V.C. S.] MARRIOTT v. KIRKHAM-MORRIS v. Cannan. Feb. 27 and 28. MARRIOTT v. KIRKHAM. [V.C S. Practice-Suit for foreclosure or sale-Parties-15 16 Vict. c. 86, s. 42, rule 9. In a suit for foreclosure or sale, the surviving trustee and executrix of the mortgagor, being also tenant for life of the mortgaged property, sufficiently represents the persons interested in remainder. This suit was instituted for the purpose of obtaining the foreclosure or sale of certain property in Cheshire. By an indenture of mortgage, dated the 6th April 1818, one John Kirkham demised the property in question to one Peter Snelson, his executors, administrators and assigns, for the term of 1000 years, subject to a proviso for redemption on payment by the said John Kirkham, his heirs, executors, or administrators, of the sum of 300l. with interest. At the time when the bill in this suit was filed the said term of 1000 years and the mortgage-debt were vested in the plt. Annie Maria, the wife of the plt. Robert Marriott. that, if an admeasurement of that kind had taken place, then there would have been an ascertainment with accuracy and certainty of what the quantity was. But, if that were so, what was the use of providing for an error? If an actual admeasurement would have made the thing a matter of certainty, what is the use of stipulating as to the possibility of an error? Now, the word "presumed" is one to which I called the attention of counsel, and it is one on which they have offered no observation which strikes my mind as in the least degree removing its effect, when taken with the word "admeasurement." "The admeasurements are presumed to be correct; that is to say, the vendor is acting on a presumption. He presumes that what he states is correct; but, if he be wrong, he warns the purchaser that it is to make no difference. There would be no need of the word "presumed," if the word "admeasurement" is to be read in the sense for which the plt contends. Looking at the particulars of sale, the statement of quantity, and this stipulation, I cannot attach to it any rational meaning, other than this-that the word "admeasurement means, if the quantity which we have stated, of so many acres, which we presume to be correct, should be found to be mistaken, neither party is to have any claim. Suppose it had turned out that the mistake had been in understating instead of overstating the quantity. I asked the counsel for the plt. if, instead of what is called 7000 square yards being 4000 in quantity, it had turned out there had been 10,000, what would have been their position then? Why, it is perfectly plain that the vendor sold this particular plot of ground with this condition, that, if his presumption that it contained 7000 turned out to be wrong, and it contained 10,000, he should have no remedy whatever, and that the purchaser would be entitled to hold him to the contract. So when the error consists in a deficiency. The essence of the stipulation is, that what is stated is stated presumptively; and that, if that presumption turns out to be erroneous, neither party is to claim compensation on either side. That is really the whole question in the case; for, as my opinion is that the plt. is not entitled to a compensation on the construction of the contract as contained in these conditions of sale, it is needless to go into the other questions. I have already stated that, on the form of the suit, the bill being for specific performance, it is not competent for this plt. to say he will elect to give up the contract, unless the deft. takes that view. Therefore, in my view, the plt. must have a decree for specific performance, without payment of any compensation, and on payment of the full price. That disposes of the only question in the case. Malins, Q.C. asked for the costs. over. The VICE-CHANCELLOR said he felt no doubt about the costs. On reading the answer, particularly as to the reference to counsel and the change of solicitors, he thought the conduct of the plt. had been in the highest degree unreasonable. The deft. was entitled to costs, including those of the reference. Declare that, upon the construction of the contract, the plt. is not entitled to compensation in respect of the mistake as to quantity; decree specific performance of the contract; order payment by the plt. to the deft. of the purchase-money and interest, the amount to be verified by affidavit; order conveyance by the deft. on such payment, with reference to chambers to settle the conveyance if the parties differ; the costs to be taxed and paid by the plt. to the deft. Solicitors: Hawkins, Bloxam and Hawkins, agents for Wells and Ridehalgh, Bradford; for the deft., George and Wade, Bradford. The said John Kirkham by his will, dated the 7th May 1850, after a specific devise to his wife, the deft.. Sarah Kirkham, gave, devised and bequeathed his leasehold property, and all the residue of his real. estate, to his said wife, and to S. H. B. Bond, their heirs, executors, administrators and assigns respec- tively, upon trust to permit his said wife to receive the rents