity he demised the estates charged with it, to the petitioner G. W. Rowley for the term of 100 years, if Sir F. Vincent should so long live, upon trust to permit the latter to take the rents, &c., until the annuity should be in arrear for thirty days, and when so in arrear, then upon the usual trusts for raising the same and the arrears by sale or otherwise. Sir F. Vincent and E. W. H. Schenley also covenanted respectively with the grantee to pay the annuity, to insure their lives in a sum not exceeding 1,050l., and in the event of going abroad to pay all extra premiums, &c. which it was thereby declared should thenceforth be a charge upon the demised estates as fully and effectually as if they had been part of the annuity. A memorial of the deed was duly inrolled, and a judgment for 2,000l. (for further securing the annuity) signed by Sir F. Vincent, docketed and from time to time duly registered. In 1830 the grantee effected a policy for 1,000l. on the life of E. W. H. Schenley, then resident abroad, at an annual premium of 86l. 10s., reducible to 261. on his return to England. The grantee died in 1834 having, by his will, appointed the petitioners with two others, since deceased, his executors. No part of the annuity, premium or interest, had been paid, except the sum of 250l. By an order of the 31st of July 1848, made on a petition of the present petitioners, it was amongst other things referred to the Master to inquire whether the petitioners were entitled to any and what annuity or charge upon the estates over which the receiver had been appointed, and, if so, to state the priority of their security and what was then due in respect of such annuity, and also the priority of other incumbrances, with liberty for the plaintiff to examine each of the petitioners upon interrogatories pro interesse suo. The Master by his report of the 21st of June 1849 found, inter alia, that the life estate of Sir F. Vincent in the settled property was charged, in addition to others, with the annuity to H. Dawson and extra premiums in respect of it, and that the same had priority over two annuities of 100%. each, granted to Charles Day, deceased, and charged by indentures of the 1st of August and the 10th of September 1831, and over another of 5711. 15s. granted to J. H. Bainbridge and charged by indenture of the 25th of June 1832; but, on the priority of an incumbrance of 1,9871. and interest stated to have been created by indenture of the 23rd of March 1837, and alleged by the bill to be then vested in the plaintiff, the Master made no report, by reason of that charge and the subsequent dealings therewith being the subject of controversy in the suit. The Master allowed to be due to the petitioners twenty-four quarterly payments only of the annuity, viz., from August 1842 to May 1848, both inclusive, and such payments only for extra premiums as had been paid by them within six years from the date of the order of reference. The petitioners objected to this finding upon the grounds that they were entitled to be allowed the whole of the arrears of the annuity and the amount of all the extra premiums paid by them and the grantee of the annuity. The Master having disallowed the objections, the present petition was presented stating the above facts, and that the receiver had kept down the interest and annual payments upon the incumbrances which had priority over that of the petitioners, and that he had in hand. a large balance of the rents and profits, but not more than sufficient for the payment of the petitioners' claim. It prayed that the receiver might be discharged as to the lands comprised in the indenture of the 5th of February 1829, and ordered to deliver up possession to the petitioners, and to apply the balance in hand in payment of the petitioners' costs, and towards satisfaction of their security; and, if necessary, that it might be declared that such balance was applicable as far as it would extend to payment of all the arrears of the annuity, and such extra premiums as had been paid as aforesaid in respect of the policy, or that the petitioners might be at liberty to file exceptions to the report, or that the Master might be directed to review the same in the particulars and objections relating thereto. Mr. Teed and Mr. R. Pryor, for the petitioners, submitted that they were entitled to the whole of the arrears due in respect of the annuity and for all the extra premiums paid by them or the grantee in respect of it. The possession of the mortgagor or grantor could not diminish the right of the grantee to recover within twenty years the amount charged upon the land. In the present case there was a covenant to pay, upon which the covenantee or his representatives could sue, and a judgment confessed under which they could levy within twenty years. They cited 3 & 4 Will. 4. c. 27. s. 42. Du Vigier v. Lee, 2 Hare, 326; s. c. 12 Law J. Rep. (N.S.) Chanc. 