SPECIALTY DEBT.

A., being indebted to B., made and executed an indenture between himself and C., to which B. was no party; and thereby, after reciting that A. stated that he was indebted to B. in a certain specified sum, A. conveyed and assigned all his real and personal property to C., upon trust to sell, and out of the proceeds to pay the debt, and to pay the surplus to A. And the deed contained a covenant for further assurance:-Held, that the debt to B. was not converted into a specialty.

Whether that would have been the effect if B. had been a party to the deed, or if C. had executed it as B.'s agent-Quare. Stone v. Van Heythuysen,

SPECIFIC LEGACY. See WILL, 6.

721

SPECIFIC PERFORMANCE.

See LEASEHOLDS, 2.

RESTRAINT OF TRADE.

STATUTES.

12 ANNE, c. 16; 3 & 4 WILL. 4, C. 98; 1 VICT. C. 80; 3 & 4 VICT. C. 37. See USURY.

5 & 6 WILL. 4, c. 76; 1 Vict. c. 78. See MUNICIPAL CORPORATION.

1 VICT. c. 26.

See ELECTION.
POWER OF APPOINTMENT, 4.
WILL, 6.

6 & 7 VICT. c. 94. See JURISDICTION.

58 GEO. 3, c. 69. See VESTRY.

1 & 2 VICT. c. 110. See CHARGING ORDER.

10 GEO. 4, c. 56; 6 & 7 WILL. 4, c. 32.

See BENEFIT BUILDING SOCIETY.

3 & 4 WILL. 4, c. 106. See ELECTION.

9 GEO. 2, c. 36.

See CHARITABLE USES.

3 & 4 WILL. 4, c. 27. See LUNACY.

10 GEO. 4, c. 56.

See FRIENDLY SOCIETIES.

WINDING-UP ACTS, 1848, 1849.

See OFFICIAL MANAGER.

15 & 16 VICT. c. 86.

See CHAMBERS.

EVIDENCE, 2, 3, 4.

EXCEPTION.

MOTION FOR DECREE, 1, 2. PARTIES, 1, 2.

SALE BY THE COURT.

9 GEO. 4, c. 14; 3 & 4 WILL. 4, c. 27. See LIMITATION OF ACTIONS.

10 & 11 VICT. c. 96. See TRUSTEE RELIEF ACT.

By the 38 Geo. 3, c. lxviii., intituled An Act for the better government and regulation of the Shrewsbury School, the preamble of which recited certain grants to the bailiffs and burgesses of Shrewsbury, includ

ing that of the presentation to the living of St. Mary, as having been made for the advancement of the school, and referred to certain rules and ordinances touching the revenues and government of the school (some of which rules prescribed that the person from time to time appointed to serve the ministry in the church of St. Mary should be such a fit man as had been brought up at the school, and a graduate, being a burgess's son of Shrewsbury, if any such could be found); and also recited, that many of the existing rules had been found. inexpedient; and that it would tend to the advancement and good of the school that other rules better adapted to the present situation of the school, and more calculated for the due management of its revenues, should be established: it was enacted, that the existing rules should be repealed; and, amongst other things, it was declared, that the right of nomination to St. Mary's was in the mayor, aldermen, and assistants of Shrewsbury, and their successors; and it was enacted, that they should appoint "a fit and proper person duly qualified according to law," provided that in such appointment such person should be preferred, cæteris paribus, who should have been brought up at the school, and should be a graduate, and also the son of a burgess of Shrewsbury; and if there were no burgess's son of that description, then a preference should be given in like manner to such person of the above description born in C. Except that it should be lawful to bestow the living upon either of the masters of the said school after he should have resigned his mastership, notwithstanding any such claim or preference as aforesaid; and that such master should be capable of holding the living "equally the same as if he had been of the description herein

before mentioned:"-Held, that the words "cæteris paribus" in the statute referred to the previously specified qualification of being fit and proper, and duly qualified according to law, and not to the general qualifications of a candidate for the duties of a clergyman.

In construing an Act of Parliament or any other instrument the Court is at liberty to regard the state of the law at the time, and the facts which the preamble or recitals of the Act or instrument prove to have been the existing circumstances at the time of its preparation.

