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On the 25th July 1864 a decree by consent was made, whereby it was directed that inquiries should be made of what hereditaments the Lambeth estate was comprised, and who were the parties entitled thereto, and in what shares: And it was ordered that, if all parties interested were before the court, a commission should issue for a partition, with the usual consequential directions; and the decree proceeded as follows: "Any of the parties are to be at liberty, before the commission shall be issued, to carry in proposals for a sale or a partition of the said hereditaments." The further consideration of the cause was adjourned, with liberty to apply.

The plaintiff, Thomas Pryor, and the other parties to the suit were entitled to the property in equal undivided sevenths. Thomas Pryor died, and the defendant, Arthur Pryor, succeeded to his interest. Subsequently Messrs. Maudslay, Sons, and Field, a large firm of engineers, who were lessees of the property, acquired by purchase the fee of three undivided sevenths. Various proceedings took place in the suit, but a commission was not issued.

On the 1st May 1874, a proposal was carried into chambers by Messrs. Maudslay for a partition of the Lambeth estate, and on the same day a summons was taken out by them to proceed thereon.

On the 21st May 1874, two of the defendants, Felix Pryor and the said Arthur Pryor, carried in a proposal for a sale of the estate by a public auction, and on the same day a summons was taken out by them to proceed on their proposal for a sale.

On the 19th Dec. 1874 Messrs. Maudslay took out a summons that they, "not consenting to any sale of the Lambeth estate under the decree of the 25th July 1864, and this court having no jurisdiction in the absence of such consent to order any such sale under the said decree, all proceedings on the proposal of the said defendants, Felix Pryor and Arthur Pryor, carried into chambers on the 21st May 1874, for sale of the said estate, and on the summons to proceed thereunder of the same date, may be stayed, and that the costs of this application may be paid by the said defendants, Felix Pryor and Arthur Pryor.

The summonses of the 21st May and 19th Dec. and the summonses to proceed thereunder, were now, by consent, adjourned into court.

Kay, Q.C. and Whitehorne for Messrs. Maudslay. The point is whether the defendants can force a sale under this decree. Before the Partition Act the court had no power to force a compulsory sale, without the consent of all the cotenants. The decree in this instance does not order a compulsory sale, but gives liberty to do so if all parties agree. We submit that the Partition Act does not apply. It only applies to cases in which (sect. 3) "a decree for partition might have been made." But here a decree for partition was made before the Act came into operation. In Lys v. Lys (L. Rep. 7, Eq. 126), which may be relied on by the other side, no decree had been made; and therefore it was eminently a suit in which "a decree for partition might have been made." A sale will be very disastrous to the parties we represent, and we therefore oppose à sale and ask for a partition.

Jackson, Q.C. and James, for some incumbrancers, supported the contention of Mr. Kay.

Eddis, Q.C. and Macnaughten for Messrs. Pryor.

66

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-This is simply a question of jurisdiction, namely, whether sect. 4 of the Partition Act does or does not apply. It has been decided that the Act is a remedial and not a penal statute, and is intended for the purpose of giving facilities, not previously possessed by the court, of dealing with properties, and Lys v. Lys (sup.) has decided that the Act, and especially sect. 4, is retrospective, and refers to suits in which, though launched before the passing of the Act, a decree for partition might have been made." The decree here is in the alternative, and the liberty to propose a sale is a distinctive part of the decree. Therefore, in proposing a sale, we are equally seeking to carry out the decree as they are in proposing a partition. No commission has yet issuca, and if a sale cannot be enforced except all parties agree, then its insertion in the decree was a mere waste of words. We represent four-sevenths of the estate, and we submit that the court has jurisdiction under sect. 4 to consider our proposal, and the onus lies on those who object to a sale to show cause against it. If a commission issues, a complete operative decree can only be made on further consideration. The liberty to carry in proposals in effect intercepted the partition decree, and therefore no final decree has as yet been made, and the Act applies.

