Crombie, on the 3rd of August, 1833, or by the proceedings thereunder; and that notwithstanding that decree and those proceedings, the testator's residuary personal estate ought to be laid out in the purchase of lands in England or Scotland, according to the directions of the will; and that such parts or so much of the funds and moneys constituting the capital, or parts of the capital, of such residuary personal estate as were in court in the month of November, 1836, and were, under the order of the 24th day of the same month of November, transferred and paid to J. D. Dingwall, were erroneously transferred and paid to him, and ought to be restored and brought back by the defendant, Sir H. Brydges, out of the assets of the said J. D. Dingwall, possessed by him, and that he must be ordered to transfer and pay the same into court accordingly, and either to admit assets received by him sufficient for the purpose, or to account in the usual manner; and further declare, that the trustees appointed in pursuance and under the direction of the decree were erroneously appointed, and that new trustees ought now to be appointed in the manner directed by the will; and thereupon refer it to the Master to approve of the trustees to be appointed by the plaintiff, as the person now entitled to the actual possession, or to the actual receipt of the rents of the estates devised by the said will. And, if necessary, there must be an inquiry as to what part of the funds in court in November 1836, which were transferred and paid to J. D. Dingwall, consisted of capital, and what were the amount and particulars thereof; and, if necessary, there must be an inquiry as to who are the persons now living entitled in succession to those estates. And I shall proceed no further until I obtain the appointment of new trustees.

27th February.-Kindersley applied to the Court in this case to have the decree limited to comprehend the capital only and not the accumulations; which was understood to be agreed to.

covered, they did all in their power to set the affair right; for they offered to pay the costs, and put the issue in the same situation as it was before. The Judge at chambers could not act otherwise than he did because the defendant chose to stand upon the strict rule of law, and therefore he refused to grant the plaintiff's application. That there appeared to have been mistakes made on both sides, and under these circumstances his Honour thought that the proper course would be to make no order at all.

Tuesday, July 27.

SMITH V. THE IPSWICH AND BURY RAILWAY COMPANY.

Railway litigation-Agreement for the purchase of land by valuation-Variation of railway planError in estimate.

Where by memorandum of agreement prior to the projection of a railway a certain quantity of land was to be taken from the plaintiff at so much an acre. to be estimated by a surveyor, who, after having made his report, confessed he had fallen into an error in his calculations, whereby the plaintiff would be prejudiced if he acceded to the variation of the original agreement :

Held, that, notwithstanding the mistake, the company were bound by the former agreement.

The plaintiff, in this case, is the owner of certain landed property situate at Thurston, near Bury St. Edmonds, in the county of Suffolk. The bill was filed to enforce the specific performance of an agreement which was alleged to have been entered into between plaintiff and the company under the following circumstances:-Previously to the existence of the railway, which was projected in 1845, Mr. G. C. Cobbold, and another person, applied to the plaintiff on behalf of the company, and a memorandum of agreement was made, wherein it was stipulated that the plaintiff should be at liberty to appoint his own surveyor to make a valuation at the expense of the

taken possession by virtue of the agreement, but under the compulsory clause of the Act of Parliament.

VICE-CHANCELLOR KNIGHT BRUCE'S COURT.

Thursday, June 24. SKEY V. GARLIKE. Practice-Demurrer.

A demurrer to the whole bill, accompanied by an answer to the whole bill filed after the twelve days after appearance had expired, overruled for irregularity.

This was a demurrer to the whole bill accompanied by an answer to the whole bill. The demurrer and answer were filed after twelve days, but within six weeks after appearance. The demurrer was set down for argument by the plaintiff.

Swanston and Southgate, for the bill, objected to the demurrer, as irregular.

E. G. White, for the demurrer, contended that it was regular, as by the 13th article of the 16th Order of May, 1845, the defendant is at liberty to plead answer, or demur, not demurring alone, within six.. weeks after appearance; and by the 37th Order of August 1841, no demurrer is to be held bad and overruled upon argument only, because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer.

Swanston and Southgate cited Dell v. Hale, 2 Y. & C., C. C. 1; and Lord Portarlington v. Soulby, 6 Sim. 356.

E. G. White, in reply, referred to 2 Daniell's Chaucery Practice. The VICE CHANCELLOR said that the demurrer must of necessity be overruled.

mistake.

COURT.

Saturday, July 10. VARTY v. DUNCAN. Practice-Issue at law-Omitting to give notice through inadvertence-Case wherein the Court will rectify a The defendant had obtained an order of the Court, that the plaintiff should proceed to trial within a given time, upon an issue thereby directed, or that the issue should be taken, pro confesso, against the plaintiff. But the plaintiff, by mistake, had omitted to give notice of the trial in time. The Court, under the circumstances of the case, declined to order the issue to be taken pro confesso.

