been inserted herein, instead of the name or names of the trustee or trustees to whom he or they shall be so appointed to succeed as aforesaid; and it is hereby expressly declared that every such new trustee or trustees shall and may in all things and in all respects act and assist in the management, carrying on and execution of the trusts and powers to which he or they shall be so appointed, as fully and effectually to all intents and purposes as if he or they had been originally in and by these presents nominated a trustee or trustees for the purposes for which such new trustee or trustees respectively shall be appointed trustee or trustees, and as the trustee or trustees in or to whose place such new trustee or trustees shall respectively come or suceeed are or is hereby enabled to do, or might or could have done under or by virtue of these presents, if then living or continuing to act in the trusts hereby reposed in them.”

We may observe that it is deemed the most correct practice upon the appointment of new trustees to complete the original number of trustees, so that if two of a class of three trustees be dead, two new trustees should be appointed.

IV. Constitution of a Company for erecting a Building, or other such purpose.

When several persons associate themselves together for the purpose of effecting some common object which requires a considerable outlay, and it is agreed that the cost shall be defrayed by the parties in certain proportions,—as according to the number of shares, of a given amount, each shall take,— there is considerable difficulty in so framing the deed of settlement of the company, as to give an easy and convenient remedy for the recovery of the sums agreed to be contributed by the respective shareholders.

There is no doubt such an agreement as we contemplate would constitute a partnership between the parties thereto, in proportion to the amount of their subscriptions; consequently, in order to have a remedy against subscribers making default, there are two difficulties to contend with. First, That one partner cannot sue another; and, secondly, That all the subscribers would have a joint interest in the respective monies to be paid, so that though each should covenant separately, all would have to join in an action against him, in case he made default in payment of his subscription.

Constitution of Company for erecting a Building. 351

In order to avoid these difficulties, the plan we propose is this, that two or more persons, whether subscribers themselves or not, should covenant with the intended company to carry into effect the intended object, upon the subscriptions agreed upon being paid to them, and then each of the shareholders should covenant with such two or more persons to pay his subscription to them. This plan is deduced from the case, Brown v. Tapscott, in the Exchequer.1 There the following agreement was entered into: "Being desirous that the communication between London, Herne Bay, and Margate, should be kept open during the ensuing winter by means of a small steam-boat, we hereby authorize Mr. G. A. B. to charter the Brocklebank, or any other suitable vessel, for that purpose, on the best possible terms; and to make the necessary arrangements for her running on the station during the whole or such part of the winter as may be deemed expedient, on our joint account, each of us taking a proportionate interest in this enterprise, according to the amount subscribed; and the profit or loss to be divided amongst us in proportion to our subscription. In order to form a fund for defraying the necessary expenses, we have each of us paid 107. per cent. on the amount of our subscriptions, and we hereby bind ourselves and agree to pay to Mr. G. A. B. such further instalments, each of us in proportion to his subscription, as it may be necessary to call for from time to time, should the earnings of the boat not be sufficient to pay the expenses. It being, however, understood that our liability is not to extend beyond the amount subscribed by us respectively."

Upon an action being brought by G. A. B., who had subscribed the agreement, and had paid such debts arising from the undertaking as the earnings of the boat were insufficient to satisfy, it was held he could not maintain an action for money paid against another subscriber who had not paid up his subscription, but that the proper form of action was a special assumpsit for non-performance of the undertaking to pay the plaintiff the instalments from time to time. Parke, B., delivered the judgment of the Court:

"This was an action for money paid, with a count on an account stated. It appeared on the trial that the plaintiff, together

16 Mee. & Wels. 119.

with the defendant and others, entered into a special agreement to this effect. [The learned judge here read the agreement.] The effect of this agreement was to constitute a partnership between those who subscribed, in proportion to their subscription. The plaintiff took an active part in the management of the concern, and the earnings of the boat not proving sufficient, he paid the amount of the debts due to the different creditors, and if nothing else had been done, the plaintiff could not have recovered as for money paid to the partnership use; as one partner cannot sue another in that form of action for contribution to joint partnership liability. But on this agreement the plaintiff might have sued the defendant in a special assumpsit for not performing his undertaking to pay the plaintiff the instalments from time to time in addition to the 107. per cent. to form a fund, as such an action would be founded on the consideration of the plaintiff on his part undertaking to charter and manage the vessel, as much as an action would lie on a covenant in copartnership articles by one partner to pay another a certain sum if the partnership assets should prove deficient. As such an action therefore would lie, the only objection is to the form of the declaration; the count for money paid could not be supported. But it appears, from my Lord Denman's note, that the earnings were admitted to be insufficient to pay the expenses, and that application was made to the defendant to pay the second instalment, and that he promised to pay it. This appears to be sufficient evidence to support the count on an account stated as to that sum founded on the obligation to pay it arising out of the special contract, and therefore the rule to enter a nonsuit must be discharged."