The VICE-CHANCELLOR.-I do not think I can regard it in any such way. I cannot read the decree or elicit from it any meaning except that which it properly bears. The decree is right enough. It inquires into the nature of the property, and into all the interests which may exist in that property. Then it gives to any of the parties liberty to make a proposal for a sale; that is to say, if it is ascertained properly who are interested, and one proposes and the others do not dissent, then a sale may take place, and the property will be dealt with according to their own consent. That is the way in which I read this decree. I read nothing improper, nor do I see any excess of power in making that decree, although it was made before the Partition Act was passed. I cannot alter it; I cannot change it. I have said this, that my view of it may be understood at least, I do not say concurred in. Then, with respect to these two summonses; as both sides now desire the view of the court whether a sale or a partition should be proceeded with under this decree, I do not hesitate to give my opinion that, as the case stood when this decree was made, there was no power to decree a sale. There was a power asked for, no doubt, at the instance of one of the parties, that if upon further consideration they should all agree that a sale was the most beneficial way of disposing of their interests, the court would not withhold its assent to that; and that is all the decree names. It gives no power, and the court possesses no_power, to direct a sale against anybody's will. That is all the decree means as I read it. I think, therefore, that the Act having been passed since this decree, I need only make this observation upon it, that the words "Any suit in which a partition might have been made," upon which Mr. Eddis commented, mean only any partition suit. The expression might have been made more concise, but I think that is the meaning of it beyond all question. The court has discretion given by the earlier section of the Act in any partition suit. This was a suit which was over a

POWELL v. POWELL (2); Ex parte Bevan.

V.C. B.J done with before the Partition Act was passed. In my opinion, therefore, against the will of any of the parties interested, there can be no sale or anything but a partition. In point of form I cannot prohibit the plaintiffs unless they are content to take what I now say, from carrying in proposals for a sale, any more than I can prohibit the defendants from saying the court has no jurisdiction to make a sale. The decree which is pronounced does not countenance any such jurisdiction or give any such power. The partition must, and can be the only result, of this decree. I hold, therefore, that under this decree a partition, and not a sale, must go on.

The order was drawn up as follows: "This Court being of opinion that under the decree a sale cannot be directed without the consent of all parties interested, and that the decree must be carried into effect by partition and not sale, dismiss the summons of the 21st of May. Costs to be costs in the cause."

Solicitors for the plaintiffs, W. and J. Gibson. Solicitors for the defendants, Pryor, Watney, and Clark.

Thursday, Feb. 18.

POWELL V. POWELL (2); Ex parte BEVAN. Partition suit-Irregular sale-Purchaser's right to rescind-Interest on deposit-Costs of investigating title.

On a sale by the court, in a petition suit, one of the conditions of sale provided that if any purchaser should make any objection or requisition which the vendors should be unable or unwilling for reasonable cause to remove or comply with, the vendors should be at liberty, with the leave of the judge, and notwithstanding any intermediate negotiation, or attempt to comply with or remove such objection or requisition, to cancel the contract, which should thereupon be delivered up, and the deposit returned without interest and without costs on either side.

The

The sale was held to be irregular (see Powell v. Powell, 31 L. T. Rep. N. S.), and a purchaser thereupon took out a summons to be discharged from his purchase with a return of his deposit, and 41. per cent. interest and his costs. vendors submitted to the purchaser being discharged, but contended that under the above condition he was only entitled to a return of his deposit without interest and costs.

Held, that the condition did not apply, and that the purchaser was entitled to be paid the consols, in which his deposit had been invested, and the dividends which had accrued thereon, and his costs.

ADJOURNED Summons.

This was an application by Thomas Bevan to be discharged from his purchase, and that his deposit might be returned to him with interest together with his costs of investigating the title.

On the 13th Nov. 1873, the above suit was instituted with the object of obtaining, under the provisions of the Partition Act 1868, the partition of the residuary real estate of the Rev. Harry Powell, formerly of Heron Gate, in the county of Essex, deceased, among the parties entitled thereto, and to have such partition carried into effect by a sale of the said residuary estate under the direction of the court with all proper directions.

On the 23rd Nov. a decree was made directing

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inquiries as to the particulars of the testator's residuary real estate, and as to the parties interested therein, "and an inquiry whether, by reason of the number of parties interested, or presumptively entitled in the said residuary real estate, a sale of the real estate and a distribution of the proceeds would be more beneficial for the parties interested than a division of the said residuary real estate between or among them. And if it should appear that such sale would be more beneficial as aforesaid, and that all parties interested or entitled to the said residuary real estate are parties to this suit or bound by this decretal order, it is ordered that the said residuary real estate be sold with the approbation of the judge, and that the money to arise by such sale be paid into court to the credit of the cause." On the 5th June 1874, the testator's real estate was put up for sale by public auction subject to certain printed particulars and conditions of sale. The particulars stated that the sale was made "pursuant to a decree of the High Court of Chancery in the above cause with the approbation of the Vice-Chancellor Sir James Bacon." The eighteenth condition of sale provided, "if any purchaser shall make any objection or requisition which the vendors shall be unable or unwilling for reasonable cause to remove or comply with, the vendors shall be at liberty, with the leave of the said judge, and notwithstanding any intermediate negotiation, or attempt to remove or comply with such objection or requisition, to cancel the contract, which shall thereupon be delivered up, and the deposit returned without interest and without costs on either side, and all documents delivered by either party to the other party shall be returned."

