the legal estate descends to an infant heir, the purchaser cannot avail himself of that difficulty in the title to protect himself from specific performance.

Quare, Whether the descent of the legal estate to an infant heir, after the contract, will prevent the Court from decreeing specific performance, where there has been no improper delay on the part of the purchaser. King v. Turner, 3 Law J. Chanc. 58.

Two years after the defendant had given notice of his intention not to perform a contract for a lease, on the ground that the plaintiff had not fulfilled his part, the plaintiff filed a bill for a specific performance, but the Court dismissed it. Heapy v. Hill, 2 S. & S. 29.

Upon a bill, by a vendor, praying simply specific performance, upon which that relief cannot be given in consequence of the plaintiff not being able to make a good title, an account of rents will not be directed against the defendant, who entered into possession under the contract, though he has been nine years in occupation of the premises, and though he has stated by his answer, that he was willing to pay a fair rent during his occupation. Williams v. Shaw, 3 Law J. Chanc. 157.

Upon a bill, praying the performance of an agreement duly signed, but offering to the defendant the benefit of certain variations contained in an unsigned memorandum of a subsequent date, the Court will decree a specific performance of the agreement with those variations, if the defendant elects to take advantage of them; and if the defendant does not so elect, it will decree a specific performance of the original agreement. Robinson v. Page, 3 Russ. 114. (B) PRACTICE.

A bill for a specific performance should not be mixed up with a prayer for relief against other persons claiming an interest in the estate. Mole v. Smith, 1 Jac. 494.

In a suit for a specific performance of a contract for the purchase of freehold estates, several large sums of money had been paid on account by the defendant for the purchase-money, but a considerable sum was still due; he died when the cause was at issue, leaving his real and personal property to his children, who were infants, the plaintiff having only filed a bill against the executors: It was held, that although the devisees were infants, they were necessary parties; and in consequence of their not being brought before the Court, the suit was suspended until a supplemental bill should be filed against them for that purpose. Townsend v. Champernowne, 9 Price, 130.

Demurrer to a bill for specific performance, alleging an agreement in writing, to which, as set forth in the bill, no name was signed, but not alleging that the agreement was signed: Held, that the demurrer was bad, as the Court would intend, in favour of the bill against the demurrer, that a written agreement was an agreement signed. Rist v. Hobson, 2 Law J. Chanc. 86, s. c. 1 S. & S. 543.

Where, after a former cause heard for a specific performance, and a decree made, a bill in the nature of a supplemental bill had been filed, and afterwards moved to be taken off the file, and that the defendant might be at liberty to present a petition for a re-hearing Held, 1st, that the Court could not on motion discuss the merits of the case, or consider

491

any objections to the framing of the bill, which could only be raised by demurrer. And, 2dly, that the party was precluded from a re-hearing by the rule of November 1731, requiring the application to be made within six months after decree. Bowyer v. Bright, 13 Price, 316, s. c. M'Clel. 347.

Where the answer to a bill for specific performance raises other questions besides that of title, the Court will, upon the plaintiff's application, look into the answer, to see what is the nature and weight of the objections; and if it finds them clearly frivolous, it will make the usual order for a reference of the title. Where a life annuity is the subject of the sale, it is not a clearly frivolous objection, that the vendor could not, and did not, complete the sale at the time prescribed by the agreement. Withey v. Cottle, 1 Law J. Chanc. 117, s. c. 1 S. & S. 174.

A decree for a reference of title on a bill for specific performance, should contain a declaration that the contract ought to be specifically performed. Mole v. Smith, 1 Jac. 495.

If on a bill for a specific performance, any other objection, besides the question of title is raised by the answer, the order of reference as to the title cannot be made upon motion. Gordon v. Ball, 1 S. & S. 178.

Where, on a bill for a specific performance, the original decree directed an examination of title,-it was holden, that the Master would not take notice of any objection unconnected with the title. Legrand v. Whitehead, 1 Russ. 309.

On a bill for a specific performance, the pendency of an adverse suit is no ground for staying a report as to the sufficiency of the title. Osbaldeston v. Askew, 1 Russ. 160.

If on a bill for a specific performance by the vendor, a good title can be made before or when the cause comes on upon further directions, a specific performance will be decreed. Paton v. Rogers, 6 Mad. 256.

SPOLIATION.