On the fourth of November, 1846, an order was made in the cause, that the plaintiffs and defendant might proceed to a new trial of the issue, which, by a previous order made in the same cause on the 13th of December, 1844, had been directed. Defendant had given notice, requiring the plaintiffs forthwith to proceed to a new trial of the issue in pursuance of the first-mentioned order. On the 9th of February, 1847, an order was taken by the defendant, that the plaintiffs might proceed to a new trial at the Middlesex Sittings after Trinity Term then next, or in default thereof, the issue might be taken, pro confesso, in favour of defendant. To this order plaintiffs made no opposition. The common-law clerk of the plaintiff's solicitor, being ignorant of the order of the 9th of February, 1847, had omitted to give notice of trial till it was too late. Under these circumstances, he immediately applied to a Judge at chambers for leave to enter the issue nunc pro tunc, offering to pay the defendant the costs incurred through the omission. The defendant, however, refused to consent; in consequence of which, the Judge declined making an order. The defendant now moved that the issue might be taken, pro confesso, against the plaintiffs. The plaintiffs undertook to give notice of trial, and to enter the issue, on paying the costs.

Walker and Elmsley appeared in support of the motion, and cited Casborne v. Barsham, 6 Sim. 317. Bethell and Schomberg, contrà, cited Hood v. Pimm, 4 Sim. 101.

The VICE-CHANCELLOR observed, that it was an established rule of the Court to relieve against mistakes, and that he threw out the remark because, on a previous occasion where an application of a similar kind had been made in consequence of a clerk having made a slip, and he had refused to relieve, he did not do so because the clerk had made a mistake, but because there had been gross negligence. In the case before him, however, it appeared to be quite evident that there was a mistake, and that was coupled with the intention which clearly existed on the part of the plaintiff to go on with the proceedings. The order of the Court was opposed by the plaintiffs, but the matter slipped out of the mind of the person whose duty it was to have served the notice of trial. His Honour could not but admit that the parties were wrong in not being more alive to their duty; but it was evident that, as soon as the error was dis

veyor, who reported to the effect that so much of the land belonging to the plaintiff as was required for the railway, if taken as marked in the plan, was worth 2001. per acre, upon the assumption that the com. pany should take two acres and a quarter, which would cause a severance of ten acres. The plaintiff formally signed his assent to the bill, which being brought into Parliament was passed. The company, however, in carrying out their project, and in the course of constructing the railway, found it necessary to vary their original plan, whereby the width of the land required remained unaltered; but the length was curtailed, and this occasioned a severance of five additional acres, reducing by this means the quantity required to one acre, three roods, and seven perches. On the principle of the surveyor's valuation, the pur. chase-money was thus reduced from 4751. 2s. 6d. to 4117. But the plaintiff refused to execute the conveyance unless 4771. was paid to him; therefore he instituted the present suit for a specific performance of what he alleged to be the agreement between himself and the company. He contended that the surveyor, after having made his report, admitted that he had made an error in his calculations, and entered into evidence to shew that, taking the valuation on that corrected footing, and that the company had departed from their original agreement, by taking a less quantity of land and creating a greater severance, the plaintiff was entitled to 4771. and not to 4111. only, which he had been offered by the company. The plaintiff, moreover, contended that his assent had been instrumental in procuring the bill to be passed, and this he allowed upon the faith of the surveyor's valuation, which ought to be taken as amended upon the error which he had confessed he had fallen into. Wilcock appeared for the plaintiff. Bethell and Daniel, for the company, were not heard.

The VICE-CHANCELLOR said, that it was very clear two agreements had been entered into,-one before the passing of the Act, and the other subse. quent to the Act. If the company had entered into the agreement in consequence of the plaintiff's consent, that circumstance would amount to evidence of the agreement having been adopted; but in the case before him it appeared that the consent was given in consequence of the first agreement. Soon after the passing of the Act forming the railway, an independent agreement is entered into, and leaving out the difficulty, which would be insurmountable if such last-mentioned agreement were permitted to stand, there was this, namely, that the company were to take at a valuation; this was, de facto, made. But then it was contended that it ought not to be allowed, because the very agent by whose estimate both parties consented to be bound, bad turned round and confessed he had made a wrong calculation. It seemed to his Honour a clear principle, that when a party makes more than one valuation he ought to abide by the first, for, if this were not so, he might change his mind after the second or third, or any number of valuations, which could not be permitted. Upon the whole case there appeared to have been a mistake, and the company could not be said to have

