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with an allowance“ of his necessary charges and expenses, and a reasonable gratification.” He had an interest in the estate ; those who appointed him had none. It was held by the House of Lords, affirming the decision of the Court below, that the trustees who had made the appointment were not responsible for the expenses incurred by the solicitor in attempting to realize the property for his own benefit, and that he was not to be absolved from all participation in that responsibility. Lord Brougham, in giving judgment, observed, with regard to the case of Craddock v. Piper (1 Mac. & Gord, 664), decided by Lord Cottenham, that “if that case had been at all adopted in any of the decisions of the House, he should be very slow to express any doubt which he might have upon it; but if it had never been so adopted or countenanced in decisions there, then he might be permitted to state that he had great doubts respecting the soundness of that decision to the length to which it went."
14. WYTHES V. LEE. 3 Drew. 396. Vendor and Purchaser-
Purchaser's Lien for prematurely-paid
Purchase-money. In this case, the question arose upon demurrer, whether a purchaser, having entered into a contract to purchase an estate, and paid the purchase-money, or any part of it, and the contract afterwards went off, he had a lien upon the estate for the purchase-money so paid which he could enforce in Equity, in the same manner as a vendor claiming a lien for unpaid purchasemoney; and it was held by Sir R. T. Kindersley, V.C., that a bill filed by a purchaser claiming a lien for the deposit, repudiating the contract, and praying the delivery up of the contract, was not demurrable. “Suppose a person,” said his Honour,“ abso- · lute beneficial owner in fee of an estate, contracts to sell it, and the purchaser pays a deposit in part-payment of the purchasemoney, and by reason of the vendor being unable to make a title, or from any other reason, not being misconduct on either side, the contract goes off, and cannot be completed, has the purchaser a lien on the estate for his deposit? That is a most important question. If there is a right of lien, as that is a right in equity, it follows that it must be capable of being enforced
“ Now that question I have looked at in three different points of view. First, with reference to natural justice, irrespectively of any specific rule of law; and it does appear to me that it is consistent with natural justice, that if a purchaser, on the faith of the contract being completed, and the estate becoming his, has advanced money in payment, or part-payment, for the purchase, he has advanced it under circumstances which entitle him to say, 'If you cannot complete, not only are you bound to give me back my money, but I have a right to a lien on the estate.'
“Secondly, with reference to the general law of this Court, I do not mean with reference to decided cases, but to the general law and principles of this Court,-this is clear, that the vendor, if he has parted with the estate to the purchaser before he has got his money, has a lien for it on the estate ; that is unquestionable. Now, does the right of the purchaser, if the contract goes off, stand in principle on the same footing as that of the vendor ? The only distinction that occurs to me is this: -The vendor, when he contracts to sell his estate, is owner,-he has the estate in his own possession, at least under his own control, and when he contracts to sell, his right is to say, 'I will convey the estate when the purchase-money is paid, but till that is done I will not convey it.' That right creates a lien of itself, very analogous to the Common Law lien; and that lien, which exists before conveyance, still continues; it is not a new, but the same lien. But with regard to the purchaser, he has not the estate in his possession, and his lien is not in its origin the same sort of lien as that of the vendor. But when a contract is made, and then goes off, it appears to me that, in principle and justice, the equity of the purchaser to a lien on the estate ought to stand on as good a footing as the lien of the vendor after conveyance. A difficulty has been suggested, that with regard to a vendor, by taking an additional security for the purchase-money, as a general rule, he loses his right to his lien, and a purchaser does not. The ground of the distinction I am at a loss to understand. But, however that may be, it appears to me that, on the principles of equity and justice, the purchaser, when the contract goes off, has a lien.
“ Then the third point of view is with reference to the authorities; and it appears to me that they are in favour of the lien. Besides some two or three dicta which have been referred to, the leaning of which is to some extent to support the doctrine of lien, we have in Burgess v. Wheate a clear enunciation of the proposition that such an equity does exist. In that case, Sir Thomas Clarke said: “Where conveyance is made prematurely, before money paid, the money is considered as a lien on that estate in the hands of the vendee. So, where money was paid prematurely, the money would be considered as a lien on the estate in the hands of the vendor for the personal representatives of the purchaser.'” His Honour, after referring to
VOL. I. NO. I.
Mackreth v. Symons (15 Ves. 345), where the doctrine of Sir Thomas Clarke was quoted without disapprobation, and to Lord St. Leonard's opinion, in his work on Vendors and Purchasers (2 Sug. V. & P.857, 2nd ed.), adds : “I do not see what mischief could result from entertaining a bill for the single purpose of establishing the right to a lien for the deposit; and if it were necessary for me now to determine the question of the right to a lien, I should feel great difficulty in getting over the authorities on the subject, the dictum in Burgess v. Wheate, the observations of Lord Eldon in Mackreth v. Symons, and the opinion of Lord St. Leonard's, especially as I think natural justice is strongly in favour of the doctrine."
15. JENKYN V. VAUGHAN. 3 Drew. 419. Voluntary Settlement by Person indebted - Fraudulent against Creditors under 13 Eliz. c. 6—Bill filed by Person becoming a Creditor subsequent to Voluntary Settlement.
It was held in this case, by Sir R. T. Kindersley, V.C., that a creditor whose debt accrued subsequently to the execution of a voluntary deed may file a bill for the purpose of setting it aside, if any of the antecedent debts remain unsatisfied.
