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i^s-d

/60

EEP0ET8 OF CASES

HEARD AND DETERMINED

THE LOKD CHANCBLLOK,

AND THE

(Ktouxt ot ^ptul in Cj^antets*

J. P. DEGEX,

OF LINCOLN'S INN, ESQUIRE| BARRISTER AT LAW,

AND

H. CADMAN JONES,

OP LINCOLN'S INN, ESQUIRE, BARRISTER AT LAW.

VOL. I.

1857.

LONDON :
V. k R. STEVENS & G. S. NORTON,

26, BELL YARD, LINCOLN'S INN,

lUto VoaiMlUt* anH 9«blM)(r<.

MDCCCLTIII.

LONDON :

C. ROWOnril AND SONS, PBlMlERt,

IILI YARD, TRMPLF BAR.

Lord Cranworth, Lord Chancellor^

Sir John Romilly, Master of the Rolls.

Sir James Lewis Knight Bruce, "j

V Lords Justices.

Sir George James Turner, J

Sir Richard Torin Kindersley,

Sir John Stuart, \ Vice- Chancellors.

Sir William Page Wood,

Sir Richard Bethell, Attorney -General.

Sir Henry Singer Keating, SoUdtor- General.

MEMORANDUM.

In Trinity Vacation^ 1857, the following Gentlemen were
appointed Her Majesty's Counsel: — The Honourable Edmund
PhippSf Charles Wordsworth, Esquirei John Locke, Esquire,
Allan Maclean Skinner, Esquire, John Walter Huddles ton,
Esquire, Robert Lush, Esquire, William Forsyth, Esquire and
Henry Manisty, Esquire.

TABLE

OV TKS

NAMES OF CASES REPORTED

IN THIS VOLUME.

Page

Agnew V. Pope . • .49

Allday v. Fletcher . • 82

AndertoDy Ex parte, In re

Andertpn , . . 298

Arbuthnot, Fyfe v. . . 406

Bartlett v. Bartlett . .127

Bellamy v. Sabine . . 566

Blackmore v. Snee • . 455

BoultoD, Ex parte, In re

Sketchley . . .163

Boyd's Case, In re Royal

IBank of Australia . . 223

Brown, Larabrie v, , • 204

Bunny, Ex parte, In re

Bunny .... 309

Campbell v. Corley . . 238

Campbell v. Ingilby
Castle v» Castle .
Childers v. Childers
Cole, Skelton v. •
Coombs, Pain v.
Corley, Campbell r.
V. Lord Stafford

• •

Page
. 393
. 362
. 482
. 687
. 34
, 238
238
93

Crewe (Lord) v. Edleston •
Cromford and High Peak
Railway Company i;. The
Stockport, Disley, fto. Rail-
way Uompany . . . 326

Daniell, Ex parte, In re The
Universal Provident Asso-
ciation .... 372
Davey v. Durrant • • 536
Day V. Day • . • 146
Deacon, Pearl v. . .461

Deane, Youle & Co., In re,

Ex parte Goldsmid . • 267
Dixon V. Gayfere . • 665

TABLE OF CASES REPORTED.

Durrant, Davey v.

, Smith V.

Dutton, Strother f).

Edleston^ Lord Crewe v.
Edwards, Yem v.
Ellis V. Ellis
V. Lee

Page
. 535
. 535
. 675

. 93
. 598
. 464
. 464

Farebrother v. Gibson ,

. 602

Farina v. Silverlock

. 434

Fairell, Jones v. .

. 208

Fielding v. Preston

. 438

Findon v. Findon

. 380

Fletcher, Allday v.

. 82

Fluker r. Gordon

. 655

Foster's Settled Estates

;, In re 386

Fyfe V. Arbuthnot

. 406

Gayfere, Dixon v. . . 655
Gibson^ Farebrother v, . 602
Goldsmidy Ex parte, In re

Deane, Youle & Co. . 257

Gordon, Fluker v. . . 655
Great Northern Railway

Company, Henry v. . 606
Green, Wyllie v, . . 410
Greycoat Hospital (Governors
of) V. The Westminster Im-
provement Commissioners 531
Grosvenor (Lord) v. The
Hampstead Junction Rail-
way Company . . . 446
Gulliver, Re . . .113
, Stroughill r. . .113

Page
Hampstead Junction Railway
Company, Lord Grosve-
nor V 446

Harper, Ex parte, In re Jones 1 80
Henry v. The Great Northern

Railway Company . . 606

Hemaman, Shuttleworth v, . 322

Higgs, Terrell v, . . . 388

Houghton, In re. Ex parte

Tayler . . . .302

Imbert, Ex parte, In re La-
tham .... 152
Ingilby, Campbell v. . . 393
Innes v. Mitchell . . 423

Jones, In re, Ex parte Harper 180
Jones V, Farrell . . . 208

King V. King

. 663

Larabrie v. Brown . . 204
Latham, In re. Ex parte Im-

bert

Leather, Lister v.
Lee, Ellis v.
Lister v. Leather .
Liverpool (Mayor, &c

Scott V. .
Lockhart v, Reilly

, Reilly v.

Ludlow V, Stevenson

152
. 361
. 464
. 361

of).

. 369
. 464
. 464
. 496

TABLE OF CASES REPORTED.

Micklethwaite v. Mickle-

thwaite .
Mitchell, Innes v.
Morley, Roddani v.

Page

504

423

Page, Williams v.

. 661

Pain V. Coombs .

. 34

Pearl v. Deacon .

. 461

Pope, Agnew v. .
Powys, Stephens v.

. 49

. 24

Preston, Fielding v. .

. 438

Reilly v. Lockhart
, Lockhart v.

. 464
. 464
1

Roddam u. Morley

Royal Bank of Australia, In

re, Boyd's Case . . 223
Ryder, Ex parte, In re Ryder 317

Sabine, Bellamy v, , . 666
Scott r. The IVlayor, &c., of

Liverpool . . . 369
Shuttleworth r. Hernaman . 322

Silverlock, Farina v, . . 434

Skelton v. Cole . . .687
Sketchley, In re, Ex parte

Boulton . . . .163

Smith V. Durrant . . 535

Snee, Blackmore v» . . 455

Stafford (Lord), Corley v. . 2cJ8

V. Stafford . . 193

Stephens v. Powys . . 24
V. Stephens . . 62

Page
Stevenson, Ludlow v. . . 496
Stockport, Disley, &c.. Rail-
way Company, Cromford
and High Peak Railway
Company r. . . . 326
Strother v. Button • . 675
Stroughill t?. Gulliver . .113

Tayler, Ex parte,

Houghton
Terrell v. Higgs .

In re

• 302

. 388

Universal Provident Associa-
tion, In re. Ex parte Daniell 372

University of London r. Yar-
row . . . .72

Vaughan, Walmesley t?. • 114

Walmesley r. Vaughan . 114
Westminster Improvement
Commissioners r. The Go-
vernors of the Greycoat
Hospital . . . .531
Williams v. Page . .561
Wood bum. In re • . 333

Wyllie V. Green . . .410

Yarrow, University of Lon-
don V, . . . .72
Yem V, Edwards . . . 598

ERRATA.

Page 285, line 6, for <' tantamount in bankruptcy" read " tantamount to bankruptcj.
„ 300, line 18,ybr '* appellant " read ** assignees."

REPORTS

CASES

ARGUED AND DETERMINED

IN THE

HIGH COURT OF CHANCERY.

1856.

Jufy 19.
Dec. 12, 13.

1857.

RODDAM V. MORLEY. Feb, is.

AprU 18.

riiHIS was an appeal by the Plaintiff from the decree Before The
-*- of the Vice-chancellor Wood, whereby the Plain- ^H^rhoTi,
tiflTs bill was dismissed. The short question raised upon Cranworth,
the appeal was, whether under the fifth section of the Mr. Jusiue
Act 3 & 4 Will 4, c. 42, payment of interest on a bond Williams and
within twenty years by the tenant for life of the obligor's Crowdbr.
real estate, did or not keep alive a right of action on the Payment by a

devises for

bond against persons entitled to such real estate in re- life of interest

mainder. The Vice-Chancellor held that such payment °° * «P«cialty

.of his testa-
did not keep the right of action alive. The case is tor's, in which

reported in the second volume of Messrs. Kay and John- r^ "^'" !|?J®

son^s Reports, page 336. be an acknow-

ledgment made
The ** by the party
liable by virtue
of such specialty/' within the meaning of the 5th section of the Act 3 &* 4 Will, 4,
c. 42, and as such sufficient to keep the riglit of action alive in its integrity against all
parties interested in remainder.

Money due on a bond by an ancestor is not a sum of money payable out of land
within the meaning of the 40th section of the Act 3 & 4 Will, 4, c. 27.

Vol. I. B D.J.

CASES IN CHANCERY.

1856.

RODDAM

V.
MORLET.

Dee. 12.

The appeal came originally before the Lord Chancellor
on the 12th Jult/, 1856, but before it was fully opened
his Lordship expressed his opinion that it was a case
which ought to be heard with the aid of two of the
Common Law Judges. The appeal accordingly stood
over until MichaelmcLs Term, and Mr. Justice Williams
and Mr. Justice Crawder, being invited by the Lord
Chancellor, now attended.

Mr. Bagshawe and Mr. Martindale for the Plaintiff,
in support of the appeal.

We submit that where several persons are joined in
one common obligation, any one of them making part
payment of principal or interest will keep the obligation
alive afi to the others, Whitcomh v. Whiting {a). The
reasonable construction of the words "if any acknow-
ledgment shall have been made either by writing by the
party liable," &c. " or by part payment,^ &c. in the 5th
section of the Act S & 4 Will, 4, c. 42, is that the tenant
for life being under an obligation to pay the interest, the
debt is by such payment kept alive as against the in-
heritance.

For the purpose of construing that statute it is to be
observed, that the heir and devisee are one person and
ought, under the Act 3 & 4 TT. & ilf. c. 14, to have been
jointly sued at law, falling as they do under the descrip-
tion of " party liable to pay," and the foundation of our
equity is, that the tenant for life being liable to pay, his
payment must be considered as binding on all. The
result of the Vice-Chancellor's construction will be, to
hold that the word acknowledgment must be restricted to
an acknowledgment in writing; our contention, how-
ever, is that an acknowledgment may be by other modes,
e.g. by part payment. Another anomalous consequence

would
(a) Dougl. 652, and 1 SmMt JL Cot. 483, ia notia.

CASES IN CHANCERY.

would follow from the Vice-Chancellor*s construction,
that though the whole property of the obligor is assets,
yet the tenant for life could say " I admit that they arie
assets in my hands, yet they are not assets in the hands
of the remainderman."

185^.

RODDAU
MORLKT.

They referred to Homer's Devisee^ Case (a). Kin*
derley Y. Jarvis {b), Chaplin v. Chaplin {c), Francis ▼.
Ghwer(d)f Fordham v. WalUs{e)\ and they commented
on the following statutes, viz. 3 & 4 TT. & J[f. c. 14; 9
Geo. 4, c. 14; 1 Will 4, c. 47; 3 & 4 WUl 4, c. 27,
ss. 40. 41, 42 & M; and 3 & 4 Will 4, c 40, ss. 3,
4&5.

Mr. W, M. JameSy Mr. Cairns and Mr. H. Palmer ^
for the Respondents, Mrs. MorUy the widow of the
tenant for life, and for the tenant in tail in remainder.

We submit that an acknowledgment by one of several
persons primarily liable will not affect those who might
be ultimately liable if their liability has been discharged
by the Statute of Limitations, Fordham v. WaUis{e),
and there is no substantial distinction between the case
of a bond and simple contract creditor in the appHcation
of the rule, Putnam v. Sates (f), Morley v. MorUy {g).
It was argued as if the bond debt amounted to a charge
on the land ; but in that lies the fallacy. Equity does not
change the right of the creditor, it only gives him a
simpler remedy; but he must, nevertheless, show that
the debt is a subsisting one and not barred by the Statute
of Limitations.

(a) 2 D«G., Jlfor.4-0.366.
(6) 22 Beav, 1.
(c) 3 P. Wm$. 365.
\d) 5 Hare, 39.

Mr.

(/) 3 Run. 188.

(g) 5DeG., Jlfflc.4-G.610.

1856.

CASES IN CHANCERY.

Mr. Willcock and Mr. Selwyn for Mrs. Jane Morley
the widow of the testator, and for Mr. and Mrs. Allen
and their children interested under the testator's will.

According to the Appellant's argument the tenant for
life must be considered to all intents and purposes as the
agent of the remainderman ; but the debt was no charge
on the land, Hunting v. Sheldrake (a) ; and the Act 3 & 4
Will. 4, c. 27, applies only to charges. Even a payment
by one executor does not take the case out of the statute
as against another executor, Scholey v. Walton (6) ; how
then can an admission by a person not primarily liable, and
when the debt is not a charge on the land, bind parties
who are entitled in remainder to the inheritance. The
Appellant must contend that a payment by anyone with-
out any privity to the remainderman will bind the remain-
derman and prevent the bar of the statute. They cited
JBurrell v. The Earl of Egremont{c)j Wynne v. Sty an (d)^
Wilkinson v. Wilkinson (c).

Mr. JBagshawe in reply.

The words " party liable*' in the 5th section of the Act
S & 4 WilL 4, c. 42, do not refer to an individual, but
are nomen collectivum, and serve to denote a class.

1857.
Feb. 18.

At the conclusion of the argument the learned Judges
desired time to consider the question which had been
submitted to them, and on the 18th February, 1857,
Mr. Justice Williams, on behalf of Mr. Justice Crowder
and himself, delivered the following joint opinion : —

My Lord Chancellor, —

The question raised in this case is whether the pay-
ment of interest by Francis Morley, the tenant for life

(fl) 9 M,^ W. 256.
(6) 12 M. 4- W. 5ia
(c) 7 Beav.205.

((/) 2 PhU. 306.
(e) 9 Hare, 204.

CASES IN CHANCERY.

of certain land under the will of the obligor Josias
R. Morler/y prevented the Statute of Limitations from
barring the action against his heirs and devisees in
remainder after the expiration of twenty years from the
time of the bond becoming due. The Vice-Chancellor
Wood decided that it did not, and this is an appeal
from that decision.

1857.

RODDAM

MoRLRr.

The case for the Appellant (the bond creditor) was
argued upon the effect of the 40th section of the Statute
8 & 4 Will. 4, c. 27, as well as the 5th section of the
Statute 3 & 4 Will, 4, c. 4^, and it was contended on his
behalf, that, under the one or the other of these sta-
tutes, his remedy still exists against the lands of the
testator, the obligor, the period of twenty years not
having elapsed since the last payment of interest by the
tenant for life.

With respect to the Statute 3 & 4 Will 4, c. 27, the
opinion which we have formed on this case renders it
unnecessary to say whether we concur in the decision
of the Vice-Chancellor, that a bond debt is not " charged
upon*' or " payable out of land** within the meaning of
the 40th section, but we cannot refrain from saying that
we entirely agree with the view which his Honor has
taken of that Act.

With respect to the Statute 3 & 4 Will 4, c. 42, the
question is twofold : first, whether the payment of in-
terest by the tenant for life was an acknowledgment
made by " the party liable by virtue of the bond**
within the meaning of the 5th section ; secondly, if it
was, what are the consequences of such an acknowledg-
ment. By the 3rd section, all actions of covenant or
debt upon any bond or other specialty shall be brought
within twenty years after the cause of such action, but

not

CASES IN CHANCERY.

1857,

not afterwards. But by the 5th section it is provided
'* Th^t, if any acknowledgment shall have been made,
either by writing signed by the party liable by virtue of
such indenture^ specialty or recognizance, or his agent,
or by part payment or part satisfaction on account of
any principal or interest being then due thereon, it shall
and may be lawful for the person or persons entitled
to such actions, to bring his or their action for the
money remaining unpaid, and so acknowledged to be
due within twenty years after such acknowledgment by
writing or part payment or part satisfaction as afore-
said, or in case the person or persons entitled to such
action shall at the time of such acknowledgment be under
such disability as aforesaid, or the party making such
acknowledgment be at the time of making the same
beyond the seas, then within twenty years after such
disability shall have ceased as aforesaid, or the party
shall have returned from beyond the seas, as the case
may be, and the Plaintiff or Plainti& in any such
action on any indenture, specialty or recognizance,
may, by way of replication, state such acknowledgment,
and that such action was brought within the time afore-
saidj in answer to a plea of this statute."

The statutje (as it was remarked by Lord Wenslqf-
dale in Forsyth v. Bristowe{a)) does not here expressly
require that the payment shall be made by the party
liaible or his agent, but only that if the acknowledgment
shaU h^ve been ipade by writing such writing shall be
signed by the party liable or his ageat. It can hardly be
doubted, however, that the statute implies that the payment
shall be similarly made. The great difficulty b putting a
construction pn the language of the section arises from
the obvious fact, that the firamera of it had in their mind

the

(a) 8 EicL Bep. 716, tee p. 722.

CASES IN CHANCERY.

the single case of a sole obligor, and that the case of a 1857.

bond vrhh several obligors, or of a deceased obligor,

never occurred to them. Accordingly the section speaks

of ** the party liable or his agent." But it has nelFer

been suggested that the operation of the sectioti is to be

confined to the single case thu? contemplated, nor has it

been at all doubted, either at the bar or on the bencb,

bat that the Act extends as well to the case of a bond

with several obligors as also to a case where the liability

has been transferred by death to a representative of the

party originally liable.

If one of several obligors were to make the requisite
acknowledgment, it has never been disputed that this
wooid be acknowledgment by " the party liable**
within the intention of the statute, whatever controversy
there may have been as to the effect of such an acknow-
ledgment If this be so, then it follows that the words
" the party liable or his agent** are to be read as if
they were the party or parties liable by virtue ^ tlie
bond, &c., or any of them, or bis, her or their agefH
And the remaining enquiry on the first branch of the
question is^ whether the devisee for life falls within tb^
statute thus construed. This was denied on the part of
the Counsel for the Respondents, who argued that the
devisee was only indirectly and imperfectly liable, beings
as they contended, only joined, under the statutes of
fraudulent devises^ in the action against the heir in order
to see that the creditor makes out his claim and that th^
accounts are properly tidcen, for that these statutes make
the devise actually void against the creditor. But we
cannot say we feel any difficulty at all on this point.
For though it is true that these statutes say that the
devise shall be void, yet they give the creditor, as the
means of recovering the debt, an action against the heir
and devisee jointly, and in effect put the devisee on the

same

8 CASES IN CHANCERY.

1857. same footing as the heir^ and under the same liability if
he does not confess the assets. And it is by the 7th
section of the Act 3 & 4 W, & M. c. 14 enacted, that
''all and every devisee and devisees made liable by this
Act shall be liable and chargeable in the same manner
as the heir at law by force of this Act, notwithstanding
the lands, &c. to him or them devised shall be aliened
before the action brought.*" And although, if the
devisee duly confesses the assets he will only be liable to
a judgment for them, and no further, yet his position in
this respect differs not at all from that of the heir or that
of the executor.

The devisee may, therefore, be as properly said to be
" liable by virtue of the indenture" as either the real or
personal representative, and this argument would go
the length of proving that in case of the death of the
obligor no one at all was '' liable by virtue of the
indenture'* within the meaning of the Act. But it is
obvious, we think, that any party who could plead the
limitation given by the 3rd section of the Act 3 & 4
Will. 4, c. 4^ to an action brought against him on the
bond is capable, under the description of the party liable
in the 5th section, of making an acknowledgment so as
to prevent the operation of the 3rd section in his
favor. The devisee for life, if sued on the bond jointly
with the heir, might plainly take advantage of the 3rd
section and plead separately, if he was so minded, that
twenty years had elapsed since the cause of action ; and
to such a plea surely it would be a good replication to
state an acknowledgment by him, under the 5th section,
within twenty years.

The remaining branch of the enquiry is, what are the
consequences of such an acknowledgment? or, in the
present case, in other words, does it set the action free

generally,

CASES IN CHANCERY.

generally, or only as to the particular party who has made 1857.
the acknowledgment ? After much consideration, and with
much distrust as to the correctness of the conclusion at
which we have arrived, we are of opinion that the ac-
knowledgment sets the action free generally, and, con-
sequently, that this appeal ought to be allowed. The
statute, it may be observed, says absolutely that if the
requisite acknowledgment shall have been made the
action may be brought within twenty years after such
acknowledgment, and does not say that it may be brought
against the party who shall have made the acknowledg-
ment. This may, however, be attributable to the fact
already pointed out, viz., that the language of the whole
section is adapted to the single case of a sole obligor.
And there would be, therefore, it must be admitted, no
difficulty in holding that though the statute does not
expressly say so, yet it must be taken by implication to
have intended to liberate the action only as against the
particular party who shall have made the acknowledg-
ment, if such construction is plainly called for either by
the general scheme of the enactment or in order to avoid
any manifest incongruity or injustice, or if such an in-
tention is made apparent by the context If the enact-
ment had come to a close immediately after providing
that the action might be brought on the bond within
twenty years after the acknowledgment, there would
surely be great difficulty in contending that there was
anything incongruous or unjust in the enactment, because
it would amount to no more, even if it were construed
absolutely, than enacting that inasmuch as by the law as
it stood at the time of passing the Act the presumption
of payment arising from the lapse of twenty years might
be rebutted by showing an acknowledgment of the bond
by any party liable to be sued on it, so the operation of
the positive bar given by the statute should be prevented
by the same means to the same extent. But it is the

subsequent

10 CASES IN CHANCERY.

1857. subsequent part of the section which has afforded the
principal ground for contending against the intention to
liberate the action generally. It is thereby enacted,
'Uhat if the party making such acknowledgment be at
the time of making the same beyond the seas, the action
may be brought within twenty years after the party shall
have returned from beyond the seas." The Act, it is
said, never could have intended anything so unreasonable
as to enact that because one of the parties liable, who
happened to be abroad, has there made an acknowledge
roent, the limitation of the action shall be suspended as
against all the other parties liable, though commorant
in England^ till twenty years after he has returned.
And the Vice-Chancellor Wood^ in pronouncing the judg*
ment appealed from, appears to have treated this part of
the section as plainly indicating an intention that the
action should be set free only with regard to the party who
made the acknowledgBient.

It may here be advisable to advert to the construction
which the Courts have put on a somewhat similar enact-
ment with Inspect to the Statute of Limitations, ^1
Jac 1, c 16. That statute, though it provided for the
case of the absence of Plaintiffs beyond seas at the time
of the cause of action accrued, omitted to provide for
the case of the absence of Defendants. To remedy
this it was enacted by the statute 4 Ann. c. 16, s. 19,
'' That if any person or persons, against whom there
shall be any cause of action of trespass, detinue, &c.,
or upon the case, &c., or wounding and iisprison-
ment, or any of them, be or shall be, at the time of any
such cause or suit, &c. beyond the seas, that then such
person or persons, who is or shall be entitled to any such
suit or action, shall be at liberty to bring the said actions
against such person and persons after their return from
beyond the seas, so as tiiey take the same after their

return

CASES IN CHANCERY. II

return from beyond the seas, within such times as are 1657.
respectively limited for the brii\gii^ of the said actions
before by this Act, and by the said other Act made in
the one and twentieth year of the reign of King James
the First.'' The case of Fannin v. Anderson (a), was
decided on the construction of this enactment There,
to an action of assumpsit the Defendant pleaded Actio
nan accrevit infra sex annos. The Plaintiff replied,
that the Defendant, when the action accrued, was beyond
seas, and that the action was commenced within six
years of his return. The Defendant rejoined, that the
promise was made by Defendant jointly with his brother^
and that after the accruing of the cause of action, and
more than six years before the action brought, the
brother was in the kingdom, and might have been sued.
By these pleadlugs the question was raised, whether^
under the statute of Anne^ the absence bey<md seas
of one of several co-contractors, against wbo69 there
is a cause of action, prevents the statute of James from
running. And the Court of Queen*s Bench decided
in the affirmative, and expressed their opinion^ thajt
the statute of Anne intended to give the Plaintiff
relief, whenever, by reason of the absence beyond
seas of any of the intended Defendants, the Plaintiff
cannot have his complete remedy against all those whom
be is ei^titled to sue. It may here be observed, that
although the statute of Anne says, that the Plaintiff may
bring his action against '' such person and persons after
their return from beyond the seas," yet the Courts do
not put the case on the ground, that the action was set
free as to the absent party only, and that the others
might plead the statute of James ; but it was holden
that the statute of Jame^ did not run at all until he re-
turned to this kingdom.

The
(<i) 7 Q. B. 811.

12 CASES IN CHANCERY.

1867. The case of Fannin v. Anderson {a) was followed by

that of Toums v. Mead (b). That was also an action of as-
sumpsit with a plea of Actio non accrevit infra sex annas.
The Plaintiff replied, that the cause of action accrued
against the Defendant and two others jointly, and that
one of those two others was beyond seas at the time of
the cause of action, and remained there till his death,
and that the action was commenced within six years
from his death. And this was held to be a good re-
plication. It was contended for the Defendant, that as
he had been in England^ and might have been sued,
and could not (since the 8th section of the statute
3 & 4 Will, 4, c. 42) have pleaded in abatement the
nonjoinder of the co-contractor, who was abroad, the
statute had run as against him, and became a bar at the
end of the six years ; and that it is unreasonable, in a
case where there are two partners, and one is abroad
at the time a cause of action for a debt accrues against
them, that the Plaintiff should be allowed to sue the
partner, who has always remained in this country, at any
time within six years after the absent partner shall have
come to England, or died abroad. But the Court of
Common Pleas held, that the Plaintiff was entitled to
judgment, for that the effect of the statute of Anne was to
suspend the operation of the statute of James altogether,
so long as the Defendants or any of them remained
abroad.

There can be no doubt, that if the effect of the statute
of Anne was merely to set the action free with respect
to the particular Defendant who was abroad, some
inconvenient and anomalous consequences would follow
from thus splitting the action, which will also follow
if the view taken by the Vice-Chancellor Wood of the

statute

{a) 7 Q. B. 811. (6) 16 C. B. 123.

CASES IN CHANCERY.

statute in question be correct. In the case of several joint
obligors, where one of them has made an acknowledg-
ment, if his Honor's construction be right, the obligee,
by force of the statute, is compellable, if he means to sue
the other obligors at all, to sue them within twenty
years from the date of the bond ; and afterwards he is
empowered to sue the particular party who made the
acknowledgment after the twenty years have expired.
But suppose in the exercise of this right he brings his
action and obtains judgment against the other obligors
within the twenty years, but the judgment remains un-
satisfied, and afterwards he sues the obligor who has
made an acknowledgment, — according to the rule of
law established by King v. Hoare (a), the former judg-
ment might be pleaded in bar of the action. Is it in-
tended, then, by the statute that the ordinary rule should
be relaxed as to this action, or that the obligee shall
only sue the acknowledging obligor when he has ab-
stained from suing the others ?

1857.

Again, in the case of a deceased obligor, who has left
his lands to several devisees, one of whom has made
an acknowledgment, the statute, according to the con-
struction contended for, compels the obligors to sue
the other devisees jointly with the heir within twenty
years, or otherwise he will be barred by the statute.
And after the twenty years are expired, if the debt
remains unsatisfied, he is empowered to bring another
action against the devisee who has made the acknow-
ledgment: to which action, it should seem, the heir,
who has already been sued in the former action, and
in whose favour the statute has already run, must
necessarily be made a party, because the statutes
which create the liability of the devisee only make him

liable

ia) 13 Jkf. i W, 494.

CASES IN CHANCERY.

1857.

liable to an action jointly with the heir^ if there be
one.

But there is, we admit, in respect to that part of
the section on which Vice-Chancellor Wood appears
to have acted, a difficulty in the way of the construction
we have adopted, which arises as follows : — The 5th
section seems to have put an acknowledgment on the
same footing as the 4th section has put the cause of
action, with respect to the period of limitation in cases of
absence beyond the seas. If there is a single obligor
who was beyond the seas when the cause of action ac-
crued, or when the acknowledgment was made, the
action may be brought at any time within twenty years
of his returj3. In the case of several obligors, it any one
of them was beyond seas at the time the action accrued,
then (if the 4th section be construed according to the
principle of Fannin v. Anderson{a)) the limitation will not
begin to run till he has returned. And it might there-
fore have been expected that the 5th section would have
been so framed, that if any one of the parties liable
should be beyond the seas when the acknowledgment
was made by any other of them, the limitation should not
begin to run till he had returned, whereas it is so worded
that the period of limitation is only prolonged in the
case of the particular party who makes the acknowledg-
ment being beyond seas at the times of making it.
Why, it may be asked, should his absence alone be made
so important, unless it were intended that the action
should be set free as to him alone ? An answer to this
question we think may be found in the fact, already more
than once mentioned, viz., that the language of the sec-
tion is obviously addressed only to a case where a single
party is liable.

(fl) 7 a B. 811.

The Lord Chancdior expressed bis thanks to the
learned Judges for their assistance, and said he should
consider the question involved in the appeal, which was
of extreme importance before pronouncing his judg-
ment.

Mr. Bagshawe referred to the case of Manaton v.
Manaton (c), as being an authority bearing on the sub-
ject,

(a) 3 Rm. 188. (c) 2 P. Wm. 234.

(6) 10 Hare, 217.

CASES IN CHANCERY. 15

In conclusion we beg to add that we have abstained }^Zl
from commenting on the cases of Putnam v. Bates (a)
and Fordham v. WallisiJ)), and other similar cases
which were cited on the argument ; because they were
all decided on the construction and effect of the statute
21 Jac, 1, and the statute 9 Oeo. 4, c. 14, and with re-
ference to the principle, that acknowledgments and pay-
ments operate under those statutes only as amounting to
a fresh promise to pay, and as constituting a new cause of
action. But, it is plain, that under statute 3 & 4 WiU.
4, c. 4&J the acknowledgment is not intended to operate
on any such footing, nor could it possibly so operate,
because the action in which the acknowledgment is to
be operative must always be founded and maintained on
the original obligation, and on that only. There is,
therefore, no analogy at all in this respect between these
statutes, and the cases to which we have just adverted
can hardly be a proper guide for forming an opinion on
the present question.

1857.

CASES IN CHANCERY.

jecty and which had been omitted to be cited in the
argument.

The Lord Chancellor.

AprU 18. The question in this case, though one of great im-

portance and of some difficulty, is not one of any com-
plication. It is this, — A person died indebted on a bond
in which the heirs were bound, and having devised his
real estates in strict settlement, the devisee for life
entered into possession, and afler keeping down the
interest on the bond for above twenty years died, and
thereupon the tenant in tail in remainder came into pos-
session. The question is, whether the bond debt is to
be considered as a debt still subsisting, so as to be ca-
pable of being enforced against the real or personal assets
of the obligor. On a bill filed by the representatives of
the obligee against the executors, the heir, and the
devisees in remainder of the obligor, for the purpose of
obtaining payment, the Vice-Chancellor Wood dismissed
the bill on the ground, that the bond was no longer a
subsisting security, so as to give to the holder any right
of action or suit either at law or in equity. From this
order, dismissing the bill, the Plaintiff appealed to me.

The question turns on the effect of the Act 3 & 4 Will.
4, c. 42, ss. 3, 4 & 5, and, considering that the question
was purely legal, I thought it right to have the assistance
of two of her Majesty's Judges. Mr. Justice Williams
and Mr. Justice Crou^e/^r accordingly gave me the benefit
of their assistance when the case was argued shortly before
Christmas last, and I feel greatly indebted to them for
the thorough investigation they made of the subject, and
for the clear and full exposition of the view which they
both took of it; and, as after much consideration, I

concur.

CASES IN CHANCERY.

concur, not only in the result at which they arrived, but
also in the reasoning which led them to their conclusions,
I shall not feel it necessary to do more than state shortly
my views on the subject.

1857.

It is hardly necessary to state, that before the passing
of the Act 3 & 4 Will. 4, c. 4^, there was no statutory
limitation affecting actions on bonds or other spe-
cialties. The creditor might bring his action after
any lapse of time. But, to obviate the great in*
convenience which such latitude of discretion in the
creditor was calculated to occasion, it had become the
universally recognized practice to presume, where a
demand had been lying dormant twenty years or upwards,
that the debt had been satisfied, though there might be
no positive evidence of payment. This was a rule accord*
ing with the general convenience of mankind, and, ordi-
narily, consistent with justice and good sense. It is very
unlikely that persons having a right to recover money
should remain passive for twenty years. It is far from un-
likely that persons having satisfied a legal demand may have
omitted to take a proper discharge or may have lost it if
any was taken. It was a wise rule, therefore, to presume
after such a lapse of time, that payment had been made,
though proof of it was wanting. There might be diffi-
culty, in the abstract, in fixing the precise time at which
the presumption of payment should arise, but it was
reasonable, and, indeed, necessary, to draw the line
somewhere, and twenty years gradually became the
period adopted. This presumption, however, would
have occasioned great injustice, if it had not been liable
to be met by direct evidence to the contrary, or by
counter presumptions ; and, accordingly, it was alwa}^
held, that an acknowledgment within the twenty years,
properly authenticated, and admitting the debt or part
Vol. I. C D.J. payment

CASES IN CHANCERY.

1857.

payment of principal or interest within the same period,
were facts sufficient to rebut the presumption of payment
arising from lapse of years; and other circumstances might
be sufficient to lead to the same result. Then came the
Statute 3 & 4 Will. 4, c. 42.— [His Lordship here
briefly referred to sections 3, 4 and 5, and proceeded] —
Acknowledgment in writing, it will be observed, or part
payment of principal or interest, is by sect. 5 made suffi-
cient to enable the party entitled to the action to bring
it within twenty years from the date of the acknowledg-
ment or part payment. In the present case the question
turns on the effect of payment of interest ; and what I
have to determine is, whether payment by a devisee for
life is a payment within the meaning of the Statute ? and
if it is, then what is its effect? against whom does it
operate ?

The section, it will be observed, does not specify by
whom the part payment must be made. But there can,
I think, be no doubt, it must be made by a party inte-
rested. It would be absurd to suppose that the Legis-
lature meant to give any right against the debtors by the
act of a mere stranger ; and the only question is, whether
the devisee for life is a party interested. I think he
certainly is. The Statute, as is observed by the learned
Judges, must have been intended to meet the case of
several persons liable as well as that of a single obligor,
and it never could have been contemplated that, in order
to prevent the operation of the statutory bar, there must
always be an actual payment by all the persons liable.
The question, however, still remains if the payment is
made by one only of several persons liable; as, for
instance, by a person having only a life interest, who is
affected by the payment? Does it operate against the
party only by whom the payment is made ? or does it
affect all the other parties liable ? Does it merely enable

the

CASES IN CHANCERY,

the creditor to sue the party by whom the payment was
made, or does it set free the action generally ? I have
come to the conclusion that when a part payment or
payment of interest has been made, which has the effect
of preserving any right of action, that right will be saved,
not only against the party making the payment, but also
against all other parties liable on the specialty. I think,
independently of other considerations, that this would
follow if we merely attend to the language of the Statute.
The enactment is, that in case of part payment it shall
be lawful for the person entitled to such action to bring
his action for the money unpaid at any time within twenty
years after the part payment. What action is here in-
tended as the action which might be brought within
twenty years ? Evidently such action as he might have
brought within the first twenty years after the cause of
action had arisen. No other action is anywhere referred
to. The Statute certainly does not in terms confine his
right to a right of action against the person who has
made the payment, and we have no right to introduce
words for the purpose of so confining it. But, moreover,
no such action could be maintained. This will be made
clear by attending to the peculiar nature of the action
which is brought by a specialty creditor in pursuance of
the Statute of the 3 & 4 Will & M. c. 14. Previously
to the passing of that Statute, in case a person indebted
by specialty devised away his lands, the creditor had no
remedy against the real assets, for the devise broke the
descent, and the devisees were not bound by the obliga-
tions of their devisor. The effect of a devise was the
same, so far as the creditor was concerned, as an aliena-
tion by the devisor in his lifetime. The Statute, in order
to remedy this evil, makes the devise void as against the
creditor. If it had gone no further, the remedy w.ould
have been imperfect ; it was necessary to give a right of
action against the person or persons to whom the devise,

C 2 though

1867.

RODDAM

V.
MORLET.

CASES IN CHANCERY.

1857.

though void against the creditor, had carried the land as
against the heir. And further, it was necessary to take
care that, just as before the Statute, the remedy of the
creditor was against all the lands descended, not against
only a part of them ; so, after the Statute, his remedy
should be a remedy which would enable him to obtain
payment out of all the lands of his debtor, whether
devised or descended. The Statute therefore provides
that the action shall be brought jointly against the heir
and the devisee, so that all the parties really interested
in resisting the demand, — the heir as to lands descended,
and the devisee as to lands devised, — may have an
opportunity of doing so ; still the action is not only in
form, but also oflen in substance, an action against the
heir. The Plaintiff^ when in such an action he recovers
against the devisee, who confesses the lands devised, has
the same right in respect of those lands which he would
have had if there had been no devise of them and he
had recovered against the heir. The writ of extent to
which he becomes entitled directs the sheriff to deliver
possession to the Plaintiff of the lands devised till he is
by means of the rents satisfied his debt. All this would
be inconsistent with an action against a person having
only a partial interest in the land. No such action is
given by the Statute of William Sc Mary, and I appre-
hend that any action against the devisee alone would
clearly be demurrable. Now, indeed, by the Act 1 1 Geo.
4 & 1 Will 4, c. 47, s. 4, if there is no heir, a right of
action is given against the devisee alone. But in the
case now under consideration the devisor died before the
passing of that Act, and he left a son and daughter, the
latter of whom is a Defendant in the suit and is his
heiress-at-law. Unless, therefore, the right of action
given by the Statute of William & Mary is kept alive
by the part payment, no right of action at all exists,
and this would certainly be contrary to the intention of

the

CASES IN CHANCERY.

the Act S & 4 WiU. 4, c. 42, s. 5. I think it clear, there-
fore, that the effect of that section is to keep alive the
original right of action. It certainly was intended to
keep alive some right of action, and no action can be
maintained which is not in effect an action against those
who represent the whole inheritance. Other considera-
tions lead to the same result, for instance : — The only
duty of the tenant for life, as between himself and
those in remainder, is to keep down the interest of
bond debts. This was so stated by Lord Macclesfield,
in Manaton v. Manaton (a), and is conformable to the
constant practice of this Court The tenant for life can-
not force the creditor to bring his action ; and if for
twenty years the creditor is content to receive his interest,
and afterwards brings his action, the result would be
whether it were brought against the tenant for life only,
or against him together with the heir and other parties
liable, that the creditor would be put into possession or
into the receipt of the rents and profits of the whole
estate, and so would prevent any further enjoyment by
the tenant for life until the whole debt should be satisfied.
If, as is here contended by the Respondents, all right of
the creditor was gone against those in remainder, the
tenant for life could have no equitable right to throw
any part of the burthen on them, and so the consequence
must be that the whole debt, principal and interest,
would be paid by the tenant for life, although he would
have been guilty of no neglect, having by the hypothesis
done all which it was his duty to do, namely, keep down
the interest. On all these grounds, in addition to those
which the learned Judges have so fully investigated, I
have come to the conclusion that payment by the tenant
for life must be considered to have kept alive the right of
action in its integrity. I arrive at this conclusion with

satisfaction,

(a) 2 P. Wm». 235.

1857.

RODDAV
MORLCT.

CASES IN CHANCERY.

1857.

satisfaction, because it is, as I conceive, consistent with
substantial justice. The same considerations which led
Courts to direct juries to treat part payment of principal
or interest as a fact, which ought to rebut the presumption
of payment arising from lapse of time, might reasonably
induce the Legislature, when creating an express bar by a
statute of limitation, to provide that what had previously
been considered sufficient to rebut the presumption of
facts, should to precisely the same extent prevent the
operation of the statutory bar. This, which may fairly be
presumed to have been the intention of the Legislature,
has, as I think, been effected by the enactment in question.
I observe from the report that the Vice-Chancellor felt
pressed by the clause giving relief in case the party
making the acknowledgment should at the time of
making it be abroad, i.e. giving twenty years after that
party should return. But I do not feel the force of that
objection. The learned Judges have thoroughly con-
sidered this part of the case, and I therefore need say
very little upon it. I may, however, remark that neither
of the two cases of Fannin v. Anderson (a) and Towns v.
Meadih) were brought under the consideration of the
Vice-Chancellor, though they have a most important
bearing on the question as to what would be the effect
under the Statute 3 & 4 WUl. 4, c. 42, of an acknow-
ledgment made abroad by one of several persons liable.
In Fannin v. Anderson (a), the Court held, that where at
the time when the right to bring an action of assumpsit
against two joint contractors. A, and i^., accrued, A.
was abroad, the right to sue B, jointly with A. continued
till six years after AJs return ; and in Towns v. Mead{b)
it was held, that where, in a similar case, the contractor,
who was abroad, died there, never having returned to

this

(a) 7Q. B. 811.

(6) 16 C. B. Rep. 123.

CASES IN CHANCERY.

this country, the right of action against the contractor in
England continued for six years after the death of the
party so dying abroad. These decisions proceeded on
the joint operation of the Statutes 21 Jac. 1, c. 16, s.
7, and 4 Ann. c. 16, s. 19, and I own I do not see why
a similar principle should not warrant us in holding (if
such a case should arise) that an acknowledgment made
abroad by one of several persons liable on a bond, who
was resident abroad when the cause of action arose,
would keep alive the bond in its integrity against all
parties liable. I should be very unwilling to give encou-
ragement to the notion that there is of necessity anything
morally wrong in a Defendant relying on a statute of
limitation. It may often be a very righteous defence.
But it must be borne in mind that it is a defence the
creature of positive law, and therefore not to be extended
to cases which are not strictly within the enactment.
And if, therefore, on the fair construction of this Statute
the Legislature has said that an acknowledgment made
abroad at a particular time shall keep alive the right, i,e.
the original right of action in its integrity, I cannot see
that this affords grounds of complaint to the other parties
liable, bearing in mind always that they may, if the facts
warrant it, absolve themselves from all liability by show-
ing the fair presumption to be that the bond has been
satisfied. With regard to the question raised on the
other Statute relied on in argument, namely, on the 40th
section of the Act 3 & 4 Will. 4, c. 27, I think the Vice-
Chancellor was perfectly right. Money due on a bond
executed by an ancestor is certainly not a sum of money
payable out of land within the meaning of that section.
On this point there has been no difference of opinion.
The result of the whole is, that I cannot concur with the
Vice-Chancellor in dismissing the bill. There must be
the usual decree for taking the accounts of the real and
personal estate of the testator and of his debts.

1857.

RODDAM

V.
MORLBT.

M CASES IN CHANCERY.

1867.

STEPHENS V. POWYS.

April 20.

Before The riiHIS was an appeal from the decision of the Master

Chancellor ^f the Rolls, upon the construction of the will of

Lord Phillis Stephens, so far as related to a bequest made in

CrANWORTH. ' 11 /. 1 » 1 I 1

A testator be- '^ ^^ reference to the will of the testatrix s husband

queathed William Stephens.

20.000/. Con-
tois upon trust

to pay the divi- William Stephens, by his will, dated the 18th of April

dends tohis n „ t .

wife for life, 1855, gave as follows : — " I give and bequeath unto my
and after her g^; j trustees Charles Stephens, William Blandy and

decease to n. r ^ y

(the wife of ^.) Charles Lanfear, the sum of 20,000/., SI, per cent. Con-
separate use solidated Bank Annuities, upon trust that they my said
and after the trustees, or the survivor or survivors of them, or the exe-
upon trusts for cutors, administrators or assigns of such survivor, do and

the benefit of ^\i^\ pay to or permit my said wife to receive the divi-

B. s children. '^ f ^ ^

The testator's dends, interest and annual proceeds thereof, for and

WM hU residu- ^^""8 ^^ X.'exisa of her natural life, for her own sole use
ary legatee, and benefit, separate and apart from and independent
only two days, ^^^ exclusive of any future husband with whom she may

and by her will, intermarry, and so that the same or any part thereof may

after giving , i. , i i • i i

several lega- not be liable to his debts, management, engagements, in-

cies of 100/. terference or control, and so that her receipt alone shall

each, be- ^ ' ^ ^ ^

queathed to from time to time be a sufficient discharge for the same ;
same amount ^"^» nevertheless, my will is, and I do hereby declare,

and on the that my said wife shall not have power to anticipate,
same trusts and , . , ...

conditions" as charge or incumber or assign the growing payments

were " named" \\\t^Tr^rS

m her late hus- '

band's will.

She directed her residuary estate to be divided into two moieties, whereof she gave one
to A, and B. and their children, ** on the same trusts as before alluded to." There was no
other part of the testator's will to which the bequest in the testatrix's could be referred,
except that above stated. Heid^ that a legacy of 20,000/. Consols passed by the wife's
will on the same trusts as those above mentioned of the husband's will.

CASES IN CHANCERY.

thereof; and from and afler the decease of my said wife,
upon trust that they my said trustees or trustee for the
time being do and shall pay or permit the said Anne
Phillis Powys, the wife of the said Philip Lybhe Powys,
to receive the dividends, interest and annual proceeds of
the said sum of ^0,000/., 3/. per cent. Consolidated Bank
Annuities, for and during the term of her natural life for
her own sole use and benefit, separate and apart from
and independent, exclusive of her said husband or of any
future husband with whom she may intermarry, and so
that the same or any part thereof may not be liable to his
Sebts, management, engagements, interference or control,
and so that her receipt alone shall from time to time be
a sufficient discharge for the same ; but, nevertheless, my
will is, and I hereby declare, that the said A, P. Powys
shall not have any power to anticipate, charge, incumber
or assign the growing payments thereof: And from and
after the decease of the said Anne Phillis Powys, my will
is, and I do hereby direct, that my said trustees and trus-
tee for the time being shall stand possessed of and inte-
rested in the said sum of 20,000/., SI, per cent. Con-
solidated Bank Annuities, and the interest, dividends and
annual proceeds thereof, as to the sum of 5,000/., S/.
per cent Consolidated Bank Annuities, part of the said
sum of ^,000/., like annuities, and the dividends, inte-
rest and annual proceeds of the said sum of 5,000/. in
trust for Philip Lybhe Barrington Potcys, the eldest son
of the said Anne Phillis Powys, to be an interest vested
in him on his attaining the age of twenty-one years:
And as to the sum of 15,000/., 3/. per cent. Consolidated
Bank Annuities, being the remainder of the said sum of
20,000/., like annuities, and also as to the said sum of
5,000/., like annuities, in the event of the said Philip
Lybbe Barrington Potcys dying under the age of twenty-
one years, and the dividends, interest and annual pro-
ceeds thereof respectively, in trust for all and every the

children

1857.

CASES IN CHANCERY.

1857.

Stephens

V,
POWYS.

children or child of the said Anne Phillis Pouys, in-
cluding the said Philip Lybbe Barrington Powys^
who being a son or sons shall attain the age of twenty
years, or being a daughter or daughters shall attain that
age or be married, to be divided between or amongst the
same children, if more than one, in equal shares and pro-
portions as tenants in common, and their, his or her re-
spective executors, administrators or assigns; and I do
hereby direct my said trustees or trustee for the time
being during the respective minority of the said Philip
Lybbe Barrington Potvys, and the other children or
child of the said Anne Phillis PowySy to pay and appljf
all or any part of the respective presumptive shares of
the said Philip Lybbe Barrington PowySf and such
other children or child, of the dividends, interest and
annual proceeds, or of the principal of their respective
shares of and in the said sum of 20,000/., 3/. per cent.
Consolidated Bank Annuities, for and towards the main-
tenance, education or advancement, preferment or es-
tablishment in the world of the said Philip Lybbe Bar-
rington Potoys, and such children or child respectively,
in such manner as my said trustees or trustee for the time
being shall think fit ; and I direct that my said trustees
or trustee for the time being shall lay out and invest the
residue (if any) of such dividends, interest and annual
proceeds in their or his names or name in the purchase
of parliamentary stocks or public funds of Great Britain,
or at interest upon real security in England, to be from
time to time varied and transferred, as they or he shall
think fit, so that the same residue of the said dividends,
interest and annual proceeds may accumulate in the way
of compound interest ; and I will and direct that my
trustees or trustee for the time being shall stand pos-
sessed of and interested in such last-mentioned stock,
funds and securities, and the interest, dividends and
annual proceeds and accumulations thereof, upon and

for

CASES IN CHANCERY.

for the like trusts, intents and purposes as are hereinbe-
fore expressed and contained of and concerning the
share and respective share, whence the same originated,
and the dividends, interest and annual proceeds thereof.
But in case the said Philip Lybbe Barrington Powys
shall not live to attain the age of twenty-one years, and
the said Anne Phillis Powys shall not have any other
child, who being a son shall attain the age of twenty-one
years, or being a daughter shall attain that age or be
married, then my will is, and I do hereby direct, that the
sum of ^,000/., 3/. per cent Consolidated Bank An-
nuities, and the dividends, interest and accumulations
thereof (other than and except such part or parts thereof
respectively as shall have been paid and applied under
the power lastly hereinbefore contained), shall sink into
and form part of my residuai*y personal estate hereinafter
disposed of." And as to all the residue and remainder of
his real and personal estate, property and effects what-
soever and wheresoever, the testator gave and bequeathed
the same unto his wife Phillis , her heirs, executors, ad-
ministrators and assigns respectively, for her and their
own absolute use and benefit.

1857.

The testator died on the 20th of April 1856.

Anne Phillis Powys had three children and no more,
viz., Philip Lybbe Barrington Powys, Julia Blinor
Powys and Edith Mary Potoys, all of whom were by her
husband Philip Lybbe Powys ; and she never had any
other child, who, being a son, lived to attain twenty-one,
or, being a daughter, lived to attain that age or married.

Phillis SteplienSy the wife of the testator William 8te-
phens, survived her husband only two days, and after his
decease duly made her last will, dated the 22nd April
1856, which (omitting formal parts), was as follows :

— " This

CASES IN CHANCERY.

1857.

— '' This is the last will and testament of roe PhiUis
StepkenSt of Prospect Hill, in the county of Berks,
widow : Whereas, I have reason to believe that my late
husband William Stephens has by his will bequeathed to
rae, as residuary legatee or otherwise, certain sums of
moneys in the public funds, shares and other securities,
I, being at this time of a sound disposing mind, and in
perfect possession of my reasoning faculties, though
suffering from bodily afflictions, do hereby give and be-
queath all and every such sums as I am legally em-
powered to dispose of unto the following persons namely
to Charles Stephens^ William Blandy and Charles LaU"
fear in trust to pay the Rev. W. W. Phelps and the
Rev. Francis French and the Rev. J. C Grainer,
1001. each absolutely to Philip Powys and his wife
the same amount and on the same trusts and con-
ditions as are named in my late husband's will to
Philip Powys 1,000/. absolutely to Miss Hathaway
1,000/. absolutely to my niece Emily Greenwood 4,000/.
and to each of her brothers and sisters 1,000/. to my
own brother and sister 1,000/. each. I give to each
of the public or other charities named in my late hus-
band's will the same amount as has been given by him
and the same to each servant as was given by him in
addition to a quarter's wages. I desire my executors,
the aforesaid Charles Stephens, William Blandy and
Charles Lanfear, whom I hereby appoint as such, to pro-
vide for the same amount of pensions they have heretofore
received from me or my late husband. To Harriett
Parsons I give an extra sum of nineteen guineas for her
great attention to my late husband to Miss Sarah
Hooper I give the same sum as my late husband has
bequeathed and aAer paying all my funeral and other
expenses I desire the remainder of my personal estate
to be divided into two equal moieties, whereof one
moiety to be given to Mr. and Mrs. Philip Powys

and

CASES IN CHANCERY.

and their children, on the same trusts as before al-
luded to the other moiety to be equally divided among
the brothers and sisters of my late husband in the
same manner as has been already left by my late hus-
band*s will. I also give 1002. to each of my executors
for their trouble."

1857.

Stepbeni

V.
PoWYi.

The trustees instituted the present suit by claim,
stating that in consequence of doubts which had arisen
respecting the true construction of the will of Phillis
Stephens^ and in particular, whether there was or not an
intestacy as to some part of her residuary estate, they
were desirous that the whole of the personal estates of
William Stephens and Phillis Stephens respectively
should be administered by the Court, for the benefit of
all persons interested therein or entitled thereto.

By the decree under appeal it was declared— that Mrs.
Powys and her children were entitled to a sum of 100/.,
on the same trusts as were, by the will of the testatrix's
husband declared concerning the legacy of 20,000/.
thereby bequeathed in trust for Mrs. Powys and her
children. It was also declared, that in the gift of the
moiety of the residuary personal estate to Mr. and Mrs.
Philip Powys and their children, Mr. Powys's name
ought to be rejected, and that Mrs. Powys and her
children were entitled to such moiety on the trusts de-
clared in their favour in the testator's will as to the
20,000/.

From the decree Mr. and Mrs. Powys and their children
appealed.

CASES IN CHANCERY,

1857.

Mr. JRolt, Mr. Follett and Mr. Dickinson, for the
Appellant.

The interpretation put upon the bequest in the Court
below was not according to grammatical construction^
the intention of the testatrix, or the natural meaning of
the words. The construction which refers the expression
"the same amount'* to the word *'as** which follows is
more natural and grammatical than that which would
refer it to the preceding gifts of lOOZ. But even if the
two constructions were equally probable according to
grammatical construction, the absurdity of supposing that
a testatrix in disposing of property of such magnitude,
and after giving large legacies absolutely, would make a
settlement on Mr. and Mrs. Powys and their children of
a legacy of 100/., would be so great as to lead the Court
to reject such an interpretation. It is true that the tes-
tatrix does not accurately describe the bequest in her
husband's will to which she refers ; but there is a clear
intention to make another bequest exactly similar to it,
whatever it was ; and, by the residuary clause, the testatrix
indicates that she did not intend to describe accurately,
but merely to refer to the disposition in her husband's
will ; for, in the residuary bequest, she assumes children
to be interested under the particular bequest, although
she had not mentioned them. She seems to have sup-
posed that Mr. Powys had an interest, and this sup-
position led to the '' falsa demonstratio" in the particular
legacy, but which does not create here any such am-
biguity as to invalidate the bequest.

They referred to Milsom v. Awdry(a), Ross v. Ross(b),
Cookson V. Hancock {c)y Hutchinson v. Skelton{d), Lum-

ley

(a) 5 Ves. 465.

(b) 2 CoU. 269.

(r) 1 Keen, 817.
(d) 2 Macq. 492.

CASES IN CHANCERY.

ley V. Robins (a), Mayberry v. Brooke (b), Ryall v. Han-
nam (c).

The Attorney-General, Mr. Lloyd and Mr. Rowcliffey
for some of the residuary legatees.

The decision below is not sufficiently favourable to the
Respondents ; for the bequest ought to have been held
void for uncertainty. The testatrix, not having her hus-
band's will before her, supposed him to have made a dis-
position of a particular kind, and made one of her own
with reference to it. He had made no such disposition.
How can the Court say -what she would have done had
she known what the disposition really was ? To do so
would be to decide upon conjecture merely. The prin-
ciples relied upon on the other side apply only when
there is a single object, which will alone answer a de-
scription, in which case an inaccurate addition will not
vitiate the gift. But when the description is by way of
reference there must be incorporated into it so much of
the original document as is referred to, and if that is
done in this case the whole becomes uncertain and con-
tradictory. To say that a gift to a wife, made in such
terms as to exclude the husband, is a gift to him, would
go beyond any legitimate latitude of interpretation.

1857.

They referred to Wood v. The Corporation of Olou-
cester [d).

Mr. Selwyn, Mr. Pole and Mr. Amphlett, for other
parties.

Mr. Rolt, in reply.

(a) 10 Hare, 621.
(6) 25 Law J., Ch. 87.
(c) 10 Beat. 536.

The

(d) 3 Hare, 13i ; 1 H. of L.
Co. 272.

CASES IN CHANCERY.

1857.

The Lord Chancellor.

I cannot say that I agree with the Master of the Rolls
in the construction which he has put upon this will.
The only question appears to me to be whether the con-
struction contended for by the Appellants is the right
one, or whether the bequest is void for uncertainty. For
although I consider that the words ^* the same amount**
might possibly have meant 100/., if there had been no-
thing in the will to indicate a different intention, yet
when we look at the words which follow, ** and on the
same trusts and conditions as are named in my late bus-
band's will,** we find that the sum intended to be given
is one which was to be held on certain trusts. And then,
looking at the residuary clause, we find that the testatrix
gives one moiety of the residue " to Mr. and Mrs. Philip
Powys and their children, on the same trusts as before
alluded to." The trusts meant are therefore for Mr. and
Mrs. Powys and their children, and it is extremely im--
probable, in a will of this description, that so small a
sum as 100/. could have been intended to be so settled.
This might not be of importance, if there were no other
mode of interpreting the will according to ordinary
grammatical construction. There is, however, not only
another mode of so interpreting it, but one which, as it
appears to me, gives an equally grammatical and much
more natural meaning to the words, namely, by con-
struing '' the same amount'* as meaning " the same
amount as is named in my husband's will."

But then the objection is made that there is no trust
in the husband's will for Philip Powys and bis wife. It
is however clear, from the residuary clause, that the
trusts were not supposed by the testatrix to have been
accurately described by her, for she there says, *' one
moiety to be given to Mr. and Mrs. Powys and their

children,

CASES IN CHANCERY. 33

children, upon the same trusts as before alluded to/' 1857.
showing that the trust was intended to include children,
although they had not been previously mentioned. But
then it is said that Mr. Powys takes no interest in the
bequest of 20,000/. under the husband's will, and the
question is whether, notwithstanding that circumstance,
there is in this will a sufficiently distinct reference to the
bequest in the husband's will for the Court to act upon.
I think that there is, although at first I had some doubt
about it. I think that, although the testatrix seems to
have supposed that Mr. Powys took an interest under
her husband's will, which was not the fact, yet as this is
the only bequest in the husband's will to which hers can
be referred, the intention is sufficiently distinct for the
Court to act upon, and that there is not such an am-
biguity as to render the whole bequest void.

I think that the Appellants are right.

Vol. I. D D.J.

84 CASES IN CHANCERY.

1857.

^ .,„, PAIN V. COOMBS.

April 21.

Before The fTlHIS was an appeal from the decree of Vice-Chan-

ctUw Lord cellor Stuart, directing the specific performance of

Cranworth an agreement alleged to have been entered into by the

Lords Jus- Defendant to grant the Plaintiff* a lease of a farm in

TicEs. Wiltshire called Milford Farm, of which the Defendant

A parol ^ee- ^^g tenant for life. The negociations between the parties
ment was en- ° ...

tered into for a Commenced in October 1854, when the Plaintiff* with

wSkhrb^th^' his father, Mr. Georye Pain, had an interview with the
direction of Defendant on the occasion of their inspecting the farm,
lessor, the ^^ ''^^^ occasion it was observed that a projected exten-

proposed ^\q^ q{ j^^ London and South- Western Rail way would pass

tenant in-
structed a soli- through the farm, and the Plaintiff* and his father pointed

to wriUng^"*"^ out to the Defendant the injury which would be caused
The solicitor to the farm by the intersection of it and the severance
terms as stated ^'"ch would be thus occasioned. The Defendant replied

by the tenant, that the injury would not be so great as might be sup-
and afterwards i t^i . . /*> i i i i ^

prepared from posed, because the rlamtiti would have the power of

them a draft underlettint? the lower part of a field which was so inter-
agreement, ^ *

embodying sected, and that he might get 82. an acre, which would

lerms,*andint P^^ ^^^ ^^^^^^ ^^^^" farming it. The Defendant added
it to the lessor, that

who after-
wards, and

without objecting to it, let the tenant into po<(session, and directed the solicitor to
prepare a lease in conformity with the draft agreement, but subsequently objected to
the lease so prepared, and gave the tenant notice to quit. — f/e/c/,

1. That the aelivery and taking of possession was a sufficient part performance of
the agreement, as expressed in the draft, to exclude a defence founded on the Statute
of Frauds.

2. That there being a conflict of evidence on the question whether the covenants
agreed upon had not been already broken, the proper decree was to direct the lease to
be dated at a time antecedent to the alleged breaches, and to require from the Plaintiff*
an undertaking to admit in any action tliat the lease was executed on the day of its
date.

Quart — whether possession taken previously to, hut continued after, a parol agree-
ment, may not be such a part performance as to exclude a defence founded ou the
Statute of Frauds.

CASES IN CHANCERY. 35

that the Plaintiff could do just as he pleased with the 1857.
farm, as he (the Defendant) was going abroad.

On the ^4th of October 1854, an interview took place
between the Plaintiff) the Defendant, and Mr. Henry
Philemon Ewer^ an auctioneer and land agent, who was
employed by the Plaintiff* to look over the farm, and
Mr. Ewer deposed that at this interview the terms of
letting the farm were definitively settled and agreed to
between the Plaintiff* and Defendant, and that, with the
sanction and at the request of the Defendant, the Plain-
tiff* and ^Ar.Ewer instructed Mr. Hodding (who acted as
solicitor for the Plaintiff* and the Defendant) to reduce
the terms of the agreement to writing.

On the 25th of October 1854, the Plaintiff* and Mr.
Ewer told Mr. Hodding that they had arranged with
Mr. Coombs for the Plaintiff* to take the farm called
Milford Farm, and that he was to prepare an agreement.
Mr. Hodding thereupon reminded them that it was the
privilege of the landlord's solicitor to do that, and that
therefore he had better have Mr. Coombs's instructions.
Mr. Ewer, however, said that Mr. Coombs was quite
agreeable, and that the application was made to Mr.
Hodding by Mr. Coombs^s direction. The Plaintiff* and
Mr. EtDer then stated the terms of the agreement to
Mr. Hodding, who took them down in writing as fol-
lows:—

"James George Coombs, Milford, Wilts, gentleman,
and Thomas Pain, brewer. Agreement for a lease.
Farm and lands at Milford in J. G, CV (meaning James
George Coombs) " occupation, called Milford Farm,
about 150 acres arable, 50 acres meadow, barns, yards and
stablings, together with seven cottages and a ten quarter
malt-house (the dwelling-house, garden and orchard ex-
cepted), rent 50^. an acre, including cottages and malt-

D 2 house ;

36 CASES IN CHANCERY.

1857. house; terra, fourteen years from Michaelmas, 1854, if

^ J. G. C. shall so lone live. Coombs to be allowed to

Pain , °

t7. put in the present wheat crop, to be paid for the tillages

***'• and hay, which is to be taken at a valuation raarket
price; straw to be taken at a spending price, Mr. P."
(meaning the Plaintiff) "being allowed sufficient for
litter for his horses. Mr. Pain to have the privilege
of farming the land as he pleases, doing the same in
a good husbandlike manner, keeping it in a good state
and doing no unnecessary waste, and to be at liberty
to dispose of the whole of the produce. Mr. Coombs
to put the whole in repair, Mr. Pain to keep it in
tenantable repair, being allowed rough materials."

A day or two afterwards, Mr. Hodding caused the
following draft agreement to be prepared and sent to the
Defendant: — "An agreement made this day

of 1854, between James George Coombs^ of

Milfordf in the county of Wilts^ gentleman, for himself,
his heirs, executors and administrators of the one part,
and Thomas Pain, of Salisbury, in the same county,
brewer, for himself, his heirs, executors, administrators
and assigns of the other part, as follows, viz., the said
J, G, Coombs doth hereby agree to grant, and the said
Thomas Pain to accept, a lease, of all that farm and
lands, arable, meadow and pasture, containing, by estima-
tion, 200 acres more or less, and called Milford Farm,
together with the barns, yards, stables, and other buildings
and premises thereto belonging, and also seven cottages
or tenements, and a ten quarter malt-house near or ad-
joining the said farm, lands and premises (except the
dwelling-house, and the garden and orchard belonging
to the same, and now occupied by the said^. G. Coombs),
all which said premises are situate, lying and being at
Milford aforesaid, and are now in the occupation of the
said James G. Coombs, or his undertenants ; to hold the

same

CASES IN CHANCERY-

same for the term of fourteen years (if the said James G.
Coombs shall so long live), from the twenty-ninth day of
September now last past, at the yearly rent of 500/.,
clear of all rates, taxes, charges and assessments what-
soever, parliamentary, parochial or otherwise (except
the land tax and quit rent), to be paid half-yearly on the
25ih day of March and the 29th day of September in
every year, the first payment thereof to begin and be
made on the 25th day of March now next ensuing ; and
the said indenture of lease shall contain the following
covenants upon the part of the said Thomas Pain (that is
to say), to allow and permit the said J, G, Coombs to
put in the present wheat crop ; to pay for the tillages
and hay upon the said premises at a valuation to be made
in the usual manner, the hay being valued at a market
price ; also to pay for all the straw that shall be left in
and about the premises by a valuation in like manner, the
same being valued at a spending price, (the said Thomas
Pain^ however, being allowed sufficient straw for the
litter for his horses) ; to permit the said J, G, Coombs
to hold over the several meadows, called respectively

and (a), till Lady day next

(he paying or allowing the said Tliomas Pain for the
same at the rate of 50^. per annum, from the 29th day
of September now last past for each acre, and in that
proportion for any less quantity than an acre) ; also to
hold over the barns and the farm yard till Lady day next,
the said T, Pain having a right of way over the farm-
yard to the stables and other buildings ; to till, cultivate
and manage the said lands in a good and husbandlike
manner; to keep and preserve the buildings, gates, stiles
and fences, belonging to the said premises in good and
sufficient repair during the said term, except the same
be damaged by fire or any inevitable accident, and the
same being first put in good and tenantable repair by

the

(a) This was left io blank in the draft.

38 CASES IN CHANCERY.

1857. the said J. G. Coombs as after mentioned ; not to grub
up, destroy, cut or injure any of the trees, woods or under-
woods, growing on the said premises except as hereinafter
mentioned : nor to plough, break up or convert in tillage,
any of the pasture lands ; to permit the said J. G.
Coomhs^ or the next tenant of the said premises, from
and after the 24th day of June, in the last year of the
said tenancy, to enter into and upon the said arable
lands in course for a wheat crop to prepare and sow the
same ; also to permit him or them to sow together with
the last year's crop of him the said Thomas Pain such
quantity of clover, rye or other grass seeds, as the said
J, G, Coombs, or the next tenant of the said premises
shall think proper ; and that he the said ITiomas Pain
shall and will harrow in the same grales, in a good and
husbandlike manner : and to leave all the manure which
shall be made or produced during the last year of the
said tenancy, and from the last year's crop in the bartons
and backsides of the said premises, for the use of the
next tenant or tenants of the said premises ; and also to
cut and plash the hedges at proper ages and seasons,
and make and throw up the ditches in a good and hus-
bandlike manner; and a proviso for the re-entry of the
said J, G, Coombs, in case of non-payment of the rent
for the space of twenty-eight days after either of the
said days of payment, or of the non-performance or non-
observance of the covenants, or of the bankruptcy or in-
solvency of the said Thomas Pain ; and that there shall
be contained the following covenants on the part of the
said J. G. Coombs, that is to say, to pay or allow the
said Thomas Pain, after the rate and in manner afore-
said, for the said several meads, called
and (a), to be held over till Lady

day next, as aforesaid, and in case any portion of the
lands coloured (a) on the

map

(«) These blauks were in the draft agreement.

CASES IN CHANCERY. 39

map or plan hereto annexed^ shall at any time during 1857.
the term be taken or required by any Railway Com-
pany, he will pay or allow the said Tliomas Pain for the
same after the rate aforesaid, and that no further land shall
be given up or sold to any Railway Company, without
the license and consent in writing of the said Thomas
Pain, for that purpose first had and obtained ; to forth-
with put all the buildings, gates, stiles, pales and fences
of and belonging to the said premises in good and
tenantable repair ; to allow the said Thomas Pain
(subject nevertheless as is herein contained) to farm,
manage and cultivate the said farm and lands, and to
dispose the produce thereof as he may think proper, he
keeping the same in a good state, and committing no un-
necessary waste; also to permit and allow him to cut un-
derwood and brushwood, and lop all such pollard trees
as have been usually lopped and topped, and which shall
not be of less growth than seven years for reasonable
estovers, and as much rough timber as may be needful
for the repairs of the said premises ; also for quiet enjoy-
ment by the said Thomas Pain^ of the said premises
during the said term, upon payment of the rent and ob-
servance and performance of the covenants : also to
allow the said Thomas Pain the use of the barns and
bartons of the said premises, until the 25th day of March
next, after the end of the said term, for the purpose of
threshing out the last year's crop of corn and grain, and
for spending and feeding out with cattle, the straw, fodder
and horse-meat therefrom, which is to be left in the bar-
tons and backsides of the said premises for the said J.
G. Coombs, or the next succeeding tenant or tenants of
the said premises, he or they paying or allowing for the
straw by valuation at a spending price."

On the 3rd oi January 1855, the Defendant delivered
possession of the farm to the Plaintiff, who had since

remained

40 CASES IN CHANCERY.

1857. remained in possession of it. On the lUth of February
1855y the Defendant called on Mr. Hoddin^y and said
that the agreement was right, and that the lease might
be prepared in conformity with it; and on Mr. Hod-
ding suggesting that the agreement had better be en-
grossed and signed, the Defendant said there was no oc*
casion for that and the lease too.

On the 26th and 27th of February^ and on the 20th
of March in the same year, Mr. Hodding had interviews
with the Defendant respecting the land to be taken by
the Railway Company, and on the last of these occasions,
the Defendant wanted to take away the draft lease, but
Mr. Hodding told him that it was in such a rough state,
that he had better wait and have the fair draft.

Mr. Hodding then caused a fair copy of the draft
lease to be prepared, and on the 22nd of March sent it
to the Defendant, who on the 27th called on him, and
said that he thought it not in accordance with the agree-
ment, and wished it altered in one or two respects.
Mr. Hodding thereupon told him that he believed it .to
be strictly in accordance with the instructions, and pro-
duced the draft agreement. After some conversation,
Mr. Hodding advised the Defendant to refer the lease
to a Mr. Gilbert y with the agreement, and let him see,
whether they were not strictly in accordance with each
other, and with the instructions as previously taken down.
The Defendant took the drafts away, and on the 29th of
Marchy a Mr. Beckingsale brought back the draft lease,
and suggested several alterations, to which Mr. Hodding
said that he thought the Plaintiff would not consent, as
they were not in accordance with the original terms.

On the 3rd of April 1855, Mr. Hodding was sent for
to Mr. Paints brewery, where he met the Plaintiff and
Defendant, who told him they had arranged for the land

Pain

CASES IN CHANCERY. 41

to be given up to the Railway Company, and they wished 1857.
him to draw up an agreement for them to sign at once
for that purpose. He accordingly drew out the following
agreement, which they signed : — Coombs.