Tuesday June 29.
BISHOP v. CAPPEL.
Will-Construction- Relations."

testator gave half the residue of his property to his
brother, A. B. for life, and after his death to his
wife, and at her decease to go to such of his (the
testator's) relations as should survive them:

Held, that at the death of the wife of A.B. the fund was divisible among such of the testator's next of kin at the time of his death as were then living. William Bishop, by his will, dated the 23rd of October, 1822, after giving certain pecuniary and specific legacies to his sisters, and his nephews and nieces and great niece, therein respectively named, gave and bequeathed all the rest, residue, and remainder of his personal estate and effects to his two brothers, Vezey Bishop and George Bishop, equally to be divided between them, share and share alike, and appointed the said George Bishop and Joseph Maddox executors of his will. The testator made a codicil to his will, dated the 27th of October, 1822, as follows: "It is my will and desire, that the moiety or half-part of the rest and residue of my personal estate, left as within to my brother George Bishop, one of my executors, shall not be left to him and his heirs for ever, but for the term of his natural life, and after his decease to go to Mrs. S. Bishop, his wife, and at her decease, to go to such of my relations as shall survive them, share and share alike," &c. By another codicil, dated the 25th of April, 1830, the testator appointed his nephew, T. Bishop, an executor, in the place of J. Maddox. The testator died on the 28th of April, 1830, leaving three brothers and two sisters him surviving; and the will and codicils were proved by the said G. Bishop and T. Bishop, on the 18th of June, 1830. G. Bishop died in the year 1834, leaving his wife, S. Bishop, him surviving; and S. Bishop died on the 14th of November, 1843, leaving the plaintiff, V. Bishop, who was a brother of the testator, and the survivor of his brothers and sisters, her surviving. The question, therefore, in dispute in this suit was, to whom the moiety of the residue belonged, under the first codicil to the testator's will?

Russell and J. Baily, for the plaintiff, contended, that the words "such of my relations," &c. denoted that class of kindred which, under the Statutes of Distribution, would share an intestate's estate, and that the plaintiff was the only person who, of that class, survived S. Bishop. They cited Spink v. Lewis, 3 Bro. Ch. Ca. 355; Doe v. Over, 1 Taunt. 263; Green v. Howard, 1 Bro. Ch. Ca. 31; and Rayner v. Mowbray, 3 Bro. Ch. Ca. 234.

Swanston and Hubback, Simpkinson and Chichester, and Bacon and Yates, in favour of the nephews and nieces, who, with the plaintiff, would have been the next of kin of the testator, if he had lived until the death of S. Bishop, cited Jones v. Colbeck, 8 Ves. 38; Clapton v. Bulmer, 10 Sim. 426; 5 Myl. & Cr. 108; Butler v. Bushnell, 3 Myl. & K. 232; Briden v. Hewlett, 2 Myl. & K. 90; Winter v. Wraith, 13 Sim. 52; Marsh v. Marsh, 1 Bro. Ch. Ca. 293; Miller v. Eaton, Sir G. Cooper's Rep. 272; and Booth v. Vicars, 1 Coll. 6.

Anderdon and R. Moore, for the defendant Cappel, the trustee.

Russell, in reply.

The VICE-CHANCELLOR said, that of the words

in question, there were three constructions; one of which, however, could hardly be called a construction, as it would produce an intestacy. The second construction gave the moiety in question to V. Bishop, the brother, the only one surviving S. Bishop. The third construction admitted the child or children of T. Bishop. It was very doubtful which of the three constructions was the right one. Spink v. Lewis, however, came so near the present case, as to make it the safer and better course to follow that authority. Lord Rosslyn there said: "It was plain the testator meant by next of kin some class of persons of whom it was doubtful whether they would live ten years, and it was meant that they should pass through that chance. The question was, whether he was at liberty to take notice that at that time he had but one brother? If he had had several brothers, and nephews, sons of brothers, there would not have been a doubt that the division must have been among such of them as survived at the end of the ten years; and if the brother would have taken had he lived, dying within the ten years, it would be undisposed of." This must be considered his final opinion, unless he mentioned the case again on or before Tuesday next.

Note. The case was not mentioned again.

CONGREVE v. HARRISON. Will-Construction-Limitation of income beyond a life or lives in being.