345. Mr. Humphry and Mr. G. Lake Russell, for J. H. Bainbridge, one of the subsequent incumbrancers, argued that the petitioners had merely a personal remedy against the grantors and covenantors, and that they could not proceed as against the land for more than six years' interest. They commented at great length on the effect of the two sections cited from the above statutes, and relied upon the decisions of Sir Edward Sugden in the following Irish cases:— Harrisson v. Duignan, 2 D. & War. 295. Doe d. Jones v. Williams, 5 Ad. & E. 231. James v. Salter, 3 Bing. N.C. 544; s. c. 4 Sc. 168; 5 Dowl. P.C. 490; 6 Law J. Rep. (N.s.) C.P. 171. Hodges v. the Croydon Canal Company, 3 Beav. 86. WIGRAM, V.C.-The petitioners are entitled to an annuity, secured by three different modes, viz.,-by a demise for a term of years, with power of sale, by a covenant to pay, and by a judgment confessed and entered up. In the case of Du Vigier v. Lee I considered the construction of the English acts. That case arose between a mortgagee and mortgagor; the point here is between the grantee and grantor of an annuity. Perhaps it may be true, although certainly it is an extraordinary proposition, that the first statute (3 & 4 Will. 4. c. 27. s. 42.) took away the remedy against the person and the estate, after the lapse of six years; but the second statute (3 & 4 Will. 4. c. 42. s. 3), which was declared to come into operation prior to the former, revived the right under a covenant. Now, in my opinion, it is an equally extraordinary proposition to contend that this act should have left the right against the person, and taken it away as against the estate. Mr. Humphry has suggested that I have no jurisdiction to put any other than the plain construction upon the words of the statute; but the words are far from being clear. In my opinion, one construction is reasonable and the other unreasonable, and I hold in this case the same opinion which I expressed in Du Vigier v. Lee. I there thought that the latter act gave the remedy against the land, where there was a covenant to pay, for the whole amount of principal and interest which could be recovered from the covenantee on his covenant. There was no appeal from Du Vigier v. Lee. That was a case of interest, and this is one of an annuity; but an annuity falls within the definition of a charge under the statute. The decision of the courts of common law, in Paget v. Foley and Strachan v. Thomas, were recognized by Sir E. Sugden in Hughes v. Kelley. In Henry v. Smith he, in fact, says that in respect of judgments in Ireland, this remedy was entirely gone, until the English statutes above named were made applicable by 3 & 4 Vict. c. 105. Throughout his judgments he distinguishes between the English and the NEW SERIES, XVIII.-CHANC. Irish acts; and were it not that he confined himself to that distinction, I should probably have considered myself bound by his opinion. I still think that Du Vigier v. Lee is right, and that the land as between the grantor and the grantee is bound for the full term of twenty years. It may be remarked that these statutes are statutes of limitation, and that they were not passed merely for the protection of parties in possession of the land. As to the case between the annuitant and subsequent purchaser from the grantor, it is clear that unless there is some specific equity between the two former, the purchaser must take subject to the charge. The case is the same if the purchaser has no notice of the charge. With respect to the extra premiums, there can really be no difficulty. They are periodical payments, and the deed declares that the same, when paid by the grantee, are to be added from time to time to the annuity, and to be considered a charge upon the land. I think, therefore, that the Master must be directed to review his report in respect of what is due to the petitioners, and that the receiver must be ordered to keep down the annuity and the future payments of the extra premiums. V.C. July 18. } Ex parte APPS. Company-Winding-up Act-Liabilities of Shareholders-Contributories. Upon the winding up of a company, A, a shareholder who had received the final dividend and signed an agreement to release the directors from all further claims, was placed by the Master among the contributories :-Held, upon motion to reverse the Master's decision, that A. was still liable to further claims upon the company, and the motion was refused. This was a motion that the decision of the Master charged with the winding up of the Grand Trunk or Stafford and Peterborough Union Railway Company, whereby the name of William Apps had been inIcluded in the list of contributories of the said company, might be reversed. 