1. EX PARTE WALKER V. THE SHREWSBURY AND HEREFORD RAILWAY. 1 Drew. 508.

Agreement ·Construction of — Act of Parliament - Compulsory Powers under.

An agreement was entered into between a landowner and a Railway Company, having compulsory powers to take land, that if the Company should make their line, they should pay for such, if any, of the land as they should so take, at the rate of 500l. per acre; and in consideration of such agreement, the landowner agreed that he would permit the company to take such land, under the authority of their Act, on those terms. The landowner died ; and then the Company took some of his land. It was held by Sir R. Kindersley, V. C., that the money belonged to his real, and not to his personal representatives. "This case," said his Honour, "turns on the construction of the contract, and is not within the authorities. . . . The contract arranges the price, and does nothing more. The terms of the contract show that to be its meaning. The Company had not made up their mind as to the precise line they would adopt. What is it that, under these circumstances, they contract for? Not that they will purchase any given quantity of land, but that, when they shall have determined on the construction of their line, and want the land, they will pay for such land as they shall take 500l. per acre. There is no agreement for the purchase of land; the agreement is merely, that if they take any land under the compulsory powers of their Act, the amount to be paid shall not be determined by a jury, but shall be 500l. per acre. For these reasons, without adverting to the authorities, it appears to me that the money paid in is not part of the personal estate, but was, at the death of the person who entered into the agreement, real estate, for the benefit of the persons entitled to his real estate."

2. KERR V. THE MIDDLESEX HOSPITAL. 2 De Gex, Mac. and Gord. 576.

A question often arises in the construction of a will where annuities are given, whether they are intended to be perpetual or for life only. The Lord Chancellor (Lord St. Leonards), in the above-mentioned case, thus lays down the law upon the subject:"It is perfectly settled, that if an annuity be given simpliciter, that is, to one generally, a life interest only passes. It is equally,

I believe, undisputed, that if an annuity be directed to be provided out of the proceeds of property, or out of property generally, if an annuity is to be brought into existence by the application of property, and that annuity is given to a party generally, he will take the property appropriated to purchase the annuity, and therefore the annuity in perpetuity, if purchased. .... Whatever sum therefore it would cost to produce the annuity must be invested for that purpose, or the annuitant may elect to take such principal sum." In the case of Kerr v. The Middlesex Hospital (heard by the full Court of Appeal), where these observations were made by Lord St. Leonards, it was held, overruling the decision of Sir J. Romilly, M.R., dissentiente Lord Justice Lord Cranworth, that certain annuities there in question were perpetual. There a testator, by his will, bequeathed as follows: :- ."I desire that my executors shall purchase annuities for each of my two sisters, E. B. and E. F., of 1007. a year each, the said annuities to be purchased in the British Funds." After giving other annuities simpliciter and legacies, the testator added, "I direct my landed property at O. to be sold by auction,' and the produce to go to the carrying out of the aforesaid annuities and legacies; and should the produce of the said sale not be found sufficient for that purpose, I desire that the remainder shall be made up from my personal property." And he directed the remainder of his personal property, "after the above annuities and all legacies have been paid and effected," to be laid out "in the purchase of an annual income in the 37. per cent. consols, for the benefit of the Middlesex Hospital." Lord Cranworth, dissenting from his colleagues, considered that the annuities were merely for life, and thought that the case was not governed by Stokes v. Heron (2 Dru. & War. 89. s. c. on appeal 12 C. & F. 161.) Lord Justice Knight Bruce, on the contrary, considered himself as bound by Stokes v. Heron, but particularly wished to guard himself from being understood as intimating how he should have been disposed to deal with the case if that of Stokes v. Heron had not existed. Lord St. Leonards, however, considered that in that case it was much more difficult to construe the gift as a perpetual annuity, and could not qualify the expression of his opinion, which he strongly entertained, notwithstanding that of Lord Justice Lord Cranworth and the doubt expressed by Lord Justice Knight Bruce.

3. IN THE MATTER OF POWELL'S TRUST. 10 Hare, 134. Stat. 3&4 Will. 4. c. 42. s. 28.

Annuity-Arrears - Interest.

The question in this case was whether interest ought to be allowed upon the arrears of an annuity; and it was held in the negative by Sir George Turner, upon the authority of Booth v. Leycester (3 My. & Cr. 459.), and Martyn v. Blake (3 Dr. & War. 125.). It was attempted to support the claim for interest upon the provisions of the statute 3 & 4 Will. 4. c. 42. s. 28., but his Honour said that the statute did not appear to him to affect the question, for the Court of Chancery, before the passing of this statute exercised some discretion as to allowing or not allowing interest on arrears of annuities; and there was no reason why the statute, which merely gave powers to juries to allow interest if they should think fit, vesting some discretion in them, should be taken to have altered the rules by which the discretion of the Court was guided. His Honour considered that the cases of Hyde v. Price (8 Sim. 578.) and Crosse v. Bedingfield (12 Sim. 35.) depended upon special circumstances.