Thomas Harrison, by his will, dated the 21st of December, 1808, after certain bequests to or in favour of his wife, daughters, sons, and grandchildren, gave the residue of his real and personal estate to trustees, and directed that the whole revenue arising from that remainder of his property of all kinds and descriptions should be divided into five equal shares, to be disposed of and distributed as follows:-One-fifth share thereof to his widow during her life; one other fifth part thereof to his daughter, Mary Harrison, during her life; one other fifth part thereof to his daughter, Catherine Wilson, during her life; one other fifth part thereof to his daughter, Henrietta Ann, the wife of John Freer Congreve, during her life; and the remaining fifth part he willed and directed should be paid to his sons, John and Richard, in trust for, and for the use and benefit of, the children of Jane Pearce, to be applied by his said sons in manner as therein before directed with respect to the said children; and his will further was, that from and after the death of his widow, the share and proportion, annuity or otherwise, theretofore paid to her, should be added to the general stock of such revenue, and therewith be divided and distributed to the then survivors entitled; and in case his daughters, Mary and Henrietta, or either, should die unmarried, or if married, the husband being dead, leaving no child or children, he thereby willed and directed that the share and proportion of either, or both, so dying and leaving no husband or children, should respectively go and be added to the general stock, and then afterwards be distributed to, and shared by, the survivors in like manner as his wife's share after her death was

as aforesaid directed; but in case his said daughters, or either of them, should marry and die, leaving husbands or husband, but no child or children, his will was, that such husband or husbands should be entitled to and receive during his life half the dividends and distributions to which his wife had theretofore been entitled; but in case there should be children, then that such children should be entitled to the mother's share in equal shares and proportions, to be paid to them as they should respectively arrive at the age of twenty-one years; and in the meantime to be paid to their father for better enabling him to support and maintain them during their respective minorities; but should it happen that either of his daughters should die, leaving only one child, in that case his will was that the whole share of the mother should be paid to the father till such child should be of the age of twenty-one years, to enable him to maintain and properly educate the said child during its minority, and at that period his meaning was that such child should share in equal proportions with the father the mother's share as aforesaid; and that should the father die before such child should attain the age of twenty-one years, in that case the whole should become the property of the child, and be settled in a proper trustee or guardian for its sole use and benefit; and that in any event, at the father's death, whether before or after the child's arrival at the age of twenty-one years, the whole should then be the child's; and with respect to his daughter Catherine, the wife of W. C. Wilson, his will was that the same measures should be adopted with respect to her husband and children as was above provided and directed in respect to her sisters Mary and Henrietta. The revenue and income of his property thus arranged and directed to be disposed of and distributed, it then remained to arrange and direct the disposal of his real estates, and all other his property and effects, and which he willed and directed as follows (that is to say), when his said wife, his said three daughters, Mary, Catherine, and Henrietta, and their husbands, should be all dead, then, or as soon after as conveniently might be, it was his will

The

Swanston and Tripp, for the surviving trustee, one of the testator's sons, contended that the limitations over of the income were void, and cited Hayes v. Hayes, 4 Russ. 311; Curtis v. Lukin, 5 Bea. 147; Rentlege v. Dorrell, 2 Ves. 357; Robinson v. Hardcastle, 2 Term Rep. 253; and Hodson v. Ball, 14 Sim. 558.

Martin, Giffard, Humphrey, Bates, and Bigg, for other parties.

The VICE-CHANCELLOR.-In this case, as I understand it, the widow is dead, and Mary died without having been married. Henrietta died, leaving two children, one of whom died a minor, and the other is surviving, and of age. I understand that it is not desired to touch or interfere with the capital of any part of the property. The Court is only asked to dispose of the income; and in that income, I apprehend it to be clear, the plaintiff is entitled to a share; and that he and his father, who represents his sister, or he himself, are entitled to the income of one-third of the property; and if not so entitled absolutely, will be so until the death of Mr. Congreve, the father. That is my opinion; I do not see any thing approaching to an intestacy. There are some limitations, which, in possible events, might have been void, and there possibly is now a void limitation in the will; but I am not asked to decide that.

Thursday, July 15.

PARKER V. CONSTABLE. PARKER. STURGIS. Practice-Supplemental bill-Assignee of insolvent. A supplemental bill having been filed against the general assignee of insolvent debtors, a creditor's assignee was appointed ten days before the hearing of the original cause, and more than two years after the appointment of the general assignee, and when the original and supplemental causes were at issue, and set down to be heard:

Held, that such appointment rendered a supplemental

bill necessary.

These causes coming on to be heard, and the defendant, Mr. Sturgis, the general assignee, not appearing,

Russell and Taylor, for the defendant, Elizabeth H. Constable, objected, that on the 17th of June, 1847, her solicitor had been appointed her assignee in the room of Mr. Sturgis.