Thomas Bevan attended the sale, and became the purchaser of Lots 5, 6, 8, and 11, and paid a deposit of 9077., which was paid into court and invested in consols. On the abstract of title being sent in to his solicitors, an objection was taken that the sale was irregular in two respects: First, that two parties had not been served by the decree, and were not bound by the order for sale; secondly, that the sale was made before it had been ascercertained by the Chief Clerk's certificate that all parties interested were either parties to or bound by the proceedings as directed by the decree.

The Chief Clerk did not make his certificate till 5th Aug. 1874.

The sale was held to be irregular by the ViceChancellor Bacon (see Powell v. Powell, 31 L. T. Rep. N. S. 467), and his decision was confirmed on appeal on the 14th Dec. 1874 (Powell v. Powell, 31 L. T. Rep. N. S. 737).

On the 16th Dec. Thomas Bevan took out a summons that he might be discharged from his purchase, and that the sum of 9071.—the deposit paid by him, together with interest thereon, at 41. per cent. per annum, from the 16th June 1874, until payment might be repaid to him, and that his costs, charges, and expenses occasioned by his bidding for and being allowed to become the purchaser of the property, and of and incidental to his application-might be taxed and paid to him by

the vendors.

On the hearing before the Judge in Chambers he held the eighteenth condition was binding on the purchaser, but the summons was, at the purchaser's request, adjourned into court.

Kay, Q.C. and Methold, for Bevan.—We insist

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that the eighteenth condition of sale does not apply. It is not the case of a vendor applying for rescission of the contract, for no leave of the judge has been obtained; but, assuming that the vendor was applying under that condition, the court will not under the circumstances grant him leave to rescind except upon fair and reasonable terms, which here would be to discharge the purchaser, returning him his deposit with interest, and his costs of investigating the title. It was a breach of the vendor's duty in selling before the Chief Clerk had made his certificate, and there was misrepresentation in the particular which stated the sale was made pursuant to a decree of the court when in truth it was not so. The sale has been held irregular (Powell v. Powell, supra), and the vendor is responsible for his own irregularity. We admit that the vendor has offered to return us our deposit without interest and costs, but this is not a proceeding by the vendor under the eighteenth condition. It is an application by a purchaser, who comes here insisting on his general right to be discharged on the usual terms. They cited

Dart's Vendors and Purchasers, 146;

Greaves v. Wilson, 25 Beav. 290;

Engel v. Fitch, L. Rep. 3 Q. B. 314; 18 L. T. Rep.
N. S. 318;

Godwin v. Francis, L. Rep. 5 C. P. 295; 21 L. T. Rep.
N.S., 361;

Gardom v. Lee, 3 Hur. & C., 651;

Morley v. Cook, 2 Ha. 111;

Webb v. Kirby, 7 De G. M. & G. 376;
Berry v. Gibbons, L. Rep. 15 Eq. 150.

Jackson, Q. C. and Horton Smith, for the vendor. This is a case where a perfectly good title can be made, but there has been an error in the practice of the court, and the purchaser takes advantage of a technical objection to get out of his purchase. We submit that he is not entitled to treat the defendant as a wrongdoer and to ask for costs against him. He is only entitled to the common order to discharge a purchaser (Seton p. 1208). As to interest: It can only be given here in the nature of a punishment. The money has been paid into court in the usual way to await the investigation of the title. There has therefore been no hardship on the purchaser, and he cannot bring his case within the principle of the authorities which he relies, and which applies to sales outside the court. The rule in sales by the Court of Chancery is that the purchaser in such circumstances as these is not liable to pay costs.

Dart Vendors and Purchasers, 1096;
Colvert v. Godfrey, 6 Beav. 97;

Perkins v. Ede, 16 Beav. 268.

on

This is in substance an application by the court of the eighteenth condition to a purchaser. We submit to an order to discharge him, but we say he is not entitled to interest or costs.

Kay, Q. C., in reply.