Voidable Conveyance from Client to Solicitor

4. STUMP v. GABY. 2 De Gex, Mac. & Gord. 623. Confirmation by WillPleading. In this case an heir at law filed a bill, alleging that his ancestor, when in very embarrassed circumstances, had executed a voidable conveyance to his solicitor. The bill, after stating a pretence on the part of the defendants, who claimed under the solicitor, that the ancestor had confirmed the conveyance by his will, charged that he had died intestate as to the premises in question, and prayed that the conveyance, and any testamentary disposition by him in confirmation thereof, might be declared null and void. A plea was put in, that the ancestor, by his will, after reciting the probability of the conveyance being disputed, had ratified and confirmed it, was allowed by the Lord Chancellor (Lord St. Leonards). With reference to one argument urged on behalf of the plaintiff, that the ancestor had a mere right of entry, which at the date of the transaction in question was not devisable, his Lordship said he was clearly of opinion that it was not a right of entry, as the whole legal fee-simple passed by the conveyance, but a devisable interest. That a person in such circumstances executing a conveyance to his attorney, in the view of the Court remained the owner, subject to the repayment of the money which had been advanced by the

attorney; and the consequence was, that he might devise the estate, not as a legal estate, but as an equitable estate, wholly irrespective of all question as to any rights of entry or action, leaving the conveyance to have its full operation at law, but looking at the equitable right to have it set aside in the Court of Chancery. With regard to the second point argued on behalf of the plaintiff, viz., that the confirmation was of no avail, because it was not shown that the person confirming was made aware of all the circumstances under which the fraud existed, and of his right to have the former voidable instrument set aside, his Lordship made the following important observations: "It is beyond dispute that a man may, if he pleases, confirm a voidable conveyance; and if a client, dealing with his solicitor, executes a voidable instrument, and afterwards chooses to confirm it by will, he clearly may. The difference between the confirmation of such an instrument by a contract between the same parties and a testamentary disposition is, that where a client deals with an attorney, and the latter commits what may be considered a fraud in this Court, and then induces the client to confirm that dealing, the attorney has to show that the confirmation was made by the client with a full knowledge of his rights to set aside the conveyance. I have nothing to do with such case, nor do I wish to disturb the decisions on that head; but here there was no such dealing; the party was disposing of his own property by will in favour of a person with whom he had previously been dealing; and it was equally competent for him to have disposed of the same property in favour of

any other individual. It was a testamentary act, it was not a matter of contract, and the will, therefore, is the guide under which the Court must act; the testator has devised the estate in express terms; and my opinion is, that if he had not so devised it, but had simply said, referring to the prior conveyance, 'I confirm it,' that alone would have been a valid confirmation."

In this case where trustees stated by Lord Langdale, M. R., to have been "wholly guiltless of any bad design, and intending to do nothing but acts of kindness towards other parties," had, in consequence of omitting to perform duties with which they had been charged, been made liable for a breach of trust, his Lordship made the following observations with respect to costs: "I do

breach of trust, in which they have not been charged with the costs of the suit. It is almost always a necessary consequence, for they ought not to add to the loss of their cestuisque trust the costs of the suit rendered necessary for the purpose of obtaining redress."

6. THE COPPER MINING COMPANY V. BEACH. 13 Beav. 478.

Covenant for perpetual Renewal of Lease - Form of renewed Lease. This case, though often referred to by conveyancers in argument, and decided by Sir John Leach, has not been hitherto reported. It appeared that a lessor granted a lease, and entered into a covenant, that he would always, at any time when requested by the lessees, demise the premises for the further term of thirty-one years, in which new lease were to be contained the same rents, covenants, articles, clauses, provisoes, and agreements. It was held that this amounted to a covenant for perpetual renewal, and that the proper form of lease to be granted by trustees was a demise for the new term reciting the original covenant by the testator.

7. EX PARTE THE BISHOP OF WINCHESTER.

10 Hare, 137. Purchase Money and Compensation — Investment · dends.

Divi

The Bishop of Winchester, being the lessor of lands of the see, demised them for lives and years. Part thereof was taken by a Railway Company; and the purchase-money and money for compensation on account of damage and severance was paid into Court. An application being made by the bishop, that the dividends on the sum invested might from time to time be paid to the bishop and his successors, until the further order of the Court, Sir George Turner, V. C., expressed his opinion to be that the bishop was not entitled to any portion of the sum invested, or the dividends to accrue upon the stock to be purchased therewith, until the lease or leases respectively, in which the several parcels of land taken by the company were comprised, should become renewable; and that, when the leases or either of them became renewable, the bishop might apply for the payment out of the fund of the deficiency of the fine occasioned by the diminution of the quantity and value of the land comprised in the renewed lease or leases.