V. As to Title Deeds remaining with Mortgagor.

By indentures of lease and release, dated respectively 24 and 25 January, 1828, several closes of land, situate in the West Riding of the County of York, were conveyed to A. B. in fee. A. B. is now selling part of this property in building sites, and on other part, not likely at present to be required for buildings, he is desirous of raising the sum of 20007. by way of mortgage. But he objects to part with the possession of the title deeds, the production of which is of course often re

quired on the sale of sites, and he also objects to any memorandum of the proposed mortgage being endorsed on his conveyance of January, 1828. Now the question is, whether in case the proposed mortgage deed be duly registered, the security could be invalidated or in any way prejudiced in consequence of the title deeds being suffered to remain in the possession of the mortgagor without a memorandum of the mortgage being endorsed on the last conveyance?

If the intended mortgagee gets the legal estate, it seems that his security cannot be invalidated by the deeds referred to remaining in the possession of the mortgagor without a memorandum, assuming of course that the intended mortgage deed is duly registered. But should it happen that by reason of some latent outstanding term or otherwise the mortgagee does not get the legal estate vested either in himself or his trustee, he might be prejudiced by the deeds in question remaining with the mortgagor; for the registry is not deemed notice of any equitable incumbrance; and should the mortgagor grant a second mortgage, the granting of which would be facilitated by the possession of the deeds, and the second mortgagee not having notice of the first mortgage, were to get in any legal estate, he would be preferred to the first mortgagee.

Generally speaking, it is not expedient to allow the deeds to remain in the possession of the mortgagor, for besides the risk alluded to above, it enables the mortgagor to sell or mortgage without notice of the first mortgage, and thus may give rise to fraud and questions; but the character of the mortgagor may render it unlikely that he would make an improper use of his power. And further it must be observed, that if the mortgagor did sell or mortgage without notice of the first mortgage, and it could be shown that the first mortgagee had notice of the sale or mortgage, and did not interfere, he might be compelled to confirm the sale or mortgage.

From these observations, and his knowledge of the title and of the parties, the solicitor of the intended mortgagee will be able to advise whether it is prudent to assent to the proposition of the mortgagor. If the mortgagor consents that the deeds should remain with his solicitor till the mortgage is discharged, that would be some security to the mortgagee.

ART. VI-LORD DENMAN'S ACT FOR TAKING AWAY COSTS IN FRIVOLOUS SUITS.

THE beneficial effects of Lord Denman's Act, 3 & 4 Vict. c. 24, have already been felt, we apprehend, in the discontinuance of many vexatious actions; and we have little doubt that it will prove one of the most useful enactments which have of late years been added to the statute book. Nevertheless, it is probable that some grave question may speedily arise as to the real nature of the duty imposed on the judges by it, and the mode in which its powers are to be exercised.

On the last Western Circuit a case of libel of rather an unusual nature and some local interest was tried. The defendant pleaded not guilty, and justified. The words used were clearly libellous. General evidence was admitted as to the character borne by the plaintiff at the period of the publication. The counsel for the defendant explained to the jury the effect of the act, and made them understand that it was now in their power, with the consent of the judge, to deprive the plaintiff of costs by giving less than 40s. damages. The judge told the jury that the justification, as pleaded, did not quite cover the whole of the libel: and he intimated pretty strongly his opinion that, as to the rest of it, the justification was not made out. The jury (special) immediately found for the plaintiff, damages, one farthing. The judge immediately certified to give the plaintiff his costs.

The jury therefore in this case found that there was morally no libel at all: the judge declared his opinion that the libel was "wilful and malicious;" and it is plain that a similar conflict of decisions must take place in every case of libel, with justification pleaded, where the judge shall certify under this act. It is impossible that a jury can give less than 40s. damages for a libel which in their judgment is wilful and malicious. The blow aimed at the character of the plaintiff may inflict no injury computable in money, because the plaintiff may have no character to lose: or it may inflict an injury for which the highest sum ever awarded by a jury would be an inadequate compensation. But it is wholly impossible to conceive a wound to a man's reputation of which the reasonable salve is a sum under forty shillings. When a jury, therefore,