A bill was filed by one executrix against her coexecutrix, charging her with having secretly and improperly possessed herself of part of the testator's property during his lifetime; the defendant by her answer denied the accusation, and insisted, that the spoliation was committed by the plaintiff, but did not file a cross bill; if an issue is directed to try the fact, the issue must be-not merely whether the defendant possessed herself of any part of the testator's property in the manner alleged, but also, whether the plaintiff possessed herself of any part of it in like manner. Lancaster v. Atkinson, 2 Russ.

60.

SPRING-GUNS.

The defendant, for the protection of his property, some of which had been stolen, set a spring-gun, without notice, in a walled garden, at a distance from his house: the plaintiff, who climbed over the wall in pursuit of a stray fowl, having been shot: Held, that the defendant was liable in damages

492

Bird v. Holbrook, 6 Law J. C.P. 146, s. c. 4 Bing. 628, s. c. 1 M. & P. 607.

STABLE-KEEPER.

In an action for injuring a horse lent on hire, if it appear that the animal was the property of the plaintiff, but let by a stable-keeper to the defendant for a pecuniary recompense, the plaintiff is not bound to prove that he is licensed to let horses, in the absence of an authority on the subject. Ware v. Juda, 2 C. & P. 351. [Best]

STAGE-COACH ACT.

The Court quashed a conviction on the stagecoach act, which directed the person to pay 61. and (blank) shillings, or be confined until it was paid, because it left the matter in doubt. Rex v. Payne, 4 D. & R. 72.

STAKEHOLDER.

[See GAMING, HORSE-RACE, WAger.]

If a race be advertised to take place under certain conditions, the stakeholder cannot waive any of the conditions, without the consent of the whole of the subscribers. If the plaintiff's horse was disqualified as not coming within the description of horses that were to run, he cannot recover back his original share of the stake, if he was aware of the disqualification, and was guilty of a misrepresentation. Weller v. Deakins, 2 C. & P. 618. [Vaugban]

On a replevin bond, taken by the sheriff under the 11th Geo. 2, c. 19, s. 25, the following memorandum was written:-"W G maketh oath and saith, that the goods and chattels mentioned in and referred to by this bond, are of the full value of 491. 16s. and no more, according to the best of this deponent's skill and judgment": Held, that an affidavit stamp was not necessary. Dunn v. Lowe, 5 Law J. C.P. 149, s. c. 4 Bing. 193.

(B) AGREEMENTS.

Where the subject-matter of an agreement consists of a limited interest in that which is more than 201, in value, but the value of the limited interest does not amount to 201., the agreement is not liable to stamp-duty under the 55 Geo. 3, c. 184. Doe d. Morgan v. Amos, 6 Law J. K.B. 226.

A mere acknowledgment, which does not bind the party signing it to do any more than he was otherwise bound to do by law, does not require an agreement stamp. Thus, an acknowledgment in these words "I have in my hands three bills, which amount to 1201. 10s. 6d., which I have to get discounted, or return on demand," was held to require no stamp, because it did not bind the party to get the bills discounted; and the law would compel him to return them on demand.

So, an acknowledgment in these words-" I bave received a bill, drawn by P upon H, bearing my indorsement and the indorsement of Sir P B, which I hold, as your attorney, to receive the value from the respective parties, or to make such other arrangement for your benefit as may appear to me, in my professional capacity, reasonable and proper"-was held to require no stamp. Mullett v. Huchison, 6 Law J. K.B. 176, s. c. 7 B. & C. 639, s. c. 1 M. & R. 522, s. c. 3 C. & P. 92; Langdon v. Wilson, 6 Law J. K.B. 177, s. c. 2 M. & R. 10.

Since the minutes or memorandums of agreements charged by the stamp acts are instruments between party and party, a note of a purchase made by a broker on account of his principal of what be bas done, requires no stamp, though the purchase is above 201. and not within the exemption of the act. Josephs v. Pebrer, 1 C. & P. 341. [Littledale]

Where a witness deposed that the settled draft of a lease was the final agreement between the parties, for one of whom he acted as agent,-it was holden, that an unstamped memorandum, written afterwards by himself, but not signed by any body, was admissible in evidence, as a mere proposal to shew that the settled draft was not the final agreement between the parties. Hawkins v. Warre, 3 B. & C. 690, s. c. 5 D. & R. 512.