and profits thereof for her life; and after her death he directed his trustees to sell all his real estate, and to divide the money to arise from the sale thereof into three equal portions, and to pay the said portions. respectively to the persons therein mentioned. And he appointed his wife, the deft. Sarah Kirkham, and the said S. H. B. Bond, to be the executors of his said will. The said John Kirkham died on the 16th Oct. 1851, and his will was proved by both executors on the 16th Oct. 1852. The said S. H. B. Bond died on the 16th Oct. 1858. The bill was filed on the 15th June 1861 against Sarah Kirkham, the surviving trustee and executrix of the will, as sole deft. Bardswell for the plts. The VICE-CHANCELLOR said he would make a decree for foreclosure. Bardswell asked for a sale. Renshaw, for the deft., objected that the persons interested in remainder under the will of John Kirkham ought to be parties to the suit. Bardswell referred to 15 & 16 Vict. c. 86, s. 42, rule 9, and also cited Goldsmid v. Stonehewer, 9 Hare, App. 38; Hannan v. Riley, Ib. App. 40; and Siffken v. Davis, Kay, App. 21. (a) The VICE-CHANCELLOR was of opinion that, as the deft. was surviving trustee and executrix of John Kirkham's will, and also tenant for life of the mortgaged property, the persons in remainder we ere sufficiently represented. He should therefore decn." tree a sale, and he thought it should be an immediate so ordale. Renshaw submitted that it was contof tice of the court to decree an immedi The VICE-CHANCELLOR held ed frary to the prac tate sale. accordingly made a decree for an i, urged that it was not, and trusteemmediate sale. es of March 1 az afor him. MORRIS v. C guments Bankrupt law-Order and shares in blank-12 & D., the owner of shares ployed a stockbroker after the Schroder Jere must be nd 3. ANNAN. disposition-Transfer of 13 Vict. c. 106, s. 125. ingly sold them to the Yet, where tin a joint-stock company, em purchase-money and, to after-acqto sell the same, who accord fers for fifty shay was intene plt. The broker received the operation of h handed to the plt. three transThis viewres each, executed by D., with (a) See further, the con. M'Leod, Stenning and Watney, agents for Rawson, 119: Wilkins v. Reeveprovision contai Mellersh, 24 L. J. 430, ases of Sale v. Kitson, 3 De G. M. & G 8, 24 L. T. Rep. 337; and Cropper ▼ Ch. ; 24 L. T. Rep. 267. blanks for the name of the transferee and for the date. On the same day, and before the completion of the purchase, the certificates were taken by D.'s brother to the company's office; a memorandum was made in the company's books that the shares had been sold by D., and the assistant secretary of the company wrote on the margin of each transfer a memorandum to the effect that the certificates had been deposited at the office of the company. Eleven days afterwards D. was adjudged bankrupt. The plt., being unaware of D.'s bankruptcy, subsequently sold part of the shares, and the transfers were then filled up with dates subsequent to that of the bankruptcy, one of them with the plt.'s name, as transferee from D., and the others with the names of the plt.'s purchasers as transferees from D.: Held, that there had not been such a dealing with the shares, as regarded their custody or apparent ownership, as to take them out of the order and disposition of the bankrupt at the date of his bankruptcy. The question in this case was, whether certain shares in the Thames and Mersey Marine Insurance Company were in the order and disposition of Edward Russell Daunt at the time of his bankruptcy. [V.C. S. was, that Daunt became a trustee for the purchaser, and nobody could be imposed upon, because the evidence of title was not in the possession of Daunt: (Martinez v. Cooper, 2 Russ. 198.) The certificates, and therefore the shares themselves, were out of his reach; consequently all question as to order and disposition must be at an end. In reply to a question by the Court, it was stated that at the time of Daunt's bankruptcy his name was not upon the register. The register is not conclusive evidence of the fact of shares being in the ownership of the person in whose name they stand; because the returns are made up only twice a year. Daunt was the registered owner on the 19th July 1860; therefore, if the company made their register up to the 30th June and 31st Dec. in each year, his name would continue to appear on the register until the 31st Dec., though he had sold in July. As to the transferee's name not being inserted in the transfer, it was to be observed that the company will not alter the name of the holder until the name of the transferee is inserted; but the insertion of the transferee's name makes no difference as to the law of order and disposition as against the bankrupt. All that is needed is a bona fide transaction on the part of the owner: (Ex parte Harrison, 3 M. & Ayr. 506; Ex parte Richardson, M. & Chitty, 43.) The practice of executing transfers of shares in blank is common on the Stock Exchange. Bacon, Q.C. and Swanston, for the plts., were stopped by the Court. [See the cases of Day v. Day, 1 De G. & J. 144, 29 L. T. Rep. 206; Tayler v. The Great Indian Peninsula Railway Company, 4 De G. & J. 559; 33 L. T. Rep. 361; Hibblewhite v. M Morine, 6 M. & W. 200; Ex parte Neilson, 3 De G. M. & G. 556.] The plt. William Morris, on the 19th July 1860, purchased on the Stock Exchange 150 shares in the Thames and Mersey Marine Insurance Company from a stockbroker, and paid him 4211. 