Swanston and Steere, for the plaintiff, stated that E. H. Constable became insolvent on the 19th of April, 1845, and that she had continued a defendant ever since, being the executrix of the testator, and that Mr. Kirk was then and had all along acted as her solicitor; that witnesses had been examined, and that the causes were set down to be heard on the 4th of May last, and publication passed in all the causes on the 19th of June last.

Russell and Taylor, in answer to an application by the plaintiff's counsel, and by the Court, refused to appear for Mr. Kirk, without a supplemental bill being filed against him.

The VICE-CHANCELLOR said he was of opinion, that the legal estate must be considered as having passed to Mr. Kirk, and that a supplemental bill was necessary.

Costs reserved.

VICE-CHANCELLOR WIGRAM'S

COURT.

June 12, and July 2.

FORD V. WASTELL and OTHERS. Practice in proceeding to enforce a judgment, under the statute 1 & 2 Vict. c. 110, (" for Abolishing Arrest on Mesne Process in Civil Actions,") upon lands in equity-Foreclosure absolute-Enrolment-Enlargement of time notwithstanding enrolment of decree. A judgment from the time of registry, under the statute 1 & 2 Vict. c. 110, becomes a charge bearing interest upon the real estate of the debtor, and, at the expiration of one year from the date of such registry, has the force of a mortgage in equity, and may be

executed by suit for foreclosure against the lands of the debtor in the same manner as a mortgage. The Court of Chancery will enlarge the time for pay. ment of the debt notwithstanding the decree for foreclosure has become absolute, and been enrolled, on a proper case being shewn; but the application must be made to the Lord Chancellor.

This suit was instituted for the purpose of having the benefit of a judgment enforced against the lands of the defendant through the aid of a Court of Equity under the statute for Abolishing Arrest on Mesne Process in Civil Actions;" the present proceedings, however, related merely to a motion for enlargement of the time fixed by the decree for payment after foreclosure had become absolute and been enrolled; but as the suit disclosed an effective course of proceeding to carry into effect powers given by a modern statute, the previous proceedings in the suit, together with the prayer, are set forth to shew the practice in

such cases.

In January, 1838, the defendant, Ellen Miles Wastell, and her sister, Harriet Ann Wastell, employed Messrs. Hicks and Morris, solicitors, to institute a suit in Chancery to have the trusts of the will of the late Sir Jonathan Miles carried into execution, and their rights secured under the decree of the Court; whereupon a suit entitled Wastell v. Leslie was insti tuted, and a cross suit entitled Carter v. Leslie was also instituted by those solicitors to have the accounts taken of the real and personal estate of Sir J. Miles, and the trusts of his will executed, and the rights of the defendant and her sister declared. These suits were prosecuted by Messrs. Hicks and Morris until July 1840, when they were discharged, and the plaintiff, Charles Ford, was duly appointed solicitor in those causes in their place. In February, 1841, a decree was obtained in both suits, and the usual accounts directed, and in the meantime a receiver was appointed, and he was directed to pay the defendant, E. M. Wastell, the sum of 2001. annually, on account of a sum of 4,000l. in which she had an interest under the will, and a marriage settlement made between her father and mother. She was also declared entitled, under the same will and settlement, to an undivided third part of the freehold and leasehold estates of Sir J. Miles, which were of considerable value. Mr. Ford acted as the defendant's solicitor in carrying out the decree until the year 1843, when he was discharged from further conduct of the decree under the order of the Court. Mr. Ford being unable to get his costs paid, commenced an action against the defendant in the Court of Queen's Bench (her sister having gone out of the jurisdiction), and obtained judgment for the sum of 4311. 19s. 10d. and had a memorandum of it duly filed with the senior Master of the Court of Common Pleas, pursuant to the stat. 1 & 2 Vict. c. 110, s. 19. In order to make it a charge upon the real estate of the defendant, the memorandum of the judgment was entered up on the 18th day of June, 1844, and the period fixed by the 13th sec. of the same statute having expired, the plaintiff filed the present suit against the defendant to have the judgment and interest satisfied out of the real estate of the defendant; and by his bill prayed "that it might be declared by the decree of this honourable Court that the plaintiff was entitled, by virtue of the said judgment and the said Act of Par liament, to be considered and treated as having a mortgage of, or charge on, the one undivided third part or share of the freehold and leasehold heredita ments and premises devised and bequeathed by the will of the said Sir J. Miles to the said defendants, Lewis Leslie and W. Bernard, in trust for the said defendant, E. M. Wastell; and that it may be declared that the plaintiff was entitled to the same remedies in this honourable Court against such undivided third part of such hereditaments and premises as plaintiff would have been entitled to in case the said defendant, E. M. Wastell, had, by writing under her hand, agreed to charge the same with the said sum of 4317. 19s. 10d. and interest thereon at the rate of 41. per cent. per annum, from the said 18th day of June, 1844; and that it might be referred to one of the Masters of this honourable Court to compute what was due to the plaintiff for interest on the said judgment; and that the said defendant, E. M.Wastell, might pay to plaintiff what shall be so found due to him by a short day, to be appointed for that purpose, toge. ther with his costs of this suit, or in default thereof that the said defendant, E. M. Wastell, and all persons claiming under her, may be for ever barred and fore. closed of and from all right of equity of redemption of, in, and to the said one undivided third part of share of the said freehold and leasehold hereditaments and premises, or that what shall be due to plaintiff for principal, interest, and costs, may be raised and paid to the plaintiff by sale of the said one undivided third part or share of and in the said here. ditaments and premises to which the said defendant, E. M. Wastell, is entitled under the said will; and that the said defendants, L. Leslie and W. Bernard, and all other proper parties, may be decreed to join in such sale, and in the conveyance thereof, and that all necessary declarations may be made and direc tions given for effectuating the purpose aforesaid;