^' It is this day understood and agreed between us, the
undersigned James George Coombs and Thomas Pain^
that the said James George Coombs shall be at liberty to
close with the London and South-Western Railway Com-
pany for the sale of the land to be taken by them as
marked on the plan deposited by them and sanctioned
by parliament, at such price as he may think proper;
and that the said Thomas Pain shall, when required by
the Company or their agents, give up the possession of
the same to them without requiring any remuneration for
the same, and without regard to any produce or crops
that he may then have on the same, further than the right
of removing or using such produce, if fit. And in con-
sideration thereof the said James George Coombs has
given to the said Thomas Pain a receipt for 475/., the
amount of the valuation of the farming stock and pre-
parations on the land and premises, now rented by the
said Thomas Pain^ and in discharge of his claim on the
said Thomas Pain for the same. And it is hereby
agreed, that the said Thomas Pain shall be at liberty to
use the said land until the same shall be required by
the Company ; and that if no land at all shall be taken
or agreed for by the Company during the time that the
said Thomas Pain shall be the tenant, then that the
receipt before mentioned shall be of no effect, but the
claim of the said James George Coombs for the said sum
of 475/. shall be considered as unsatisfied. Witness our
hands this 3rd day of April 1855.
Witness

Henry R. Hodding, James G. Coombs^

Solicitor, Salisbury, Thomas Pain.''

The

4S CASES IN CHANCERY.

1857. The following was the receipt above referred to: —

'* Salisbury, April 3rd, 1855. Received of Mr.
Thomas Pain the sum of 475/. for the farming stock and
preparations on the farm at Milford, taken by him as my
tenant^ and sold to him on the valuation of Messrs. Ewer
and Beckingsale. 4/751. James G. Coombs."

On the 10th of April 1855, Mr. Beckingsale called
on Mr. Hodding, and said that the Defendant wished
particularly to have the lease completed. Mr. Sod-
ding thereupon gave him the draft, and he promised to
write his observations upon it and return it to Mr. Hod"
ding.

Differences arose between Mr. Hodding and Mr.
Beckingsale as to the terms of the lease, and, after several
communications between them, the Defendant on the
17th of Jvly 1855, wrote to Mr. Hodding as follows : —
" I wish the lease with Mr. Pain completed at once
according to the draft returned you through Mr. Becking^
sale, unless Mr. Pain prefers relinquishing the farm, if
so, I am quite willing to enter into the necessary arrange-
ment for that purpose ; let the matter be settled one way
or the other during the present week.

James G. Coombs.**

Mr. Hodding replied, that the Plaintiff was away, and
would not return before the end of the week, but that it
was not probable that he would consent to the alterations
in the draft.

On the same day the Defendant wrote to Mr. Hod-
ding as follows : — " The alterations in the lease made by
Mr. Gilbert, I believe, are quite consistent with my

original

CASES IN CHANCERY. 43

original instructions to you;" and, after noticing some 1857.
alleged mismanagement of the farm by the Plaintiff) the
•letter continued thus, — " under these circumstances, as
you have hitherto acted as solicitor for both parties,
would it not be well for you to arrange for putting an
end to the tenancy, and thus save further misunder-
standing. James G. Coombs"
" H. JR. Hodding, Esq."

On the 27th oi July 1855, the Defendant, in reply to a
letter of Mr. Hodding^ wrote to him as follows : — " I am
obliged by your letter and draft lease. I have no doubt
everything can be settled to Mr. Paints satisfaction, for
it does appear to me to be much ado about nothing. As
I agree to find all materials, Mr. Pain has simply the
labour, which I will exonerate him from for the trifling
sum of 5/. per annum, and release him from any re-
sponsibility, either during or at the end of his term. Any
trifling horse labour he would not object to. You are
quite right in saying, I told Mr. Pain, senior, when he
complained of the injury done by severance by the rail-
road in Great Field, it would not be much, for the se-
vered part might be let at a good rent. I freely consent
to this exception. I have no wish to put an end to the
lease, and have, therefore, no terms to offer. If Mr.
Pain does wish it, let him make a calculation of what
he requires, and, if fair, I will give him a cheque for the
amount, and thus end our troubles. I should think ^
few hours would do it.

" N.B. — If Mr. Pain really wishes to put an end to the
lease, it must be done immediately, as an alteration
of management is necessary. J, G. C"

On the 12th o( March 1856, the Defendant served on
the Plaintiff* a notice in writing, signed by the De-
fendant,

U CASES IN CHANCERY.

1857. fendant^ requiring the Plaintiff to quit and deliver up
on the 29th o( September 1856, the possession and oc-
cupation of the farm, and subsequently brought an action
of ejectment against the Plaintiff, whereupon the Plaintiff
instituted the present suit, for specific performance and
an injunction to restrain proceedings in the action.

The cause was heard before the Vice-Chancellor on
the 17th February 1857, when his Honor made a de-
cree, declaring, that the Plaintiff was entitled to a
specific performance of the agreement or contract in the
Plaintiff*s bill mentioned, on the footing of the exhibit
marked B (a), proved in the cause, and ordered that a
lease should be settled by the Judge to whose Court
the cause was attached, between the Plaintiff as lessee,
and the Defendant as lessor, of the land and premises
mentioned in the exhibit marked B, and for the term,
and at the rent in the said exhibit also mentioned ; and
that in settling the same, regard was to be had to the
terms and conditions in the exhibit B mentioned ; and
the Court also ordered, that the Plaintiff and the De-
fendant should execute the lease, so to be settled as afore-
said, and that the Plaintiff should execute the counter-
part thereof respectively, within twenty days after the
date of the Chief Clerk's certificate to be made in pur-
suance thereof; and the Court further ordered, that ex-
ecution on the judgment given by the Defendant, in the
action of ejectment brought by the Defendant against the
Plaintiff, should be stayed by perpetual injunction, and
that it should be referred to the proper Taxing Master,
to tax the Plaintiff his costs of the suit, including those
of a motion for an injunction, and also his costs of the
action of ejectment; and it was ordered, that the De-
fendant should pay such costs to the Plaintiff Thomas

Pain,
(a) Tbis was the drafl agreement.

CASES IN CHANCERY. 45

Pain, within one month afler the date of the Taxing 1857.
Master's certificate.

The Defendant appealed from this decree.

Mr. Malins and Mr. Townsendj for the Plaintiff.

The Defendant^ when he delivered possession to the
Plaintiff, must be taken to have done so on the terms of
the draft agreement, which had been sent to him by Mr.
Hoddififf. There is, therefore, sufficient evidence of the
terms of the agreement, and there has been part per-
formance. With respect to a defence which is set up
of the covenants having been broken, the evidence shows
that there has been no substantial breach of them.

They referred to Gregory v. Mighell (a), Mundy v.
Jolliffe (J), Dawell v. Dew (c), Gourlay v. The Duke
of Somerset (rf), Lovat v. Ranelagh (c).

Mr. Bacon, Mr. Giffard and Mr. Toulmin, for the
Appellant.

There is no evidence of there having ever been a dis-
tinct set of terms agreed to by both the parties. There
has been negociation and nothing more. The possession
was with a view to a tenancy, the terms of which were
never settled. The terms are stated in the bill to have
been those of the first memorandum taken down by Mr.
Hodding. But the terms which the Vice-Chancellor
has directed to be performed are those of the subse-
quently-prepared draft, which differ from the former, and
to which neither the assent of the Defendant, nor that of

the

(a) 18 Vtt. 328. (</) 1 VeM, 8f B. 68.

(6) 5 MyL if Cr. 167. {e) 3 Vet, ^ B, 24.

(f) 1 F * C. C. C. 345.

46 CASES IN CHANCERY.

1857. the Plaintiff is proved to have been given at any time,
and certainly not before possession was taken. The
Court will not go beyond the cases already decided in
dispensing with the provisions of the Statute of Frauds,
and if possession is taken before any agreement is come
to, and it should even be proved that a parol agreement
was afterwards made, the possession could not be con-
sidered a part performance of such an agreement, so as
to take the case out of the Statute of Frauds ; nor has
any case gone to the extent of so deciding. In the same
manner, if possession were taken on the terms of a parol
agreement, which were afterwards abandoned or varied,
and new parol agreement were entered into, there would
in such a case be no agreement which the Court could
enforce. It could not enforce the original agreement, for
that would have been rescinded, nor could it enforce the
new one, for the possession taken under the abandoned
agreement could not be taken as a part performance of
the new one. — [The Lord Justice Knight Bruce.
Is there any authority for the proposition that the con-
tinuance in possession after a parol agreement, or after a
variation of a parol agreement, may not be part perform-
ance of a contract with reference to the Statute of Frauds?
I am not persuaded at present that it may not.] There
may not be any authority to that effect, but to hold the
affirmative of the proposition, would, we submit, be a
considerable extension of the exceptions hitherto made
from the provisions of the Statute of Frauds. The de-
cided cases do not go to a possession taken antecedently
to the alleged contract. All that was settled here was,
that 50^. a year should be paid for the land. That
would be a good contract for a tenancy from year to year,
and on it alone the possession must be held to have been
taken. All the other evidence relates to what took place
subsequently, and although subsequent communications
may be referred to, to ascertain what the contract was

antecedently

CASES IN CHANCERY. 47

antecedently to the taking of possession , they cannot for 1857.
the purpose of showing any subsequent agreement.
Moreover, it is clear, that the Plaintiff has committed
breaches of the stipulations contained in the alleged
agreement on which he relies. — [The Lord Chancel-
lor. May not any remedy to which the Defendant is
entitled on that ground be obtained by antedating the
lease ?] The point was raised in Mundy v. Jolliffe (a),
but there appears to be no form of decree, which could
secure to the Defendant an adequate remedy. The rule
has hitherto been to refuse a specific performance, where
there has been a breach of covenant, which would have
entitled the lessor to re-enter, if there had been a lease.

They referred to Brennan v. Bolton (J), O'Reilly v.
JTiampson (c). Wood v. Midgley (d).

Mr. Malins was not called on to reply.

The Lord Chancellor.

Some of the questions which have been argued do not
appear to me to arise in this case ; for, attending to the
evidence, I consider the effect of it to be that Mr. Coombs
let Mr. Pain into possession of the property, having in
his hands the agreement marked B, and delivered the
possession on the terms expressed in that document.
Mr. Ewart states, that the terms of letting were defi-
nitely settled in October 1854, and that it was agreed
between the Plaintiff and the Defendant, that the Plain-
tiff and the witness should instruct Mr. Hodding to com-
mit the terms to writing. Then Mr. Hodding states,
that he was instructed by the Plaintiff and Mr. Ewart to

prepare

(a) 5 Myl if Cr. 172; and see (6) 2 Dr. 4- War. 349.

Crtgory y. Wilton, 9 HarCy 683 ; (f ) 2 Cos, 271.

Ltwii V. Bond, 18 Beav. 85. {d) 5 Ik Gei, Mac, 4 GorAl,

Pain

48 CASES IN CHANCERY,

1857. prepare an agreement, and that he prepared according to
their instructions the draft marked B, and sent it to the
Defendant. I infer from Mr. Ewarfs evidence that the

Coombs. Plaintiff was not intended to take possession until the
terms had been put into writing. It is said, that there
is no evidence as to when the Defendant received the
draft. But Mr. Hodding states, that he sent it a day or
two afterwards. When, therefore, we find the Plaintiff
two months afterwards let into possession, and the De-
fendant directing a lease to be prepared, according to the
agreement, the inference is to my mind irresistible, that
Mr. Coombs had the agreement marked B before him,
when he let the Plaintiff into possession. There is no
doubt that a man may, in March, acknowledge in writing
an agreement into which he entered in the previous
January ; and the direction to prepare a lease amounted
to an acknowledgment of the terms on which the Plain-
tiff had been put in possession. That, I think, resolves
the whole question. There was a draft of an agreement
(whether in exact conformity with the document marked
A (a) or not, or with what was meant by it, appears not
material), and, with that draft in his hands, the Defend-
ant put the Plaintiff into possession. I think that he
must grant the Plaintiff a lease in conformity with that
draft.

When the lease is granted, it may be that Mr. Coombs
may be entitled to re-enter for breach of covenant, and
the proper way of giving him an opportunity of trying
that question, if he shall be advised to do so, will be by
putting the Plaintiff upon the terms of not adverting to
the date of the lease, so as to defeat on that ground any

action

(a) This was the memorandum pared the drafl agreement, marked
of the terms taken down by Mr. B.
Hodding, and from which lie pre-

CASES IN CHANCERY. 40

action which Mr. Coombs may bring against him. On 1857.

the Plaintiff submitting to those terms, the appeal must p""

be dismissed with costs. t;.

Coombs.

The Lord Justice Knight Bruce.

On the Respondent undertaking to admit in any action,
that the lease was executed on the day of its date, let the
appeal be dismissed with costs.

The Lord Justice Turner concurred.

AGNEW V. POPE.

AprU 22.
rriHIS was an appeal by the Defendant William Agnew Before The
^ Pope from a decree of Vice-Chancellor Stuart, ^Ckan^

^ ... cellor Lord

declaring that a codicil to the will of William Agnew Cranworth

revoked not only certain original legacies given by the ° JuaricEB^'
will, but also the gift of accruing shares in other legacies, a testator gave

to each of nis

The testator by will, dated 30th of June 1826, after legacy of

bequeathing a legacy of 1,500Z. absolutely to each of his 1»500/., and
* o o ^ ' J g^yg n legacy

five of 6,500/. upon
trasts for each
of them and her children ; and in the event of any of the daughters dying without
having children who should attain a vested interest, he directed that the 6,500/. legacy
of each of such last-mentioned daughters should go over to the other daughters and
their children, in equal shares per stirpes, their respective shares to be held upon the
same trusts for them and their respective children as were declared concerning their
original legacies of 6,500/. Afterwards, on the marriage of £. ^., one of his daughters,
he settled on her by deed 8,000/. By a codicil reciting the gift of the two sets of
legacies and the advance of the 8,000/., and that the testator intended it to be in satis-
faction of the two legacies of 1,500/. and 6,500/. bequeathed to or for her benefit, at
aforesaid, the testator revoked the said legacies of 1,500/. and 6,500/. in and by his
said will given and bequeathed *' to or for the benefit of" his said daughter E, A,,
** and otherwise as in the said will" was mentioned.

He/r/, that the codicil revoked only the original legacies of 6,500/. and 1,500/. to
E. A. and her children, and not their contingent interest under the gift over of the other
6,500/. legacies.

Heldy also, that though the trusts of the accruing shares in favour of £. A, and her
children were declared only by reference to the trusts of their original legacy, the revo-
cation of the original legacy did not invalidate the declaration of the trusts of the
accruing shares.

Vol. I. E D.J.

50 CASES IN CHANCERY.

1857. five daughters who had attained twenty-one, and a
similar legacy to each of his two infant daughters upon
their attaining that age or marrying, with a provision for
the application of the income in the meantime, proceeded
as follows : —

" I give and bequeath unto my sons James Agnew
and Charles Agnew, and unto my friend Octavius
Wigram, merchant, their executors and administrators,
as many sums of 6,500/. sterling as I shall have daughters
living at my decease, to carry interest at the rate of 5L
for every 100/. by the year, from the date of my death
until the actual payment or investment thereof respec-
tively, upon trust that my said trustees and the sur-
vivors" &c. *' do and shall invest each such sum of
6,500/. in their or his names or name in" &c. " And I
declare that my said trustees and the survivors'* &c.,
'^ shall stand possessed of each of such sums of 6,500/.
and the stocks, funds and securities in or upon which the
same shall be invested, and the interest,'' &c. " thereof,
upon trust for or for the benefit of each such daughter
and her children, and with, under and subject to such
powers, provisoes, declarations and directions, and with
such trusts or limitations over as are hereinafter expressed
and declared of and concerning the same."

The testator then, after making provision for the case
of daughters who should neither attain twenty-one nor
marry, directed the trustees to stand possessed of the
6,500/. legacies of those daughters who should attain
twenty-one or marry upon trusts expressed as follows : —
** Upon trust during the then residue of the life of each
of my said daughters, who have attained or who shall
attain the age of twenty-one years or marry as aforesaid,
to pay the interest, dividends and annual proceeds of her
legacy or sum of 6,500/. and the stocks, &c. in or upon

which

CASES IN CHANCERY. 51

which the same shall or may be invested, into the proper 1857.

hands of such daughter ** [Here (Allowed limitations

to the separate use of the daughter for life without power
of anticipation.] '^ And from and after the decease of
such daughter the said sum of 6,500Z. hereby provided
for her, and the stocks, funds and securities in or upon
which the same shall be invested, shall be in trust for the
child or children of such daughter by any husband or
husbands with whom she may intermarry lawfully to be
begotten, who being a son or sons shall live to attain
the age of twenty-one years, and who being a daughter
or daughters shall live to attain the age of twenty-one
years or be married, which shall first happen, and to be
equally divided between or amongst the same children, if
more than one, equally as tenants in common. And in
case there shall be only one such child, who being a son
shall live to attain the age of twenty- one years, or being a
daughter shall live to attain that age or be previously mar-
ried, in trust for such one child, and to be paid, assigned
and transferred to him her or them respectively, at or
upon the same respective ages or times, or as soon there-
after as the preceding particular interest shall expire."

The testator then declared, that in the event of any of
his daughters dying without having children who should
become entitled under the trusts in their favour, then his
trustees or trustee for the time being should, " from and
after the decease of each such last-mentioned daughter,
and after the failure and determination of the trusts
hereinbefore declared for the benefit of her children as
aforesaid, stand possessed of and interested in the sum
of 6,500/., hereby intended for each such daughter, and
the stocks, funds and securities in or upon which the same
shall for the time being be invested, upon trust for the
survivors or survivor of them my said daughters, and the
child or children of such of my said daughters as shall

E2 be

52 CASES IN CHANCERY.

1857. be then dead, and the same shall, if more than one such
surviving daughter, be equally divided between or amongst
such survivors or survivor of them, and the child and
children of such of them as shall be then dead as afore-
said, share and share alike (such children taking only
the share or shares which my deceased daughter or daugh«
ters would have been entitled to for life if living), and the
surviving and accruing shares of each of the said legacies
or sums of 6,500/., and the stocks, funds and securities
aforesaid, and the interest, dividends, annual or other
produce thereof, shall be held by my said trustees and
trustee for the time being, upon all such and the same
trusts, and under and subject to the same and the like
restrictions, powers, provisions, conditions and directions
as are hereinbefore directed in respect to the original
legacy or sum of 6,500/. of each such daughter, and the
stocks, funds and securities in or upon which the same
shall be invested as aforesaid, and the dividends, interest,
annual or other proceeds thereof; and such benefit of
survivorship and accruer to my said daughters respectively,
and their respective children as aforesaid, shall extend
as well to the surviving or accruing part or share, parts
or shares, to which either of ray said daughters respec-
tively, and their respective children, shall become en-
titled under the trusts herein declared, as their said re-
spective original legacies of 6,500/. are hereby made
subject and liable unto."

The testator made a codicil dated 27th March
1827, which, so far as is material, was in the following
words : — " Whereas I have in and by my said will
given to my daughter Eleanor Agnew the sum of 1,500/.
sterling, to be paid, with interest, as in my said will
is mentioned, and I have by my said will given and
bequeathed to the several persons in my said will for
that purpose named, so many sums of 6,500/. as I

shall

CASES IN CHANCERY. 63

shall have daughters living at my decease, to carry inte- 1857,
rest at the rate of 51. per cent, per annum, upon trust
to invest each sum of 6,500/. as in my said will is ex-
pressed, and to stand possessed of each such sum of
6,500/., and the stocks, funds or securities in or upon
which the same shall be invested, and the interest, divi-
dends, annual or other produce thereof, upon trust, as
concerning the legacy or sura of 6,500/. of each of my
said daughters, upon the trusts to or for the benefit of
my said daughters respectively, or their respective fa-
milies, in my said will expressed ; and whereas since the
date and execution of my said will I have made a provision
for my said daughter Eleanor Agnew, and I intend that
the same shall be in lieu and satisfaction of the said two
legacies of 1,500/. and 6,500/. bequeathed to or for her
benefit as aforesaid, now, in pursuance of such my in-
tention, that the provision so made for my said daughter
Eleanor Agnew shall be in lieu and satisfaction of the said
two legacies of 1 ,500/. and 6,500/. bequeathed to or for
her benefit as aforesaid, I do by this codicil to my said
will revoke and make void the said legacies of 1,500/.
and 6,500/. in and by my said will given and bequeathed
to or for the benefit of my said daughter Eleanor Agnew
and otherwise as in the said will is mentioned.''

This codicil appeared to have been made by anticipa-
tion with reference to an arrangement which was then
in contemplation, and was shortly afterwards completed
by an indenture of settlement dated ^th July 1827, and
made in contemplation of the marriage of Eleanor Agnew
with the Rev. Stephen Pope. By this deed the testator
transferred a mortgage for 8,000/. to the trustees therein
named. The trusts declared were for the intended hus-
band for life, then for the wife for life, then for the
children of the marriage, and in default of children for
the wife absolutely, if she should survive her husband,

but

1857.

AONEW

V.
POPR.

CASES IN CHANCERY.

but if not, tlien upon such trusts as she should appoint
by will, and in default of appointment, in trust for the
persons who would have been entitled as her next of kin
if she had died intestate and unmarried.

The testator died not long af\er the execution of this
deed, leaving his seven daughters surviving him. Mrs.
Pope died in 1831, leaving the Appellant W, A. Pope
her only child. Three of the other daughters died with-
out having had issue. The trustees took the opinion of
Vice-Chancellor Wigrcan, then at the bar, upon the
question, whether the Appellant was entitled to share in
these sums. His opinion was in the affirmative, and the
trustees acted upon it as regarded the application of the
income, until it became necessary to divide the capital of
those sums, when, some doubt being still felt, they in-
stituted the present suit to obtain the opinion of the
Court on the point. Vice-Chancellor Stuart decided,
that upon the true construction of the codicil, the 8,000/.
settled was to be taken in satisfaction of every benefit
to which Mrs. Pope and her children would have been
entitled under the will, whether by way of original gift
or of accruer, and that the gifts over of the legacies of
her deceased sisters took effect as if she and her family
had never been objects of gift: so that the legacies
went wholly to the surviving sisters and their families.
W. A. Pope appealed.

Mr. Bacon and Mr. Charles Hall, for the Plaintiffs,
opened the case.

Mr. Malins and Mr. Knox Wigram for the Ap-
pellant

We contend, that upon the true construction of the
codicil there was a revocation only of the original legacies

given

CASES IN CHANCERY. 55

given by the will to Mrs. Pope and her children, and 1857.

not of the benefits which she or they might take by way ^^T^"^^^

agnew

of accruer. v.

To ascertain the testator's intentions the nature of
the interests given by the will roust be looked at. The
provision for Mrs. Pope was partly certain, partly con-
tingent The certain part was a legacy of 1,500Z. given
absolutely, and one of 6,500Z. settled. The contingent
part was a contingent interest in the legacies of 6,500/.
provided for the other sisters and their families. The
testator on Mrs. Popes marriage advanced 8,000/., a sum
equal to the amount of the certain provision. Apart from
any expression of intention, this would adeem the benefit
given by the will to the extent of 8,000/., but no further,
Pym V. Lockyer (a), and this is what the testator was
most likely to intend. He no doubt intended a benefit
to Mrs. Pope by the advancement on her marriage, but
the decree of the Vice-Chancellor makes it have the
opposite effect. It was urged before him that the tes-
tator could not intend Mrs. Pope to have accrued shares
in the other sums of 6,500/., when her sisters had lost
the chance of accruer from hers ; but the ultimate trust
in the settlement might well be considered by him to
provide a sufficient substitute for the clause of survivor-
ship and accruer as regarded this provision.

But we need not resort to anything beyond the lan-
guage of the codicil itself. The testator recites the two
classes of gifts to Mrs. Pope, he then states his intention
as to the effect of the provisions he was making for her,
and then in terms revokes, not all the benefits given her
by his will, but merely the two legacies. All we ask is,
to have the operative words of the codicil taken in their

natural

(«) 5 M. 4- C. 29.

Pope.

56 CASES IN CHANCERY.

1857. natural sense, and the recitals show that the testator did
not intend them to have a more extensive meaning. The
words " or otherwise," cannot refer to the accruing
shares, they are used with propriety as indicating that
the 6,500Z. had not been given to Mrs. Pope abso-
lutely.

It was urged before the Vice-Chancellor, that as the
original legacy of 6,500/. was gone, the trusts of the ac-
cruing shares, being declared only by reference to it, must
fail, but that is not so ; Darley v. Langwortliy (a).

Mr. Craig and Mr. Cottony for the surviving daughters
of the testator, and the children of those who had chil-
dren.

We contend that the testator has sufficiently expressed
an intention, that there should be no accruer in favour of
any daughter who had no original share ; for the share
accruing to any daughter is to be held upon the trusts
declared concerning her original legacy, and this cannot
apply to the case of a daughter who has no original
legacy. It cannot have been intended, that a daughter
who has no original legacy from which the other daugh-
ters or their issue can derive benefit by way of accruer,
should take anything by way of accruer from their
legacies. The very fact of the testator's making a codicil
strengthens our case, for if only an ademption to the ex-
tent of the advancement made by the settlement was in-
tended, a codicil was wholly unnecessary, since the law
would have treated that advancement as a satisfaction pro
tanto. Moreover, we contend, that having regard to the
codicil, Mrs. Pope does not rank among the daughters
mentioned in the will as objects of gift. There is no

gift

(a) 3 Bro. P. C. 359.

CASES IN CHANCERY. 57

gifl to each daughter nominatim. The testator by his 1857.
will bequeaths to his trustees as many sums of 6,500/. as
he should have daughters living at his death. But the
legacy to Mrs. Pope and her children having been taken
away by the codicil, the testator clearly has not, by
the two instruments together, given as many sums of
6,500/. as he should have daughters living at his death,
and the only way of making the instruments work to-
gether is to read the gift thus — " I bequeath to my trustees
as many sums of 6,500/. as I shall have daughters living
at my decease, except my daughter Mrs. PopeJ* Mrs.
Pope is thus struck out of the will, and the case stands
as if she had died in the testator's lifetime.

Mr. Malins in reply.

The Lord Chancellor.

It is always very difficult on a will that is not very
artificially framed to be quite certain that we come to
a construction which effectuates the intentions of the
testator ; but it is, I think, in this case tolerably clear, that
all the testator meant to do was to deprive the daughter
who married in his lifetime of the 8,000/. which was
given to her by his will, he having settled upon her by
deed a like amount.

The testator, by his will, had given to each of his seven
daughters what I may not improperly describe as three
benefits: 1st. An absolute legacy of 1,500/.; 2ndly, a
legacy of 6,500/. to be settled upon herself and her chil-
dren ; and Srdly, a contingent interest in the 6,500/. of
each of the other daughters who should happen to die
without leaving issue.

Now the testator having given those three benefits to

each

58 CASES IN CHANCERY.

1867. <?ach of his daughters by will, by his codicil, after reciting
what he had done, goes on to say : " And whereas srnce
the date and execution of my said will, I have made a
provision for my said daughter Eleanor Agnew, and I in-
tend that the same shall be in lieu and satisfaction of the
said legacies of 1 ,500/. and 6,500/. bequeathed to or for
her benefit as aforesaid, now, in pursuance of such my
intention, that the provision so named for my said daugh-
ter Eleanor Agnew shall be in lieu and satisfaction" — of
what ? Of what I have given to her by my will ? No: —
'' shall be in lieu and satisfaction of the said two lega-
cies of 1,600/. and 6,600/. bequeathed to or for her be*
nefit as aforesaid, I do by this codicil to my said will,
revoke and make void the said legacies of 1,500/. and
6,500/." If I could have come to the conclusion, that
reasoning on the probable intentions of mankind, I
might depart from the language the testator has used, I
still should not depart from this language. I think that
in all probability, the language accurately represetits
what he meant and all he meant. But, even if that were
not so, I confess I am so very much addicted to the
modern rule of adhering strictly to the language, tbi^ I
doubt whether anything would have induced me to de^
part from the strict construction of the words which this
testator has used. Having given three benefits to his
daughter, he recites that he has given her since the date
of his will something which he considered to be an
equivalent to two of those benefits, and, therefore, he re-
vokes those two benefits. It appears to me, that this
leaves her right under the third benefit exactly where it
was before.

It has been argued agajnst this construction, that the
result of it is, that this daughter takes a contingent inte-
rest in the legacies of her sisters, while those sisters take
no interest in her 6,500/., because, by the settlement,

provision

CASES IN CHANCERY. 69

provision was not made, that in the event of her dying 1857.
without issue the settled fund should go over to the
other six daughters and their issue. That is true, and if
there had been anything to show that the testator in-
tended that a daughter should not take unless she gave,
or if the case had rested on contract, there would have
been some weight in the argument. But this is a mere
case of voluntary gift, and cujus est dare, ejus est disponere.
The testator having absolute power over the whole of the
fund bequeathed to his daughters, chooses on the mar-
riage of one of them to make a settlement of her share of
it, and does not provide, that in the event of that married
daughter dying without issue, her share shall go to the
other daughters and their issue. He does, however pro-
vide, that if she has no issue to take it, and if she does
not dispose of it, it shall go to her next of kin, a provision
which he no doubt thought sufficient to meet the exi-
gencies of the case.

If I had not taken this view of the case, still I do not
think that I could have concurred in the conclusion at
which the Vice-Chancellor has arrived, that the accruing
shares which the Appellant would have taken under the
will if it had stood alone, are given to the other sisters and
their issue. I am disposed to think, that if the Appellant
were held to be wrong in his contention, there must be
a lapse as to those shares. That, however, is a matter of
speculation, which I need not pursue, being of opinion,
that the effect of the codicil is only to revoke the gift of
the 1,500/. and 6,500/., leaving to Mrs. Pope and her
children the contingent interests given them by the will,
in the event of any other daughters dying without issue*
I come to a conclusion different from that of the Vice-
Chancellor with less reluctance and hesitation, because,
as was stated at the bar, his Honor said he entertained

60 CASES IN CHANCERY.

1857. by no means a confident opinion upon the subject, and
invited the parties to come here by appeal.

The Lord Justice Knight Bruce.

I also think that the codicil did not revoke or afiect
anything except the original 8,000/.

The Lord Justice Turner.

I am of the same opinion. I think that the testator
shows, by his codicil, that he intended by it to deal only
with the original 8,000/. which he had given to Eleanor
and her children, for he recites the gift of 1,500Z. to
Eleanor, and then recites that he has given to certain
persons named in his will so many sums of 6,500/. as he
shall have daughters living at his death upon trust to
invest each such sum of 6,500/. as in his will expressed,
and to stand possessed of each sum of 6,500/. upon the
trusts for the benefit of his daughters, and their respective
families, in his will expressed. He then recites the pro-
vision made by the settlement for Eleanor, and that he
intends that it shall be in satisfaction of the two legacies
of 1,500/. and 6,500/. bequeathed to her or for her
benefit. Then he proceeds to revoke the legacy of
6,500/. "given to or for the benefit of my daughter
Eleanor, and otherwise as in the said will mentioned,*'
mentioning also the legacy of 1,500/. which he had
given to her absolutely. I think the plain construction
of that is, that he revokes the 1,500/., which he has
given to Eleanor absolutely, and the 6,500/., which he
has given to Eleanor and her children. Then, it is
urged, that, the original legacy being revoked, these
parties cannot take any interest in the accrued legacy.
Why so ? The accrued legacy is given upon the trusts
thereinbefore declared of the original legacy, and, though

the

CASES IN CHANCERY. 61

the original legacy is taken away, the trusts thereinbefore 1857.
declared of it still remain ; and I do not see any reason
why the party should not take under the direction that
the accrued legacy should go upon the trusts therein-
before declared of the original legacy.

Again, the gift, for the revocation of which the Re-
spondents contend, is a gift over, and, according to the
principles of all the cases, is in the nature of a new gift.
Besides, in the present case, there is not only a new gift,
but, in certain events, it is not a gift to Eleanor at all.
[His Lordship here read the clause of the will containing
the gift over.] Take the case of Harriet^ who died in
1836, Mrs. Pope having died in the year 1831 : on the
death of Harriet a share of her 6,500Z. went, as to one
portion of it, not to Mrs. Pope at all, but directly and
immediately under this gift to the children of Mrs. Pope^
Mrs. Pope herself being then dead. Are we so to con-
strue this codicil, which purports to be a codicil made for
the purpose of revoking an interest given to Eleanor^ as
that it may operate to revoke an interest by the will given
to her son ? I cannot agree in the construction put by
the Vice-Chancellor on this will. All these questions as
to the intentions of testators undoubtedly create a great
deal of difficulty, and it is not to be wondered at that
different minds arrive at different conclusions; but the
conclusion I have arrived at in this case agrees with that
of the Lord Chancellor and that of my learned Brother.

CASES IN CHANCERY,

1857.

April 27, 28.

Before The
Lord Chan-
cellor Lord
Cranworth
and The Lords
Justices.

An estate
called H. F.
stood limited,
along with
some other pro-
perty of small
amount, to
W. S. for life,
with remainder
to his children
in tail, remain-

STEPHENS V. STEPHENS.

npHIS was an appeal by the Plaintiff from a decree of
Vice-Chancellor Kinderslet/y deciding that the bro-
thers and sisters of the Plaintiff were not bound to elect
between the benefits given to them by the will of their
father John Stephens, and the benefit of a charge created
in their fiivour by the will of their grandfather William
Stephens, upon an estate which the Plaintiff took under
that will, but which John Stephens purported to devise
to him by his will.

William Stephens, the grandfather, who died in 1829^
der to X S. for had by his will devised {inter alia) all his lands in the
to trustees for pansh of Streatley to William Stephens the son for life,
a term, in trurt yf\i\^ remainder to the children of William Stephens the
for the younger son in tail, with remainder to John Stephens for life, with
chiwren of remainder to trustees for a terra of 1,000 years, and sub-
younger chil-
dren of C. S.,
and subject
thereto to the
first and other
sons of J. S.
successively in
tail, with divers
remainders

over. J. S. died in the lifetime of H^ S., leaving a will, by which, though not in pos-
session of the H. F, estate, and having no devisable interest in it, he purported to devise
it to the Plaintiff, who was his eldest son, in fee, and gave various benefits to his own
younger children. W. S. afterwards died without issue, upon which the Plaintiff
oecame entitled to the H. F. estate as tenant in tail, subject to the 10,000/. charge.

Held, that the younger children of J. S. were not put to their election between their
shares of the 10,000/. and th'e benefits given them by their father's will ; for that a devise
of an estate does not per se import an intention to devise it free from incumbrances,
so as to put incumbrancers to their election ; and moreover that an absence of inten-
tion to devise the estate free from incumbrances was to be inferred from the fact that
nothing had been given by the will to the children of C. S., so that they were clearly
not put to their election as to tlieir shares of the 10,000/.

ject thereto to the first and other sons of John Stephens
successively in tail, with remainder to the daughters of
John Stephens, as tenants in common in tail, with cross
remainders between them in tail, with remainder to

Charles

CASES IN CHANCERY,

Charles Stephens for life, with remainders in tail to his
children in the same form as those to John's children,
with an ultimate limitation to his own right heirs. The
trusts of the term were to raise 10,000/. for the children of
John Stephens and Charles Stephens, except the child
who or whose issue should be entitled to the first estate
of inheritance in the devised property.

1857.

Stephens

Stephens.

The lands which passed by this will included a farm
called Hood's Farm, in the parish of Streatley, which
formed the bulk of the testator's property. On his death,
William Stephens the son, who was his eldest son and
heir at law, entered into possession of the devised estates
as tenant for life, and continued in possession till afler
the death of his brother John Stephens^ whose will gave
rise to the present suit.

John Stephens^ thus having neither any estate in pos-
session nor any devisable interest in Hood's Farm, made
his will, dated 27th June 1846, whereby, afler devising
certain estates in Oxfordshire to his widow for life, with
remainder to the Plaintiff in fee, he gave, devised and
appointed all that his messuage or tenement, farm and
lands called Hoods Farm, and all t/ie property he might
possess, situate in the parish of Streatley, in the county
of Berhs, with the appurtenances, unto and to the use of
the Plaintiff, his heirs, executors, administrators and
assigns respectively, according to the nature or tenure of
the said premises, for his and their own benefit absolutely.
The testator then proceeded to dispose of real estate of
his own in favour of his three other sons, and disposed
of his personal estate in favour of all his children, and he
empowered his trustees during the minority of every or
any object of the trusts of his will, out of the rents, pro-
fits and income of the real and personal estate, or the
part or share thereof to which such object should from

time

Stephens

64 CASES IN CHANCERY.

1857. time to time be entitled, to maintain, educate and support
such object during minority, and also to raise out of the
said real and personal estate, or any part or share thereof,
Stephens, during the minority of any son, for the advancement of
any son, any sum or sums not exceeding for any one son
the sum of 10,000/. The testator then appointed the
Plaintiff and his other sons respectively, in certain events,
to succeed to his share in a bank at Reading.

The testator made a codicil, dated 9th April 1847,
which was as follows : — ** Whereas I have considered
that under the trusts of my said will, in case my eldest
son William'* (the Plaintiff) "shall decline or shall not
accept my share in the bank at Reading in the county of
Berks, his annual income will until the death of my wife
and my brother William be considerably less than that
of his three younger brothers John Thomas^ Richard
and Frederick^ now I do hereby declare my will and
mind to be, and I do direct and empower the trustees- in
my said will named, or any future trustees or trustee of
my said will, to deduct and retain out of the estates and
effects to which any of my said three younger sons shall
be entitled, during their respective minorities, such an
annual sum as will make the income of my said eldest
son William equal with his said younger brothers, until
the death of my said wife and my brother William^ and
pay the same to my said eldest son accordingly. And I
further declare, that when any of my said younger sons
shall attain the age of twenty-one years, then I expressly
charge and make chargeable the estate and effects to
which any such son may become entitled under the
trusts of my said will with, and the same shall be liable
to contribute and pay, such an annual sum as will make
the income of my said eldest son equal to any such
younger son. And in order to ascertain the due and
fair proportion of each of my said younger sons to make

such

Stephens

CASES IN CHANCERY. 65

such contribution as aforesaid, I direct their several 1857.
annual incomes to be brought into hotchpot, and a fair
average taken, so that each of my said younger sons may v,

contribute equally. Provided, nevertheless, and I fur- Stephens.
ther declare my will and mind to be, that such contri-
bution on the part of my said younger sons, as is herein-
before mentioned, shall absolutely cease on the death of
my said wife and brother William. And provided also,
that no such contribution shall be made in case my said
eldest son shall accept my share and become a partner in
the said bank. And in all other respects I ratify and
confirm my said will.*'

The only land in Streatley which John Stephens had
power to devise was a piece of woodland called Lewendon
Wood, of very small value. He died in Augvst 1847,
leaving eight children. Charles Stephens had two
children, to whom John Stephens did not give anything
by his will.

William Stephens the son died without issue in 1856,
whereupon the Plaintiff became entitled to HoodHs
Farm as tenant in tail in possession, under the will of
William Stephens the grandfather, and shortly afterwards
instituted the present suit, insisting that his brothers and
sisters were not entitled to claim both the benefits given
them by the will of John Stephens, and the benefit of
the charge created on Hoods Farm by the will of
William Stephens the grandfather.

Vice-Chancellor Kindersley decided, that the brothers
and sisters of the Plaintiff were not put to their election,
but were entitled to the benefits given them by both
wills.

The Plaintiff appealed.

Vol. I. F D.J. Mr.

CASES IN CHANCERY.

1857.

Stbpuemb

Stephen!.

Mr. Lee and Mr. Hislop Clarke for the Appel-
lant.

The general principle of election has been well ex-
pressed as being, that it is against conscience that a party
should both take a benefit under an instrument, and
keep his own property in opposition to it ; Slake v. JBun-
bury (a), strongly supports the contention, that there is
a case of election here. [The Lord Justice Knight
Bruce. —If a man has an estate subject to a mortgage,
and devises it, giving another estate to the mortgagee, is
that a case for election ?] We submit that the judgment
of Eyre, C. B. in Blake v. Bunbury shows, that that
question should be answered in the affirmative in a case
like the present, and the observations in Lord Rancliffe
V. Parkyns{b) support the same view. It may be that
a devise of land does not per se import an intention to
give it free from incumbrances, but the circumstances
must be looked to to see whether such intention does not
appear. The intention of the testator in devising the
estate must, in general, be defeated, if the value of it
goes away to the mortgagee. Moore v. Butler (c), and
Vatie V. Lord Dungannon(d) support the inference drawn
from Blake v. Bunbury. The Vice-Chancellor's rea-
soning in his judgment is in our favour till towards the
conclusion, and we submit that the latter part of it is not
sufficient to displace the former. His Honor says, " If
the person to whom John had devised Hood*s Farm
had been a stranger, or a person not in the line of the
testator at all under the grandfather's will, and then the
testator devising Hood's Farm to that person had given
benefits to all the different persons who claimed the
10,000/., I should have had no doubt but that there was
a plain demonstration, or necessary implication, that by

the

(a) 1 Ves.jun, 514.
(6) 6 Dow. 149, pp. 178,179,
185, 186.

(f ) 2Sch.^ Lef. 249—267,
((/) Ibid. 118—130.

CASES IN CHANCERY.

the devise of the estate, he meant the devise of the estate
in fee simple. It is not the least like those cases which
have been adverted to, of a person having an estate sub-
ject to a charge, and then devising that estate— it is not
that case at all, nor is it like the case of a man devising a
fee simple estate, and leaving a wife who is dowable out of
It. It is not at all like that case, and there appears to me
to be no analogy between them. Here the testator had
no devisable interest in the estate. He had no estate or
interest whatever in Hoods Farm, except, indeed, that if
he survived William, and the failure of issue of William,
he then would have a life interest, but he had not any
devisable interest whatever ; and when a man in that state
of circumstances, having no devisable interest ^ having no
property which he could possibly affect, says, ' I devise
Hood's Farm to A. B,* I must take it that he meant
to assert to himself the right to the absolute clear fee
simple of that property, and to devise it in that way.
To that extent I go with the Counsel for the Plaintiff,
but then I must take into consideration the circumstance,
that in the first place this 10,000/. belongs not exclusively
to the younger children of John the testator himself, but
also to the children of Charles. Without entering into
the question whether after-born children of Charles
would take or not, at all events there were children of
Charles to whom he gives no benefit, whom he therefore
does not mean to exclude from their shares of the 10,000/.
by this devise of flbwf 5 Farm; and, moreover, 1 must take
into consideration this, that the Plaintiff to whom this
devise of Hood's Farm is made by JohiCs will, is, as I
have stated, not only the remainderman in tail, who will
take that estate on the death of John and William, and
failure of issue of William, subject, of course, to the
term, but will take the other estates under the grand-
father's willy which John does not attempt to devise, so
that William will, at all events, take the other estates of

F2 the

1857.

Stephbns
Stbfhbns.

Stephens

68 CASES IN CHANCERY.

1857. the grandfather, that is, the estates other than Hooffs
Farm, subject to the term and subject to the charge.
That might raise a question whether any portion of the
Stephens, charge, which would fall upon HootTs Farm, ought to be
thrown upon the other part of the estate or lost alto-
gether. It appears to me that these circumstances render
the principle of election inapplicable. Looking at the
circumstances under which the testator made this will,
the circumstances of the devisee, the circumstances of the
property which he attempts to devise, the circumstance
of its being subject to this charge, along with other
property which would come to the very devisee him-
self, the present Plaintiff, it appears to me that I cannot
find, what it is necessary to find in order to carry out
the rule, a plain demonstration or necessary implicar
tion that the testator meant to devise this estate of
HoocCs Farm to the Plaintiff, discharged of any of
the shares even of his own children in the 10,000/.
He clearly could not so discharge it as to some of the
persons interested, namely, the children of Charles^ be-
cause he gives them nothing ; therefore it would remain
liable to a portion of the charge, even if I should come
to the conclusion that there was a plain demonstration
or necessary implication of an intention to devise it free
from another portion. But when I find that the effect
would be, that the other estates of the grandfather other
than Hoods Farm, being liable together with Hoods
Farm, I must first say that Hoods Farm is to be
valued, and the other estates valued, then the 10,000/1
apportioned on them, and then say that, out of the
proportion attributable to Hoods Farm, the children
of Charles would take so many shares, and the younger
children of the testator would take so many, and that
the election could only apply to the discharge of
Hoods Farm from so much as would be applicable, in
that way of computing the proportion, to the shares that

would

CASES IN CHANCERY.

would be taken by the younger children of the testator
John himself — it certainly does appear to me that the
testator could have had no intention, that is to say, there
is no plain demonstration or necessary implication that
he had the intention, to discharge Hoods Farm from the
term, and from the 10,000/. which is raisable under the
trusts of that term."

1857.

Stephens

Stephens.

We submit that the reasons in the first part of this
judgment are conclusive in our favour. His Honor
relies on the absence of plain "demonstration or necessary
implication*' as taking the case out of the range of those
reasons, but the authorities show that the expression "plain
demonstration or necessary implication'* is not to be taken
strictly, but means, in fact, no more than strong pro-
bability ; Wyhham v. Wykham (a), Jones v. Morgan (ft),
Bootle v. lilundell(c). The clause as to maintenance
and advancement strengthens the conclusion, that the
testator intended the gifl of Hood's Farm to be free
from incumbrances. Why should the fact that the
testator has not put Charles's children to their election
prevent his having put his own to theirs ?

Again, the testator by his will treats himself as the
owner of Hood's Farm ; and the younger children, if they
accept benefits under his will, must give the same efiect
to its dispositions as if that property had been his own.
Now, if it had been his own, there would have been a
satisfaction of the portions charged on it; Warren v.
Warren (rf). The younger children, therefore, cannot
claim them. The codicil shows that the testator in-
tended an equalization of the fortunes of his children
— the decision that there is no election disappoints

this.

Mr.

(a) 18 Ve», 395, 421.

(6) Fearne, C R. App. 589.

Id) 1 Bro. C. C. 305.

70 CASES IN CHANCERY.

1857. Mr. Baily and Mr. Amphlett^ for the younger children

. were not called upon.

Stephcmb *^

V,
St£PHIMS.

The Lord Chancellor.

This case has been extremely well argued, but looking
at the authorities and at the principles applicable in cases
of this nature, I do not feel any doubt upon it.

The difficulty of the Plaintiff is to bring his case within
the range of the principles which govern cases of election.
The general principle is, that if 1 give an estate to a
person, and at the same time affect to dispose of another
estate in which he has an interest, in a manner incon-
sistent with that interest, he must to the extent of such
interest make that disposition good, if he accepts the
estate I give him. This is an old head of equitable juris-
diction Lord liedesdah says, that the doctrine cannot
be treated as modern, or as confined to Courts of Equity,
and as the Lord Justice Knight Bruce observed during
the argument, a rule of this nature must be observed in
every civilized country. If I give an estate to A,y and
at the same time give A's estate to A, the gift to A,
must in reason be considered conditional on his giving
effect to the gift to 1?., whether such condition be ex-
pressed or not. The question is, whether these principles
apply to the present case. Hoo(ts Farm formed the
bulk of the original testator's property. John Stephens
had a life interest expectant on the determination of the
prior life estate given to William Stephens and of estates
tail limited to the children of William Stephens, After
the determination of the life estate of John Stephens, the
estate was limited to his sons successively in tail, subject
to a charge of 10,000/. for the younger children of John
Stephens and of Charles Stephens. John Stephens, by
his will, disposed of his own estate in favour of all his

children,

CASES IN CHANCERY.

clnldreDy and gave Hoods Farm to the Plaintiff his
eldest son. After the death of John Stephens^ William
Stephens died without issue, and Hood's Farm thereupon
vested in the Plaintiff, as tenant in tail in possession,
subject to the charge of 10,000/. It is contended, that
the younger children are put to their election, as to their
interests in this 10,000/., the argument being that John
Stephens when he purported to give Hoods Farm to the
Plaintiff meant to give it free from this charge. Why
so ? If it had come to John Stephens^ it would have
come to him, subject to this charge, and from what is it
to be inferred that he did not mean to devise it subject to
that charge? I should have thought that no such infe-
rence could have been drawn, even if his own children
had been the only persons interested in the charge, but
1 adopt the observation of the Vice-Chancellor, that he
cannot have intended to devise the estate free from the
charge, inasmuch as the children of Charles were inte*
rested in it, and to them he has not given anything.

1867.

Stephens

V.
STEPUENt.

I do not, however, decide the case merely on that
ground, for I think that where a testator simply gives an
estate without saying more, he is to be taken to mean the
estate in its present condition, subject to the existing
charges upon it. Lord Chief Baron Eyre in Blake v.
JBunbury, says, "If there is an incumbrance upon the
estate devised in such terms" (i. e. in general terms appli-
cable to an estate of which the testator is absolute owner),
** the mere language of the will affords no inference of an
intention to dispose of the estate freed from that incum-
brance. That goes no further than comprehending the
whole to pass it, if there is nothing dehors the will." If
there is nothing in the language of a general devise per se
to point at an intention to devise the estate free from in-
cumbrances, what is there in this will that does so point ?
The circumstances of the case point rather the other way.

I am

CASES IN CHANCERY.

1857.

Stephens

Stephens.

I am of opinion, therefore, that the testator has not shown
an intention to devise the estate free from the charge, and
that there is no case of election.

Hie Lord Justice Knight Bruce.
I also think that there is here no case of election.

The Lord Justice Turner.
I am of the same opinion.

AprU 29.

Before The
Lord Chan-
cellor and
Lords Jus-
tices.

A bequest to a
corporation for
founding,
establishing
and upholding
an institution
within a mile
of If'es/aiiJi-
sier, Southwark
or DubliH, for
studying and
endeaFouring
to cure ma-
ladies of any
quadrupeds or
birds useful to
man, held a
good charitable
bequest, and
not within the
Mortmain Act,
as involving
the acquisition
of land in Emg-
Umd,

THE UNIVERSITY OF LONDON v. YARROW.

f I^HIS was an appeal from the decision of the Master
of the Rolls in favour of the validity of a bequest
contained in the will of Thomas Broum, formerly residing
in Harcourt Street, Dublin^ and afterwards at Rosey
Park Hill of the Grange^ in the county of Dnblin,
dated the 14th of December 1846.

The bequest in question was as follows: — **And
whereas there is standing in my name in the books of
the Bank of England^ a sum of 20,000/1 and upwards
of 3/. per cent. Consolidated Government Annuities:
Now I will and bequeath to the Chancellor, Vice-Chan-
cellor and Fellows of the University oi London^ and their
successors in the said University, the said stock in SL per
cent. Consolidated Annuities, and all residue of personal
property not consisting of lands, houses or other real
estate, and belonging to me at the time of my decease,
and available aAer defraving the charges and payments
duly required for the proving of this my last will and

Yarrow.

CASES IN CHANCERY. 73

testament and administering thereto agreeably to the 1857.
dispositions hereinbefore contained expressed and de- ^"^^'T^.
dared for the founding, establishing and upholding an of London
institution for investigating, studying, and, without charge
beyond immediate expenses, endeavouring to cure, mala-
dies, distempers and injuries any quadrupeds or birds
useful to man may be found subject to : for and towards
which purpose of founding, establishing and upholding
such Animal Sanatory Institution within a mile of either
Westminster, Southwark or Dublin, as may at the time
for making a decision as to locality by the Chancellor,
Vice-Chancellor and Fellows for the time being of the
University of London, or the governing majority thereof,
be then thought most consistent and expedient, I will
and bequeath exclusively all such rest, residue and re-
mainder of personal property belonging to me at the time
of my decease, and not consisting of lands, houses or
other real estate ; and I will and direct that all available
interest to accrue on said residue shall be let to accumu-
late and remain along with all the principal of such
residue in the English 31, per cent. Consolidated Govern-
ment Annuities for any length of time lawful for such
increase, not exceeding the term of fifteen years from the
time of my death, and shall be all, principal and interest,
then or aAerwards applied solely to the object of found-
ing, establishing and upholding the Animal Sanatory
Institution. I further will and direct that dominion over
the property of and for the Animal Sanatory Institution
to be thus founded shall become vested in the Chancellor,
Vice-Chancellor and Fellows for the time being of the
University of London, smd that the governing majority of
these authorities for the time being of the said University,
on their duly declaring their acceptance of the trusts of
this my will, shall, after being vested with such dominion,
appoint and have some person connected with said
University of London, and responsible with security, for

receiving

74 CASES IN CHANCERY.

1857. receiving the half-yearly dividends and applying them
^. \yr^ . respectively for to make addition to the principal ; and

The University . . r r »

of London I ^iH and direct that such duly-appointed receiver shall
» ^* be entitled to retain to himself the sum of 10/ sterling

Yarrow. ^ ^

British currency out of each succeeding half-yearly divi-
dend on and after his producing to the governing majority
for the time being of the Senate of the said University
of London, vouchers or proofs of his having duly appro-
priated the preceding half-yearly dividend in making
addition to the principal, and without further deduction
than for the regular charge for brokerage and for his ovirn
fee as aforesaid. And I will and direct that any such
appointed receiver may and shall, in case of neglect or
violation of trust, be removed, and that, as in all cases of
vacancy of such receivership, a successor be appointed
by the Chancellor, V ice-Chancellor and Fellows of the
University of London for the time being, or the governing
majority thereof. I will and desire that previous to the
Animal Sanatory Institution as aforesaid being opened
for the reception of animals and cure of their ailments,
a superintendent or professor of the Institution and its
business shall be appointed by the Chancellor, Vice-
Chancellor and Fellows for the time being of the Uni-
versity of London, or the governing majority thereof, and
that such or any subsequent professor or superintendent
shall be removable by the like authority for neglect or
violation of duty or propriety, and that as in every case of
a vacancy occurring in the office of professor or superin-
tendent of said Animal Sanatory Institution, a successor
for such office shall be appointed by the Chancellor, Vice-
Chancellor and Fellows for the time being of the University
of London^ or the governing majority thereof. And I will
and direct that the professor or superintendent of the
said Animal Sanatory Institution shall have a residence
adjacent thereto, besides a salary, and that he shall
annually give on the business of the said Institution at

least

CASES IN CHANCERY. 75

least five lectures in English, and free to the public, at 1857.

some place to be appointed by the governing majority of '"*^ ""^
.0 o t . 1 TT . . t* r t 1 » /. 1 The University

the senate 01 the said University ox London ; and 1 further of London

desire that kindness to the animals committed to his ^ ^'

Yarrow.

charge shall be a general principle of the Institution to
be founded as aforesaid. And I also will and desire that
the Chancellor, Vice-Chancellor and Fellows for the time
being of the University of London^ or the governing
majority thereof, may at any time if they shall choose
appoint a committee of their own body, or of medical
men, for to control the number and cases of diseased or
injured animals to be taken charge of, and to decide
about the purchase of diseased or injured animals, or
their carcases, for the promotion of science, as well as for
to determine about any contingency not hereinbefore
provided for relative to said Animal Sanatory Institution.
And I will and direct that any such controlling com-
mittee, if appointed, shall be so only from year to year,
and that as to any of the rules, orders or regulations of
such Committee there may be privilege of appeal to the
Chancellor, Vice-Chancellor and Fellows of the Uni-
versity of London; and also that in case of such con-
trolling committee not being re-appointed, all such
controlling powers shall remain wholly vested in the
Chancellor, Vice-Chancellor and Fellows for the time
being of the University of London, or the majority
thereof. And I further will and direct that my acting
executor or esecutors shall apply to the Court of Chan-
cery in England for to appoint a fit and responsible
person to receive the dividends accruing on the principal
as aforesaid, and to, under similar allowances, apply them
for to make additions to the principal, in case that the
Chancellor, Vice-Chancellor and Fellows for the time
being of the University of London shall refuse or omit
for the space of twelve months after my decease to duly
appoint a person to act as receiver and agent for said

purposes

76 CASES IN CHANCERY.

1857. purposes agreeably to the directions and provisions here-
""^^7^. inbefore on this head expressed and declared; and in
of London ^^^^ ^^^ Chancellor, V ice-Chancellor and Fellows of said
^' University of London, or the governing majority of the

Senate thereof for the time being, shall decline to accept
and act under the trust as aforesaid, or shall eventually
omit to have such Animal Sanatory Institution founded
and established within the space of nineteen years from
the time of my death, or in case that the said Animal
Sanatory Institution shall anyhow not continue to be
conducted bon& fide for said purpose agreeably to the
conditions aforesaid, then and in such case I will, devise
and bequeath the whole of the property or properties by
me hereinbefore bequeathed and designated therefore to
the Provost, Fellows and Scholars of the University of
Dublin for the time being, for the exclusive purpose
of founding and maintaining in the said University of
Dublin professorships of any three or more of these
languages, videlicet, Welsh, Sclavonic, Russian, Persian,
Chinese, Coptic and Sanscrit, that the Provost and
Senior Fellows for the time being of the said University
of Dublin shall choose to establish there in my name,
and shall obtain a statute therefore comprising some con-
dition of efficiency. And I desire that such professors
shall be elected by the Provost and Senior Fellows of
the University of Dublin for the time being, and be under
the control of the government of the University. And I
also will and desire that the Provost and Senior Fellows
at any time of said University shall have power and
authority to alter arrangements as to such professorships
in so far as to, under same condition as aforesaid, there-
fore substitute professorship or professorships of one or
more of said languages different than as previously
selected and appointed, provided and on condition that
any such alteration and substitution shall be with the
consent of the Provost and at least two*thirds of the

Senior

CASES IN CHANCERY. 77

Senior Fellows for the time being assembled at a board 1857.

and concurring in such resolution, and also with the mL ij •

concurrence of the then visitors of this said University of London
of Dublin:'

Yarrow.

The bill was filed by the University of London against
the testator's executors, his next of kin, and the Univer-
sity of Dublin, alleging that the next of kin insisted that
the bequest to the Plaintiffs was invalid, inoperative and
void, by reason of the uncertainty of the objects of such
bequest, and that the executors were trustees for the next
of kin of all the property included in such bequest.

The prayer was, that it might be declared that the
aforesaid bequest to the Plaintiffs for the purpose of
being applied to the object of founding, establishing and
upholding an Animal Sanatory Institution as in the will
mentioned was valid and ought to be carried into effect,
and that the personal estate of the testator might be
administered under the direction of the Court.

The Master of the Rolls by his Decree made a decla-
ration as sought by the bill, and the next of kin ap-
pealed.

Mr. Amphlett for the Plaintiffs.

He referred to AttoTmey-General v. The Mayor of
JPaversham (a), Langstaff v. jRennison (ft), lie Clancy (c),
Edwards v. Hall (rf), Church Building Society v. Bar-
low {e\ Attorney-General v. Williams {f), Attorney-
General v. Hodgson ig).

Mr.

(a) 5 De G., Mac. * Gor. 350. {e) 3 De G., Mac. Sf Gor. 1 20.

(6) 1 Drew. 28. (/) 2 Cox, 387.

78 CASES IN CHANCERY.

1857. Mr. Cairns and Mr. Cotton for the next of kin.

The University '^'^^^ '^ "^^ * charity; for the primary object is to
of London benefit, not the public, but the animals which are within

Yarrow. ^^ scope of the bequest. It is moreover too vague.
What animals come within the meaning of the trust?
Would grouse, for instance? They have lately been
found subject to disease. Would the cure of this be a
proper object of study within the testator's meaning?
The terms of the Statute of Elizabeth (a), are not such
as to extend to such a trust. But a still more con-
clusive objection to the Decree is that arising from the
Mortmain Act. The bequest clearly contemplates the
purchase of land. It is no answer to say that the
trustees may build out of England^ for they may build in
England, and that is sufficient to invalidate the bequest.
If it were not, the trustees might take money under
a bequest, which permitted them either to build or not
in England, and having got the money, might build
there in defiance of the Mortmain Act. They must not,
by the terms of the will, be left at liberty so to apply the
fund. If they are, the bequest is bad.

They referred to Morice v. Bishop of Durham (6),
James v. Allen (c), Attorney- General v. Haberdashers^
Company {d), Moggridge v. Thackwell (e). Attorney-
General v. Hull{f)y Dunn v. Bownas (g), Attorney-Ge-
neral V. Hodgson (A).

Mr. Selwyn and Mr. C, T, Simpson for the University
of Dublin,

Mr. Lloyd and Mr. Baggallay for the Executors.

Mr.

(a) 43 Elix. c. 4. {e)1 Ve», 36.

{b) 9 Ve$, 399. (/) 9 Hare, 647.

(f) 3 Mer, 17. (g) 1 K, Sf J, 596.

(d) 1 Myl. 4- K, 420. (A) 15 Sim, 146.

CASES IN CHANCERS. 79

Mr. Ampklett was not called on to reply. 1857.

The Lord Chancellor. "^of S:^;*'

I cannot say that I have any doubt about this case, v ^' »

•^ -^ X ARROW.

Two objections have been raised. One is that this is not
a charity. Now the determination of what constitutes
a charity htis occasionally given rise to very difficult
questions. Those questions have sometimes turned upon
the point whether the object of the testator has not been
too vague, as where there has been a gift '' to the poor/
or where other similarly indefinite expressions have been
used, and where, consequently, it has been difficult for
the Court precisely to define any object as that which
the testator distinctly contemplated. Where, however,
the testator points out what he contemplates, and that
which he contemplates is something highly beneficial to
the community at large, I do not know that any question
has then been raised as to whether it was within the
Statute of Elizabeth or not The Statute of Elizabeth
enumerates several objects which it says have been those
to which well-disposed persons have been in the habit of
devoting property, but the objects there enumerated are
not to be taken as the only objects of charity, but are
given as instances. If that were not so, a cursory glance
at the Statute has satisfied me that no general hospital
would be within it, as the only charity of this kind men-
tioned is the maintenance of sick and maimed soldiers and
mariners. Nobody ever doubted that that was only put
as an instance of those objects to which pious and well-
disposed persons had theretofore devoted their property.
The Courts have always construed the Act as applying
to objects of the same nature as those specified, and I
cannot entertain for a moment a doubt that the establish-
ment of a hospital in which animals, which are useful to
mankind, should be properly treated and cured, and the
nature of their diseases investigated, with a view to

public

Yarrow.

80 CASES IN CHANCERY.

1857. public advantage, is a charity; nor, as I understand, did
^'^^^^^ , the Master of the Rolls.

The University
of London

It is said, however, that this gifl is too indefinite, and
would extend too widely ; and Mr. Cairns illustrated
it in this way. He said, that there is now prevailing
a disease amongst grouse, and he asked whether they
would be held to come within the terms of this charity ;
I think not, for I think that when the testator speaks of
" quadrupeds and birds useful to mankind*' he means do-
mestic animals. That is the reasonable interpretation
of the expression. But if it had a more extensive mean-
ing, I should not at all say that the charity would be
bad. And as to animals which are ordinarily kept for
amusement, that an establishment which could be effectual
to cure diseases amongst them would be a good charity,
is a matter upon which I entertain no doubt whatever.
Nor do 1 entertain a doubt that it would be a good
charity to establish an Institution for investigating and
removing the causes of the potato disease, and of the
vine disease, for it would tend to the improvement of
those vegetables, and if any sound theory were to arise
from its investigations it would be a most beneficial
establishment for mankind in general. As it is, a hospital
such as is contemplated by this will already exists, the
Veterinary College, where the diseases of not only horses
but all animals of a domestic nature are treated. That
the establishment of an Institution having those objects
in view is a good charity within the meaning of the
Statute of Elizabeth is a point upon which I entertain
no doubt whatever.

There is more plausibility in the argument, that this
charity is void under the Statute of Mortmain, because,
as it is said, it points to a foundation which requires the

purchase

Yarrow.

CASES IN CHANCERY. 81

purchase of land. I think it^ however, a complete answer 1857.
to that argument, that the will points only to the pur- ^^*X^^.
chase of land, either in the neighbourhood of London^ or of London
in the neighbourhood oi Dublin— iXidii neighbourhood of
Dublin not having been inserted at all fraudulently to
avoid the operation of the Statute, but because, as I col-
lect from the will, this gentleman was a resident himself
in Dublin. He therefore gives the option of founding
the Institution either in London or in Dublin^ and,
putting it at the worst, he cannot' be held to have said
more than this, that it shall be established at one of two
places, thinking both of them lawful, whereas only one is
lawful.

On this point the doctrine of Soresby v. Hollins (a),
before Lord Hardwicke^ is applicable. There have also
been many other cases where a testator has given an
option to trustees to invest property in one of two ways,
the one lawful and the other not, and it has never been
held that the Statute of Mortmain interfered with the
validity of the bequest. I do not wish to commit myself
to say, that if there had been no allusion to Ireland this
bequest would have been bad ; for I am not at all clear,
that the establishment of such a Sanatory Institution
necessarily implies the acquiring of land, so as to vitiate
the gift under the Statute of Mortmain.

The case appears to me so entirely correctly decided
by the Master of the Rolls, and the appeal so thoroughly
without foundation, that it must be dismissed with costs.

The Lord Justice Knight Bruce.

I have no recollection of an appeal more plainly void
of sense and reason, and it would be privately unjust, and

mischievous

(a) 9 Mod. 221 ; cited 1 Amb. 210.

Vol. I. G D. J.

82 CASES IN CHANCERY.

1857. mischievous against the public, to do otherwise than dis-
miss it with costs.

The University
of London

Yarrow.

T/ie Lord Justice Turner.

I have nothing to add to what has fallen from the rest
of the Court,

^ , ^ ALLDAY V. FLETCHER.

Before The filHIS was an appeal from a decision of Vice-Chancellor
celior Lord Stitart, holding the Plaintiff, a married woman, to

Cr AN WORTH, ijg entitled to have a legacy settled upon herself and her

vbl^kndB^to children.

his widow for

mainder to a The legacy in question was given by the will of Hich-

nephew in toil, ard Fletcher, dated the 27th of April 1824, whereby he
charged with ,.i i. ti iii«<*iii

the payment of devised and bequeathed unto trustees all his freehold

8 legacy to a lands, tenements and hereditaments whatsoever and
niece at the '

widow's death, wheresoever, upon trust, and to and for the use of his

toto?8 death ^*^^ Phcebe and her assigns during her life, and from

the niece mar-
ried, and her
father ad-
vanced to her
husband the
amount of the
legacy, toking

from the husband an assignment of it. The tenant in tail in remainder of the land
charged became the residuary legatee and executor of the father, and paid the father s
debts and legacies to an amount greater than that of the father's personal estate.
Upon the widow afterwards dying — Held^ that the son must be considered to have
been beneficially entitled both to the legacy and the land charged with it, and must
be presumed to have received the legacy, and that it was thus so reduced into possession
that the niece was not entitled to a settlement out of it. Held, also, that the result
would be the same whether the assignment to the niece's father was absolute or by
way of mortgage only.

and immediately after her decease, then upon trust, and
to and for the use of the eldest son of the testator's sister,
then the wife of Robert Fletcher, and the heirs male of

his

Alldat

CASES IN CHANCERY. 83

his body lawfully begotten^ with remainders over, and he 1857.
charged all his real estates with the payment of 200L to
each of his nieces Elizabeth (the Plaintiff), Muriel, and ©.

Ann Susannah Fletcher, daughters of the said Robert F"tcher.
Fletcher, to be paid and payable to them within twelve
months after the decease of his said wife, which legacies
he thereby gave and bequeathed to his said nieces accord-
ingly. And the testator bequeathed to his wife all his
personal estate and effects whatsoever and wheresoever,
to and for her own use and benefit, subject nevertheless,
and he did thereby charge the same with the payment
of all his just debts, funeral and testamentary expenses,
and also with the payment of several legacies, comprising
(amongst others) one of 100/., which he gave to his said
trustees, to be by them put and placed out at interest, as
they might think proper, to and for the use and benefit
of his niece, the Plaintiff, until she should attain the
age of twenty-one years, at which time he directed the
same to be paid to her with interest ; and the testator
appointed Richard Fletcher, William Fletcher and
William Corwell]o\Tit executors of his will.

The testator died on the 14th of May 1824, leaving
his wife Phcebe and his nieces the Plaintiff Elizabeth
Alldat/ (then Elizabeth Fletcher), Muriel Fletcher, and
Ann Susannah Fletcher, him surviving.

The testator also left him surviving the Defendant
Richard Fletcher, who was the eldest son of the testa-
tor's sister.

On the 16th of September 1831, the Plaintiff Elizabeth
AUday married the Defendant Richard Allday, and by
a deed, dated on that day, and made between Richard
Allday and Elizabeth his wife of the one part, and

G 2 Robert

Alldat

84 CASES IN CHANCERY.

1867. Robert Fletcher (the father of Mrs. Allday, and brother-
in-law of the testator in the will mentioned) of the other
part, after reciting the will of Richard Fletcher, and that
Fletcher. Richard Allday having occasion for 800/., had made ap-
plication to and requested Robert Fletcher to accommo-
date him therewith, and to accept an assignment of the
two several sums or legacies of 200Z. and 100/. as a se-
curity for the repayment of such sum of 300/. so to be
advanced by him, and which assignment Richard Allday
and Elizabeth his wife had agreed to make and execute
accordingly, it was witnessed, that in pursuance of the
agreement, and in consideration of 300/. to Richard
Allday and Elizabeth, his wife, paid at or imme-
diately before the sealing and delivery of the deed, the
said Richard Allday and Elizabeth his wife bargained,
sold, assigned, transferred and set over unto Robert
Fletcher, his executors, administrators and assigns, all
those the two several legacies or sums of ^00/. and 100/.
given and bequeathed to Elizabeth Allday in and by the
will of Richard Fletcher in expectancy, and to become
payable at the time and upon the events happening as in
such will were expressed, and all the estate, right, title
and interest of them the said Richard Allday and FHi-
zabeth his wife, and each of them, of, in and to the same
two several legacies and every part thereof, to have, hold,
receive and take the two several legacies or sums o(200L
and 100/., so as aforesaid given and devised to Elizabeth
Allday unto Richard Fletcher, his executors, adminis-
trators and assigns, as and for his and their own proper
monies and effects for ever : and after a power of attorney
to receive the legacies, and covenants for title, the deed
contained a covenant for further assurance, which was as
follows : — " And, moreover, that they the said Richard
Allday and Elizabeth his wife shall and will at all times
hereafter, so long as the said two several sums of 200/.
and 100/. or either of them, or any part thereof, shall

remain

CASES IN CHANCERY. 85

remain unpaid^ upon every reasonable request, and at the
expense of the said Robert Fletcher , his executors, admi-
nistrators or assigns, make, do and execute or procure to Alldat
be made, done and executed, all and singular such fur- Fletcher.
ther and other lawful and reasonable act and acts, deed
and deeds, thing and things whatsoever, for the further
and better and more eSectually assigning and assuring
the said two several legacies of 200/. and 100/., hereby
assigned or intended so to be, and every part thereof,
unto the said Robert Fletcher, his executors, adminis-
trators and assigns, in manner aforesaid, and according to
the true intent and meaning of these presents, as by him
the said Robert Fletcher, his executors, administrators
or assigns, or his or their Counsel in the law, shall be
reasonably advised and required.*'

Robert Fletcher died in June 1844, having made his
will, dated the 18th of September 1838, whereby, after
directing in the first place that all his just debts, funeral
and testamentary expenses, and the expenses of proving
his will, should be fully paid, he devised unto and to the
use of the Defendant Richard Fletcher and his heirs
certain estates, comprising all the descendible estates of
or to which the same testator died seised or entitled,
subject and chargeable with and to the payment of 1,000/.
a-piece to each of his daughters Muriel and Ann, to
whom he gave and bequeathed the same sums accordingly,
and he directed the same to be payable at such time and
with such interest as therein mentioned; and he also
gave and bequeathed to the defendant Richard Fletcher
all his farming stock, cattle, implements in husbandry,
hay, corn, grain, household furniture, goods, chattels,
plate, linen, china, and also all other his personal estate,
whatsoever and wheresoever the same might be situate,
that he might die possessed of or entitled unto, to hold

the

86 CASES IN CHANCERY.

1857. the same for his (the said Defendant's) own absolute use
and benefit.