17s. 6d. for the same on that day. The shares so purchased by the plt. belonged to Mr. Daunt, who had employed the above stockbroker to sell them for him, and the stockbroker, on receiving from the plt. the purchase-money, according to the custom of the Stock Exchange, handed to the plt. three transfers for fifty shares each in the above company, executed by Daunt, with blanks for the name of the transferee and for the date. On the same day, and before the completion of the purchase, The VICE-CHANCELLOR.-This seems to me a reathe certificates had been, as appeared by a memoran- sonably clear case. The question is, whether shares, dum made on the transfers, taken by Daunt's brother of which the certificates remained with this company, to the company's office, and a memorandum was made were, at the date of the bankruptcy of Daunt, in his in the company's books that the shares had been sold order and disposition; and the evidence of the plt. shows, by Daunt, the then holder of them, and the assistant- in the clearest way, that no other human being but secretary of the company wrote in the margin of each Daunt was, at the time of his bankruptcy, known as transfer a memorandum to the effect that the certifi- the owner of the shares. That the shares were cates for the shares had been deposited in the office of Daunt's shares at the time when the claim of the plt. the company. On the 30th July 1860 Daunt was as purchaser arose, is part of the plt.'s case. adjudged bankrupt, and the defts. were his assignees. plt.'s case is, that, upon the 19th July 1860, Daunt, The plt. before he was aware of Daunt's bankruptcy, the owner of the shares, sold them to the plt. The sold a portion of the shares on the Stock Exchange, ownership of Daunt consisted of that right which and, having occasion to procure the registration of the exists in a person having shares in a joint-stock shares, he on the 15th Aug. 1860 filled up one of the company in the condition in which this company transfers with his own name, and the two other trans- was. The certificates, which were the evidence of fers with the names of two other persons. Two of the the ownership of the shares, remained, for reasons transfers were dated on the 15th Aug., and the third that are explained, in the possession of the comon the 16th Aug. 1860. Upon presenting the trans-pany, but the company recognised Daunt as the fers, however, at the office of the company for registration, the company refused to register them, on the ground of their fearing date subsequently to Daunt's bankruptcy, of which bankruptcy the plt. was then, for the first time, informed. It was contended that the shares were not in Daunt's order and disposition at the date of his bankruptcy, as he could not have dealt with them after the memorandum which had been made in the company's books of the sale of them by Daunt. Malins, Q.C. and Roxburgh, for the plt. Morris, contended that the execution of the transfers by Daunt being accompanied by a memorandum made in the company's books, and a deposit of the certificates with the company, notice of which appeared on the transfers themselves, was a sufficiently good assignment to take the shares out of the order and disposition of the bankrupt; and referred to Rickards v. Gledstanes, before his Honour, 5 L. T. Rep. N. S. 416; affirmed on appeal, Ib. 668. The result of the transaction The owner. That there was a contract for the sale of these shares to the plt. by Daunt on the 19th July is certain, but the way in which the plt. dealt with his purchase seems to have been designedly and advisedly intended to let the present ownership of the shares and the order and disposition of them remain exactly as they were until he should have sold them to some other person. What is relied upon by the plt. as having effected the transfer of the ownership of the shares, so as to take them out of the order and disposition of the vendor, was the production from the office of the company in which the shares were held, and in which the company and their officers held the certificates of the shares, of a document purporting to be a transfer by Daunt to nobody, for it was in blank. This was carried to the office of the company, who thereupon put upon that transfer so executed in blank a certificate of Daunt being the owner of the shares, or, in other words, that there were in the hands of the company certificates of these shares as belonging V.C. W.] HANCE v. TRUHITT. to Daunt. It is insisted that this production of the blank transfer, and the marking upon it of the certificate of Daunt being the owner of the shares, has such an effect as to take the shares out of the