and that in the meantime the said defendant, E. M. Wasteil, might be restrained by the injunction of this honourable Court from receiving the said sum of 2001. a year, and the rents and profits of her undivided third part of the said testator's estates, and that some proper person may be appointed to receive the said sum of 2001. a-year, and to receive, collect, and get in the rents, issues, and profits of the one undivided third part or share of her the said defendant, E. M. Wastell, in the said hereditaments and premises." On the 8th day of July, 1846, a decree was made in this suit, by which it was declared, that the plaintiff was entitled, by virtue of his judgment, to charge the interest of the defendant, E. M. Wastell, in the one undivided third part or share of the freehold and leasehold hereditaments and premises bequeathed under the will of Sir J. Miles; and the Master was directed to take an account of what was due to the plaintiff for principal and interest; and the defendant, E. M. Wastell, was directed to pay what should be reported due within six months after the report, at such time and place as the said Master should appoint; and in default, it was ordered that she should be absolutely debarred and foreclosed of and from all right, title, and interest in the said undivided third part or share of the said freehold hereditaments and premises.

The Master made his report on the 18th of September, 1846, and appointed the defendant, E. M. Wastell, to pay the plaintiff on the 18th of March, 1847, at the Roll's Chapel, the sum of 5741. 12s. for principal, interest, and costs, which the defendant failed to do; whereupon an order was obtained on the 23rd of March, 1847, whereby the said defendant, E. M. Wastell, was absolutely debarred and foreclosed of and from all right, title, and interest in the said undivided third part or share of the said freehold and leasehold hereditaments. The plaintiff had this decree of foreclosure duly enrolled.

Wood and Goodeve, for the defendant, now moved to have the order for foreclosure set aside, and the time for payment of the amount found due by the Master enlarged to six months; the argument in support of the motion is fully stated in the judgment: they cited the following cases-Coker v. Beavit, 1 Rep. in Ch. 134; Jones v. Creswick, 9 Simons, 304; Ismond v. Claypole, 1 Rep. in Ch. 139; Anon. Barnardiston, 221; Burgh v. Langton, 15 Vin. Z. 476; Edwards v. Cunliffe, 1 Madd. 287; Ampley v. Words worth, 9 Sim. 317, n.

Romilly and Randall, for the plaintiff, contended that the Court had no jurisdiction, except by bill of review. To grant such an application would be to discharge the final decree for foreclosure absolute after enrollment, which this Court could not do, as it would be discharging an order made by the Lord Chancellor for every decree is signed by the Lord Chancellor previous to being enrolled, whereby it becomes his order; that there are no merits shewn by the affidavits to support a bill of review. It is not shewn that the defendant ever tried to raise the money. The report was made in September, 1846, confirmed the November following, and during the time from the report to the time fixed for payment, she never made any application to the Court to enlarge; they therefore submitted that the time which had expired since the report was too long to induce the Court to interfere; and cited Coker v. Beavit, 1 Rep. in Ch. 134; Nanny v. Edwards, 4 Russ. 124; Eyre v. Hanson, 2 Beav. 478; Crompton v. Effingham, 9 Sim. 311, n.