Where a paper is used in evidence of an agreement directly, it must be stamped; but where it is used incidentally, it is not necessary that it should be stamped, hence it is evidence of an acknowledgment though not stamped. Wheldon v. Matthews, 2 Chit.

399.

"You will be pleased to receive the register of the brig Gratitude, which I inclose, and which I lodge in your hands as a security for the payment of all demands and charges on account of the said vessel, since she has been in this port, and which I hope will be satisfactory to you," is not receivable in evidence, in an action by the writer to recover possession of the register, without an agreement stamp. Bowen v. Fox, 6 Law J. K.B. 235, s. c. 2 M. & R. 167.

An agreement, that A will sell a ship to B; that part of the price shall be secured by mortgage of a ship; that A will procure the ship to be chartered on a voyage; that the earnings on the voyage shall be paid to A, as part of the price; and that at the end of the voyage the mortgage shall close; is an agreement for and relating to the sale of goods, and

requires no stamp. Meering v. Duke, 6 Law J. K.B. 211, s. c. 2 M. & R. 121.

The question of the sufficiency or insufficiency of a stamp, is to be decided by the legal effect of the instrument, and not merely the legal words which may be used by the parties.

Accordingly, where an instrument not under seal, used words of conveyance of the fee,-it was held to be an agreement only; and to be properly stamped as an agreement. Rex v. Ridgewell, 5 Law J. M.C. 67, s. c. 6 B. & C. 665.

A document by which A agrees to grant, and B to take, a lease of certain premises for a certain term, at a certain yearly rent, is to be considered merely as an agreement, not requiring a lease stamp, although no lease be prepared, and B occupies during the whole of the term under such document, and, pays the rent specified in it. Phillips v. Hartley, 3 C. & P. 121. [Best]

"

The alteration of an agreement, stipulating to give up the holding and occupation of a farm, by the addition of the words "house and premises,' after that agreement has been completed, is not such an alteration as will render the affixing of a new stamp necessary; house and premises being included within the meaning of the term farm. Doe d. Waters v. Houghton, 6 Law J. K.B. 86, s. c. 1 M. & R. 208.

A paper containing an attornment, and stating that the person attorning is to hold upon terms to be afterwards agreed on, requires a stamp as an agreement stamp. Cornish v. Searell, 6 Law J. K.B. 255, s. c. 8 B. & C. 471.

The following instrument was signed by a broker, viz. "Received of the defendant 31. for letting a house for a term of 7 years, the defendant to take the fixtures at a valuation if accepted as tenant; if not, then the 31. to be returned" : Held, that such instrument required a stamp, as the nature of the contract could not be ascertained without its production at the trial. Wick v. Hodgson, 5 Law J. C.P. 55.

An agreement, properly stamped, containing words of reference to another instrument for some of its provisions, is not on that account chargeable with an additional stamp, as if those provisions formed part of the agreement, and thus increased the number of words, under the 55 Geo. 3, c. 184, schedule, part 1, title "Agreement." Attwood v. Small, 6 Law J. K.B. 111, s. c. 7 B. & C. 390, s. c. 1 M. & R. 246, s. c. 3 C. & P. 208.

It is not settled, whether an agreement contained in a series of letters, with less than 1080 words, should have a 1l. 15s. or 11. stamp. Parkins v. Moravia, 1 C. & P. 376. [Abbott]

Where an agreement is stamped on payment of a penalty, the receipt for the penalty indorsed on it is not to be reckoned in counting whether the agreement contains 1080 words, although without such a receipt the instrument could not be read.

On an objection that an agreement contains more than 1080 words, and therefore a 11. stamp is insufficient, the party objecting must call a witness who can positively swear to the exact number of words. Bowring v. Stevens, 2 C. & P. 337. [Abbott]

In counting the words of any written instrument, with a view to the progressive stamp-duty, the figures must be turned, in counting, into the number of words which they represent.

493

And where an instrument gave the particulars, in figures, of the quantity contained in several closes of land, with a general heading of "A RP" to represent the words "Acres, Roods, Perches," as applicable to each close: It was held, that, in counting, those three words should be repeated with reference to the figures of each close, or as many of the words as would be necessary in reading, if there were no figures. Dudley v. Robins, 6 Law J. K.B. 38.