order and disposition of the bankrupt. But from the evidence of the plt.'s own witness, the course of business in regard to the production of such blank transfers appears to be, that it it is assumed that the transferor has parted, or is going to part, with his shares. There was no notice, no mention to the company, nothing in what Morris the plt. did, to take the shares out of the order and disposition of the bankrupt; no such dealing with them as regards the custody or apparent ownership of the shares as to take them out of the order and disposition of the bankrupt; for this very reason, that there was no intention on the part of the plt. to have his name inserted in the transfer as the transferee of the shares. He only acquired that sort of right which it seems usual on the Stock Exchange to acquire-namely, to pay his money, and do that which, in my opinion, clearly left these shares in the order and disposition of the bankrupt. Therefore, the plt. totally failing to prove any change in the ownership of the shares, the bill must be dismissed with costs. Solicitors: Lowless and Nelson; Linklater and Hackwood. V. C. WOOD'S COURT. Reported by W. H. BENNET, Esq., Barrister-at-Law. Dec. 18 und Jun. 14. HANCE v. TRUHITT. Will-Construction-After-acquired property- A testator by his will, dated 30th Dec. 1837, devised The lands consequently descended upon his heir: Held, that the heir was bound to elect whether he would take the descended estate, or the interest he derived under the testator's will. This was a special case. It stated, in effect, that the testator George Truhitt, by his will dated the 30th Dec. 1837, which was two days before the Wills Act, 1 & 2 Vict. c. 26, came into operation, after directing payment of his debts and funeral and testamentary expenses, and certain pecuniary legacies, proceeded as follows:-" And as to all and every my freehold, copyhold and leasehold messuages, lands, tenements and hereditaments, and all and every my stock, funds, moneys, annuities, securities for money, debts, goods, chattels, and generally all other my real and personal estates and effects whatsoever and wheresoever, and of what nature, kind, or quality soever the same may be, whereof, wherein, or whereto I, or any person or persons in trust for me, am, is, are, or shall or may be seised, possessed, interested, entitled in possession, reversion, remainder, or expectancy or otherwise howsoever, I give, devise and bequeath the same and every of them, and every part thereof, and all my estate and interest therein," to certain trustees. The will also contained directions for the management of his estates, and for providing an annuity for the testator's widow, and subject thereto in trust for all the children of the testator equally in fee as to the real estate, and absolutely as to the personal estate. After the date of his will the testator acquired by purchase various freehold estates, which, as the will was executed before the Wills Act came into operation, did not pass by such will. The testator [V.C. W. died on the 25th June 1860. A question thereupon. arose as to whether the heir-at-law was entitled to the beneficial interest in the after-acquired freeholds as heir-at-law, upon whom they had descended, in addition to his distributive share of the testator's general estate, to which he was entitled under the will. Rolt, Q.C. and Harwood, for the heir, contended. that the law at the time the will was executed allowed the parties beneficially entitled, including the heir, as one of the children, to take those interests, irrespective of any right to after-acquired property in the heir. Willcock, Q.C. and C. H. Keene for the other children. C. E. Hawkins, for the trustees of the will, submitted the case to the court. Rolt, Q.C. in reply. Among the cases cited and referred to by the V.C. in his judgment, were :-Maxwell v. Maxwell, 2 De G. M. & G. 714; Churchman v. Ireland, 1 Russ. & M. 250; Thellusson v. Woodford, 13 Ves. 209; Schroder v. Schroder, Kay, 987; Johnson v. Telford, 1 Russ. & M. 244; Back v. Kett, Jac. 534. Cur, adv. vult. 66 Jan. 14.-The VICE-CHANCELLOR now said that the question was, whether there were words in the will sufficient to put the heir to his election, and this entirely turned upon whether after-acquired property was sufficiently denoted in the will so as to show the testator's intention to include it. Referring to Maxwell v. Maxwell, his Honour read parts of the judgments of Knight Bruce and Cranworth, L.JJ. in that case. The real question in the present case, however, was, whether the property acquired after the date of the will was sufficiently denoted, and whatever doubt there might have been formerly, the rule had now been settled by Churchman v. Ireland, from which it was impossible to distinguish the present case. The words there were the same as here, all my estate and effects both real and personal, which I shall die possessed of," and every argument applicable to this case was there urged. Previously to that case Thellusson v. Woodford decided that where the property was