The VICE-CHANCELLOR (after stating the facts). -The present motion is made to enlarge the time for payment. The merits relied upon by the defendant are these that she has no property whatever, except that which was the subject of the original suit; that she was at this time totally destitute of the means of living, by reason of the non-termination of the suit, and dependent on the bounty of a friend for the necessaries of life; that she had had every personal motive for accelerating the ultimate decision in the suit, but had been unable to do so; that the plaintiff's debt consisted of costs incurred in the prosecution of the suit; that those costs would be payable out of the fund in the cause, and that the amount of her share in the residue of the testator's estate was five or six times as great as the amount of the plaintiff's debt; that she fully expected that the suit Would have been terminated before the time appointed by the Master for the payment of the money; and that the suit had been in some degree delayed by the plaintiff insisting upon being made a party, in consequence of the change sought to be effected by him in this suit; that the accounts had been taken, the Master's report made, and one exception taken to the report, and the cause set down upon exceptions and for further directions. The plaintiff, in his affidavit in answer to the defendant, said that the debt consisted of costs in the suit of Wastell v. Leslie, costs in his action against E. M. Wastell, and other costs; and he controverted the affidavit of the defendant as to the value of the property; but, attending to the Opportunities Mr. Ford had of knowing the value and also the nature of the suit, I am satisfied that he might safely conclude that the value is at least three or four times the debt, and that the plaintiff cannot impugn

the proposition relied upon by the defendant, that she was justified in expecting the termination of the suit before the time was fixed for the payment of the debt. The question is, whether that is sufficient to sustain the present motion. In Nanny v. Edwards, cited in the argument, the Lord Chancellor said that the Court, in order to induce it to enlarge the time for redemption, must have some reason assigned (though it does require a very strong one) why the mortgagor did not pay the interest, principal, and costs at the time appointed by the report, and decided there was no excuse for the defendant's default stated. In Eyre v. Hanson, also mentioned in argument, the Master of the Rolls is reported to have made a similar dictum. In that case the facts are rather an authority for than against the present application, so far as it shews the grounds upon which the Court will enlarge the time rather than allow a mortgagee by foreclosure to get an estate greatly exceeding the value of the debt; and the cases cited in Jones v. Creswicke shew that the Court does not require a stronger case than that disclosed here, to induce it to enlarge the time; and if my judgment were to be governed by the merits only, I should not have hesitated in granting the order asked under this motion. But an objection has been taken in point of form, the answer to which depends on the question whether, excluding the effect of enrolment, the order making the foreclosure absolute is a conclusive answer to an application to enlarge the time, or whether the difficulty of that order may not be got over. The case of Jones v. Creswicke, and the cases there cited, are an answer to that question. It is clear the Court may and will enlarge the time for the payment of the mortgage-money after the order for making the foreclosure absolute by directing the order to be discharged conditionally that the money is paid at the expiration of the enlarged time; and on failure in doing so, that the order should stand. The next point insisted on by the plaintiff was, that the enrolment of the order making the foreclosure absolute was a bar to the application being granted. It struck me, at the time of the argument, that the objection could not be sustained to the extent contended for. If it were necessary to rehear the order of foreclosure, the objection might prevail; for I cannot rehear an order that is enrolled, and the Lord Chancellor would be as clearly without jurisdiction as myself in that respect, and the House of Lords could only rehear it for the purpose of deciding whether the order was proper at the time it was made, -a matter not in dispute, for that House could not entertain an original application to enlarge the time. But the object of the present application is not to dispute the propriety of that order at the time it was made, or to have it reheard for that purpose; the ground of the application, admitting the order of foreclosure to have been originally right, was, that upon matter subsequent to the order, the Court ought to enlarge the time for payment of the money. The Court did so in the case of Coker v. Beawit, cited in the argument; and if I am right in saying that, for the purpose of granting such indulgence in a proper case, the order for foreclosure, if not enrolled, might have been discharged, the only question on that part of the case is, whether I might not, for the same purpose, order the enrolment to be vacated. I am of opinion that the case upon the merits being proper for enlarging the time, the enrolment is no impediment to an order being made for that purpose by a Court of competent jurisdiction. Two of the cases cited in the argument from the note to Jones v. Creswicke support this; so also do the cases of Coker v. Bearit, and Iswood v. Claypole, also cited in the argument. The only question, therefore, now remaining is, whether I have power, as Vice-Chancellor, to order the enrolment to be vacated. I thought at one time I might have got over the difficulty by making the order on matter subsequent to and notwithstanding the order of March 1847, as on a bill of review I might supersede the original decree though signed and enrolled; but on the best consideration I could give the case, I think the proper order to be made, if any is made, must be an order vacating the enrolment, discharging the order for foreclosure on condition that the money is paid on the day appointed; and then if not paid, that the order with the enrolment should stand. But as I find that all applications to vacate enrolments have been made to the Lord Chancellor, I must, though very reluctantly, on that ground refuse to make the order in the present case. I find that, even in cases where the Court has made the order to vacate the enrolment on the ground of surprise or mala fides, the order has invariably been made by the Lord Chancellor. For these reasons I refuse to make the order asked in the present case.