If, when a written agreement is put in, the opposite party object that it contains a greater number of words than the stamp is proper for, and call a witness who has counted the words in the counterpart; the judge will direct the officer of the court to count the words in the original. Figures are to be counted as words, but an indorsement on the back, and a page of the particulars of sale, containing mere repetition of the description of the property, which was described in another page of the same particulars, are not to be counted. Dudley v. Robins, 2 C. & P. 26. [Tenterden]

An agreement by an intended purchaser to relinquish to a third person the benefit of his contract with the vendor, does not require an ad valorem stamp on the amount of the purchase money. Wilmot v. Wilkinson, 5 Law J. K.B. 196, s. c. 6 B. & C.506.

(C) APPRAISEMENTS.

An appraisement, though in effect an award, need not be stamped with the stamp appropriated to the latter instrument. Perkins v. Potts, 2 Chit. 399.

(D) APPRENTICEship, Indentures of.

An indenture of apprenticeship, whereby a person is bound to two masters, to learn two different trades, serving one for a part of the time, and the other for the remainder, requires but one stamp. Rex v. Louth, 6 Law J. M.C. 107, s. c. 8 B. & C. 247, s. c. 2 M. & R. 273.

(G) BILLS OF EXCHANGE AND PROMISSORY NOTES. [See BILL OF EXCHANGE (L).]

Neither an order requiring one person to pay to another the proceeds of a shipment of twelve bales of goods, value about 2,000l. nor an instrument by the former, that he would pay over the net proceeds of the said bales, value as per invoice 1,640l. requires the stamp affixed to bills of exchange. Jones v. Simpson, 2 Law J. K.B. 22, s. c. 2 B. & C. 318, s. c. 3 D. & R. 545.

Where there was written on two unstamped slips of paper, "IO U 4001." and "I O U 250l.," these memoranda were holden to be neither promissory

494

notes nor receipts, and therefore were held admissible in evidence, without being stamped, in an action of assumpsit for money lent. Childer v. Bulnois, 1 D. & R. N.P.C. 8. [Abbott]

(H) DEEDS.

A judgment was assigned, in trust to pay a debt out of the proceeds. The Court held, that a judgment was not properly within the meaning of 55 Geo. 3, c. 184, sch. part 1, title "Conveyance," so as to require an ad valorem stamp on the assignment, which ought to have borne the stamp of a common deed. Warren v. Howe, 2 Law J. K.B. 8, s. c. 2 B. & C. 281, s. c. 3 D. & R. 494.

A deed of assignment to trustees in trust to sell and pay, with a primary trust to pay the trustees, and then to discharge the debt owing to the other creditors, with a resulting trust as to the residue to the parties assigning, was held not to require an ad valorem duty within the 55 Geo. 3, c. 184, sch. p. 1, and, therefore, that a common deed-stamp was sufficient. Coates v. Perry, 6 B. Mo. 188, s. c. 3 B. & B. 48.

The ad valorem duty is only payable on the consideration passing from the lessee to the lessor. Boone v. Mitchell, 1 Law J. K.B. 25, s. c. 1 B. & C. 18.

An ad valorem stamp-duty is requisite on the assignment of a mortgage, if an additional sum be inserted therein. Martin, dem.; Baxter, ten.; Grubb, vouchee, 6 Law J. C.P. 242, s. c. 5 Bing. 160.

An indenture which covenants for the performance or the forbearance of a particular act, under a certain penalty, is not chargeable with the ad valorem duty on the sum secured as a penalty, but only with the duty of 1l. 15s. treated as a "bond not otherwise specifically charged," or a "deed not otherwise specifically charged," under the heads "Bond" and "Deed," by the 55 Geo. 3, c. 84. Mounsey v. Stevenson, 6 Law J. K.B. 119, s. c. 7 B. & C. 403.

An assignment, in consideration of money, from one partner to another, of his share of the partnership property in matters of contract, is not subject to the ad valorem duty. Belcher v. Sikes, 5 Law J. K.B. 93, s. c. 6 B. & C. 234.

The common indorsement, put on a deed of exchange after it is folded up, is not a part of the deed, or a matter indorsed thereon, within the meaning of the Stamp Act, so that the words contained in it should be reckoned with those of the deed, in fixing the amount of the duty to be paid. Winder v. Fearon, 4 Law J. K.B. 37, s. c. 4 B. & C. 663, s. c. 7 D. & R. 185.