Allday

Fletcher.

By a codicil dated the 8th of February 1842, the tes-
tator revoked the bequests of 1,000Z. a-piece, and gave
to his two daughters Muriel and Ann 500/. a-piece, at
such time and with such interest as therein mentioned,
and gave three annual sums of 25/. each, as therein
mentioned, one of such annuities being given to the
Plaintiff for her separate use, and made certain provisions
with respect to the charging of legacies and annuities,
and devised trust and mortgaged estates to the Defendant
Richard Fletcher ^ and ratified the appointment of the
said Defendant as executor of the said will and codicil,
and confirmed the former, save and except as the same
might by such codicil be altered or explained.

According to the statements in the answer of the De-
fendant Richard Fletcher^ he had, besides paying the
annuities of 25/. to each of the annuitants mentioned in
the codicil, actually paid, in discharge of the funeral and
testamentary expenses, debts, and pecuniary legacies of
the said Robert Fletcher, sums of money very far ex-
ceeding the whole amount and value of the personal
estate of Robert Fletcher (including in such personal
estate the legacy of 200/. assigned by the above-men-
tioned deed), and also all the funeral and testamentary
expenses of Robert Fletcher,

The widow of the testator Richard Fletcher died on
the 8th of April 1852. On her death the Defendant
Richard Fletcher entered into possession of the real
estates devised to him by the will of Richard Fletcher
the testator, and paid the legacies of 200/. each by the
will given to the testator's nieces Muriel and Ann
Susannah. He, however, made no payment in respect

Fletcher.

CASES IN CHANCERY. 87

of the legacy of 200/. given to the Plaintiff Elizabeth 1857.
AHday, on the ground that, as executor of his father ^^^^^

i\LLDAT

Robert Fletcher, he was entitled to the legacy by virtue v.

of the above-mentioned assignment to Robert Fletcher,
of the 15th of September 1831.

The Plaintiff thereupon instituted the present suit,
and by her bill allejged that, having been an infant at the
time of the alleged execution of the assignment, she
was not in any manner bound thereby, and that no settle-
ment, provision or agreement for a settlement was made
upon the Plaintiff, or her issue, previously to or upon
her said marriage, nor had any such settlement, provision,
or agreement for a settlement, been made at any sub-
sequent time. The prayer of the bill was, that an ac-
count might be taken of what was due and owing to the
Plaintiff for the principal and interest of the said legacy ;
and that the same, together with the costs of. the suit,
might be raised out of the estates charged therewith by
the will of Richard Fletcher, and that the legacy when
raised might be settled in such manner as the Court
should direct for the benefit of the Plaintiff and her
issue, or otherwise as the Court should direct.

The Defendant Richard Fletcher by his answer in-
sisted, that under the circumstances, and by virtue of the
assignment, the legacy of 200/., unless the same was to
be deemed to have been raised and duly applied, had
sunk for his benefit into the lands whereon the same
was charged by the testator Richard Fletcher, and had
been reduced into possession, and duly and properly
applied in the discharge of the funeral and testamentary
expenses, debts and legacies of Robert Fletcher,

The Vice-Chancellor held, that if the assignment had
been absolute, the defence would have been good, but

that

Alldat

88 CASES IN CHANCERY.

1857. that as it gave a right of redemption, this was not that
unqualified possession which would defeat the right of a
wife to a settlement, and his Honor made a decree, de-
Flbtcber. daring that the assignment was by way of security, and
that the Plaintiff was entitled to have the 2001. settled
for the benefit of herself and her children. From this
decree the Defendant Richard Fletcher appealed.

Mr. Chapman Barber (with whom was Mr. Sacon),
for the Plaintiff.

The deed of 1831 was merely a mortgage, which
cannot, without actual receipt of the money, amount to a
reduction into possession, so as to oust the wife's equity
to a settlement. But even if the deed amounted to an
absolute assignment, still the Appellant's right under it
is in his character of executor of his father Robert
Fletcher only, while his liability to pay the legacy charged
on the land is in his own right. The case must, for
the purposes of the question, be treated as if he did not fill
these two characters, and in the same manner as if Robert
Fletcher was still living, in which case of course no re-
duction into possession could be alleged, and the Plain-
tiff would clearly be entitled to a settlement. The De-
fendant has been so well aware of this fatal objection
to his claim, that he has attempted to obviate it by
stating, that he has paid the debts of Robert Fletcher
to a greater amount than the assets, and has consequently
become entitled to the assigned legacy in his own right.
But the Plaintiff has not in this suit the means of
meeting that case, which could only be tried in a suit to
administer Robert Fletcher's estate. As far, however,
as even the Appellant's own showing leaves the Court to
judge of the matter, he does not establish the case thus set
up, for, according to his own showing, there is no resi-
duary personal estate, and, consequently, the benefit of
the assigned legacy of 200/. does not belong beneficially

CASES IN CHANCERY.

to him, but to the creditors or legatees under Robert
Fletcker^s will.

•

They referred to Lady Elihank v. Montolieu (a),
Pierce v. Thorneley (A).

Mr. Greene, for the husband^ supported the decree.

Mr. Mcdins and Mr. Osier for the Appellant.

The Vice-Chancellor's decision is founded on the as-
sumption, that the deed was not an assignment but a mort-
gage. That assumption, however, rests entirely on an
ill-framed recital, for the nature of the transaction, as
well as the terms of the operative part, show conclusively,
that there was not nor could be any equity of redemption.
This further appears by the frame of the covenant for
further assurance, which throws the costs upon the
grantee, instead of throwing them on the grantor, as is
invariably done when he is mortgagor. But we submit,
that it is immaterial whether the deed is a mortgage or
an absolute assignment; for the assignee has, in both
cases, the same power of receiving the assigned legacy ;
and his having to account afterwards to the assignor (if
he had so to account) would not alter the case. His
receipt would be in either case equally a reduction into
possession, and no distinction on that ground has ever
been taken or can be supported on any reasonable prin-
ciple. If the Appellant had paid his father the 200/. on
the death of the tenant for life, even the Plaintiff's
Counsel would not venture to contend, that any equity to
a settlement would have remained. The son then be-
comes his father's executor and residuary legatee, and
all the father's debts and legacies are paid except the
current annuities which the son keeps down. If what

has

(a) 6 K«. 737. (6) 2 Sim. 167.

1857.

Allday

Fletcher.

90 CASES IN CHANCERY.

Allday

1857. has taken place has not amounted to a reduction into
possession, no reduction into possession was possible
V. after Robert Fletcher^s death. Nothing more could have

Fletcher. ^^^^ ^^^^ ^^ibl^ has been done.

They referred to Hornsby v. Lee (a), Hutchings v.
Smith (b), and Baker v. Bayldon(c).

Mr. C Barber in reply.

The Lord Chancellor.

Two points have been made on this appeal. The
first was, that the assignment made immediately after the
marriage was a conditional and not an absolute assign-
ment. Now I do not think that either side has correctly
represented the effect of that instrument. I think that
in one sense it was conditional, but not in the sense in
which the Plaintiff wishes it to be so construed. She
was entitled to a legacy of lOOZ. payable to her on her
attaining twenty-one. She was also entitled to the legacy
of ^XX)L now in question, payable at the death of the
testator's widow. Her husband desired to receive both
legacies immediately upon the marriage, and her father
paid the aggregate amount of both to her husband, taking
from him security, as it is called, for the 300/., by an
assignment of the two legacies. This is not a mortgage
of an ordinary kind, for there is no covenant for repay-
ment, nor did the husband become in any sense a
debtor, or liable to pay anything. I think that if the
husband had chosen before the death of the widow to say
to the father of his wife, '* Here is the 200Z., I require
you to re-assign the legacy," he would have been en-
titled

{a) 2 Madd. IC. (6) 9 Sim. 137.

CASES IN CHANCERY.

titled to do so, and that the deed might in that sense
have been considered a security, but that the 300Z. was
intended as an advancement to his daughter, which was
to be repaid by the father's receiving the legacies, and
not otherwise.

1857.

I own, however, that this question does not appear to
me important to the decision, and in this respect I differ
from the Vice-Chancellor, for I am unable to see any
distinction between an absolute assignment, and an as-
signment by way of mortgage, so far as the present
dispute is concerned. The assignment was made by the
husband while the legacy was reversionary only, and
consequently at that time it did not operate at all.
Also, if the husband had died in his wife's lifetime and
before the tenant for life it would not have operated at all.
But at the moment of the death of the testator's widow,
the assignment made by the husband and wife, while the
legacy was reversionary, operated in the same way as if
it had been executed after the death of the tenant for
life. Then what is the effect of an assignment by a
husband of a wife's legacy payable in presenti for a
valuable consideration, which in this case was its full
amount? No doubt the effect is to put the assignee in
the place of the husband, and if payment be made to
him it is good against both husband and wife, and there
is no difference as to this between a mortgage and an
absolute assignment. In either case, if the legacy be
paid to the assignee, the payment is valid. If the as-
signment was conditional, there would be a liability to
account to the assignor, but in either case the receipt of
the assignee would be a good discharge for the legacy.

The only question here, as it appears to me, is, whether
there are circumstances such as to lead the Court to say
that there has been payment. Upon this question I

cannot

Allday

92 CASES IN CHANCERY.

1857. Ccinnot say that I differ from the Vice-Chancellor, for I
do not know what his view upon it was. But I think
the evidence irresistible to show payment of the legacy
Fletcher, ^f 2001. by the Appellant, as owner of the inheritance, to
himself in his character of executor and residuary legatee
of his father, the assignee of the legacy. When such an
union of characters takes place, whether payment is to be
presumed is a point to be decided in each case according
to its circumstances, but I cannot conceive a case in
which it could be more proper to make the presumption
than the present. For in this case the Appellant was
liable to pay his father*s debts and legacies, and was
entitled to receive this money as part of his father's per-
sonalty for that purpose. He was, therefore, the person
to pay the charges to which the legacy was applicable,
and also to receive the legacy, and as he had paid in
respect of bis father's debts and legacies more than he
had received in respect of his father's personal estate,
the personal estate came into such a position that he was
entitled to call upon himself for repayment out of it, and
it must be presumed that he did so.

I think, therefore, that the bill ought to have been
dismissed, with costs.

CASES IN CHANCERY. 93

1857.

March 13, 14,

LORD CREWE v. EDLESTON. J?, 17.

May 2.

rilHE bill in this cause was filed by Lord Crewe, for Before The
the purpose of having his rights under a mortgage ticeb."*"
made to him of some turnpike tolls, toll-gates and toll- The trustees of
houses ascertained and declared by the Court ; for an ^eTng^dCTi^s
Injunction to restrain the trustees of the turnpike roads, of obtaining au
who were the principal Defendants to the bill, from yiringthe

reducing the tolls and removing the gates and side-bars making a new

CO . /• 1 road connected

on the roads, and for the appointment of a receiver of the ^nih the for-

tolls, with directions to apply them in the mode in which ^^* ^^® Plain-
' *^* -^ titr agreed to

it was contended on the part of Lord Crewe they ought advance 2,000/.
to be applied. The bill also sought the redemption of ^''i^gThr
some other mortgages of the tolls, toll-gates and toll- new road, upon
houses which were vested in other Defendants ; but as payment ae-

these other Defendants submitted to be paid off, and cured by a

mortgage of the

Lord tolls of both
roads. The
trustees obtained an act which authorized the making of the new road, repealed the
Act under which the old road was made, and placed both roads under one system of
uianagement, treating them for most purposes as one ruad. By this Act it was pro-
vided that the tolls of the old road should be applied ( 1 ) in paying the expenses of
obtaining the Act; (2) in paying the interest on mortgages of the tolls receivable
under the old Act ; (3) in repairing the old road ; and ^4) in paying the principal
of the old mortgages; and that the tolls of the new road should be applied (1) in
paying the expenses of obtaining the Act ; (2) in mailing and repairing the new road ;
(3) in paying the interest of money borrowed on the tolls of the new road ; (4) in
paying the principal of monies borrowed under the repealed Act or borrowed on the
tolls of the new road. The Plaintiflf advanced the 2,000/., and a mortgage was made
to him of the tolls, toll-houses, &c. in such a form that it was doubtful whether it ex-
tended to the tolls of the new road.

Htld, on the context of the Act, that it did not take away the power of mortgaging
given by the General Turnpike Act, 3 Geo. 4, c. 126, sect. 81 ; that the trustees,
therefore, had power to mortgage the tolls of the old road as well as the new road for
monies borrowed for the purposes of the new road, and that the Plaintiff, having
advanced his money on the faith of having a security on both roads, was entitled in
equity, if not at law, to a security on the tolls of the old road as well as of the new.

A mortgagee of turnpike tolls and toll-houses, which are in lease and are subject also
to other mortgages, may apply to this Court to have a receiver appointed, instead of
taking steps to obtain possession at law.

94 CASES IN CHANCERY.

1857. Lord Crewe was willing to pay them, no question arose
^ ^^^^T^ on that part of the case, except as to costs.

Lord Crewe

Edleston. 'Yhe principal question in the cause, which lay between
Lord Crewe and the trustees of the roads, represented by
the Defendants the Messrs. Edleston^ their clerks, arose
under the following circumstances, the statement of
which is taken, with a few slight variations, from the
judgment of the Lord Justice Turner.

In the year 1816 an Act of Parliament (a) was passed
for making a turnpike road from Nantwich to Wheelock^
passing through Crewe, and by the 39th section of this
Act it was enacted, ** That the said tolls, and all the
monies to arise, or to be collected and borrowed by
virtue of this Act, shall be vested in the said trustees "
(i. e., the trustees who were appointed by the Act), " and
that all the costs, charges and expenses incident to and
attending the obtaining and passing of this Act shall in
the first place be paid and defrayed out of any sum or
sums of money subscribed for the purposes of this Act,
or out of the tolls collected or to be collected by virtue
of this Act, or out of the first monies borrowed or to be
borrowed on the credit thereof, or out of any other
monies which shall come to the hands of the said trustees
or their treasurer by virtue or for the purposes of this
Act, and the remainder of the money so raised shall be
from time to time applied in the repayment of the monies
borrowed on the credit of the same tolls by virtue of
this Act, and the interest of such monies respectively,
and in carrying this Act into execution : provided never-
theless, that the interest of the monies borrowed upon
the credit of this Act shall, in the fir^t place, from time
to time be duly and regularly paid, as the same shall

become

(a) 56 Geo. 3, c. xv.

Edleston.

CASES IN CHANCERY. 95

become due and payable, out of the tolls collected by 1857.
virtue of this Act, before such tolls shall be applicable _ ^^^"^

, Lord Crewe

to any other purpose whatsoever." The 78th section v.

provided that the Act was to continue in force for the
term of twenty-one years, and from thence to the end of
the then next session of Parliament.

In pursuance of this Act the Nantwich and Wheelock
turnpike road, called in the pleadings " The Old Road,**
was made. For the purpose of making it monies were
borrowed upon mortgage of the tolls, toll-gates and
toll-houses of the road, and the mortgages vested in the
Defendants the mortgagees were for parts of the monies
which were so borrowed.

Lord CrevD^s park adjoins the old road, and until the
year 1848 there was a footpath and bridle-way across the
park from the old road to a place called Stowford^ on the
opposite side of the park. The North Western Railway
passes through Crewe, its station there is on the line of
the old road, and in the year 1847 it was proposed to
make a new turnpike road from Stowford to a point on
the old road at or near the Crewe Station. This pro-
posed new turnpike road, called in the pleadings '* The
New Road,** being intended to pass over land of Lord
Crewe's, lying outside his park, and being calculated to
supersede the use of the footpath and bridle-way through
the park, it became the subject of communication between
Lord Crewe's agent and the trustees of the old road,
and on the 27th September 1847 Lord Crewe's agent
wrote to one of the trustees as follows : —

" Reverend Sir, — I have spoken to Lord Crewe upon
the subject of the intended turnpike road from Stowford
to Crewe Station, and I am authorized by his lordship to
say, that he is willing to provide the necessary funds for

effecting

96 CASES IN CHANCERY.

1857. effecting the above object, provided the amount does not

- *^"^^r^ exceed ^,000/., on receiving a mortgage from the trustees

V, of the Nantwich and Wheeloch Turnpike, extending to

DLE8T0N. ^j^g whole of their tolls upon that road, as well as those

of the intended new road, such mortgage to bear interest

at the rate of bl, per cent., and to be paid off either in

one sum, or by instalments not exceeding 500/. each,

except with his lordship*s consent. Lord Crewe will

also expect a clause to be inserted in the new Act of

Parliament, authorizing him to stop up tlie present road

through Crewe Park."

In consequence of this letter a meeting of the trustees
of the old road was held on the ^th of September
1847, at which the following resolution was passed:
'' Resolved unanimously, that his lordship's proposition
be accepted, and that application be made accordingly to
Parliament in the session next ensuing for leave to make
and maintain, as a new turnpike road in connection with
this trust, a road from Gorsty Hill to Crewe Station, and
also from Stowford to point D. upon the plan of the
said proposed road from Gorsty Hill to Crewe Station,
provided his lordship consent to give the land required
* for the purpose."

Lord Crewe having thereupon agreed to give the land
for the new road, the trustees of the old road, in pur-
suance of the resolution, applied for and obtained, in the
year 1848, a further Act of Parliament, 11 & 12 Vict.
c. xlix, by which, after reciting the passing of the oW Act,
the completion of the old road, and the borrowing of
money on the tolls of it, and "that it would be of public
utility if the trustees for executing this Act were em-
powered to make and maintain the new line of road here-
inafter mentioned," and that it was expedient that the
former Act should be repealed, and further and more

effectual

Lord Crewe

CASES IN CHANCERY. 97

efiectual powers should be granted, as well for repairing 1857.
and improving the old road as also for making, main-
taining and making turnpikes on the new line of road, it
was enacted, " That upon the 1st day of August next Edlbstom.
after the passing of this Act the said recited Act of the
56th year of the reign of his majesty King George the 3rd
shall be repealed, and that this Act shall thereafter be
put into execution during the term and for the purposes
hereinafter mentioned." By the 2ni section all arrears
of tolls that were due under the Act of 1816, and all other
property vested in the trustees of that Act, were vested
in the trustees of the new Act. By the 3rd section a
totally different body of trustees was appointed from the
body who were trustees under the Act of 1816. By the
6th section it was enacted, ''that the trustees may appoint
committees out of their own number to take the care and
management of any particular part of the said roads, &c."
and by the 7th section it was enacted, '^ that this Act shall
be put in execution for the purpose of more effectually
improving, maintaining and keeping in repair the present
turnpike road leading from Nantwich to Wheeloch
Wharf aforesaid, and for making and maintaining the
new line of road hereinafter mentioned (that is to say), a
new line of road commencing at Stowford and termi-
nating at or near the Crewe station of the London and
North-Western Railway, in the parish of Barthomley,
all in the said county of Chester,'* By the 13th section
it was provided, that the freehold and inheritance of lands
to be purchased by the trustees for the purpose of
making or maintaining any road mentioned in the Act
should not, '* notwithstanding any provisions in any of the
Acts in force for regulating turnpike roads in England^''
be vested in the trustees, but should remain and be vested
in the persons from whom they were purchased, and that
the trustees should by their purchase only acquire a
right of way. By the 12th section powers had been
Vol. I. H D.J. given

CASES IN CHANCERY.

1857.

Lord Crewe

Edleston.

given for the purpose of purchasing property, and the
16th section enacted ''that in case the said trustees shall
not within the space of three years from the cooimence-
ment of this Act pay for the lands which they are by this
Act authorized to take, then and from thenceforth all
the powers by this Act or by any other Act granted in
relation to the taking of lands for the purposes of turn-
pike roads shall^ as far as relates to the lands herein^
before authorized to be taken for the purposes of this Act,
cease and be utterly void, unless with the consent of the
owners, 8cc." The 17th section continued the tolls
granted by the former Act till 1st September, 1848, the
expiration of the time for which they were let. By the
18th section powers were given to demand tolls at the
toll gates, some of which tolls were of greater amount
than the tolls authorized by the Act of 1816. By the
20th section it was enacted, '* that no more than one toll
shall be taken for passing and repassing once only in the
same day, with the same^ horses, beasts, cattle or other
animal or thing liable to toll or duty through all the toll
gates erected or to be erected or continued on the said
roads." By the 21st section it was enacted, '' that all
horses and cattle," &c., "in respect whereof the toll
hereby authorized to be taken shall have been paid at
any toll-gate or bar on any of the said roads, or on the
sides thereof, shall, upon a ticket denoting such payment
being produced, be permitted, on returning through the
same toll-gate or toll-bar, and in going and returning
through such other gate or bar (if any) as the ticket for
such payment shall free, to pass toll free the same day."
The 26th section provided that the toll-gates and bars
then standing on the turnpike roads were to continue
until removed by order of the trustees, and that it should
be lawful for the trustees to order and cause to be set up
in or across the said present turnpike roads, and also upon
any road to be made or repaired by virtue of this Act,

EOLESTON.

CASES IN CHANCERS. 99

or on the sides thereof, any toll-gate or bar, and to 1857.
remove the present or any future toll-gate or bar as they ^'^^^^
should think proper. The ^7th section was in these v,

terms : '^ And be it enacted, that all monies which shall
be received by the said trustees, by virtue of this Act,
upon the road included in the said recited Act hereby
repealed shall be applied as follows (that is to say),
Istly, in paying and discharging the expenses of ob-
taining and passing this Act, or incident thereto ; 2ndly,
in paying and discharging any interest which may from
time to time be owing in respect of any money which
may have been borrowed on the credit of the tolls
authorized to be taken by the said former Act hereby
repealed ; Srdly, in paying the expenses of improving,
maintaining and keeping in repair such road, and in
putting this Act into execution with reference thereto ;
4thly, in reducing, paying off and discharging the several
principal sums which have been borrowed on the credit
of the tolls authorized to be taken by the said former
Act hereby repealed." The 28th section was in the
following terms : " And be it enacted, that all monies
which shall be received by the said trustees on or in
respect of the new line of road authorized by this Act to
be made shall be applied as follows (that is to say),
Istly, in discharging the expenses of obtaining and
passing this Act, or incident thereto ; Sndly, in making,
improving, maintaining and keeping in repair the said
new line of road and putting this Act into execution with
reference thereto ; 3rdly, in paying and discharging any
interest which may from time to time become due and be
owing in respect to any money which may hereafter be
borrowed on the credit of the tolls to be collected on the
said new line of road ; 4thly, in reducing, paying off and
discharging any principal sums of money which may have
been borrowed under the said recited Act, or may be due
on the credit of the tolls to be taken on the said new

H2 line

100 CASES IN CHANCERY.

1857. line of road by this Act authorized to be made/* The

^ ''^^C^ 29th section enacted: "That no more money shall be
Lord Crewb . . i . a

V, expended in the repairs of any road comprised in this Act

Edlestom. |.j^^j^ gj^^ji jjg collected on such road or borrowed on the
credit of the tolls collected thereon.** The 3 1st section
provided for stopping up the *' footpath, bridle road or
highway*' going through Lord Crewe's park, and the
34th section provided that the Act should continue in
force for twenty-one years, and thence to the end of the
session of Parliament which should then next follow.

Soon after the passing of this Act, the 2,000/. agreed
to be advanced by Lord Crewe was advanced by him.
The trustees alleged, and the Court considered that it
might, for the purposes of the argument, be assumed,
that it was wholly applied in paying the expenses of the
Act of Parliament, and in making the new road, which
was accordingly made. A mortgage was made to Lord
Crewe, securing the 2,000Z. The mortgage was as fol-
lows : —

** By virtue of an Act passed in the twelfth year of the
reign of her present Majesty Queen Victoria, intituled
'An Act for repairing the road from Nantwich to IVhee-
lock Wharf, in the county palatine of Chester, and to
repeal an Act passed in the fifty-sixth year of the reign
of his Majesty King Geo» 3, and to continue and extend
the trust,' We whose names are hereunto subscribed and
seals affixed, being three of the trustees acting in the
execution of the said Act, in consideration of the sum of
2,000/. sterling, advanced and paid by the Right Honor-
able Hungerford Lord Crewe, of Crewe Hall, in the said
county of Chester, to the treasurer of the said trustees,
do hereby grant and assign unto the said Hungerford
Lord Crewe, and his executors, administrators and as-
signs, such proportion of the tolls arising and to arise on

the

Lord Crewe

CASES IN CHANCERY. 101

the said tumpihe road, and the toll-gates and toll-houses 1857.
erected or to be erected for collecting the same as the
said sum of ^,000/. doth or shall bear to the whole sum
now or hereafter to become due and owing on the secu- Edlestoh.
rity thereof, to have, hold, receive and take the said pro-
portion of the said tolls, toll-gates, toll-houses and pre-
mises, with the appurtenances, unto the said Hungerford
Lord Crewe, and his executors, administrators and as-
signs, for and during the continuance of the said Act,
unless the said sum of ^,000/. with interest for the same
after the rate of 4/. per cent, per annum, shall be sooner
paid off and discharged."

The interest upon this mortgage was duly paid down
to the month of August 1853, but soon after that time,
the trustees insisted that the 2,000/. was a charge only
upon the tolls of the new road, and that those tolls
never having been suflScient for the payment of the inte-
rest, the new road was indebted to the old road for
the excess of the interest paid upon the mortgage, be-
yond the amount of the tolls received from the new road*
They accordingly declined to pay any further interest
upon the mortgage, and in the year 1854, they removed
two of the gates upon the old road, and took steps for
reducing the tolls. Under these circumstances the bill
was filed.

By an order made in the cause upon the application
of Lord Crewe, and dated the 22nd December 1856, his
Honor the Vice-Chancellor Sir J, Stuart ordered, " That
an injunction do issue to restrain the trustees, their agents,
servants and workmen, from reducing any of the tolls
upon the old and new roads or either of them, and from
removing any or either of the gates or bars upon or at
the sides of such old and new roads, or either of them,
until the further order of this Court/'

The

LUa CASES IN CHANCERY.

Ics37. The trustees appealed from this order, and upon the

appeal-motion being opened, it was arranged that it
should stand over, and that notice of motion for a decree
should be given. Notice having been given accordingly,
the appeal-motion and the cause came on to be disposed
of together.

Mr« Craig and Mr. Lambert, for the Plaintiff.

The contract clearly was for a mortgage of the tolls of
both roads, and this was the intention, and if the mort-
|ifa^ as executed does not apply to the tolls of the old
nmd, at all events the Plaintiff is an equitable incum-
brancer on the tolls of that road, supposing the trustees
had power to mortgage the tolls of both for this purpose.
Wo do not say that the local Act, taken alone, gives
then) the power of mortgaging the tolls of the old road
for the purposes of the new, but we say that it in effect
makes the two roads one road, and that the general Turn-
pike Act, 3 Geo. 4, c. 1^6, s. 81, gives the trustees a
)H)wer of mortgaging, which the local Act does not take
Hway. The 27th section provides, that the tolls of the
old road shall be applied for certain limited purposes ;
but is silent as to the surplus, which, therefore, may be
applied in payment of mortgages made under the general
Act.

The trustees have no right to reduce the tolls so as to
prejudice our mortgage ; Hex v. Trustees of Bury and
Stiiflonl Roads (a) ; and an injunction was properly
granttMl to restrain their doing so, and it ought to be
rontiimod. The removal of toll-gates, the effect of which
nuii«t be to reduce the tolls, stands on the same footing.

The case is one in which a receiver ought to be ap-
pointed; Knapp V. Williams {]b)y Drewry w. Barnes (c\

DumviUe

(ii) \ /liirii. ^ Cr. 361. (f) 3 Ruts. 94.

{k) i IVf. 430, n.

CASES IN CHANCERY. lOS

Dumvilk v. Ashbrooke (a), Mellish v. Brooks (J) ; 12 & ^^^'^^
18 Vict c. 87, s. 4. L^^hp Crewe

Mr. Waller^ Mr. Rowcliffe and Mr. Wiglesworth ap- Edlestom.
peared for the Defendants the mortgagees.

Mr. Wigram and Mr. AmphUtt^ for the trustees.

The trustees only wish to perform their duty, and to
avoid the personal liability which they may incur by ap-
plying the tolls of the old road to a purpose to which
they are not legally applicable. The 27th and 28th sec-
tions of the local Act control the general provisions of
the Turnpike Act, for they expressly define the purposes
to which the tolls are to be applied. The 27th section
of the bill brought in by the trustees contained a clause
authorizing the application of the surplus tolls of the old
road, afler providing for the purposes mentioned in that
section as it now stands, in payment of monies borrowed
for the purposes of the new road, but that clause was
struck out by the House of Lords, which strengthens the
inference drawn from the language of the 27th and 28th
sections as they stand, that the legislature did not intend
what the Plaintiff contends for.

The Plaintiff, if he has any right, has a remedy at
law, and he has, therefore, no right to sue in equity;
3 Geo. 4, c. 126, s. 49, Doe v. Penfold(c), Doe v.
Lediard (rf). Doe v. Booth {e). The trustees are not
estopped by the deed from alleging now that they had
no power to mortgage; Fairtitle v. Gilbert {f), (As to
the appointment of a receiver, they referred to Russell
V. East Anglian Railway Company (g), Potts v. War-
wick and Birmingham Canal Navigation Company (A),

Fripp

(a) 3 Ruu, 98, n. (e) 2 Bos. ^ P. 219.

(6) 3 Bfav. 22. (/) 2 Term Rep, 169.

(f) 3 Q. B. 767. (g) 3 Mac. * G. 104.

(J) 4 fi. 4- Ad. 137. (A) Kay, 142.

104

CASES IN CHANCERY.

1857. Fripp v. Chard Railway Company (a), Ames v. Trusteei

^^^^'^^^ of tlie Birkenhead Docks (J). They contended, that the

o. Court at all events would not interfere with the removal

EoLEtTON. Qf jhg toll-gates ; Cooper v. Cooper (c) ).

Judgment.
May 2,

Mr. Cr«i^ in reply.

The Lord Justice Turner, after stating the facts of
the case in nearly the same terms as the above statement,
proceeded as follows : —

The first question to be considered is, what were the
powers of mortgaging vested in the trustees under the
Act of 1848. It is contended on their behalf that they
had no power to mortgage the tolls or the toll-houses of
the old road for the purpose of raising money to make
the new road, and that Lord Crewels mortgage, therefore,
can in no event affect the tolls or toll-houses of the old
road. This question depends upon the combined effect
of the general Turnpike Act, 3 Geo. 4, c. 126, and of
the special Act, 7 & 8 Vict c. xlix. By the general Act,
sect. 81, the trustees of any turnpike road are empowered
to borrow monies on the credit of the tolls arising on
such road, and to mortgage the tolls on such road, or any
part or parts thereof, and the toll-houses for collecting
the same, as a security for the money which may be so
borrowed. It may be a question, perhaps, what is the
meaning of the words " or any part or parts thereof*' in
this section of the general Act, whether those words
were meant to enable mortgages to be made of the tolls
of parts of the road, or of parts of the tolls of the entire
road ; but of this there can be no doubt, that the enact-
ment extends to enable all trustees of turnpike roads to
mortgage the tolls of their entire roads, and, the purpose
for which the mortgages may be made not being ex-
pressed.

(o) 2X«y4 J. 241.
(6) 20 Bmv. 332.

(f) V,-C. Twmer, 18 Law
T^ef, 204.

LomD Crbwe

CASES IN CHANCERY. 106

pressed, enables such mortgages to be made for every 1857.
purpose falling within the scope of the Act under which
the trustees are acting. It is in the face of this general
and unliOaited power that we are called upon by the E«>X'«"oh.
Defendants the trustees to determine that they had no
authority under the special Act to make the mortgage in
question, so as to affect the tolls or toll-gates or toll-
houses of the old road. It is not I think too much
to say, that to justify such a determination the language
of the special Act must be strong and clear. So far
as the purpose of the Act is concerned, it does not
seem to me to furnish any ground for restricting the
powers which are given by the general Act. The Act
recites, that it would be of public utility if the trustees
were empowered to make and maintain the new line of
road, and it would seem, therefore, to be contrary to
the policy of the Act to put such a construction upon
it as might endanger the execution of that purpose.
It is to be observed, too, that at the time of'the passing
of the Act the tolls upon the new road were subsisting
only from year to year, and that there does not appear
to have been any such amount of debt due upon the
old road then subsisting as could render it necessary
or just, independently of the purpose of the new road
being made, not only to continue those tolls for the term
of twenty-one years, but to increase some at least of the
tolls. Then as to the general frame of the Act, it does
not seem to me to favour the construction contended for
by the trustees. The Act proceeds and is founded upon
the general Acts applicable to turnpike roads. They are
referred to in the I3th & 16th sections of the Act. By the
Act, too, both the roads are put under one trust It is
true that the purposes for which the Act is to be put into
execution, as to the two roads, are different— the purpose
as to the old road being to improve and maintain it, and
keep it in repair, and as to the new road to make and

maintain

Lord Crbwe

106 CASES IN CHANCERY.

1857. maintain it; but there are the same trustees appointed by
the Act for both those purposes. The property which
had been vested in the trustees of the old road is vested
EoLEFTON. jjj ijjg trustees so appointed. There are the same tolls
upon both roads. Payment of toll at any gate on either
road gives the right to pass free through all the gates on
both the roads. The two roads, therefore, are in effect
constituted into one road under one trust It is difficult
surely to suppose, that the legislature thus referring to
the general Acts, and thus treating the two roads as to-
gether forming a single road, could intend otherwise
than that the trustees should have all the powers which
the general Acts would give to the trustees of any other
single line of road, and, therefore, the power of mort-
gaging, for the purposes of the Act, the tolls, toll-gates
and toll-houses of the whole line, constituted of the old
and of the new road. It is said, however, that the 27th,
S8th and ^th sections of the Act are sufficient to show
that this was not the intention of the legislature, and that
the old road was not intended to be burdened with the
expense of making the new road, but that each road was
to bear its own burden. The 27th section appears to
me to admit of very easy explanation. That section ap-
plies exclusively to the monies which had been borrowed
upon the credit of the old road. The Act of 1816 was
to be repealed, and it was necessary, therefore, to provide
some security for the old mortgagees. This Act provides
that security. It was thought right, too, to preserve the
priority of the old mortgagees, and this section keeps
alive that priority, even to the extent of giving priority to
the interest over the repairs, as had been done by the
S9th section of the Act of 1816. These considerations
seem to me fully to account for the introduction of the
27th section of the Act. There is not, I think, much,
if any, greater difficulty in accounting for the introduction
of the 28th section. By the 4th article of this section,

the

Lord Cebwi

CASES IN CHANCERY. 107

the mortgages under the old Act are to come in with the 1867.
new mortgages executed under the Act itself. But it
was not thought right that they should be so let in until
afker payment of the interest on the new mortgages, and Edlmton.
the section therefore first provides for the payment of that
interest. It appears, therefore, that there were adequate
reasons for the insertion of these sections, independent of
any purpose of controlling the operation of the General
Acts. It was, however, more upon the language of these
sections, the reference in the 27th section to the expenses
of putting the Act into execution as to the old road, and
in the 28th section of putting it into execution as to the
new road, and the mention in the 28th section of monies
borrowed on the credit of the tolls to be collected on the
ne|w line of road, than upon the mere fact of these provi-
sions being contained in the Act, that reliance was placed
on the part of the trustees ; but so far as the language of
these sections is concerned, it furnishes no more than an
inference of intention on the part of the legislature, and
I much doubt whether, even if the case rested here, we
could be justified in controlling the operation of the
General Acts by inference to be derived from the language
of these sections, more especially having regard to the
purpose and general frame of the Act. There are, how-
ever, other considerations, which seem to me to weigh
strongly against the view insisted upon by the trustees.
The old mortgages are let in upon the new road. Upon
what possible ground can we impute to the legislature an
intention, that the old mortgagees should rank with the
new mortgagees upon the new road, but that the new
mortgagees should have no right upon the old road.
Again, if these sections had been intended to regulate the
powers of borrowing upon mortgage, and to settle all the
rights of the mortgagees, surely they would have been
made complete, but they are silent as to the toll-gates
and toll-houses, and they contain no provision whatever

Edleston.

108 CASES IN CHANCERY.

1867. as to monies which, after the passing of the Act, should
r r> ^ borrowed on the credit of the old road, although it is

Lord Crewe , » o

V. plain, from the 29th section, that it was contemplated that

monies might be so borrowed. This 29th section was
relied on, upon the part of the trustees, as evidencing the
intention of the legislature, that there should be separate
mortgages of the two roads, and it may be admitted, that
it indicates that intention as to monies to be raised for
repairs, but this provision seems to me to be rather un-
favourable than favourable to the case of the trustees.
The express provision as to the expenditure for repairs,
and the absence of any such provision as to other expen-
diture, tends, I think, very strongly to show that the
other expenditure was meant to stand upon a different
footing. The trustees also relied on a provision which
appears to have been contained in the bill when intro-
duced into parliament, but which was struck out in com-
mittee, for the application of the surplus proceeds of the
old road, after payment of the old mortgages, to the dis-
charge of any monies borrowed for the purposes of the
Act, and the interest thereon : but of course we must con-
strue the Act as it stands, and I may add, that, in my
opinion, the inference attempted on the part of the trus-
tees to be deduced from this provision having been struck
out, is not well founded. Upon the whole, therefore, I
think that the trustees had power to mortgage the tolls,
toll-gates and toll-houses of both the roads, for the pur-
pose of raising money to make the new road. The trus-
tees then having this power, I take it to be clear, that
Lord Crewe has a charge upon the tolls, toll-gates and
toll-houses of both the roads; for it is clear, that the
monies were advanced by him upon an agreement that
they should be secured upon both the roads, and that it
was intended that they should be so secured by the mort-
gage, and so far, therefore, as the mortgage does not ex-
tend, there must be a charge in equity.

Then

CASES IN CHANCERY. 109

Then it is insisted on the part of the trustees, that ioo7.
Lord Crewels proper remedy is at law, and that he is Lord C&ewe
not entitled to enforce his rights in equity by the ap- *•

pointment of a receiver. This point has not seemed to
me to be free from difficulty, but upon the whole I think
Lord Crewe is entitled to a receiver. This Court un-
doubtedly appoints a receiver, where the possession
cannot be recovered at law, as in the case of Knapp
▼. Williams (a), where the mortgage was of the tolls
only, and in this case, notwithstanding the provisions
of the 3 Geo. 4, c. 126, s. 49, on which the trustees
relied, I strongly incline to think, that, the tolls being on
lease, and there being other mortgages. Lord Crewe
could not recover at law without its being first ascertained
what is due on the other mortgages, for by the 4 Geo. 4,
c. 95, s. 58, the lessee of the tolls is entitled to hold so
long as he duly pays his rents and performs the cove-
nants in his lease, and looking to the form of the mort-
gage, and also to the provisions of the special Act, I do
not see how it could be ascertained without an account
to what portion of the rent Lord Crewe is entitled.
It seems to me, therefore, that an account must be
necessary before the possession could be recovered at law,
and this Court, having jurisdiction to take the account,
would not, I think, send the parties to law for the pur-
pose of recovering the possession after the account was
taken. The amount due might indeed be varied
after the account had been taken. It is to be ob-
served, too, that the rights under a mortgage of this
description differ materially from the rights under an
ordinary mortgage of land. Under an ordinary mort-
gage, the mortgagee, when he enters into possession,
holds for his own benefit. Under a mortgage of this
description he becomes, when he enters into possession,

liable
{d) 4 Fff.430.

CASES IN CHANCERY,

1867.

Lord Crewe

Edlbston.

liable to the other mortgagees to the extent of their
interests. This liability, I apprehend, would entitle him,
immediately upon possession taken, to come to this
Court to have it ascertained what is due upon the other
mortgages, and for a receiver to aid him in the due applica-
tion of the tolls, and if this Court can be called upon to
appoint a receiver immediately after the possession re-
covered at law, it can hardly be necessary that the pro-
ceedings at law should first be taken.

Another part of the case made by this bill is as to the
removal of the toll-gates, and the alleged consequent
reduction of the tolls, and the case of Cooper v. Cooper
was referred to upon that point. When that case was
before me I thought, and I still think, that the clauses
of the general Acts, as to the reduction of tolls and the
removal of gates, are quite distinct. The clause as to the
reduction of tolls applying to the rate of toll, and there
being no irreparable injury, I did not think there was a
case for the interference of the Court. In this case it
appears from the evidence that the gate at Crewe, one
of the gates which has been removed, was only put up by
way of experiment, and that, in lieu of the Gorsty Lane
Gate, another gate has been put up at Nantwichy which
produces about the same amount of toll, and under these
circumstances I think that, in this case, there is not at
present sufficient ground for the interference of the
Court as to the removal of the gates. The trustees,
however, may find themselves much mistaken if they
attempt to avail themselves of their power to remove the
gates with any view or purpose of eflecting a reduction
of the tolls. The case of Cooper v. Cooper was not
intended to give, nor does it I think give, any sanction
to such a proceeding, and if it be attempted the Plaintiff
will be at full liberty to apply to this Court if not in this
at all events in some other suit. The Plaintiff may do

CASES IN CHANCERY. Ill

Lord Crewe

SO also if the trustees should be so ill advised as to abuse 1857.

their powers by any improper or unnecessary expenditure

in the improvement or repair of the roads. v.

Edlebton.

The decree, I think, must be to declare, that under
and by virtue of the mortgage dated the ^Ist July
1849, in the pleadings mentioned, and under and
by virtue of the agreement whereon the said mortgage
was founded, the Plaintiff was and is entitled to a charge
on the tolls, toll-gates and toll-houses, both of the old
road and of the new road in the pleadings mentioned,
for securing the sum of 2,000/. with interest thereon at
the rate of 4/. per cent, per annum ; and the Plaintiff
having offered to pay to the Defendants the mortgagees
respectively the principal and interest due to them re-
spectively on their respective mortgages, and the said
mortgagees respectively having agreed to accept such
payment, let the said Plaintiff pay to the said Defendants
the mortgagees respectively what is due and owing to
them respectively on their said respective mortgages, to-
gether with their costs of this suit to be taxed as after
mentioned ; and let an account be taken of what is due
for principal and interest on the said mortgages re-
spectively, in case the parties differ about the same;
and upon such payment being made to the Defendants
the mortgagees respectively, let the said Defendants the
mortgagees transfer and assign to the said Plaintiff their
said respective mortgages. Let a receiver be appointed
of the rents, profits and income of the said tolls, toll-
gates and toll-houses, but such receiver is not to in-
terfere with the letting of the said tolls without the
further order of this Court. Let the said receiver
so to be appointed pay and apply what shall be re-
ceived by him for or in respect of the rents, profits and
income of the tolls, toll-gates and toll-houses of the said
old road in the manner following, that is to say, in the

first

112 CASES IN CHANCERY.

1857. first place in payment to the said Plaintiff of the interest

_ ""^^^C^ upon the said mortgages so to be transferred and as-
LoRD Crewe . , , ^

o. signed to him as aforesaid, and then in payment of such

£dle8ton. smus of money as may be required by the Defendants the
trustees of the Act of Parliament in the pleadings men-
tioned to be paid by him for the expense of improving,
maintaining and keeping in repair the said old road, and
putting the said Act into execution with reference thereto,
and then in payment to the said Plaintiff of the principal
sums remaining due upon the said several mortgages so
to be transferred and assigned to the said Plaintiff as
aforesaid, and then in payment to the said Plaintiff of
what may be due to him for principal and interest of the
said sum of ^,000^, and for and in respect of the costs
of this suit, and of such other sum or sums of money, if
any, as may hereafter be borrowed under the provisions
and for the purposes of the said Act, upon the security
of the tolls, toll-gates and toll-houses of the said old road,
rateably and in proportion to their respective amounts. A
like direction as to the tolls of the new road, merely vary-
ing the order and adapting the language of the previous
directions, — first, to be applied in payment of such sums
as may be required by the trustees for improving, main-
taining or keeping in repair the new road and putting
the Act into execution with reference thereto ; then in
payment of interest of the 2,000/. and the other sums, if
any, borrowed on the credit of the new road, rateably ;
then in payment to Plaintiff of the principal of the 2,000/.
and the costs of this suit, and of the monies due on the
mortgages transferred to him, and of other sums, if any,
hereafter borrowed on the tolls of the new road. Then
dissolve the injunction as to removal of gates and bars,
without prejudice to any question. Continue the re-
mainder of the injunction. Tax the costs of the mort-
gagees and of Plaintiff. Plaintiff to pay the costs of
mortgagees and add them to his own. And declare that

the

CASES IN CHANCERY.

lis

the Defendants the trustees are not entitled to be paid
any costs of this suit, to the prejudice of or so as in any
manner to afiect the rights and interests of the said
Plaintiff. Restrain them from making any mortgage for
such costs. Liberty to apply.

1857,

Lord Crewe

Edleston.

The Lord Justice Knight Bruce concurred.

STROUGHILL v. GULLIVER.

Re GULLIVER.

rriHIS was an appeal directly from a decision of the
Vice-Chancellor Stuart made in Chambers, with-
out the case having been heard by his Honor in Court
or with the assistance of Counsel.

Mr. Giffard appeared in support of the appeal.

Mr. Malins for the Respondents.

Their Lordships said that they should in general
decline to hear appeals directly from Chambers where
the parties had not had an opportunity of being heard by
Counsel. They had so heard them in one or two cases,
but the circumstance of the case not having been argued
by Counsel had not been called to their attention. Their
Lordships considered parties entitled to an opportunity
of having their case so argued if they thought fit, and
declined to hear the appeal.

1857.

AprU 30.

Before The

Lords
Justices.

This Court will
not in general
hear appeals
directly from
Chambers,
where the par-
ties have not
had an oppor-
tunity of Deing
heard by
Counsel.

Vol. I,

D.J.

114

CASES IN CHANCERY.

1857.

May 2, 4.

Before The

Lord Chan*

cellar Lord

Cramworth.

A term of

J rears was
imited by
will to trustees
upon trust, if
there should

WALMSLEY v. VAUGHAN.

rpHOMAS DICKIN the elder, by will dated llth
January 1805, devised certain real estates to his

eldest son Thomas Dichin for life, with remainder to
trustees to preserve contingent remainders, with remain-
der to T, Watford and J. Walmsley, for a term of 600
years, with remainder to the first and other sons of ITuh

there should ^^^^ Dickin, the son, successively in tail,
be two or more ' ^

younger chil-
dren of r.D.,

to raise for
their portions

the son (besides an eldest or only son), the trustees should,
after the decease of Thomas Dickin the son, raise and
levy such sum and sums of money for the portion and
portions of all and every such child or children of Tho^
mas Dickin the son (other than and except an eldest or
only son), and to be paid in such parts, shares and pro-

The trusts declared of the term were, that in case there
should be one or more child or children of Thomas ZHckin

sums, not
exceeding
8,000/., as
T. D. should
appoint, and,
in default of
appointment,
the sum of
8,000/. to be

paid to such of portions, at such time and times, and in such manner as
and in such thereinafter mentioned (that was to say), in case there
'hS'^id*' '^'^' should be only one such child (not being an eldest or

point, and in only

default of ap-
pointment, to all the children equally. T. D., by his marriage settlement, directed
that 6,000/. should be raised for the younger children of that marriage, if two or more,
and that if he should survive his intended wife and die without being married again,
or if so married, should not have any issue of any future marriage who should Xaie an
interest in the sum provided by the will for younger children, then the further sum of
2,000/. should be raised for the younger children of the first marriage, if there should
be two or more. Neither the will nor the settlement contained a hotchpot clause.
Afterwards T. D. appointed to one of his daughters ** the sum of 2,000/., part of the
sum of 8,000/., made raisable by the will in the event which has happened, of there
beine two or more younger children." T. D. died in the lifetime of his wife.

Held, that, on the construction of the will, 8,000/. was to be raised, unless 7*. D.
directed that a less sum and no more should be raised, and that neither of the instm-*
ments executed by him contained anything amounting to such a direction, and that
therefore 8,000/. and not 6,000/. only must be raised.

SembUf that T. D,*s settlement ought to be construed as directing that if no child
of a future maniage became entitled, the additional 2,000/. should be raised for the
children of the first marriage.

Held, reversing the decision of the Court below, that the appointee of 2,000/.
entitled to participate in the unappointed 6,000/.

CASES IN CHANCERY.

115

only son), then upon trust to raise and levy for the por-
tion of such childi were such child a son or daughter,
such sum or sums of money not exceeding the sum of
5,000/., as Thomas Dichin the son should by deed or
will direct or appoint, and in default of such direction
and appointment, then the sum of 5,000/. And in case
there should be two or more such children (not being
either of them an eldest or only son), then upon trust to
raise and levy for the portions of such children, were such
children sons or daughters, such sum or sums of money
not exceeding the sum of 8,000/., as Thomas Dichin the
son should by such writing or writings, or last will and
testament as last aforesaid, direct or appoint, and in de-
fault of such direction and appointment, then the sum of
8,000/., and such portion or portions to be paid to or
among such of the said children, if more than one, in
such parts, shares and proportions in such manner as
Thomas Dichin the son should by any such writing or
writings, or last will and testament as last aforesaid,
direct or appoint, and in default of such direction and
appomtment, then to and amongst all such children in
equal shares and proportions ; and the portion or portions,
share or shares of the said child or children to be paid
onto them, being a son or sons, at his or their age or re-
spective ages of twenty-one years, and being a daughter
or daughters, at her or their age or respective ages of
twenty-one years, or day or days of marriage which should
first happen, if such age or ages, time or times should
happen after the decease of their said father, and if before,
then to become vested at such age or ages, time or times
respectively, and to be paid at the end of six calendar
montiis next after the decease of their said father, with
interest as therein mentioned.

1857.

Walmslet

Vauoban.

The testator died in November 1805. John Walmsley
his co-trustee, and died in 1825.

IS In

116

CASES IN CHANCERY.

1857.

Walmslby

Vauohan.

In 1827, Thomas Dickin the son married Miss
Massy, In contemplation of this marriage a settlement,
dated 10th October 1827, was executed, by which, after
reciting, that the marriage was intended, and reciting the
testator's will, and that it had been agreed, that the
father of the intended wife should on the marriage trans-
fer to T. Dickin the son 4,000/. stock, as part of her
fortune, and should transfer to two trustees therein
named 2,000/. stock, upon the trusts thereinafter de-
clared, and reciting that these transfers had been made,
T, Dickin the son, " in consideration of the said intended
marriage, and for making a competent provision for the
said Jane Massy, in case of her surviving the said T.
Dickin her intended husband, and for the younger chil-
dren of the said intended marriage, if any such there shall
be, and also for and in consideration of the sum of
4,000/., &c. having been so transferred as aforesaid, &c.,
and likewise in consideration of the said sum of 2,000/.,
&c., having been so transferred, &c.," and in exercise of
a power in the testator's will, limited a jointure to his in-
tended wife. By a subsequent operative part, T. Dickin
** for the considerations hereinbefore expressed," and in
exercise of the powers of the will, did irrevocably direct,
limit and appoint, that the personal representatives for the
time being of the said John Walmsley deceased should,
immediately after the decease of T/iomas Dickin the
son, in pursuance of the trusts of the term of 600 years
by the said thereinbefore recited will created, and then
vested in them as aforesaid, and by the ways and means
by the said will directed, raise and levy for the portion or
portions of the child or children of Thomas Dickin the
son by his then intended wife, (other than and except
an eldest or only son,) the several sums of money re-
spectively thereinafter mentioned, (that was to say,) in
case there should be only one such child (not being an
eldest or only son) the sum of 4,000/. as and for the por-
tion

Vauqhan.

CASES IN CHANCERY. 117

t!on of such child, were the same a son or a daughter, 1857.
and if there should be two or more children, other than „.

Walmsley

and besides an eldest or only son, then the sum of v.

6,000/. for the portions of such two or more children.
And Thomas Dickin the son, in further pursuance of the
power, irrevocably directed and appointed, that in case
he should happen to survive his then intended wife, and
should afterwards die without having been married again,
or if so married should not have any issue of such second
or other marriage who should take an interest in the sum
provided by the will for the portions of his younger chil-
dren, then and in such case the personal representatives
for the time being of the said JoJm Walmsley deceased
should, in further exercise of the trusts of the said term
of 600 years, and by the ways and means in the said
thereinbefore recited will directed, raise and levy in ad-
dition to the portions thereinbefore provided for the child
or children of the said then intended marriage, except an
eldest or only son, such further sums of money as there-
inafter mentioned (that was to say), in case there should
be only one such child, not being an eldest or only son,
the sum of 1,000/. for the portion of such child, were the
same a son or daughter, and if there should be two or
more such children, other than and besides an eldest or
only son, the sum of 2,000/. for the portions of such two
or more children. Then followed a declaration by Tho-
mas Dickin the son, that he had not exercised, nor did
he intend by that deed to exercise, any of the powers
given to him by the will, as to directing in what shares
and proportions the several sums thereinbefore directed
to be raised for the benefit of the younger children of the
then intended marriage should be divided amongst them,
nor as to the times and manner of the vesting and pay-
ment of such sums respectively, nor as to the amount to
be from time to time raised for the maintenance and edu-
cation of such younger children respectively, but that he

reserved

118

CASES IN CHANCERY.

1857.

Walmslbt

VAvoaAif.

reserved to himself the powers and authorities by the
will given to him touching the matters last aforesaid, to
be exercised by him when and as he should thereafter
find it expedient. But in default of any direction and
appointment in exercise of such powers and authoritiesj
he declared that the sums thereby appointed should be
vested and payable at such times and in such parts, shares
and proportions, and in such manner, and with such
trusts for maintenance and education, as in and by the
said will were expressed and declared in default of such
direction and appointment by him. The settlement then
proceeded to declare the trusts of the sum of S,QOO/.
stock above referred to, which trusts were for the benefit
of Thomas Dickin the son and Jane his wife, and their
children, except an eldest or only son.

The will contained no hotchpot clause. The set-
tlement contained one which applied exclusively to the
2,000/. received from Mr. Massy.

There were seven children of the marriage, of whom
T. A. M, Dickin was the eldest son.

In 1855, Catherine Massy ZHckin, one of the
daughters who had attained twenty-one, married Mr*
J. li. C. Vaughan. In contemplation of this mar-
riage a settlement, dated 14th August 1855, was exe-
cuted, which recited, that it had been agreed that 71
Dickin the son *' should, in pursuance of the power
for that purpose given to him by the will of Tliomag
Dickin next hereinafter recited, appoint the sum of
2,000/. upon the trusts and in manner hereinafter
particularly mentioned," and then recited the testator's
will and his death, and that in pursuance of the above-
mentioned agreement, and in consideration of the mar-
riage, 71 Dickin the son was *' desirous of appointing
the sum of 2,000/., part of the portion or sum of 8,000/.

CASES IN CHANCERY.

119

by jtbe said will nqade raisable for the portions of the
younger phildren of the said T. Dickin party hereto as
aforesaid, in favour of the said C M» ZHckin, one of the
adult children of the said T. Dickin party hereto, in
such manner, and upon and for such trusts, ends and
purposes, as are hereinafter expressed and declared con-
cerning the same/' T. Dickin the son then appointed as
follows, — " That the sum of 2,000Z., part of the said sum
of 8,000/. by the said hereinbefore in part recited will
made raisable under the trusts of the s^id term of (500
years therein contained in the event which has hap-
pened, of there being two and more such younger chil-
dren, shall immediately upon the sealing and delivery
of these presents (subject to the life estate of the said
71 Dickin), vest in, and that the same when raised under
the trusts of the said term of 600 years shall be paid or
transferred to the said JS. G. C. Vaugkan and T. G, JBallj
their executors, administrators and assigns, upon trust,
&c." The trusts were for Miss Dickin till the marriagei
and afterwards for herself, her husband and children. This
settlement was executed by Miss Dickin as well as by
her father.

1857.

Walmslbt

Vaughan.

Thonuu Dickin the son died shortly after the execu-
tion of this settlement, }eaving his wife (formerly Miss
Ma$8y) surviving. The present suit was instituted by
the representatives of the surviving trustee of the term,
to obtain the directions of the Court as to whether
8,0002. or 6,(X)0/. only was to be raised, and whether
Mrs. VOfUgkan was entitled to participate in the unap«
pointed part of the fund.

Vice-Chancellor Stvxirt decided, that 8,000Z. was to
be raised, and that Mrs. Vaughan took only the 2,(XX)/.
appointed by her settlement, and was not entitled to
share in the remaining 6,000/.

Mr.

120 CASES IN CHANCERY.

1857. Mr. and Mrs. Vanghan appealed against so much of

^y^"^"^^ the decree as was grounded on the latter point, and the

o. tenant in tail against so much as was grounded on the

Vauohan. former.

Mr. JBaconand Mr. H. Humphreys^ for Mr. and Mrs.
Vaughan and their trustees, in support of the first
appeal.

We are satisfied wiih the decree so far as it declares
that 8,000/. is raisable. We submit that this is correct,
for that under the will and the deed of 1827, apart firom
the deed of 1855, 8,000Z. is raisable. But if not, then
the latter deed is an appointment of the remaining
2,000/. We submit, however, that the decree is clearly
wrong in excluding Mrs. Vaughan from participating in
the unappointed 6,000/., Wilson v. Piggott (a), Simpson
V. Paul (6), Wombwell v. Hanrott (c). In Foster v.
Cautley (d ) there were special words which took the
case out of the general rule, but none such are found
here.

Mr. Cairns and Mr. Amphlett, in support of the
appeal of the infant tenant in tail.

The will gave to Thomas Dichin the son two powers —
to direct how much should be raised, and to direct how
it should be disposed of when raised. By the deed of 1827
he irrevocably appoints, that in the event of there being
two or more younger children of the intended marriage
6,000/. shall be raised for them. He then provides that
2,000/. more shall be raised for them in certain events
which have not happened. The direction as to this

2,000Z.

(a) 2 Vet. J. 351 ; Sug, Pow. (c) 14 Beav. 143.

J/., 217, 7M ed. (d) 6 De G., M. i G. 55.

(6) 2 Eden, 34.

CASES IN CHANCERY.

121

2,000/. may be whimsical^ but it is clearly expressed,
and does not authorize the raising that sum in the events
which have happened. The intent of this settlement
was to regulate the interests of all the children in the
estate, to determine what amount of charge the tenant
in tail should have to bear, and what amount the younger
children should take. The settlor reserves his second
power, and clearly shows, that he understood himself to
have exhausted the first. We contend, therefore, that
after the appointment, which is in terms irrevocable, the
son had no power of directing more to be raised.

1857.

Walmslet

Vauohan.

But, supposing he had such power, we contend, that
he never exercised it. The appointment in favour of
Mrs. Vaughan contains no fresh direction to the trustees
to raise money, the appointor by it only exercised his
second power, viz., that of disposing of the 6,000/. It
will be urged that he refers to the 2,000/. as part of the
8,000/., but that on our construction is still correct, for the
2,000/. was part of the 6,000/., and therefore part of the
8,000/. mentioned in the will. Moreover the appointor
had directed that in some events 8,000/. should be
riused. To hold this deed to operate as an appointment
of the remaining 2,000/. is to impute to the appointor
the improbable intention, that he meant to deprive him-
self of the power to provide for the issue of a second
marriage.

Mr. Walker and Mr. H. Cadman Jones, Mr. Molina
and Mr. Sargent for the younger children other than
Mrs. Vaughan.

We contend that, putting the settlement of 1855 out
of the question, 8,000/. is raisable. If the donee of the
power made no appointment, then 8,000/. was to be
raised, and the true construction of the will therefore is,
that 8,000/. was to be raised, unless the son expressly

CASES IN CHANCERY.

1857.

Walmblbt
Vavouan.

or by implication directed, that a less sum and no more
should be raised. No such intention is shov^n. The
settlement of 1827 is purely a settlement on younger
children, and not intended to secure a benefit to the
eldest son. By that settlement 6,000/. was secured to
the younger children of that marriage in any event
But there is nothing indicating any intention, that in no
event should they have more. In fact it provided, that
in one event they shall have more.

If, however, a direction that the remaining 9fi0lQL
should be raised is requisite, the ill-drawn provision as to
the raising it applies on a fair construction to the event
which has happened, viz., that of there being no younger
children of a future marriage. If not, the power still re-
mained capable of being exercised, for a power may be
exercised toties quoties; Ite Simpsons Settlement (a)m
We then come to the settlement of 1855. That is so
expressed as to be an exercise of the power. No tech-
nical language is necessary, and the reference to the
8,0002. as being raisable is a sufficient indication of in-
tention, that it should be raised. The appointor was
then above seventy years of age, and had a wife living to
whom he had been married twenty-eight years; there
is, therefore, nothing in the argument that he thus de-
prived himself of the power of providing for the issue of
a future marriage.

Then we contend, that the whole scope of the settle-
ment of 1855 shows, that Mrs. Vaughan was to take
^,000/. as her share, and she is not entitled to participate
in the 6,000/.

The Lord Chancellor said, he should not call for a

(a) 4 De G. 4 Sm. 521.

CASES IN CHANCERY. 123

reply on Mrs. VaughcaCs appeal. The only question 1857.
was, whether 8,000/* or only 6,0002. should be raised. ^^^^<^

Walmilbt

Mr. Ampklett was heard in reply on this point. Vaugbaii.

The Lord Chancellor.

I have no doubt that the Vice-Chancellor, in deciding
that 8,000/. was to be raisedi came to a perfectly correct
conclusion*

I think that the intention expressed by the original
will was, that 8,000/1, if (here were two or more younger
Children of the son Thomas, should be raised, unless the
son Thamoi directed that a smaller sum only, and i^ot
8,000/., should be raised. That appears to me quite clear
from the language of the will.

Then what did Thomas do ? The 8,000/. was raisable
for all his younger children by any marriage. He mar-
ried Miss Massy, who brought a portion of 6,000/., an4
handed over to him 4,000/. of it. He then proceeds, in
exercise of the power he has under bis fisLther's will, to
make a pfovision for the younger children. It was con-
templated that he might survive his wife and marry
again ; therefore, by a stipulation with the father of the
lady, he makes an irrevocable provision, that if there
should be two or more younger children of that marriage,
6,000/. should be raised for them. If he bad stopped
there, I should have thought that he did not mean to
say that no more should in any event be raised, but
what follows shows to demonstration that he did not
understand himself to have said so. He provides for
what is to be done if he should survive his wife and not
marry again, or if he should marry again, but there
should be no children of the future marriage who should
take an interest in the sum provided by the will for the

portions

12* CASES IN CHANCERY.

1857. portions of younger children ; not saying that the other
^^^^^'^"'^ 2,000/. shall be raised for children of the future niarriaffe«

Walmslet , * ,

V. if there are any, but that if there are no children of the

Vauohan. future marriage who take an interest in it, the children of

his first marriage shall be entitled to take it, thus taking it

for granted that the whole of the 8,000/. was to be raised.

Now if it had been necessary, in order to raise the
8,000/., that Thomas Dickin the son should himself
direct the raising of that sum, I am inclined to think that
there would have been enough to enable me to say that
he had done so. I am the last Judge who would wish to
depart from the accurate meaning of the words used by a
party executing an instrument. If you follow his words
and do not hit his intention, that is his fault, bu^if you do
not follow his words, and do not hit his intention, then
that is the fault of the Court. I think the general rule of
the Courts is, to adhere strictly to the words used ; but
that rule must be departed from, where long usage, and
the canons of the Court, force the Court to construe the
words otherwise. Here, it appears to me, that this ge-
neral rule might properly be departed from ; for 1 think
that this case is analogous to those in which an estate is
given by a man to his wife for her life, but if she marries
again, then over. I think that the rule established in
those cases would apply here, and that T. Dickin the
son must be taken to have meant to say, '^ Having the
power of directing 8,000/. to be raised for my younger
children by any marriage, I irrevocably direct the sum
of 6,000/. to be raised for the younger children of this
marriage, and unless I marry again and have children by
the second marriage, then I direct the remaining 2,000/.
also to be raised for the children of this marriage."

But I do flot go upon that, for in my opinion the tes-
tator in 1805 directed that 8,000/. should be raised,

unless

CASES IN CHANCERY. 125

unless his son directed a smaller sum only to be raised, 1857.
and that if the son directed a smaller sum only to be JT'*"'^*^

, Walmslet

raised, then that smaller sum only should be raised. «.

1 think that the son provided expressly for the raising Vauohan.
a smaller sum ; but did not at all exclude the raising
a larger sum. It appears to me that this follows clearly
from the language he uses in the settlement of 1827,
and still more clearly from the language of the settle-
ment of 1855. What he appoints by the latter deed
is 2,000/., part of the 8,000/. Mr. Cairns and Mr.
Amphktt argued that the expression ''2,000/., part of
^e 8,000/.^' is fully satisfied, by taking it to mean 2,000/.
part of the 6,000/., for that the 6,000/. was part of the
8,000/., and that therefore the 2,000/. would be part of
the 8,000/. But that is not all that the appointor has
said. There is a recital of the will, and a recital referring
to ** the sum of 8,000/. by the said will made raisable for
the portions of the younger children of the said Thomas
JDickin party hereto as aforesaid." And then the son
appoints, '' that the sum of 2,000/., part of the said sum
of 8,000/., by the said hereinbefore in part recited will
made raisable, under the trusts of the said term of 600
^rears therein contained, for the younger children of the
said Thomas Dichin party hereto, in the event which
lias happened of there being two and more such younger
children, shall vest in, and that the same when raised
minder the trusts of the said term of 600 years shall be
paid and transferred, &c.," thus clearly showing his idea
^o be, that in the event which had happened the will was
to operate, and that 8,000/. was raisable under it. If it
'^ere necessary that there should be a direction by the
«on that 8,000/. should be raised, 1 think there is enough
%o enable me to say that he has so directed ; but I go upon
this, that the will directed the sum of 8,000/. to be raised,
unless the son should direct the contrary; and he has
xiot directed the contrary, therefore the will must govern.

With

WALMtLBT

1S6 CASES IN CHANCERY.

1857. With regard to the other point, I wish that I could

concar with the decinon of the Vice-Chancellor ; for I
feel satisfied that in all human probability I am defeating
VAvoHAif . ijjg intention of Mr. JMckin the son ; but I must follow
the canons of construction. I think that this case is a
striking illustration of the probability that the rule of
law as to the distribution of the unappointed residue of a
fund, where there is no hotchpot clause, generally dis-
appoints the intention. I cannot, however, recede from
the rule which has been laid down on .the suliject i if
that rule is wrong no Court but the House of Lords can
set it right, and I do not think that it would be wise even
for the House of Lords to attempt to shake a rule which
has been followed so long. I must, therefore, on Mrs.
VaughaiCs appeal, declare that Mrs. Vaughan is entitled
to share with the other younger children in the unap-
pointed 6,0002. The appeal of the tenant hi tail must
be dismissed, and be dismissed with costs.

CASES IN CHANCERY. IS7

1857.

BARTLETT v. BARTLETT.

April 18, 30.
rpHIS was an appeal by the assignees of William Before TAe

■^ OieeH Tucker, a bankrupt, from a decision of Vice- ^*>"'»» '"»-
Chancellor otuartj holding that a share of a fund in ^ aasiimed hia
Court had not passed to them as being within the order revenionary

and disposition of the bankrupt. f^nd in Court

to T., who ob-
tained the

The fund in question arose under the will of Nicholas common stop

Bartleit, who thereby bequeathed to his wife Elizabeth ^^^^

BariUtt and two other persons (whom he had appointed mortgaged this

his executrix and executors) the sum of G^OOO/. S/. per y^^ ^^ f^^j *'

cent. Bank Annuities, upon trust to pay the dividends to •*J*P.®^*' ^fj!

the wife for life ; and after her death, as to one-fourth of became bank-

the capital, upon trusts for the benefit of his daughter ™P* ^^""^ *•
, reversionary

Matilda Bartlett and her children ; as to another fourth, interest came
upon trusts for his daughter Sophia Bartlett and her ^^.^^^^L
children ; as to another fourth for his son James Bart- that it passed
lett, and as to the remaining fourth for his son W. JR. in bankruptcy
Bartlett ; and in case any of thiem the said Matilda ^^ ^°^ ^®

-rt mortgage, as

Bartlett, Sophia Bartlett, James Bartlett and W. JR. havingbeen
Bartlett should die in the lifetime of the testator's wife, JjJi^J'Si^
and as to his daughters without leaving any children or [MMition at the
child, then the testator gave the share or shares, both bankruptcy
original and accruing, of each child so dying to all such ^'^^^ **>« con-
of his other children as should be living at the death of true owner,
his wife, in equal shares as tenants in common. ,, ^^(fj *^"®*,,

^ that this result

was not pre-
▼ented bv the

After the testator's death the present suit was instituted fact that r.
for the administration of his estate,, and, pursuant to a ^^^*j**^*' f

decree H. in the

mortgage
transaction, and that H, relied on his doing whatever was necessary to make the
security perfect, or by the fact that B. knew of the mortgage.

128 CASES IN CHANCERY.

1857. decree of 12th June 1845, the sum of 5931/. 17$. 5d.
^^T^"^^*^ Bank Annuities (being the residue of the 6,000/. like

Bartlett \ o ^

V. stock after making certain deductions), was carried over

Bartlett. ^^ ,, .pj^^ account of the Defendant Elizabeth Bartlett,

widow, and her children."

Before this Sophia Bartlett had died a spinster, so
that the trust of one-fourth of the fund in favour of such
of the testator's other children as should be living at the
widow's death came into operation.

By an indenture dated 5th March 1846, Josiah
Bartlett, who was one of the seven children of the tes-
tator then living, assigned to William Owen Tucher
absolutely his contingent seventh share of Sophia*s fourth
share of the fund. On 25th April 1846 the usual stop
order was obtained.

By an indenture dated 27th October 1849 Tucker
mortgaged to Miss Holmes (now the wife of Captain
Monypenny), as a security for 184/., the share assigned
to him by the indenture of March 25th 1846.

No stop order was obtained by Miss Holmes. There
was some dispute whether Tucher was or was not em-
ployed by her as her solicitor in the preparation of this
mortgage, but it may be taken to have been proved that
he was.

On 26th October 1854 Tucher became bankrupt.
The present Appellants were his assignees.

On 26th September 1856 the testator's widow, who
was tenant for life of the fund, died. At this time only
five children of the testator were living, of whom Josiah
Bartlett was one.

CASES IN CHANCERY.

By an order made in the cause on 19th December
1856 provision was made for payment of certain costs
and of the legacy duty on the fund, and it was then or-
dered that the residue of the fund should be divided into
twenty parts, and that one of such parts should be carried
over in the cause to an account to be intituled ''The
account of the Plaintiff Josiah Bartlett and William
Owen Tucker and others his incumbrancers." The
share, which was accordingly carried over, amounted to
9021. I2s. Id. Bank Annuities. The assignment by
Josiah Bartlett, not having included his accrued shares,
affected only five-sevenths of the last-mentioned sum.