Construing this statute by the aid of the preamble, it was intended to benefit the school; but it would not be a benefit to the school, if, by the words "cæteris paribus," the scholars, in the competition for these livings, were to be brought into comparison with any other candidates who might offer, and the trustees were directed to choose out of all the candidates the one whom they might think possessed the highest qualifications for the office of a clergyman.

Such a trust would be extremely vague and unsatisfactory, and might lead to an absurd result, for the general qualifications for holy orders are so numerous, and the trustees might differ so much as to their relative importance, that it might happen that they would concur to elect some person not a scholar, each for a dif ferent reason, when all thought the school candidate to be superior in every respect save that which influenced their respective votes.

The direction to the trustees to appoint a "fit and proper person" is not mere surplusage, but restricts their choice within narrower limits than that of an ordinary patron, who may appoint any one, subject only to the bishop's power to reject the nominee; for instance, these words would

render it improper for the trustees to appoint a very old man, which the bishop could not prevent.

The words "cæteris paribus" are necessarily limited by the subject to which they apply. In this statute they were applied not to the qualifications of a schoolmaster, or any other profession but that of a clergyman, and there is authority as well as reason for limiting these words further to those qualifications only which were previously specified in the Act; and although the word "paria" implies comparison, yet, as no mode of examination was suggested in the Act, and as the power of nomination was given to a body not peculiarly well fitted to conduct such an examination, and it was not required in terms that they should select the most fit person, it was most probably the intention of the legislature that the words should be so limited. The Attorney-General v. The Earl of Powis,

STAYING PROCEEDINGS.

186

1. In a foreclosure suit, the Court will not stay proceedings on the application of a Defendant, except upon the terms of his paying down or having previously paid or tendered to the Plaintiff his principal and interest and all the costs of the suit. Other incumbrancers, who are parties to the suit, have not such an interest in it as to enable them successfully to oppose a motion to stay proceedings, because the Plaintiff might at any time dismiss the bill against them upon payment of their costs.

The Court will not make an order to stay proceedings upon payment of principal, interest, and costs on a future specified day, however near, because the right of a mortgagee is to pursue any or all of his remedies

without hindrance, until he actually obtains payment of his demand.

When a suit is brought to a conclusion upon a motion of this kind, moneys in the hands of a receiver appointed in the suit belong to the person who was in possession of the estate when the receiver was appointed. Paynter v. Carew, App. xxxvi.

2. In a suit for foreclosure and redemption by one of several successive mortgagees, upon motion by a subsequent incumbrancer, the bill was ordered to be dismissed with costs against all the other Defendants, without prejudice to any other suit, upon payment by the Defendant moving of a certain sum of money into Court on or before a certain day, such money to be invested and accumulated. The Plaintiff to pay the taxed costs of all the other Defendants, and to have them over from the Defendant moving, who was ordered to pay to the Plaintiff and other Defendants their costs of this application; and the Defendant moving, by his counsel, undertaking to indemnify the Plaintiff against any proceedings which might be taken in the meantime by any party for redeeming the Plaintiff's securities-a reference was directed, to ascertain what was due to the Plaintiff for principal and interest; and the Taxing Master was ordered to tax his costs and those of the mortgagees other than the Defendant moving, who, as well as the Plaintiff, were to have liberty to apply. Jones v. Tinney, App. xlv.

3. In a suit for foreclosure, on motion by a subsequent mortgagee, the bill was ordered to be dismissed on the mover paying into Court a fixed sum on or before a day specified, to answer the Plaintiff's claim, and the costs of the Plaintiff and other Defendants. Challie v. Gwynne, App. xlvi.

It is very questionable whether the sureties of the bond usually given by an official assignee in bankruptcy to the Chief Registrar and another Registrar of the Court, for the proper performance of his duties, would be discharged from their suretyship by the neglect of the creditors' assignees in the bankruptcies in which he acted to exercise that supervision over his conduct, which, by the statutes and rules in bankruptcy, it is their duty to do. The bond seems to be given to the Registrars, and not to the creditors' assignees, as obligees, for the express purpose of preventing the negligence of the assignees having that effect.