An agreement under seal without words of demise being no lease, requires a 17. 15s. stamp for a deed, "not otherwise charged," by 55 Geo. 3, c. 184. Clayton v. Burtenshaw, 5 B. & C. 41, s. c. 7 D. & R. 800.

(I) RECEIPTS.

An instrument in the form of a receipt, used for an indirect purpose, need not be stamped. Brookes v. Davies, 2 C. & P. 186. [Best]

Where a performer gave a receipt "in satisfaction of all his claims for the last season,"-it was holden, not to require the stamp of a receipt in full of all demands.

A receipt for 521. 10s., although it recites the

payment of a previous 100l., requires only a 1s. 6d. stamp. Dibdin v. Morris, 2 C. & P. 44. [Abbott] "I O U 4001." and " IO U 2501., not receipts. Childer v. Boulnois, 1 D. & R. N.P.C. 8. A written acknowledgment by a party, that so much money has been deposited in his hands, does not require a stamp under 48 Geo. 2, c. 49, and is, therefore, receivable in proof of a demand against that party, although no stamp be affixed to it.

Thus, the Court held the unstamped memorandum "Mr. T. bas left in my hands 200l.," signed by the defendant, was properly received in evidence. Tomkins v. Ashby, 5 Law J. K.B. 246, s. c. 6 B. & C. 541.

Semble-An account stated may be given in evidence without being stamped. Wellard v. Moss, 1 Law J. C.P. 18, s. c. 1 Bing. 134.

(K) SURRENDERs.

Where A and B entered into an agreement, that the latter should give up the principal part of a farm to the former, who was to buy the stock thereon at a fair valuation, and A was to occupy half the house, half the stable, the barns, &c. and to deliver possession of the same on a specified day: Held, that it operated as a surrender of the farm, and therefore required a surrender-stamp under the 55 Geo. 3, c. 184, sch. p. 1, and that an agreement-stamp was unavailable. Williams v. Sawyer, 6 B. Mo. 226, s. c. 3 B. & B. 70.

(L) TIME OF AFFIXING.

An instrument which is liable to stamp-duty, under an act in force at the time of the execution, may be legally and effectually stamped afterwards, under a subsequent act, on payment of the duty which is payable by law at the time the instrument is presented to be stamped; provided, 1st, the stamp affixed be not less in amount than that which was payable under the former act; and, 2nd, not appropriated on the face of it for any other description of instrument. Rex v. Derwen, 5 Law J. K.B. 71.

Where an instrument has been stamped subsequent to the execution, it is admissible in evidence, though the receipt for the penalty has been erased, provided it be proved that such receipt had been indorsed on it; and it is not essential to prove the commissioners' signature to such a receipt. Apothecaries' Company v. Fernyhough, 2 C. & P. 438. [Burrough]

A stamp, when imposed, has a retroactive effect, so as to authorize acts previously done under the instrument in question.

But this rule does not apply to cases, with respect to which there is a positive enactment, that the stamp shall not be imposed after the instrument has been issued. Anon. 5 Law J. K.B. 76.

be viewed detached from its context in the statute; it is to be viewed in connexion with its whole context; understanding by this, as well the "title" and "preamble" as the "purview," or enacting part of the statute. Brett v. Brett, 3 Add. 210.

Effect of practice and desuetude in the construction of a Scotch statute. Mac Dougall v. Hogarth, 3 Bligh, 41.

Whether a custom beginning in 1760 can abrogate or control a Scotch Act of Parliament-quære. Dingwall v. Gardiner, 3 Bligh, 72.

An enacting clause in a statute, which interferes with existing rights, must be construed strictly; but the largest and most liberal construction will be given to an exception which protects those rights.

Thus, where a statute empowered a canal company to take the water raised from mines of coal, &c., such power and authority not to extend, except where the coal, &c. produced by the mines, should be conveyed along some part of the canal,-it was held, that these words applied substantially to the whole produce; and that the company had not the power in respect of a mine, about a third of the produce of which was conveyed along a part of the canal. Finch v. the Proprietors of the Birmingham Canal, 5 Law J. K.B. 17.

A statute which imposes a tax or duty must be clear and express; and any ambiguity will entitle the subject to be exempt from the tax or duty.