Common Law Courts.

COURT OF QUEEN'S BENCH,

Wednesday, July 7. Re THE ROTHERHAM, SHEFFIELD, AND CHESTERFIELD FIRE AND LIFE INSURANCE COM

PANY.

Corporation-Change of name after complete registration, 7 & 8 Vict. c. 110, 1 Vict. c. 73. An incorporated company after complete registration without "defect or omission," under 7 & 8 Vict. c. 110, is not at liberty to change its name of incorporation, and a rule for a mandamus to compel the registrar of joint-stock companies to register such change of name was accordingly discharged. A rule nisi had been obtained for a mandamus, commanding the registrar of joint-stock companies to register a supplementary deed for changing the present name of the above company to that of the North of England Fire and Life Insurance Company. By the affidavits it appeared that the company was incorporated, and had been completely registered under the provisions of the 7 & 8 Vict. c. 110; that the original deed of the company contained a power to change the name with the consent of two-thirds of the shareholders, and that such consent had been duly obtained.

Thursday, June 10.-Sir J. Jervis, A. G. and Waddington, shewed cause.-At common law it is not in the power of a corporation to change its name, and that power has not been given by statute. The 7 & 8 Vict. c. 110, s. 25, expressly incorporates by the registered name of the company, and authorizes a change of seal, but no change of name. The 10th section certainly authorizes a change in some of the particulars required to be set forth in the schedule to the deed of settlement, and the name of the company is one of those particulars; but that section must be read together with the 7th section of 1 Vict. c. 73, a statute in pari materid, which prohibits the change of name. The 10th section of the later Act applies to the registration of any supplementary deed which may become necessary by some "defect or omission" in the original deed, and an entire change of name is neither. If this power exists and is exercised, the greatest mischief and confusion will follow.

Sir F. Thesiger, Q. C. and F. Robinson, contrà.The question is, whether the power exists; the abuse of it would be sufficiently prevented by the interest of the company. Corporations might always obtain a new name by a fresh charter, and a mere change of name would not dissolve the corporation. (Com. Dig. tit. "Franchise," 3, 4.) By the stat. 7 & 8 Vict. c. 110, ample remedies are provided against the shareholders, which would not be affected by any change in the name of incorporation. [ERLE, J.The idea of a corporation is perpetuity; and the only In Carlisle v. perpetual thing about it is the name.] Blamire, 8 East, 487, a corporation, declaring in covenant by their modern name, stated that the citizens, &c. were from time immemorial incorporated by divers names of incorporation; and at the time of making the indenture by A. B. declared on, were known by a certain other name, by which name A. B. granted to them a certain watercourse; and it was held that that deed was evidence against the defendants, who claimed under the grantor; that the corporation was then known by that name; and it cannot now be doubted that a corporation may be bound by a contract entered into in a wrong name. of The College of Physicians v. Munter, Sir W. Jones, 262, shews that a corporation may be incorporated by one name, and sue and be sued in another. But here there is no absolute incorporation by the present name, because the deed of settlement provides for the change of it. The name is therefore only adopted provisionally and temporarily; and the statute 7 & 8 Vict. c. 110, clearly contemplates the possibility of changing it. It is admitted that sec. 10 allows the change of certain particulars required to be stated; and as the name of the company is one of those particulars, the change of name would have been expressly prohibited if such had been the intention of the Legislature. The reference to stat. 1 Vict. c. 73, s. 7, confirms that view, because, with respect to trading partnerships, that change is thereby expressly prohibited. Sec. 14 likewise favours the same construction, and sec. 25 is to be construed together with those sections.

The case

Cur. adv. vult.

JUDGMENT. Lord DENMAN, C. J.-In this case a mandamus had been moved for to the registrar of joint-stock companies, to register a supplementary deed for changing the name of this insurance company, registered under the 7 & 8 Vict. c. 110, which had proIn support vided for a change in the original deed. of the rule it was contended that there was no express prohibition in this Act, and that the Legislature intentionally omitted the prohibition contained in the 1 Vict. c. 73, s. 7, that but for that prohibition partnerships were at liberty to change their style, and that joint-stock companies were in the nature of trading partnerships; and that section 10 relates to a change of name, as it requires, within six months after any change in any of the particulars required to be set forth in the schedule to the deed of settlement (the name being one of such particulars), a return of the particulars so changed. But it appears to us, that after a company has been completely registered, without defect or omission, so as to be incorporated by the name set forth in the deed of settlement, such incorporated company has not the power to change its name.