specially pointed out, there was a clear intention to include such property, and the heir was put to his election. Then came the intermediate case of Back v. Kett, in which Sir Thomas Plumer held that the words "whatever real estates he might die possessed of" did not extend to after-purchased lands, and that the heir was not bound to elect. Lord Cranworth in Schroder v. Schroder (affirming his Honour's decision, which proceeded upon Churchman v. Ireland), said: "I do not adopt the construction which the M. R. put upon the words in that case (Back v. Kett); I think that it was a very unreasonable construction," &c. It had been contended on behalf of the heir-at-law that it was unadvisable to strain the construction of the words so as to disinherit the heir, and that "shall or may be," which were relied on as pointing to future-acquired property, were indefinite, and might be satisfied without giving that effect to them. But the words were plainly words of futurity. Nor could he say that the words of futurity could, reddendo singula singulis, be applied to the personal estate only. It had also been urged that the words might refer to a mere change of trustees, or to the testator becoming seised of estates of which some one else was then seised in trust for him. But it was useless to consider all these arguments after Churchman v. Ireland, and especially after the judgment of Lord Cranworth in Schroder v. Schroder. Although, as in Maxwell v. Maxwell, there must be words specifically denoting the property, yet, where the words of futurity could only be applied to after-acquired property, then after-acquired property was intended by the testator to be included in the operation of his will, and the heir was put to his election. This view of the matter was strengthened by a provision contained in the will and V.C. W.] WINTLE V. BRISTOL, &C. RAILWAY COMPANY-BUSHELL v. COLLETT. [V.C. W. not set out in the special case, whereby the testator | way through one aperture, and his waggons going the declared that the provision thereby made for his wife, other way through the other. It was plain that the should be in lieu of all dower to which she was or defts. had exceeded their powers in leaving for this should be entitled, plainly again referring to after-road an aperture less than 12 feet in width. Upon the acquired lands. The answer, therefore, to the special question of substantial damage there could be no doubt case would be first, that the after-acquired lands did how a jury would decide. He (the V. C.) did not descend beneficially to the heir-at-law; secondly, that therefore think that the plt. was entitled upon such a he was bound to elect between them and the benefits case as this to come to the court to have these piers given by the will; thirdly, that the costs of all parties removed, he having all along known what the defts. should be borne by the general estate. were doing. As to the other part of the case, there Solicitors, Oddy and Paddison. appeared to be a case for a trial at law. The defts. alleged that, as purchasers, they possessed an exclusive right of ferry at New Passage, and they claimed on that ground the right to prevent the plt. from landing Jan. 14 and 15. WINTLE V. BRISTOL AND SOUTH WALES UNION coals there. This part of the present motion for de RAILWAY COMPANY. Injunction- Legal right—Infringement on— Delay. A railway company had constructed its line so as to leave the passage for a private road two intervals of nine feet three inches each. The interval required by the Railway Clauses Consolidation Act 1845, for a similar right of way, was twelve feet. The plt.'s right of way was not disputed; but he had laid by and allowed the railway works to proceed, and the damage accruing to the plt. in consequence was of small amount: cree must stand over until after a trial shall have been had at law. Wednesday, March 5. MADDISON v. SKEIN. The affidavit of fitness, &c., in support of an applica- Held, that the plt., having delayed the assertion of his legal right, and the damage slight, the court H. Cadman Jones applied to the court to appoint a would not grant an injunction to restrain the in-guardian to infants who were necessary parties in a fringement on the legal right. This was a bill filed by the plt. to restrain the defts., a railway company, from obstructing an alleged private carriage-road of the plt. on the bank of the river Severn, near New Passage, in Gloucestershire, to obtain the removal of any obstruction occasioned by their works, and also to restrain the defts. from obstructing the plt.'s use of a strip of land next to the alleged road as a landing place for coals, &c. The plt.'s claim to the alleged private road rested on the award made under an inclosure commission in 1822, which set out and appointed a private carriage-road of the width of thirty feet. The obstruction to the road complained of was occasioned by an embankment and piers which the defts. were constructing with a view to the establishment of a steam ferry over the Severn at New Passage. Sir H. Cairns, Q.C., Giffard, Q.C., and