In such a case, the negligence, in order to discharge the sureties, must amount to connivance at the official assignee's getting the fund into his hands improperly; or must be so gross as to be equivalent to a wilful shutting of the eyes to the fraud which he is about to commit.

An injunction to restrain an action against the surety refused upon an interlocutory application, in a state of circumstances, not shewing a sufficient probability that such a case would be proved on further investigation as would entitle the surety to be protected by a perpetual injunction at the hearing.

Effect of the rules in bankruptcy providing for the supervision of the

1. A tenant for life of an estate subject to a mortgage is not liable, as between himself and the remainderman or reversioner in fee, to pay out of the rents and profits of the estate arrears of interest on the mortgage, which accrued due during the life of a preceding tenant for life, who died insolvent; but such arrears are primarily a charge upon the inheritance.

Observations on the dicta in Lord Penrhyn v. Hughes, (5 Ves. 106).

A second tenant for life cannot charge upon the inheritance money expended by him in repairs, which ought to have been performed by the first tenant for life, unless the expense was occasioned by wilful waste done by him. Sharshaw v. Gibbs, 333

2. Courts of equity have no means of interfering in cases of permissive waste by a tenant for life of real property.

There is no implied trust to keep the property in repair imposed upon a tenant for life under a will; for, if there were, he could not convey away his life estate without committing a breach of trust, nor, if he did, would he get rid of the trust by so doing.

A trustee, to whom real property is devised in trust for one for life, cannot interfere with the possession of the equitable tenant for life, because he neglects to keep the property in repair; but if the tenant for

life is committing active waste, it seems that the trustee may, and probably ought to interfere, at least if the persons entitled in remainder are under disability. Therefore, such a trustee is not liable to the remainderman for the neglect of the tenant for life to repair. Powys v. Blagrave, 495

TITLE.

See LEASEHOLDS, 2.

TITLE DEEDS.

See PRODUCTION OF DOCUMENTS.

TRADE.

See RESTRAINT OF TRADE.

TRUSTEE AND CESTUI QUE TRUST.

See ANNUITY.

CHARGING ORDER.
SETTLEMENT.

TENANT FOR LIFE, 2.
VOLUNTARY TRUST.

By a settlement made in contemplation of marriage, a lady assigned a certain sum of money and interest, due to her from a trading firm, to one of the partners in the firm and the Plaintiff, as trustees, upon trust, to permit the fund to remain in the hands of the firm until the trustees should be requested by the settlor, in writing, to call it in, and upon such request to call in and compel payment of the same, and invest it, and to hold such sum and the investment upon the trusts therein mentioned; and it was provided, that it should be lawful for the trustees, with the consent of the settlor, after giving to the partner trustee, or any other member of the firm, three months notice in writing, to call in the said

fund; but that, so long as it remained in the hands of the firm with the consent of the settlor, the trustees were not to be answerable for any insufficiency thereof. The firm suspended payment, and made a composition with their creditors; and after such suspension, the settlor, for the first time, requested the trustees to call in the fund. The Plaintiff thereupon requested his co-trustee to pay the money. Upon his refusal to do so, the Plaintiff filed his bill against this co-trustee and the cestuis que trust, to have the trust executed by the Court, and himself indemnified:-Held, that the partner trustee must be considered as having the fund in his hands from the expiration of three months after the notice requiring him to pay it; and that, therefore, a decree for payment of the debt might be made against him, although the other partner in the firm was not a party to the suit.

If adult cestuis que trust insist upon their strict rights, the Court will not exercise any discretion for the benefit of other cestuis que trust who are infants. Norton v. Steinkopf,

TRUSTEE ACT, 1850.

45

1. The Court has authority to make a vesting order under the Trus tee Act, 1850, in cases where there is nothing to prevent a conveyance of the trust property to the trustees appointed by the Court. In re Manning's Trusts, App. xxviii

2. The infant heir of a person who has died intestate, leaving real estate which he had in his lifetime contracted to sell, is not a constructive trustee for the purchaser within the Trustee Act, 1850, unless he has been declared to be so by a decree of the Court. In re Carpenter, 418