may not last five minutes;' but how does it differ in that respect, so far as the real question is concerned, from property which may be burned or otherwise destroyed within as short a period, though the legal title to it may be for a term certain ? Both interests are alike uncertain, and unless the special facts in Anson v. Towgood, before adverted to, and also the circumstance-which may have been a persuasive one of the purchaser being, as it would seem from his name, one of the family of the person whose life interest was sold, can distinguish that case, it is plain that Anson v. Towgood and Ex parte Minor cannot stand together. Ex parte Minor was decided in the year 1805; Lord Eldon held it over for consideration, and it is impossible to resist the force and clearness of his reasoning in it. Twigg v. Fifield was in 1807, and it is remarkable with what accuracy in that case he stated and carried out the principle of his former decision. Anson v. Towgood was in 1820, and although he again adverts to the decision in Ex parte Minor, which does not appear to have been cited on the motion, it seems as if his recollection of it was very imperfect: for he must otherwise have seen that the reasoning upon which the decision in that case was grounded should have been a complete answer to his question, "If the tenant for life had died the same night, must not the purchase-money have been paid?" According to his reasoning in Ex parte Minor, it certainly should not. 44 As to mutuality of contract, it may be observed that there is not mutuality in the inception of any contract: there must first be a proposal, and until that proposal is accepted there is not mutuality. But whether the contract upon a judicial sale in EngLand differs from a private contract, or a bidder in the office before a Master from a bidder in a common auction room, in any other respect than that there is in the one case, necessarily, a little longer interval between the proposal and the acceptance of it than need be in the other, perhaps deserves consideration. Even as to the Irish practice, see Fergus v. Gore, 1 Sch. & Lef. 850; and Alven v. Bond, ante p. 367; and see the fourth rule stated in Kirwan v. Blake, 1 Hog. 160. 1841. Rolls. VINCENT V. GOING. 1841. Equity Exch. May 1. order will not LANGLEY v. AYLMER. SPILLER v. MELLIFONT. (Equity Exchequer.) A distraining In the first of these causes, Mr. Ferguson moved, on behalf of the be granted, un- receiver, for liberty to distrain certain tenants in the affidavit mentioned. The affidavit of the receiver stated that more than a year's rent was due from each of the tenants; and that he, "on the 2nd of April last, "demanded the rent so due from the tenants (naming them) in the town "of Rathkeale;" but did not state in terms that he personally demanded the rent from them. less it appear by affidavit that the receiver personally demanded the rent to be distrained for, from the tenants: but it is not necessary that the affidavit should state in terms, that he personally demanded the rent, if it state facts from whence it appears to the Court that the demand was personally made. RICHARDS, B.,* Held that the affidavit was sufficient, and granted the application. In the second of these causes, Mr. J. S. Townsend made a similar application, upon an affidavit which stated that he (the receiver) demanded the rent from the tenants; not stating that he had personally demanded it, or where he had demanded it. RICHARDS, B.,* Held that the affidavit was insufficient, as the demand might have been by an agent, or by letter; and refused to make any order upon motion. the Solus. CARR, Petitioner; AUSTIN, Respondent. MR. SPROULE, for the petitioner, moved, without notice, to renew an order made in this matter, and bearing date the 4th of December 1839. It was an absolute order for the appointment of a receiver upon a judgment under the 5 & 6 W. 4, c. 55. It was alleged that the respondent had been out of the jurisdiction of the Court; and that it had been found impossible to proceed in the office upon the order, until Hilary Term 1841. At that time the order was more than a year old, and the Remembrancer declined to act under it. been revived within the year previous to the application. The COURT* inquired when the judgment had been revived; and upon being informed that it had not been revived since the conditional order for the appointment of the receiver had been granted, said it had been ruled that the judgment must be revived within the year previous to the application; otherwise the order for the appointment of the receiver would not be renewed. 1841. Equity Exch. CARR V. AUSTIN. Richards, B., solus. No rule. v. HENRY. THE bill in this cause was filed by the grantee of an annuity charged It was now sought by the plaintiff in the first cause, that the costs of the plaintiff in the second cause should be borne by the estate. Sed per PENNEFATHER, B. It is the constant course of the Court that the costs of encumbrancers upon a fund charged upon an estate should not come out of the estate, but out of the fund. They are occasioned by the act of the owner of the fund, and not of the owner of the estate. It was decreed that the estate should only be charged with the costs of the suit to raise the arrears of the annuity: and that the costs of the second suit should be borne by the annuity, and not by the estate. May 10. The costs of encumbrancers upon a fund charged upon an estate, are to be borne tate, but by the fund. not by the es THE bill in this cause was filed by the plaintiff, who was one of the cestui amount of the charge, and for payment of it to the plaintiff and the que had refused to act in the trusts. The trustees Upon the cause coming on to be heard upon report and merits, it appeared that the plaintiff and the other cestui que trusts were entitled to the fund in equal shares; each to one-seventh part thereof and a decree was made for payment of it accordingly, with costs. : Mr. Warren, Q. C., for the plaintiff, then applied to the Court for a declaration in the decree, that the defendants, the other cestui que trusts, should contribute to the difference between the plaintiff's costs as between attorney and client and party and party, in proportion to their shares. The suit was necessary, and for the benefit of all the cestui que trusts. PENNEFATHER, B. If this bill had been filed by the trustee, he would have been decreed his extra costs out of the fund; and therefore the plaintiff, being placed in the situation of the trustee by reason of the latter having renounced the trusts, and having realised the fund for the benefit of all the cestui que trusts, ought to get the same costs as the trustee would have received. Therefore, we will add to the decree a direction, that in taxing the plaintiff's costs, the Officer do tax such costs as have been properly and necessarily incurred by him, and in the same manner as if he were taxing the costs of a trustee or personal representative; and that the cestui que trusts do contribute to the difference between such costs and the costs between party and party in proportion to their shares in the fund. May 11. SCULLY v. SCULLY. The devisee of THE bill was filed to foreclose a mortgage in fee. After the execution of the equity of redemption in the mortgage, the mortgagor devised the equity of redemption to two trust for other trustees, upon trust to sell and to divide the produce amongst his three persons, is a necessary par- sisters, one of whom was a married woman; but there was no trust for her separate use. The trustees for sale were made parties to the suit. ty to a fore closure suit. Upon the cause coming on to be heard upon report and merits, Mr. Collins, Q. C., for the inheritor, objected that the trustees were not necessary parties, and were not entitled to costs against him. He cited Head v. Teynham (a). PENNEFATHER, B. An equity of redemption is considered as an estate in a Court of Equity; and, therefore, the devisee of it must be brought before the Court, although he holds it in trust for another. I do not see how title to the estates could be made out if the devisees were not made parties to the suit. (a) 1 Cox, 57. 1841. Equity Exch. SCULLY SCULLY. HUGHES v. NASH. By the marriage settlement of the plaintiff's father, a term of 500 years Mr. Collins, Q. C., and Mr. B. Lloyd, for the plaintiff, applied that he should be paid his costs in the first instance out of the funds; and cited Head v. Massey (a). PENNEFATHER, B. sey, law. 2 Moll. It must be a very special case which will entitle a puisne creditor to 467, is not be paid his costs in preference to a prior creditor; a multo fortiori, it must be a very special case which will entitle a debtor to be paid his costs in priority to the demands of his creditor. The creditors, if they please, may call on the debtor to file a bill for their benefit, and agree that he (a) 2 Moll. 467. |