Sidney Smith for the plt. Rolt, Q.C., John Osborne and Osborne Morgan for the defts. The VICE-CHANCELLOR said the defts. had distinctly denied the plt.'s right of way, and had deliberately put down stones to obstruct the use of it, as if on purpose to raise the question; and the plt.'s legal right was plain, and the case was substantially undefended. The plt. would therefore, in ordinary circumstances, be entitled to an injunction and to the costs of suit. Looking, however, to the knowledge which the plt. had of the proceedings of the defts., and also to the heavy expense which would be occasioned by the removal of the works which they had erected, and having regard also to the minute character of the damage which the plt. would sustain, and which brought the case within the principle laid down in the case of Holyoak v. The Shrewsbury and Birmingham Railway Company, 5 Rail. Cas. 421, the injunction would be limited to the removal of the existing tramway, and the court would not order the piers which had been placed to support the intended railway to be removed. The Act of Parliament required a width of 12 feet to be left for such a road as this. Instead of one of 12 feet the plt. would have two roads each 9 feet 3 inches in width between adjacent piers, and he might, if he pleased, send his waggons going one Beand more. o. Tredwell JL.T.N.S. 207 special case stated for the opinion of the court, on the usual affidavit. He mentioned that the affidavit was entitled in the matter of the special case, which probably was informal, as no special case could be said to be in existence until duly consented to and filed. He said that the M. R., on a similar application, had allowed the affidavit to be amended, entitling it in the matter of the Act, "and in the matter of A. B. the infant:" (Starr v. Newby, 20 Beav. 14.) The VICE-CHANCELLOR thought he might follow that decision, and ordered the affidavit to be amended as suggested. Solicitor, Williamson. BUSHELL V. COLLETT. A. was security for B. on a joint and several bond to Z. Certain title-deeds of B. were deposited with Z. as a collateral security for the payment of the debt and interest secured by the bond. A., on a given day, offered to pay Z. the amount due on having B.'s title-deeds delivered up to him. This was refused by Z. Subsequently Z. lent B. the title-deeds to enable him to come to an arrangement with A., his surety, as to paying off the amount of the bond, on an undertaking to return them to Z., which he had done: Held, that this was not such a dealing with the prin cipal as discharged the surety from the debt and interest due on the bond. This was a bill filed for the delivery up of certain title-deeds, under the following circumstances :In 1853 Thomas Valentine Giles requested John Bushell and Thomas Bushell to be his sureties in a bond, and accordingly a bond, dated the 17th Aug. 1853, from the said Giles and J. and T. Bushell, was given to the deft. George Collett, in the penal sum of 1400l., to secure a debt due to him of 700%. and interest. At the same time the title-deeds to certain leasehold estates of T. V. Giles, consisting of a house and about twenty acres of land near Canterbury, were deposited with George Collett by way of equitable mortgage. John Bushell died on the 27th Dec. 1853, having left a will, which was duly proved by the plt., V.C. W.] SCOTT v. PILKINGTON AND OTHERS. MUNROE AND OTHERS v. SAME. one of the executors thereto. On the 1st Aug. 1860 Mr. Mourilyan, the solicitor of the deft., applied to the plt., as the executor of J. Bushell, one of the sureties of T. V. Giles in the bond, for payment of the [Q. B. Common Law Courts. COURT OF QUEEN'S BENCH. 7001. and interest by a given day. A correspondence Reported by JOHN THOMPSON, T. W. SAUNDERS, and C. J. B. thereupon ensued between the respective solicitors, and in a letter of the 27th Aug. 1860 the plt.'s solicitors intimated that their client had made arrangements to pay off the bond and interest, and naming a day to attend at the deft.'s solicitors for that purpose, and added, "the .collateral security will, of course, be handed to us." In reply to this the deft.'s solicitor said: "If your client, as representing one of the sureties of Mr. Giles, pays Mr. Collett the principal and interest due, he will hand him the bond, but the title-deeds must be delivered to Mr. Giles, the owner thereof." In reply, the plt.'s solicitors, by letter of the 29th Aug., said: "We cannot think of paying the money unless the collateral security is at the same time handed to our client. you persist in your intention of handing the deeds to Mr. Giles, you must take such steps for obtaining the money as you may think proper." On the 10th Oct. 1860, a clerk of plt.'s solicitors attended at the office of the deft.'s solicitor, and made a tender (as he alleged) of the 700l. and interest in Bank of England notes, requiring at the time the delivery up of the titledeeds of Mr. Giles's estate. These deeds, however, being then with Mr. Collett, were not and could not be delivered up, and the money