129

1857.

Bartlett

Bartlett.

Josiah Bartlett and Captain and Mrs. Monypenny
now presented a petition, praying that the 9S2L \2s. \d.
stock might be sold, the costs of all parties of the
petition paid thereout, and the residue divided into seven
parts ; that two of such parts might be paid to Josiah
Bartlett ; that if the remaining five parts did not exceed
what was due on the mortgage, they might be paid to
Captain Monypenny, but that if they did exceed it, then
that the residue of them, after paying what was due on
the mortgage, might be paid to the assignees.

On 13th March 1857 Vice-chancellor Stuart made
an order on this petition, directing that the ^2L \2s. Id.
should be sold; two-sevenths of the proceeds paid to
Josiah Bartlett and the remaining five-sevenths to
Captain Monypenny, and that the assignees should pay
the petitioners their costs of the petition. From this
order the present appeal was brought.

Mr. Chandless and Mr. Hardy, for the assignees.
We claim this fund as having been within the order and
disposition of the bankrupt at the time of his bankruptcy
with the consent of the true owner. Choses in action

Vol. I. K D.J. are

Bart LETT.

130 CASES IN CHANCERY,

1857. are goods and chattels within the meaning of the re-
Q puted ownership clauses in the Bankrupt Acts; JRyaU

V, V. JRowles (a). They clearly are in the order and dis-

position of the assignor till notice is given of the as-
signment, for the debtor or holder of the fund until notice
may safely pay the assignor ; Stocks v. Dobson (b). A
transfer of a chose in action is incomplete until notice ;
Etty V. Bridges (c). When the fund is in Court, instead
of being in the hands of an individual, a stop order must
be obtained, which stands in the place of notice to the
holder ; Greening v. Beckford (rf), Matthews v. Gabb (e\
Warburton v. Hill (f). The rule that notice is necessary
to take a chose in action out of the reputed ownership has
been held applicable to debts in Jones v. Gibbons (£) and
Gardner v. Lachlan (A) ; to policies of insurance in Wil-
liams v. Thorp (i), Duncan v. Chamberlayne (A), TTwmp-
son v. Speirs (/) and West v. Reid (iw) ; and to railway
shares in Ex parte Boulton, in re Sketchley (n). It is,
we submit, impossible to draw any substantial distinction
between those kinds of choses in action and the present.
The cases of Re Pole's Trust {p) and Re Rawbone*s
Bequest (p) are against us, but we submit that those
decisions run counter to the analogy of all the authorities
and cannot be supported. Ex parte Boulton (n) disposes
of the point as to Tucker's being the solicitor of Mrs.
Monypenny.

Kinderley v. Jervis {q\ Beavan v. Earl of Oxford (r).

Watts

(a) 1 Ves. sen, 348. (/c) 11 Sim, 123.

(b) 4 De G., M. 4- C. 11. (/) 13 Sim, 469.

(f) 2 y. 4 C. C. C. 486. (w) 2 Hare, 249-
{d) 5lSim. 195. (n) /w/ta, p. 163.
(e) 15 Sim. 51. (o) 2 Jur, N, S, 685.
(/) Kay, 478. (p) 3 K. ^ J. 300.

(g) 9 Va. 410. (g) 22 Beav, 1.
(A) 4 JW. 4 C. 129. (r) 2 Jw\ iV. S. 1121.
(i) 2 Sim. 257.

CASES IN CHANCERY. 131

Watts V. Christie (a) and Brearcliff v. Dorrington (b) 1857.
were also referred to. v^^/-*^

Bartlett

Mr. Selwyn and Mr. Waller^ for Captain and Mrs. Bartlett.
Monypenny,

We contend that an interest of this description does
not come within the meaning of the words ^* goods and
chattels,** as used in the 125th section of the Bankrupt
Law Consolidation Act. The policy of the Act was to
prevent traders from obtaining credit by a fictitious show
of wealth, and does not apply to property of which there
is no visible and notorious ownership. One of the
grounds on which it was held in Ex parte Barclay , re
Gawan (c), in conformity with many previous decisions,
that tenants' fixtures are not within the clause, is suffi-
cient to support our case ; viz., that credit is not given
owing to any appearance of wealth occasioned by the
possession of such property.

But supposing that an interest like this comes within
the words goods and chattels, we submit that, being rever-
sionary, it was not within the order and disposition of the
bankrupt ; -Er parte Newton (rf), lie Rawbone's Be-
guest (e). No cases go the length of deciding that a
reversionary interest falls within the rules relating to
order and disposition. And, as was intimated in Ex
parte Barclay, the doctrine of reputed ownership ought
not to be carried further.

The assignees coming in under the bankrupt as
claimants of an equitable chose in action must take it
subject to all prior equities ; Ord v. White (/), Smith v.

Parhes

(a) 11 Beav. 546. (d) 4 Dea. 4- Ch. 138, 140.

(6) 4 Dc G. 4- Sm. 122. (e) 3 K, Sf J, 300.

(0 5 De G., M. 4- G. 403. (/) 3 Beat?. 357.

132

CASES IN CHANCERY.

1857.

Bartlett
v.

BaRTL£TT.

Parkes{a), As between us and the bankrupt the as-
signment was complete and nothing more remained to
be done. Giving notice to a trustee is material with
regard to priorities as between different purchasers ; but
the assignment is complete as against the bankrupt
without any notice, and therefore ought to be held so as
against his assignees. Again, the fund, if in Tucker's
order and disposition at all, was in the character of a
quasi trustee for us, and in such a case the doctrine of
reputed ownership does not apply; Walker v. Sur-
nelKJb).

Supposing, however, that the Court is against us on
all these points, we say that there was no consent of the
true owners. Mere possession without that is not enough ;
West V. Skip (c). We trusted to Tucker ^ as our solicitor,
to do all that ought to have been done to make our security
perfect, and never consented to anything being omitted,
nor were aware that anything had been omitted, which
could tend to perfect our title ; Ex parte Rickardson (d).
The assignees coming in under Tucker cannot claim a
benefit from his having neglected his duty to us; Ex
parte Smytk, in re Bromley (e).

The decision in Pole's Trusts(f) is in our favour, and
we submit that the Vice-Chancellor's reasoning in that
case is sound, and that the. law is there correctly laid
down.

Re Atkinson (g) was also referred to.
Mr. Ckandless in reply.

(a) 16 Beav. 115.

(b) 1 DougL 317.

(d) Buck. iSO,

The

(e) 3 Af., D. 4- De C. 687.

( /•) 2 Jur. N, S, 685.

(g) 2 De G., M. if G. 140.

CASES IN CHANCERY.

138

The Lord Justice Knight Bruce.

A sum of stock — I think 5,931/. 175. 5rf. Three per
cent. Bank Annuities — stood in the name of the Ac-
countant-General in trust in this cause, to a separate
account; namely, to "The account of the Defendant
Elizabeth Bartlett, widow, and her children," one of
those children being the Plaintiff ./b^iaA Bartlett, whose
only title — whose only connection with the fund was in
respect of a contingent reversionary interest which he
had in it equitably under the will of the testator in
the cause, as one of his children by his wife the De-
fendant Elizabeth Bartlett, widow, who was, under
the will, entitled to the whole income for her life. It
was only in expectancy upon her death, and only in the
event of surviving her, that Mr. Josiah Bartlett was
interested. In this state of things Mr. Josiah Bartlett
sold, and by an indenture dated the 5th of March 1846
assigned, his reversionary interest in a portion of the
fund to Mr. Tucher, a solicitor, and they in consequence
obtained from the Court, in April 1846, what is called
a stop order. It was of course an order in the cause,
and is in these terms : —

" It is ordered that one undivided seventh part or
share of the petitioner Josiah Bartlett of and in the one
undivided fourth part or share, late of Sophia Bartlett
deceased, of and in the 5,931/. 17^. 5d, Bank 3/. per
cent. Annuities standing in the name of the Accountant-
General of this Court, in trust in this cause, * The ac-
count of the Defendant Elizabeth Bartlett, widow, and
her children,' and the dividends, interest and proceeds
accruing thereon from and after the decease of the said
Defendant Elizabeth Bartlett, be not transferred, sold,
paid out, or otherwise disposed of, without notice to the
petitioner William Owen Tucker.''

This order was noted in the proper book at the office

1857.

Bartlett

Bartlett.

April 30.

134 CASES IN CHANCERY.

1857. of the Accountant-General in the usual way, and must,

^'^^^'"^^ I think, be taken to have been so in the same year.
Bartlett

Bartlett. ]^j.^ Tucker became bankrupt in 1854, and the as-
signees under his bankruptcy are before the Court on the
present occasion. Mrs. Bartlett the testator's widow, the
equitable tenant for life of the fund, died in September
1856: upon which event, as she was survived by Mr.
Josiah Bartlett, the equitable title, under the assignment
of 1846, to the portion of the fund assigned by it,
became absolute and immediate; and had there been no-
thing more in the case, the right of the assignees under
Mr. Tucker's bankruptcy to receive the subject of the
assignment would have been indisputable. It appears,
however, that in the year 1849 Mr. Tucker mortgaged
the subject to Miss Holmes, now Mrs. Monypenny, so
that, if there had been no bankruptcy, the right of that
lady and her husband Captain Monypenny to stand to
the extent of the mortgage in the place of Mr. Tucker
under the assignment of 1846 would have been clear.
But it is said, on the part of Messrs. Whitmore and
Barlow, the assignees .under the bankruptcy, that the
bankruptcy has made a material difference, and that they
are entitled to the benefit of the assignment of 1846 as
fully as if .there had been no mortgage — an assertion
founded, I need scarcely say, on the application or sup-
posed application of the bankrupt law as to order and
disposition and reputed ownership ; which application
Captain and Mrs. Monypenny oppose and deny. Upon
the death of Mrs. Bartlett it appeared, as I understand,
that Mr. Josiah Bartlett's share of the entire fund
amounted to ^2L I2s. Id. Three per Cents., and ac-
cordingly that portion of it was, under an order dated in
December 1856, separated from the rest and carried over
so as to stand in the name of the Accountant-General, in
trust in the cause to an account intituled ^' The account

CASES IN CHANCERY.

135

of the Plaintiff Josiah Bartlett and William Owen
Tucker and others his incumbrancers/' and is now I
believe so standing: of which sum of ^Q2L 12$. \d,
stocky as I collect, two sevenths were not and the other
five sevenths were affected by the assignment of 1846 to
Mr. Tucker. This I repeat was done before March last,
but whether upon notice to the assignees under the
bankruptcy I am uncertain. Matters being thus circum-
stanced, a petition in the cause was presented by Mr.
Josiah Bartlett and Captain Monypenny^ which prayed
thus — [His Lordship here read the prayer of the petition,
the effect of which is given above.]

1857.

Bartlett

Bartlett.

The petition having been amended in point of state-
ment, but not as to the prayer, was heard in March last

by one of th^ learned Vice-Chancellors, when his Honor
made upon it this order — [His Lordship here read the
<($rder under appeal.]

The appeal before us is on the part of the assignees
under the bankruptcy against the order juSt read, — those
gentlemen not only denying the title of Captain and Mrs.
Monypenny as against them, but insisting also that in no
event, especially under a petition so framed, ought the
costs to have been given as they were. The first ques-
tion, then, is, whether the interest, which Mr. Tucker
had taken under the assignment of 1846, was in his order
and disposition and reputed ownership at the time of the
bankruptcy. A stop order was not obtained after that
of 1846. It is not proved or suggested that, before the
bankruptcy, the Accountant-General, the Court of Chan-
cery, Mrs. BartUtty or any of her children, or any trus-
tee or executor of the will, had notice of the mortgage of
1840, except that it is alleged to be capable of proof that
Mr. Josiah Bartlett had, and I will assume, in favour of
the Respondents, that Mr. Josiak Bartlett had, actual

and

136

CASES IN CHANCERY.

1857.

Bartlett

Bartlett.

and direct notice of the mortgage of 1849 before the
bankruptcy. But I think the fact not for any present
purpose material. He never was a trustee^ nor was be
an executor, and the assignment of 1846 was not by way
of mortgage or security, but was absolute. It is true
that, contingently before, and, absolutely upon, the death
of his mother, he had an interest in the fund beyond that
portion of it which he assigned to Mr. Tucker; that
she (the tenant for life) was living at the time of the
bankruptcy and for more than a year afterwards, and
that while she was alive no human being could know
that she would not survive all her children ; but, as I have
said, Mr. Josiah Bartlett was not a trustee or an execu-
tor, and there was a residuary legatee of the testator,
namely, the widow herself, who, one of his executors,
was the only trustee or executor mentioned in the title
of the account to which the whole fund as I have said
stood : so that between the stop order and the bankruptcy
the fund was not safe from transfer. It appears to me, I
confess, that the interest in it, with which we are now
concerned, was a personal chattel in the order and dis-
position and reputed ownership of Mr. Tucker at the
time of his bankruptcy. But it is said not to have been so
with the consent or permission of the true owner. This
I fear cannot be maintained, for whether Mr. Tucker was
the solicitor of Miss Holmes in the transaction of her
mortgage or not, he does not appear to have practised
any fraud or deception or suppression upon or towards
her. Mr. BacorCs case under the bankruptcy of Mr.
Sketckley, recently decided here, was, I continue to think,
correctly determined by my learned brother and myself;
nor need I repeat the observation on Mrs. Smyth's case,
under Mr. Bromley's bankruptcy, which I made on that
occasion. It seems to me that the consent and permission
existed here, and that the assignees' title must prevail
against the claim of Captain and Mrs. Monypenny. I

think

CASES IN CHANCERY.

137

think that to hold otherwise would be substantially incon-
sistent with Ryall v. Rowles, with Hennessey's Case (a),
and with other authorities. It may be that this conclu-
sion is opposed to the cases^ or one or more of the cases,
cited at the Bar during the argument on the part of
Captain and Mrs. Monypenny. So far, however, if at
ally as they support the claim of Captain and Mrs. Mony-
penny in the present contention, I consider myself not at
liberty to follow them.

The Lord Justice Turner.

This is an appeal by the assignees of William Owen
Tucker, a bankrupt, from so much of an order of the
Vice-Chancellor Sir J. Stuart, made upon the petition of
Josidh Bartlett and William B, Monypenny, and dated
13th March 1857, as orders that five-sevenths of the
produce of a sum of 292L \2s. Id. Bank 3/. per cent.
Annuities standing in the name of the Accountant-General
in trust in this cause, " The account of the Plaintiff
Josiah Bartlett and William O. Tucker and others his
incumbrancers,*' should be paid to W, B, Monypenny,
and that the Appellants, the assignees, should pay the
costs of the application. It appears that in the month of
March 1846, the Plaintiff J^ Bartlett was entitled, con-
tingently upon the event of his surviving his mother,
Elizabetk Bartlett, to one-seventh of one-fourth of
5,931/. 17«. 5d. Bank 3/. per cent. Annuities, then stand-
ing in the name of the Accountant-General in trust in this
cause, " The Account of the Defendant Elizabetk Bart-
lett, widow, and her children ;" the Defendant -B. Bart-
lett, widow, being entitled for her life to the income of
the whole of the fund: that by an indenture dated 5th
March 184G, the Plaintiff Josiak Bartlett assigned the
one-seventh of one-fourth to which he was thus entitled
to W. O. Tucker: that W. O. Tucker thereupon ob-
tained

(«) 2 Dru. 4- War. 555.

1857.

Bartlett

Bartlett.

138

CASES IN CHANCERY.

1857.

Bartlett

Bartlbtt.

tained a stop order upon the fund, the purport of which
has been stated by my learned brother : that W. O. Tucker
afterwards, by an indenture dated the 27th October
184S, mortgaged the one-seventh of one-fourth of the
fund which had been assigned to him by J. Bartlett to
Caroline Holmes (who subsequently intermarried with
the Petitioner W. B, Monypenny) for securing the sum
of 184/. and interest: that no stop order was obtained
upon this mortgage, and no regular notice of it was
served upon any party, but it is alleged that Josiah
Bartlett knew of the mortgage: that in the year 1854
W, O, Tucher became bankrupt, and that the Appellants
are his assignees: that W, O, Tucker was a solicitor;
that he acted as the solicitor of Caroline Holmes before
the mortgage to her was made and up to the time of his
bankruptcy, and that he prepared the mortgage in ques-
tion on the behalf of Caroline Holmes, and was relied
on by her to do all that was necessary to complete it:
that in September 1856, Elizabeth Bartlett died, and that
the Plaintiff «/b#uzA Bartlett having then, by the happen-
ing of contingencies, become entitled to one-fifth instead
of one-seventh of the one-fourth of the 5,931/. lis. 5d.
Bank 31. per cent. Annuities, it was by an order dated
the 19th December 1856 ordered, that one-twentieth
part of that fund should be carried over to the account of
" The Plaintiff Josiah Bartlett and W. O. Tucker and
others his incumbrancers :*' that in pursuance of this order
2921. I2s. Id. Bank 31. per cent. Annuities was carried
over accordingly, as and for the one-twentieth part of the
fund, and that a petition having been thereupon pre-
sented by the Plaintiff J. Bartlett and W. B. Mony-
penny, the prayer of which has been stated by my learned
brother, and having been served upon the Appellants
the assignees of W. O. Tucker, the order under appeal
was made upon that petition, notwithstanding the op-
position of the assignees, who contended that the five-
sevenths

CASES IN CHANCERY. 189

sevenths of the fund belonged to them, under the 125tb 1857.

section of the Bankrupt Act, as having been in the order ^•^'^'^^^

and disposition of W. O. Tucker ^ the bankrupt, at the «.

time of his bankruptcy, with the consent and permission Bartlett.
of the true owner.

Upon the argument of the appeal some doubt was
suggested whether a contingent reversionary interest falls
within the description of goods and chattels in the above-
mentioned section of the Act ; but the words '^ goods
and chattels" are words of most extensive import. Unless
controlled by the context, they comprise all the personal
estate of whatsoever nature or description. I see nothing
in the context of this Act to control them ; and looking
to the general import of the words and to what was said
in the case of Myall v. Howies, I do not think — speaking
with all respect to the contrary opinion said to have
been expressed upon the subject in lie Rawbone^s
Trust — that any serious doubt can be entertained upon
this point.

The Respondents to this appeal relied much more
strongly upon the point that this contingent reversionary
interest was not in the order and disposition of the
bankrupt Tucker with the consent and permission of the
true owner, the mortgagee, and in this no doubt they are
supported by the opinion of the learned Judge from
whose judgment this appeal is presented. But the Re-
spondents did not rest their case wholly upon the learned
Judge's opinion. They said that it could be shown that
Jasiah Bartlett knew of the mortgage ; and certainly if
the rights of the Respondents could be improved by
proof of such knowledge on his part, we should not be
justified, under the circumstances of this case, in reject-
ing such proof. I think, however, that it is wholly im-
material whether Josiah Bartlett did or did not know of

the

140

CASES IN CHANCERY.

1857.

Bartlett

Bartlbtt.

the mortgage. He had parted with his whole interest in
the fund in question. He was not a trustee of that
fund. He was under no obligation or duty to inform the
Court that the mortgage had been made. He could
incur no liability by withholding that information ; and
it does not seem to me, therefore, that the case can be
altered by his having known of the mortgage, if he did
in fact know of it.

The case then must be decided upon the materials as
they stand before us and as they stood before the Vice-
Chancellor, and I regret to say that I cannot agree in
the conclusion at which the Vice-Chancellor has arrived.

Looking at the question upon principle, what is the
object of the enactment? Clearly to prevent credit being
obtained by an apparent ownership, assumed with the
consent and permission of the true owner. To confine
the enactment to cases in which there is a visible owner-
ship would be to subvert decisions without end upon the
subject, nor would it be consistent with the object of the
enactment, for credit may be got as readily upon pro-
perty in which there is not, as upon property in which
there is, a visible ownership. Considering then the
enactment to extend to personal chattels in which there
is no visible ownership, when (to adopt the language of
the Statute) is a bankrupt to be said with the consent
and permission of the true owner to have had in his pos-
session, order or disposition goods and chattels of this
description whereof he was the reputed owner or whereof
he has taken upon himself the sole alteration or dispo-
sition as owner? How is the true owner to prevent the
reputed ownership ? How can it be prevented otherwise
than by notice to the person who is under liability in
respect of the chattels ? The law has said this is the
mode of preventing reputed ownership as to debts ; and

CASES IN CHANCERY.

141

is there to be one law as to debts and another as to
legacies ? The plain object of the Statute is, that the
true owner shall not permit the order and disposition to
remain with the bankrupt ; and if he does not take the
steps which are necessary to prevent it, surely he must
be taken to permit it. To apply these observations to
the case before us. Tucker ^ the bankrupt, was absolutely
entitled to this fund by the assignment and the stop
order. He mortgaged it. The mortgagee then became
the true owner. The mortgagee might, if she had
thought fit, have applied to the Court for a stop order.
Neither she nor her husband did so. It is not denied
that if Tucker had sold or mortgaged his interest to
another person, and his vendee or mortgagee had ob-
tained a stop order, the vendee or mortgagee would have
been entitled to the fund. Can it then be said that the
fund was not in the order and disposition of Tucker?
The Vice- Chancellor seems to have considered that
notice was material only upon the question of priority,
but I cannot agree with him in this. No doubt it is
material, and most material upon that question, but it is
certainly not less material with reference to bankruptcy
to prevent the operation of this enactment. Again, the
Vice-Chancellor treats the assignees as standing in the
place of the bankrupt and entitled only to an equity of
redemption, but in this view of the case no effect is given
to the statutory title of the assignees under this enact-
ment. Looking therefore to the purpose of this enact-
ment and to the facts of the case, without reference to
decided cases, this reversionary interest ought in my
opinion to be considered to have been in the order and
disposition of Tucker^ with the consent and permission
of Mr. and Mrs. Monypenny the true owners ; but then it
has been said, that the weight of authority is in favour
of the Vice-Chancellor's decision. I have, therefore,
looked into the cases which appear to have been cited

before

1867.

Bartlett
Bartlett.

142

CASES IN CHANCERY.

1867.

Bartlett

Bartlett.

before his Honor^ and which were cited in the argument
before us, and, upon examining those cases, I think,
that, so far from their being in favour of this decision,
they are decidedly opposed to it. It is true, as observed
by the Vice-Chancellor, that Lord Hardwicke, in West
V. Skip (a), says that possession alone will not be suffi-
cient to bring a case within the operation of this enact-
ment, but that is not all which Lord Hardwicke has said.
What he really said was this, that possession alone will
not be sufficient without proof of the consent of the real
owner to leave the goods in the power of the bankrupt, or
a laches in letting them remain there so as to gain him a
false credit. It is also true that Lord Mansfield, in Walker
V. BurnelHjb)y takes the same view of the law as to the
effect of possession alone ; but the case before Lord ManS'
field was a case of agency, and the assignees succeeded
in that case upon the ground that the bankrupt was their
agent. This decision, therefore, certainly cannot be rap-
ported upon the authority of those cases. The other
cases cited in favour of the Respondent's position were.
In re Atkinson (c). Ex parte Richardson (d) and Ex
parte Newtonie) ; but the case of In re Atkinson does not
touch this question. It was decided both by my learned
brother and by Lord St, Leonards upon the construction
of the then Insolvent Act, without reference to any
question of order and disposition. The case oi Ex parte
Richardson will also I think, upon carefully examining
it, be found to have as little bearing upon this point. In
that case it appears that the bankrupt before his bank-
ruptcy had written to the agents of the mortgagee, who
in the body of the report are by mistake stated to have
been his agents (a mistake corrected by the judgment),

desiring

(fl) 1 Ves, sen. 243.

(6) 1 Dougl. 317.

{d) Buck. 480.
(e) 4'D. 4- C. 138.

CASES IN CHANCERY.

143

desiring that a power of attorney might be obtained for
the sale of the mortgaged stock, in order that the pro-
ceeds might be paid to the mortgagee ; and the power of
attorney was not obtained only in consequence of a re-
presentation that the stock could not be transferred before
the long vacation ; but in fact it was transferred with-
out the knowledge either of the mortgagor or the mort-
gagee. It was clear, therefore, that the stock was never
intended to remain in the power of the mortgagor and
did not so remain with the mortgagee's consent or per-
mission ; and it was upon this ground, as I understand
the judgment, the case was decided. There remains,
then, only the case of £r parte Newton, and in that case
the Court of Bankruptcy appears to have proceeded on
a mistaken supposition that the assignment to the bank-
rupt passed nothing without notice to the trustee. I
think, therefore, that no weight ought to be given to these
cases in the determination of the question before us ; but
if any weight was due to these cases, I think far greater
weight is due to the authorities to which my learned
brother has referred, and which, in principle at least, are
supported by numerous other cases. It was attempted,
on the part of the Respondents, to support their case by
reference to Ord v. White (a) and cases of that class ;
but those cases cannot prevail against the express pro-
vbion of the Bankrupt Act.

1867.

Bartlett

Bartlett.

There remains then only the point as to the bankrupt
having been the solicitor of Mrs. Monypenny, on which
point the case of Ex parte Smyth was referred to ; but
that point was disposed of in the recent case in the matter
of Sketchley (&), and my learned brother then stated his
view of the case oi Ex parte Smyth. It is unnecessary,
therefore, for me to say more upon this point, than that

(a) 3 Beav. 357. (6) Infra, p. 163.

144 CASES IN CHANCERY.

1857. I adhere to the decision in the matter of Sketchier/. And

^^^^^ upon the whole this order must be varied, by directing

J5ARTLETT • rf»

V, the five-sevenths to be paid to the assignees and dis-

Bartlett. charging the order as to the costs ; the costs^ if paid, to
be refunded.

June 5.

DAY V. DAY.

Before The ^T^HE question in this case was, whether a sum of money
Lords A payable out of the fund in Court in this adminis-

JUSTICES. * •'^

In June T. Oration suit to Mr. William Owen Tucker, the solicitor
the solicitor of of the Plaintiffs, for his costs, passed to his assignees as
in an adminis- having been within his order and disposition at the time

trationsmt, ^f jjjg bankruptcy, or to a benefit society called the
assigned his ^ ^ r j' j

costs as a se- *' United Kingdom Benevolent Annuity Fund*' under a

dJbt? Notice particular assignment. The case came before the Court

of this assign- on appeal from the Master of the Rolls, who had decided

given to the ^^ favour of the assignees in bankruptcy ; but their lord-

Pliuntifis and ships, on the appeal coming on before them on 6th Micy,

tors of the tes- directed it to stand over, with liberty to the Appellants to

totor in Uie adduce fresh evidence ; and it now came on again with

cause* xn

Augutt an fresh evidence of such a character as to make this sub-

Ofdeir was

made on fur- stantially an original hearing,
ther directions
for payment to

r. of the The Appellants were the members of the committee of

Plaintiffi' , , , . 1 , .1

costs out of ^he above-named society, and as such committee they

Aefimds had on 6th January 1844 advanced to Mr. Tucker the

brought and to *^

be brought SUDU

into Court,

after satisfying certain prior demands. In October T. became bankrupt. ThA fund

in Court, at the times of the order on further directions and of the bankruptcy, waa

insufficient to pay the charges prior to 2\*s costs, but in January following a fund

was brought in by the executors applicable to payment of those costs. No stop-order

was ever obtained by the assignee of the costs.

Held, that this fund did not pass to the assignees in bankruptcy as having been

within Uie order and disposition of the bankrupt with the consent of the true owner,

but belonged to the assignee of the costs.

CASES IN CHANCERY. 145

sum o{250L, on the security of a promissory note and of 1857.
a policy of assurance on his life. The note was renewed
from time to time, and on 8th June 1854 Mr. Tucker^
being pressed for payment or security, gave to the
Appellant O. P. Pocock, as one of the committee of the
society, a memorandum in the following form : —

" June 8th, 1854.
'* Dear Sir, — In consideration of your having this day
renewed my promissory note for one month, I hereby
consent and agree to assign by way of charge the costs
due to me in a Chancery suit, amounting to upwards of
4002. ; and in which suit the Master has made his report
and the cause is set down to be heard before the Master
of the Rolls ; and there is a fund at the Accountant-
Generars to the credit of the cause Day v. Day : and
remain,

'* Dear Sir,

" Yours, &c.,

" W. O. Tucker."

On 4th August 1854 the cause came on for further
directions, and by order of that date it was ordered, that
out of 3261. 2s. Id. stock and 23L is. 9d. cash, standing
in trust in the cause, the sums of 159Z. lOs. 5d. stock and
IIL \0s. 9d. cash should be transferred and paid to the
Defendant Stephen Buckland, and that the Defendant J.
Z. Payton, one of the executors of the testator in the cause,
should on or before 10th November then next bring into
Court 553/. 7s., the amount of what was found due from
him to the testator's estate. It was then ordered, that,
out of the monies thus to be brought into Court, and the
residue of the cash in Court and the monies to arise from
the sale of the residue of the stock, the costs of the tes-
tator's personal representatives should first be paid ; and
that out of the cash which would remain after those

Vol. I. L D.J. payments.

Day

146 CASES IN CHANCERY.

1857. payments, the costs of the Plaintiffs, together with what
they should pay to certain of the Defendants whose costs
they were directed to pay, should be paid to Mr. W. O.

^^^' Tucker, the Plaintiffs' solicitor.

On the 7th October following Tucker was adjudged
bankrupt.

The 553/. 7«. which Payton was ordered to bring into
Court was not brought in till January 1855. After
(his, when the transfer and payment to Buckland had
been made and the costs of the personal representatives
taxed and paid, there remained in Court only 309Z. 14«.Gdf.
cash ; so that all the funds which were in Court before
January 1855 were exhausted in payment of claims
having priority to the Plaintiffs' costs.

The costs of the Plaintiffs were taxed at 408/. \5s. 6d,
and those of the Defendants, whose costs the Pliuntif&
were ordered to pay, at 76/. \5s. 6d.

The Appellants, as the committee of the Benevolent
Annuity Fund, then presented their petition in the cause
for payment to them of the cash in Court, they under-
taking to pay the costs which the Plaintiff had been
ordered to pay, after which the money would not be
sufRcient to pay what was due to them on the security
from Tucker.

The Master of the Rolls on 26th February 1857
ordered payment of the fund to the official assignee of
Tucker, after providing for the costs of both parties,
holding that it had passed to the assignees as having
been within Tucker's order and disposition at the time of
his bankruptcy, with the consent of the true owner, in-
asmuch as no stop order had been obtained. No evi-
dence was adduced before the Master of the Rolls that

notice

CASES IN CHANCERY. 147

notice of the security had been given to any one, nor did 1857.
the petition allege the giving of any notice.

The Petitioners appealed on the authority of the deci-
sion of Vice-Chancellor Stuart in Bartlett v. Bartlett,
and of some other recent decisions ; but before the appeal
came on to be heard the decision in Bartlett v. Bartlett
was reversed on appeal (a). When the present appeal
came on to be heard on 6th Mai/f it was stated at the
bar, that notice of the security had in fact been given to
the Plaintiffs and to the personal representatives of the
testator ; and the Court, at the request of the Appellants,
directed the appeal to stand over, with liberty to them to
adduce evidence that such notice had been given.

Tucker by an affidavit deposed, that he instituted the
suit in consequence of instructions received from a Mr.
Crawley, an agent of the Plaintiffs, and had never had
any direct communication with them, all communica-
tions being made through Mr. Crawley; that a notice
in writing of the security to the Appellants, which notice
was produced, had been delivered by him to M, F.
Thompson, who acted as his process server, with in-
structions to serve it on Mr. Crawley and on the personal
representatives and their solicitors, which instructions
the deponent believed had been acted upon; and that
R. JF. Thompson had since died. Mr. Crawley deposed
that to the best of his belief he received a copy of the
i)otice in June 1864, and shortly afterwards informed the
Plaintiffs of it. No clear and direct proof that the notice
had been received by the executors or their solicitors could
be obtained, but the evidence tended to show that it had.

Mr. Selwyn and Mr. Nalder, for the Appellants.

We do not dispute the decision on the appeal in Bart-
lett

(a) SuprOf 127.

148 CASES IN CHANCERY,

1857. leit V. JBartlett^ but we contend that this case is com-
pletely distinguishable from that. At the time when the
assignment was made there was no fund in Court appli-
cable to the payment of these costs, nor was there at
the time of the bankruptcy — the whole of the fund then
in Court having been exhausted by charges having
priority over the Plaintifis' costs. The Petitioners did all
they could. The costs, we submit, were at the time of the
assignment a mere personal debt from the Plaintiff, and
nothing more, no order having been made for payment of
them out of any fund; and if so, notice to the Plaintifis,
who were the debtors, was all that was necessary. If,
however, they are to be treated as having been a charge
on the fund out of which they were ultimately directed
to be paid, notice to the executor in whose hands that
fund then was completed the security. A stop order
could not have been obtained at the time when the se-
curity was taken, for, as there was no order for payment
of costs, the Petitioners had no interest in the fund on
which to ground a stop order. Had they applied for one
afler the hearing on further directions, it could not have
been drawn up before the long vacation.

Mr. Chandless and Mr. Hardy ^ for the assignees.

A prospective stop order, extending to funds to be
brought into Court, might have been obtained. The
memorandum does not treat the costs as a mere personal
debt, but refers to the fund, and the Petitioners were
bound to do all they could to make their lien upon it
complete. The propriety of obtaining a stop order is
shown by the fact, that the absence of it left Tucker at
liberty to show to the world an order for payment of
the costs to himself. At the time of his bankruptcy he
might have obtained advances on the credit of that order.
If the executors had any duty imposed on them by the
notice, which, we submit, is not the case, still if they failed

CASES IN CHANCERY. 14S

to discharge it, that does not excuse the Petitioners for 1857.

not doing all that they could. The evidence, moreover,

does not show that the executors received the notice.

The Plaintiflfs had never been ordered to pay these costs,

and notice to them was of no use. The case, we submit,

is governed by Bartlett v. Bartlett,

The Lord Justice Knight Bruce.

This, though in form, is not substantially a case of
appeal ; it is substantially an original petition, for the
materials on which we decide it were not before the
Master of the Rolls.

During the argument, the case of Bartlett v. Bartlett
was mentioned more than once. I continue to be of
opinion, that that case as decided by the Lords Justices
was rightly decided ; but the present controversy is, I
think, importantly different from that Here Mr.
IhtckeTf a solicitor, had been employed several years by
the Plaintiffs in an administration suit of Day v. Day,
and being pressed for money in May and June 1854, or
in one of those months, he gave to the Petitioners an
equitable security on the costs due to him as the solicitor
of the Plaintiffs in that cause — a security which, subject
to the questions of want of notice and want of due dili-
gence, was undoubtedly effectual. At the time when this
security was given, no decree or order had been made,
directing or providing for the payment of these costs or
any of them, by any person,, or out of any fund, Mr.
Tucker's only remedy for them was against the Plaintiffs
personally, but there was a reasonable hope that payment
of them out of the fund would be ordered. It therefore
Occurred to Mr. Tucker and the Petitioners, or one of
them, that it would be prudent that notice should be
Siven to an agent of the Plaintiffs, and to the Defendants,
^he executors of the testator whose unlucky estate was in

course

160 CASES IN CHANCERY.

1857. course of annihilation by means of an administration suit,
and to their solicitors ; and it appears, that at the time
Mr. Tucker directed a person in his employment, as clerk
or otherwise, to serve notices on all accordingly. That
gentleman is dead, and the question is, that fact being so,
whether it is a legitimate inference from the materials be-
fore us, that notice was given by him to all those persons.
I am satisfied by direct evidence that it was given to some
of them, and am satisfied that the legitimate inference
from the whole evidence is, that it was given to all. This
was in June 1854. Early in August following the cause
was heard for further directions, and provision was made
as to a small fund already in Court, and another fund
which was to be brought in ; and it was directed that, alter
providing for prior purposes, the funds should be applied
in payment of Mr. Tucker's costs. It happened that a
fund which ought to have been brought into Court in
November was not brought in till January; but this
is not material, for in October the bankruptcy of Mr.
Tucker took place. It appeared, when the fund had
been brought in, that the whole amount which was in
Court before the bankruptcy was insufficient to pay the
charges prior to Tucker* s costs ; and, therefore, neither
before nor at the bankruptcy was there one shilling in
Court applicable to the payment of that demand. After
that time, however, a fund came into Court, which has
enabled these costs to be in part provided for ; and the
question is, whether the sum payable in respect of them
was within the order and deposition of the bankrupt at
the time of his bankruptcy with the consent of the true
owner, the contention of the assignees being, that a stop
order, or something analogous to a stop order, should have
been obtained, to take this sum out of the reputed owner-
ship of the bankrupt.

Was there then any default on the part of the Peti-
tioners ?

Day.

CASES IN CHANCERY. 151

tionera? If the notices were given which I have sup- 1857.
posedi all was done that could be done ; for not only was |^^*^^
there no fund in Court, but no order for payment of any «.

costs had been made. I am of opinion, that the Peti-
tioners were not bound to apply to the^Dourt before the
4th of August, nor to know when the cause was heard
for ilurther directions, but that it was the duty of Tucker
and the executors to see that an order was not made for
disposing of the fund in derogation of their rights. In
a sense the fund may have been within the order and dis-
position of Thicker at the time of his bankruptcy, but was
it so with the consent of the true owners ? I am of opinion
that it was not, for that they had omitted nothing which
it was reasonably incumbent on them to do. I think,
therefore, that, consistently with all the cases which we
followed in Bartlett v. Bartlett, this case may be decided
in favour of the Petitioners, but on materials which were
not before the Master of the Rolls.

The Lord Justice Turner.

The question is, whether this fund was within the
order and disposition of the bankrupt at the time of his
bankruptcy with the consent of the true owner. Now in
truth this fund did not exist as a fund for payment of
costs at the time of the bankruptcy, for it never came into
Court till after that time. The costs comprised in the
security were a debt due from the Plaintiffs personally,
and the debtors had notice of the assignment. I think,
therefore, that the case must be decided in favour of the
Petitioners.

152

CASES IN CHANCERY.

1857.

Ex parte RAFAEL DEL BAR, GUSTAVE IM-
BERT and GEORGE KOHLSTEDT.

In the matter of LATHAM.

rriHIS was an appeal by Rafael del Bar Oustave
Imhert and George Kohlsiedt, who carry on business

Jpril 17, 25,
May 1.

Before The

Lords
j ubtices.

S. & J. of
Buenoi Ayres
boufiht from

La&amSr Co. at JBuenos Ayres under the firm of ** Renner del Sar
SX* and Imhert;' fron. two orders of Mr. Commissioner
June, ten bills Stevenson, refusing to allow them a lien on the proceeds

drewn by them , .

on Latham of certain bills of exchange, under the following cir-

Brotbers of cumstances.
Lwerpooi, the
sellers giving

an express as- The bankrupts carried on business at Liverpool as

surance that

they would merchants, under the firm of Latham Brothers. They
make remit- ^^^^ carried on business at Buenos Ayres, under the

tances to Li- ^ '

verpool to meet firm of Wilfred Latham and Co. The two firms held

1st™ ifftisl^ themselves out to the world as distinct firms, but it was
Latham & Co. deposed to by Edwin Latham, one of the bankrupts,
billsto Latham that the interests, assets and liabilities of the firms were
Brothers, with ^^ %2tme ; and it appeared from his evidence, that the

a letter spea- ^'^

fically appro- two

priatmg them

to meet the first ^ve of the purchased bills. On 8tb Avgutt Latham Brothers became

bankrupt. On 1st September, Latham & Co., not knowing of the bankruptey, de-

spatebed other bills to Latham Brothers, with a letter appropriating them to meet the

other five purchased bills. There was evidence to show that the firms of Latham 8e Co.

and Latham Brothers were identical.

Held, that the first remittance was effectually appropriated to meet the first Axe
purchased bills, whether the drawing and accepting nouses were identical or not, and
that the assignees of Latham Brothers held it for iS. & I. to the extent of what was
due on those bills.

Whether the second remittance, having regard to the time when it was made and to
the time of the bankruptcy, was efiectually appropriated to meet the latter five par-
chased bills, qudre.

A motion by S. & L before the Commissioner for an order to give effect to their
lien was dismissed. Their solicitors in England, some months afterwards, having
obteined fresh information, renewed the motion upon evidence giving a materially
different character to the case. Held, that the Commissioner was not precluded by the
1 2th section of the Bankrupt Law Consolidation Act from disposing of the second
application on the merits.

CASES IN CHANCERY.

two brothers, Edwin and Wilfred Latham^ were the sole
partners in each, and that Austin Latham^ who con-
ducted the Buenos Ayres business, was not a partner,
but only a managing clerk.

On 1st May 1865, the Appellants bovght from the firm
of Wilfred Latham and Co. five bills of exchange of that
date, for different sums, amounting to 1,S002., drawn
by Wilfred Latham and Co. on Latham Brothers, at
ninety days sight, and payable to the Appellants or their
order.

153

1857.

Ex parte
Imbbrt.

In re
Latbam.

On SOth June 1855, the Appellants bought from
Wilfred Latham and Co. five other bills for difierent
sums, amounting in the whole to 1,000/., also drawn
by Wilfred Latham and Co. on Latham Brothers, and
payable to the Appellants or their order.

All the bills thus purchased were indorsed by the
Appellants to correspondents of theirs in Europe^ and
forwarded to them to be presented for acceptance.

The first five bills were accepted on difierent days in
June 1855. On 26th July^ Latham Brothers stopped
payment, but no act of bankruptcy was committed. On
8th August^ they were adjudged bankrupts on their own
petition. The latter five bills did not reach England till
after the bankruptcy, and consequently were not ac-
cepted.

On 1st August 1855, Wilfred Latham and Co. wrote
to Latham Brothers a letter, inclosing two bills of ex-
change for l,^?!/. \&s. in the whole. The letter was in
part as follows : —

** We beg to hand you inclosed firsts of exchange as
follows [here followed the particulars of two bills for

1,136/.

154

CASES IN CHANCERY.

1857.

Ex parte
Imbbrt.

In re
Latham.

1,136/. \$. 9d. and 335/. 13«. Sd,], to our order and en-
dorsed to youy remitted specifically to meet the maturity
of our drafts on you, Nos. 788, 789 and 791 ... 795,
dated 1 May, at 90 days, for 1,450/. sterling." The
first five of the bills purchased by the Appellants were
among the bills «of which the numbers were given in
this letter.

On Ist September 1855, Wilfred Latham and Co.
wrote to Latham Brothers a letter inclosing a bill for
1,000/., and which was in part as follows: —

" We beg to hand you inclosed first of exchange for
1,000/. at 90 days, drawn by Messrs. Hughes Brothers
on Messrs. Haycrofts and Pethick, order of Mr. Julia
Panthon, indorsed to us, and by us to yourselves. This
remittance we make to cover our drafts upon you for a
like amount per mail o{ July, say numbers 811 — 815, to
the order of Messrs. Renner del Sar and Imbert, 90
days."

The bills remitted in both letters were received by the
assignees, who claimed to retain the proceeds as part of
the estate of the bankrupts. The Appellants, on the
other hand, claimed the proceeds of the first remittance
to the extent of 1,S00/., and the whole of the second as
having been specifically appropriated to meet the bills
purchased by them.

On the above materials the Appellants gave notice of
motion in the District Court of Bankruptcy, for an order
to give effect to their claim, and on the 3rd June 1856,
the Commissioner made an order, of which the material
part was as follows : —

'* It appearing from the affidavit in support of the said
notices, that the special remittance and covering bills
in the said notice of motion mentioned were sent ex-
clusively

CASES IN CHANCERY. 166

dusively by the manager to several of the sud bankrupts, 1867.

and not in pursuance of any contract with the applicants, ^r^""^^^

and no assent by the said bankrupts or their assignees to Imbert.

the pajrment of the said remittances having been proved In re

or suggested by the said applicants, this Court doth order a^h^*'*
that the said notice be dismissed with costs.''

The solicitors acting for the Appellants were not
aware at the time, that any other facts of importance
could be discovered, and they forthwith prepared a peti-
tion of appeal ; but before it was presented, they were
informed thaf Mr. Kohlstedtj one of the Appellants, who
was the person by whom the purchase of the bills had
been negotiated, was on his way to England from Buenos
Ayres, and they therefore suspended the appeal. He
arrived in England in August 1866.

On 28th January 1867, the Appellants gave a notice of
motion in the District Court of Bankruptcy to the same
efiect as the former. Mr. Kohlstedt, in support of it,
deposed as follows: —

'' That Carlos Eaden, who was and is a respectable
bill broker at Buenos Ayres, in or about May 1855,
applied to the firm of Renner del Sar and Imbert, as
known monied men, to purchase bills of exchange of the
said Wilfred Latham and Co. to the extent of about
1,000/., and in so doing and for that purpose the said
C Baden came to the counting-house of the said firm
of Renner del Sar and Imbert, and as he knew the said
last-mentioned firm were in the habit of buying bills of
exchange to remit to their various correspondents in
Europe, offered the said bills of exchange to the extent
of about 1,000/., and on the occasion of the said C
Baden so coming to the said counting-house he saw me
this deponent.

" That

156

CASES IN CHANCERY.

1857.

Ex parte
Imbbrt.

In re
Latham.

" That the said C. Baden had on a former occasion,
in or about the month of October 1854, once offered to
the firm of Renner del Sar and Imhert bills of exchange,
drawn by Wilfred Latham and Co. upon parties in the
city of Antwerp J which bills were bought by the firm of
Renner del Sar and Imbert, having confidence in the
said broker; and such bills so bought having been
punctually paid, therefore I, having confidence in the
said C. Baden as such broker, that he would offer only
what he knew to be good bills, in answer to the said
application informed him, that my said firm could take
five bills on England of such respective amounts as the
said five bills dated 1 May 1855, whereupon the said
C. Baden went to the said Wilfred Latham and Co. to
arrange them.

** That on the said C. Baden bringing back the said
five bills to me, I, observing that the same were Lathams
upon Lathams, the same name, asked the said C Baden
questions on the subject of the said firm, whereupon he
told me in answer, that the said firms of Wiljred Latham
and Co. and Latham Brothers were separate and good
houses ; and on my hesitating to buy the said bills in con-
sequence of the sameness of names, the said C. Baden
positively assured me, as I verily believe the fact to be,
that before he undertook to offer the bills in the market
he had had an express understanding with Mr. Austin
Latham, the managing partner (as he spoke of him) at
Buenos Ayres, in the said firm of Wilfred Latham and
Co., that he was providing, and would completely provide,
assets for remittance to Liverpool to cover the said five
bills.

'' That I thereupon agreed with the said C. Baden, as
the broker of the said firm of Wilfred Latham and Co.,
to buy the said five bills, dated 1 May 1855, not in the

light

CASES IN CHANCERY.

light of bills for value house upon house^ but as letters of
credit given upon the said firm of Latham Brothers by
the said firm of Wilfred Latham and Co., who had
engaged, as they in fact did with me, to send to the said
firm of Latham Brothers funds to meet the same.'*

167

1857.

Expartt
Imbert.

In re
Latham.

Mr. Kohlstedt went on to give an account of what took
place on the purchase of the latter five bills — which was
in substance the same as with regard to the former, and
he deposed that he would not have purchased any of the
bills, but for the assurance and engagement on the part
of the firm of Wilfred Latham and Co. to remit assets
to provide for them. He further deposed, that, according
to the law of Buenos Ayres, the two firms were distinct
firms, and that the Supreme Court there had decided
so.

Mr. Holden^ the solicitor of the Appellants, to explain
the delay, deposed that Mr. Kohlstedt arrived in Europe
in August 1856, but that he was unable to have an inter-
view with him till November, when he for the first time
became aware of the facts deposed to by him.

This second motion came on to be heard on 11th
Fdruary, when a preliminary objection was taken that it
was too late, and that the 12th section of the Bankrupt
Law Consolidation Act took away the jurisdiction to
hear it.

The Commissioner, after taking time to consider his
judgment, decided that he had jurisdiction to entertain
the application, referring to Ex parte Jachson(a) as
analogous, but that a rehearing was a matter of indul-
gence, and that in his opinion the Appellants had not

exercised

(a) 3 Dea. 651.

158 CASES IN CHANCERY.

1857. exercised sufficient diligence to entitle them to indulgence.
'"'^T^'^^ He therefore refused the application with costs.

Ex parte
Imbert.

In re A petition of appeal was then presented, and Mr.

4TUAM. Holden made a further affidavit, showing more in detail,
that all reasonable diligence had been used in procuring
information from Mr. Kohhtedt, and putting it into an
available shape.

Mr. Bacon and Mr. RenshaWf in support of the ap-
peal.

The evidence now adduced shows clearly that there
has been no unnecessary delay on the part of the Appel-
lants, whatever may have been the effect of the evidence
before the Commissioner ; and the Commissioner having
himself held, that he had jurisdiction to rehear the case,
and there being no appeal from that part of his decisioni
the case has now to be disposed of on its merits*

In the first place, although the members of the two
firms were the same, the houses of business were per-
fectly distinct ; but in the second place, whether this was
so or not, there was a clear contract that bills should be
remitted to meet the bills, and bills were remitted in fact
for that purpose. That contract created a valid lien on
the former bills when they arrived ; Bum v. Carvalho (a).
Ex parte Waring (b), Powles v. Har greaves (c).

Mr. Cairns and Mr. W. Downes Griffith^ for the
signees.

In order to create a lien by contract, there must be an
agreement with respect to some specified object on which
the lien was to attach, as in Bum v. Carvalho^ which

(a) 4 MyL ^ Cr. 690. (6) 19 Ves. 344.

CASES IN CHANCERY.

159

is cited on the other side, and in which case a cargo which
was to arrive by a particular ship was specified. Here
the contract was merely to remit bills generally, and
could not affect any particular bill ; Watson ▼. Duke of
Wellington {a)y and Scott v. Porcher(b). Nor could
the actual direction by the bankrupts to their own agent
to remit bills, which was not communicated to the Appel-
lants, and was, on the principle of Garrard v. Lord Lau-
derdale (c), capable of revocation up to the date of the
bankruptcy, make any difference. [The Lord Justice
Knight Bruce. If a borrower says to a lender, ** If
you will lend I will place something in a particular situa-
tion for your benefit," and after obtaining the loan does
80, can he afterwards remove what he has so placed ?]

1857.

Ex parte
Imbbrt.

In re
Latham.

The Lord Justice Knight Bruce.

In this case I think that we had jurisdiction to hear the
petition before us; that we have jurisdiction to decide
upon the merits the controversy to which it relates, and
that we ought to do so. The petitioners in the particular
circumstances are not nor were censurable in my opinion
for not having all their materials ready on the occasion
of the former of their two motions made in the District
Court of Bankruptcy. The second motion was supported
by important evidence, which on the other was not before
the learned Commissioner, and which, I repeat, the
Petitioners appear to me not blamable for not then pro-
ducing. The interval of time between the two motions
was, in my opinion, sufiiciently accounted for ; nor is it
shown that during that interval any act was done afiect-
ing or concerning the estate of the bankrupts, which ren-
dered it unreasonable or inequitable to decide the dispute
according to the truth and merits on the second occasion,

which

April 25.

(a) 1 Ruts. ^ M. G02.

(r) 3 Sim. 1.

(6) 3 Mer. 652.

160

CASES IN CHANCERY.

1867.

Ex parte
Imbert.

In re
Latham.

which in my judgment the learned Commissioner had
jurisdiction in the circumstances as they stood to do.

Upon those merits my conclusion as to the five bills
(for 1^200/. in the whole), constituting the first purchase,
and an equal amount of the remittance appropriated to
covering them and others, is in favour of the Petitioners*
The remittance, to the extent of 1,200/1 at leas^ was
made, not as a matter of business to which the Petitioners
were strangers, but in consequence and on the footing of
an engagement made witii them by the remitting house,
the sellers to them of the purchased bills, that a remit-
tance should be sent to England to meet and cover those
bills at maturity. The five bills were accepted before the
bankruptcy. The remittance to England^ for the purpose
of meeting and covering them, was made before the
bankruptcy. That it did not reach England before the
bankruptcy is immaterial. It came to the hands of the
assignees, who have received the proceeds, and to the
extent of the 1,S00Z. must be taken to have received
those proceeds for the special purpose that I have
mentioned ; the remittance, I repeat, having been made
from South America in pursuance and performance of a
valid contract between the purchasers and the house
that sold to them the five bills. It has been objected
that no particular species or form of remittance was
agreed upon, and that any kind of remittance of suffi-
cient value would have satisfied the engagement This
may be or is so, but is likewise in my judgment im-
material. The bill for 1,1362. U. 9d. and that for
335/. I3s, 3d. were in fact before the bankruptcy se-
lected and appropriated by the sellers of the five bills for
the purpose of the covering remittance, and accordingly,
before the bankruptcy, despatched for England — from
which moment, as between or among all concerned,
the two bills so remitted became effectually charged and

bound

CASES IN CHANCERY.

161

bound specifically to the extent of 1^200/. for the pay-
ment of the five purchased bills ; a charge — ^an obligation
— not defeated or afifected by the bankruptcy. The as-
signees were and are as liable to fulfil the trust upon
wfaichy or purpose for which, the remittance was made, as
the Liverpool House was, or, if there bad been no bank-
ruptcy, would have been. Upon the Petitioners' title
then to the 1^2001. I have no doubt whatever, thinking
that, so far at least, it is neither necessary to inquire into
any other law than that of England^ nor of any import-
ance whether the House that sold the bills in South
America was a branch of the Liverpool House now
badLrupt, or identical with it, or different or distinct firom
it. But as to the second purchase, considering the time
of the bankruptcy and that of the second remittance, I
feel at present some difficulty, and I conceive that this
portion of the dispute cannot be determined adversely
without more evidence, or an attempt at least to obtain
more evidence, than we have. I repeat, however, the
recommendation already made, a recommendaUon in
which my learned brother, I believe, concurs; that
further expense, delay and uncertainty, as to so much
of the litigation, should be avoided by a compromise,
a proceeding that we shall probably be ready to sanction
upon any terms not plainly unreasonable. It may be
not superfluous to add, that, as I conceive, it would have
been better and right not to refuse or dismiss the first
motion made at Liverpool^ but to direct it to stand over
for more evidence.

1857.

Ex parte
Imbrrt.

In re
Latham.

ITie Lord Justice Turner.

I am also of opinion that so far as respects the bills
for 1,471/. 15«. the Petitioners are entitled to the relief
which is prayed by this Petition. The objection on
the ground of delay, on which the learned Commis-
sioner proceeded, was very properly waived, or at least

Vol. I. M D.J. was

IGZ

CASES IN CHANCERY.

1857.

Ex parte
Imbert.

In re
Latham.

was not insisted upon, on the part of the assignees. Upon
the facts appearing on Mr. Holden*s affidavit^ filed since
the learned Commissioner pronounced his judgment^ that
objection certainly could not have been maintained. It
was attempted on the part of the assignees to resist the
Petitioners* claim to the proceeds of these bills upon the
merits ; but I think that there was a valid contract be-
tween the Petitioners and the firm of Wilfred Latham
and Co. through the medium of the broker, that remit-
tances should be made to cover the bills purchased by
the Petitioners ; and that, these bills having been remitted
in pursuance of that contract, the trust which attached
upon them enured for the benefit of the Petitioners. The
case is in truth no more than this ; A. for valuable con-
sideration contracts with J3., that he will remit to C for
the benefit of J3.,and he makes the remittance accordingly*
Can it be doubted that a Court of Equity would enforce
the trust ? It was argued for the assignees that there was
no specific fund ; but the remittance supplies the fund. It
was also said for the assignees, that the Liverpool House
might have diverted the fund ; but I think they woliid
have done so at their peril, and, if not liable upon the
purchased bills, would probably have been held liable in
respect of the remittances, upon the Petitioners discover-
ing them ; but, whether this would be so or not, I do not
see how the trust could be discharged whilst the trust
fund remained. Upon this part of the case, therefore,
the order must be varied. As to the rest of the case
there must be further inquiry, unless the parties can *
come to some arrangement.

Majf 1. The case was on this day mentioned again, and a com-

promise as to the second remittance received the sanction
of the Court

CASES IN CHANCERY. 163

1857.

Ex parte HENRY BOULTON, WILLIAM ATKIN
RAYSON and THEOPHILUS CARRICK.

In the Matter of SAMUEL SKETCHLEY, a

Bankrupt

March 6, 27.

npHIS was an appeal of the assignees of the above- Befora The

"^ named bankrupt from an order of Mr. Commis- ^tkem^

sioner Ayrton made on the application of the Respondent a holder of

Mr. Henry Bowman Bacon, and the question was whe- ■'*"*• "* »

railway com-

ther an equitable mortgage of eighty 10/. shares in the pany, which
Homcastle Railway Company was valid against the J^proSw

Appellants. of the Com-

paniet dames
UoDflolidatioii

Previously to and in the year ISSl, the bankrupt Act, 1845,
practised as a solicitor at HofTicastle, and was the bro- secretaries of

ther-in-law of the Respondent, who employed him as his the comnany

. , aod a solicitor,

confidential solicitor and agent. He borrowed

money of a
client on a de-

In November 1854, the bankrupt requested the Re- podtofthe
spondent to lend him 800/., which the Respondent 2^^^^ but
agreed to do, upon having the repayment with interest no further no-
secured by the bond of the bankrupt, and by the memo- poelt was
randum and deposit next mentioned. P^®° *® *^®

* company.

On the lo-

in pursuance of such agreement, on the 29th day of licator be-

November 1854, the Respondent paid to the bankrupt f„pt, j^/^^ that

800/., and the bankrupt gave to the Respondent his bond '^« ■^*^.

of that date and a memorandum signed by him, which order and di»-

was as follows :— S°^*^^° '^'^.

the consent of

*' Homcastle, 29th November 1854. Memorandum, *^®^*^'-

TTnetlieran
that equitable
mortgage,
valid against assignees in bankruptcy of the mortgagor, can be made of railway shares,

Ex parte Smyth, 3 Mont., Deac. if De Gex, 687, observed upon and distinguished.

164 CASES IN CHANCERY.

1857. that ly the undersigned Samuel Sketchley, of Horncastle,
^•^^v^^ solicitor, in consideration of the sum of 800/. sterling

BouLTON. *h^* ^*y '^"* ^^^ advanced to me by the Rev. Henry
In re Bowman Bacon, of NetDark-upon-Trentf clerk, have
Skbtculet. made and executed my bond, bearing even date here-
with, for securing the repayment of the said principal
sum with interest at five per cent. ; and I have also de-
posited as further security eighty certificates or coupons
of 10/. each in the Homcastle Railway Company, and a
policy for 500/. on my own life made with the Minerva
Life Assurance Company. — Samuel Sketchley. ^^

At the same time the bankrupt delivered to the Re-
spondent the following certificates or coupons, of 102.
shares each, in the Homcastle Railway Company, and
bearing date respectively the 24th oi August, 1854, viz.:
fifty certificates in the name of the bankrupt, and num-
bered respectively from 451 to 500 inclusively, and thirty
certificates in the name of Walter Marr Brydone, and
which by a transfer dated the 10th of September 1854,
lodged at the secretary's office of the Company, had been
duly transferred to the bankrupt, and were numbered
respectively from 611 to 640 inclusively.

The adjudication took place on the Snd of July 1856,
and the Respondent presented a petition to the district
Court, stating the above circumstances, and praying to
be declared to be a mortgagee of, and to have a lien
upon, among other things, the certificates and policy of
assurance comprised in the memorandum of the 29th of
November 1854, and for the usual consequential direc-
tions.

On the 4th o{ February 1857, the Commissioner made
the order under appeal, declaring that the Respondent
was an equitable mortgagee of, and had a lien upon, the

certificates.

CASES IN CHANCERY.

165

certificates, but was not an equitable mortgagee as to the
policy of assurance.

The assignees, by their petition of appeal and affi-
davits in support of it, stated that the Homcastle Railway
Company was a public Company established by an Act
pf Parliament, incorporating with its provisions those of
the Companies Clauses Consolidation Act, 184^ (a) : that

JEdtoard

1857.

Ex parte

BOULTON.

In re

Sketchlit.

(a) The following clauses of the
latter Act were relied upon in the
argument : —

<' Sect VII. AH shares in the
undertaking shall he personal es-
tate, and transmissible as such,
and shall not he of the nature of
real estate.

** IX. The Company shall keep
a book to be called the * Register
of Shareholders/ and in such
book shall be fairly and distinctly
entered from time to time the
names of the several corporations
and the names and additions of
the several persons entitled to
shares in the Company, together
with the number of shares to
which such shareholders shall be
respectively entitled, distinguish-
ing each share by its number
and the amount of the subscrip-
tions paid on such shares; and
the surnames or corporate names
of the said shareholders shall be
placed in alphabetical order, and
such book shall be authenticated
by the common seal of the com-
pany being affixed thereto, and
such authentication shall take
place at the first ordinary meet-
ing or at the next subsequent
meeting of the Company, and so
from time to time at each ordi-
nary meeting of the Company.

*< XI. On demand of the holder
of any share the Company shall
cause a certificate of the proprie-
torship of such share to be de-
livered to such shareholder, and
such certificate shall have the
common seal of the Company af-
fixed thereto, and such certificate
shall specify the share in the un-^
dertaking to which such share-
holder is entitled.

** XII. The said certificate
shall be admitted in all Courts as
primA facie evidence of the title
of such shareholder, his executors,
administrators, successors or as-
signs, to the share therein speci-
fied ; nevertheless the want of such
certificate shall not prevent the
holder of any share from dis-
posing thereof.

« XIV. Subject to the regula-
tions herein or in the special Act
contained, every shareholder may
sell and transfer all or any of his
shares in the undertaking, or all
or any part of his interest in the
capital stock of the Company, in
case such shares shall, under the
provision hereinafter contained,
be consolidated into capital stock,
and every such transfer shall be
by deed duly stamped, in which
the consideration shall be truly
stated.

166

CASES IN CHANCERY.

1857.

Ex parte

BOULTON.

Jn re

SUBTCHLET.

Edward Babington of Horncastle, attorney at law, and
the bankrupt were appointed joint secretaries of the
Company in 1854: that they jointly acted from the time
of their appointment up ta the time of the bankruptcy of
Shetchley : that on the 5th of August^ 1854, the Directors

<< XV. The said deed of trans-
fer (where duly executed) shall
be delivered to the secretary and
be kept by him, and the secretary
shall enter a memorial thereof in
a book to be called the ' Register
of Transfers,' and shall endorse
such entry on the deed of trans-
fer, and shall, on demand, deliver
a new certificate to the purchaser,
and for every such entry, together
with such endorsement and cer-
tificate, the Company may de-
mand any sum not exceeding
the prescribed amount, or if the
amount be prescribed, then a sum
not exceeding 2s. 6(/., and on the
request of the purchaser of any
share the endorsement of such
transfer shall be made on the
certificate of such share, instead
of a new certificate being granted,
and such endorsement, being
signed by the secretary, shall be
considered in every respect the
same as a new certificate, and
until such transfer has been so
delivered to the secretary as afore-
said, the vendor of the share shall
continue liable to the Company
for any calls that may be made
upon such share, and the pur-
chaser of the share shall not be
entitled to receive any share of
the profits of the undertaking, or
to vote in respect of such share.

" XX. The Company shall not
be bound to see to the execution

of any trust, whether exprea, im-
plied or constructive, to whldi
any of the said shares may be
subject, and the receipt of the
party in whose name any such
share shall stand in the hooka of
the Company, or if it stands in
the names of more parties than
one, the receipt of one of the
parties named in the Register of
Shareholders, shall firom time to
time be a sufficient dischaige to
the Company for any dividend
or other sum of money payable
in respect of such share, notwitb*
standing any trusts to which such
share may then be subject, and
whether or not the Company have
had notice of such trusts, and
the Company shall not be bound
to see to the application of the
money paid upon such receipt.

'' CXXXV. Any summons or
notice, or any writ or other pn-
ceeding at law or in equity, re-
quiring to be served upon the
Company, may be served by the
same being left at or transmitted
through the post directed to the
principal office of the Company,
or one of their principal oflices^
where there shall be more than
one, or being given personally to
the secretary, or in case there bo
no secretary, then by being given
to any one director of the Com-
pany."

CASES IN CHANCERY.

167

of the Company, at a meeting duly convened, made the
following resolution, which was entered in the books
of the Company : — " Resolved, that the certificates for
shares be forthwith issued, and Aat Mr. Edward Babing-
ton be and is hereby appointed secretary to sign the
same:'' that Edward Babington^ in pursuance of the
resolution of the 5th of August 1854, signed all the
certificates for shares in the Company solely as the secre-
tary of the same Company, appointed for that purpose :
that Babington in all other matters acted jointly with the
bankrupt in the secretaryship of the Company and took
an active part therein: that Babington signed jointly
with the bankrupt all certificates of transfers of shares,
and all calls upon shares and dividend warrants of the
Company, and attended the meetings of the Directors of
the Company as frequently as the bankrupt: that the
books of the Company were usually kept at the office of
the bankrupt, but that Babington used, whenever occa-
sion required, during the time that he and the bankrupt
were joint secretaries of the Company, to go to the bank-
rupt's office to inspect and refer to the books and papers
relating to the business of the Company, to confer upon
the correspondence which had passed between himself
and other parties connected with the Company, and to
inspect and confer upon the correspondence which had
passed between the bankrupt and other parties relative to
the Company, and generally to transact business con-
nected with the Company as one of the secretaries
thereof: that Babington never had any notice, nor had
the Directors of the Company any notice or knowledge,
that the bankrupt had deposited with any person or per-
sons any certificates of any share or shares in the said
Railway Company, or that he had transferred to any
person or persons any share or shares which he held in
the said Railway Company, and which stood registered
in his name at the time of his aforesaid bankruptcy, and

that

1857.

Ex parte

BOULTON.

Inrt

Sk£TCHLET.

168 CASES IN CHANCERY.

1867. that no notice was ever given or left at the office of the

^ Railway Company at any time before the bankruptcy of

BouLTON. any deposit of certificates or of any transfer of any of the

In re said shares which stood registered in the name of the

bankrupt at the time of his bankruptcy. The reasons

given by the Commissioner in pronouncing his decision

were: —

That| as was observed by the Lord Chief Baron in
Hamilton v. Bell(a)y the question of reputed ownership
was one not of law but of fact^ the decision of which
depended on all the circumstances of the particular case.
That the great leading principle to be kept constantly in
vieWy in deciding any question of reputed ownership, had
been laid down by Lord Redesdah in the case of Joy v.
Campbell (b\ which had been cited, with entire approval,
by Chief Baron Pollock^ in Hamilton v. Bell{c\ and by
Baron Parke in Simmonds v. Edwards (d). That the Lord
Justice Knight Bruce in Ex parte Bean (e), had said,
'* The statutory provision with regard to reputed owner-
ship, so far as it goes beyond common law, has probably
been productive of more injustice than justice; though
in some instances it has, no doubt, done good." That
Baron Alderson, in Hamilton v. Bell (/), had said, ** This
clause certainly belongs to a time of commerce more
ancient than the present ; for in dealings with tradesmen^
the creditor does not now look to the goods themselves
so much as to the general character of the trader.^ '' A
decision," continued his Lordship, ^' which is unques-
tionable in one century might not be applicable to a case
apparently under the same set of circumstances, owing to
the change which has, in the meantime, taken place in
the dealings of mankind. In the olden times gentlemen

did

(fl) 10 JExfA. 548. (d) 16 Af. ^ W. 842.

(6) 1 Sch. if Lef, 328. (e) 1 De G., M. * G. 489.

(e) 10 Exch, 551. CO 1® Exch, 549.

CASES IN CHANCERY.

169

did not job their carriages ; they not only do so now, but
they have their own coat of arms upon the carriage. So
again, it is customary, in the north of England^ for
manufacturers to hire machinery." That in the same
case the Chief Baron Pollock made the following ob-
servations : — " My brother Alderson, in the course of the
argument, has properly observed that the same evidence,
which at one period of time ought apparently to produce
a certain result upon a question like the present, might
at a different period produce a different result, owing to
a change of circumstances, arising from an alteration of
the course of business of the world. The case of Lin-
gard v. Messiter (a), affords a very good example of what
might result from such a change of circumstances. At
the time when that case was decided, it is possible that
the jury were fully justified in their verdict, and that the
Court was right in upholding that verdict. But if the
same question were to arise at the present day, such
a decision might be altogether incorrect ; for it is now
notorious that persons using machinery frequently hire
it, and consequently there is no presumption that the
machinery found on a manufacturer's premises belongs
to him. So in the case of a carriage in the possession
of a gentleman, it cannot be inferred, from the fact of
its bearing his coat of arms, that the carriage is his
property, since it is equally notorious that carriages are
more frequently jobbed than purchased by the users of
them. The same observation is applicable to a variety of
other articles, which are commonly hired. There is a
class of tradesmen, who though neither brokers nor
agents, nevertheless are in the possession of property,
the greatest portion of which belongs to other people ; —
for instance, silversmiths and jewellers, who have in their
possession, for years, family plate and jewels of great

value ;
(a) 1 Bam.Sf Cress, SOS.

1857.

Ex parte

BOULTON.

In re
Sketchlet.

170

CASES IN CHANCERY.

1867.

Exparte

BOULTON.

In re

SXSTCHLBT.

value; and such articles, whether exhibited or not, in
the case of the bankruptcy of the tradesman, ought not
to pass to his assignees. If it was intended to prevent
traders deluding persons by the apparent ownership of
property, and thereby gaining false credit, it is very
unfortunate that it should entirely fail in that object ; for
if the owner of the goods sends them to a shop for the
express purpose of enabling the possessor to delude the
public by obtaining false credit, and afterwards takes
them back again, though but a very short time before
the bankruptcy, the re-delivery to him is not itself an
act of bankruptcy. That was so held in a recent case
tried at York, in Young v. Hope (a). It is, therefore,
much to be lamented, that the clause in question should

remain as a snare.

That, having regard to these authorities, it was the
Commissioner's duty to follow the decisions requiring
notice, to the full extent to which they went, but not to
go beyond it. That, it being clear that notice to the
secretary of a Company was notice to the Company, the
question in this case was — had the secretary of the Com-
pany notice? That the solicitor to the Petitioner (the
person to give notice) and the secretary to the Company
(the person to receive the notice) happened to be here one
and the same person. Under these circumstances, was
not the knowledge of the solicitor the knowledge of the
secretary ? What must the solicitor, in such a case, do t
Must he write a letter to himself, giving himself notice
of what he already knew ? That taking then, as a guide,
what Baron Parhe, in Whitfield v. Brand (b), designated
the ** luminous exposition of Lord JRedesdale,** the Com^
missioner could not find that the true owner had intended
'' unconscientiously" to permit the bankrupt to appear
before the world as the apparent owner of the shares ;

nor,

(a) 2 Eich. 105. (6) 16 M. ic W. 286.

CASES IN CHANCERY,

171

nor, to use the words of the Chief Baron in Hamilton v.
Bell, that the true owner had been guilty of any " im-
propriety*' in leaving the shares in the possession of the
bankrupt; nor could the Commissioner find any case
deciding that the facts of the present case did not amount
to suflScient notice to the Company.

Mr* Swanston and Mr. Halleti for the assignees in
support of the appeal.