The VICE-CHANCELLOR.-I am glad this matter has been adjourned into court, because when it was referred to me in chambers I was under the impression that the eighteenth condition of sale did apply, and I should have committed an error in so holding. The eighteenth condition of sale has nothing whatever to do with this case. That condition provides for the case of any purchaser making “any objection or requisition which the vendor shall be unable or unwilling for reasonable cause to remove or comply with, then the vendor

[V.C. B.

shall be at liberty, with the leave of the said judge, and notwithstanding any intermediate negotiation, or attempt to remove or comply with such objection or requisition, to cancel the contract, which shall thereupon be delivered up, and the deposit returned without interest and without costs on either side." Now this case has nothing whatever to do in the slightest degree, either in its nature or facts, with such a state of things. The vendor does not say, I am unable to comply with or remove your objections to the title. He takes no steps to rescind the contract; the obtaining the prior leave of the court for that purpose does not weigh with me much. He makes no application under that condition to discharge the purchaser, without interest and costs, and the purchaser is not here resisting any such application. This brings the case to the ordinary and reasonable case of a purchaser coming and asking to be relieved from a contract entered into by him under a mistake, owing to the invalidity of the proceeding in chambers, and to be reinstated in exactly the same position in which he stood when he attended the sale, and to be indemnified against all the expense he had been put to. In my opinion he is entitled to this relief, and to have the contract rescinded. I do not make any order as to interest in that name, but, if the purchaser likes to accept the stock now representing the deposit (9071.), and the dividends which have accrued thereon, he can do so. If, however, he insists on the return of the money itself, he is entitled to it, and to all the dividends which have arisen from its investment.

The purchaser elected to take the stock and dividends.

Solicitor for the purchaser, T. Sismey, agent for A. Tolhurst, Gravesend.

Solicitors for the vendor, Upton and Co.

Friday, Feb. 26.

JONES v. NORTH.

Injunction-Breach of contract-Bill to restrain defendant from completing his contract entered into with third parties-Parties to suit.

The corporation of B. advertised for tenders for the supply of stone to the borough of B. during the year 1875. A., C., D., and E., quarry owners, entered into an arrangement by which it was agreed that A. should send in the lowest tender, so that, if possible, it should be accepted, that C. should not send in any tender at all, and that D. and E. should send in tenders higher than A.'s; it was also arranged that A. should purchase from C., D., and E. certain quantities of stone to be sup plied by him under his anticipated contract to the corporation, so that, by this means, A., C., D., and E. would each have some share in the profits to arise from A.'s contract with the corporation. Notwithstanding this arrangement C. sent in a tender which was accepted.

Held, on demurrer, that a bill for an injunction would lie against C. to restrain him from supplying any stone to the corporation under his contract with them, during the year 1875. Held, also, that the corporation were not necessary parties to the suit.

THIS was a bill for an injunction by an owner of a quarry to restrain the defendant from supplying stone during the year 1875, for macadamising

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purposes, to the Birmingham Corporation. The facts were as follows:

On the 17th Dec. 1874, the Corporation of Birmingham issued an advertisement to the public inviting tenders for the supply of stone for the purpose of macadamising the carriage ways of the borough during the year 1875. A special form of specification of works, with a form of tender accompanying, was issued stating that the total quantity of stone required would be about 40,000 tons; and, after certain special stipulations and provisions, providing that the contractor would be required to sign a contract to perform the work in accordance with the above specification and with two approved sureties to execute a joint and several bond in the penal sum of 3001. for the due and faithful performance of the contract. The corporation did not bind themselves to accept the lowest tender.

The plaintiff was the owner of a quarry situate at Rowley Regis, in the county of Stafford, and known as the Hailstone Quarry. The defendants, Messrs. North and Wright, who carried on business under the style or firm of the "Rowley Hall Colliery Company," were the owners of another quarry situate in the same district as that of the plaintiffs. Messrs. Fitzmaurice and Company, and Messrs. Palmer and Lee were respectively owners of other quarries situate in the neighbourhood of Birmingham. All the above quarries respectively furnished stone of a fit quality to answer the purposes of the said specification. It being a matter of consideration to the plaintiffs, the defendants, and the other two firms that, the prices of the material in which they dealt should not be forced down below a profitable limit, an arrangement was come to between the plaintiff, the defendants, and the other two firms (which arrangement was ultimately embodied in an agreement), that the plaintiff should purchase from the defendant 10,000 tons of stone, and that in consideration of his so doing the de fendant should not send in any tender to the Birmingham Corporation, nor supply the Birmingham Corporation with any stone during the year 1875, and that the plaintiff should also purchase from Fitzmaurice and Company, 10,000 tons, and from Palmer and Lee 6000 tons, and that the plaintiff and the two last-mentioned firms should each send in tenders to the Birmingham Corporation at different prices, and that the prices named in the plaintiff's tender should be the lowest. In accordance with these arrangements the plaintiff's entered into contracts with the defendant and Fitzmaurice and Company to take from each of them a quantity of 10,000 tons, and with Palmer and Lee to take from them 6000 tons, making 26,000 tons in all. In this way it was apprehended that the Birmingham Corporation would, in all probability, fix upon the lowest tender (although by the terms of the specification they did not bind themselves to do so), the plaintiff would himself supply 14,000 tons, and each of the said three firms would supply to the plaintiff, and through him to the corporation the 26,000 tons, making together the 40,000 tons required. The prices fixed between the plaintiff and the defendant and the other two firms for the supply of the quantities of stone to be furnished by each of the said firms were so arranged as to secure to each of the three firms contracting with the plaintiff a fair share of the profit arising from the supply to

