Nor does it matter that the Plaintiff or Defendant, or both, are assigns of the original parties to the covenant sought to be enforced; for the covenantee must be taken to have assigned the benefit of the covenant with each portion of the remaining land, and the assign of the covenantor is bound in equity if he had notice of the covenant.

The equity is the same, where the vendors of a plot of land to the first purchaser conveyed to him by the exercise of a general power of appointment under a settlement, and the person seeking to restrain a breach of the covenant is one of the persons entitled to the rest of the land under the limitations in the settlement in default of appointment, or is the assign of either of such persons, or an appointee under a power of sale and exchange contained in the settlement by way of proviso, in the usual form, and whether he is such an assign or appointee of the whole or of part only of the remaining land.

The original vendors, or their assigns, not having taken proceedings against the first purchaser, who had built upon his land in such manner that it was very doubtful whether or not he had thereby broken his covenant:-Held, that this was not such an acquiescence as would prejudice their right to restrain a breach of the covenant.

The distance from the road within which building was prohibited being left in blank in the covenant in the deed, but being expressed in the previous written contract, and it being proved that the blank had been left by the direction of the clerk of the vendors' solicitor, not their authorised agent, and that there was no intention to depart in the deed from the terms of the contract, and the

clerk having declined to give evidence concerning the matter:-Held, that relief might be given as though the covenant in the deed had been perfect and in accordance with the contract; but,

Held, that the defect must be confessed and avoided in the bill, and that no relief could be given where the bill stated the covenant as though it contained no blank, and the real facts only appeared upon the affidavits. Child v. Douglas, 560

INTEREST.

See LIMITATION OF ACTIONS, 1, 2. MORTGAGE.

INTERLOCUTORY INJUNC

TION.

See ACQUIESCENCE.

Land having been laid out for building a row of houses on a general plan, according to which no building was to be erected within six feet from a projected road in front of the row, a purchaser of one of the plots, being aware of the general scheme, and buying subject to the terms of a printed form of contract relating to the whole estate, which restrained him from building within six feet from the road, and knowing that another plot had been previously sold and built upon according to the general scheme, must be considered to have known that the previous purchaser had bought subject to a similar restriction.

But, if the second purchaser did not actually know this, still, where he has purchased all the rights of the vendors relating to his plot of land, it became impossible for the vendors, from the time of his purchase, to release the former purchaser from his covenant not to build within six feet

JURISDICTION.

from the road, or to alter in any respect their rights against him.

Therefore, where the prohibited distance had by accident been left in blank in the former purchaser's covenant, without the knowledge of the vendors, and they had a right to have the deed rectified, the second purchaser was held entitled to an injunction to restrain a breach of the covenant by the former purchaser; and as this right was entirely equitable, and might, if the covenant had been perfect, have been enforced in the absence of the original covenanting parties:-Held, that the injunction might be obtained without having the deed rectified, and without making the covenantee a party to the suit. Child v. Douglas, 575

ISSUE.

See WILL, 1.

JOINTURE.

See SETTLEMENT, 1.

JURISDICTION.

See ESTABLISHING A WILL AGAINST
THE HEIR.

TRUSTEE RELIEF ACT.
WARD OF COURT, 1, 2.

A person holding by the warrant of her Majesty the office of Judicial Assessor to the native princes, and being also Chief Judge of her Majesty's dominions on the Gold Coast of Africa, took possession of the personal effects of a British subject, who died intestate, domiciled at Cape Coast Town, in Africa, and claimed to be the official administrator of these assets, by usage, in his capacity of Judicial Assessor, and, as such, to be entitled to 7 per cent. commission upon them. He afterwards transmitted part of the assets to this

country to be sold, and the proceeds carried to the account of the intestate's estate, and came to this country himself on leave of absence for a short time. The father of the intestate, being his sole next of kin, obtained letters of administration to him in England, and filed his bill against the Judicial Assessor for administration, and for a receiver. And upon

motion for a receiver in the suit:Held, that the Court of Chancery had jurisdiction to sustain the application, as the assets and the Judicial Assessor were both in this country, whatever might be the nature of his authority; and that, there being the danger of his taking the assets again out of the jurisdiction, although he might be the proper representative of the intestate in Africa, a good case was made for the appointment of a receiver.

An inquiry as to the nature and extent of the jurisdiction exercised by her Majesty at Cape Coast Town, in the administration of personal estate of persons dying there intestate, and the manner of exercising such jurisdiction, directed to the Colonial Office, under the provisions of the 6 & 7 Vict. c. 94.

But a motion, that the Defendant might pay into Court proceeds of assets in his own hands, was refused. Hervey v. Fitzpatrick,

LACHES.

See ACCOUNT. ACQUIESCENCE.

LEASE.

See MINES, 2.

LEASEHOLDS.