In the first place we submit, that, having regard to the
provisions of the Companies Clauses Consolidation Act,
there cannot be a valid equitable mortgage of shares in
a Company subject to these provisions. If, however, the
Cildrt should not take this view of the Act, still, inas-
much as the shares are by it made personal estate, a
mortgage of them cannot, at all events, be valid with-
out notice to the Company. Here there was no such
notice, for the circumstance of the mortgagor being one
<^ the secretaries of the Company was not sufficient,
especially in the circumstances of this case, to give
notice to the Company of the mortgage.

They referred to lie Dilworih (a), Ex parte Little-
dale (fi). Ex parte Watkins (c), Lingard v. Messiter (rf),
Hamilton v. Bell (e), Kirkley v. Hodgson(^f\ Thompson
V. Spiers {g), Timson v. Ramsbottom (A), Martin v. Sedg*
vrickiji), Gardner v. Lachlan (A), Ex parte CarhisQ), In
re HeuTiessy (m).

Mr. Bacon and Mr. Baggallay for the Respondent

It has never been held, and cannot be maintained, that

(a) Mont.^BllU', ID.^
C.4n.
(6) 6 Be G., MacJ^ G. 714.
(c) 2 Mont. 4- A. 348.
(<0 1 B. 4- C. 308.
(e) 10 Exch. 545.
(/) 1 B. 4 C. 588.

(g) 13 Sim. 469.
(A) 2 Keen, 35.
(i) 9 Beav. 333.
(k) 4 Mj/L i Cr. 129.
(/) 4 D. 4- C. 354.
(m) 2 Dr. 4- IT. 555.

1857.

Exparte

BOULTON.

In re

Sketchlbt.

172

CASES IN CHANCERY.

1857.

Ex parte

BOULTON.

In re
Sketcblet.

an equitable mortgage of railway shares by deposit cannot
be made. Such a transaction is one of the most usual
occurrence, and it would be interfering with the ordinary
course of business to decide against its validity. Nothing
in the Companies Clauses Act, nor any principle of public
policy, renders such a decision necessary. The pro*
visions of the Act merely regulate the mode in which
the legal estate is to pass. In the Shipping Acts there
has been a clear enactment, founded on public policy,
excluding equitable interests ; but even with respect to
those Acts, there has been a struggle against the in-
justice which such an exclusion must often cause.

But if an equitable mortgage can be made of railWay
shares at all, what more could be done for any useful
purpose than was done here? For the clause of the
Act providing in effect that the Companies are not to
recognize any equitable interest in shares, which is
cited against us, is in our favour, as showing that to give
notice to a Company, which by law cannot regard such
notice, would have been an idle and utterly useless
formality. Nothing could possibly have been done
which would have had any effect in preventing a transfer.
Consequently, unless an equitable mortgage of railway
shares must in all cases be ineffectual in case of bank-
ruptcy this mortgage must be valid. The reason why,
with respect to chattels in the hands of debtors or trus-
tees, notice is essential, is that such notice would
effectually prevent a dealing with the property. To
apply the same rule when it can have no such effect
would be to proceed upon a false analogy.

The case of an insurance office, which makes a rule of
its own, not to regard notices of assignments, is different,
because their competency to make such a rule for any
valid purpose is at least questionable, and they are

not,

CASES IN CHANCERY.

173

not, at all events, under a statutory disability to regard
notices.

If, however, notice was requisite, it was here given,
for the mortgagor was the secretary of the Company,
whose duty it was to receive such notices, and that was
snflBcient, Ex parte Bignold (a). Gale v. Lewis (ft), which
is substantially the same case as the present. It would
have been an idle form to go to the office and see him,
and then tell him what he already well knew. But even
admitting, for the sake of argument, that these shares
could have been in the order and disposition of the
bankrupt, with the consent of the true owner, in a case
where the true owner, being an equitable mortgagee,
could do nothing to take them out of such order and
disposition, and admitting that there was no notice,
still there is here an utter want of the requisite con-
sent, for the true owner had no solicitor in the transac-
tion but the mortgagor, whose duty it was to do every-
thing that was requisite to make the security effectual.
The principle of the reputed ownership clause is that
laid down by Lord JRedesdale in Joy v. Campbell (c\ and
by the Lord Chancellor in Ex parte Barclay [d}, and
does not apply when the true owner has taken all the
means which in the ordinary course of business can be
taken to prevent a delusive credit from being obtained by
^he bankrupt. That notice should have actually reached
Che proper quarter has never been held necessary, if the
%rue owner has taken proper means for giving it.

1857.

Ex parte

BoULTON.

In re
Sketchlet.

Can a man who instructs his solicitor to do what is
>roper, which implies taking all proper means for ex-
^sluding delusive credit, be said to have assisted in giving
^such delusive credit? Is this a case in which he is to

suffer

(a) 3 M. Sf A. 477.

(b) 9 Q. B. 730.

{d) 5 De G., Mac. 4- G. 403.

174
1857.

Et parte

BOULTON.

In re

Skitcblbt.

CASES IN CHANCERY.

suffer for the default of his agent whom he employs in
the ordinary course of business? And can the estate
of the agent making the default derive a profit from it ?
The contrary was decided by one of your Lordships in
Ex parte Smyth (a).

They also referred to Ex parte Oreaves (J).

The Lord Justice Knight Bruce referred to Etty
V. Bridges.

Mr. Swanston, in reply, referred to Watts v. Porter {c\

and with reference to Ex parte Smyth (a), relied on Ex

parte Hennessy (d). •

Judgment reserved.

Mar. 27. The LoRD JUSTICE Knight Bruce.

In this case (which it has been requisite to consider,
not without reference to the 7th and 13 following sec-
tions and the 135th section of the Companies Clauses
Consolidation Act, 1845) I am of opinion that the Rail-
way shares in dispute are '' chattels" within the meaning
of that expression, as used in section 125 of the Bank-
rupt Law Consolidation Act ; the only question (if any)
not without difiiculty being as to the bankrupt's order
and disposition and his reputed ownership of the shares.
I am of opinion that, but for the circumstance that Mr.
Shetchley, the bankrupt, when he made the deposit of
the certificates and signed the memorandum concerning
it was the secretary, or one of the secretaries of the
Railway Company, the shares would clearly have been
within the order and disposition and reputed ownership

(a) 3 Mont., Dea. ^ De G. Jur. (N.S,) 651.
687. (c) SEL^ BL 743.

(6) 7 De G., Mac. * G. ; 2 (d) 2 Dr, * W. 655.

CASES IN CHANCERY-

176

of the bankrupt, with Mr* BacorCs consenti at the time
when Mr. ShetchJey became bankrupt Does that cir-
cumstance make any difference? I think not The
knowledge, the notice which Mr. Sketchley had, was
not knowledge on his part, or notice to him in his cha-
racter of secretary or joint secretary, or otherwise than
in his character of shareholder only, by reason exclu-
sively of his dealing or attempted dealing in that cha-
racter, with the merely equitable title to his shares. I
think that the Directors were not bound by that know-
ledge or notice, and that they were * at full liberty and
had the power, legally, equitably and safely, at any time
between the deposit and the bankruptcy, at any time be-
tween the memorandum and the bankruptcy, to permit
any transfer by Mr. Sketchley of his shares to any
person.

Without therefore giving, for I mean not to give, any
opinion whether if notice (even a written notice) had
been actually given to the Directors themselves, even
when assembled as Directors, it would have made any
difierence, I conceive that the dtle of the assignees must
prevail.

I may as well add, with reference to a case in the
bankruptcy of Mr. Bromley^ a solicitor (decided by me
when Chief Judge of the Court of Bankruptcy), which
was cited during the argument, that, whether the decision
was well founded or erroneous (a point on which I do
not mean to intimate any opinion), I believe it to have
proceeded on the special circumstances in evidence all
taken together, not merely on the grounds alone stated
by the report (probably a correct report) (a) to have been

mentioned

(a) Their Lordships sent for declares the Petitioner, as against
the order in £j parte Smyth, the Assignees, entitled to the an-
which agrees with the report, and nuity which was there in dispute.

1857.

Eg parte

BOULTON.

In re
Skbtohlbt.

176

CASES IN CHANCERY.

1857.

Ex parte

BOULTON.

ffi re
Skbtchlbt.

mentioned in giving the judgment ; though, if I said no
morei I said probably not enough. The Petitioner there
had not been aware that Mr. Bromley, her solicitor, was
dealing with her on his own account, and acting in the
transaction (the subject of the dispute) not alone as her
agent, but also in another character, in which his interest
as to the very matter was directly opposed to hers. The
true facts had not been communicated to her, but had
been suppressed, and she had been deceived by him. I
think that there is no such case here. Mr. Bacon took
the certificates and memorandum into his own custody,
and from the beginning knew that the transaction be-
tween him and Mr. Sketchley was on their own accounts
respectively. There does not appear to have been either
misrepresentation or suppression of any fact ; and though
it was the duty of the bankrupt, having been at the time
Mr. Bacon's solicitor, to give that gentleman such infor-
mation and advice as it would have been the duty of
a disinterested and competent solicitor consulted and
employed by him to give, but which the bankrupt does
not seem to have given, I am not persuaded that either
of them was aware of the importance or materiality of
the Directors having (if it was important or material that
the Directors should have) notice of the transaction, or
thought of any such thing.

It may be that Mr. Bacon trusted the bankrupt, and
believed that he had done, or would do, all that was
requisite to make the security safe (all, at least, short of
a transfer). But the circumstances, in my judgment, do

not

The MS. of this case has not heen
kept, hut it is the impression of
one of the present reporters that
it was prepared from the notes
which the late Mr. Deacon left un-
transcribed at his decease. The

note of the judgment on the ques-
tion of notice in the Court-book
of the day is this — ** Cur. On the
whole this is not a case of order
and disposition."

CASES IN CHANCERY. 177

not afibrd an answer to the assignees' claim. Whether 1857.

the security could have been made safe against bank- ^T^''^

ruptcy without' a transfer I do not say ; a transfer, how- Boulton.

ever, was not promised, intended or expected on either In re
.1 i. T Sketch LET.

side, so far as I can perceive.

The Lord Justice Turner.

The question in this case is, whether an equitable
mortgage of eighty lOZ. shares in the Horncastle Rail-
way Company is valid against the assignees of the
bankrupt.

It appears that in the month of November 1854,
Samuel Shetchley, the bankrupt, who was then and
thenceforth until his bankruptcy continued to be one of
the joint secretaries of the Company and also the confi-
dential solicitor of the Respondent, borrowed of the Re-
spondent the sum of 800Z. upon the security of his bond
and of a deposit of the certificates of the shares, accom-
panied by a memorandum stating the purpose of the
deposit.

The shares in question stood in the books of the Com-
pany, as to fifty of them, in the name of the bankrupt,
and as to the remaining thirty, in the name of another
person, who had transferred them to the bankrupt by a
deed lodged at the office of the Company's secretaries.

They are personal estate, and transferable in the books
of the Company, according to the provisions of the Com-
panies Clauses Consolidation Act, which is incorporated
with this Company's special Act.

No notice was given to the Company of the deposit
otherwise than as they may be said to have had notice
of it from ^he fact of the deposit having been made by
Shetchley, their secretary.

Vol. I. N D.J. The

176

:.-.:mCERY.

v^^'J r 'ii'V IS46, and the learned

Kx I- . T >iii irderfor sale of the shares

. _ .;^ .\«*spondent as an equitable

Ski .>=.t^:^ have appealed from that

Tir- :f' the assignees was rested on

— , _•-: .1-: valid equitable mortgage of

:-« .. rr rjde; and secondly, that if any

^^i,- -u. -'e made, notice to the Company

.. _« ::::: in this case the Company had no

- :e -.^rt"^ Vdzi it was contended, on the part of
^ "j.?s.'t;'.x.^?:u ir-is the shares could be equitably mort-
^^ . <L^- ii-i" -•-" notice to the Company was required,
^ SI. : Tc\;c? to the Company was required, there
^ ; :: - 'iStf sufficient notice. It is not necessary, I
•:::!w - - "^ ^ opinion upon the question, whether
.•^rr /ui ft? 1 valid equitable mortgage of railway shares,
i-u ^y ^-"c =ean, therefore, to give any opinion upon
:afc M»u ^i^ assuming that such mortgages can be
jauti " lifl -^" opinion, that all the requisites which are
^«<«n:u« V rcrtgages of other choses in action must be
.•^^^oi. i""i 'hat notice to the Company was therefore
^..•iX5^*^ I: was said, on the part of the Respondent,
\^jA -TV' slMnr< could not be transferred without the cer-
,jj^^.^^ x?/. t^i^t the certificates having been deposited,
,. ..^,^. :.« :>e Company could not be required, but, I
.1 .^ * • V^,h M.ction of the Companies Clauses Conso-
,•,• V.-: •> >u:^ciont to dispose of that point.

"V .^.u-^t"-'-^ then is, whether there was sufficient no-

. >• -• ''"c* i\'rt^i\inv : and 1 am of opinion, there was not.

\ 1 o-s :i •■ •> .:cs:riprion ojx^rate not only to prevent

V AV'.x':^. «lvh is the subject of the notice, being

disposed

CASES IN CHANCERY.

disposed of without the knowledge of the person, by
whom, or on whose behalf the notice is given, but also to
prevent injury to other persons from subsequent dealings
with the property, affected by the notice, in ignorance
of the prior claim upon it. It is the duty, therefore, of
the person, by whom or on whose behalf the notice is
given, to take care that it reaches the person, who has
the control over the property which it affects ; and this,
I think, cannot be said to have been done, where, there
being other and more effectual means of giving the no-
tice, it has been given only to a person, who has an inte-
rest in withholding it. Lord St. Leonards has intimated
a strong opinion to that effect, in Ex parte Hennessey {a) ^
and I agree in that opinion. Besides, in this case, I think
there was no intention to give notice to the Company.
The Respondent was dealing with the bankrupt, as his
solicitor, and there was no intention that the Company
should be affected by that dealing. That the bankrupt
was bound by his position, to give notice to the Com-
pany cannot affect the case. It was attempted, on the
part of the Respondent, to bring the notice within the
I35th section of the Companies Clauses Consolidation
Act, but, I think, it plain, that that section does not
apply to the case. There was no notice served.

179
1857.

Ex parte

BOULTON.

Tn re

Sketchlet.

I am of opinion, therefore, that this order must be dis-
charged. The assignees must take their costs out of the
estate.

It may be as well to add, that in giving no opinion
upon the question, whether these shares can be equi-
tably mortgaged, I do not mean to cast any doubt upon
the point, which was decided by the full Court in the
matter of Pearse (J).

(a) 2 Dr. 8f W. 55. (6) 6 De C, Mm, Sf G. 714.

180 CASES IN CHANCERY.

1857.

Ex parte MARTHA ELIZABETH HARPER.
In the Matter of RICHARD PARRY JONES, a

JprU 25. Bankrupt.

Before 2'Ae fTHHIS was an appeal from the rejection by Mr. Com-
JusTicEs. raissioner Balguy, of proofs tendered by the

A deed of Appellant, under the following circumstances.

partnership for

life between gy articles of partnership dated the 26th of May

two solicitors «, ,, V, rr -i

contained a 1843, and made between George Harper (smce de-
"^rthe death** ceased), of the one part, and the bankrupt of the other
of either the part ; Mr. Harper and the bankrupt mutually covenanted

shouM^during ^^^^ ^^^^ ^^^^^ ^^ ^^ ^"^ continue partners as so-
the joint lives Hcitors during their joint lives, upon and subject to the
the widow of terms, stipulations and agreements thereinafter de-

the deceased clared.
partner, pay

orpersoM^as" Those stipulations provided among other things as

the deceased follows:—
partner should

appoint, an That on the death of either of the partners leaving

200/. per an- the Other him surviving, the survivor should, for and
num, or one- during the joint natural lives of himself and the widow

annual profits of

of the sur-
vivor, as the survivor should elect, and also provided for the admission on certain
conditions of a son of the deceased partner into the " said" partnership buiineti.
One of the partners, by an antenuptial settlement made shortly after the execution
of the partnership deed, exercised the power of appointment in favour of his wife, and
several vears afterwards died greatly mdebted to the firm. The survivor continued
to practise as a solicitor for some years, and realized profits by his business, if estimated
without regard to the former business, but they were insufficient to make good the
outstanding liabilities of the late partnership, and he became bankrupt without having
made any payment to the widow of the deceased partner or electing between the
two modes of payment mentioned in the articles. Held,

1 . That the assignees were entitled to make the election.

2. That on their electing not to pay the annuity of 200/., the widow had no
proveable demand, the business carried on by the survivor being, according to the true
construction of the deed, a continuation of the partnership business, and the naymenta
made on account of the partnership being properly eet off against the pronts of the
sole business.

CASES IN CHANCERY. 181

of the deceased partner, pay to such person or persons 1857.

as the deceased partner should by writing under his ^T"''"'^

hand appoint an annuity of 200/., or one fourth share Harper.
of the clear annual profits of the survivor, as the survivor In n

Jones

should elect, the said annuity or share to be paid by two
equal half-yearly payments on the 1st of January and
the 1st oi July in every year, the first payment of the
annuity to be made on such of the days as should first
happen aAer the death of the deceased partner, and so
to continue payable during the joint lives of his widow
as aforesaid, and the surviving partner.

That in case of the death of either of them, the sur-
vivor of them should, on being so required by the
executors or administrators of the deceased partner,
take and instruct one or more of the sons of the de-
ceased partner, as articled clerk or clerks to him without
any premium whatever, and the executor or administrators
of such deceased partners should be at liberty to intro-
duce into the business any one or more of his sons,
being of the age of twenty-one years, and having been
duly admitted an attorney and solicitor or attornies and
solicitors, as a partner or partners with the survivor '* in the
said partnership business," provided the son or sons in-
tended to be introduced as such partner or partners should
not, in the meantime, by his or their respective conduct,
have rendered himself or themselves respectively unfit
and improper to be admitted into such partnership, and the
son, or if more than one, the sons, of the said deceased
partner, who should be so admitted " into the said partner-
ship," should take and be entitled to the like share as his
or their father had, and if more than one in equal pro-
portions (except as thereinafler provided, during the
continuance of the said annuity, payable during the life
of his or their father's vridow), and that upon the ad-
mission of the son or sons of either of them into partner-
ship

182

1857.

Ex parte
Harper.

In re
Jones.

CASES IN CHANCERY.

ship as aForesaid, the partner for the time being, in-
cluding such son or sons, should respectively enter
into a deed containing covenants and agreements on their
respective parts and behalf, similar to those contained in
the now stating deed, or as near thereto as circumstances
would admit, and in case any objection should be made
to the admission of any such son or sons, the grounds
of such objection should be decided by arbitration as
therein provided.

That in case one or more of the sons of the deceased
partner should be admitted into partnership with the sur-
viving partner during the lifetime of the widow of the
deceased partner, then either her aforesaid annuity
should cease, or during its continuance such son or sons
should be entitled to receive one-fourth only of the pro-
fits of the said partnership business.

There was also the usual covenant that the partners
should be true and just to each other in all their receipts,
payments and dealings, and a clause whereby each part-
ner bound himself in the penal sum of 5,000Z. for the due
performance of the articles.

Prior to the month of August 1843, a marriage was
agreed upon between Mr. Harper and the Appellant,
then Martlia Elizabeth Poveify spinster, and in contem-
plation of such marriage it was amongst other things
agreed that a provision of 200L per annum should be
made by Mr. Harper for the Appellant if she should
survive him, payable by the bankrupt according to the
terms of the partnership agreement.

With reference to this agreement Mr. Harper^ on the
2nd of July 1843, wrote and sent to the Appellant the
following letter: — ** My dearest Lizzy — I do not know

whether

CASES IN CHANCERY.

183

whether Mr. Povey would wish to see the settlements I
shall make upon you, but I leave it entirely to your
good judgment whether or not he will be pleased to
have them for inspection, or whether he would prefer
having nothing whatever to do with them. I will state
briefly the provisions they would make for you.

'' Bdvidere house and lands would let for

(per annum)
Miss Tennant^s house ... ,,

AUport Cottage ,,

Nine acres of land close to the town „
From partnership • • • • ,,

£ s. d.

200

£515

** Besides personalty worth at least 3,500/. I have re-
served to myself the power of raising 3,000Z. if ever I
should want it But if I do want it then it will be
repaid at my death from policies of assurance for SyOOO/.
and bonuses at present 780/., and if I live till 1845 the
bonuses on these policies will be more than 1,000/. It
is entirely my wish to settle all these things, as I wish
to preserve Belvidere House and the two pretty houses
between this and Whitchurch^ and the plate and paint-
ings at Belvidere. Believe me, my dearest Lizzy ^ yours
most afiectionately, Geo, Harper ^ Belvidere. — 2 July
1843."

1867.

Ki parte
Harper.

Inrt

JOMBB.

By deed poll dated the 3rd of August 1843, under
the hand and seal of Mr. Harper it was witnessed
that, in pursuance of an antenuptial agreement therein
recited to have been made and in consideration of the
intended marriage, Mr. Harper^ in exercise of the power
reserved to him by the articles of partnership, appointed
that, if the intended marriage should be solemnized, and

the

184 CASES IN CHANCERY.

1857. the Appellant should survive him and become his widow,
^^T^"'*"**^ then and in such case the bankrupt should, in the event

Ex parte *

Harper, of his surviving Mr. Harper, pay or cause to be piud
In re unto the Appellant or her assigns, for her or their own
benefit, the annuity of 200/., or at his election one- fourth
share of the profits of the bankrupt " in the said busi-
ness*' for and during the joint natural lives of the bank-
rupt and the Appellant, if there should be issue of the
said intended marriage and such issue should so long
live.

The marriage between the Appellant and Mr. Harper
took place on the iOth of August 1843.

The partnership continued till the death of Mr. Harper,
M'hich happened on the 26th of September 1851. He
left the Appellant, his widow, and four children of the
marriage him surviving.

By his will, dated the 24th of February 1846, he
appointed the bankrupt his sole executor.

The bankrupt stated that he had carried on the busi-
ness alone from the time of Mr. Harper'' s death, and had
discovered that Mr. Harper had, without the bankrupt's
knowledge, applied to his own use large sums which he
had received on account of the partnership, and that he
had also advanced monies of clients on insufficient secu-
rities, so that at his death the liabilities of the partnership
exceeded its available assets by 18,190/. 2s, Sjc/., and all
the income which had since accrued in the business had
been applied by the bankrupt towards discharging the
partnership liabilities, and keeping down the interest on
the insufficient securities and the premiums on policies
eflfected to provide for the insufficiency.

Between

CASES IN CHANCERY.

185

That between Mr. Harper's death and the bankruptcy
the bankrupt had thus paid or satisfied sums amounting to
between 18,000/. and 19,000/. That in some instances
the bankrupt had given the claimants his personal secu-
rity, but had in others paid at once the amount due.
That the periodical payments for premiums on insurances
and for interest had amounted to about 380/. a year, and
in the whole to upwards of 1,700/., exclusively of certain
instalments which the bankrupt had paid in respect of
a balance due from the partnership to the Whitchurch
and JEllesmere Banking Company, amounting to between
9,000/. and 10,000/. On Mr. Harper's death the bank-
rupt made an arrangement for the payment of this debt
by instalments of 500/. a year, and between Mr. Harper's
death and the bankruptcy the bankrupt paid instalments
amounting to 3,3211. I8s, 2d., being on an average of
780/. a year.

There was at the date of the bankruptcy owing, in
xespect of debts of Harper and Parry Jones, between
£,000/. and 9,000/. The bankrupt's receipts from
JSarper*s estate as executor had been only 3^2&l. \0s. 2d.,
ivhile his payments on account of the firm had amounted
"to 16,186/. \5s. 5d. He had never been aware before
^r. Harper's death that Mr. Harper had exercised the
power of appointment ; indeed he stated that Mr. Harper
liad frequently told him he had not exercised it.

In 1854 a firiendly suit of Powdrell v. Jones {a) was
instituted in Chancery by one of Mr. Harper's creditors
Jx)r the administration of his estate, the bankrupt having
^iven the instructions for the bill and for his own answer
tioit.

1857.

Ex parte
Harper.

In re
Jones.

Mrs. Harper, however, was made a party to the suit,

and

(a) Sec 2 Smult ^ Giff. 407.

186

1857.

Ex parte
Harper.

In re
Jones.

CASES IN CHANCERY.

and was represented by solicitors of her own, who at-
tended on her behalf the proceedings before the Chief
Clerk. By the Chief Clerk's certificate of March 1856,
which had been approved by the Vice-Chancellor, a
balance of 11,064/. 10«. 5d. was certified to be due to
the bankrupt from the estate of Mr. Harper, whereof
5,000/. was certified to be a specialty debt in respect of
the penalty of that amount imposed by the partnership
articles. Of this amount 9,737/. 5s. Id. remained un-
satisfied at the date of the bankruptcy.

On the S8th of May 1856 the adjudication of bank-
ruptcy was made on the petition of a creditor of the
bankrupt, filed on that day. The bankrupt had passed
his last examination and obtained a certificate of the
first class.

The Appellant, by her depositions tendered in support
of her claim to prove, stated the partnership articles, the
antenuptial agreement, the settlement, and that no pay-
ment had been made to her on account either of the
annuity of 200L or of her share of the profits of the
business ; and two proofs were successively tendered by
her and rejected, one being for the arrears and value of
the annuity and the other for the arrears of one-fourth of
the profits of the business since Mr. Harper^s death.

From the rejection of these proofs the present appeal
was brought ; the Appellant by her petition stating, that
the profits of the bankrupt in his business from the time
of the decease of Mr. Harper up to the month of May
1856 were in the bankrupt's balance sheet in this matter
stated to have amounted to the sum of 4,768/. lis, 3d.

This, however, it appeared was calculated without
reference to the payments which the bankrupt had been

obliged

CASES IN CHANCERY.

187

obliged to make in respect of the liabilities of the firm of
Harper and Parry Jonet.

Mr. Kenyon^ in support of the appeal.

The Commissioner ought to have admitted the proof
first tendered to him, viz.^ that for the annuity of SOO/.
per annum. For the bankrupt made no election before
his bankruptcy to pay a share of the profits^ and the
election^ being a personal matter and affecting the bank-
rupt's afler-acquired property, was not capable of being
exercised by the assignees. The alternative of an an-
nuity of 200/. is therefore that on which the Appellant
has a right to insist, and she ought to have been per-
mitted to prove for the value of the future payments and
for the arreaVs.

1857.

Ex parte
Harpeiu

In re
Jones.

But if the Court should not take this view of the case,
then at all events one-fourth of the clear profits of the
business carried on by the bankrupt from Mr. Harper's
death to the time of the bankruptcy was due to the
Appellant at the date of the bankruptcy, and a proof
for that amount ought to have been at least admitted.
There is no difficulty in ascertaining what it was, for it
appears on the bankrupt's balance sheet, and the only
question raised on this part of the case is, whether the
assignees are entitled to make the calculation on a dif-
ferent principle, and to set against the clear profits, which
have incontestably arisen from the business carried on by
the bankrupt, certain payments or liabilities which he is
alleged to have made or come under in respect of, not
the business carried on by himself, but a former business,
which had necessarily ceased before the covenant could
come into operation. I submit that such a mode of
calculation is not authorized by any fair or reasonable
construction of the covenant. The words of it are '' one
fourth share of the clear annual profits of the survivor."

They

188 CASES IN CHANCERY.

1857. They are therefore the profits of Mr. Joneses business,
^"^■"^^^^^ and have no reference to the losses of any previous

JSx parte

Harper. concern.

In re

Jones. Mr. Bocon and Mr. De Gex, for the assignees.

No election has been made, nor has any authority or
reason been adduced to show that the assignees may not
make it. They do so by electing to have the claim made
in respect of a share of the profits, and then it is clear
that there have been none. For it is a fallacy to treat
the business carried on by the bankrupt as unconnected
with that of the late partnership.

It was a continuation of the partnership business, and
is • so treated in the words of this covenant itself, and
more clearly still in other parts of the instrument. The
words " the profits of the survivor," are words of con-
tinuance, and the interest which they denote resembles
the estate of a surviving joint tenant, which is a con-
tinuation and part of the original estate, and no new one.
In the provisions for the admission of a son of the
deceased partners the words are, " shall be at liberty to
introduce into the said business any one or more of his
sons being of the age of twenty-one years," and " having
been duly admitted," &c. ** as a partner or partners with
the survivor of the said George Harper and Richard
Parry Jones in the said partnership business." " And
the son, &c. who shall be admitted into the said partner-
ship," &c. Therefore the business, though carried on
by one partner only, is still spoken of as *' the said part-
nership business/' and is obviously treated, as in common
fairness and justice it ought to be, as a continuation of
the original partnership. The one-fourth must have
been of the same divisible fund to the moiety of which
Harper would have been entitled if he had lived, and
that would have the balance only, after deducting out-
goings

CASES IN CHANCERY.

189

goings in respect of his dealings. It is, therefore, clear
that the business of the surviving partner cannot be
treated as a new one. But if it could, the Appellant's
argument would not be advanced, for the goodwill of
the business, considered as a new one, could only be
regarded as having been acquired by reason and in con-
sideration of the bankrupt having been a partner in and
having become liable in respect of the old business, and
the liabilities of the old concern would, in that view of
the case, be a charge subject to which the new one was
acquired, and which must be taken into account in
estimating the profits of it

1857.

Ex parte
Harper.

In re
Jones.

These considerations are sufficient to dispose of the
case without referring to another, which, however, would
be of itself conclusive, viz., that the power in the part-
nership articles being a general one, the appointee under
it is at best in the same situation as an assignee of any
part of the appointor*s interest in the partnership, and
can have no higher equity at all events than a purchaser
for value would have. But such a purchaser would
take, subject to all the equities arising out of the contract
under which he would have to make his claim, and par-
ticularly to that equity which precludes either party to
a contract from claiming a benefit under it until he has
made good any loss arising from his own violation of its
stipulations. This principle was applied in a. case before
one of your Lordships, of Morris v. Livie{a), where an
executor assigned his reversionary legacy for value, and
ai\er wards became indebted to the testator's estate ; and
it was held that the purchaser could not receive anything
until the debt to the estate was satisfied ; one of your
Lordships there saying, — " It may be properly said that
Mr. U. Livie*8 legacy was given under a condition, im-
plied by law, that, undertaking, he should duly fulfil, the

duties

(a) 1 Y. 4- C. C. C. 389.

190

CASES IN CHANCERY.

1857.

Ex parte
Harper.

In re

JoNBS.

duties and obligations imposed on him by the instrument
giving it." ** This condition, if existing, accompanied
his legacy until its discharge, and applied to it as much
afler as before its assignment." Bamett v. Sheffield (a)
is another authority to the same effect [7%e Lord
Justice Turner. — Those were cases of breaches of
trust.] But we submit that the decisions did not tarn
on that circumstance. In Priddy v. Rose (b) the prin-
ciple was applied against a purchaser from a settlor^ who
had covenanted to pay a capital sum to the trustees of a
settlement, under which he took a life interest. He had
charged this life interest in favour of a purchaser for value,
but it was held that the purchaser took, subject to the
fulfilment of the covenant. Woadyatt v. Oresley (c) was
a aimilar case of a settlor ; and in a recent case of Smith
V. Parhes {d) the same principle was applied to a part-
nership.

Mr. Kent/ofif in reply, referred to Tawnshend v. Wind'
ham if).

Judgment reserved.

The Lord Justice Knight Bruce.

April 25. In this case it appears to me, that an election, upon

the part of the bankrupt, to pay the Petitioner as
Mr. Harper^s widow 200/. per annum under the articles
of partnership between him and the bankrupt, and not a
share of profits (if any) from or after Mr. Harper's death,
cannot be deemed to have taken place before the bank-
ruptcy, nor has there been any such election since on
the part of the assignees, who have indeed elected other*
wise. It is, I think, clear, therefore, that, unless in re-
spect

(a) 1 Dc G., M. if G. 377. {d) 16 Bern. 115.

(6) 3 Mtr. 86. (/) 2 Vet, «en. 1.

CASES IN CHANCERY.

191

spect of a share of profits, if any, between the death and
the bankruptcy, the Petitioner is not entitled to make any
proof.

Then arises the question, whether her rights under
the partnership articles are, according to their true con-
struction, affected by the amount of debt due from the
partnership at the time of her husband's death ? Because
if they are, it is, I apprehend, plain enough that she can
prove nothing ; and it appears to me that they are. I
think it impossible to view the business, in the profits of
which she acquired a contingent title to share, as a new
business, as one not connected with that which until his
death the partners carried on together under the partner-
ship articles. It is true that the partnership determined,
or in a sense determined, upon the death. But, for the
purpose of the provision for the widow, it seems to me
that the intention of the parties to the partnership
articles (to be collected from the instrument) was, that
the business, to produce the profits in which she was to
share, should be considered as a continuance of the
business, in which her husband was a partner.

1857.

Ex parte
Harper.

In re
Jones.

According to my view of the matter, therefore, the
debts due from the partnership at his death must be
taken into account in estimating whether there were any
profits afterwards, and what was their amount, if any.
Those debts having been so considerable, as they were,
and having, to such an extent as they have, fallen on the
bankrupt and his estate, the result is that, in my judg-
ment, the conclusion of the learned Commissioner was
correct. For it seems to me that there has been no
profit within the meaning of the partnership articles as
they concern the widow.

The

192

1857.

Ex parte

HXRPER.

In re
Jones.

CASES IN CHANCERY.

The Lord Justice Turner.

For the reasons which my learned brother has given^
I fully agree that there can be no proof as to the arrears
or as to the value of the 200/. annuity.

I have felt more doubt as to the right to prove for the
one-fourth part of the profits ; but, upon examining and
considering the deed, I think the learned Commissioner's
decision is right upon this point also ; for I think that
the deed proceeds upon the footing of the business being
continued by the surviving partner, and that the true
meaning of the deed is this, — that the surviving partner
was not to be compelled to pay to the widow of the
deceased partner more than one-fourth of the clear annual
profits of the business so continued ; and I think that, the
proceeds of the business as continued having been ab-
sorbed hy the antecedent liabilities, it cannot be said that
there were any clear annual profits within the meaning
of the deed.

I think, however, that, looking to the language of the
deed, the appeal ought to be dismissed without costs.

CASES IN CHANCERY, 193

1857.

STAFFORD v. STAFFORD,

May 1, 2.

npHIS was a petition by Mrs. Harriet Laton, a married Before The
womani one of the Defendants, the principal object ^^,^gg *'
of which was to have an alleged deficiency in the in- a married
come, which she had for a nurober of years received ^<j™*" «"•
upon a legacy, made good to her by the residuary income of a

use, continued

The legacy in question was given by the will of Mrs. y/ars, with full
LaUnCs father, Hvgh Stafford, who bequeathed to her "°*>ce of the

„ ^^ #v/>yv . 11. . A circumstance!

" 40,000 Sicca rupees, payable in a promissory note of affecting her
the East India Company," with directions that it should ^*?^^» *° ^^'

* "^ ceive income

DOC be paid to her then present or any future husband, on the footing
•'without a necessary and proper settlement made upon J;[;\*Suefr
her and her children under their direction and discretion, contribute in
but to pay her the interest for her sole and separate use residuary lega*
until the necessary arrangements are complied with." *®®'*°^*°"

, , , , occurring on

The testator, after giving similar legacies for the benefit the reinvett-
of three other daughters by his first wife, bequeathed his ^^^'l^^f^^""^
residuary estate to Eliza Stafford and Mary Stafford, It was after-
bb children by his second marriage. The will contained ^^^ the^Wacy
directions as to keeping the testator's Indian property was not liable
invested on Indian Securities. tribute, but

must be paid
in full : —

The testator died in 1819. In 1821, this suit was He/</, that she

was not en*

instituted on behalf of the residuary legatees, who were titled to re-
tben infants, for the administration of the estate ; and in Jg^^'^jJ^ Vat

1827, teei thJ^dif.^*
ference be-
twstn the ineome of the M amount of the legacy and the reduced income she had
aatosUy received.

Whether her claim, apart from acquiescence, was not to a great extent barred by the
Statute of LimitationB, ^turre.

Vol. I. O D.J.

194

CASES IN CHANCERY.

1857.

Stafford

Stafford.

1827| a decree was made, after which various proceed-
ings were had, which it is not necessary to enter into.

On 31st October, 1835, the testator's Indian funds
consisted of notes of the East India Company, for sums
amounting in the whole to 290,000 sicca rupees, in-
cluding one for 147,000 sicca rupees, and another for
63j000 sicca rupees, both of which bore interest at 5/.
per cent. From 1835, these two notes for 147,000 sicca
rupees, and 63,000 sicca rupees, making together SI 0,000
sicca rupees, were considered and dealt with by the acting
executor in India, as being an investment of Mrs. Lat(m*s
legacy of 40,000 rupees, and of a sum of 170,000 rupees,
which had been found by a report in the cause to belong
to the residuary legatees. Pursuant to an order made in
the cause, directing certain payments out of the residuary
estate, the note for 63,000 rupees was sold in 1836, and
part of the proceeds applied as directed by the order, and
the residue amounting to 13,600 rupees was invested in
another note of the Hast India Company, thus leaving
invested 159,600 sicca rupees, of which 40,000 were
treated as constituting Mrs. LatovLS legacy.

In August, 1837, the East Indian Government paid off
the 147,000 note, by a treasury note, payable twelve
months after date, which on 10th August, 1838» was pud
off in cash. In 1839, David Colvin, the acting executor
in India, died, and the surviving executor took steps to
invest the monies thus paid off, as well as some other
monies which were also lying unproductive. The 147,000
sicca rupees were accordingly in December, 1839, invested
in stock receipts of the Bengal 5/. per cent, loan, for sums
amounting to 129,958 sicca rupees, the sum of about
14,440 sicca rupees being paid for premiums, and about
3,602 sicca rupees for interest due on the stock receipts
at the time of purchase. The surviving executor retained

out

CASES IN CHANCERY. 195

out of the first dividend the 2fi02 sicca rupees to reim- 1857.
burse the capital^ and treated one fourth of these sums^ ^-^n-*^
namelyi of 129^58 sicca rupees, 12,600 sicca rupees and «.

9fi02 sicca rupees, amounting together to 145,160 sicca Stafford.
rupees, as constituting Mrs. LatonCs legacy, thus acting
on the view that there had been an effectual appropria-
tion of funds to meet that legacy, and that the loss on the
159,600 sicca rupees was to be borne by Mrs. LatorCs
legacy, and by the residue rateably.

On 11th November^ 1840, an order was made on the
petition of the Plaintiffs, referring it to the Master to
inquire how the funds remaining in India had been dealt
with, and then stood invested, and whether it would be
for the benefit of the parties, that any of them should be
brought to England.

On 18th Fehnuxry^ 1841, Mr. Manisty, a member of
the firm of solicitors who then acted for Mr. Ryley the
surviving trustee of the testator's will, wrote to Mrs.
Laton a letter, containing a statement of the above mat-
ters relative to the investments, and explaining very dis-
tinctly the point at issue between her and the residuary
legatees. The material passages of that letter are stated
in the judgment of the Lord Justice Turner. By a sub-
sequent letter of the same day, Mr. Manisty explained
to Mrs. Laton, that he ought in his former letter to have
stated the proportion of the aggregate fund attributable
to her legacy as one-fourth instead of one-fifth.

On SOth February , 1841, Mr. Manisty submitted to
Mrs. Laton a cash account made out between the sur-
viving trustee and Mrs. Laton and the residuary legatees,
which proceeded on the principle of dividing the aggre-
gate income of the 145,160 rupees into fourths. Mrs.
Laton signed an approval of this account.

0 2 On

STAFrORD
V.

196 CASES IN CHANCERY.

1857. On 28th June^ ISil, the Master made his report in

pursuance of the Order of November^ 1840| and found the
above facts as to the way in which Mrs. LatorCs legacy
Stafford, jj^j heeti treated as being provided for, and found that it
would not be for the benefit of the parties, that any of
the Indian funds should be brought to England.

From this time Mrs. Laton continued to receive in*
come on the above footing.

By an Order of 29th January, 1853, the report of 28th
June, 1841 was confirmed, and directions given for the
appointment of new trustees of the testator's will.

In 1855, another appointment of a trustee became
necessary, and by an Order dated 8th June, 1855, made
by Vice-Chancellor Stuart on the petition of one of the
Plaintifis, a new trustee was appointed, and it was
declared, that the apportionment of the Indian Securities
between the 40,000 legacy and the residuary estate was
binding on all parties interested in the legacy, and in
the residuary estate respectively.

Mrs. Laton appealed, and the Lords Justices dis-
charged the above declaration, and such directions as
were consequent thereon. The order on appeal as
drawn up declared, that Mrs. Laton was entitled to have
the full amount of the legacy of 40,000 sicca rupees
paid or set apart, notwithstanding the Master's report
dated 28th June, 1841, and the Order of 29th January,
1853, confirming it.

Shortly after this an order was made for the execution
of a proper settlement of Mrs. Laton*s legacy, having
regard to the directions in the will.

Mra

CASES IN CHANCERY. 197

Mrs. Laton now presented her petition by her next 1857.
friend, alleging, that she had received income on the J^"'^^^
above footing in ignorance of her rights, and praying, «.

that 40,000 sicca rupees might be set apart out of the Stafford.
fiinda in India to answer the legacy, and that an account
might be directed of the interest which had become due
in respect of the legacy since 10th August, 1838, and
of what was due to her in respect thereof, and that an
inquiry might be made, how or by whom, or out of
what funds, the sum found due should be paid. The
petition came on before Vice-Chancellor Stuart, but at
his request was heard by the Lords Justices in the first
instance.

Mr. Sacan, Mr. JBaily and Mr. Cracknall, for the
Petitioner, contended, that Mrs. Laton had, by mistake,
received too little, and was entitled to be recouped out of
the funds belonging to the residuary legatees. They re-
ferred to Dibhs V. Ooren (a) and Mills v. Drewitt (b).

Mr. WigroM and Mr. Faber, for one of the residuary
legatees, referred to Nichols v. Leeson{c), Currie v.
OooU {d ), Clifton v. Cockbum (<?).

Mr. Shapter, for the other residuary legatee, cited
Bote V. Hooper (/).

Mr. Bacon in reply.

The Lord Justice Knight Bruce.

The petition by Mrs. Laton prays, first, that a sum
of 40,0(X) sicca rupees may be appropriated and set
apart to answer the Petitioner's legacy out of the funds

belonging

(a) 11 Beav. 483. [d) 2 Mud, 163.

(6) 20 Beav. 633. (r) 3 31. 4- X. 76.

198 CASES IN CHANCERY.

1857. belonging to the testator's estate^ ^' now remaining in
^^""^"^^^ India as aforesaid." To this part of the prayer, as I

Stafford , , *^ . . n j

V, understand, there is no objection, except as it is alleged

Stafford. ^^^^^ perhaps, accurately), that it is unnecessary, by
reason of the Order that we made in April, 1856, which
Order, as I collect, has never been disputed or intended
to be departed from, but has actually been in a course
of performances if I may use the expression.

If this point has not been provided for, it must be. I
understand, that 40,000 sicca rupees are ready or will
very speedily be ready, and will be paid to the trustees
appointed by the settlement for the purposes of the
settlement, and from that period, or, perhaps, from our
Order of April, 1856, Mrs. Laton will have the
income*

Having referred, however, to the Order of April,
1856, I may, perhaps, without impropriety, repeat a
remark that I made during the argument, namely, that I
doubt whether its language with respect to the 40|,000
rupees is accurate. That inaccuracy, if any, my learned
brother thinks not attributable to ourselves, but attri-
butable to an absence of strict carefulness of expression
elsewhere. How that may be I do not know. It de-
clares that the Petitioner Harriet Laton is entitled to
have the full amount of the legacy of 40,000 sicca rupees
paid or set apart, notwithstanding the report of the SSth
June, 1841, and the Order of 1853, confirming the report
Now I am not sure that we intended, but I am confident
that it would not have been right for us to intend^ to
make an order on that occasion, deciding or prejudicing
the question of the amount of the life interest to which
this lady was entitled for any time past. It has not^
however, been contended on either side» as I^ believe,

that

CASES IN CHANCERY. 199

that more has been donCi or that more was intended to 1857.

be done, than I have just mentioned. e

' * Stafford

The rest of the prayer of the petition is this. Pre-
sented in February of the present year 1857^ it asks,
that '^ An account may be ordered to be taken by the
Chief Clerk of the said Vice-Chancellor Sir John
Stuartf of the interest which has become due upon or in
respect of your Petitioner's said legacy from the 10th
day of August^ 1838, and of what is now due to your
Petitioner in respect thereof, and that an inquiry may be
made before the said Vice-Chancellor in Chambers, as
to how, or by whom, or out of what funds, what shall be
found to remain due to your Petitioner, upon taking the
account aforesaid, ought to be paid or satisfied.**

Now, I am not sure that this demand, as to a consider-
able portion of it at least, is not affected by the 42nd
section of the Statute 3 & 4 Will. 4, c. 27, as to interest
on legacies. I desire, however, to be understood as not
giving any opinion upon that point I will assume that
question, if question it should be called, to be one that
ought to be decided in favour of the lady, and I rather
mention it that it may not be deemed to have been over<-
lookedy than for any other reason.

It appears that the legacy of 40,000 sicca rupees
given for the benefit of this lady and her family was a
specific or a demonstrative legacy ; but some time after
the testator's death that state in which it was described
specifically or demonstratively by the testator ceased;
for the Indian Government exercised the right which
tbigr bad to pay the money, and thereupon, the specific
or.^monstrated thing not existing, it came to stand very
much on the footing of an ordinary legacy, so that then
the only question could, as I understand it, be, whether

Stafford.

200 CASES IN CHANCERY.

1857. it should be invested in 3 per cent. Consols or in In-
^ ^^^ dian Securities of a like nature^ as far as similarity coald

Stafford ,

V. be obtained, with that which was specifically given or

Stafford, demonstratively appropriated by the will.

It appears that for some time this amount so paid did|
through negligence or inadvertence or otherwise, remain
uninvested and unproductive. If there was blame in that
respect, it was blame attributable to the trustees. It was
a breach of trust, if a breach of trust at all, which oc-
curred very many years ago ; and it has, I think with
propriety, been stated by the Counsel for the Petitioneri
that they have no wish to make any claim in respect of
that delay or omission.

When the money came, however, to be invested^
instead of sending it to England^ it was (and perhaps
rightly) invested in " Company's Paper," of a nature, I
understand, as nearly similar as in the circumstances
could be, to that paper in which the legacy existed
at the times of the will and of the death ; but circum-
stances were such that the 40,000 sicca rupees could
not or did not obtain that amount of debt from the
Company, and accordingly the income which this lady
has received from the legacy (amounting altogether, let
it be remembered, to more certainly than 4 per cent, per
annum upon her legacy, considered as unreduced) has
been less than on 40,000 rupees net. I am not sure that
in those circumstances the lady had any right of com-
plaint. If it was a regular investment, certainly not It
has, however, been decided by us (perhaps erroneooslyi
perhaps correctly, I rather think correctly), that those
who were interested in the capital had a right to de<£ne
being bound by that investment, because there was no
separation, no specific and particular appropriation for
the purpose of the legacy, but the money or debt had

remaine

CASES IN' CHANCERY.

remained in the general mass of the residue ; and accord-
ingly we have decided, or meant to decide, that those in-
terested in the capital should have the 40,000 sicca rupees
paid, without regard to the premium upon that invest-
ment, or the price of that investment.

There remains the question, whether this appropriation
was right or wrong as to the lady. I think that she has
precluded herself from raising that question. She was
informed in 1 841, that there was to be or had been an
Indian investment, that the money was not brought or
to be brought to Englandj that it had been or was to be
laid out in ''Company's Paper.** She acquiesced in that,
and has never objected to it. She was informed of the
circumstances, so far as they could possibly be material
to her, in which, whether by a breach of trust on the part
of the trustees, or otherwise, this amount was]to be or^had
been laid out, and that it produced or would produce a
diminished income. She makes no objection. From that
time to the present, a period of more than fifteen years,
she has continued to receive the income without objectioni
and she now claims a right to go back to the beginning,
and take accounts from the commencement, with a view
of having the difference of income made good, not by
the trustees, but by those whO| with her knowledge and
approbation, have, from time to time, been receiving an
amount of income which she, by her conduct, and more
than by her conduct, admitted to be correct. This, it is
said, is to be done, because the lady was ignorant of her
strict and extreme rights. I am not sure that what was
done was not much more for her benefit, individually and
personally, than if she had insisted upon her extreme
rights, and if the utmost justice that strictness could
require had been done in the case. My impression isi
that she has rather been a gainer than a loser ; but if
the has been a loser, to make her present demand on the

ground

Stafford
Stafford.

Stafford

202 CASES IN CHANCERY.

1857. ground of supposed mistake or on the ground of sup-
posed ignorance of law, when at such a distant period she
V. was apprised of all the facts, and being so apprised has

Stafford, allowed her sisters to shape their expenditure and their
manner of living so long upon the footing of the income
which she then acceded to, is rather too much. Generally,
when the facts are known from which a right arises, the
right is presumed to be known ; and I am not satisfied
that in the present case, upon the materials before us, it
would be right to ascribe to the lady any degree of
ignorance of her rights.

I think that she must be content with what she has
received, whether more or less, though I repeat, in my .
opinion, rather more than less, than she was in strictness
entitled to. She will have the advantage (I consider it
an advantage), now conceded to her, of having, from the
time of our Order in April, 1856, the whole income oi
the 40,000 rupees undiminished.

The Lord Justice Turner.

I am entirely of the same opinion. This lady's rights,
or rather her claims, were very distinctly put before her
by the letter sent to her by Mr. Manisty in the year
1841. In that letter he says, ''you will of course con-
tend, that you are entitled to be paid interest upon your
legacy of 40,000 rupees, from the 10th August, 18S8^
before anything is paid to the residuary legatees (the two
Miss Staffords) — they will contend, I presume, that yon
have no such right," thus distinctly pointing out to ber„
that there might be a question between her and the Miss
Staffords, the residuary legatees, as to her right to be
paid the whole of the interest on her legacy, to the pre-
judice of and as against those residuary legateeSi The
letter, too, is not confined merely to the rights or claims.

that

Stafford

CASES IN CHANCERY. 203

that had arisen from the legacy not having been invested 1857.
in the year 1838, but it goes on thus, ^' I will take the
liberty of saying, that in my humble judgment the best
thing for you and for them is to submit to the loss occa- Stafford.
sioned by the non-investment of the funds laAugust^ 1838,
and to divide the interest received and to be received into
five parts,** thus proposing to this lady a future arrange-
ment, that the whole legacy should continue as part of
the entire fund, and that she should receive the interest
of one-fifth (which in a subsequent letter he explains
should have been one-fourth) of that fund.

Accordingly, firom the year 1841 down to the year
1855, when the last payment seems to have been made,
the lady received the interest of one-fourth of the en-
tire fund. Now, in what position has she placed the
residuary legatees by this course of conduct? If at the
time vjrhen this letter was written to her in the year
1841, she had insisted as against the residuary lega-
tees, that she was entitled to the whole of the interest
upon the 40,000 rupees, notwithstanding the diminu-
tion of that fund by the investment, what course would
the residuary legatees have been entitled to take ? They
would have been entitled to try with the trustees the
question, whether there had not been a breach of trust
in allowing the fund to remain uninvested from the
year 1838 till December^ 1839, and whether the trustees
were not responsible to them for the loss which had been
incurred in consequence of the investment not having
been sooner made. She agreed, however, to the arrange-
ment proposed to her, and by so doing, placed the re-
siduary legatees in such a position, that it was not neces-
sary for them to institute proceedings against the trustees.
Under these circumstances, I think it would be most un-
just now to give her relief as against the residuary lega-
tees. I am not quite sure, that she would at any time

have

^04

CASES IN CHANCERY.

1857.

Stafford

Stafford.

have been entitled to relief against theniy but if she would
at any time have been so entitled^ my clear opinion is,
that under the circumstances of the case, and looking to
the mode in which in my judgment the position of the
residuary legatees has been affected, she is not so entitled
now. I think this petition must be dismissed except as
to the first part.

April 23.

Maif 4.

Before The
Lords Jus-
tices.

Leave given,
valeat guarf
turn, to file a
bill of inter-

LARABRIE v. BROWN.

npHIS was an interpleader suit instituted under the fol-
lowing circumstances. The Plaintifis carried on
business at Nantes as coal merchants, the Defendants
Brownand Mart carried on the same business in England^
the other Defendants carried on business in England as
aKit by *° merchants, under the firm of '*L. S. Magnus and Com-
the solicitor of pany." In July, 1856, the Plaintiffs procured through
that there was ^' ^- Magnus and Co. a supply of coal, which was fnr^

nished by Brown and Mart. The Plaintiffs alleged,
that there was no contract between them and Brown and
Marr^ but that their agreement was purely with Z. S.
Magnus and Co., who had purchased from Braum and
Marr on their own account.

On 30th December, 1856, Brown and Marr corn-

no collusion,
the PlaintifTs
being abroad,
and the case
being pressing.
JL. bouffht

foods, and as
e alleged,
from M, jB.,
from whom M.
had ordered

menced in De- nienced an action against the Plaintiffs for the value of
cember an ac- ^jj^ coals, and on the same day, the Plaintiff Larabrie

tion agamst L. "^

for the price, happening

and arrested

him, and, in the February following, obtained a verdict L, obtained from a commoii
law Judge stay of execution on paying the purchase-money into Court, and applied for
a new trial, which on 16th Jpril was refused. He then filed a bill to make M, and
B. interplead, and for an injunction to restrain the taking the money out of Coort.
The injunction was refused.

Per the Lord Justice Knight Bruce. The time which had been allowed to elapfd
Was a bar to the application.

Per the Lord Justice Turner, Such a bill would not lie, being in the nature of
a bill for a new trial — the only point at issue being whether L. was a debtor at law i9
B., which it had been decided at law that he was.

CASES IN CHANCERY. 205

happening to be then in England^ they arrested him. 18S7.
Bail was given for him by a member of the firm of X. /S.
Magnus and Co., and he immediately returned in haste
to Nantes^ to remove, as he said, the unfavourable im-
pression which the news of his arrest would produce
there. He went away without giving any instructions as
to the defence to the action.

In January y 1857, particulars of demand were de-
livered. On 13th February the action was tried, and
Brown and Marr obtained a verdict.

The bill alleged, that at this time the Plaintiffs were
both abroad, and that L. 8. Magnus, the member of the
firm of Z. S, Magnus and Co. who had been concerned
in the transaction, was also absent at Paris, and did not
return till after the trial, and that upon his return the
attorney of the Plaintiffs in equity first discovered that
the contract for the coals had been made by the Plaintiffs
with Z. jS^, Magnus and Co., and not with Brown and
Marr.

Under the circumstances the attorney of the Plaintiffs
in equity applied for a stay of execution, and Mr. Justice
Erie granted it on the terms of their paying 568/., the
value of the coals, into Court, which was accordingly
done. A motion for a new trial was then made, and on
16th April was refused by the Court of Queen's Bench,

On the 33rd April an application was made to the
Master of the Rolls for leave to file the present bill,
which prayed that Brown and Marr and X. S. Magnus
and Co. might interplead, and that in the meantime
Brown and Marr might be restrained by injunction from
taking the 568/. out of Court. The Plaintiffs being in
JVoAoei the afiidavit of no collusion was made by their

solicitor

206 CASES IN CHANCERY.

^^^'' solicitor and not by themselves^ and on this ground an

Larabrie application for leave to file the bill was necessary. The

V* Master of the Rolls refused the application^ which was

^''''"' then renewed before the full Court of Appeal.

April 23. Mr. A. H. Louis, for the applicatioUi admitted that«
as was decided in Wood v. Lyne (a), an affidavit by the
solicitor was not in general sufficient. But in this case
he urged that it ought to be considered sufficient, inas-
much as an affidavit by the parties themselves could not
be obtained in time to prevent the money from being taken
out of Court. The bill would have been filed before,
but the parties had expected that they should be able to
obtain a new trial.

The Lord Chancellor said, he saw no reason why
the bill should not be put on the file valwt quantum.

The Lord Justice Knight Bruce concurred, observ-
ing, that it would be open to the Defendants to demur
on the ground of the insufficiency of the affidavit, if in-
sufficient.

The Lord Justice Turner concurred.

The bill was accordingly filed, and the Plaintiffs moved
before the Master of the Rolls for an injunction, which
was refused. A motion by way of appeal was then made
before the Lords Justices.

May 4. Mr. A. H. Louis, for the Appellants, contended, that

the fact of a verdict having been obtained was not a bar

to
(«) 4DeG.^ Sm. 16.

Larabrie

CASES IN CHANCERY. 207

to a suit for interpleader where the delay was satis- 1857.
factorily accounted for. He referred to Hankin v.
Vemey (a). v.

Brown.

Mr. jRaundell Palmer, Mr. Selwyn and Mr. T. H.
Terrell, for the Defendants, were not called upon.

The Lord Justice Knight Bruce.

The writ was served and the Defendant at law arrested
in December last. The declaration was delivered early
in January. The cause was tried, whether as a defended
or an undefended cause (it is not for the present purpose
material which) on the 13th of February ; and then,
after an ineffectual attempt to obtain a rule nisi for a
new trial, this bill, called a bill of interpleader, is filed
on the ^rd of April. The time which has been allowed
to elapse is, I think, fatal to the application.

The Lord Justice Turner.

This bill is in the nature of a bill for a new trial.
Such bills appear to have been filed in former times ; but
I believe that no such attempt has been made for the last
two or three hundred years. The question is, whether
the Plaintiffs are debtors at law to Brown and Marr^
and it has been decided at law that they are. The
appeal motion must be refused with costs.

(a) 2 Cox, 1 2.

808 CASES IN CHANCERY.

1857.

JONES V. FARRELL.

May 5, 8.

Before The HpHIS was an Appeal by the Plaintiffs from so much of

^ ^LqTd * ^^^^®® ^^ ^^® Master of the Rolk as dismissed

Cranworth the bill with costs as against the Defendant John Fisher

TICKS.

f • sod G* as-
signed a debt In February, 1854^ the Defendants Farrell and Grif'

due ^^^^ fithe, who carried on business at Manchester, were con-
j. and B. as a siderably indebted to the Plaintiffs, who were timber
d^'duefrom Q^ci'chantSi carrying on business at Liverpool under the
P. and G. to firm of Jones, Bland and Co. They were at the same
reoeWed notice ^^™^ employed in building a mill at Patricroft for the

of this sttign- Defendant John Fisher Moore. Being unable to pay
ment, and * ^

promiied in what they owed the Plaintiffs, and being also desirous of

"^fi^hsLt * ^"r*er advance from them, Farrell and Griffiths offered
Uiis F. and G. to give the Plaintiffs security. The Plaintiffs accord-
law for the ^"S^y advanced considerable further sums, and Farrell

debt. Jf. and Griffiths, besides giving them a mortgage and an

orored to pay o o «? «^

J. and B. if order on the North Western Railway Company for

they would in- gQQ/ delivered to them on g5th February the following
oemnify nim, ' %/ ^

which they de- order : —

dined to do,

upon which M,

^d F. and " Manchester, 23rd February, 1854,

indemnity :— " Sir, — We desire you to accept this order upon you
3f^&*h*he ^^^ ^^® ^""" ^^ 1,000/., and pay Messrs. Jones, Bland

miffht have no and

dtmoe at law

Maintt the aciion was not discharged, but must be decreed to pay the money to J. and
A, and that their having refuted him an indemnity did not alter the case.

The coune to be pursued by a debtor who receives notice of an equitable assign-
ment of the debt considered.

Jones

CASES IN CHANCERY. 209

and Co. that sum or any less amount which may from 1857.
time to time be owing by you to us.

" We are. Sir,

" Your obedient Servants, Fabrell.

<* Farrell and Griffiths,
" To John Fisher Moore, Esq."

At the request of Farrell and Griffiths the Plaintiffs
abstained from giving immediate notice of this order to
Moore, but on 14th July, 1854, they presented it to him,
through their solicitor Mr. Blair, and he wrote across it
the following acceptance : —

** July 14th. — I promise to pay to Messrs. Jones,
Bland and Co. whatever balance may be due from me to
Messrs. Farrell and Chiffiths.

'* John Fisher Moore**

This order, as Mr. Blair deposed, was left with Mr.
Moore, that he might be able to show it to Farrell
and Griffiths, if they applied to him for payment.

Farrell and Griffiths, having become embarrassed,
called in July, 1854, a meeting of their creditors, and,
after some negotiations, they offered to the Plaintiff
aqd their other creditors a composition of 6s. 8c/. in the
jK)und, of which 4$. was to be guaranteed by Messrs.
Brownbill and Lawton, and to be payable in six months,
and the residue was to be payable by Farrell and Grip
fiths in fifteen months.

The creditors signed a memorandum of acceptance of
this composition in the following terms : —

" We, the undersigned, agree to accept a composition
of Ss. 8d. in the pound on the debts due to us from
Messrs. Farrell and Griffiths, of Manchester, joiners

Vol. I, P D.J. and

210 CASES IN CHANCERY.

1857. and builders, to be paid as follows: — viz., 4«. in the
pound, secured by the promissory note or bill of exchange
of Messrs. Brownbill and Lawton at six months' date,
and 2f. %d. in the pound secured by the promissory note
or bill of exchange of the said Farrell and Griffiths at
fifteen months' date (such composition to be without pre-
judice to any claim we may respectively have against
any parties, other than the said Messrs. Farrell and
ChiffithSf upon any bills of exchange, notes, or other
securities of any kind, or the property or effects com-
prised in such securities respectively, which any of us,
the undersigned, may have or hold on account of our
debts or any part of the same). And we agree to ex-
ecute a release of our respective debts, without pre-
judice as aforesaid, upon receipt of the said notes or bills
of exchange : but such release is to be void, if the sidd
notes or bills of exchange be not duly paid at maturity.
Dated this 29th day of August, 1854."

The Plaintiffs signed this memorandum as creditors
for 5,204/. 2s. lOd., the total amount of what was due
to them, after deducting 500/., which had been received
under the order on the North-Western Railway Com-
pany.

There was considerable conflict of evidence upon the
question, whether the Plaintiffs, on the occasion of the
negotiations for the composition, did not agree to abandon
the order on Moore, It was undisputed, however, that
they were to retain the benefit of the mortgage which
had been executed to them.

The composition deed, which was ultimately executed,
bore date the 13th of September, 1854, and was in the
following terms :—

"To all to whom these presents shall come. We,

whose

CASES IN CHANCERY. 811

whose hands and seals are hereunto subscribed and 1867.
affixed, being creditors respectively of Patrick Farrell
and John Griffiths^ of Manchester^ in the county of
Lancaster^ joiners and builders, severally send greeting.
Whereas the said Patrick Farrell and John Griffiths
are justly indebted unto us, their said creditors, in the
several sums of money stated in the column of figures
set opposite to our respective names in the schedule
hereunder written. And whereas the said Patrick Far-
rell and John Griffiths^ by reason of various losses and
misfortunes in trade, are rendered unable to pay us,
their said creditors, the full amount of our said several
debts, and have, therefore, proposed and agreed to pay,
and we, their said several creditors, have agreed to accept
and take, a composition or dividend of 69. Sd. in the
pound upon the amount of and in full satisfaction of our
said respective debts by two instalments in the manner
and at the several periods following: — viz., 4«. in the
pound at six months and ^s. 8d. in the pound at fif-
teen months, such several periods to commence and be
computed firom the day of the date of these presents ;
the first of the said instalments to be secured by the
joint and several promissory notes of the said Patrick
Farrell and John Griffiths and Henry Brownbill, of
Manchester aforesaid, brickmaker, and Richard John-
son Lawton^ of Manchester aforesaid, land surveyor,
and the second to be secured by the promissory note
of the said Patrick Farrell and John Griffiths^ and,
upon the delivery of such notes, we, the said several
creditors, have agreed to execute to the said Patrick
Farrell a.nd John Chiffiths^ such covenant as is hereinafter
contained. Now know ye, that we the said several credi-
tors of the said Patrick Farrell and John Chiffiths, in pur-
suance of the said recited agreement on our parts, and in
consideration of the said dividend or sum of 6s. 8d. in
the pound on the amount of our said several debts being

P 2 secured

212 CASES IN CHANCERY.

1857. secured to be paid unto us respectively in manner afore*
said, for and on behalf of ourselves and our several and
respective executors, &c. do and each and every of us doth
hereby covenant with the said Patrick Farrell and John
Griffiths^ their executors and administrators, that we the
said several creditors respectively, or our respective part-
ners, or the respective executors or administrators of us
or them respectively, shall not nor will at any lime or
times hereafter commence sue out or prosecute any
action, suit, execution or other proceeding in any Court
of Law or Equity, against the said Patrick Farrell and
John Griffiths^ theirexecutors oradministrators, for the en*
forcement or recovery of any cause or causes of action or
suit, controversies, damages, claims and demands whatso*
ever, which we the said several creditors of the said Pa^ricA
Farrell and John Griffiths, or any or either of us alone or
jointly with our respective partners now have, or which
we or any or either of our partners, our or their re-
spective heirs, executors or administrators at any time or
times hereafter can, shall or may have or be entitled to,
from, upon or against the said Patrick Farrell and John
Chiffiths, their heirs, executors or administrators, by
reason or on account of any debts, sums of money, billi
notes, securities for money, contracts, provisoes, agree-
ments, reckonings, accounts, dealings or transactions what-
ever, owing from or made, given or entered into by the
said Patrick Farrell and John Griffiths, to or with ut
respectively, either alone or jointly with our respective
partners, or transacted, done or depending by and be-
tween them and us respectively, or our respective part-
ners, or any or either of us or them from the beginning of
the world to the day of the date of these presents (save
and except the said promissory notes for securing the
payment of the said composition or instalments as afore-
said)." This deed was executed by the Plaintiffs as cre-
ditors for 5,?04Z. 2s, lOrf,, but their evidence went to

show

CASES IN CHANCERY. 213

show that they executed it under a mistake, believing it 1857.
to be conformable to a drad settled on their behalf by
their solicitor, which contained an express reservation of
their securities.

The balance due from Moore to Farrell and Griffiths,
for the work done by them for him was not ascertained
till February, 1855, up to which time it seemed to have
been supposed that nothing remained due. In that
month, however, the architect employed to settle the
amount found that 47^/. 8^. was due. On the 1 7th
of that month, Farrell and Griffiths commenced an
action against Moore to recover this balance. Moore
pleaded to the action, issue was joined, and the action
stood for trial at the Liverpool Spring Assizes, for 1855.

Moore, in the mean time offered to pay the Plaintifl^,
if they would give him an indemnity, which they declined
to do. He thereupon on 15th March, 1855, paid the
amount to Farrell and Griffiths, taking a bond from
them and Brownbill and Lawson, to indemnify him
against any proceedings by the Plaintiffs in respect of the
debt. On the same day the present bill was filed, pray-
ing that Moore might be decreed to pay the 472/. 8«.
to the Plaintiffi, and that Farrell and Griffiths might be
restrained from prosecuting the action. The fact of the
payment having been discovered, the bill was amended,
and as amended, prayed that Moore, Farrell and Chrif*
fiths, or such of them as the Court should think fit, might
be ordered to pay the money to the Plaintiffs.

The Master of the Rolls made a decree with costa
against Farrell and Griffiths, but dismissed the bill with
costs as against Moore, From the latter part of this
decree the Plaintiffs appealed.

[

214

CASES IN CHANCERY.

1857.

Mr. Boundell Palmer and Mr. Freeling^ for the
PlainUfffl.

We submit that the decree is erroneous in treating
Moore as not liable. There was a good equitable
assignment of his debt of which he had notice. Apart,
therefore, from the effect of the composition deed, it can-
not reasonably be contended, that he had any right to
pay Farrell and Griffiths^ and as he thought fit to do so,
we have a clear right to come against him in equity.
He attempts to justify his payment on the ground that
he had no defence at law against the action. If that
be so, he cannot allege that our right is at law and not in
equity. The Plaintifis were advised by Counsel prac-
tising at the Common Law bar, that Moore's acceptance of
the order did not give a right of action against him ; and
in Malcolm v. Scoti (a), and Burn v. Carvalho (jb), the
orders had similarly been accepted, yet the Court of
Chancery held that it had jurisdiction.

As to the composition deed, it was clearly executed
under an express agreement that it was not to prejudice
our securities. Even if that had not been the case, it
would not have prejudiced them, for it contains no release
of our debt, but only a covenant not to sue, which does
not enure as a release of securities; Walmslei/ v.
Cooper (c), Hutton v. Eyre (rf), Thomas v. Courtney (e).
The allegation on the other side, that we agreed to
abandon this particular security, is not supported by the
evidence.

Mr. Selwyn and Mr. Mobson, for Moore.

Moore offered to pay the Plaintiffs, if they would

indemnify

(a) C Hare, 570 j 3 Mac.^G. (c) 11 Ad. ^^ Ell, 216.

29. (d) 6 Taunt. 289.

(6) 4 Ai. * C. 690. (e) 1 JB. 4- Aid. 1.

CASES IN CHANCERY. 215

indemnify him; this they most unreasonably refused to 1857.
JiOf and left him exposed to an action to which he had no
legal defence. This is enough to deprive them of all
Tight in equity against him. — [The Lord Justice
Turner. Do you mean to say, that a trustee can safely
pay the trust fund to a wrongful claimant, because the
cestui que trust refuses to give him an indemnity ?] — We
do not go so far as that, but we say that here was an as-
signment which might be repudiated, and the conduct of
the Plaintiffs shows that they did repudiate it. Having
refused to take the burden, they cannot claim the
benefit.

Then the composition deed takes away the Plaintiffs'
right. They excepted the money payable by the London
and North' Western Railway Company, but they did not
except the sum payable by Moore, from the amount for
which they proved. Moreover, the agreement contains,
as we submit, no general reservation of securities, but
only of rights against sureties.

If the assignment was not good at law, we had no
l^al defence, and could not help paying. If the assign-
ment was good at law, it gave the Plaintiffs a right of
action, and tbeir remedy is at law, not here.

The &ct that the document remained in Moore's hands,
is almost conclusive evidence that the Plaintiffs abandoned
it.

Mr. Palmer, in reply, referred to Hart v. Clarke (a)
and Drysdale y. Piggott (&), in support of the view, that
there had been no such abandonment as could take away
the Plaintiffs' rights.

The

(a) 6 Be G., Mac. if Oor. 232. (6) 2 Jm {N. S.) 1078.

^10 CASES IN CHANCERY.

1 857. Hie Lord Chancellor.