[V.C. B.

the Birmingham Corporation under their said specification.

Upon the footing of this agreement the plaintiff, on the 30th Dec. 1874, sent in a tender to the Birmingham Corporation for 40,000 tons of stone. On the 27th Jan. 1875, the plaintiff received a letter informing him that the Birmingham Corporation had accepted the offer of the defendant for the supply of stone; and he shortly afterwards ascertained that the defendant, in breach of the agreement so entered into by them as aforesaid, sent in a tender for and had entered into a contract for the supply of rough and broken stone to the Birmingham Corporation during the years 1875 and 1876. Thereupon the plaintiff filed his bill for an injunction to restrain the defendant from supplying any rough or broken stone to the Birmingham Corporation either directly or indirectly during the year 1875, and from doing directly or indirectly any act, matter, or thing whereby the Birmingham Corporation may be supplied with stone in manner and for the purposes required and referred to in and by their specification, and for damages and other relief.

To this bill the defendants demurred.

Jackson, Q.C. and E. Ward, for the demurrer. -This bill is demurrable on the three grounds. The bill seeks to prevent the defendants from carrying out a contract which they have entered entered into with a third party, the breach of which contract may be most serious to that third party, without bringing that third party before the court, and without averring anything which would disentitle that third person to the benefit of the contract; secondly the bill seeks an injunction which, if granted, can in no way alter or improve the plaintiff's position, and the only result of which would be to occasion a pecuniary loss or liability to the defendants by reason of their being unable to perform the contract which they had engaged to do; thirdly, admitting, for the purposes of the demurrer, the truth of the arrangement between the plaintiff and the other quarry owners as averred in the bill, it is an arrangement of a character which the court will not assist. It is an arrangement which in effect would drive the corporation, under the fiction of a public competition, to accept tenders which do not represent the real market price. To grant an injunction restraining us from performing our contract with the corporation will be against public policy.

Kay, Q.C., and Rice, in support of the bill, were not called upon.

The VICE-CHANCELLOR.-I am of opinion that there is nothing whatever which justifies this demurrer. The case is a very plain one, and, on one side, at least, a very honest one. What designation it deserves on the other side is not necessary for me now to consider. The facts are very plain. Several gentlemen who are owners of quarries agree that they will sell to one of them a quantity of stone, in view of his tendering to the corporation of Birmingham, for what the corporation wants, and the present defendants sell by the bought and sold note, which is set out in the bill, a certain quantity of stone to the plaintiff; and upon it being pointed out to them that what is called the contract, which I take to mean the bought and sold note, does not specify that they shall not supply the Corporation of Birmingham, they enter into a written engagement, which