Accordingly, where an act of parliament imposed. rates of wharfage in respect of goods "landed or discharged upon" the wharf, and directed the rates to be the same as those which were payable for goods "loaded or discharged upon " wharfs in the port of London, the Court refused to understand the latter expression, as meaning discharged "from"; which meaning, if given, would have rendered the goods in question liable to a higher rate of duty. The Hull Dock Company v. La Marche, 6 Law J. K.B. 216, s. c. 8 B. & C. 42, s. c. 2 M. & R. 107.

A statute contained a clause exempting certain ships from the payment of duties, "more than once for the same voyage, but out and home, notwithstanding such ship or vessel might go out and return with a loading of goods or merchandizes:" Held, that where a vessel having cleared out of port at Hull with a cargo of goods for Mogadore, on the coast of Africa, which she discharged, and then took in another cargo for London, and discharged the same at London, and took in a cargo for Hull, with which she arrived at Hull, this constituted two distinct voyages, and that the vessel was not within the exemption. The Hull Dock Company v. Huntington, 2 Chit. 597.

An act of parliament which gives persons authority to repair and cleanse a navigable river, does not empower them to make a passage to a new wharf on the river. Partheriche v. Mason, 2 Chit. 658.

By 50 Geo. 3, c. 38, it is enacted, that the commissioners for the improvement of Brighton, might make an order to receive a duty, not exceeding the sum of three shillings, for every chaldron of sea coal, culm, or other coal, brought or delivered within the limits of the town: The Court held, that an order made to take effect from a preceding day was not bad in toto, and that the duty attached on every chaldron of coal, although it was brought into the town in quantities of less than a chaldron at a time.

495

Mills v. Funnell, 2 Law J. K.B. 190, s. c. 2 B. & C. 899, s. c. 4 D. & R. 561.

Where an act of parliament appears to be the compact between the public on the one hand and an individual on the other; and the agreement is, that in return for certain advantages to be afforded by him to the public, he is to have a certain privilege, he will be allowed to retain that privilege, if he substantially and bond fide, though not literally, perform his part of the compact; and although, according to the strict and literal terms of the act, he would have forfeited the privilege.

By a local act of parliament, and a lease made in pursuance thereof, A grants to B lands, with liberty to lay waggon-ways for the carriage of coals, for the term of 60 years, and such further term as B, bis executors, &c. should work certain coal mines; proviso (both in the act and the lease,) that if B cease to work the mines, or fail in any one year to carry a certain quantity of coals to a depository called Ć, A may re-enter. By a subsequent act the quantity to be carried is increased; proviso, that if B do not yearly carry such increased quantity to C, "or to some other place near thereto, to be used as a depository for coals instead thereof," A may re-enter. By the last proviso, the first is virtually repealed; and B carrying the increased quantity to a depository near to C, is excused from carrying coals to C. Doe d. Bywater v. Brandling, 6 Law J. K.B. 162, s. c. 7 B. & C. 643, s. c. 1 M. & R. 600.

A water-work company were empowered, by act of parliament, to make, &c., water-works, &c., to dig and break up the soil, &c., of any of the roads, highways, footways, commons, streets, lanes, alleys, passages, and public places, within, adjacent, and near unto, the parishes to be supplied with water; and to sink and lay pipes, &c.; and, by a subsequent clause, it was provided that the company should not enter upon the private lands and grounds of any person without the consent of the owner, &c.: Held, that a footway across a field was not within the meaning of the act. Scales v. Pickering, 6 Law J. C.P. 53, s. c. 4 Bing. 448, s. c. 1 M. & P. 195.

Under an act of parliament for making docks, the value or compensation for property taken for the purposes of the act was directed, in certain cases, to be paid into the Bank, in the name of the Accountant General, and to be laid out in bank annuities; and until such bank annuities should be sold, and the produce invested in other hereditaments, the dividends were to be paid to the person or persons who would be entitled to the rents and profits of the hereditaments if unsold. The act also directed, that the Court, on the application of any person or persons making claim to the money awarded as a compensation, by motion or petition, should, in a summary way of proceeding, or otherwise, order the same to be laid out and invested in the funds, or distribution thereof, or payment of the dividends, according to the estates, title, or interest of the person making claim thereto. On the petition of an annuitant, whose annuity was charged on the property, with powers of distress and entry, and further secured by a term, for payment of his annuity and the arrears thereof out of a fund brought into court under the act-the Court held, that it had no authority to proceed in a summary way on the petition of an incumbrancer, but only at the instance of