The facts of this case are few, although somewhat
involved. Mr. Moore was a gentleman, who had em-
ployed the Defendants Patrick Farrell and John Ghrif-
jiths to build a factory for him. In respect of that
building he of course, from time to time, became indebted
in large sums of money to them as the builders; and
they, at the same time, were indebted in very consider-
able sums of money to the Plaintiffs, who were timber
merchants. The Plaintiffs, being anxious to obtain se-
curity for what was due to them from Farrell and Chrif-
fiths, obtained from them an assignment (for that is what
it amounts to) to the extent of 1,000/. of what should,
from time to time, be due to them from Moore in respect
of the building they were making for him. That as-
signment bore date in February^ 1854; but Farrell and
Griffiths, thinking that its being put into the hands of
Mr. Moore might damage their credit, requested the Plain-
tiffs not to communicate it to him unless they should see
occasion to enforce it The Plaintiffs, accordingly, held
it until the month of July, 1854, and on the 14th day of
that month they produced it to Mr. Moore, showing to
him that there was an assignment of whatever should be
due from him to the builders to the extent of IflOOL
That it was then put into his hands admits of no doubt,
because he wrote upon it that he admitted the receipt of
it, and promised to act upon it. He was therefore in the
position, in respect of this debt, of a person having a
legal demand upon him by Farrell and Griffiths, subject
to an equitable demand on the part of the Plaintiffs.

In that state of things Farrell and Griffiths, having
become practically insolvent, entered into a composition
with their creditors, who agreed to accept 6s, 8d. in the
pound, guaranteed as to part by the bills of certain third
persons. Before the Plaintiffs would agree to enter into

that

CASES IN CHANCERY. 217

that composition, they stipulated, as is very ordinary in
such cases, that their signing the deed should not be
considered as prejudicing any securities they might have
for the monies due to them, and upon those terms they
executed the deed. It was argued, on the part of the
Plaintiffs, that it was immaterial whether there was such
a stipulation or not, for that there was no release in the
deed, but merely a covenant not to sue. I think it is
unnecessary to go into that question, because it is quite
clear that there was an express stipulation contained in
a document, which, or one similar to which, was signed
by all the creditors, that the deed was not to prejudice
the rights of the Plaintiffs in respect of their securities ;
and, in spite of the ingenious argument which has been
pressed upon us, I cannot entertain a moment's doubt
that it was not to prejudice the right in respect of this
particular demand, for the general words clearly extend
to it.

So matters stood until the spring of the year 1855,
when Farrell and Griffiths, probably acting not for
their own benefit, but for the benefit of the creditors
generally, thought, for some reason or other, that they
might repudiate the assignment, and demanded payment
as legal creditors of Mr. Moore of what was due to them
from him for the building of the factory, and not only
demanded it, but brought an action, which was to be
tried at Liverpool in the Spring Assizes for that year.
When notice of that action was given to Mr. Moore, he
offered to the present Plaintiffs to pay them instead of
paying Farrell and Griffiths, provided they would give
him an indemnity. This they refused to give, and I
must confess, speaking for myself only, I am inclined to
think they acted wisely in so doing, because the only
indemnity which the debtor had a right to have was the
indemnity of the assignors consenting that he should do

that

218 CASES IN CHANCERY-

1857. ^h^^ which they had agreed he should do. If the assig-
nors had agreed to that, there would have been no quea-
tioni their assent would have been a perfect indemnity.
Of course they did not assent to the payment, because
they are claiming that the payment should be made to
them. In that state of things what ought the debtor to
have done ? It was observed by the Lord Justice Knight
Bruce, during the course of the argument, and it has
often occurred to me, that the doctrine of this Court as
to equitable assignments, if we look at it merely as theo-
rists, may lead to very great inconvenience. Nobody
can be wholly free from debts. The most solvent person
in the world owes debts; he may owe something to a
tailor, or a butcher, or a baker, and it would be very in-
convenient to him to be told unexpectedly by one of
these tradesmen, " I have assigned over to A. B. the
25/. which you owe me as the amount of my bill." I
think tlie only safe way for the debtor in such a case would
be to send at once to the assignee and pay him the debt.
That would be a valid discharge. If my creditor tells
me to pay A, J9., and I accordingly pay A. B., and the
creditor afterwards sues me, I have a good plea of pay-
ment. If that course is not pursued, and the creditor
afterwards demands payment, what is the course which
the debtor, having notice of such an assignment, ought
to pursue? I believe the only remedy he can have is
to file a bill of interpleader ; or, if an action is brought
against him, and then proceedings are taken against him
in equity, as was the case here, by the party claiming as
assignee, all the debtor can do is to say, '^ I claim no
interest whatever in this debt. I am ready to pay it to
the legal creditors if the equitable assignment is invalid.
I am ready to pay it to the equitable creditors if it is
valid." And if in the present case, when the legal cre-
ditor had brought the action, and the equitable creditor
had filed the bill, Mr. Moore had only said, ^* I claim

nothing

FaRR£LL.

CASES IN CHANCERY. 219

nothing at all in respect of this, I am willing to pay 1857.
the money to any party who will indemnify me, but I

J ONES

cannot force an indemnity, and therefore I only call _^ v.
upon the Court to protect me/' I am strongly in*
clined to think that it would have been pretty much a
matter of course for the Court to indemnify him, by
making the party who wrongfully claimed pay the costs,
so that he should be entirely protected. The course,
however, which Mr. Moore took was not that. He did
insist upon that, but he insisted also upon this — that the
equitable assignment had come to an end by reason of
the composition with the creditors. Now in so doing I
think he set up a defence which was not sustainable, and
which he, looking at his position of a stakeholder, ought
not to have concerned himself with. He ought to have
said, ^' That is a question with which I have nothing to
do. I owe the money to one of you, and I cannot enter
into the question of whether the assignment has become
invalid by matter ex post facto, you must settle that
among yourselves." Instead of taking that course he
set up this defence, which has led to a great deal of
conflicting evidence, and must, of course, have greatly
swelled the costs of these proceedings.

Now, in my opinion, Mr. Moore was liable, and con-
tinued liable, to pay upon the equitable assignment ; in-
deed I confess I have not been able to understand what
doubt there could be upon that subject, unless the eflect
of the composition had been to destroy that liability. I
am clearly of opinion, and I believe we all are, that it had
no such effect, and in that we have the good fortune of
concurring with the Master of the Rolls. If the Master
of the Rolls had not come clearly to that conclusion, then
the decree would have been different from what it is, and
would not have been a decree ordering the legal creditors

Jones

J>20 CASES IN CHANCERY.

1857. to receive the money and to pay it to the equitable cre-
ditorsj who are the Plaintiffs in this suit. But the Master
of the Rolls thought that by reason of this action which
Farrell. ha<j been brought against Mr. Moore (for that I presume
was the ground he proceeded upon), Mr. Moore was justi-
fied in paying the person who had brought the action, and
against whom he had no legal defence. I have the mis-
fortune to differ from the Master of the Rolls on that
point. Mr. Moore not only had notice of the assignment,
but he had (if that were necessary, which I do not say
that it was) given a written undertaking that be would
act upon that notice. Therefore I think the decree was
wrong in absolving him from the payment. I think it
was perfectly right in ordering the other parties who bad
received the money to pay. That they are, in truth, men
of straw (one having since become bankrupt and the
other gone out of the country) is unimportant. Whether
they are solvent or not, though they are liable to pay,
they are not the only parties liable to pay. Mr. Moare^
the original debtor, having had his debt assigned, re-
mains also liable to pay, and therefore I conceive the
decree ought to have made all the three, Mr. Moore as
well as Farrell and Griffiths, responsible for this debt,
and I think it ought to be varied to that extent.

With regard to the costs, if, as I have already stated,
Mr. Moore had set up no defence, but had admitted that
he owed the money and was ready to pay to either party,
I should have thought the course would have been to
have directed the Plaintiffs to have paid his costs, and
left them to have recovered them against FarreU and
Griffiths, the original creditors. But inasmuch as Mr.
Moore has set up a defence, which has occasioned a
great deal of unnecessary evidence, he ought to pay the
costs as to that part of the case. In strict justice, there-

forei

CASES IN CHANCERY. 221

fore, he ought to have a portion of the costs, and ought 1857.
to pay a portion of the costs, but my experience leads
me to say that such a distribution generally leads to a
great deal of unnecessary expense to both parties, and I
think the best practical course is to cut the knot, by
saying that there shall be no costs given or received.
What I shall therefore propose is, if the Lords Justices
concur with me, that the decree shall be varied, by
making Mr. Moored as well as Farrell and Oriffiths,
responsible ; and, instead of dismissing the bill as against
him with costs, to say nothing at all about his costs.
The consequence will be, that he will have to pay the
costs which he has himself incurred, and will not be
bound to pay any other parties' costs.

The Lord Justice Knight Bruce.

I agree with the Master of the Rolls, that the compo-
sition deed has nothing to do with the case, and I think
(if it is an addition to say so) that it ought not to have
formed a part of the defence. My opinion also is, that
the introduction of that defence ought materially to affect
the costs of the suit.

Then, with regard to the validity of the payment, the
first question seems to me to be, whether the persons
entitled to the benefit of the equitable assignment, the
Plaintiffs, exhibited negligence or undue indifference
with respect to the action brought against Mr. Moore^
and I think it not established that they did.

Next comes the question whether the payment made
by Mr. Moore to the Plaintiffs in the action was made
bon& fide (I use that expression without intending the
slightest disrespect towards Mr. Moore), was made really
and substantially under the pressure of the action, and I

Jones

222 CASES IN CHANCERY.

1857. am obliged to say that upon the evidence I think that it
was not. It had some degree of reference to the action,
but it was mainly made upon the faith and footing of the
Parrell. jj^jj j ^f indemnity ; and on the whole it stands, in my
opinion, in the particular circumstances of this case,
upon no better footing than a payment merely voluntary.
The money must therefore, as I conceive, be paid over
again, and I do not see any sufficient reason for depriving
the Plaintiffs of the interest at 4Z. per cent, per annum,
which the decree has given. I am not clear, though
perhaps I ought to be, what the Lord Chancellor's view
with respect to the costs at law is, but, subject to what his
Lordship and the Lord Justice may say, my impression
is, that Mr. Moore should have the costs at law.

The Lord Justice Turner concurred, and the decree
was varied in the way mentioned by the Lord Chancellor,
Mr. Moore receiving 6L for his costs at law.

CASES IN CHANCERY. 223

1867.

In the Matter of THE ROYAL BANK OF AUS-
TRALIA, and In the Matter of THE JOINT-
STOCK COMPANIES' WINDING-UP ACTS,
184« and 1849.

MARIAN and MARY BOYD'S CASE.

Mai/ 22, 23s
rilHIS was an Appeal from the decision of Vice-Chan- Before The

"*" cellor Stuart, confirming the certificate of Master ^tices."^"'

Richards, whereby the Master allowed the claims of the A father who

Respondents Marian and Mary Boyd, as a debt against ^*^ ^?®° ^"^
'^ 'f ^ ' o pecuniary dif-

the above Banking Company, for the amount of five ficultiesand
several debentures mentioned in the claim, and for dehted^Ls"'
297/. 105., being the amount of the coupons attached son* effected a

, policy on his

thereto ; own life in the
names of the
son and ano-
ther person, as trustees for daughters of the father, and paid the premiums. The son
accepted the trust, and on the lather's death, some years aflerwards, he, with the sanc-
tion of his co-trustee, received the policy monies, and purchased with them debentures
of a banking company of which he was a director, and to which he was largely
indebted. The banking company was wound up under the Winding-up Acts, and
the son became bankrupt. The snmc person was appointed official manager of the
company and assignee under the son's bankruptcy. On the daughters' claiming to be
creditors of the company to the amount of the debentures — Hcldj

1. That, notwithstanding the state of the accounts between the father and son, the
trust for the daughters ought to be assumed, for the purposes of the application, to
liave been well created.

2. That the trust was not determined by the receipt of the money and the invest-
Ynent on the debentures.

3. That the right of the daughters to the debentures was not affected by the state
of the accounts between the bankrupt and the banking company.

4. That, there appearing no probability of this apparent state of things, on the
existing evidence, being altered by further investigation, the oflicial manager was not
entitled to have an issue or further inquiry directed.

22* CASES IN CHANCERY.

1857. thereto; and also interest at the rate of 5 per cent, per
o .r* annum.

BoTDs Cafe.

The Respondents were the sisters of Mr. Mark
Boyd, one of the directors of the Royal Bank of Aus'
tralia.

Their father, Mr. Edward Boyd, had been unfor-
tunate in trade in early life, but he had been successful
in establishing the United Kingdom Life Assurance
Office, and was in the year 1837 in the receipt of a
salary as its resident director. In that year Mr. Boyd
the father efiected an insurance on his own life with the
United Kingdom Office for 2,999/. 19^., in the names of
his two sons, Messrs. Benjamin Boyd and Mark Boyd^
** in trust for Miss Marian Boyd, Miss Mary Boyd and
Miss Joanna Stewart Boyd^^ and the policy was thus
expressed on the face of it.

Miss Joanna Stewart Boyd died in her father's life^
time, unmarried.

Mr. Boyd the father regularly paid the premiums on
this policy from his own resources until his death,
which took place in 1846. At this period the office
had claims upon the policy, which reduced the sum pay-
able upon it to 1,748/. 4«. 5d., and shortly aflerwards
Mr. Edward Lennox Boyd, his son, who bad become
the resident director of the office, drew a cheque for this
sum, dated the 31st of October, 1846, and handed it to
Mr. Mark Boyd, one of the trustees, who signed the
receipt for the amount in the name of himself and bis
brother Benjamin Boyd, his co*trustee.

Messrs.

CASES IN CHANCERY. 225

Boyds*Case.

Messrs. Benjamin Boyd and Mark Boyd had carried 1857.
on business for many years as stock and share-brokers^
under the firm of J5. and M. Boyd, and Mr. Mark
Boyd, on receiving this chequOi opened an account in
the books of his firm headed thus : — " Dr., Trustees
of Janet Boyd, and Marian and Mary Boyd, in ac-
count with B. and M, Boyd. Cr. ;'* and they carried
the cheque for I,748Z. 4:s. 6d. to the credit of this
account.

The introduction of the name of Mrs. Janet Boyd
(who was the widow of Mr. Edward Boyd) into the
heading of the account was a mistake^ Mrs. Janet Boyd
having no interest in the account.

Messrs. B. and M, Boyd were the stock-brokers
of the Royal Bank of Australia, and were employed
by the Bank in that character to dispose of the de-
bentures of the Bank to the public. They laid out
1,700/. of the money received from the Insurance
Office in the purchase of the four debentures in
question.

The Insurance Company's cheque was paid on the
Snd oi November, 1851. On the 6th of November the
trustees of Janet Marian and Mary Boyd were in
the above account debited with the 1,700/. for deben-
tures of the Royal Bank to that amount, due the 4th
of November, 1851. They were credited with the
coupons, which became due on the 4th of May and
4th of November, 1847, and the 4th of May, 1848,
which were the last coupons paid by the Bank.
There were also in one of the books of the Bank the
following entries : —

Vol. I. Q D.J. SOth

226 CASES IN CHANCERY.

1857. 30th November, 1846.

^^"^Y^ ^^^ B. 8c M, Boyd. Dr. to deposit note ac- £ s. (L

BoTDs Case. ~ ^ ' '^

*^ count for the following, handed to Mr.
M. Boyd, for Miss Boyd, on the 6th

inst 2,200 0 0

No. 371—373. 3 of 500/., due 4 Nov. 1851 1,500 0 0

374 300 0 0

375 200 0 0

Handed to Z. J. Clark, 10 Nov 2,000 0 0

No. 378, due 10th Nov. 1851 200 0 0

£2,200 0 0

The debentures were also placed in a separate cover,
indorsed " The Trustees of Mrs. Janet Boyd and the
Misses Boyd,^* and remained in that cover, in the pos-
session of Benjamin and Mark Boyd, until about six
months before the bankruptcy of ilfar A Boyd, when the
cover and its contents were handed to Mr. Edward
Lennox Boyd.

In 1848 the Bank stopped payment, and the winding-
up order was made. Mark Boyd (who had survived his
brother, and was greatly indebted to the Bank) became
bankrupt in 1855. Under his bankruptcy the Official
Manager under the winding-up order was appointed
assignee.

On the claim now in dispute being brought before the
Master, Mr. Edward Lennox Boyd deposed, that, in
the course of his duty as director of the Insurance
Company, he had paid the 1,748/. 4$. 5c/., and that the
policy having been efiected on the half-credit system^'
the half-credit premiums had been deducted. He fur-^

thee-

CASES IN CHANCERY. 227

BoTDs* Case.

tber deposed, that his father, Mr. Edward Boyd, paid 1857.
the premiums on this policy out of his own monies,
although the policy was in the names of the sons, Sen-
jandn and Mark Boyd.

Mr. Whitef a clerk to Benjamin and Mark Boyd, de-
posed to the purchase by Mark Boyd of the debentures
in question, and identified the above-mentioned cover in
which the debentures were placed at the time of the
purchase, which had never been changed, and on which
was the above-mentioned indorsement in the witness's
handwriting. The witness said that he had seen the
debentures received, and had separated them from a
number of 2,000, which were received at that time, and
that the parcel had been sealed and reopened more than
once to take the coupons out; that the Respondents
were credited with the coupons in the account with their
brothers, and that the witness used to cut the coupons
off himself and place them to their credit.

It appeared on the evidence that Mr. Edward Boyd
was considerably indebted to his son, Mark Boyd, and
remained so at the time of his death.

Mr. Malins, Mr. Rochfort Clarke and Mr. Roxburgh,
for the Official Manager, in support of the appeal.

In the first place, Mr. Edward Boyd, the bankrupt's
father, being in insolvent circumstances, could not make
a voluntary settlement of the policy which would be
good against his creditors, of whom Mark Boyd was
one. The trust, therefore, of the policy was void against
Mark Boyd, and is void against his assignee, who hap-
pens also to be the Official Manager. If the Official
Manager and the assignee had been different persons,
and the latter had given the former notice not to pay

Q 2 over

228 CASES IN CHANCERY.

BoYDs' Cabe.

1857. over to the persons claiming under the voluntary settle-
ment monies affected to be settled by it, on the ground
of the trust being void against creditors, and there ap-
peared a foundation for such notice, the Official Manager
could not have paid the monies over to parties claiming
under the settlement. As the Official Manager is also
assignee, he is equally bound by his duty to the creditors
of the bankrupt not to part with the monies. At all
events he is entitled to have the circumstances under
which the trust was declared investigated before a jury ;
J5x parte Gwyn {a), and there must be an action, or an
issue, if either party require it.

What has been already urged proceeds on the sup-
position that the debentures in question stand on the
same footing as the policy monies. This, however, is
not the case; for even assuming those monies to be
well traced into the debentures (which is another fact
in dispute, and which the creditors of the bankrupt and
the shareholders in the Bank are entitled to have inves-
tigated), still the investment was not sanctioned by or
known to the Respondents. They sanctioned only the
receipt of the money by Mark Boyd^ and on its receipt
by him there arose merely a debt from him to his sisters*
The advance to the Bank upon the debentures was made
by Mark Boyd alone, and was subject to the account
between him and the Company, upon which he was
indebted to the Company in a far greater amount than
that of the debentures. The mere indorsement on the
wrapper, which does not appear to have been ever com-
municated to the Respondents, was altogether insufficient
to create a trust in their favour.

They referred to Wilson v. Balfour (b), Adams v.

Claxtan,

(a) 1 Jur. N. S. 300. (fc) 2 Campb. 579.

CASES IN CHANCERY. 229

Claxton(a), Cumming s. Bailey {Jb)^ Re Counties Union 1857.
Assurance Company (c), Ashurst v. Official Manager ^ ,^
of Royal Bank of Australia {d)^ Re Norwich Yam
Company (e).

Mr. Bacon and Mr. Karslake, for the Respondents.

The Appellant is not here in the character of assignee.
Any claim which he may think fit to make in that capa-
city must be the subject of a separate proceeding. But
any such proceeding would be utterly futile^ as there is
no evidence of Mr. Edward Boyd's insolvency at the
time of effecting the policy or of the payment of the
premiums upon it. On the contrary, he appears to
have been then in the receipt of a good income as
director of the Insurance Company, and to have had
abundant means of paying the premiums. And, at all
events, no creditor complains of the proceeding, nor
indeed is any shown to exist, except the assignee of
Mark Boyd, whose right is no higher than that which
Mark Boyd himself would have had he not become
bankrupt. He, however, could not have impeached the
trust of the policy after having been and having acted
aa a trustee upon that trust. With regard to the claims
of the Bank, the debentures were purchased and were
expressed in the books of the Company to have been
purchased on behalf of the Respondents. Any right,
therefore, on the part of the Banking Company to set off
against them a demand against Mark Boyd, the trustee,
is quite out of the question. The trust money is clearly
traced into the debentures, which, therefore, became and
are subject to the trust.

Mr. Malins, in reply.

The

(a) 6 Fes, 226. (d) 4 W, R. 601.

(b) 6 Bing. 363. (f) 13 Beav. 4*26.

280 CASES IN CHANCERY.

1857.

Boyos'Case.

The Lord Justice Knight Bruce.

The first question is, whether upon the evidence, as it
stands, it is shown that the policy effected in 1837 upon
the life of the late Mr. Boyd, who died in 1846, was
well effected in trust for the ladies mentioned in it, of
whom two are the Respondents. Now the validity of
that trust could only be reasonably questioned upon the
ground of the insolvency of the father. But it is not
shown that he was insolvent. It may probably be taken
as true that he died largely indebted to Mr. Mark Boyd,
and that that debt remains unpaid. It is clear to me,
upon the evidence, that no other debt of the father (if
other debt there was) can for any purpose be taken into
consideration. But Mr. Mark Boyd was one of the per-
sons, in the names of whom, as trustees, the policy was
effected so long ago as the year 1837; and from that
time until the period of his bankruptcy, some years
afler the death of the father, he recognized the trust,
acted upon it, and treated it as valid. I cannot say that
we ought, for any present purpose, directly or indirectly,
to regard as possible the establishment of a claim by
Mr. Mark Boyd, or indeed by any other person, in the
character of a creditor of the late Mr. Boyd, against
this policy. The policy, therefore, must, for every pre-
sent purpose, I think, be regarded as held by Mr. JBen-
jamin Boyd and Mr. Mark Boyd, as trustees for their
sisters.

The money made payable by the policy, which was
kept up (so far as it was kept up) by the father, daring
his life, became due upon his death in the year 1846;
and, an account being then stated, having regard to the
amount remaining unpaid in respect of the premiums
on the one hand, and the amount insured on the other,
there appeared to be due from the office a sum exceed-
ing

CASES IN CHANCERY. 281

BoTDs* Case.

ing 1,700/. on account of the policy, which sum was 1857.
paid to one or both of the two trustees, namely, jBen-
jamin and Mark Boyd. It is quite clear that, if not
both of them, at least Mr. Mark Boyd must be con-
sidered, upon the evidence, as having been chargeable to
their sisters in the year 1846, as trustees or as a trustee
for them, with that sum : and there is not, in my
opinion, the least probability afforded by the materials
before us, that any evidence can be adduced which would
lead to a different result.

Finding, then, these trustees, or at least Mr. Mark
Boyd, in possession of this amount of trust money, the
question is, what they did with it. It is said, on the
part of the two ladies who survived, that, whether with
or without — probably without — their knowledge, it was
laid out, to the extent at least of 1,700/., in the purchase
of certain specified debentures of the Australian Bank,
with which Mr. Mark Boyd was closely connected.
Now is that made out upon the evidence ? There seems
no reason to doubt the genuineness of the books pro-
duced as books of 1846, or the accuracy of the entries
made in them in point of date ; I mean, as entries made
at the time ; and, judging from them and . from the
parol evidence, I think, as a judge of fact, the inference
unavoidable that a portion of the trust money, thus be-
longing to these ladies, was specifically paid to the Bank
o{ Australia as a specific portion of a larger sum paid to
that Bank for certain debentures, of which four (to the
total amount of 1,700Z.), namely, the four in question,
formed part; and that those four were intended by Mr.
Mark Boyd, at the time, to represent, and did represent,
an equal portion, namely, 1,700Z. of the trust money. I
consider that fact clearly established, and that Mr. Mark
Soyd, to whom the debentures were delivered, held them

232 CASES IN CHANCERY.

as a trustee for his sisters, whether they were aware of
the fact or not.

The question then arises whether, assuming this to be
the true result of the evidence, as it stands, there is any
reason to believe that this aspect of the matter could be
varied by the introduction of additional evidence, either
in the shape of oral examination in chief, or oral cross-
examination or otherwise. Without entering into any
question of delay or of hardship, I am of opinion that
no reasonable ground is shown for believing or thinking
it probable that any additional evidence can vary the
present conclusion from the existing evidence.

If this is so, these debentures were held by Mr. Mark
Boyd as trustee for his sisters. He paid them from time
to time interest (whether regularly or irregularly, whether
known to them as interest in respect of these debentures
or not is immaterial ; but undoubtedly he from time to
time paid to them interest) as in respect of their 1,7002.
of which he was the trustee.

This continued for some few years, and then (but
before the bankruptcy of Mr. Mark Boyd) Mr. Edward
Lennox Boyd received these very debentures from Mr.
Mark Boyd, or his clerk, or from the repositories of Mr.
Mark Boyd (it is of no importance which), and delivered
them to the ladies. Any question, therefore, of order and
disposition or reputed ownership (if any such question
could arise where there is a trust) is altogether oat of
the case, because he had ceased to be in the possession
of these documents before the bankruptcy, and upon
these documents the claim has been made.

The creditors of Mr. Mark Boyd, therefore, are out of

the

CASES IN CHANCERY. 283

BoTos' Case.

the case. The creditors of the father are out of the 1857.
case. In the circumstances that I have stated the only
question would be whether Mr. Mark Boyd being
largely indebted to the Bank of Australia (whose de-
bentures, that is to say, whose promissory notes these
are), the Bank or those who represent its interests, are
entitled to say that, as Mr. Mark Boyd could make no
claim upon them in respect of debentures, so neither
can these ladies. That might probably be said with
truth if the title had originated at a later period. But
the title originated, as I have said, in the year 1846.
The Bank appears to have been paid with the money of
these ladies to the extent of 1,700/. For the debentures
were sold by the Bank (as I must take it upon the evi-
dence), in the ordinary course of business, to the trustee
of these ladies. The accounts, therefore, between Mark
Boyd and the Bank, and the conduct of Mark Boyd to
the Bank and its shareholders, appear to me to have
nothing to jdo with the matter. And here, again, I do
not see the least reason for believing that any additional
evidence could shake the title of the ladies, thus consti-
tuted by what took place so long ago as the year 1846.

It appears to me, therefore, there is no case for further
inquiry. There might have been, I agree, if the matter
had rested merely upon the appropriation (if that term
may be used) made or supposed to have been made by
Mr. Mark Boyd of these debentures in his own repo-
sitories, by placing them in a particular wrapper marked
with particular names. That would, indeed, have been
a very different state of things. Those facts, however,
are merely incidental and perhaps immaterial. The
material part of the case is, that which took place in and
before the year 1846, and upon that I see no room for
doubt.

I agree,

284 CASES IN CHANCERY.

BoTDs' Case.

1857. I agree, therefore, in the conclusion at which the

Master and the Vice-Chancellor have arrived, and think
that this application should be refused with costs.

I have, however, no objection to add words that shall
reserve to the Official Manager, the creditors' assignee
in the bankruptcy, such right (if any) as he may have to
institute any suit against these ladies, but I do not think
it a case for reserving the fund.

The Lord Justice Turner.

I am also of opinion, that the Order of the Vice-
Chancellor is right, and that this appeal must be dis-
missed with costs.

It seems to me there are three questions in the case;
first, was there a trust well created ? secondly, supposing
that there was a trust well created, was that .trust in any
manner put an end to ? and thirdly, assuming the trust
not to have been put an end to, is it now open to im-
peachment ?

Upon the first point, whether there was or was not
originally a trust, I think it impossible, consistently with
the rules of the Court to entertain any serious doubt
What are the facts? It is plain, that by the policy of in-
surance, a sum was assured in the names of Senfomin
and Mark Soyd, in trust for these ladies ; and, that the
sum payable on the insurance was received by Beyamin
and Mark Soi/d, or by Mark Boyd in his character of
trustee ; for it is expressly acknowledged to have been
so. Being received by him in his character of trustee, it
is distinctly traced into the investment of 1,700/. of these
bonds. The consequences arc, that there must be a

trust

CASES IN CHANCERY. 235

trust affixed upon the bonds, and that Mr. Mark Boyd 1857.
held those bonds in trust for his sisters. v-^v-^/

BoTDs' Case.

Then, has the trust been put an end to ? One argu-
ment has been, that the trust in truth attached only upon
the policy and not upon the monies which were received
in respect of the policy. But the answer to that argu-
ment is, that Mr. Mark Boyd received the money in his
character of trustee, and during the period whilst he held
the money as trustee, and before the monies were paid
over by him, this investment was made. Then, it is said,
that there was a transaction in the nature of a loan between
Mr. Mark Boyd and these ladies, the trust having been
put an end to, and a different relation being created
between the parties, that of debtor and creditor, instead
of that of trustee and cestui que trust. In order, however
to arrive at that conclusion, it must first be shown that
the trust was determined, and that the relation of trus-
tee and cestui que trust was put an end to. And upon
what ground is it to be presumed, that there was a deter-
mination of the relation when it is found that during the
whole period of the existence of this claim, these bonds
were remaining deposited in an envelope indorsed with
the names of these ladies ?

Either the ladies knew, or they did not know of the
existence of this trust. If they knew of it, the circum-
stance of the bonds being deposited in the mode in which
they were deposited, was a sufficient security to them, or
might have been thought by them to be a sufficient se-
curity for a continuation of the trust affixed upon those
bonds. If they did not know of the trust, how could
they be held to have released or discharged it ? I think,
therefore, that in any view of this case it is impossible to
say, that the trust affixed upon these bonds was deter-
mined

286 CASES IN CHANCERY.

BoTDs' Case.

1857. mined, and a new relation created between the parties.
There was no intention on the part of these ladies to
create any new relation.

Then we come to the third point, that this trust was
open to impeachment, and that it might be impeached by
the creditors of the father, Edward JBoyd, by whom the
policy was effected. In the first place, I think, we have
nothing whatever to do with that case* We are here
upon a question between the creditors of the bankruptcy
and the Official Manager, as representing the contribu-
tories, and the mere circumstance that the Official
Manager happens to fill the character of assignee under
the bankruptcy oiMark Boyd does not, as I think, render
it incumbent on us to consider his claims in the latter
character, as a creditor of the bankrupt's father. But if
we were called on to consider that question, it appears
to me tolerably plain, that there is now no creditor of
Edward Boyd, except Mark Boyd; and I think it as
plain, that it would have been impossible for Mark Boyd
(after the course of dealing which has been pursued by
him from the year 1846 down to the year 1854, when he
became bankrupt) to say, that he ceased to be trustee
of these funds, and that his sisters had no title to these
bonds. It seems to me, therefore, that there is no ground
upon which the assignee could impeach this transaction
by virtue of being a creditor of Edward Boyd.

Not seeing any ground on which the assignee can
disturb the transaction as a creditor of Edward Boyd,
and being clearly of opinion that the trust was originally
well created, and, as clearly of opinion, that the trust
has not been determined, I do not think that it would
be just or right to delay these Respondents in the receipt
of that money to which they are in equity entitled by
virtue of that trust.

CASES IN CHANCERY. 2S7

BoTDs' Case.

It SO happens, however, that the Appellant fills the 1857.
character, both of assignee under the bankruptcy and
of Official Manager, and the order, as it stands and
without qualification, might possibly be held to prejudice
any claim, which he might make in his character of
assignee. Therefore, I think, the proper order will
be to dismiss this appeal with costs; but to add to
the order that it is not to prejudice any proceedings
which the Appellant may be advised to institute in his
character of assignee under the bankruptcy of Mark
Boyd. I think the Appellant must pay the costs of this
motion.

238

CASES IN CHANCERY.

1867.

Jan. 17, 19,
21, 22.

April 30.

May 1, 28.

Before The
Lords Jus-
tices.

An elderly
lady married
a barrister who
had for some

CORLEY V. LORD STAFFORD.
CAMPBELL V. CORLEY.

npHE object of the first of these suits was to establish
the claim of Mr. Corley, as the surviving husband

of a lady^ who up to her death was known as Mrs. Can-

stantia Campbell, to a life interest in a fund of 12,5002.

Bank £3 per cent. Annuities, held under the will of
confidential ^^^ father, Francis Gostling, The second suit was in-
fnend and ad- stituted by Mrs. CampbeWs only son, to establish bis

the marriage ^^^^ ^ ^®^ personal estate, as against Mr. Corley.
a lengthened
correspond-
ence took Mr. Gostling, by his will, left the above-mentioned

place between - , o i . i i •^

them, in which 'und to trustees, upon trust for his daughter Constantta

thVh*"^^ (then a spinster) for her life, and after her death upon
sonal estate trust for any husband of hers who might survive her
settled so as to f"^*" ^^s life, and after the determination of those inte-
be •' hers as if rests upon trust for her children. Miss Gostling, who
and hers "to was born in 1770, intermarried in 1810 with Captain

give, to use Campbell, who died in 1819. The only child of this
and to will. . »-n •^'^tui t%i • •/*•

He assented to marnage was Alexander Francis Campbell, the Plaintiff

this, and un- j^^ ^j^^ second suit. Mrs. Campbell remained a widow

dertook to pre- *^

till 20th June, 1850, on which day, being about eighty
years of age, she was married to Mr. Corley, who was
born about 1796, was a member of the Irish bar, and
had also been called to the English bar in the year
1837, but for many years had not practised at either.

pare the set-
tlement. By
the marriage
he acquired,
under her
father's will,
a life interest,
expectant on
her decease,
in a con-
siderable sum of stock: — Heldf that having undertaken to prepare the settlement, he
was bound to prepare such a one as under the circumstances a conveyancer would have
drawn or the Court would have sanctioned — that such a settlement would have given
him no interest in her absolute property in default of appointment by her, and that,
she having died without makin? any disposition in his favour, he was a trustee of her
personal estate for her next of km.

CASES IN CHANCERY.

239

He had for a long time been intimate with Mrs. Camp*
bell, who was in the habit of consulting him as a friend
aboat her affairs^ particularly with reference to her son^
whose conduct caused her great uneasiness. The mar-
riage took place before the registrar with such extreme
privacy, that there was some difficulty in proving the
fact of its having been had, and there appeared to be
reason to dispute whether the formalities of the Marriage
Act had been duly complied with. The parties never
lived together after the marriage, nor did they appear
to have become more intimate than before. Up to
Mrs. CampbelTs death, which took place in Januart/,
1861, the fact of this marriage was unknown to her son
and to the friends of the family. She lived as an un-
married woman, was known by the name of Campbell,
by which Mr. Corley himself always addressed her, and
her banking account was kept in that name.

1867.

Campbell

V,
COELKT.

Soon after the death of Mrs. Campbell, Mr, Corley
applied for letters of administration to her estate. The
grant of such letters was opposed by Mr. A. F. Camp-
bell, who disputed the fact of the marriage ; and Mr.
Corley thereupon promoted a suit in the Prerogative
Court to obtain the grant. He also instituted the first
of these suits against Lord Stafford, the surviving
trustee of Mr. Gostling's will, to obtain payment of the
income of the funds bequeathed in trust for Mrs.
Campbell, Mr. Campbell was afterwards made a party
to the suit by amendment. It is unnecessary to enter
in detail into the history of this cause, which first came
before the Lords Justices on an appeal from an Order
of Vice-Chancellor Kindersley, directing an issue to try
the validity of the marriage.

On the 23rd of February, 1856, the Prerogative
Court decided in favour of the marriage, and decreed a

grant

240

CASES IN CHANCERY.

1857.

CORLET

Lord

Stafford.

Campbell

V.
CORLEY.

grant of letters of administration to Mr. Carlo/. Mr.
Campbell appealed against this decree.

Pending these proceedings, Mr. Campbell, in April,
1856, filed his bill ag-ainst Mr. Corley, still disputing
the marriage, but also alleging that, supposing it to be
valid, an agreement had previously been made between
Mrs. Campbell and Mr. Corley that all the property to
which she was absolutely entitled should be settled so
as to exclude Mr. Corley from any interest in it, and
that the life interest which Mr. Corley would take under
Mr. Gostling's will should be held by him in trust for
Mr. Campbell.

On 27th June, 1856, the Judicial Committee of the
Privy Council delivered a judgment supporting the de-
cision of the Prerogative Court. The solemnization of
a valid marriage being established, the whole of the
case, except as regarded costs, resolved itself into the
question as to whether there was any agreement for a
settlement having such an effect as Mr. Campbell
alleged. The point as to there having been any agree-
ment affecting Mr. Corley's life interest in the funds
held by the trustees of Mr. Gostling^s will was aban-
doned at the bar by Mr. CampbelVs Counsel, and the
only questions argued were whether there was an agree-
ment to settle all the property to which Mrs. Campbell
was absolutely entitled, and if so on what terms.

Mr. Corley did not dispute that there had been an
agreement for a settlement; but he alleged that the
only settlement agreed upon was such as was referred
to in the following document : —

'' Memorial of an agreement entered into this 20th
day of June, 1850. Whereas I, John Corley, hereby
agree to become a consenting party to such deed or

document

CASES IN CHANCERY.

241

document to be duly signed, sealed, and attested by cre-
dible witnesses, as may be mutually agreed on, by which
Mrs. Constantia Campbell will be fully authorized and
empowered, notwithstanding her coverture, to make
such disposition as may be agreed and directed therein
of such dividends or funds, amounting to the sum of
2,0001., out of whatever funds or dividends she shall be
entitled to, possessed of, or have legally acquired, at the
time of her decease. And it is further agreed by me,
that in case the said Constantia Campbell should survive
me, all such funds or dividends, or any contingencies
therein, as she may be entitled to at my decease, shall
devolve to her and become her sole and separate pro-
perty, to dispose of as she the said Mrs. Campbell may
think fit, and to this agreement I have hereby affixed
my seal and signature the day and year above written.

John Corley.

" Witness James StentifardJ*

This instrument, which was prepared by Mr. Corley,

was found among Mrs. CampbelFs papers; but in the

opinion of the Court it was not established that she ever

saw it before the marriage, nor was it proved at what

time it came into her possession, though she certainly had

it for some time previous to her death, and put it along

with other documents into the hands of a Mr. Poulden

for safe custody. It was not even alleged that any

other person approved it on her behalf before the

marriage.

Mrs. Campbell f on the same 20th June^ 1850, signed

a document, which it does not appear necessary to set

out at length. The substance of it was that she agreed

to facilitate, as far as lay in her power, the appointment

of Mr. Corley to be a trustee of Mr. Gostling's will.

The case of Mr. Campbell was grounded entirely on
Vol. I. R D.J. the

1857.

Campbell

V,
CoRLKT.

242

CASES IN CHANCERY.

1857.

the correspondence which took place between Mrs.
Campbell and Mr. Cor ley before the marriage^ and on the
fiduciary relation between the parties ; the only other
evidence being Mr. Cor/6^'5 evidence in his own favour.
The treaty of marriage commenced many months before
the marriage took place, and the correspondence between
the parties was most voluminous. Many letters were
missing, some having been destroyed by Mr. Carley,
and those which remained were often rendered obscure
by references to what was either contained in the lost
letters or had been the subject of verbal communications ;
in addition to which the letters of Mr. Carley appeared
to be expressed with studied vagueness. The following
extracts will sufficiently show the materials on which
the Court proceeded in deciding the only point which
appears to call for a report, viz. — the nature of the settle-
ment to be made, the question how much was to be
settled being merely a disputed matter of fact. Nothing
was found in Mr. drrUys letters to throw any light on
the nature of the limitations to be contained in the
settlement ; but the Court collected from them that he
had assented to the terms insisted upon in Mrs. Comp-
helVs letters.

On 7th August, 1849, Mrs. Campbell wrote to Mr.
Corley a letter containing the following passage : — ** I
will enclose you the desired request, and in so doing
beg to recall to your recollection the purport of my
letter and wishes, — that what little property I now have
is to be mine as if not married, and I must trust to your
drawing up, or some one for you, the proper legal doew-
ment that will legalize this act/* In another letter she
said that her property was to be '^ truly and bon& fide
mine after marriage, to be my own to give, to use and
to will."

CASES IN CHANCERY.

243

On 31st Angus tf 1849, Mrs. Campbell wrote to Mr.
Ccrley a letter containing these passages : — '' Would it
not be desirable that I should see the rough draft of
the settlement sent here to one confidential person on
my part. This^ if satisfactory, could be returned to
you, and be ready against my being in town, and save
me much annoyance. . . . The draft once settled
there is little to be done."

1867.

On the 3rd September y 1849, Mr. Corley broke off
the treaty, alleging that not only his life interest under
the will of Mr. Gostling, but his own property, might
be endangered by future litigation, and that there would
be no fund of Mrs. CampbelVs to fall back upon. The
treaty was renewed, and so far as appeared, at Mrs.
CampbelFs instance, at or shortly before the beginning
o( November J 1849; and on the 30th of that month it
was again broken off by Mr. Corley ^ but shortly after-
wards again resumed.

On 15th December f 1849, Mrs. Campbell wrote to
Mr. Corley a letter, which was in part as follows : — " I
cannot enter to-day into the subject further than to say,
that I am unchanged and sincerely wish it over, but
that you would secure to me my just independence to
will my little all, and that you would feel assured that
you would be the first person thought of by me. I will
attend your summons immediately on your return from
Staffordshire, and accede to any arrangement you may
wish to make, founded, I am sure, in prudence and
caution on your part, and do not, I beseech you, trifle
with your or my happiness, and your interest, and do
not presume on useless and injurious firmness, but con^
▼ince me of your regard to my future happiness and
satisfaction of my general conduct in these matters."

R2 On

244

CASES IN CHANCERY.

1867.

CORLEY
V.

Lord
Stafford.

Campbell

V,
CORLET.

On 24th December, 1849, she wrote to Mr, Corley a
letter, of which the material part was as follows : — " I
have to earnestly request you would attend to my wishes
in regard to pecuniary matters— your own and my re-
spectability requires it, and is the only circumstance
which gives me dissatisfaction. A settlement of my
little all will soon remedy one only drawback on, I
trust, my future happiness and ought not to be refused
me. In all else I will readily meet all your wishes, and
I here assure you you shall have the first attention and
perfect satisfaction in a will that shall, after our union,
be made with your advice and under your suggestions,
and you have every reason to believe in my truth and
sincerity, and I shall feel relieved from a feeling of
humiliation to which I have through life been a stranger,
and always happy in the increase of income and the
independence I enjoyed from the circumstance. I could
wish to come to London with this matter arranged, and
once yielded by you could soon be settled, and I should
trust to your honor and good faith for its being properly
settled before marriage^ and I will then come to London
as soon as you wish me to do so.*' ...•'' My
peace, my happiness, my respectability, my health, and
may say my life, I can in truth say are in your keeping,
and I recommend myself to your regard, generosity and
honor."

On 29th December, 1849, Mrs. Campbell wrote to
Mr. Corley a letter, in which she expressed herself
thus : — '^ I am a little hurried this morning in the fear
of displeasing you by the delay, and the one thing
which lays heavily on my mind, namely, that I may be
made happy in having settled on me that which I have
so often mentioned to you, and not return a pauper
from the altar without a pound to will." Then she
said : — '' The money in the funds, and the running

account

CASES IN CHANCERY.

246

account at my bankers, with my personals, constitute all
my riches, in which you would of course participate. I
ask nothing from you but the retaining what is so justly
my own lo use and to will. What will be my lot with-
out a shilling that I can call my own ? My trustees
must- know the arrangement sooner or later. My
bankers will not pay the cheques, nor could I ofier them
under a false name when having yours, and why should
you or I make ourselves uncomfortable, incur a want
of respectability, and all for want of this proper settle-
ment.**

1867.

CORLET
V.

Lord
Stafford.

Camfbell

V,
CoRLET.

On 31st December, 1849, Mr. Corley wrote to Mrs.
Campbell a letter containing the following passage:^—
'^ I have already told you, and I am not in the habit
of retracting, that you shall have a proper and effectual
agreement to the effect already stated. With your
trustees, your bankers, your accounts, or your domestic
concerns, I neither desire, nor seek, nor wish any inter-
ference, but, on the contrary, shall avoid all such
troubles, all shall and must be under your control and
under your own management.'*

On 12th JunCy 1850, very shortly before the marriage,
Mr. Corley wrote as follows : — " The affair" (that is the
marriage) *• has been very unwillingly postponed until
Monday ^t Hi o'clock. It has been remarked upon as
very strange unusual and absurd to have so many
changes ; there exists now no difficulty, and it can be
fully completed in the way and at any of the places I
have already mentioned to you, to the utmost ease
of your mind and wishes, and which I have already
stated are entirely reciprocated by me. The document
shall be properly drawn out and witnessed, and all done
to your complete safety and satisfaction, but you are too
fuU of unjust and groundless suspicions, and I have so

many

246

CASES IN CHANCERY.

1867.

many fears about its present publicity that I shall with-
draw from it altogether if not terminated at once, and
your decision one way or the other I request to have
before Friday T

On the following day Mrs. Campbell replied as fol-
lows : — '^ I have just received your note, and could have
wished you had fixed Wednesday at eleven, when I will
be (please God) ready, as to how you arrange to-morrow
{Friday) when I hope to see you at dinner as usual and
all is settled, if you insist on Monday I must yield, bat
it will be inconvenient to me, and after this explanation
I leave myself in your hands as to the two days, and
relying on you for the document^ ^c, and as to its for~
mality and legality, — Believe me, my dear Sir, yours
obliged," &c.

Mr. Corley replied as follows : — *' I am this moment
returned, and found your note unpaid. I cannot do
myself the pleasure of dining with you to-morrow.
With some difficulty I have had the promise only of
having the affair put off until the day you desired—
Wednesday. The decision will not be made as to the
postponement until Monday. I shall on that evening
write to you. On Tuesday I shall have the pleasure
of dining with you at the usual hour. The document I
shall have also prepared.

Mr. Wigram and Mr. Greene, for the Plaintiff.

It is not disputed that there was some agreement for
a settlement. The only questions are, what it was to
include, and what was to be its nature. There is no-
thing to show that Mrs. Campbell understood it to be
limited to 2,000/. Her language in all her letters im-
ports a settlement of everything, and it is the just
construction of the whole correspondence that CcrUy

acceded

CASES IN CHANCERY.

247

acceded to this. — [The Lord Justice Knight Brucb
referred to Mrs. CampbeWs keeping the document of
^Ist June in her pofisession.] — ^There is nothing to show
that she ever read or understood that document She
-vftxA very old^ and placed unbounded confidence in Mr.
Corley^ and as he was her professional adviser in the
matter, the burden of proof rests on him. It is the
duty of a professional adviser to give the clearest infor-
mation to his client of the effect of ^hat the client does,
and he cannot derive an advantage to himself from not
giving it; Montesquieu v. 8andys{a), Gibson v. Jet/es(b),
Segrave v. Kirwan (c), Hindson v. Weatherill {d), Sulk-
ley V. W%lford{e)j Story^s Equity Jurisprudence (f).
Taylor v. Beech (g), Allen v. M*Pherson{h), Bayly
V. Wilkins{ji)j Todd v. Wilson {k). On the principles
established in these cases Mr. Corley is a trustee of
what he takes as administrator. There is no mention
of 2,000/. as the limit anywhere but in the document
prepared by Corley^ and his own evidence in support of
it is unworthy of credit. He has destroyed many letters
which passed between him and Mrs. Campbell, and
everything is to be presumed against him (/).

1867.

Campbell

V.
CORLET.

Then as to the nature of the settlement, it must be
gathered from Mrs. CampbeWs own expressions. She
says, it is to be hers '' as if unmarried ;" hers ^' to use
and to will.*' A conveyancer would carry out such
instructions by a settlement by which the husband
would take nothing in the absence of a subsequent dis-
position by the wife, as he settled nothing, and took a

considerable

(a) 18 Fff. 302.

(6) 6 Vet, 266.

Id) 5 Be 6., M. if 6. 301.

(0 2 CL Sf Fin. 102.

if) Sect. 768.

(g) 1 Vet. ten, 298.

(A) \FhiU. 133; 1 H. L. Cat.
191.

(i) 3 Jo, 4" Lat, 630.

(k) 9 Beav. 486.

(0 1 PhilL Ev, 9th ed., 448,
and cases there referred to.

248

CASES IN CHANCERY.

1857.

considerable life interest by the marriage. In fact, the
words ** as if unmarried/' apart from the circumstances
of the case^ import a total exclusion of the husband; Tyr-
rell V. Hope{a), Darley v. Darlej/{b), Lee v. Prieaux(c),
lie Norman's Trusted), Hartley v. Hurle{e), Pritchard
y, Ames (/), and Dixon v. Olmius (g).

Mr. Daniel and Mr. Southgate, for Mr. Corley.

Mrs. Campbell and Mr. Corley were throughout deal-
ing at arms' length ; it was a mere matter of business.
Her letters show that she understood her position. She
knew that if she married without a settlement her hus-
band would take her savings by his marital right, which
wholly distinguishes the case from such cases as iSe-
grave v. Kirwan. Mr. Corley had a perfect right to
say he would not marry the lady except on certain
terms. She insisted on a settlement of all her savings;
he resisted, and broke off the match more than once on
this ground, there being some claim against the life
interest under Mr. Gosiling's will, which he considered
to render it insecure. The fact that he broke off the
match rather than assent to a settlement of the whole is
indisputable, and there is nothing to show that he ever
afterwards assented to such a settlement. The treaty,
it must be observed, was not renewed by him, and the
result of this is to confirm his own positive testimony
that the document of the 20th of June, 1850, comprised
the whole of the agreement between the parties. As to
this part of the case, there was no fiduciary relation
between the parties. They were negotiating at arms'
length, though as to the mode of carrying out what was
ultimately agreed upon a fiduciary relation may be con-
sidered to have existed.

(a) 2 Atk. 558.

{b) 3 Aik. 399.

(c; 3 Bro. C. C. 382.

{d)3 De G., If. ^ G. 965.

(/) Tum.^ Run. 222.

(g) 2 Cox, 414.

CASES IN CHANCERY.

249

As to the form of the settlement, Carter v. Tag^
gart (a), reversing the decision of Vice-Chancel lor jPar-
ker{b)y shows that prima facie the husband's marital
right is to be excluded only in favour of the wife and
her appointees, not in favour of her next of kin, — \^The
Lord Justice Knight Bruce. — That case did not
depend on contract.] — In the present case there is
nothing to show that Mrs. Campbell contemplated the
property going to her son in default of any positive act
by her. Her object was to have it to deal with as she
pleased by act inter vivos or by will^ as her letters
show. But she says nothing importing the exclusion of
her husband, if she made no gift. Proudley v. Fielder{c)
approaches very closely to the present case, and is almost
decisive in our favour on this point.

Mr. Wigram^ in reply.

1867.

The Lord Justice Knight Bruce, after giving an
outline of the facts of the case, and stating his reasons
for holding that neither Mr. Campbell nor Mr. Corley
ought either to pay or receive costs in the suit of Corley
V. Lord Stafford, proceeded as follows : —

May 28.

With regard to the cause of Campbell v. Corley, of
that, so far as it relates to the life interest in the 12,500/.,
the observations that I have already made dispose, ex-
cept as to costs. But it has another subject, — the per-
sonal estate that, at the time of the marriage in ques-
tion, namely, on the 20th of June, 1850, belonged to
Mrs. Campbell — property which, in value it is said
between 6,000/. and 9,000/., is sought to be retained by

Mr.

(a) 1 De C, M. i G. 286. (6) 5 De G. 4* Sm. 49.

250

CASES IN CHANCERY.

1857.

Mr. Carley as her husband and administrator, but
claimed as against him by her son as her sole next of
kin^ upon the hypothesis of the validity of the marriagei
a fact now as I have said established against Mr. Alex-
ander Francis Campbell ; and, as to this claim, I am of
opinion that a case within the allegations of the bill is
proved by the evidence, a case I mean entitling Mr. A. F.
Campbell to his mother's personal estate at the time of
the last marriage not afterwards expended by her, but
subject to her debts, if any, and perhaps to her funeral
expenses, which latter at least he has, I believe, paid.

The credible evidence before us, oral and written,
direct and circumstantial, taken together, appears to me
to prove and establish facts which may, with substantial
accuracy, be thus represented : — that Mrs. Campbell,
before she married Mr. Corley^ but when and after she
had formed the design of marrying him, and when and
after he was aware of that design on her part, nor dis-
pleased by it, wished not and intended not to marry
him without a settlement ; — that Mr. Corley before the
marriage was so informed by her, and so knew ;-*that
the settlement thus desired and required by her was
one which should prevent the intended marriage, if it
should take place, from having any effect on her per-
sonal property, the personal property, namely, that
might immediately before the marriage be belonging to
her, was a settlement which should leave the property,
in every sense and for every purpose after the marriage,
as free from any consequence of the marriage as if there
had been no marriage ; — that before the marriage Mr.
Corley was aware of this, and after some difficulties and
delay professed to her his assent, and was believed by
her to assent to it ; — that having entire confidence in
him, she, before the marriage, requested, employed and
trusted him to prepare and make a proper settlement

for

CASES IN CHANCERY.

261

for the porpoee, accordiDg to her wishes; — that also
before the marriage he accepted the employment, and
undertook and promised to do so ; — that moreover be*
fore the marriage he represented himself to her as having,
and was believed by her to have done so ; — and that in
this belief, relying on his skill good faith and honesty,
she married him ; married him, I say, in the persuasion,
induced by her confidence in him and his assuittnces,
that such a settlement as I have mentioned had been
effectually made. The evidence that, in my judgment,
proves substantially these facts, appears to me, I repeat,
admissible under the allegations of the bill, the prayer
of which I also think adapted to obtain the proper relief
for the Plaintiff Mr. Campbell to which these facts lead,
or which justice and equity point out as their con-
sequence. That relief, that consequence, must of
course be, if I have viewed the bill and the evidence
rightly, to place the Plaintiff Mr. Campbell, the sole
next of kin of his mother, in the same position as
between him and her surviving husband and adminis-
trator as if a proper settlement, according to her inten-
tions and his promise and assurance, had been executed
by her and Mr. Corley before the marriage. Neither
by the law of England, nor, as I suppose, under any
system of rational jurisprudence, is an agent allowed,
as between himself and his principal, to gain an advan-
tage by deceiving and betraying the principal in the
matter of the agency, or by the agent's mistake or un-
skilfulness.

1857.

The facts, however, here are controverted, and it is
denied on the part of Mr. Corley that they were, as I
have stated myself to believe them proved to have
been, and for this purpose he relies much upon the
evidence on oath that he has given on his own behalf,
evidence admissible certainly and admitted^ but not ne-
cessarily

262

CASES IN CHANCERY.

1857.

Campbell

V.
CORLET.

cessarily to be trusted or followed^ especially when it is
at variance^ as plainly it appears to me to be^ with the
produced correspondence between him and Mrs. Camp-
belL I acknowledge my opinion to be that Mr. Corley
is not a trustworthy witness. If, independently of his
letters to Mrs. Iteade, formerly the attendant of Mrs.
Campbell, he could have been considered a witness to
be adhered to, those letters would render it in my judg-
ment impossible to place confidence in what he has said,
at least in his own favour.

It has been contended for Mr. Corley that the treaty
or agreement of marriage between him and Mrs. Camp'
bell, into which they had entered before September 1849,
was in that month broken off and abandoned, that
everything, therefore, that had previously passed on the
subject was annulled, and that neither when the treaty
was renewed nor afterwards was there any agreement
for a settlement or any revival of a contract of that kind,
except the document of 20th June, 1850, signed by him,
a document by the way in sealing which he used a seal
belonging to her. I am, however, upon the evidence,
of opinion that her intentions and wishes as to a settle-
ment, expressed by her before September, 1849, con-
tinued to be, and were known by him to be, her inten-
tions and wishes throughout that month and continually
afterwards, until and at the time of the marriage ; and
that he, as her intended husband, and at the same time
as her confidential adviser and agent, undertook to give
efiect to them in a sufiicient and proper manner.

I was struck with the circumstance of Mrs. CampbelTs
possession, at least her possession after the marriage, of
the paper of 20th June, 1850, signed by Mr. Corley,
which after the marriage she placed in Mr. Poulden^s
hands, — a paper containing the words 'Hwo thousand"

plainly

CASES IN CHANCERY.

263

plainly written. But considering the state of the whole
evidence, considering her sex and age, considering Mr.
Corleys age and profession, and the confidence that she
reposed in him, I am of opinion that the paper, and her
possession and deposit of it, as proved, are not sufficient
to create an inference in Mr. Corleys favour. There
must, I conceive, be a Decree against him, with costs,
in the second Cause, for the purpose and to the extent
of giving effect to such a settlement as I have men-
tioned. He may be allowed lOZ. in respect of the in-
crease of costs occasioned by the demand made of the
life interest under the will, but, subject to that deduc-
tioD, ought, I think, to pay the whole costs of the suit.

1867.

The Lord Justice Turner.

In the first of these suits, that of Corley v. Lord
Stafford, there is no question except as to the costs. It
is beyond all doubt that there was a marriage between
Corky, the Plaintifi*in this suit, and Mrs. Campbell, the
mother of A. F. Campbell, the principal Defendant in
the suit, and the Plaintiff* Corky is therefore entitled
during his life to the income of the funds by the will of
Francis Gostling bequeathed upon trusts for Mrs. Camp-
bell and her husband and children. In the second suit,
that of Campbell v. Corky, one of the objects of the bill is
to fix a trust for the benefit ofA.F. Campbell, the Plain-
tiffin the suit, upon the life interest of Corley, the Defend-
ant in the suit, in the above-mentioned funds, but this
part of the relief sought by the bill was very properly
abandoned at the hearing. Upon the evidence before us
the Plaintiff Campfre/Z certainly could not have succeeded
upon this part of his case. The rest of the case made
by this bill is in effect that it may be declared that the
Plaintiff, A. F. Campbell, who was the only child of the
late Mrs. Campbell, and therefore her sole next of kin,

254

CASES IN CHANCERY.

1867.

18 entitled to all her personal estate and effects, and
that the same may be transferred^ assigned and delivered
to him accordingly. The Defendant Corley has, it
appears^ after a protracted litigation in the Ecclesiastical
Court, established his title to administer to the estate
of the late Mrs. Campbell as her surviving busbandi
and has obtained letters of administration of her estate
accordingly. He is therefore primli facie entitled to all
her personal estate, but the case made by this bill is^
that before the marriage of Mrs. Campbell with the
Defendant Corley it was agreed between them that all
her personal estate should be put into settlement, and
the bill insists that it ought to have been so settled as
that, in default of appointment by her, her next of kin
should become entitled to it at her decase. It is upon
this foundation that the bill asks for the relief which I
have mentioned above.

The Defendant Corley has not denied that there was
an agreement for a settlement, nor has he denied that
he, being a barrister, undertook to prepare, nor has he
denied that he did prepare, what in this case is called
the marriage settlement, but he says that the settlement
which was agreed upon was such as is contained in the
following paper writing — [His Lordship here read the
document of 20th June, 1860, which is set out above] —
and he says that he left this paper writing in the hands
of Mrs. Campbell two days before the marriage, that
she returned it to him approved on the day before the
marriage, and that he executed it on the morning of
the marriage. It was found amongst Mrs. Campbelts
papers, having been deposited by her, together with a
sum of 600Z. in bank post bills which she had drawn
from her bankers, in the hands of Mr. Poulden, her
landlord.

The

CASES IN CHANCERY.

256

The questions, therefore, to be considered in this suit
of Campbell v. Carlet/, seem to me to be, firstly, whether
the statement thus made by the defendant Corley as to
the agreement which was come to before the marriage is
true, or whether, as the bill alleges, there was an agree-
ment before the marriage for the settlement of the whole
of Mrs. CampbeWs personal estate; and, secondly,
whether the trusts declared by the instrument prepared
by the Defendant Corley were such as ought to have
been declared, or whether the property ought to have
been settled so as to entitle Mrs. Campbells next of kin
after the determination of her life interest and in default
of appointment by her. I have separated these ques-
tions, and I shall consider them separately, because I
think tbat much weight is due to the argument so
strongly urged by Mr. Daniel, that whatever obligation
may attach upon the Defendant Corley as to the limi-
tations of the settlement, that obligation ought not, at
all events in the same degree or to the same extent, to
be attached upon him as to the property to be com-
prised in the settlement, an argument entitled to the
more weight as this bill does not, as I understand it,
allege that Mrs. Campbell was induced by any fraud or
contrivance on the part of the Defendant Corley to
agree to any less amount of her property being put into
settlement than she otherwise would have agreed to.
How the case would have stood if the bill had rested
upon that footing I give no opinion, further than that a
strong case would, I think, be required to induce the
Court to alter a marriage agreement upon such a
ground.

1867.

To proceed then to the first question — what was the
property agreed to be comprised in the settlement. This
question depends, as I think, upon the correspondence
anterior to the marriage, upon the documents of the

20th

256

CASES IN CHANCERY.

1867.

20th June^ 1850, and upon the weight which is due to
the statements made by the Defendant.

[His Lordship then entered into an elaborate review
of the correspondence, and stated his view to be, that
the just conclusion to be drawn from it taken alone was,
that the whole of Mrs. CamphelCs property was agreed
to be settled. He then considered at length the effect
of the documents of 20 Juntf 1850, and Mr. CarUjft
evidence on his own behalf, stating his reasons for dis-
believing the latter, and for holding the document
signed by Mr. Corley insufficient to vary the case.]

There remains, then, only the question, how the pro-
perty ought to have been settled. It is unnecessary, I
think, to say more than a few words upon this point.
The Defendant having undertaken to prepare the settle*
ment, he was of course bound so to prepare it as it would
have been prepared by a conveyancer, or as it would
have been sanctioned bv this Court had this Court been
called upon to carry into effect the agreement. I think
the correspondence must be looked to as having con-
tained the agreed terms of the settlement ; but if not, I
am satisfied that it must be looked at with a view to the
question how this Court would have carried out the
agreement ; and, looking at the correspondence in either
point of view, I think it clear that the only settlement
which a conveyancer would have prepared, or which
this Court would have sanctioned, would have been one
under which this Defendant would have taken no inte-
rest in Mrs. CampbelTs property, otherwise than by her
appointment, he taking the life interest under F. Oo§i*
Kngs will. I am of opinion, therefore, that the Plaintiff
is entitled to the whole of Mrs. CawtpbelTs p^sonal
estate, and the decree must be accordingly. The De-
fendant must, of course, pay the costs of the Snit of
Campbell v. Corky, and I fully agree in my learned
Brother's opinion as to the costs of the Bait of Corkf
yf. Loni SiaffonL

CASES IN CHANCERY. 267

1866.

Ex parte Sir ISAAC LYON GOLDSMID and

WILLIAM KING.

My 11.

In the Matter of GEORGE DEANE and PRE- ^««r. l.
DERICK YOULE, Bankrupts. 1857.

June 4.

rilHIS was an Appeal from the rejection by Mr. Com- Before The
missioner Perry of a proof tendered under the *^tice8."*"

following circumstances. J. and B. were

partners at

The bankrupts, George Deane and Frederick Youle^ Uvrrpool, and
carried on business at Liverpool as merchants, in part- at Pernam-
nership, under the name of Deane, Youle and Company. ^^' ^^
They also carried on, in partnership with Alfred Phillips under the
Youle^ a separate business at Pemambuco as merchants ^."^nd Co.'
on a distinct and separate account, under the same ^7 B. and C.
name of Deane, Youle and Company; the two part- vanceto^.
nerships however, and their respective dealings, trans- *?j* ^•» ^®^
actions, property and effects, being altogether separate them, which
and distinct &d b!^

became bank-
The business of the Pemambuco firm was principally rupu, and

that of commission merchants, but the firm also made b^][^"(; '

shipments on their own account, and in the course of became "fal-

their dealings and transactions they consigned produce j^g ^ 1),^

^O Brazilian law,
and entered
into a concordata with their creditors according to the tame law, which does^ not
adopt the English practice in bankruptcy of distributing joint estate among joint
creditors, and separate estate among separate creditors, nor that adopted in Ex parte
Moult and Ex parte Hinton, of excluding a holder of bills drawn by one firm on
another, consisting partly of the same partners from double proof: —

Held, by Lord Justice I'umer, agreeing with the Commissioner; dissentiente Lord
Juatiee Knt£ht Bruce:

1. Tliat Ex parte Moult and Ex parte Hinton have been too long decided to be
departed from m this Court.

2. That according to those authorities the bill holders, having received a dividend
voder the concordata, were not entitled to prove under the English adjudication,
the differences between the concordata and an English bankruptcy, and between the
practice in England and the Brazils, not being sufBcient in the opinion of Lord Justice

Turner to constitute a vidid distinction between the above cases and the present

Vol. I. S D.J.

S68

CASES IN CHANCERY.

1866.

£z parte

Sir

Isaac Lyon

goldsmid

and

William

Kino.

to the Liverpool firm to be sold upon commission on
account of the Pemambuco firm^ and they also received
consignments from the Liverpool firm to be sold in like
manner^ but the consignments made by the Pemam-
buco firm to the Liverpool firm greatly exceeded in value
and amount those made by the Liverpool firm to the
Pemambueo firm, and by reason thereof^ and of remiU
tances made by the Pemambuco firm to the Liverpool
firm, the Pemambuco firm was always greatly in advance
to the Liverpool firm.

It was a general or frequent course of business puN
sued by the Pemambuco firm, in making purchases in
the Brazils or elsewhere of produce to be consigned to
the said Liverpool firm, on account of the Pemambuco
firm^ to pay the price in cash and to raise the amount
required for that purpose by the sale at Pemambuco of
bills of exchange, which were drawn by the Pemamr
buco firm upon and which were afterwards accepted
by the said Liverpool firm.

It was also a general or frequent course of business
pursued by the Pemambuco firm, in their dealings and
transactions with firms in England^ to make their pay-
ments to such last-mentioned firms by means of bills of
exchange drawn by the Perfiambuco firm upon and ac-
cepted by the Liverpool firm.

Among the bills of exchange drawn by the
buco firm upon the Liverpool firm, which were sold iH
manner and for the purposes aforesaid at PemambueOf
were two: one for 10,000/. and the other for bflOOL
They were in the following form : —

'^ Pemambuco, 29 Mag, 1864»
" No. 3342, each for 10,000/. sterling.

*' At sixty days' sight pay this first of exchange
(second, third and fourth not paid) to the ord^ of

Messrs.

CASES IN CHANCERY. 259

Messrs. /. Z. Ooldsmid, Wm. Thompnon and Wm. King 1856.

the sum of ten thousand pounds sterling value of the ^"^^

Pemambuco Provincial Treasury^ and place it to ac- Sir

count as adyised by '^,*- Jj«"

'* Deane, Youle and Co. «nd

William

'* To Messrs. Deane, Youle and Co., Kimo.

" Liverpool.
" Payable in London^

The bills virere accepted by the Liverpool firm in the
following form : —

''Accepted 17tb Ju/y, 1854, payable at Messrs.
Smith, Payne and Smith's, Bankers, London, due 18th
September, 1854.

" JDeane, Youle and Co."

These two bills were purchased on the respective days
of their dates on behalf of the Brazilian government,
for the purpose of making payments in England on be-
half of that government.

The full values of the bills respectively were paid to
the Pemambuco firm by or on behalf of the Brazilian
government, and tlie bills, by the direction of that go-
vernment or their agents, were drawn in favour of Sir
Isaac Lyon Ooldsmid and William King, and William
Thtmipson, since deceased, who were the agents in Eng-
land of the Brazilian government.

The Brazilian government and their agents who
purchased the bills were aware when they purchased
the bills that the Liverpool and Pemambuco partner-
ships were separate and distinct partnerships, but that
the said George Deane and Frederick Youle were
partners in both. They believed, bov^ever, also, that

S2 the

260 CASES IN CHANCERY.

1856. the government would be entitled to have recourse for

payment of the bills against each of those firms.

ExiMurte
Isaac Ltom ^Jj^ jjj||g ^^^^ remitted to the agents of the Brazilian

OOLDSMIO ^

and government, and accepted by the Liverpool firm, long
-KiMo!*' before the bankruptcy.

The adjudication took place on the 13th o( November,
1854.

On the 26th of June, 1855, the Pemambuco firm
entered into a concordata with their creditors, which
was ratified according to the Brazilian law, and which,
being translated, was as follows : —

" Concordata.

*^ At the last meeting of the creditors it was the in-
tention of the bankrupts, Frederick and Alfred PAilUpt
Youle, for the common interest of their creditors, to
ofier on the part of their firm of Deane, Youle and
Company the payment of each of their creditors with
the least possible expense and in as brief and advan-
tageous a manner compatible with the state of their
estate, the above-named partners proposing to undertake
the liquidation of the estate under the inspection of and
in concurrence with trustees to be appointed by the
creditors, the estate to be free from all expense in this
liquidation, and the bankrupts to receive no payment
(in per centage or otherwise) for their labour, they
making the dividends in proportion as the assets should
be realized, and as the trustees might determine. It
not having been possible in spite of every effort used
to convene a meeting that could discuss such a con-
cordat, owing to its being understood that by the com-
mercial laws of the country such a meeting could only
be held after the expiration of four months from a given

date.

CASES IN CHANCERY.

261

date, Frederick Youle, with the consent of his creditorS|
went down to Rio de Janeiro in order to endeavour
to settle with the government (independently of any
judicial processor the question of preference to which
the public treasury considers itself entitled over other
creditors, but in spite of the opinion of many dis-
tinguished members of the council of state that such
a preference was not in accordance with the laws, the
government decided upon leaving the issue to the legal
tribunals. In consequence of the above detail and of
the absolute necessity for the partner, Frederick Youle's,
returning to Europe, his health having often suffered in
this country and the climate preventing his giving that
active attention to business that would be requisite, the
bankrupts are under the painful necessity of giving up
their previous intention, and now offer a concordat in
the following terms : — In consequence of a great part
of the assets of the estate being sequestered by the
public treasury, and of which no disposal can be made
pending the decision of the question of preference
about to be raised by the treasury beforie the legal
tribunals as to whether it is entitled to be paid in full,
or, as it in justice ought to be, to enter into a propor-
tional distribution with the other creditors, it is not
possible to offer any composition in a fixed sum or
otherwise, as the bankrupts can do nothing pending
the decision of this important question, which affects a
large portion of their assets, and the final result of
which (and especially the delay) it is impossible to
foresee. It therefore only remains for the bankrupts
to propose to their creditors the assignment of their
estate as it now stands recovered and recoverable, that
all may be given over to the trustees to be appointed,
and who shall undertake the liquidation for the common
benefit of the estate, carry on the suit at issue with the
government (treasury), make all dividends, and in every

way

1856.

Ex parte

Sir

Isaac Ltom

goldsmid

and

William

Kino.

CASES IN CHANCERY.

1866.

Expaiie

Sir

Isaac Ltom

qoldsmid

and

William

Kiiio.

way act for the general benefit. On oar part we aik
from the generosity of our creditors a full quittance ao
soon as we shall have delivered up all. We have done
our best to secure them greater advantages, which we
have failed in for the reasons stated in the foregoing.
In our steady we propose as trustees, E. BidonbaCj JU
A. Segra, E. Fenton, M. Joaquim, Romas JS. SUoa.

" Pertutmbuco, 1 1th Junej 1865.