II.-POINTS DETERMINED IN THE COURTS OF
By ALEXANDER PULLING, Esq., Barrister-at-Law.
1. Agent and Principal-Contract-When it binds Agent personally. 2. Attachment under Common Law Procedure Act, 1854, s. 61-Garnishee - Meaning of word “ Debt.” 3. Attachment_Executor of Judgment Creditor not entitled to attach Debts till he has made himself a Party to the Judgment. 4. Arbitration-Validity of Agreement to refer Prospective Disputes. 5. Bankrupt- What passes to Assignees—Assignment of Materials to be used in Building a Ship. 6. Clergy-Stat. 1 & 2 Vict. c.
106, ss. 29, 31–Contract by Spiritual Person in the course of Trade in which he is engaged. 7. Corporation Aggregate-Liability of, on Contract not under Seal. 8. Corporation created by Statute—Ultra Vires Doctrine. 9. Costs-Taxation—Special Case-Authority of Superior Court to direct Review of Taxation where Decision reversed by Court of Error. 10. County Court Jurisdiction-Nuisance Removal Act, 11 & 12 Vict. c. 123 -Title to Lands. 11. Election Expenses—Who is an“ Agent for Election Expenses” within the 17 & 18 Vict. c. 120, s. 16. 12. Evidence-Declaration of deceased Tenant against his Landlord's Right. 13. Libel-Privileged Communication-Province of Judge. 14. Practice-Compulsory Reference - Power of the Judge to refer " Matters of Account” under the 3rd sect. of the Common Law Procedure Act, 1854. 15. Practice-Equitable Defence- What admissible. 16. Practice- Inspection of Document - Affidavit-Discovery. 17. Public Body-Contracts by, in pursuance of Act of Parliament-Clerk to Trustees. 18. Mining Shares—No implied Contract on the part of a Purchaser to indemnify the Seller against Calls in respect of. 19. Sale of Goods Property and Right of Possession, how passed. 20. Stamp-Objection as to Süfficiency of Stamp cannot be reserved for the Opinion of the Court. 21. Waste-Inclosure by Tenant -Presumption-Description of adjoining Waste.
1. LENNARD V. ROBINSON. 5 Ellis & Bl. 125, Agent and Principal-Contract- When it binds Agent personally. This was an action on a charter-party, whereby it was agreed between the plaintiff, owner of the ship N., then at Genoa, and Robinson and Co., of London, merchants, that the ship should proceed to Torrevieja, and there load, from the factors of the said merchants, a cargo, “to be brought to, and taken from alongside, at merchants' risk and expense, which the said merchants hereby bind themselves to ship;" and should proceed to Memel, and deliver, on paying freight : "thirty running days to be allowed the said merchants” for loading and discharging, and ten days for demurrage, at 41. per day. The charter-party was signed" by authority of, and as agents for, Mr. A. H. Schwedersky, of Memel," --Robinson and Co.
The declaration set out the charter-party, and averred that Schwedersky was a foreigner, not a subject of this realm, residing beyond the seas, to wit, at Memel, and claimed from defendants demurrage and damages for detention ultra. The defendants pleaded that the agreement was entered into by defendants by the authority of, and for, and on behalf of, and as agents for, Schwedersky, and not otherwise ; and he was named to, and known by, plaintiff, as being defendants' principal at the time the agreement was made. On demurrer, the Court of Queen's Bench gave judgment for plaintiff, the terms of the charter-party showing that defendants contracted personally.
2. KENNETT v. WESTMINSTER IMPROVEMENT COMMISSIONERS.
11 Exch. 349. Attachment—Common Law Procedure Act, 1854, 8. 61–Garnishee-Meaning
of word “ Debt.” The Westminster Improvement Commissioners, incorporated by Act of Parliament, for the purpose of effecting certain improvements in Westminster, were empowered to borrow money on bond, and to advance money to builders for building purposes. By the condition of these bonds, all the bond. holders were to be paid pari passu.
The Commissioners advanced a certain sum to one Mackenzie, a builder, under the provisions of these Acts. The plaintiff sued the Commissioners on one of their bonds, and they suffered judgment by default; and thereupon the plaintiff attached the debt due from Mackenzie to the Commissioners; but the Court of Exchequer held that the debt in question was not such a debt as could be attached under the 61st section of the Common Law Procedure Act, 1854, for the plaintiff could not enforce immediate payment of his judgment, and the effect of the garnishment would be to give him a priority over the other bondholders.
3. BAYNARD V. SIMMONS. 5 Ellis & Bl. 59.
Attachment—Executor of Judgment Creditor not entitled to attach Debts, till
he has made himself a Party to the Judgment. In this case, the plaintiff having died after judgment obtained, his executor proceeded, under sect. 61 of the Common Law Procedure Act, 1854, to attach a debt due to the defendant, without making himself a party to the judgment; but the Court of Queen's Bench held that this could not be done, and held the attachment bad.
4. LIVINGSTON v. Ralli. 5 Ellis & Bl. 132. Arbitration-Validity of Agreement to refer Prospective Disputes. This was an action on a contract, containing, inter alia, a prospective agreement, that if any difference should arise between the parties, it should be referred to arbitration. The declaration averred that a difference arose, and that the defendant refused to refer it.
The question as to the validity of this agreement being raised on demurrer, the Court of Queen's Bench held that the action lay.