C. P.] ALLETSON AND OTHERS v. CHICHESTER AND OTHERS; WAKE AND OTHERS (Claimants). [C. P.

becomes part of the contract for the purchase and sale, that they will not supply the corporation of Birmingham during the year 1875. Now, are the defendants to escape from that contract? Is there any ground on which this court can withhold from the plaintiff the protection to which that contract entitles him? I am aware of none. The grounds which have been argued are, first of all, that the corporation should be parties. Why? The corporation, whatever be the form of the contract between them and the defendants, could not enforce specific performance of it. If the defendants so involved themselves as that they are unable to perform their contract with the Corpora tion of Birmingham, the Corporation require no assistance, and are entitled to no assistance from this court, because by an action at law they can at once inflict upon the defendants the penalty which they have most justly incurred, by entering into a contract with them totally in violation of the good faith which they owed to the plaintiff. Then, the suggestion that the plaintiff's position would not be bettered by granting the injunction is one to which I cannot listen for a moment. The plaintiff does not ask this court to better his position. All that he asks is that the defendants should not violate their plain contract to the plaintiff's prejudice. What ground of demurrer can there be in that? The last point, which was touched faintly by Mr. Jackson, but has been enlarged upon by his junior, is that the plaintiff must come into court with clean hands. Everybody will admit that cardinal rule, and, in my opinion, the plaintiff's hands are wholly unpolluted. It is perfectly lawful for three gentlemen, owners of three quarries, to agree that they will sell their commodities upon terms suitable to themselves, and which they approve of; and although they know that the purchaser is going to supply or to offer to supply the Corporation of Birmingham with the commodity, that does not in the least restrict their right to deal inter se, nor does it deserve to be characterised as a conspiracy against public policy, which it has been called. There is nothing illegal in the owners of commodities agreeing that they will sell as between themselves, at a certain price, leaving one of them to make any other profit that he can. In my opinion, therefore, upon no ground whatever can this demurrer be sustained, and it must be overruled. The costs will follow the result.

Solicitors for the plaintiff, Emmet and Son, agents for Sanders and Smith, Birmingham. Solicitors for defendants, Newman, Dale, and Stratton.

Common Law Courts.

COURT OF COMMON PLEAS. Reported by ETHERINGTON SMITH and J. M. LELY, Esqrs., Barristers-at-Law.

Thursday, Jan. 21.

ALLETSON AND OTHERS v. CHICHESTER AND OTHERS; WAKE AND OTHERS (Claimants). Life policy-Bankruptcy of assured-Sufficiency of notice of assignment of policy. The notice of the assignment of a policy of life insurance given to the insurance office so as to take the policy out of the order and disposition of the

assured in the event of his subsequent bankruptcy need not, previous to the statute 30 & 31 Vict, c. 144, be in writing, and need not be formal in the sense of being given in the course of a transaction upon the insurance itself; there must, however, be such an amount of formality that the officer of the company should have his attention called to it as a matter of business.

It is enough that the knowledge is communicated to a proper person, such as a director or the secretary of the insurance company, and that he receives it in his official capacity; and it makes no difference if in fact such person did not communicate the knowledge to the company.

THIS was an action by the plaintiffs, as assignees of a policy of life insurance, against the defendants, as directors of the Legal and General Life Assurance Society, upon a policy dated the 22nd Aug. 1845, and effected upon the life of one Samuel Russell. The trustees under the bankruptcy of Samuel Russell also claimed the benefit of the policy, and upon interpleader proceedings being taken by the defendants. they paid into court 13321. under the order of Hannen, J., to abide the decision of the court upon the following case.

1. By a policy of insurance dated the 23rd Aug. 1845, effected with the Legal and General Life Assurance Society under the hands of three of the directors of the said society, a sum of 1000l. was assured to be paid to the executors, administrators, or assigns of Samuel Russell, of Blyth in the county of Nottingham, within three calendar months after proof of the death of the said Samuel Russell, together with such further sum or sums as should be added to the sum assured as a bonus under the provisions of the deed of settlement of the society, unless an equivalent for such further sum or sums, should have been paid or allowed to the party or parties entitled thereto. The annual premium payable to the said society during the continuance of the insurance was 261. The circumstances under which the said policy was effected were as follows: 2. In the year 1845, the said Samuel Russell and Sarah his wife, applied to Mr. John Whall, an attorney and solicitor, carrying on business at Worksop, to raise for him a loan of 5001. Sarah Russell was at that time entitled for life to the rents of certain freehold and leasehold hereditaments and premises situate at Sheffield in the county of York, and Samuel Russell was entitled to an estate for life in remainder in the same hereditaments expectant on the decease of his said wife.

3. Mr. Whall was at that time the attorney and solicitor of Edward Girdler, of Netherthorpe in the parish of Thorpe Salvin in the county of York, farmer, and Mr. Whall applied to him for the loan so required by Samuel and Sarah Russell, and the said Edward Girdler agreed to lend the amount upon condition that the repayment with interest at 51. per cent. per annum, should be secured to him by a conveyance and assignment by Samuel and Sarah Russell of their respective interests in the said hereditaments and premises at Sheffield, and by the assignment of a policy of assurance to be effected upon the life of Samuel Russell in the sum of 1000l. at the least.

4. Samuel Russell, thereupon, applied to the Legal and General Assurance Society to insure his life, and on the 22nd Aug. 1845 he brought to Mr. Whall a letter of approval by the said society of a proposal made by him to the said society for an

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