** Deane, Youle and Company.**

Annexed to the concordata was a ratification of it, of
which the following is a translation : —

^'Inasmuch as it pertains to the Judge Commia*
sary to ratify the concordat, there being no oppo-
sition, inasmuch as the dissentients have not lodged
their opposition during the term of eight days assigned
to them for such purpose according to Article 850 of
the Commercial Code, and that consequently there is no
opposition for the Tribune of Commerce to decide upon
according to Article 851 of the said Code, and the
matter is reduced to there not having been dissentients,
I hereby ratify this concordat, that it may produce
full and entire effect : the disposition of Article 854 of
the Commercial Cpde to be observed ; and I give this
as published in the hands of the notary Reciffe.

'* 26th June, 1 855.

" Joas Pinto de Lemoi!'

The Articles 850, 851 and 854 of the Commercial
Code, referred to in the ratification, provide as follows :-*

Article 850. The concordat must be rejected or ac-
cepted and signed at the same meeting at which it is
proposed. If there are no dissentients, the Judge
Commissary shall ratify it then and there ; but if there

be,

CASES IN CHANCERY. 263

be, he shall assign to all such dissentients collectively 1856.

eight days, within which time to lodge their embargoes, ^ ^^

(t. e-, grounds of opposition,) which he shall notify to Sir

the assignee and bankrupt, who shall be obliged to Qq^o^h^

reply to the same within five days. The embai^oes ^A

and the replies to the same shall be sent by the Judge i^va.
Commissary to the Tribunal of Commerce, within the
term of three days from the giving in of the replies.

Article 851. The embargoes being presented, the tri-
bunal shall give sentence, either rejecting them or accept-
ing them at once as proved. At the same time, if it shall
appear to the tribunal that the subject of the embargoes
IS important, but not sufficiently proved, it may assign
ten days for proof to be given. At the end of this term^
without any other reply than that of the assignee, the
same shall be finally adjudged. From the decision of
the Judge Commissary, who shall ratify the concordat,
there shall be no appeal but by embargoes in the man-
ner hereinbefore stated. But from the sentence of the
tribunal, which may reject the embargoes of creditors
who are opposed to the concordat, there may be appeal
to the high court of justice of the district. The terms
allowed in this and the preceding Articles shall not be
extended.

Article 854. Notice of the concordat being served
upon the assignee and the trustees, these last named
shall be obliged to deliver up to the debtor all hiseflPects
that they may have in their possession, and the former
to give in his accounts of administration before the
Judge Commissary, to whom it belongs to settle any
dispute that may arise relative to the delivery of the
effects or the settlement of accounts, referring the same
to arbitration, if the parties desire it.

There was an absolute majority of votes of creditors

264 CASES IN CHANCERY.

1866. in favour of the concordata so proposed and entered

^^^'' Into by the Pernambuco firm, there being forty-four

Sir creditors present, of whom thirty-nine voted in favour

Isaac Lyok ^^^ g^^ against, and the majority represented more

GOLDSMID . J J r

and than two-thirds in value of the claims. The proposed

KiMot trustees were unanimously approved of.

According to the Brazilian law at present in force,
the concordata thus accepted and ratified has the effect
of granting a quittance to the fallidos ; and the holders
of the bills of exchange drawn by JDeane, Youle k Co.,
o( Pernambuco, upon and accepted by the firm of Deane^
Youle Sc Co., of Liverpool, would not by the law of the
Brazils, by receiving dividends in respect of such bills
of exchange under the concordata, be precluded from
receiving dividends under a bankruptcy of the acceptors
of such bills of the Liverpool firm ; nor, according to
the Brazilian law, would the holders of the bills, by re-
ceiving dividends under the Liverpool bankruptcy, be
precluded from receiving dividends on the bills under
the concordata or under a contract of union, (which is
another form of administration, explained in the further
evidence stated post, p. 293,) had the affairs of the Per-
nambuco firm been administered under a contract of
union instead of under a concordata.

William Thompson died, and the appellants there-
upon became the sole agents of the Brazilian govern-
ment.

The Brazilian government at first sequestered some
of the assets of the Pernambuco firm, claiming a right
to be paid in priority to the other creditors, but they
afterwards abandoned such claim, gave up those assets,
and sought relief upon equal terms with the other
creditors.

CASES IN CHANCERY.

On the 17th of September, 1855, a dividend amount-
ing to 600Z. was received in respect of the bills by the
appellants under the concordata.

On the 15th of April, \856, the appellants tendered
ci proof under the bankruptcy for 15,115/. Is. 5d., being
^lie amount due for principal and interest on the bills.

£x parte

Sir

Isaac Ltov

goldsmid

and

William

Kiiio.

Mr. Commissioner Perry rejected the proof on the
ground that creditors who had received dividends from
"^lie estate of the Pernambuco firm under the concor-
had elected, and were not entitled to prove (a).

The

(a) The commissioner's rea-
were expressed in his judg-
lent, which was a written one,
id which, after stating the facts,
proceeded as follows : —

In the course of the argu-

vnent many of the cases upon the

question of double proof, begin-

Kiing with Lqfore$t*i case, and

ending with the case of Wickham

"W, Wickham f in which that ques-

tioa was adverted to in the

judgment of the Vice-Chancellor

Wood ; and some observations in

Xord Henky'i Bankruptcy Law,

^ 1S4, 2nd edit, were brought

under the notice of the Court

To avoid repetition, and for the

pnrpose of showing what the

nature of these decisions has

been in as dear a manner as I

am enabled to do, I proceed to

arrange them under two heads.

First, the cases in which double

proofii have been allowed — Lar

fiirtat^t case, Cooke, B. L., p.

251, before Lord Loughhorougfu

There Corson and Gorden were

pirtnerB aa turpentine manufac-

turers. Corson and Gorden were
also partners with Whincup and
Griffin, as soap manufactureriy
under the firm of Whincup and
Griffin; persons who had dia-
counted bills drawn by Corson
and Gorden, on Whincup and
Griffin, as soap manufacturers,
under the firm of Whincup and
Griffin, persons who had dis-
counted bills drawn by Corson
and Gorden, on Whincup and
Griffin, and alleging their igno-
rance of the connection in part-
nership of Corson and Gorden
with Whincup and Griffin, were
on appeal to the Lord Chancellor,
and proof of such want of know-
ledge, admitted to prove against
both estates. In Ex parte Ben-
son, a year afterwards, the holder
of a bill drawn by Marsh, a
partner in a cotton manufactory
with William and John Hough-
ton (then carrying on a separate
trade as grocers) in favour of
the Houghtons, upon Addis,
which bill was paid for groceries
to the holders of it, was allowed

266

CASES IN CHANCERY.

1866.

Ex parte

Sir

Isaac Ltov

ooldamid

and
William

KlKfl.

The Brazilian government appealed from the de-
cision.

Mr.

to prove against the joint estate
of the Houghiotts and the sepa^
rate estate of MartL Theie
also the holder had no knowledge
of the connection of the parties in
partnership. There is also the
caae of Es parte Bonbonut (8
Ves. 540), in which the right to
take dividends from both estates
in certain cases is recognised by
the Lord Chancellor. In £j parte
Adam (2 iloff, 36), five persons,
trading under the firm of Cooke
and Ca, drew a bill on two of
their firm, carrying on a distinct
trade, under the firm of Harriion
and Goti. There the bill-holder,
in the report in Rote (which is
confirmed by that in 1 Vet. if B,
493), was admitted to double
proof^ the Lord Chancellor ex-
pressing his opinion that the
petitioner, *'as ignorant of the
oonneotion of the parties^" was
entitled to prove against both
estates. In Ex parU Walker
and Eg parte WentUy (1 RoUy
441), Ford, a rope-maker, Frice
and Cfoii, shipbrokers, and Jo-
tepk Gilbert^ were jointly inte-
rested in the cargo of a ship;
Ford drew a bill for goods sup-
plied for outfit of the vessel in
favour of H^ens/ey and Co. on
Price and Crost, WentUy and
Co. knowing that the four were
jointly interested. In this re-
spect the case difiered from those
before mentioned. The holders
proved the bill against both
estates. It was sought to ex-
punge the proof, which seems to

have been sustained, because, as
Sir Samuel Romilly and Mr. HUl
contended, it was a draft of one
of several partners upon two
other partners, a distinct bouse,
and carrying on, it might be
added, ^ distinct trade. 71^
Lord Chancellor, after admitting
the authority of the cases of Ho-
Jbrtti and Bonbomttf and stating
that the debt was a partnership
one, gives this reason for the de-
cision in Ex parte Wentley : the
mode of payment is a bill pay-
able to the vendors, not on tlia
partners, whose name is not upon
the bill, but on persons forming
another house. In the case now
before the Court, as to all the
Permambueo bills, the names of
Deane and Yoide are upon thoaa
bills. The case of Wkkiam T.
Wiekham, before Vice-Chaiicellor
Wood (now reported 2 K. ^ J,
478), has been referred to. Widh
ham V. Wkkkam did not iavolwa
a case of actual bankruptcy.
There appears to hava he«n a
deed of inspection, from soroe oC
the provisions of which the VIosh
Chancellor collected that the tw9
estates referred to in that case of
Finch and Sons, and Finch and
WHley^ debtors to the Low Moor
Company, were to be wound up as
in bankruptcy ; and thus the quea-
tion of double proof was raised
upon the arguments in the cast.
In the short-hand writer's notes
of the judgment of the Vice-Chaiir
cellor, it appears that Fiuek and
Sons, a firm of vhieli Fdwmrd

CASES IN CHANCERY.

267

Mr. J)€ Oex (with whom was Mr. Cairns) in support
of the appeal.

The CoEnmissioner did not profess to decide this case
upon principle, but considered himself bound, as he

probably

Finek was a partner, drew biHs
§aft 6,370/. 15f. upon Finch and
Wilk^f which were accepted bjr
that Ibrmy and then the bills were
indorsed by Fineh and Sons to
tiie Low Moor Company. Ed"
ward Finthf the partner of Fineh
and Sons, was the surriving part-
ner of Finch and Willey, The
Viee-Chancellor appears to have
heM that, after proof against
Fituh and Sons, it was compe-
tent to the holders to prove the
bill for 6,870/. 16s. against Finch
and WilUy, This decision would
appear to be at rariance with the
caae of Er parte Hinton, in the
matter of Acramanf which I will
bareafter advert to. Secondly,
I eome now to the cases in which
doable proof has been refbsed, or
expunged after such proof had
been made. In Ex parte Row-
kmdmm (3 P. Wm$. 405), John
Cro^idd and James Birket, part-
nets in trade, had given their
joint and several bond to the
petitioner, Rowlandson, who
proved his debt under a joint
commission issued against them,
md received a dividend. Two
aeparate commissions having
afterwards issued against the
partners, the creditor sought to
receive his dividend under the
aeparate commissions, and being
reftised by the Commissioners,
thdr decision was confirmed by

the Lord Chancellor, who re-
quired the creditor to elect ; but
as the dividend under the Joint
estate was received while the
matter was in suspense, liberty
was given to him to repay the
amount of the dividend. This
case is referred to in Ex parte
Bevan (10 Ves. 107), which I
only mention here for the note
by the reporter at the foot of that
page, which is in these words : —
*' Where the contract is for double
security against distinct firms,
though consisting of the same in-
dividuals, the creditor, if ignorant
of their connection, may prove
against both." In Ex parte
Liddel (2 Rose, 34), De Prado,
with Groves and another, were
partners in the firm of Feter
Groves and Co., who had given
a bill drawn by that firm upon
and accepted by De Prado to
one Keys, who accepted it in
ignorance that De Prado was a
member of the firm. The firm
became bankrupt, but Groves
being an infant, separate com-
missions were issued against De
Prado and Hitchcock, the other
partner. In Hitchcock's ban]&>
ruptcy an order was made for
keeping distinct accounts of the
joint and separate estate. Keys
proved under HUchcock*s bank-
ruptcy as a joint creditor, and
received a dividend out of the

I85&

Ez parte

Isaac Lton
ooldsmid

and

William

Kivc.

July 11.

268

CASES IN CHANCERY.

1856.

£x parte
Sir

IlAAC LtOM
GOLDSMID

and

William

Kino.

probably was, by the authority of Ex parte Hinton (a).
That case, however, was decided not according to the
opinion of the learned judge whose decision it was, but
in consequence of the authority of JEx parte Moult (&),

which

joint effects. In like manner he
afterwards received a dividend as
a joint creditor under De Frado*s
bankruptcy, but having sought
to prove against De Prado*i
separate estate, and having been
admitted to prove, his proof was
ordered to be expunged by the
Lord Chancellor, on the ground
of a conclusive election, his Lord-
ship using these words : —
** Adopting the aggregate lia-
bility of all his debtors, he is
excluded now from resorting to
them individually." In Ex parte
Bigg (2 Rote, 37), Samuel Cook,
who was not a distinct trader,
but was one of five partners
in a firm of Harriton and Co.,
drew a bill on Harriton and
Co., and discounted it with his
bankers, who knew of his con-
nection with Harriton and Co.
The bankers having proved the
bill under the commission which
issued against the firm, sought
also to prove against Cook*t
separate estate, but this claim was
disallowed by the Lord Chan-
cellor ; so in £r parte the Bank
of England (2 Rote, 82), where
Gravet, Sharp and Either, in
partnership, indorsed a bill to
their partner Either, who was a
distinct trader, and he discounted
the bill with the Bank of Eng-
land, although, in accordance

with their practice, the Bank bad
obtained the separate indorsement
of Either, their customer, thereby
apparently raising a valid con-
tract for double security, it was
held that the Bank must elect.
In £jr parte Hutbandt (5 Mad.
419, and 2 G. 4 J. 4), a joint
commission had issued against
Itaac and Peter Blackburn, The
Petitioners were creditors upon
bills of exchange drawn by Itaac
Blackburn upon Peter Blackburn*
Itaac and Peter Blackburn traded
as shipbuilders at Plymouth, bat
in the name of Itaac Blackburn
only. Peter Blackburn carried
on a separate business as a
merchant in London. At the
time the bills which were nego-
tiated for the use of the partner-
ship trade were taken, the Peti-
tioners were ignorant of the
existence of the partnership,
though they were aware of it at
the time of the bankruptcy, when
they proved for a joint debt, and
one of the Petitioners was chosen
assignee. They afterwards ap-
plied to the Commissioners for
liberty to transfer their proof to
the separate estate, which being
refused they applied to the Vice-
Chancellor that they might be
declared entitled to prove against
the separate estate, as well as
against the joint estate, or that

(a) De Gex, 550.

(b) 2 Dea. Sf Ch, 419.

CASES IN CHANCERY.

269

which his Lordship considered to be binding upon him
as Vice- Chancellor. Now, in the first place, the autho-
rity of £x parte Moult is not conclusive in this branch
of the Court, if your Lordships should be of opinion

that

1856.

tbey might be at liberty to transfer
their proof from the joint estate
to the separate estate. The Vice-
Chancellor having held that they
were too late to transfer their
proof after dividend had been
declared of the joint estate, and
after they had acted as joint
creditors, the case came before
the Lord Chancellor on appeal,
who, allowing the Petitioners to
prove against the separate estates,
directed the proof against the
joint estate to be expunged. He
■aid : — "In this case the bills
are accepted by the dormant
partner of the partnership of
Imoc and Peter Blackburn^ and
are drawn by Isaac Blackburn^xn
hit individual name, indeed, but,
as I must take it on the evidence,
in his name as representing the
firm of the two bankrupts, it
does not appear to me that this
ease ranges itself within that class
of cases in which, contrary to the
ordinary rule in bankruptcy, the
bolder has been allowed to pur-
sue the contract appearing on the
fiioe of the bills, and to have
doable proof." In Ex parte
Moult (2 Bea. ^ Ch, 419),
Messrs. Williams, Deacon and
Co. had proved against the joint
estate of Barrow and Geddes^ and
also against the separate estate of
Geddes, upon a bill of exchange.
Geddesvrta a partner with Barrow
and Co., commission agents. He

was also a separate trader as a
cotton manufacturer under the
firm of Geddes and Co. He was
also a member of the firm of
Johnston and Co., warehousemen,
and of the firm of Samuel Rod"
cliffe, cotton-spinner. The sub-
jects of proof were two bills drawn
by Barrow and Co. upon John'
St on and Co., and indorsed Bar-
row and Co., Geddes and Co.,
and Samuel Radcliffe. A joint
commission issued against Barrow
and Geddes f and a separate com-
mission against Johnston, The
creditor, Robert Williams^ alleged
that neither he nor his co-part-
ners, before the issuing of the
commission against Barrow and
GeddeSf knew, believed or sus-
pected that Geddes was a part-
ner in the firm of Barrow and
Co., or that he was a partner in
the firm of Johnston and Co.,
but that they believed that the
firm of Barrow and Co., and
the firm of Johnston and Co.,
and the firm of Geddes and Co.
were composed of difierent and
distinct persons. Proof was made
for the amount of the two bills
of exchange against Thomas
Johrulon, and before the 25th of
Marchy 1830, two dividends,
amounting to 2s, Sd, in the pound,
were declared under his bank-
ruptcy, which might have been
received by the creditors upon
application before that day. On

£x parte

Sir

Isaac Lton

goldsmid

and

William

Kino.

270
1866.

Esparto

Sir

Isaac Lyon

GoLDtMID

and

WlLLUM

Kitra.

CASES IN CHANCERY.

that it was not correctly decidedi and in the next place^
even if it were a binding authorityi this case differs
essentially from it.

Upon the former of these points it is submitted that
neither principle nor authority rendered it necessary to

decide

that day a proof was made un-
der the commiBsion against Bar-
row and Co. against the separate
estates of Geddet, ibr the balance
of the two bills of exchange, after
deducting the amount of the di-
vidend declared in Johmton*t
bankruptcy, and on the same
day proof was made against the
joint estate of Barrow and Co.
for the whole amount of the
two bills of exchange. A petition
was presented to the Court of
Review, praying that the creditors
might be ordered to elect whe-
ther they would remain creditors
mider proof against the joint
estate of Barrow and Co., or
render their proof against the
separate estate of Geo. Geddes;
and in case they should elect
to remain creditors upon the
joint estate of Barrow and^G.
Gedde$t then that the amount
of their proof upon that estate
might be reduced by the amount
of the two dividends declared on
JohmtonU estate, and in case of
their refusal to elect, then that
hoth proofs might be expunged.
The Judges of the Court of
Review, divided in opinion on
the main question, made an order
to this extent only, that the
proof against the joint estate
of fiarroio and Geddet should
be reduced by the amount of the

dividends received upon Joht-
iton'i estates. Sir G. RiMe, who,
with the Chief Judge, was of
opinion that the creditors most
be put to their election, adverting
to the argument which had been
used in favour of the double proo(
that, as to Gedda, there was a
separate express contract by in-
dorsement, said—** It is needleiB
to go through the cases, for not
one has been cited that aflSxts
the rule, that you cannot prote
against both the joint and sepa-
rate estate of the same individoiL
Or I would put it thus— Wher-
ever your common law executioii
would give you both estates, then,
under the equitable execution in
which you all come in together
under insolvency, you must eadi
take your own estates, in the first
instance ; not exclusively, but in
the first instance subject only to
a right of election, which we all
know is in the petitioning cre-
ditor, as perhaps the first execu-
tion creditor, and to a right of
election, as in this case, where
there is express contract." The
Lord Chancellor (Lord Brtmgkr
am\ before whom the question of
double proof was brought on a
special case, decided against the
double proof upon the authority
of the case of £jr parte Hutbandst
before mentioned, and ordered

CASES IN CHANCERY.

271

decide Ex parte Moult as it was decided. The only
authority upon which the decision was rested by the
Lord Chancellor was that of Ex parte Husbands (a),
from which, however, it is submitted, Ex parte Moult

was

that the creditors should elect
against which estate they would
proTe. Since the decision in this
case a double proof has been ex-
pnnged in a case of Ex parte
SopcTf in the matter of Salter t.
Ptamn. The reference given
hj Mr. Loumdes, in his argument,
was to the fourth volume of Dea^
can and Chitty^t Reports, but the
frets of the case are also stated
in the second volume of Montagu,
and Ayrton*s Reports, p. 55.
Salter and Pearton were in part-
nership as merchants; Pearson
was also in partnership with dif-
ferent persons as warehouse-
keeper, and during the five years
preceding the fiat was in partner-
ship with Price. Salter and Co.
drew bills on Pearton^ which he
accepted, and a commission hav-
ing issued against Salter and
Pearson, one of the bills was
proved in the year 1 824 against
the joint estate, and another in
1825. In 1826 the party repre-
senting the holder as a surviving
partner sought to prove against
the separate estate of Pearton
the balance then due upon the
b£lls> after deducting the divi-
dends paid upon the joint estate ;
and his proof had been allowed
by the Commissioner. The proof
was expunged in 1834, upon the
antbority of Ex parte Moult.

The Court, however, did not or-
der the dividends to be refunded,
on account of the length of time
which had elapsed since the re-
ceipt of them. That case of Ex
parte Moult was also the ground
of expunging a proof in Ex parte
Law (3 Dea, 541). I come now
to Ex parte Hinton {De Cex,
550). In that case there were
two firms, Acramant, Morgan
and Co., consisting of three Acra-
mani, and Thomas Holroyd, Wil"
liam Morgan, and Jamet Nor^
rowoy Franklyn, shipbuilders,
boilermakers and engineers, and
the firm of D. E. and A.Acraman
(consisting of the three Acramant
only), trading as merchants. A
promissory note payable to one
of the Acramant, or order, signed
on behalf of Acramant, Morgan
and Co., the firm of six partners,
was indorsed by the payee, and
by the firm of X). £. and A.
Acraman, as well as by one Wil'
liam Williamt. The Petitioner
who had discounted the note
knew or believed that the three
Acramant were partners in the
firm of six; he had proved his
debt under the fiat issued against
the firm of Acramant, Morgan
and Co., and received a dividend.
Before the receipt of the dividend,
but after proof made, he tendered
a proof against D. £. and A.

1856.

Ezparte

Isaac Ltom
GoLDswin

and

William

Kmo.

(a) 2 G. * J. 4.

272

CASES IN CHANCERY.

1856.

£x parte

Sir

Isaac Lton

goldsmid

and
William

KlMO.

was clearly distinguishable. For in £x parte Husbands
the bill purported to be drawn by one separate trader

upon

Acramant, against whom a fiat had
also issued, hut the Commissioner
rejected the proof, on the ground
that, knowing the three Acramans
to he partners in Acramans, Mor-
gan and Co., he had made his
election. The Chief Judge of
the Court of Review, the present
Lord Justice Knight firucf, after
expressing a douht whether the
knowledge that the three Acra-
mam were members of the firm
of six was material to the deci-
sion in the case, said — " I do not
see any distinction between the
case of Ex parte Moult and the
present, unless it is a distinction
that Geddet and Co. had not a
partner, whereas here the minor
firm comprises several persons.
I think that it is not. My opi-
nion (subject to the question of
knowledge or ignorance) is that
by law there ought not to have
been double proof in the case
before me;" and he dismissed
the petition, giving the assignees
their costs out of the estate. This
case was decided in 1847, and
my attention has been directed
by Mr. Shackleton to some ob-
servations upon it in a judgment
of Mr. Serjeant Stephen, delivered
in the year 1850, in a case aris-
ing out of -the bankruptcy of
Acramantf Morgan and Co. The
learned Commissioner says — ** I
am aware that in Ex parte Hin-

ton the Chief Judge is reported
to have expressed himself as if
he thought the double proof must
have been disallowed in that case,
even though the taker of the note
had no knowledge of any connec-
tion between the firms, and as if
he had admitted no distinction
between the case of double proof
as against connected firms, and
of double proof as against the
joint estate of a single firm, and
the separate estate of one of its
partners; in which latter case
the double proof must be disal-
lowed, according to Ex parte
Moult, whether the taker knew
him to be a partner or not. But
I am not satisfied of the accuracy
of the report in this respect (a) ;
for such a view was not necessary
to the Chief Judge's decision, nor
is it the view taken in Ex parte
Moult, on which he is said, ne-
vertheless, to have exclusively
relied : for in £jr parte MouU
the distinction just referred to is
admitted. I conceive, therefore,
that Ex parte Hinton is not to
be understood as applying to the
right of double proof against con-
nected firms, except in the pre-
cise case which then occurred —
in the case where the taker of
the bill was aware that all the
partners in one firm were part-
ners also in the other firm." Be-
yond these doubts thrown oat as

(a) The judgment was in writing, and was printed in the report
firom an examined copy of the original MS., with which the proof was
also examined.

CASES IN CHANCERY.

273

another. It appeared, liowever, that they were
era, and the Court permitted the bill holder to
between the character of joint creditor for which

report of tbe case in Ex
Hintotit the case just re-
to does not assist the ad-
I of the right of double
Tor the proof offered in the
fore Mr. Serjeant Stephen
proof against Acramam,
n and Co., on some bills
by Alexander Youngs jun ,
nd accepted by D., E. and
ramantt and indorsed by
ler firm of Acramant^ Alor-
d Co.y after the proof made
▼idends received, under a
Ded against D., £. and A.
an. The learned Com-
aer rejected the proof; and
ears in the case that the
nr knew that two of the
^ani were members of both
though he believed that
f Acramiun was no longer a
iv of the firm of AcramanSf
ffi and Co.

ing now gone through the
I authorities upon the ques-
ised before me, it appears
that if notice of the connec-
r the firm of Deane and
of Liverpool with the firms
me and Youle of Pemam-
md of Youlcj Deane and

Bahia, be necessary in
to exclude the right of

proof, sufficient notice
Ten to the holders of the
y the identity of the names,
them upon inquiry, and
aye in no instance ven-
o allege their ignorance of
nnection of the Liverpool

.1. I.

firms with the foreign firms, while
in one case that of Mr. HuiVs
client, the knowledge of such
connection with the Bahia house
is admitted. I am of opinion that
the present case must be governed
by that of Ex parte Hinton in
the matter of Acraman. Here,
however, there are but few in-
stances in which the actual re-
ceipt of dividends at Pernambuco
is admitted, though in most of
the cases before me it is probable
that 20 per cent, has actually
been received from the assets in
Pernambuco^ so that the parties
cannot, until the fact is known
of the receipt of dividends there,
be held to have actually elected.
I must, therefore, declare gene-
rally that the right of double
proof does not exist in this case,
and that such of the creditors as
have received dividends upon the
bills in respect of which proof
has been tendered, either from
the house of Deane and Youle of
Pernambuco^ or of Youle^ Deane
and Co. of Bahia^ have elected,
and are not entitled to prove
upon the estate of DeanCy Youle
and Co., of Liverpool^ and order
that such of those creditors as
have not received dividends from
the foreign firms do elect within
four months from the present
time whether they will prove
against that estate, or against
the foreign firm, the drawers of
the bills.

T D.J.

1856.

£x parte

Sir

Isaac Lyon

goldsmid

and

William

Kino.

274 CASES IN CHANCERY.

1856. be had never contracted, and that of separate creditor of

^^ each estate, but would not give him, in form, the advan-

Sir tage both of the ostensible and the actual state of

^GoLMuiD ^•^'"g^' He had, however, all that he had contracted

and for, having regard to the circumstance (adverted to in

Kmo. ^^ ^^^^ ^ ^ parte Husbands), that the joint estate
would, under the provision as to order and disposition, be
administered as the separate estate of the apparently sole
trader. It is therefore substantially a case of double proof,
being a proof against the separate estate of one trader,
which, under the provision above mentioned, included
the joint estate, and against the actual separate estate
of the other debtor. The decision in J?x parte Moult
was, it is submitted, not only not rendered necessary
by, but is not in accordance with, JEx parte Husbands.
The bill holder saw upon the face of the bill two distinct
commercial firms, to which he would consider that be
had a right to look for payment, and on the liability
of which he had relied ; and yet instead of being
permitted, as in Ex parte Husbands, to have the rights
for which he had contracted, he was told by the decision
that, owing to an unfortunate peculiarity in our law for
which no one had pretended to give any good reason,
he was only entitled to the liability of one of these
firms. It is submitted therefore that the decision in
Ex parte Moult was not rendered necessary by the
authority of Ex parte Husbands. The only authorities
besides Ex parte Husbands, which were referred to in
support of the decision in Ex parte Moult are collected
by the Commissioner in his judgment, and are, as it is
submitted, equally inapplicable. Thus in Ex parte
Rowlandson {a), one of the earliest cases in which the
rule against double proof was adopted, the proof was
on a joint and several bond, and Lord Talbot rested his

decision

(fl) 3 P. W. 405.

CASES IN CHANCERY.

276

decision on the circumstance of there being only .one
instrumenty so that at law the obligors could not be
sued both jointly and severally, and his Lordship dis-
tinguished the case on that ground from one cited in
argument, in which one of several partners who were
jointly indebted had given his separate bond for the same
debt, and in which double proof had been admitted. JEx
parte Rowlandson^ therefore, afforded no authority for
excluding, double proof where there were two distinct
contracts, one of drawing and the other of acceptance,
on which two actions might have been maintained. Ex
parte Bevan (a) was also a case of a joint and several
bond and covenant The question there was not as to
proof against both estates, for the creditor had elected
to prove against the joint estate only, and all that Lord
Eldon decided was, that when the creditor had once
elected to be a joint creditor he could be in no better
position than any other joint creditor. His Lordship
however said, " I never could see why a creditor having
both a joint and a several security, should not go
against both estates. But it is settled that he must
elect'' In Ex parte Liddel{b), it is true that the secu-
rity was a bill, but it was drawn by a firm upon and
accepted by a secret partner, and therefore the same
observations apply to this case as to Ex parte Hus-
bands, In Ex parte Bigg (c), one partner had drawn
a bill which was accepted by his firm, but he did not
carry on a separate trade, and the decision proceeded
on this fact, Lord Eldon sayiug, ''In all the antecedent
cases the individuals had subdivided themselves into
distinct partnerships ; there was a recognized stock
against which the credit was to operate." And in Ex
parte The Bank of England {d), a partner to comply

with

1856.

£x parte

Sir

Isaac Ltoh

G0LD8MID

and
William

RlHOi

(a) 10 Vet. 107.
(6) 2 Rote, 34.

(f) 2 Rote, 37.
((/) 2 Rose, 82.

276 CASES IN CHANCERY.

1866. with a rule of the Bank indorsed a bill which had been

^-^^^^^^^ already indorsed by his firm. He was, it is said, a

Sir separate trader, but it did not appear that the Bank

liAAc Lyon contracted with him in that capacity, and Lord Eldon

GOLDSHID . r Jf

and decided as he had done in Ex parte Bigg.
William

Kino.

Secondly. Whether Ex parte Moult was or was not
correctly decided, it does not govern the present case,
for the grounds of that decision must be gathered from
the short judgment of the Lord Chancellor on the
appeal, and from those given by the judges below,
whose judgment his Lordship affirmed by his own.
The judgment of the Lord Chancellor, as has been
already said, proceeds entirely on the authority of Ex
parte Husbands^ in which the minor firm consisted of a
single trader, and the judgments delivered in the Court
below against the double proof proceed entirely on this
circumstance. Mr. Erskine, the chief judge, says, "In
this case, therefore, I think the creditors must elect.
My judgment is founded on this : I find the general rule
arbitrary, but invariably acted upon by all judges in
matters of bankruptcy. I find no case carrying the ex-
ception to a single partner separately trading, but on
the contrary, expressions of Lord Eldon, confining the
exception to separate partnerships ; and there is be-
sides an express decision on the point in the case I have
just mentioned of Ex parte Husbands.** And Sir G.
Rose says, " But then say they : Geddes is a separate
trader, and we are the holders of a commercial contract.
But is not the answer obvious ? What difference can the
circumstance that Geddes is a separate trader make,
unless the law or equity or bankruptcy distinguishes
his separate trading stock as a distinct recognized stock
from his general assets ?" " It is needless to go through
the cases, for not one has been cited that aflPects the
rule, that you cannot prove against both the joint and

separate

CASES IN CHANCERY-

277

separate estate of the same individual." It therefore
appears that the decision proceeded entirely upon the
role, that in general the joint estate shall be distributed
among the joint creditors, and the separate among the
separate creditors, a rule which was introduced without
any adequate reason, and which became an established
course of practice before it was properly discussed, so
that Lord Eldon, who found that it had been generally
acted upon, thought himself not at liberty to depart
from it, although he constantly reprobated it and
lamented its introduction. It is a rule, therefore, that
ought not to be extended to a case not falling exactly
within its terms. Wherever the question has arisen in
the case of two firms, of which neither consisted of a
single partner, the decision has been in favour of the
double proof. In some of the cases the circumstance of
want of notice as to the composition of the firms has
been adverted to, but in no one has the double proof
been rejected by reason of such notice having existed.
And in Ex parte Adam (a), the judgment, as reported
in Veset/ Sf JBeames, does not contain any reference to
that circumstance, although reported at considerable
length. It is submitted, therefore, that Ex parte Moult
is substantially distinguishable from the present case,
that Ex parte Hinton (i), which proceeded entirely
on the authority of Ex parte Moult, might consistently
with it have been otherwise decided, and that your Lord-
ships are not bound by the authority of the latter case.

The preceding argument has proceeded upon the foot-
ing of the estates of the two firms being under the same
administration in this country, and of the case being
exclusively governed by English law ; but when it is
considered that one estate is administered abroad and

not

1856.

£x parte

Sir

Isaac Lyon

goldsmid

and

William

Kino.

(a) 1 JVi. i B. 493 ; 2 Koa€, 36.

{b) De Gei, 550.

278

CASES IN CHANCERY.

1866.

£z parte
Sir

IlAAC LtOR
OoLDBIfID

and
William

Rmo.

not under a bankruptcy but under a composition^ and
that the composition was accepted under a law which
renders its acceptance no bar to a remedy elsewhere
against another firm, although composed in part of the
same individuals, even Ex parte Hinton will not be
considered to appl]^ to the case, and the Court will be
left unfettered by any authority to decide the case in a
manner consistently at once with justice, and with the
possibility of English bills being placed on the same
footing with those of other countries. For there can be
no doubt, that a general knowledge abroad of our law
being in such a condition, that the holder of a bill drawn
by one firm upon another must take care that the
partners are not to any extent identical, and must be
prepared to enter into questions of notice as to the
compositions of the firms whose names appear on the
bills, would place English .bills at a great disadvantage
in the market. It would be desirable to argue more
fully the points relating to the nature of the concordata,
and of the application of Brazilian law, if they should
be considered material, as on account of the case having
unexpectedly come on now for argument, there has not
been time to investigate these questions so fully as could
have been wished.

He also referred to Ex parte Sillitoe (a), Ex parte
Williams (b), and Wickham v. Wickham (c).

Mr. Bacon and Mr. Aspland for the assignees.

The case is disposed of by the authority of JEx parte
Hinton {d), which is exactly like it, and the authority
of which has never been shaken. That case is more-
over fully borne out by the decisions of the then Lord

Chancellor

(a) 1 G/y. 4^ J. 374.
{b) 3 Af. A 4^ D. 433.

CASES IN CHANCERY. 279

ChtLnceWor \n Ex parte Moult {a) ^nd £!x parte Chevalier 1856.
de Mattes {b). After those decisions it cannot be ne- ^-^^^^
cessary to go into the earlier authorities or the reasoning s^
on which they are founded. Whatever may be the ^*^^^ ^^®"
foundation of the rule, it is now well settled that there «nd
cannot be a double proof for the same debt against two k.imiT'*
estates of the same person, whether he be entitled to
such estates separately, or jointly with others. The ex-
ceptional cases proceeding on absence of notice are not
applicable to the present, where it is not alleged that
the Appellants were unaware of the compositions of the
firms. It would unsettle all the principles on which the
administration of assets in bankruptcy has proceeded,
and disturb innumerable decisions, if the Court should
now depart from rules which are so well established.
With respect to the points respecting the concordata
and foreign law, those are disposed of by the case of
£x parte Chevalier de Mattos (b), where exactly the
same state of circumstances existed as in the present.

Mr. De Gex replied.

Judgment reserved.

The Lord Justice Kniqht Bruce.

This is an appeal from a careful decision upon a ^ag. 1<
question of proof pronounced by Mr. Commissioner
Perrj/y the reasons and grounds of which he has stated
with great ability ; nor must I omit to repeat my thanks
to him for a copy of his valuable judgment obligingly
supplied by him to us.

The

(«) 2D.SfC. 419. (6) \ U,iA. 346.

280

CASES IN CHANCERY.

1856.

Ex parte

Sir

Isaac Ltom

goldsmid

and

William

King.

The present case adds one to the very few in which
my learned brother and myself have not found ourselves
able to arrive at the same conclusion. I believe^ how-
ever, that we, on this occasion, differ from each other
scarcely, if at all, in point of principle, — scarcely if at all
otherwise than as to the circumstances in which, and the
extent to which, we ought to consider ourselves bound
to submit our opinions to the control of authority and
precedent; there being doubtless some circumstances
in which, and some extent to which, judges ought to
allow their opinions to be controlled by authority and
precedent. The material facts now before us are thus.

George Deane and Frederick Youle (the two bank-
rupts) carried on trade at Liverpool in partnership to-
gether. The style of their firm was Deane, Youle 6c Co.
The same George Deane, the same Frederick Youle,
and Alfred Phillips Youle carried on trade at Fernam"
buco in partnership together. The style of their firm
was Deane, Youle 6c Co. But the two houses of trade,
the two firms, were distinct each from the other. They
were separate firms, separate houses, nor had Alfred
Phillips Youle any share or interest in the Liverpool
business, or Liverpool establishment. The bills ia
question under the present petition were mercantile
bills, drawn by the Pernambuco house on the Liverpool
house bona fide in the ordinary course of business,
drawn by drawers as a mercantile firm on the drawees
as a mercantile firm, but as another and a distinct mer-
cantile firm, and accepted by them — bon& fide accepted
by them — in the ordinary course of business, as a mer-
cantile firm, but as a firm wholly distinct from that of
the drawers. Of these bills the Petitioners became the
holders fairly, and for valuable consideration.

In this state of things I am prepared, so far as my

opinion

CASES IN CHANCERY,

281

opinion is concerned, to declare that it ought to be
considered immaterial, whether the Petitioners before
or when they became the owners of the bills had notice,
or had not notice, that the persons composing the Liver-
pool firm were two of the members of the Pernambuco
firm.

1866.

Ex parte

Sir

Isaac Ltor

goldimid

and

William

King.

The bills, drawn fairly as trade bills by the Pernam"
buco firm, and honestly acquired by the Petitioners,
having been accepted fairly as trade bills, and the
whole transaction between the two firms having been
strictly mercantile and regular, and as between trade
and trade, it appears to me correct to say that, for every
present purpose, whatever may have been the informa-
tion, whatever the knowledge, of the Petitioners, their
rights are the same as if the Pernambuco firm had not
included both or either of the members of the Liverpool
firm; that the personal identity of Mr. Deane of Liver-
pool with Mr. Deane of Pernambuco is altogether un-
important ; and that the personal identity of Mr.
Frederick Youle of Pernambuco with Mr. Frederick
Youle of Liverpool is equally immaterial. The Pernam-
buco firm must, I apprehend, for every present purpose,
be taken to have constituted a single mercantile person,
and the Liverpool firm another and entirely distinct
mercantile person.

The Petitioners, therefore, as it seems to me, are
entitled to have their case so dealt with ; to have it
dealt with here as if the Pernambuco house had not
comprised any individual comprised in the Liverpool
house. But though this conclusion difiers from that of
the learned Commissioner, he nevertheless acted pro-
bably as it was incumbent on him to do. He stood
much in the same position with reference to precedents
and authorities as I considered myself to do when I

decided

KiMO.

282 CASES IN CHANCERY.

1856. decided Hintons case, a case by which the learned

^"^^ Commissioner was probably right in deeming himself

Sir bound.

IiAAc Lton
GoLDSMiD Thinking myself now at liberty (as when I was a

William Vice-Chancellor I did not) to decline being bound by
those of Mount and Vanzeller, and holding myself free
to depart consequently from that of Hinton, I avow
my opinion to be that abstract justice and the principles
of commercial law and of general jurisprudence are
with the Petitioners, that the law of England is not
opposed to them, and that our order should be accord-
ingly. But I repeat that had I been in Mr. Com-
missioner Perrxfz place I should certainly or probably
have acted as he did.

I may add that so far, if at all, as to the foreign
domicile of the Pernambuco firm, what we know or
have reason to believe of the Brazilian law, and the
circumstance that the English adjudication of bank-
ruptcy preceded in point of time by some months the
Brazilian concordata, have any bearing on this contro-
versy, that bearing seems to me favourable rather than
unfavourable to the Petitioners, and I assume the con-
cordata to have been in its nature analogous to an
English bankruptcy, as the Respondents contended it to
have been.

Of authorities it is sufficient for me on this occasion
to mention JEx parte Bonbonus (a). Ex parte Parr (6),
Ex parte Husbands (c), Ex parte Adam{d), but more
especially as reported in 1 Vesey Sf J3eames(e), Ex
parte JSiffg(f), Ex parte Walker (g\ Ex parte Adams{h)f

(a) 8 Fes. 540. (e) Page 493.

(6) 18 Ves, 65. (/) 2 Rose, 37.

(d) 2 Rose, 3G. (k) Ibid. 305.

CASES IN CHANCERY.

283

Ex parte Sesham (a), Ex parte Sillitoe {b), and Ex
parte The Bank of England {c), the order in which last
case we have read in the secretary's book, and I do not
collect that, though Fisher was a separate trader, it
was as a separate trader or in respect of his separate
trade that he acquired or indorsed the bill there in
qaestion.

1866.

£z parte

Sir

Isaac Lton

goldsmid

and

William

Kino.

On the whole the authorities in Lord Eldon's time,
taken and compared and considered together, convince
me that had the present case been heard by Lord Eldon,
he would have decided the contest in favour of the Peti-
tioiiers. Nor otherwise is it -likely that I should have
condaded for them as I have done.

It has been suggested that I might have disposed of
Sinton^s case otherwise than I did, without contradict-
ing or opposing MoulCs case, — a remark which, without
giving any opinion as to its correctness or incorrectness,
I may say is one entitled to attention and consideration.
Certainly, in disposing of Hinton's case, I did perhaps
erroneously, perhaps otherwise, consider it affected mate-
rially by that of Moult, which I viewed as then binding
me.

I need scarcely add, that I have not meant and do
not mean to assert that it would not have been right to
decide against the Petitioners if the Pernambuco house
had consisted only of the members of the Liverpool
house, or if Messrs. Youle had both been members of
both houses, or if the bills had been drawn by Mr.
Deane and Messrs. Youle, or accepted by Mr. Deane
and Mr. Frederick Youle, not as traders, but by way of

a private

(a) 1 Rote, 146. (r) 2 Rote, 82, 83.

{b) 1G/.4-J.374.

284 CASES IN CHANCERY.

1856. a private transaction, not in the course nor as part of

_ the trade transactions of the two firms ; and in what I
£x parte '

Sir nave said I have, of course, spoken for myself only.

GoldhmibT ^y '^^''"^^ brother, for reasons that he will state, is of

and opinion that the petition ought as matters stand to be

Kino. dismissed, and, therefore, though I repeat that my

opinion is not so, the petition must be dismissed.

The Lord Justice Turner.

The Petitioners in this case are holders, as agents of
the Brazilian government, of bills of exchange drawn
by Deane, Youle and Company of Pernambuco on
Deane, Youle and Company of Liverpool. The Livers-
pool firm consists of George Deane and Frederick Youle.
The Pernambuco firm of George Deane^ Frederick Youle,
and Alfred Phillips Youle. There have been trade
dealings between these firms, each, it would appear,
consigning to the other goods to be sold upon commis-
sion, and the Pernambuco firm seems to have been in
the habit of drawing upon the Liverpool firm, in order
to raise money for the purchase of the goods consigned
to that firm. The Liverpool firm became bankrupt in
1854. The Pernambuco firm became insolvent, and
gave up their estate to their creditors in the month of
June, 1855, and under this insolvency the Brazilian
government is admitted to have received a dividend;
and the Petitioners, being the holders of these bills as
agents of the Brazilian government, have applied to
prove them under the bankruptcy. The Commissioner
rejected the proof, and the Petitioners have appealed
from his decision.

Upon the argument of the appeal two points were
suggested, which it may be convenient first to dispose
of: — first, whether what passed in the Brazils amounted

CASES IN CHANCERY.

286

to bankruptcy ; and, secondly, whether this case ought
to be dealt with according to the foreign or the English
law. These points were not so fully argued as they
might have been ; but, according to the best judgment
which I can form upon them, I think that there was
what was tantamount in bankruptcy in the Brazils,
and that the bills being accepted here, the case must be
dealt with upon the footing of the English law.

1856.

Ex parte

Sir

Isaac Lyon

goldsmid

and

William

Kino.

The question therefore, in my view of the case, is,
whether, according to the English law, a double proof
ought in this case to be admitted.

The rule has long been settled, that in the adminis-
tration of estates in bankruptcy the joint estate is to be
distributed amongst the joint creditors, and the separate
estate amongst the separate creditors, the surplus of the
joint estate, after the payment of the joint debts, going
over to the separate estates; and the surplus of the
separate estates, after payment of the separate debts,
going over to the joint estate. In bankruptcy, too, all
the creditors upon the same estate stand upon an equal
footing; but, as observed by Lord Hardwicke in Ex
parte Bond (a), if a creditor, having a joint and separate
security, be permitted to prove against both the joint
and separate estates, he draws from the separate estate
to the prejudice of other joint creditors, who have an
equal right with himself to come upon that estate.
From this consequence, coupled with the analogy de-
rived from the rule at law, that the obligee in a joint
and several bond cannot sue the obligors and each or
any of them severally at the same time, a further rule
has also been established in bankruptcy, that, generally
speaking, a joint and several creditor cannot prove

against
(a) 1 Ark, 100.

286 CASES IN CHANCERY.

1856. against both the joint and separate estates, but must

^'^^>^^ elect against which of them be will prove.

Ex parte ® ^

Sir •

IiaacLtoii Whether these rules are founded upon just principles

^^ or based upon sound reasoning is not for us to deter-
WiLLiAM mine. They are woven into the system of the bankrupt
laws, and we are bound to abide by them. To the
latter rule, however, some exception has been intro-
duced, and the question which we are called liipon in
this case to determine seems to me to depend upon the
extent of that exception.

In some of the cases in which there has been an
aggregate firm, and a distinct trade has been carried on
by some or one of the members of the firm, creditors
to whom both the aggregate firm and the minor firm,
or the individual partner carrying on the distinct trade,
have been liable have been admitted to prove against
the estates, both of the aggregate firm and of the minor
firm, or individual partner carrying on the distinct
trade. In others of those cases such creditors have not
been permitted to prove against both estates, but have
been compelled to elect against which they would
prove.

Amongst the cases in which the proofs both against
the joint and separate estates have been admitted are
Ex parte Laforest (a), Ex parte Benson (ft), and Ex
parte Adam (c). Amongst the cases in which it has been
refused are Ex parte Bank of England {d)^ Ex parte
Husbands {e), Ex parte Monlt(f), Re VanzeUer(ff),
and Ex parte Hinton (A). I lay out of consideration

the

(a) Coohe^t Bankrupt Laws, {e) 2 GL Sf J. 4.

276. (/) Mont. 321 ; MonL^ B. 3&

(b) Ibid. 278. (g) 1 Mont. ^ A 345.

(d) Ibid. 82.

CASES IN CHANCERY.

287

the case of Walker and Wen8ley(a\ for in that case the
bill which was sought to be proved was drawn by one
of the persons interested in the joint adventure^ not
upon all the persons so interested, but upon two only
of those persons who carried on a distinct trade, and
the case was therefore distinguishable, and it wa3 in-
deed distinguished by Lord Eldon upon that ground.

1866.

£x parte

Sir

Isaac Lyon

OoLDimo

and
William

KiNQ.

The double proofs having thus been admitted in some
cases and rejected in others, we might well expect that
the cases, when examined, would present some marked
and clear distinction, which would guide us in deter*
mining the present case ; but, unfortunately, I have not
found it to be so. It is, I think, reasonably clear that
in the early cases the double proof was admitted only
in cases where the creditor had been ignorant of the
connection of the minor firm, or the individual partner
carrying on the distinct trade with the aggregate firm,
and, in this, perhaps, the Court may have proceeded
upon this principle, that, if the creditor contracted with
knowledge of the connection, he should be held to have
contracted, subject to the rule in bankruptcy, that
creditors upon the same estate should stand upon the
same footing. Lord Eldon, I think, seems to have abided
by the distinction on which the early cases proceeded.
I collect this from JEx parte Adam, Re Cooke (i), and
from what his Lordship said in JSr parte Husbands (c),
although in the latter case the double proof was refused
upon the ground, as I understand the case, that P.
Blackburn was a dormant partner in the joint concern,
and that therefore, although the creditor was ignorant
of the partnership, the consequence ordinarily following
upon such ignorance would not ensue, as the creditor

could

(a) 1 Eoff, 441. (f) 2 GL ^ J. 4.

(b) 2 Rote, 36.

288

CASES IN CHANCERY.

1856.

Ex parte

Isaac Lton
goldsmid

and

William

Kino.

could not originally have intended to become a joint
creditor. That case seems to me to have been decided
on the same ground as Ex parte Liddel(a); but then
in Ex parte Moult (b), and from that case downwards,
the question, whether the creditor had notice of the
connection between the aggregate firm and the members
or member of it carrying on the separate trade, seems to
me to have been treated as of no importance; and,
whether there has been notice or not, the double proof
has been rejected.

In this state of the authorities we are, I think, left
somewhat at large upon the point on what principles
the question of double proof in cases of this nature
ought to be decided. My learned brother has, I under-
stand, come to the conclusion that, in all cases, where
there are dealings between trade and trade, whatever
may be the connection of the partners, and whether the
creditor has notice of the connection or not, a double
proof ought to be allowed. I am not prepared to go
that length. I think it would be contrary both to the
early and the later cases to do so. If the mere fact of
the dealing being a trade dealing was sufficient to ground
the double proof, how could the right to such proof
depend upon whether the creditor had notice of the
connection between the partners or not, as it has been
held to do both in the early cases and by Lord Eldon
in Ex parte Husbands ?

If this case be considered to depend on the right of a
creditor to the double proof in cases of dealings in trade
between an aggregate firm and a single member of the
firm, and the question could be decided without re-
ference to the later authorities, I should hold, in con-
formity

(«) 2 Rose, 34.

(6) Mont. 321 ; Mont. 4 B. 38.

CASES IN CHANCERY.

289

formity with the earlier cases, that the right to the
double proof would depend upon whether the creditor
seeking to prove had notice or not of the connection
between the aggregate firm and the individual member
carrying on the separate trade ; but, being called upon
now to decide the question with reference to the later
aathorities, I should say that the decision in Ex parte
Mauli, being of equal authority with our own and
having so long governed the practice in bankruptcy,
I could not venture to disturb it ; that it must be dis-
turbed, if at all, by higher authority, — that of the
House of Lords.

1856.

£x parte

Isaac Lyon
goldsmid

and

William

Kino.

I am not satisfied, however, that this case depends
upon or involves the question of the right of the cre-
ditors to the double proof where the trade dealings are
between the aggregate firm and an individual member
of the firm. In this case there are three partners carry-
ing on one trade, and two of them carrying on a diffe-
rent trade. The surplus of the joint estate of the three
would not go into the estate of the two, but into the
separate estates of each of the three ; and so the surplus
of the joint estate of the two would go into each of
their separate estates, and not into the joint estate of
the three. The creditor therefore proving against each
of the joint estates would stand on no better footing
than other creditors proving against those estates. He
would not contravene the rule in bankruptcy to which
I have referred.

I strongly incline therefore to the opinion, that this
18 a case in which the double proof ought to be allowed ;
but then the case of Ex parte Hinton following on the
case of Ex parte Moult, and resting on its authority, has
decided that there is no distinction to be made upon the
ground of the separate trade being carried on by more

Vol. I. U D.J. than

290
1866.

£x parte

Sir

Isaac Lton

goldsmid

and
William

KiMO.

CASES IN CHANCERY.

than one of the partners of the aggregate firm. I
doubt that point, and even incline against it, but I feel
no doubt that the case has for some years regulated the
practice in bankruptcy ; and I do not feel bold enough
to act in opposition to it. I feel bound to abide by Ex
parte Moult ; and although Ex parte Hintan mighty as
I think, well have been distinguished, the distinction is
narrow, and I cannot venture upon my own single au-
thority to disturb that case. It must, I think, be left
to the House of Lords, if this case shall be carried
there, as I hope it will, to set the matter right and lay
down authoritatively the principles on which such ques-
tions as these are to be decided.

Upon these grounds I feel bound to confirm the
decision of the Commissioner, and this petition must
therefore be dismissed.

In the course of the argument reference was made to
Ex parte Sillitoe and cases of that class, but those
eases seem to me to involve different considerations —
the rights and equities of partners ; and it does not I
think follow that because dealino^s between trade and
trade are necessary to found and may be the foundation
of proofs in such cases they ought therefore to be odade
the foundation of proof in other cases to which different
considerations apply.

I think it right to add, what is injustice due to the
Commissioner, that I feel myself much indebted to him
for the assistance which he has rendered us in this case
in having so carefully collected the authorities.

Of course the dismissal must be without costs.

A special

CASES IN CHANCERY.

291

A special case was prepared with a view to an appeal
to the House of Lords, and on the case coming on to be
settled in Court, the. Lord Justice Turner suggested that
the questions as to the nature of the concordata and of
the application of the Brazilian law to the case, which on
the former argument had been represented as not having
been so fully discussed as was desired, should be spoken
to.

The case was accordingly placed in the paper for that
purpose, and some further evidence was adduced as to
the Brazilian law in an affidavit, which, by arrangement,
was filed in the meantime. It was made by the Bra-
zilian consul, who was an advocate in the Brazils, and
well acquainted with the Brazilian law. It stated in
substance as follows.

According to the said laws of the Brazilian empire,
any matriculated merchant in the Brazils who shall
fail to meet a pecuniary engagement punctually is de-
nominated "fallido." There are three classes of fal-
lidos, viz., accidental, blameable and fraudulent. The
members of the Pemambuco firm were matriculated
merchants, and belonged to the class of accidental
iallidos, with respect to whom the following is the
course of proceeding according to the aforesaid laws.
A fallido must within three days of suspending his
payments give to the Tribunal a balance sheet showing
the state of his afiairs. If from the balance sheet the
fallido appears to be insolvent, the first duty of the
Tribunal is to appoint a member of the Tribunal, who
acts as judge commissary and presides at all proceedings
in bankruptcy, as well as an assignee, who is chosen
fix)m the creditors, whose duty it is at once, in conjunc-
tion with the district judge, to secure the papers and
effects of the fallido, placing the same under seal. The
judge commissary, within three days of his appoint-

U 2 ment,

1856.

292

CASES IN CHANCERY.

1856.

Ex parte

Sir

Isaac Lton

ooldsmid

and

William

King.

ment^ summons a meeting of creditors^ to take place
within six days, when from amongst the creditors a
trustee or trustees is or are chosen by them to take
charge of the property of the bankrupts, in whose
presence the seals are to be broken and inventory
made. The property and effects of a firm, and the
property and effects of each individual member of the
firm, form one common fund for payment of creditors.
At a meeting of creditors appointed by the judge com-
missary (who is one of the commercial members of the
Tribunal appointed for superintending the several forms
to be gone through in the particular insolvency) the
amounts due to the creditors are entered upon. No
distinction is made between creditors of the firm and
the private creditors of the individual partners. At
this or at a subsequent meeting, if adjourned in order
that a committee of creditors may examine the several
balances, one of two courses for the administration of
the estate is determined on by the creditors. The code
gives power to the fallido to propose to his creditors at
this meeting a " concordata." It does not prescribe
what the terms of this " concordata'* shall be. It con-
templates, however, that it will be an arrangement by
which the winding up of the affairs of the fallido will
be entrusted to himself, and his property be restored to
him for that purpose. At this meeting the concordata,
if any be proposed, is accordingly taken into considera-
tion. To be valid it must receive the assent of such a
proportion of creditors as shall represent more than
half the whole number, and two-thirds in value of all
claims which are liable to be ruled by the concordata.
The concordata is to be refused or granted and signed
at this meeting. If there be no objection the judge
commissary ratifies it at once. If there be opposition,
eight days are allowed for lodging embargoes or grounds
of opposition^ which when reported are sent to the Tri-
bunal

CASES IN CHANCERY. 293

bunal for sentence. The concordata when ratified is 1866.

binding on all creditors, as well those present at the „ /^
meeting as those absent. The concordata being no- Sir

tified to the assignee and trustee, they deliver back to Goldbmid
the fallido all the property which they have in charge. and

iuis IS one of the two courses of proceeding for the Kino.
administration of the fallido's estate. The other course
18 this. If no concordata is proposed by the fallido, or
if it be refused, the creditors enter into a '^ contract of
anion," whereby they name one or more persons to be
trustees to administer the estate. These trustees liqui-
date, receive, pay, go to law, sell all the property and
goods, and do all other acts for the benefit of the estate.
After paying all in full, any balance which may remain
is handed to the fallido ; and if the property should not
pay all in full, the judge commissary is (at a certain
meeting convened for passing the accounts of the trus-
tees) to propose to the creditors whether or not the
fallido should receive a quittance. If two-thirds in
number, who shall also represent two-thirds of amount
of claims, agree to give a quittance, this is binding on
all, and the fallido is free from all future claims. His
future property is liable in case he does not get a
quittance.

The aforesaid provisions of the law of the empire of
the Brazik are of recent introduction, and were not
part of the said law before the year 1850, previously
to which period provisions were in force materially dif-
fering from the above.

1857.
The case now came on to be spoken to on the points May.
reserved.

Mr.

Kino.

294 CASES IN CHANCERY.

1857. Mr. Cairns and Mr. De Gex for the Appellants.

Ex i)arte The questions remaining for discussion are these :

Isaac Lyon whether the proceedings under the concordata are ana-
GoLDSMiD logous to an English bankruptcy for the purpose of the
William present dispute, so as to render it proper to apply to the
case the English rule of administration in bankruptcy;
and (which is only a more general form, and includes
the other question), whether the principle of the autho-
rities applies where one bankruptcy is abroad. In con-
sidering these questions it must be borne in mind that
the analogy should be a close one to induce the Court
to apply to the case the English rule of administration,
that rule having been (as has been already stated) dis-
approved of, being unsupported by any sound reason-
ing, and being consequently one which ought not to be
applied except to a case substantially the same as those
to which it has been already applied. It originated in
JSr parte CrotDder(a), was followed by Ex parte Cook (4),
and JEx parte Rowtandson (c), — was subsequently aban-
doned, was then resumed by Lord JRosslyn, and was
afterwards unwillingly and disapprovingly followed by
Lord Eldon, solely on the ground that the rules of
administration in bankruptcy ought not to change with
every change of the custody of the great seal ; Ex parte
Emly (rf). Ex parte Clay {e). Now, is the concordata
analogous to an English bankruptcy ? On looking at
the evidence they appear to be unlike in the very rule
on which the exclusion of double proof depends, viz.,
the rale which confines the joint creditors to the joint
estate, unless in case of a surplus of the separate estate.
The concordata is in fact nothing more than an assign-
ment for the benefit of creditors, and every creditor en-
titled

(a) 2 Vem, 706. {d) 1 Ro9e, 61.

(h) 2 P. WfM, 489. (e) 6 Ve$. 818.

CASES IN CHANCERY.

295

titled under it may be said to have a security for his
debt on the joint estate of the three. This, however,
does not prevent his proving his whole demand against
the joint estate of the two ; Re Plummer (a). The
proposition may be carried further, and it may be
confidently said, that the English rule ought not to
be applied to a case where one of the liquidations is
administered abroad and the other here ; or indeed in a
case of two liquidations in this country, conducted on
different principles ; for instance, in the case of a com-
position deed or of an arrangement under the control of
the Court of Bankruptcy, of such a nature as not to
introduce the rule in bankruptcy as to joint and sepa-
rate estate. In such a case, would not the rule to be
followed be that of Re Plummer rather than that of
£x parte Moult ? If the object of the rule be to pro-
duce equality or fairness, this might be supposed to be
approached if the same rule were applied to the whole
liquidation, but not otherwise. Here, for example, the
assets of the two are in England^ those of the three are
in the Brazils, What approach to equity or to any con-
ceivable principle is there in excluding the creditors of
the three from the assets of the two here, when the cre-
ditors of the two labour under no corresponding exclusion
abroad ? It is giving the creditors of the two an undue
advantage by allowing to them alone a double proof.

Mr. Bacon and Mr. W, D, Griffith for the assignees.

The concordata is strictly analogous to an English
bankruptcy. It is compulsory on the minority who do
not assent to it, and cannot therefore be regarded as a
mere contract, and it is followed by a quittance. It is,
therefore, a judicial insolvency or bankruptcy. The
Brazilian law, as now put in evidence, assists the case

(fl) 2 M., D. Sf D. 204 ; 1 PAi/. 56.

1867.

Ex wie

Isaac Ltoit
golosmip

William

296

CASES IN CHANCERY.

1857.

Ex parte

Sir

Isaac Lyon

goldsmid

and

William

Ring.

of the assignees^ for it appears that the Appellants
there may prove both against the joint and separate
estates. They therefore cannot complain of being re-
mitted to that jurisdiction exclusively, if they elect to
take under it at all. Moreover, by accepting the dividend
under the concordata they must abide by its terms, one
of which is the quittance to the debtors and an aban-
donment consequently of any further demand. The
Appellants have discharged the three and yet seek to
prove against two of them. The creditors of the two
are interested not only in the English but also in the
Brazilian assets, and any surplus would come over to
the separate estates and ultimately to the estate of the,
two, so that the Appellants by taking under the concor-
data may intercept the possible surplus which would
otherwise come to the other estate against which they
seek to prove, and this would be contrary to the prin-
ciple on which double proof is excluded. It is un-
necessary, however, to discuss the question further on
principle, since it is expressly disposed of by JEx parte
Chevalier de Mattos [a).

They also referred to Potter v. Brown (6), Steinman
V. Magntis (c).

Mr. Cairns in reply.

Judgment reserved.

June A. The Lord Justice Turneb.

Notwithstanding the further evidence adduced in this
case, I feel myself compelled to adhere to my original

determination

(a) 1 Mont. 4- A. 345. (c) 11 EoMt, 390.

(6) 5 Eatt, 124.

CASES IN CHANCERY.

297

determination of upholding the judgment of the learned
Commissioner. So far as respects the general rule as
to double proof, the further evidence seems to me to
bring the case more directly within it, for it appears
that the joint and separate estate form one common
fund for the payment of the joint and separate debts,
and the joint creditors, therefore, draw from the sepa-
rate estate ; and so far as respects the exception to the
rule, this is not a case of voluntary composition. If to
be considered at all as a case of composition, it is the
case of a composition made under if not compelled by
the law ; and whatever might be the effect of a com-
position made voluntarily, the case In re Vanzeller {a)
seems to me to decide, that such a composition as this
does not bring the case within the exception to the rule.
We cannot, I think, reverse the decision of the learned
Commissioner without overruling that case ; and look-
ing to the length of time for which it has stood, I feel
myself as much bound by it as by Ex parte Moult and
Ex parte Hinion. Repeating, therefore, the doubts
which I before expressed, and adding that I feel at
least equal doubt as to the case of Re Vanzeller, I abide
by my former opinion. The special case, therefore,
must proceed, but, of course, it must be remodelled
to introduce the facts which the further evidence has
brought before us.

1857.

Ex parte

Sir

Isaac Lton

goldsmid

and

William

Ring.

The special case was then settled, and the appeal to
the House of Lords has been entered.

(a) 1 MojU. «$• A. 345.

298 CASES IN CHANCERY.

1857.

Ex parte WILLIAM NAYLOR ANDERTON.

In the Matter of WILLIAM NAYLOR ANDERTON,

^P^ "• a Bankrupt

Before 'Hie

Lords Jus- fTiHIS WES an appeal by the bankrupt from an order of
A condition ^^' Commissioner Ayrton, dated 4th March, 1857,

annexed to the allowing the Appellant a certificate of the third class, to
ffrant of a cer- , . . - , /• i <•

tificate, that it Commence at the expiration of three years from the date

should not ^f ^j^^ ofjer, with no protection for six months from the

protect the .

property or same date, *' such certificate when allowed to have no

ELp°;S' efi^*:' "" ••«g"<l« the property or person of the bankrupt
respect of a for and in respect of a certain debt of 471/. 55. due from
was dUcha4ed ^^^ bankrupt to Mr. Henry Thompson, of &c."

as being con-
trary to the _^, . , r 1 • 1 1 J t_ m^

policy of the ^he transaction in respect of which the debt to Mr.

A ^'h^th^^** 7%(wn/won was owing was as follows : — The bankrupt,
bankrupt, in who was a commission agent at Hull, and Mr. T^oip-

the debL^^ad ^^* ^^^ ^^ * miller near Driffield, agreed to join in
been guilty of the purchase of a parcel of beans and tares from Konigt-
duct towards" herg. The contract for purchase was, according to an
the creditor, arrangement between them, made in the name of the

bankrupt alone. On receipt of the bill of lading and
invoice, the bankrupt wrote to Mr. Thompson requesting
payment of his half-share of the purchase-money, which
Mr. Thompson accordingly paid, the amount being 4172.
The bankrupt insured the goods in his own name for
900/.

On ^7th December, 1854« the bankrupt borrowed from
Messrs. Binney & Co. the sum of 300/. on the security
of the shipping documents and policy of insurance, which
he accordingly deposited with them, and on 20th Janvr
ary, 1855, he obtained from them the further sum of
150/. on the same security.

CASES IN CHANCERY.

In the latter part of December^ 1854, the vessel in
which the goods had been shipped was reported lost.
This news was afterwards confirmed, and on ^6th Janu-
an/f 1855, the loss was settled with the insurers. The
policy became payable on 26th July, 1855.

On 28th June, 1855, the bankrupt obtained a further
loan of 100/. from Bmney & Co.

On 2nd July, 1855, Mr. Thompson drew on the bank-
rupt a bill for 450Z. (one-half of the money secured by
the policy), payable one month after date, which bill was
accepted by the bankrupt.

A few days before the amount due on the policy be-
came payable, Messrs. Binney advanced to the bankrupt
difierent sums amounting to 304/. 1&. lU., being the
balance of the 900/. secured by the policy, after deduct-
ing the three sums already advanced by them, with
interest, commissions and other charges. The bankrupt
applied this 304/. 18^. \\d. to his own purposes.

The bill drawn by Mr. Thompson on the bankrupt was
dishonoured at maturity, and the bankruptcy took place
shortly afterwards. Mr. Thompson never had given the
bankrupt any authority to pledge the documents, nor was
he aware that they had been pledged till after the dis-
honour of the bill, and he deposed that the bankrupt
had, afler the time when they had in fact been deposited
with Messrs. Binney & Co., stated to him that he had
them in his own possession. This, however, was denied
by the bankrupt.

There was another transaction with Messrs. Binney k
Co., the conduct of the bankrupt as to which was much

commented

299

1857.

£jr parte
Amderton.

In re
Anperton.

300
1857.

Ex porte
Amderton.

In re
Anderton.

CASES IN CHANCERY.

commented upon, but which it does not appear necessary
for the present purpose to notice further.

The explanation which the bankrupt, in his affidavit
filed in support of his petition of appeal, gave of his con-
duct in the above transaction, was, that after accepting
the bill for 450Z. he considered that the policy was his
own property, and that his liability to Mr. Thompson was
only on that bill.

Mr. Amphlett for the bankrupt.

He admitted that he could not defend the bankrupt's
conduct in either of the two transactions complained of,
but contended that the condition as to Mr. TliompsoiCs
debt was in violation of the spirit of the bankrupt laws,
the rule in bankruptcy being to place the creditors of the
bankrupt as far as possible on an equal footing. As to
the annexing conditions to certificates, he referred to Ex
parte Hammond {a), Ex parte Culhaneijb).

Mr. Roxburgh for the Appellant.

The condition was justified by the fact that the bank-
rupt was a trustee for Mr. Thompson as to one-half of the
policy, and had committed a fraudulent breach of trust in
disposing of it so as to make it distributable among his
creditors.

He referred to Ex parte Burghes(c) as an authority
in support of the condition, and further urged that the
order under appeal did not err on the side of severity.

Mr.

(fl) 6 De G., Mac. Sf G. 699. (6) 2 Jur, N. S. 863.

CASES IN CHANCERY.

301

Mr. TT. W. Cooper, for Messrs. Binney, also con-
tended that the sentence was not too severe.

The assignees did not appear.

The Lord Justice Knight Bruce said that he saw
no ground in this case for placing Mr. Thompson in a
position better than that of the other creditors of the
bankrupt He believed that this was also the view of
the Lord Justice Turner, who, however, would state his
own opinion. His Lordship added that he had never
expressed any dissent from the opinion pronounced by
the Lord Justice Turner in Hammond's Case (a) as to
the annexation of conditions to certificates.

1857.

Ex parte
Anderton.

In re
Anderton.

The Lord Justice Turner said that it must be an
extreme case which would justify the placing one creditor
of a bankrupt in a position more advantageous than that
of the rest. The power to annex conditions to a certifi-
cate could not authorize a condition not consistent with
the policy of the bankrupt laws. That policy was to
place the creditors of a bankrupt on an equal footing,
and to discharge a bankrupt, who had obtained his cer-
tificate, from the claims of all his creditors. The present
case was one of gross misconduct on the part of the
bankrupt, but not more so than the common case of a
trustee who sold out a trust fund, applied the proceeds to
his own purposes, and then became bankrupt. His
Lordship did not think that there was anything in the
case to take it out of the general rule. He did not mean
to say that in no case could conditions properly be
annexed to a certificate, but he considered that in the
present case the condition annexed was repugnant to the
policy of the bankrupt laws.

The

(a) 6 De G., Mac. ^ G. 699.

302

CASES IN CHANCERY.

1857.

Ex parte
Andeeton.

In re
Andbrton.

The Court then heard Mr. Amphlett^ in reply^ on the
question whether the sentence of the Commissioner apart
from the condition was sufficiently severe; and after some
discussion their Lordships made an order varying that of
the Commissioner, by suspending the certificate till the
31st of December^ 1860, instead of the 4th of March,
1860, and by striking ont the condition as to Mr. Thomp'
sotCs debt.

The Lord Justice Knight Bruce, at the close of
the case, said that the variation made in the Commis-
sioner's order did not proceed on any view of the merits
of the bankrupt or on any opinion that Mr. Thompson
had not been ill-used, for that their Lordships agreed in
thinking that he had sustained very ill usage at the hands
of the bankrupt*

Ex parte GEORGE TAYLER.
In the Matter of HENRY HOUGHTON, a Bankrupt-

May 25, 27.

June 5.

Before The
Lords Jus-
tices.

The holder of Commissioner Holroyd, restricting a proof to a lest
a bill of ex- amount than that for which the Appellant claimed to be

entitled to prove.

rriHIS was an appeal by the public officer of the
*^ London Joint-Stock Bank from a decision of Mr.

change, who
has received
from the
drawers sums
of money in
part payment
of it, is not
entitled to
prove against
the estate of
the bankrupt
acceptor for
the full amount

The proof tendered was for the full amount payable tm
a bill of exchange drawn by Rogers, Lowry k Co. upon
the bankrupt, and accepted by him. The bank bad on
27 th October J 1854, discounted this bill, which was pay-
able

of the bill, but only for what remains due upon it after deducting all the sums paid in
respect of it by the drawers before the proof is tendered, whether such payments were
made before or after the bankruptcy.