3 G It appeared that in the autumn of 1845, the above railway was projected and the usual prospectus was issued, in which it was proposed that there should be a capital of one million sterling, to be raised by 50,000 shares of 201. each, and that the deposit to be made by each of the allottees should be two guineas per share. That deposits were paid upon about 17,000 shares, represented by between 300 and 400 shareholders, amongst whom was Mr. Apps, who took fifty shares in the undertaking and paid his deposit upon his shares and signed the subscribers' agreement and parliamentary contract, but was in no other way concerned in, or had any knowledge of the affairs of the company. That, at a general meeting on the 14th of May 1846, it was resolved that it was not advisable to proceed further with the bill before parliament for making the railway; and the directors were empowered to take such steps as they might deem proper to dissolve the company and make a return of the amount of deposits received, less the expenses incurred. It was also resolved that out of the balance of 22,2681., as shewn by the statement of the directors' report, a return of 21s. per share be forthwith made to the shareholders and the remainder of the deposits over and above the expenses be returned, so soon as the same could be finally ascertained. That, in pursuance of these resolutions, the sum of one guinea per share was paid back to the shareholders, who thereupon gave up the scrip held by them. That, subsequently, a further sum of 2s. 6d. per share was repaid to the shareholders, who then signed an agreement to release the directors in the following terms:-"Gentlemen, In consideration of receiving from you 2s. 6d. per share, being the final instalment held by me in this company, I undertake to sign a release to you, the provisional directors of the said company, when called upon to do so."-That, subsequently, Mr. John Carter, one of the committee of management of the said company, petitioned the Court for a winding-up order, under the act of 11 & 12 Vict. c. 45, and the Vice Chancellor of England granted the same upon reading the affidavit of the said John Carter and of Herbert Broom, another of the said committee of management, who stated that the company had been dissolved, but not completely wound up, and that there were still outstanding debts and claims upon the company, arising chiefly from a fraud which had been practised upon the directors to the extent of 1,500l. and upwards, by means of the names of the directors and secretary having been obtained or forged to scrip of the said company which had never been issued to shareholders, and that such scrip had been circulated and presented to the bankers for payment of the 1. 1s. dividend. When the case came before the Master in order that the company might be wound up, Mr. Apps's name was placed with others (who had received back their share of the deposit and signed the release) as contributories; and this case was brought before the Court in order that a decision might be obtained as to all the shareholders similarly situated. Mr. Rolt and Mr. Maule, on behalf of Mr. Apps, now contended that his name ought not, under the above circumstances and upon the view of the law as laid down by the Vice Chancellor Knight Bruce in the case of The London and South Essex Railway Company, decided on the 8th of June 1849, and in The Vale of Neath Brewery Company, Ex parte Morgan (1) and on the authority of several cases at common law, of which Walstab v. Spottiswoode (2) was the principal, to be retained as a contributory. That as regarded third parties, Mr. Apps was never a partner, and that such projects could not be considered partnerships until the act of parliament was obtained, and that all the preliminary expenses fell upon the promoters and acting directors, so that Mr. Apps had a just claim at common law for the whole of his deposit. The 58th clause of the Winding-up Act of 11 & 12 Vict. c. 45, expressly enacted "That, except as by that act was provided, nothing in the act contained should extend or enlarge, diminish, prejudice, or in anywise alter or affect the rights or remedies of the company against any contributories or other persons." It was also contended that if Mr. Apps were made a contributory at all (1) 1 De Gex & Smale, 750; s. c. 1 Hall & Tw. 320; ante, p. 265. (2) 15 Mee. & W. 501; s. c. 15 Law J. Rep. (N.s.) Exch. 193. |