was consequently not paid. If On the 12th Sept. 1860 the deft. commenced an action at law against the plt. for the amount due on the bond. The original bill was filed to restrain this action, and for delivery up of the deeds on payment by plt. of the principal and interest due on the bond. The deft. by his answer admitted possession of the deeds. The plt. amended his bill, alleging that the deft. had since delivered up these title-deeds to T. V. Giles; but the answer of deft. to this amended bill stated that he had not delivered up the deeds, but that he did some time before lend him (Giles) the same upon a written understanding by him to return them on demand, and that they were so lent for the purpose of enabling him to effect an arrangement with the plt.; that these deeds had since been returned to deft. and were then in his possession. The amended bill prayed that it might be declared that the deft., by parting with the title-deeds to Giles, had discharged his surety (the deft.) from the debt due on the bond. The cause now came on as motion for a decree. The deft. had not proceeded with his action. The short point was, whether the deft. had parted with the custody of the deeds to Mr. Giles, so as to discharge his surety, the plt. C. Hall and De Gex for the plt. Daniel, Q.C. and Surrage, for the deft., contended that there had been no parting with the deeds, and that there had been no legal tender of the amount due on the bond: (Mitchell v. Hall, 5 Bar. & C.; Rees v. Berrington, 2 Ves. jun. 540; Newton v. Charlton, 10 Hare; Earle v. Deacon, 3 De G. & J. 35 were referred to.) The VICE-CHANCELLOR said, that as to that part of the plt.'s amended bill which alleged that the deft. had parted with the custody of the title-deeds, and had thereby discharged the plt. as the surety for the debt on the bond, it must be dismissed with costs; but as to the remainder there must be the usual decree, that, on payment of what was due to deft. for principal and interest, the deft. should deliver up the title-deeds to the plt. Decree accordingly. Solicitors, Furley and Murton and J. H. Lydull. HERTSLET, Esqrs., Barristers-at-Law. April 26, 1861, and Jan. 28, 1862. To an action on an American judgment the deft. Held, that though the pendency of an appeal might afford ground for an equitable interposition of the court, and on proper terms to say execution, it is no bar to the action itself. Defts., in their plea, set forth the record and the judgment, whereby it appeared that an action brought by the plts., the purchasers of certain bills of exchange, against the defts. for not accepting the same, was referred by order of the court of New York to an officer of the court to ascertain the facts, and that he reported that one of the defts. being in New York wrote and delivered to Messrs. A. and B. a letter of credit giving authority to them to draw exchanges on defts., and stating that all such exchanges would be duly honoured and protected: Held, that the question of defts.' liability to perform the contract to accept bills was to be determined by the lex loci contractus, and not by the law of the place of performance. Action on an American judgment. The declaration stated that the plts., in and by the Supreme Court of the City and County of New York, in the United States of America, by the consideration and judgment of the same court, recovered against the defts. the sum of 18,067 dollars and 97 cents., together with 565 dollars and 40 cents, costs and disbursements, amounting in all to the sum of 18,633 dollars and 37 cents, which said judgment still remains in full force and effect, and not in anywise satisfied, reversed, or annulled; and the plts. say that no execution hath yet been obtained of or upon the said judgment, and that the said sum of 18,633 dollars and 37 cents is still wholly unpaid, and is of great value, to wit, of the value of 38641. Os. 11d., whereby an action hath accrued to the plts. to demand and have of the defts. the said sum of 38641. Os. 11d.; yet the defts. have not paid the same, or any part thereof. Plea. The plea set out the record in the said action in the Supreme Court of New York. The complaint stated : That at several times thereinafter mentioned, the pits. were and still are copartners in business in the city of New York, under the name and style of William B. Scott and Co., and the defts. were and still are copartners in business in Liverpool, England, in the kingdom of Great Britain, and elsewhere, under the name and style of Pilkington Brothers. That on or about the 16th Feb. 1856, in the city of New York, the said defts. made and delivered to Fleming and Alden, a mercantile firm in the said city, the certain letter of credit, authority, undertaking and promise in writing, of them the said defts., of that date, in the words and figures following, that is to say : "New York, 16th Feb. 1856. "Messrs. Fleming and Alden, 94, Wall-street, New York. "Gentlemen,-In reply to your communication made to me this morning respecting your drawing exchanges upon us, I would state that you have our |