421

1. A testator bequeathed to his executors and trustees all his personal

estate (except such goods as were by his will especially bequeathed, and also except his leasehold estates, which he declared it to be his intention to exonerate from the payment of his debts and legacies), upon trust, in the first place, to pay his debts, funeral and testamentary expenses, and legacies; and in case there should be any residue of his personal estate (except as aforesaid) he gave the same to his son R. And, after giving certain specific legacies, the testator devised all his freehold hereditaments to the same trustees, upon trust for his said son R., for life, with remainder to his grandson W., for life, with divers remainders over in tail. And the testator gave all his leasehold estates to the same trustees, in trust, to permit the clear rents thereof to be received, taken, and enjoyed by the person for the time being entitled to the freeholds, until such person should by good assurance become seised of the freeholds in fee simple in possession; and then in trust to convey and assign the leaseholds to him:-Held, that the limitations of the leaseholds beyond the life estates of R. and W. were void for remoteness; and that the interest thus improperly attempted to be given did not belong absolutely to W. as the last tenant for life, nor did it pass by the residuary bequest to R., because the exception of the leaseholds out of the residuary gift was not simply for the purpose of making a separate bequest of them, but also to exonerate them from payment of the debts and legacies; and therefore held, that, beyond W.'s life estate, the leaseholds were undisposed of by the will, and belonged to the next of kin of the testator. Wainman v. Field, 507

2. If a lessee for a term of years underlet for a less term, and the underlessee sell by auction the lesser

term, describing it as a lease, and one of the conditions of sale is, that the lessor's title shall not be inquired into; the vendor's title being goodQuære, whether the purchaser can refuse to complete because there is a term interposed between the vendor's interest and the freehold.

But, in such a case, where the property was included in the original lease, together with other hereditaments, subject to general covenants, and a power of re-entry for breach of any of them, and the purchaser had discovered these facts aliunde:— Held, that he was entitled to refuse to perform his contract, notwithstanding that the original lease contained provisions for the apportionment of the rent and of the power of re-entry.

It is a formidable objection to the title of a vendor of leasehold property, that he has underlet it by a lease which does not contain similar covenants to those by which he is bound to his own lessor, for example, covenants to build, or to paint at certain periods; for the vendor may thus have put it out of his power, during the underlease, to perform covenants for the breach of which the original lessor can re-enter.

Quare, whether the doctrine, that a purchaser of leaseholds, or of freeholds subject to a lease, has notice of the covenants in the lease, can be extended to fix him with notice of collateral facts stated in such covenants? If such facts disclose a defect in the vendor's title, the Court will not compel the purchaser to perform his contract, whether he had notice or not. Darlington v. Hamilton, 550

3. A bequest of leaseholds to A. for life, remainder to B., remainder to C., gives B. a life interest only. The Earl of Lonsdale v. The Countess Berchtoldt,

646

LEGACY.

See WILL, 2, 5, 6, 7, 8, 10, 11.

LIMITATION OF ACTIONS, &c.

See LUNACY.

1. Where a debtor owes principal and interest upon three promissory notes, and the remedy in respect of two of them is barred by the Statute of Limitations, if the creditor requests payment of interest generally, and the debtor makes a small payment on account, without specifying in respect of which debt such payment is made, this is not such an unequivocal acknowledgment of the debts which are barred as to prevent the operation of the Statute.

The creditor may appropriate a general payment of this kind to either of the debts; but such appropriation will not avoid the effect of the statute, unless acknowledged in some manner by the debtor. Nash v. Hodgson, 650

2. A. gave to B. a promissory note, dated October, 1834, for 8371. 18. 6d., payable on demand. In December, 1834, demand was made, and A. then promised to pay interest, and signed an unstamped memorandum, dated the 2nd December, 1834, as follows:

747

as no other debt was proved to exist, the 8377. there mentioned was to be assumed to be part of the 8377. 18. 6d. secured by the former promissory

note.

Held, also, that, in the absence of proof of the existence of any other promissory note to which it could relate, the letter of 1848 must be taken to refer to the promissory note of October, 1834, and thus to take it out of the Statute of Limitations.

By a marriage settlement, dated in 1828, A. covenanted to transfer a sum of stock belonging to him to trustees, upon trust to pay the dividends to himself for life, and then upon trusts for the benefit of the intended wife and the issue of the marriage. The stock was not transferred:-Held, that A. was not a trustee of it within the exception of the Statute of Limitations; but, that it was a debt from him, and that, notwithstanding his life interest, time began to run against this debt from the execution of the settlement.

In 1825, A. borrowed from the executors in trust of a will, a fund which was thereby bequeathed to them in trust for himself for life and then for other persons, and gave to them a promissory note for the repayment of this sum to them as "executors in trust," with lawful interest:-Held, that A. borrowed the fund and promised to repay it as trust money; and therefore that lapse of time was no bar to the claim against him for repayment. Spickernell v. Hotham,

669

3. To prevent the right to have an account from being barred by the Statute of Limitations, it is not necessary to have an acknowledgment that a debt is actually due; but it is sufficient that there should be an acknowledgment that the account is pending, and a promise to pay the

E. K. W.