CASES IN CHANCERY.

able to the drawers or their order^ and the bill was duly
indorsed by the drawers to the bank, who were still the
holders of it. The bill became due about the end of
Febrtuaryy 1855, and was dishonoured. There was some
etidence to show that the bill had been accepted for the
accommodation of the drawers.

303
1867.

Ex parte
Tatlbr.

In re
Houghton.

In February J 1855, the drawers made an arrangement
with their creditors for payment of ISs, in the pound on
their debts, bj four instalments, the last of which was
payable in November , 1855.

In September, 1855, Houghton, the acceptor, became
bankrupt The bank received from the composition with
Sogers, Lowry & Co. nearly 15^. in the pound on the
amount due on the bill, by several payments, some of
which were made before and some after the bankruptcy,
but all before the proof was tendered. They then sought
to prove against Houghton's estate for the full amount of
the bill. The Commissioner, on 26th February, 1857,
decided that they were only entitled to prove for what
remained due on the bill, after deducting what they had
received from the estate of the drawers. From this
decision the bank appealed in the name of their public
officer.

Mr. Bacon and Mr. Murray (of the Common Law
Bar) for the Appellant.

We rely on this, that if there were no bankruptcy we
should have a right to obtain judgment at law for the
whole amount of the bill, and the right to prove follows
from this. We do not say that we can receive for our
own purposes a dividend amounting to more than is due
to us, but there is nothing unreasonable in our being
allowed to prove for the whole amount. The drawer of

a bill

CASES IN CHANCEHi.

1857.

Ex parte
Tat L BR.

In re
Houghton.

a bill cannot prove ; the holder proves for the benefit of
both. There are cases where a creditor may prove for a
larger amount than is actually due to him; JEx parte
King (a), Ex parte Crossley{b\ Ex parte De Tastet{e).
It is settled by Jones v. Broadhurst (d), that we could
obtain judgment for the whole sum, and the right to
prove follows. This decision was referred to without
disapprobation in Elsam v. Denny {e) and Eelshaw v.
Eush (/). Ex parte Wyldman {g) decides that the proof
is for the whole sum, unless the part payment has been
made before the bankruptcy ; that exception proceeds on
a ground which has since been abandoned. There is no
such relation between the drawer and acceptor, as to
make the former the agent of the latter to pay; so a
payment by him is no extinguishment ; Walwyn v. St,
Qttentin{h). — [ITie LpRD Justice Turner. Suppose
the drawer is indebted to the acceptor and pays the whole
amount of the bill, is the holder to go in and prove for
the whole amount when the drawer could not prove at
all ?J — In that case the drawer would be entitled to be-
come the holder of the bill, but ours is only a case of
part payment. Ex parte Parr (i) shows that a holder
seeking to prove against an acceptor's estate is not bound
to deduct a security, unless it be a security on the bank-
rupt's estate.

Ex parte Marshall (ft), Ex parte Moult (/), Powles v.
Hargreaves {m), Alsager v. Currie (n), and the cases re-
ferred to in the notes to Ex parte Ryswicke (o) were also

referred to.

Mr.

(a) Cooke' » Bank, Law, 177,
8th ed.
(6) Ibid,

(f) 1 Rose, 10.

(d) 9 C. B. 173.

(e) 23 L. J., C. P., 190.
(/) n C. B. 191.

(g) 2 Fes. fen. 113.

(h) 1 Bo«. 4- P. 652.

(i) 1 Rote, 76.

(k) 1 Atk. 129.

(/) 2 D. 4- C. 419.

(m) 3 De G., Mac. * G. 4?

(n) 12 M, * W, 751.

(o) 2 P. W. 89.

CASES IN CHANCERY,

905

Mr. Daniel and Mr. Aspland for the Assignees.

The settled course in bankruptcy is against this ap-
peal ; Cooper v. Pepys (a), CooMs B, L, 160, Ex 'parte
Leers (6), Ex parte The Royal Bank of Scotland (c),
Bacon v. Searles (d ). Even if the rule were ill founded
it could not be disturbed now after having prevailed from
the time of Lord Hardwicke, Jones v. Broadhurst
turned on the form of the plea, and in Goodwin v. Cre-
mer(e) it was not approved. It is by no means esta-
blished that the holder could obtain judgment for the
whole; and if he could, it does not follow necessarily that
he can prove for the whole, there being rules peculiar to
bankruptcy. If he can prove so as to get a larger divi-
dend than he is entitled to receive, what is to be done
with the excess ? The cases where a holder proves as a
trustee for other parties stand on a different footing.

1867.

Ex parte
Tatlbe.

lure
HououTtlr.

Mr. Bacon in reply.

ITie Lord Justice Knight Bruce

The bill of exchange in question upon this petition June 5,
was drawn by Rogers & Co. upon Mr. Houghton, the
bankrupt, and accepted by him long before his bank-
ruptcy. It was payable to the order of the drawers and
indorsed by them for value to the present Appellant, in
whose hands it was accordingly at its maturity in Febru-^
ary or March, 1856, when it was dishonoured. The
bankruptcy took place some months afterwards, and
under it the Appellant, as indorsee and holder, has been
admitted to prove on the bill, but, as he alleges, not for a

sufficient

(fl) 1 Atk, 107.
(6) 6 Vet. 644
(r) 2 Rofr, 197.

Vol. I.

((/) 1 JI. BL 88.

(f) 22 L. J., Q. B., 30.

D.J.

CASES iK CHANCERY.

1857.

TATiBlU

HbtodarbK.

sufficient amount; insomuch as the learned Commissioner
reduced the proof by the amount of certain sums, which,
in respect and on account of the bill, that is to say, in
part payment of the bill, the drawers or their estate had
paid to the Appellant after the dishonour of the bill, but
before the proof was tendered. That is the dispute here.
Now, it may not assist, but certainly does not damage
the Appellant's claim, to assume, as I do (whatever the
state of the evidence), that if there had been no bank-
ruptcy, the bankrupt, the acceptor of the bill, would have
been^ as between himself and the drawers, the peNon
primarily, as well id substance as in form, liable to pay
it. Still the fact remains that, before the application to
prove under the bankruptcy, the Appellant, the indorsee
and holder of the bill, had, after its maturity and dis-
honour, received fr6m the drawers sums of money on
account of the bill, that is to say, in part payment of it.
According, therefore, to the general rule in bankruptcy —
a rule which, if I may express an opinion upon it, I
think wholesome and rational — the Appellant was, I ap-
prehend, not entitled to prove for more than the amount
remaining unpaid after allowing and deducting the sums
so received — received, I repeat, after the maturity of the
bill, from persons liable to him directly and immediately
on the bill, or ft'om their estate ; nor do I see any ground
for making the present instance an exception, if there can
be an exception, from that general rule : thinking it, as
I do, for present purposes immaterial that the pajrments
made bjr the drawers or their estate were made by them
or their estate merely by reason of their liability to the
Appellant on the bill, and not by way of agency for the
acceptor or for his estate. It is contended by the Ap-
pellant, that if there had been no bankruptcy he could by
law, after having received the sums paid as already men-
tioned, have well brought an action against the bankrupt
for the full amount of the bill, and would have been

entitled

CASES IN CHANCERY.

entitled in the action to recover judgment adversely for
that amount, not diminished by the sums paid. Neither,
however, by any of the authorities cited at the Bar, nor Tatlbe.
otherwise, am I convinced of the accuracy of that position. In re
But whether it is accurate or inaccurate, here there is
bankruptcy, and the course and rule in bankruptcy are,
in my opinion, (as I have said), opposed to the Appellant's
claim of a right of proof for more than the amount which
be has been allowed to prove by the learned Commis-
sioner, whose decision was, I think, in conformity with
precedent alike and principle. The appeal, therefore, in
my judgment, fails. Whether probably I should or
should not have come to the same conclusion had the
Appellant been seeking to prove on the account or for
the benefit of the drawers or their estate, it is unnecessary
for me to say, inasmuch as he is not nor has been seeking
to do so.

The Lord Justice Turner.

This is an appeal from the decision of a learned
Commissioner, refusing to allow the Appellant, the
bolder of a bill of exchange, to prove the full amount of
the bill against the estate of the bankrupt, the acceptor
of the bill ; the Appellant, the holder, having, before the
proof tendered, received payments in respect of the bill
from other parties liable upon it, and otherwise. The
learned Commissioner was of opinion that the Appellant
was entitled to prove only for what was due to him at the
time of the proof. This decision is in conformity with
the settled practice in bankruptcy, and I see no reason
whatever in this case to disturb that practice. The
argument in support of the appeal was this— that had
the bankrupt acceptor continued solvent, the Appellant
would, according to some recent decisions at law, have
been entitled to recover against him the full amount of

X2 the

808

CASES IN CHANCEKV.

1857.

£r parte
Tatlbr.

In re
HouoBTOir.

the bill, notwithstanding the payments which had been
made by other parties in respect of it, and that the right
to prove in bankruptcy follows the right to recover at
law.

Upon the question, whether, had the bankrupt con-
tinued solvent, the Appellant could have recovered at
law the full amount of the bill, I do not mean to give any
opinion. I assume, for the purposes of this case, that
he could, but I do not think it therefore follows that he
is entitled to prove for the full amount of the bill, for the
right to prove in bankruptcy does not in all cases follow
the right to recover at law. A voluntary bond may be
recovered upon at law, but there can be no proof in
bankruptcy upon it. A mortgagee of the bankrupt's
estate could recover at law upon the covenant in the
mortgage deed the full amount of the mortgage money,
but in bankruptcy the security must be realized, and the
proof is only for the deficiency. The Appellant's argu-
ment, indeed, if followed out to its legitimate conse-
quences, seems to me to amount to this — that there is a
right to prove in bankruptcy, not merely for what is due
to the creditor, but for what is due from the bankrupt;
but if this was the case, upon what ground was it, that,
before the statutes enabling sureties to prove. Courts of
Equity restrained the creditor from suing the surety until
proof had been made against the principal? I cannot
agree, therefore, to disturb the settled practice in bank-
ruptcy upon any such grounds as have been urged in
support of this appeal.

It may possibly be difficult to say upon what ground
the rule in bankruptcy was thus settled. It may have
been upon the ground that all creditors in bankruptcy
stand upon an equal footing; for it is difficult to see how,
consistently with that rule, the Appellant's claim could

CASES IN CHANCERY. 809

be supported; but whether this be the foundation of the 1857.

rule or not, the rule is settled, and the grounds which, ^''^^>r>^

in this case, are brought forward to disturb it are un- Tayler.

sound ; and I am of opinion, therefore, that this petition In re

must be dismissed, and dismissed with costs. hououton.

Ex parte HENRY BUNNY.

In the Matter of HENRY BUNNY, a Bankrupt. j^^ 3 j^

npHIS was a petition by the bankrupt, a solicitor of Before The
Newbury, JBerks, to annul the adjudication, on the ^ticbs.''*"
grounds — 1. That the petition for adjudication was not A trader's re-
in the form prescribed by the statute. 2. That no act of XoJd^with
bankruptcy had been committed within twelve months intent to de-
before adjudication. 3. That there was no good peti- h^gcreditowfii,
tioner*8 debt. 4. That the petitioner was not a trader under the 67th

,. - , - , , section of the

liable to become bankrupt. Bankrupt Law

Consolidation
Act, a continu-

The petitioner left England^ with his family, on 9th ing act of
November^ 1853, in insolvent circumstances and heavily ^^^I^thllp his
indebted, and went to New Zealand. His creditors had S^^^g abroad
full notice of his departure soon after it took place, for a an act of bank-
meeting of them was called in the same month. ^^w^'

On therefore, a
trader went
abroad with intent to delay his creditors, so that his departure was an act of bank-
ruptcy, and remained abroad with the same intent, ana a petition for adjudication
was filed more than twelve months afler his leaving England: — Heldf that as he had,
within twelve months before the filing of the petition, been remaining abroad, with
intent to delay his creditors, the adjudication was not invalidated by sect. 88 of the
act.

An action brought by a bankrupt in a British Colony, in which action he disputes
the validity of the adjudication, is a proceeding which, under the 2d3rd section of the
Act, will keep alive his right to dispute the a^udication.

The Court refused to annul an adjudication on the ground of the objection that
the bankrupt, having gone abroad, had not, within six months before the petition for
adjudication was presented, either resided or traded within the district of the Court
in which it was filed, so that the petition could not be in the form prescribed by the
89th sect, of the Baukrupt Law Consolidation Act.

910

CASES IN CHANCERY,

1857.

Ex parte

fiuMMT.

Ill re

BUKMT.

On 12th March, 1855, a petition for adjudication was
presented, and Mr. Bunny was on the same day adjudged
a bankrupt. The petition stated that the bankrupt had
** carried on business for three years and upwards next
immediately preceding the day of November, 1853,

within the district of this Honourable Court, that is to
say, at Newbury aforesaid ;" not following, as of course
it could not follow, the form prescribed by Schedule (M)
to the Bankrupt Law Consolidation Act, which runs,
** having resided [or carried on business, as the case may
be'] for six calendar months next preceding the date of
this petition within the district" &c. The affidavits in
support of the act of bankruptcy were to the effect that
the bankrupt had left England in November, 1853,
secretly, being heavily indebted, and had never returned.

On 6th October, 1855, a person acting under the au-
thority of the assignees took possession of the bank-
rupt's property in New Zealand. On Ist February, 1856,
the bankrupt commenced an action of trespass against
him in the Supreme Court of New Zealand, giving due
notice of his intention to dispute the act of bankruptcy,
the trading, and the petitioning creditor's debt. The
Supreme Court decided that it had no jurisdiction to try
the validity of the adjudication. The bankrupt appealed
to her Majesty in Council. The appeal came on to be
heard before the Judicial Committee on 16th June, 1857,
and was ordered to stand over that the bankrupt might
have an opportunity of taking proceedings to annul the
adjudication.

The questions, whether the bankrupt had ever been a
trader, and whether there was a good petitioning credir
tor's debt, turned only on the effect of conflicting evi-
dence, and need not be further alluded to.

Mr.

CASES IN CHANCERY. ?U

Mr. Doria for the bankrupt. 1857.

The petition for adjudication is not, and could not be, Exparu
in the form which the 89th section of the Act positively Burnt.
require^. It is clear, from that and the 90tb section, ^^J^j
that the legislature contemplated there having b^n Jm/vS.
(either trading or residence within the district within si^
months before the petition. Hi?re both had ce^e4 sixr
teen months before. There are no authorities oo the
point, except decisions by the Commissiopers, which ^ure
in my fiivour ; lie Pearse (a). Anon. (&) and Ife Irwin (p).
I submit that an adjudication c^not be supported uiiless
there has been either trading or residence wit^iin thie
district within six months previously. The provision of
the 88th section as to acjts of bankruptcy furnisb/ss aa
analogy in my favour.

Their Lordships, without calling on the other sid^f
declined to annul the adjudication on this ground without
the opinion of a Court of Law, but offered the bankrupit
ievery facility for trying the question diere. The argu-
ment on the .other points was adjourned to enable tb^e
bankrupt to answer affidavits.

Mr. Doria appeared for the bankrupt My 18.

Mr- Swanston and Mr. Haniien, for tife assigpeies,
took a preliminary objection, that the bankrupt was pre-
cluded, by the ^3rd section of the Act, from now dia*
puting the adjudication, having allowed more thaQ twelve
months to elapse since the advertisement of the ban^*
ruptcy. In support of this they argued as follows :—

The

BURITT.

S12 CASES IN CHANCERY.

1857. The bankrupt contends that he is saved from the

^!^r^^^ operation of this section by his action in New Zealand^
BuMNT. hut we submit that only an English proceeding will have
Inrt the required effect. — \^The Lord Justice Knight
Bruce. It might be arguable that the action would not
have saved his right had he brought it, for instance, in
JapaUy but he brought it in one of her Majesty's Courts,
a proper court, in the circumstances, for the purpose.] —
The periods of limitation fixed by the ^3rd section, show
that it could not be intended to speak of an action on the
spot, which the bankrupt might bring at once. — [The
Lord Justice Turner. Those periods might be in-
tended to allow time for the intelligence to reach him.
Suppose a person is resident in the North of Indioy and
cannot commence a proceeding in England within the
period, is he to remain a bankrupt?] — That may be a
hardship, but the provisions of the Act must be obeyed,
even should they produce hardship; Ex parte ThoT'
old {a). — [Tlie Lord Justice Turner. There is no
doubt of that, but it is a legitimate argument against a
particular construction of doubtful words, that it would
lead to hardship.] — An action abroad would be a most
unsatisfactory mode of trying the validity of an English
bankruptcy, for the law of a colony may be, and gene-
rally is, different from English law, and in trying the
action the Colonial law must be followed even by the
Judicial Committee; Clark v, Mullick{b). The 159tb
section shows that the Act intended to deal only with
English actions. We do not contend that the bankrupt is
not entitled to the benefit of the section, as regards his
action in New Zealand, but we say that he cannot have
the benefit of a New Zealand action for the purpose of
annulling an English fiat. British Linen Company v.

Drummond

(fl) 3 A/., D. i De G. 285. (6) 3 Moo. P. C. C. 252, 278.

CASES IN CHANCERY. 818

Dntmmondia), Davison v. Farmer (b\ Mostyn v. Fab- 1857,

Tiqua8(c)y Leroux v. Brown (d), show the principles by ^^^

which the case must be governed. Burnt.

In re

The Lord Justice Knight Bkuce.

I am surprised at the time which has been occupied in
this discussion. The objection is untenable, and the
bankrupt must, of course, be heard upon the merits.

The Lord Justice Turner.
I am of the same opinion.

Mr. JDoria.

The adjudication is bad under the 88th section, there
having been no act of bankruptcy within twelve months
before the filing the petition. The bankrupt went abroad
with intent to delay his creditors, and the act of bank*
ruptcy was committed then. I submit that the provision
as to continuing abroad does not apply here ; it was not
contained in 6 Geo. 4, c. 16, and was introduced into the
present Act to meet a difficulty which had arisen under
the former. Under that Act, if a trader went abroad
without any intention to defeat or delay his creditors, he
might stay abroad for that purpose without committing
an act of bankruptcy. I submit that the new provision
was intended only to supply this defect, and to apply
only to those cases in which the going abroad took place
under such circumstances as not to be an act of bank-
ruptcy. The act of bankruptcy, I submit, is complete
as soon as there is absence abroad with an intention to
delay creditors, and the statute does not create such a

thing

(a) 10 B. 4- Cr. 903. (f) I Smith, Lead. Ca, 528.

(6) 6 Exch. 242. (d) 12 C. B. 801.

BUMMT.

314

1857.

Ex parte

BUWHT.

In re
ByVNT.

CASES IN CHANCERY.

thing as a continuing act of bankruptcy. A similar
point arose on the 69th section in Wallace v. Blach^
well(a)y and it was decided that no new act of bank*
ruptcy was committed by lying in prison after the twenty-
one days. — [^The Lord Justice Turner. There are,
in the 69th section, no words applicable to continuance
in prison.] — The words are " lie in prison/* which are
words of continuance, and the statute does not refer to
any time at which the act shall be deemed to have been
committed. Under the terms of the 90th section, the
petition for adjudication cannot be prosecuted, for the
Court is not the Court within the district of which the
bankrupt resided or carried on business for six months
next immediately before the filing of the petition.

The bankrupt's going abroad wa9 well known to the
creditors, who ought to show some reason why they did
not take proceedings in bankruptcy at an earlier period ;
Niaa v. Davis (b), Ex parte Paxton (c).

Mr. Swanston and Mr* Hannen, for the assignees,
were not called upon.

The Lord Justice Knight Bruce.

Whether the opinion which I am about to express is
consistent with the decision in Wallace v. BlackweU, J
need not say. If it is, then that case is not touched by
what we do; if inconsistent, then with the utmost re-
spect for the able Judges who decided that case, my
opinion remains. It appears to me, that the words ''or
being out of this realm shall remain abroad,'* are appU-
cable, with whatever intent the debtor left the realm, jl

(fl) 3 Drew. 538. (6) 4 C. B. 444.

(r) 15 Ves, 462.

CASES IN CHANCERY. 816

am of opinion that, whether he left it with an intention 1857.

to delay creditors or not, whether the departure was so Z^^"^^^^

circumstanced as to be, or not to be, an act of bank- 3unnt.
ruptcy, still an act of bankruptcy may have been com- f" re
mitted by remaining abroad.

The circumstances in which Mr. Bunny left England
being considered, did he stay abroad " with intent to
defeat or delay his creditors?'' I cannot, as a judge of
fact, decide otherwise than in the affirmative. I think
that such was his continuing intention during the whole
of his stay in New Zealand^ or during as much of it as
is material for the present purpose, and I think that
during that period an act of bankruptcy must be deemed
to have been committed by him on every day. I am,
therefore, of opinion, that the 88th section of the Act
has no effect.

The 67th and 88th sections are within the same
division of the statute, and, taking the two together, I
cannot attribute to the Legislature an intention that the
remaining abroad should not be an act of bankruptcy in
such a case as the present. I do not think any of the
reasons urged sufficient to induce the Court to annul the
adjudication, but I am willing that the power of bringing
an action to dispute its validity should be expressly left
to the bankrupt.

The Lord Justice Turner.

It does not appear to me that Wallace v. Blackwell
reaches the present case. That case depended on the
69th section, which contains no words applicable to an
indefinite continuance in prison. This case rests on the
67th section, in which we find the words, " or being out
of this realm shall remain abroad."

I think

816 CASES IN CHANCERY.

1857. I think that the true construction of this section is,

ZT"^^ that its clauses are to be read separately^ taking each of

BuNNT. them in connection with the final clause; and if we so

In re read the section, the part of it which is applicable to the

present case will run thus: — " If any trader liable to

become bankrupt, being out of this realm, shall remain

abroad with intent to defeat or delay bis creditors, be

shall be deemed to have thereby committed an act of

bankruptcy."

On the question of fact, I am of opinion, that Mr.
Sunny did remain abroad with intent to defeat or delay
his creditors, and I think that there was a continuing
act of bankruptcy while he continued to remain abroad
with that intent.

The bankrupt wishing to try the validity of the adju-
dication by an action, the petition was ordered to stand
over, with liberty to him to bring such action as he might
be advised. On the 23rd of July, however, the case
was mentioned again, and the bankrupt declining to bring
an action, the petition was dismissed.

CASES IN CHANCERY, 317

1857.

Ex parte THOMAS RYDER.
In the Matter of THOMAS RYDER, a Bankrupt.

July 3, 17, 18.
npHIS was an appeal by the bankrupt Thomas Ryder Before The

"*- from a decision of Mr. Commissioner Holroyd ^^^^^ •'"•-

•^ TICE8.

refusing him a certificate, on the ground, among other 'pj^^ bai^ins
reasons, that he had brought himself within the enact- >" stock,

though they

roent contained in the 20l8t clause of the Bankrupt Law ™«y be ••««».
Consolidation Act as to gaming or wagering. J"^,?'' JT^^[l

meaning of the

The bankrupt had carried on business in rather a large ^y^^ ^ j^g

way as an East India merchant, and was adjudged relating to

bankrupt on 8th Aprils 1856. The acts held by the wagers, are not

Commissioner to be gaming or wagering were the fol- ^ within the

. meaning of the

lowing dealings in consols and Turkish scrip. 20lst section

of the Bank-
rupt Law Con-
In the year 1854, the bankrupt was prevailed upon by solidation Act.

a broker to speculate in consols, and made five pur- f^^ ii^^^ ^i^^

chases for the account, the stock not being actually de- '^ct of a bank-

livered or intended to be delivered in any of the cases, lost on several

but the contracts being wound up, as is usual in stock- <^c>«on8 by

" * time bargains

jobbing transactions, by payment of the differences, in consols and
The total amount for which the bankrupt had made more'tLn 2^^^
himself liable on these transactions was between 6,000/. in a day, did
and 7,000/., but the total loss was only 140/. They incumbent on
were all concluded more than twelve months before the ^^® Court to

, , refuse him a

bankruptcy. certificate,

though such

transactions

On 22nA August^ 1855, the bankrupt bought 1,000/. were blame-

Turkish scrip for the settlement. The scrip was not de- \^^ *"g ^\^
livered nor intended to be so, and in September^ at the nad to them
time of settlement, the price having fallen, the bankrupt ^joq of certi-

paid ficate.

318

CASES IN CHANCERY.

1857.

Ex parte
Ryder.

In rt
Rtder.

paid 35L 12s. 6d, for continuation to the next account,
and by that time^ a further fall having taken place, the
matter was settled by the bankrupt paying the differ-
ence, amounting to 46/. 5s., so that there was on each
occasion a loss of more than ^l. in one day.

The Commissioner held that the above losses were
losses by ** gaming or wagering*' within the meaning of
the 201 St section (a), and that he was, therefore, bound
to refuse the certificate altogether. He also commented
with some severity on the bankrupt's reckless trading,
and on a misrepresentation alleged to have been made
to a Mr. Warner^ one of the principal creditors and now
the creditors* assignee, in order to procure credit from
him. Into these points, however, it is not Uiought
necessary to enter.

Mr. Selwyn and Mr. Hamilton Humphreys for the
bankrupt contended, that time bargains were not ''gam-
ing or wagering** within the meaning of the SOlst sec-
tion. Ex parte Wade (b) ; and that if they were not,
there was no pretence for saying that the bankrupt had
brought himself within the section. Such transactions
might be considered as partaking of the nature of gaming
or wagering, but were not properly described by either of

those

(a) *' That no bankrupt shall
be entitled to a certificate of con-
formity under this Act, and any
such certificate, if allowed, shall
be void, if such bankrupt shall
have lost by any sort of gaming
or wagering in one day 20/., or
within one year next preceding
the issuing of the fiat or filing of
the petition for adjudication of
bankruptcy, 200/. — or if he shall
within one year next preceding
the issuing of the fiat or the filing

of such petition have lost 2Q0L
by any contract for the purchase
or sale of any Government or
other stock, where such contrmet
was not to be performed witbio
one week after the contract, or
where the stock bought or sold
was not actually transferred or
delivered in pursuance of such
contract— or," &c. &c. (the rest
of the section has no bearing
upon the present question).
(6) 2 Jur., N. 5., 218.

CASES IN CHANCERY.

those words, and the meaning of the expressions in a
highly penal clause ought not to be extended. It was
moreover manifest that the Legislature did not consider
time bargains to be included in the enactments as to
gaming or wagering, for in the subsequent part of the
section was a separate provision relating to time bargains
which would be mere surplusage if they were so in-
cluded.

dl9

1857.

Ej parte
Rtder.

In re
Rtdbr.

Mr. Swanston and Mr. JS. D. Holroyd for the as*
signees, after commenting on the bankrupt's reckless
trading, and on the alleged misrepresentation to Mr.
Wmmer^ which they submitted was established by the
evidence, proceeded to contend that the transactions in
emsols and Turkish scrip were '^ gaming or wagering"
vnthin the SO 1st section. It had been decided in Grise^
wood V. Blanc (a), that they were so within the meaning
of the statute 8 & 9 Vict. c. 109, s. 18, relating to wagers,
and the same construction ought to be given to the same
words in the present Act. The specific mention of time
bargains in a later part of the section could not be held
to abridge the effect of the general words in the former
part, Andree v. Fletcher (6). In Ex parte Capehmd (c),
Lord Cranworth had extrajudicially expressed an opinion
that transactions of this nature were gaming or wagering
within the meaning of this section. The Act ought to
be construed so as to suppress the mischief and advance
the remedy.

Mr. Selivyn replied.

ITie Lord Justice Knight Bruce.

The main question argued in this case has been,

whether the bankrupt has brought himself within the

201st

(fl) U C. B. 538. (6) 2T.R.\6l.

320

CASES IN CHANCERY.

1857.

Ex parte
Ryder.

In re
Ryder.

201st section of the Bankrupt Law Consolidation Act.
It is plain that he has not, unless under the words
" gaming or wagering/' It is also plain that there has
been no gaming or wagering, unless acts of stock-jobbing
in Turkish scrip and English consols amount to gaming
or wagering for the present purpose. Now it may be
and probably is true, that conduct of that kind may be
in some sense correctly described as gaming or wager-
ing ; but the question here is, whether it is so within the
meaning of this section ; and, in my opinion, by the con-
text, and principally the latter part of the section, all
difficulty on this point is removed. I am satisfied, on
reading the whole of the section together, that the words
"gaming or wagering", found in it do not extend to
transactions of this nature — that however improper the
acts may have been, they do not bring the bankrupt
within this part of the section, nor make it incumbent on
the Court to refuse the certificate. The more so — as if
the bankrupt has been guilty of certain conduct, the cer-
tificate, if granted, will not protect him. As therefore,
to use the expression most unfavourable to the bankrupt,
we have great doubts whether his case is within the
section, we consider that we shall be acting in accord-
ance with principle and authority in deciding for the
certificate, so far as the jurisdiction that we are exercis-
ing and this part of the case are concerned.

There remains the consideration of the general con-
duct of the bankrupt, and here we may well look at
those acts which have been contended to be acts of
gaming or wagering. I agree that the transactions were
small ; the bankrupt may have been tempted into them,
and he may deserve the commendation which Mr. Selwyn
gives him for abstaining from further pursuing such a
line of conduct. It appears, however, that in 1851 he
became or was insolvent, and compounded with bis cre-
ditors

CASES IN CHANCERY.

S21

ditors for 2s. in the pound. He recommenced business
with no capital, or with borrowed capital, and failed
again, early in 1856, for not less than 17,0002. The
amount and nature of his trading transactions appear to
me, considering his recent failure and his slender means, to
have exceeded what was proper. For his small capital,
or no capital, his trading was too large and too adven-
turous. In my opinion, however, no case of fraud,
falsehood or dishonesty has been established against him;
and, in the circumstances, we think that the demands of
public and private justice will be satisBed by a suspen-
sion of the certiBcate for a period of two years from the
adjudication : the certiBcate, when granted, to be of the
second class. We have re-considered the question of
protection, and we think that we may, without impro-
priety, grant it from 1st September next.

1857.

Er parte
Rtder.

In re
Rtder.

The Lord Justice Turner.

I give no opinion on the question whether time bar-
gains constitute gaming or wagering within the meaning
of the statutes upon that subject. The question we have
to decide is, whether they constitute gaming or wagering
within the meaning of the SO 1st section of the Bankrupt
Law Consolidation Act. I am of opinion that they do
not, and for this reason:— The Brst part of the 201st
section contains two divisions, one relating to gaming
and wagering, the other expressly including time bar-
gains in stock ; and if the Legislature had considered
time bargains in stock to come within the words '' gaming
or wagering," it would not have mentioned them in
terms in the second division of the Brst part of the sec-
tion. Had I felt more doubt upon the point than I do,
I should still have considered it right, so far as this part
of the case is concerned, to grant the certiBcate valeat
quantum.

Vol. I.

D.J.

322

CASES IN CHANCERY.

1867.

SHUTTLEWORTH v. HERNAMAN.

Jtt/y 27.
Before The rpHIS was a special case* stated for the opinion of the

^TKEs."*" Lords Justices by the desire of Mr. Commissioner

The rent of a Stevenson.
cotton mill
was made

payable half By indenture dated 3 1st October ^ 1845, the Plaintiffs
Tance*^ and the d^^^'^ed a cotton mill at Chorley, with the steam en-
tenant cove- gine and fixtures, to Robert Wallwork and James WalU
the landlord worhy for sixteen years from 12th November then next,
to keep in the ^t the rent of 848/., payable half-yearly, on the 12th

mil macnmery .

of the value of May and 12th November in each year, the first half-

curity foTther y^^""')^ payment to be made on 12th November then
rent The next, and all subsequent half-yearly payments to be

lessee became

bankrupt, no similarly made in advance. Among other covenants
Th' *^ffi"w?"** ^" ^^® P^*"^ ^^ ^^^ lessees was the following : — " And

assignee im-
mediately
entered, and
claimed to be
entitled to
remove the
machinery
before the next
instalment of
rent became
due, which
claim the
landlord re-
listed, on the
ground that
the covenant
gave him a

also (in order that there may be sufficient security on
the premises for the payment of the said rent) that they
the said Robert Wallwork and James Wallwork^ their
executors and administrators and such assigns as here-
inafter mentioned, shall and will at all times during the
said term, except the last three months thereof, at their
own costs and charges keep upon the said demised pre-
mises proper machinery for carrying on the business of
cotton spinning, such machinery to be at all times during
the said term, except as aforesaid, of the full value of
3,000Z. at the least." The lease contained a proviso for
lien on the re-entry in the event of any half-yearly payment of rent

machmery : — i • . j * r j

Held, that the being m arrear for twenty-one days, or of either of the

provUion as to j

reputed owner- »«»«;»»

ihip applied, and that the assignee was entitled to remove the machinery.

CASES IN CHANCERY.

lessees becoming bankrupt, and on other events which
it is not necessary to specify.

James Wallwork survived Robert Wallwork, and con-
tinued in possession till 30th April, 1857, when he was
adjudged bankrupt. The Defendant Hernaman was
appointed official assignee of his estate. No rent was
due at the time of the bankruptcy.

328

1857.

Shuttle-
worth

Hernaman.

The Defendant forthwith entered upon the mill, and
claimed the right of removing the machinery before
12tb May, so as to avoid a distress for rent, having
obtained an order from the district court of bankruptcy
for the sale of it. The Plaintiffs determined to file a
bill for an injunction, but to avoid more expensive pro-
ceedings it was arranged that this case should be sub«
mitted to the Court of Appeal.

Mr. Prendergast for the Plaintiffs.

The lessors say, that neither the bankrupt nor the
official assignee had any right to remove machinery
without leaving so much as should be of the value of
3,000Z. [2%« Lord Justice Knight Bruce asked whe-
ther the lease had been determined by the bankruptcy,
a point as to which there was no allegation in the case.
No positive answer to this question could be obtained
and the argument proceeded on the assumption that the
lease was continuing on 12th May, 1857.] The lessors
continued to have a qualified right of property in the
machinery. The only ground on which their claims
can be resisted is the law as to reputed ownership.
IThe Lord Justice Knight Bruce. Has it ever been
decided how far effect is to be given in bankruptcy to a
covenant to consume upon a farm all the hay grown
upon it ?] That point, which is very analogous to the

Y 2 present.

324 CASES IN CHANCERY.

1857. present, was discussed in Collins v. Plumb {a), but not
decided. I submit that this is not a case where the
doctrine of reputed ownership can apply. The case
HsRNAMAir ^^^^ resembles that of letting furnished lodgings ; it
could not there be contended that the furniture goes to
the assignees of the lodger. JSx parte Barclay^ In re
Gawan (b)y assists us. In this case there was no ficti-
tious credit by the possession of the machinery, and
such possession was not absolute ; there was a qualified
possession by the landlord.

Mr. Bacon and Mr. Smethurst for the assignees.

Ex parte Barclay has nothing to do with the present
case, which relates only to moveable machinery, not to
fixtures. The lease was not registered as a bill of sale,
and yet it is sought to give it the eflfect of one. If there
had been a bill of sale the chattels would clearly have
been within the rule as to reputed ownership, and it
would entirely defeat the policy of the bankrupt laws
on that point if it were to be held that, although a
mortgage of this machinery would have been invalid
against the assignee in bankruptcy, a lien upon it by
means of a covenant is eflfectual against him.

Hickenhotham v. Groves (c) was referred to.
Mr. Prendergast, in reply.

The Lord Justice Knight Bruce.

On the question of reputed ownership I think the
assignee right. The true owner in this case within the

meaning

(fl) 16 Ves. 454. (c) 2 Car. ^ P. 492.

(b) 5 De G., AT. ^ G. 403.

CASES IN CHANCERY.

223

meaning of the act is the landlord, who claims a sort of
lien on the goods, and there is, I fear, no doubt that
they were in the order and disposition of the bankrupt
with the landlord's consent.

1867.

Shuttle-
worth

Hern AM A IT.

The Lord Justice Turner.

To give effect to the landlord's claim in this case
would, in my opinion, defeat the policy of the Bank-
rupt Law Consolidation Act. If a mortgage of these
chattels had been made to the landlord to secure his
rent, the case would have been within the words of the
act. Here there was no actual mortgage, but an attempt
to create a lien by means of a covenant in the lease.
As the letter of the act is against a mortgage, so I
think its spirit is against a lien like this. I do not
mean these observations to extend to any case in which
it is shown that it is the custom of the neighbourhood
to insert such covenants as this in leases of factories ;
where such a custom prevails the possession of the
machinery by the tenant may not be prirn^ facie evi-
dence of unincumbered ownership.

326

CASES IN CHANCERY.

1857.

THE CROMFORD AND HIGH PEAK RAIL-
WAY COMPANY

3^ y^ THE STOCKPORT, DISLEY AND WHALEY
LoBM JoiH BRIDGE RAILWAY COMPANY.

TICE8.

It is not impe- rilHIS was an appeal from an Order of the Master of the

rative on the
Court to en-
force by inter-
locutory in-
junction a sta-
tutory prohi-
bition, and
where a rail-

Rolls (made upon a motion) granting an injuncticm.

By an Act of Parliament passed in the year 1825| the
Plaintiffs were incorporated and empowered to make a
railway or tram road, to be called the Cramford and

way company ffigf^ p^^k Railway,
were about to "^ ^

violate a clause

By another Act passed in the year 1854, intituled
"The Stockport^ Disley and Whaley Bridge Railway
Act, 1845," the Defendants were incorporated for the
purpose of making a railway, to commence by a juncUoa
with tlie London and North Western Railway, in the
parish of Cheadle, and to terminate at Whaley Bridge.

in their Act
expressly pro-
hibiting the
opening of a
main line un-
til a junction
line was
opened, but
which ap-
peared to have
been intro-
duced merely
for the pur-
pose of oblig-
ing the com-
pany to com-
plete speedily
the junction
line, the
Court, on an

In the year 1855, the Plaintiffs obtained an Act,
intituled " The Cromford and High Peak Railway Act,
1855," to alter and extend the line of the Cromford and
High Peak Railway. By the 54th section of this Act
the Plaintiffs were authorized to make an extension
or new line of railway. By the 74th section, after

undertaking

being given to reciting that a bill had been introduced into Parlia-
iunc?ion^ine ™cnt to enable the Defendants to make an extension
with all practi- from their Railway to the Plaintiffs' railway, and that

cable dilifirence

suspended an ' ^^^ ^^^^ of such extension was identical, or nearly so,
interlocutory ^j^j^ ^jjg extension or new line of railway between the

injunction "^

granted by the same

ourt below to restrain the opening of the main line.

CASES IN CHANCERY.

8snr

same points thereby authorized, and that it was expe-
dient that one line only should be formed for the joint
purposes of the two Companies, it was enacted, that if the
said bill should pass into law in the then present session,
the Plaintiffs should not make any portion of their ex-
tension, unless the Defendants should fail to purchase,
within three years from the passing of " The Stockpartj
Disley and Whaley Bridge Railway Act, 1854'," the
lands requisite for the completion of such extension, or
should fail to complete such extension within four years
from the passing of such last-mentioned Act, or at such
earlier period as the Defendants might open for traffic
the Sioekportf Disley and Whaley Bridge Railway.
By the 75th section of the Act now in statement, the
Plaintiffs were empowered to contribute such sums as
might be authorized by the above-mentioned bill then
before Parliament towards the construction of the De-
fendants* undertaking.

In the same Session of Parliament the Defendants
obtained an Act, intituled '' The Stockport^ Disley and
Wludey Bridge Railway Act, 1855," whereby they were
empowered to make a junction between their line and
the Cromford and High Peak Railway. By the lOlh
section of this Act, the works thereby authorized were
to be completed within four years from the passing of
** The Stockport, Disley and Whaley Bridge Railway
Act, 1854."

1857.

The

CRoicroRD and

High Peak

Railway

Company

The

Stockport,

DisLBY, Are.

Railway

Company.

By the 12th section (which was that on which the
question immediately turned), it was enacted that the
Stockport, Disley and Whaley Bridge Railway should
not be opened for public traffic until the junction rail-
way should be completed and ready for traffic. By the
18th section it was enacted, that the Plaintiffs should

contribute

828

CASES IN CHANCERY.

1857.

The

Cromford and

HioH Peak

Railway

Company

The
Stockport,

D18LEY, &C.

Railway

COMPAMY.

contribute towards the general undertaking of the De*
fendantSy the Stockport, DisUy and Whaley Bridge
Railway Company , the sum of 3,750/., and that shares
in the last-mentioned Company of that aggregate amount
should be allotted to the Plaintifis accordingly.

Notwithstanding the prohibition contained in the ISth
section of their Act, the Defendants were about to open
their main line without having completed the junction
linei and, according to the affidavits in support of the
original motion for an injunction, the progress of the
junction line had been so slow, that it was doubtful
when it would be completed and ready for traffic. In
the meantime the traffic on the Plaintiffs' railway had no
access to the Defendants' railway.

The sum of 3,750/., which by the last-mentioned Act
was directed to be contributed by the Plaintiffs to the
Defendants' undertaking, had been duly paid by the
Plaintifii.

The Plaintifis thereupon filed the bill in the present
suit, which, besides stating to the above effect, stated as
evidence of the intention on the part of the Defendants
to open the main line in defiance of the Act, that they
had recently had the Inspector of the Board of Trade
to inspect the main line, for the purpose of reporting
that it was fit for traffic, and had given general publicity
to the fact, that it was to be opened without delay ; and
further, that they had already made arrangements with
the London and North Western Railway Company to
find rolling stock and work the line, and that the engines
and carriages of the last-mentioned company had already
been over the same.

The

CASES IN CHANCERY. 829

The bill also stated, that the Plaintiffs had been 1857.

always apprehensive of undue delay on the part of the ^^^i^^

Defendants in the completion of the junction, and that CRoicFORDand

it had been to prevent such delay that the 12th sec- ^°^ ^^^^

tion was, at the suggestion of the Plaintiffs, introduced Compamt

into the last-mentioned Act The bill further stated, r^^

that in addition to the sum of 3,750/. contributed by Stockport,

the Plaintiffs towards the Defendants' undertaking, the Railway '

Plaintiffs had expended, and were then expending, large Compamt.
sums of money in improving their own line, in anticipa-
tion of the increased traffic which would arise firom the
opening of the junction, a great portion of which would
be unproductive until such junction was completed.

The prayer was, that the Defendants might be re-
strained by injunction from opening or using the railway
by " The Stockport^ Disley and WhaUy Bridge Railway
Act, 1854," authorized to be made, or any part thereof,
for public traffic until the junction railway should be
completed and ready for traffic.

The Master of the Rolls held, that as the provision
was imperative, and the Plaintiffs were interested in its
enforcement, the Court had no alternative but to grant
the injunction, which his Honor accordingly did.

Mr Selivyn and Mr. Townsend, in support of the
appeal.

The decision in the Mayor of Liverpool v. The
Charley Waterworks Company (a), shows that the Court
vrill not interfere by injunction to restrain a violation of
the provisions of an Act of Parliament at the suit of
Plaintiffs, who do not show that any serious injury will
arise to themselves from the proceeding sought to be

restrained,
(a) 2 De G., Mac, 4- G. 852.

S30

CASES IN CHANCERY.

1857.

Tbe

Cromfobd and

High Peak

Railway

COMPAMT

Tb«
Stockport,

DiBLBT, &c.

Railway
comfajit.

restrained. The Master of the Rolls thought the pre-
sent case distinguishable from that of the Charley
Waterworks Company, in the circumstance that here the
Act contains a positive prohibition, whereas in the other
case there was a mere want of authority, and his Honor
considered that the Court had not, in the present case^
any option, but was bound to grant an injunction. We
submit that the distinction is not sustainable, and that in
no case is it imperative on the Court to grant an interlo-
cutory injunction at the suit of private Plaintiffs, not
having sufficient interest to call for the interposition of the
Court The case of an information would be different
All the interest which the Plaintiffs allege is, that if the
Defendants do not make the junction before a certain
time, the Plaintiffs may make it themselves. But the
opening of the Defendants' main line cannot injure tbe
Plaintiffs. The only object of the provision which they
seek to enforce, was to induce the Defendants to cohh
plete the junction line before a time which has not yet
arrived, and before which the junction line may be
finished, and it is the non-completion of the junction
line by that time, and not the earlier opening of the
Defendants' main line, which could injure the Plain*
tiffs. The Defendants have, in fact, been able to
complete their main line sooner than was expected, and
why should not the public have the benefit of it, if no
public or private interest is injured by it being opened
for traffic?

They also referred to Attorney- General ▼. Tlte EaeUm
Counties Railway Company (a), Elmhir^ v. Spencer (h),
Browne v. The Monmouthshire Railway and Canal
Company (c), IHinyworth v. The Manchester RaUwsy
Company {d),

Mr.

(a) 3 RailtD. Ca. 337.
(6) 2 Mac, 4- Gor. 45.

(0 13 Beav. 32.

(d) 2 RaUw. Ca. 187.

CASES IN CHANCERY.

S81

Mr. Amphlett, for the Plaintiffs.

The clause^ from the violation of which we seek pro-
tection, is expressly prohibitory, and altogether different
from the provision in the Chorley Waterworks Case,
which merely pointed out one mode of construction
of a watercourse, which the Defendants were about to
construct in another. The clause now in question was
introduced into the Act at the instance of the Plaintiffs,
and as the only effectual means of protecting the Plain-
tiffs' interest. The Plaintiffs have paid a valuable con-
sideration, viz. 30,000/., for this statutory contract, and
they are shareholders in the Defendants' Company ; it is
therefore altogether impossible to deny that they have an
interest in the enforcement of the clause, in which re-
spect also the case differs entirely from the Chorley
Waterworks Case. — [The Lord Justice Knight
Bruce. In their character of shareholders in the De-
fendants' Company, can they obtain, without the con-
currence of any other shareholders, an injunction, the
effect of which will be to diminish the dividends of that
Company ? Possibly the Defendants may be liable to
indictment, or might be unable to recover toll or fare, but
are they subject to an interlocutory injunction at the
Plaintiffs' suit?] — The clause must, at least, be of the
same force as an agreement for a valuable consideration
would be, and in the case of an agreement the Court
would interpose by injunction.

1867.

The

CaoMFORoand

HioB Peas

Railway

Company

Tb«

Stockport,

DiBLBT, fire

Railway

COMPAMT.

He referred to Oldaker v. Hunt (a), Dichenson v.
Orand Junction Railway Company (ft), Carlisle v. The
South'JEastem Railway Company (c).

The

{a) 6 De G., Mac. ^ G, 376. (b) 15 Beav. 260.

S82

CASES IN CHANCERY.

1857.

The

CROMFORDand

High Peak

Railway

Company

The
Stockport,

DiSLBY, &C.

Railway
Company.

The Lord Justice Knioht Bruce.

The difficulties in the way of this suit are perhaps in-
surmountable— perhaps not — as to which I give no
opinion. I assume the suit to be unobjectionable with
respect to the interest of the Plaintiffi(, and with respect
to parties. Still the question remains, whether this is a
case for an interlocutory injunction, and it appears to me
that if the Defendants are willing to enter into an under-
taking to use all practicable diligence to complete the
branch railway, the best thing for both the Plaintiffs and
the Defendants will be to suspend the injunction for a
short period. The order which we propose to make,
without prejudice to any question, is this — the Defend-
ants undertaking to use all practicable diligence to com-
plete the railway, — suspend the injunction till the 29th of
July ; the motion to stand over till that day without
prejudice.

7%€ Lord Justice Turner concurred.

The undertaking was given, and the injunction sus-
pended ; and the suit was (it is believed) compromised.

CASES IN CHANCERY. S33

1857.

In the Matter of the Trusts of the Will of ELIZABETH

WOODBURN, and of the 10 & 11 VICT. c. 96. ^ay 8, 22.

rriHIS was an appeal by William Cooper from an Before The

Order of the Master of the Rolls, so far as it tices.

ordered him to pay the costs of a petition presented by Ma^ 29.

the cestuis que trustent, for payment out of Court of a Before The

fiind which he had paid in under 10 & 11 VicL c. 96 cellok and

(The Trustee Relief Act). ^^^^ ^^'^''»

' Justices.

The Court has

Elizabeth Woodbum, the wife of Thomas Woodburn, fif ft^ustee
by will dated 9th January, 1802, and made under a to pay the costs
power in her marriage settlement, appointed real and tjo^ for pay-
personal estate to trustees, upon trust for her husband "J®"^* ^"^ ®^

Court of 8

for life, and after his death in trust to sell, to pay certain fund paid in
legacies, and to invest the residue, and pay the income v ^J,"* ^^^^^
thereof to Thomas Tvdor for life, and divide the capital Relief Act,

equally among his children living at his death. ^ gg *^'*

A trustee of a
small trust fund

The testatrix and her husband died in 1820. One of which bad be-

the trustees alone proved the will, sold the real and per- ^^\\^^ up^„ '

sonal estate, and invested the residue. In 1836 his sur- *^® claimants

n 1 1 P 1 • 1 > • ^^^ proof of

vivmg executnx transferred the fund into the joint names their title.

of herself and the Appellant, who, however, was never ^*!®y procured

duly which, though
not tech nicely
eomplete, was tolerably satisfactory, and he declared himself ready to pay the fund
to them. Afterwards, without assigning any reason, he receded from this determina-
tion, and the matter, which had been conducted on his behalf by his country solicitors,
was placed in the hands of his London agents, who made various objections to the
iufiiciency of the evidence. The claimants produced additional evidence, and re-
quested to know what more the trustee required, and offered to produce it. The
trustee however, without waiting for its production, paid the money mto Court. The
applicants petitioned for payment of the fund to them, and made out their title to the
satisfaction of the Court : — Heldf that, under the circumstances, the trustee had been
properly ordered to pay the costs of the petition.

SS4 CASES IN CHANCERY.

1857. duly appointed trustee. The fund as it stood at the time

^"^^^^^ of the commencement of the present disputes consisted of

Woodburn's 531/. 0^. 7d., New £3 per cent. Bank Annuities. The

^'^^* executrix died in 1853, leaving the Appellant de facto

sole trustee.

Thomas Tudor, the tenant for life, died in April, 1856,
and the Petitioners William Tudor and Elizabeth Tudor
then applied to the Appellant to pay the fund to them in
equal shares, as being the only children of Thomas TStdar
living at his death. This application was made to the
Appellant through Messrs. Cooper & BroughaU, his
solicitors. One of the members of this firm was a son of
the Appellant.

Upon this application being made, proof waa required
of the title of the claimants. William Ihidor stated tluit
his father had had seven other children, who had died in
his lifetime, and he gave their names. On the Srd of
May two persons, who professed to have been well ac*
quainted with the family, wrote to Cooper & JBraughaU,
stating the claimants to be the persons entitled ; but in
this letter Elizabeth Tudor was called Elizabeth Phillips.
Shortly afterwards William Tudor informed Cooper &
Broughall that his father and mother were married and
their children baptized at Shrewsbury, and requested them
to procure the proper certificates. Cooper 8c JBroughaU
accordingly procured certificates of the marriage of Tho*
mas Tudor, and of the baptisms of eight of his children,
but that of ^nn Tudor, one of his daughters, could not
be found. Her burial certificate, however, was procured
along with those of the six other deceased children.

On 18th July, Cooper & Broughall wrote to WUUam
Tudor, stating that what remained was to find out where
Ann Tudor was baptized, and they shortly afterwards
wrote to Elizabeth Tudor on the same point. In the

letters

CASES IN CHANCERY. 885

letters which passed between them and her on this ques- 1857.

tion she was addressed and she answered by the name of ^-^^^^^^

Elizaheth Phillips. Woodburn'i

Will.

Matters stood thus in the month of September, 1856.
The claimants then placed the business in the hands of
Mr. Suckling, a solicitor at Birmingham, who raised a
question whether the 531/. Qs. Id. was the whole of the
trust fund. A correspondence ensued between Mr. Suck-
ling and Cooper & Broughall on this point ; and in the
course of this correspondence Cooper & Broughall fur-
nished Mr. Suckling with the certificates which they had
procured, with a view to their being referred to in a de-
claration which they required, and they named the per-
sons to make the declaration. On 16th October, how-
ever, without the declaration having been furnished, they
wrote to Mr. Suckling that they should be prepared to
pay to the claimants the 531/. 0^. Id. after the expiration
of fourteen days from their or his acceptance of the ofier

On 21st October, Mr. Suckling wrote a letter, by
which he agreed to take the 531/. 0$. Id., and the divi-
dends upon it, if paid at once and without further trouble,
and he requested to be furnished with the release.

The fund was thereupon sold out, and Cooper &
Broughall prepared a draft release. In this draft

JSUzabeth Tudor was made a party as the wife of

PhUKps. William Tudor then, on 11th November,
stated to Cooper & Broughall that she had never been
married, but had gone by the name of Phillips in conse-
quence of her having lived many years with a family of
that name. Cooper & Broughall then forwarded the draft
release to Mr. Suckling, with a letter dated 13th Novem-
ber, stating that on receiving it back approved they would
arrange to meet in Birmingham to pay the money ; and

Mr.

336 CASES IN CHANCERY.

1857. Mr. Broughall at the same time wrote to William Tudor ^
stating that he should be in Birmingham on the next

22^
Woodburn's Monday or Tuesday ^ when he hoped the business would

Will. be settled.

On 15th November Mr. Suckling returned the draft
release approved, and appointed the next Tuesday for
the completion of the business; but on the 17th Mr.
Broughall wrote that the matter could not be settled on
that day, as Mr. Cooper^ who had attended to the busi-
ness, was from home. In answer to this letter Mr. Suehr
ling complained of the disappointment, and threatened an
application to the Court of Queen's Bench against Mr.
Cooper the trustee. Mr. Broughall thereupon wrote to
Mr. Suckling to the effect that his letter had been com-
municated to the trustee, and that he bad determined,
after the threat which had been made, to pay the money
into the Court of Chancery under the Trustee Acts. Mr.
Suckling protested against this, and the money therefore
was not then paid in. Some further correspondence
ensued between Cooper & Broughall and Mr. Suckling,
in the course of which no reference was made to any
defect in the evidence, nor was any reason assigned for
departing from the resolution expressed in the letter of
13th November.

This further correspondence having led to no result.
Cooper & Broughall, about the middle of Becemher^
1856, placed the matter in the hands of their London
agents, who commenced a correspondence with Mr. Such-
ling by again suggesting the difficulty arising out of the
question whether Elizabeth Tudor had ever been mar-
ried, and by requiring evidence that the claimants were the
only children of Thomas Tudor living at his death. Mr.
Suckling, in reply, referred to the investigation already
made by Cooper & Broughall of the title of the claim-

EDtS

CASES IN CHANCERY. SS7

anls, and to the fact of the release having been sent for 1857.
approval, and went on to say that the only further evi- ^-^n-^^
dence which could possibly be required was a declaration Woodburn's
by Elizabeth Tudor that she had never been married, Will.
which she was and always had been willing to give, and
be added that this need not delay the payment of the
other share. Mr. Broughall then wrote to say that
Counsel had advised that the money should be paid into
Courtyand that the draft affidavit had been prepared, but
that Mr. Cooper, the trustee, was desirous to save the
parties the expense of this, and would attend to any fur-
ther evidence. This was the position of the case at the
end of the year 1856. On 31st December in that year,
the London agents wrote to Mr. Suckling, pointing out
that, although the certificates had been obtained, no evi-
dence had been produced as to the identity of the parties,
nor as to whether or not Elizabeth Tudor had ever been
married. In consequence of this letter Mr. Suckling, on
the 5th and 6th of January, 1857, forwarded to the Lon-
don agents several declarations ; and in a letter of the
5lh of January, after stating that he presumed they
would be satisfied with them, he added that he saw no
occasion for going to the expense of a declaration from
Mrs. Morris (a lady acquainted with the family, whose
declaration had been prepared though not made), but
that if insisted on it should be obtained ; and in his letter
of 6th January he wrote as follows : — ** I am not aware
that anything further can be required for completing the
claimants* title to the fund in question, but if there is /
shall be glad to be informed what it is by return of post;
and if there is not, I shall expect an early appointment to
divide the fund."

On the 7th of January the London agents wrote in
answer that they did not think the evidence quite satis-
factory in the absence of any explanation as to E. Tudor

Vol. I. Z D.J. being

888 CASES IN CHANCERY.

1857. being called Phillips, but would write by that day's post

^"^^T*^ to their clients, whose final instructions they hoped to

Woodburn's receive by return of post. They also stated that their

"'*•• clients had not the certificate of Thomas Tudor*s burial.

On the following day, 8th January^ an affidavit was
sworn by William Cooper preparatory to paying the
money into Court. This affidavit set out the history of
the trust at great length, and stated that the deponent
believed that the claimants were two of the children of
Thomas Tudor who survived him, but that the deponent
had been unable to ascertain whether Elizabeth Phillips^
otherwise Elizabeth Tudor, was a married woman or not,
or who her husband was ; and that the deponent had
been informed and believed that Thomas Tudor had in
his lifetime several other children, and that the deponent
was unable to ascertain whether any of his other children
survived him. These were stated to be the difficulties
which induced the deponent to pay the fund into Court.

On the same 8th January^ 1857, Mr. Suckling wrote
to the London agents further explaining the reason of
Elizabeth Tudor having been called by the name of
Phillips, and offering to procure the certificate of Tlumas
Tudor*s burial if required, suggesting, however, that it
had already been procured, and that the death was
affirmed by the declarations.

In reply to this letter the London agents wrote on the
9th January, that the evidence was anything but satis-
factory ; that the declarations did not identify the parties
named in the certificates, and that, as to EUzabeik
Tudor's share, there was no explanation of her having
been called Phillips in the first communication made to
Cooper & BroughalL

CASES IN CHANCERY. 339

**h January the money was paid into Court, 1857.
23/. 175. for costs. Formal notice havinff v-^^^^^
he money having been so paid in, the Woodbubn's
d a petition praying that the fund Will.
them, and that W, Cooper might be
ihe costs of the application. The Master
.6 considered that the title of the Petitioners
ae out ; that the conduct of the trustee had been
utious and oppressive; that the Court had jurisdiction
^nder the Act to order him to pay costs, and that the
^case was one in which he ought to pay them. His
Honor accordingly made an order for payment of the
iund to the petitioners, and ordered the costs of the ap-
plication to be paid by the trustee.

The trustee appealed from this order.

Mr. Lloyd and Mr. Toller appeared for the Appellant
1)efore the Lords Justices, and contended that the cir-
cumstances did not justify the ordering the trustee to pay
costs; and that if they did, the Court had no jurisdiction
to make such an order against him. Their Lordships
thought the latter question one which had better be heard
by the full Court, and directed the argument on the
present occasion to be confined to the question whether
the order was right upon the merits, supposing the Court
to have jurisdiction to make it.

Mr. Lloyd and Mr. Toller then proceeded to argue
that the trustee had not acted vexatiously or oppressively,
but with a prudent regard for his own safety ; that he
had at first entered into the applicants* evidence with a
▼lew to save them the expense of having recourse to the
Court ; and that if it were to be held that this obliged
him to go on and distribute the fund at his own risk,
when the evidence proved to be complicated and unsatis-

Z 2 factory,

310 CASES IN CHANCERY.

factory, it would be necessary in every case to advise a
trustee to pay money into Court, without looking at all
into the evidence %ihich the claimants might adduce.

Mr. Raundell Palmer and Mr. Shapter, for the Re-
spondents, were not called upon.

The Lord Justice Knioht Bruce.

In my opinion this is a case of oppression. Some
persons in humble life were entitled in reversion, ex-
pectant on a life interest, to a small amount of stock in
the funds, under 600/. Tlie life interest having deter-
mined in Aprils 1856, they applied for the fund to the
gentleman who had, without sufiScient authority, but
doubtless with no improper intention, become the trustee
of the stock. It is now ascertained, and was in effect
conceded by the counsel for that gentleman, who is the
Appellant, that they were the persons in fact entitled.
They were called on for proof of their title, and tbey fur-
nished proof, which, in my opinion, was satisfactory, and
ought to have satisfied any reasonable mind. If it was
not deemed satisfactory by the trustee, some specific
statement of what further evidence he wished should haTe
been given. Nothing of the kind however was done. A
correspondence of almost unexampled length ensued as
to this small sum. At one time, indeed, the trustee pro-
fessed himself nearly satisfied, as he well might be, that
these were the real persons entitled. The dispute, how-
ever, goes on, becomes inflamed, and on one side
naturally so; for, (though the display of temper on the
part of the claimants is to be regretted, as it could do no
good,) if ever a dinplay of temi)er was excusable it was so
heroi whrrt> nuch frivolous and flimsy objections were
raised. I do not say why raised. I do not say that it
was bccuuno the trustee had been a solicitor, and then

acted

CASES IN CHANCERY. 3*1

acted by a son who was a solicitor. With motives I drs- 1857.
claim having here anything to do, but I must say that, if
the distribution of trust funds under like circumstances Woodburn's
were uniformly to be attended with such difficulties as '*'''*

these, the creation of reversionary trusts in small pro-
perties would be almost a curse^ To leave a fund of
modest amount to children afler a life interest would
almost ensure its confiscation, and if the argument of the
Appellant were to succeed, that would be tlie result or
nearly the result here.

After a long and costly investigation and a great
amount of trouble required and taken, and after the
trustee had expressed himself nearly satisfied, a kmg
affidavit waa made and the fund paid into Court A
petition presented by the claimants for the payment of
the fund to them asked — and, if there was jurisdiction,
reasonably asked — that the trustee should pay the costs
of it. The petition was heard by the Master of the
Rolls, who was satisfied that he had jurisdiction, and
directed that the trustee should pay the costs. If there
was jurisdiction to do this, I am of opinion that a more
rigbteoQs order, or one much more likely to be useful,
has never been made. If there is not jurisdiction then it
is a case in which the trustee ought to have no costs,
except what he has deducted from the fund before paying
it in; and if there is jurisdiction the appeal ought to be
dismissed with costs. A question, however, as to the
jurisdiction has been raised, and as, whether difficult or
not, it is of importance, and if decided in one way may
render an amending act necessary or expedient, these
considerations have induced my learned brother and
myself to resolve on asking the Lord Chancellor to hear
the case with us. We shall only ask him to hear it on
the question of the jurisdiction to order the trustee to

pay

lie

Woodburm'i
Will.

842 CASES IN CHANCERY. •

1857. pay the costs of the original petition, and as to our jurit-
diction to dismiss the appeal petition with costs.

The Lord Justice Turner.

On the question, whether there is jurisdiction to make
such an order as that made by the Master of the Rolls,
1 do not give any opinion. That question is proper for
the consideration of the Lord Chancellor, as it may in-
volve the necessity of legislation. On the merits I en-
tertain no doubt. I cannot agree with the argument of
Mr. Toller, that the question is whether the trustee ought
to have been satisfied with the evidence adduced, though
1 think he ought to have been so satisfied. The ques-
tion, in my opinion, is, whether he was justified, under
the circumstances, in paying the money into Court with-
out waiting for further evidence, if he required it On the
IGth October, 1856, after an investigation by the solicitor
of the trustee as to the state of the family to a certain
extent, which 1 assume to have been insufficient, though
I am not satisfied that it was so, he ofiers to pay the
money to these two parties. It is said that this offer
had reference only to the amount of the fund be was
willing to pay, but I cannot so understand it. Thu
letter was followed by a letter of 21st October, 185^
accepting the oflTer. A draft release was sent by the
Appellant's solicitor on the 30th October, which was in*
tended to be executed by the two parties, one of whom

was described as the wife of Phillips, A question was

raised whether she was married, and on 24th December a
declaration was otTered that she never had been married.
Then, from the ^rd of December to the 10th o{ January,
a corre$|vondenco is carried on day by day, and on the
5th of January the solicitor of the claimants ofiers an
aflUdavit of Mrs. Mmris, if required. A statement had
been before made by M t//iam Tudor, one of the claim-
ants,

CASES IN CHANCERY. 848

anUi that Mrs. Morris could make a declaration as to 1857.
the state of the family, and a declaration had been pre- ^^^^^^
pared, but not yet made by her. The solicitor of the Woodburn'i
Appellant in one of his letters states that he had it, but Will.
that is evidently a mistake. However, there was a dis-
tinct offer that it should be made if required. Notwith-
standing this, on the 8th January, only three days after-
wards, an affidavit is made, and on the l^th January the
fund is paid into Court. I think that, under the circum-
stances of this case, it was the duty of the trustee, if he
thought the evidence insufficient, to wait and see what
was the effect of the further evidence, and if not satisfied
with it to make a definite requisition as to what more he
required. 1 am of opinion, therefore, that the order of
the Master of the Rolls was right, if he had jurisdiction
to make it, and that if there be such jurisdiction, the
appeal ought to be dismissed with costs.

The question of jurisdiction now came on to be argued May 29.
before the full Court.

Mr. Lloyd and Mr. Toller for the Appellant.

The preamble of the Act shows that the security of
trust funds was one great object of it ; with that view it
encourages trustees to pay money into Court. It does
not say that they may pay it in in cases of difficulty, but
whenever they are desirous of doing so; Mitchell v.
Cobb {a). It is not, therefore, probable that the legisla-
ture intended that they should ever be liable to costs
for paying it in.— [77ie Lord Justice Knight Bruce.
Every party has by law liberty to institute a suit, but
he may have to pay the costs of it.] — Every body knows

that
(<i) 17 Luw Timts, 25.

S4* CASES IN CHANCERY.

1857. that if he institutes a suit he makes himself liable to

^"^Jf^*^ costs ; but here the Act tells a trustee that he may pay
■lie

Woodburn'i money into Court, and does not tell him that he may be
*^^' liable to costs for doing so.

This is not a case falling within the ordinary jurisdic-
tion of the Court. The Act gives the Court a new
power of dealing with the fund by a new mode of pro-
cedure. This power can be exercised only within the
limits imposed upon it by the Act. Now the second
section confines the power of the Court to dealing wkh
the fundy and gives it no jurisdiction to act in per-
sonam. We admit that it authorizes giving costs out of
the fund, but we submit that it evidently does not coo-
template a personal order for costs against trustees.
This view is fortified by looking at the practice of the
Court in suits; the Court hardly ever makes a trustee
pay costs when the fund is safe, and it is natural that
the legislature should not give jurisdiction to make him
pay costs under this Act, where the fund, by the nature
of the case, always is safe.

The authorities in analogous cases are in our favour.
In JEr parte Proctors (a), Lord TTiwrhw held, that he
had no jurisdiction to order payment of the costs of a
petition for guardians and maintenance. — [7%e Lord
Justice Turner. The trustees are not before the Court
on such petitions. — The Lord Chancellor. Orders of
that kind appoint a guardian, and only give him an au-
thority which enables him to give a discharge for money
to the trustees ]— [Mr. Roundell Palmer here referred to
Re Bloyes' Trusts (J).] — Then the same has been held
in other cases of a summary jurisdiction conferred by

statute ;

(«) Dick, 634. 3 H. L. Ca, 607, sub mm, Lewa

{b) 1 Mac. 4 G. 488, affirmed v. liUlman.

CASES IN CHANCERY. 845

statute; In re t/ie Masters^ ^c. of the Bedford Cha- 1857.
riiy (a), Ex parte Bright ^ re Clark (i).— [Mr. Boundell ^^^^T^

^_ _ __ M\9

Palmer here referred to Ex parte Norton{c).] — The Woodburn'i
same waa held in the case of Re Isaac (d), under the Will.
statute 6 AnnCf c. 18, for the production of a cestui que
vie. — [The Lor]> Justice Turner. Under that Act
orders are not made by the Court sitting as the Court of
Chancery. Here the funds are to be disposed of by
order of the Court of Chancery.] — ^Not by the Court
sitting in the exercise of its ordinary jurisdiction. — [The
Lord Justice Turner. Looking at the wording of
the first section, is it not a reasonable construction of
the Act that funds, when paid in, are subject to the ordi-
nary jurisdiction ?] — Again, it has been held, that under
railway acts the Court cannot give costs, unless expressly
authoriaed by the act to do so; Ex parte Molyneux(e)^
Re Strachan's Estate (f).

The cases under the present statute are on the whole
in our favour; In re Sharpens Trustees (g), Re Staples' s
Settlement {h). In Re Bartholomew's WilHi), it was
contended that residuary legatees ought not to have their
costs out of the fund in Court ; but the Vice-Chancellor
held that he had no jurisdiction under the Act to provide
for them in any other way, and gave them out of the
fund* — [The Lord Chancellor. There the Court had
no other fund under its control.] — No ; but in a suit for
the same purpose the Court could have ordered the
trustees to pay them out of the residue. In Re War^
ing (A), an attempt was made to obtain an order for trus-
tees to pay costs, but it did not succeed. Re Heming's

Trust

(«) 2 5iri 470, 532. (/) 9 Bure^ 185.

{b) 2GLSfJ. 79. (g) 15 Sim. 470.

(d) 4 Af. 4- C. 11. (i) 13 Jur. 380.

(e) 2 ColL 273. {k) 16 Jur. 652.

346 CASES IN CHANCERY.

1867. Trust (a), is an express authority in our favour. In the
P^ case of Bloyes Trusty the party ordered to pay costs had

Woodburn'i presented the petition and so submitted to the jurisdic-
tion ; moreover, the question of jurisdiction was never
argued. The trustees are before the Court for no pur-
pose but to give information. By paying the money into
Court they cannot be held to do more than submit them-
selves to the special jurisdiction created by the Act, not
to the general jurisdiction of the Court. That the juris-
diction under the Act is limited is shown by the general
orders made under it, for they provide for a number of
things which it would be unnecessary to mention if the
ordinary jurisdiction applied. There is nothing in the
Act from which it can be inferred that it was intended to
give the Court power as to costs. The Trustee Act,
1850, provides distinctly for costs ; here there is not a
word about them.— [jTAe Lord Justice Turner. Is
not an order that a trustee shall pay costs an order in
respect of the trust monies ? If that be so, you do not
want words referring to costs.] — We submit it is not an
order in respect of the trust fund; being a personal order,
and there is not a single clause in the Act which cannot
have full meaning given to its words without holding it
to touch the present question. Re Primrose's Settle-
ment (fi), was a case under the Trustee Act, in which the
Court refused to assume jurisdiction as to costs beyond
what was given in terms. — [The Lord Chancellor.
That was a case in which a stranger was served with the
petition ; what jurisdiction could there be to make him
pay costs unless the Act in terms gave it? — The Lord
Justice Knight Bruce here put the case of a disputed
title to the fund.]— That would not occasion any diffi-
culty. So far as regards a petitioner, the Court must
have jurisdiction to dismiss with costs any ill-founded-
petition.

(a) 3 K.^J. 40. (6) 5 Weekly Rtp. 608.

CASES IN CHANCERY- S47

petition. As to a Respondent, we submit that in that case 1857.
the Court can do no more than not give him costs. Be Z

this as it may, that does not touch the case of a trustee Woodbuen's
who has done no more than what the Act has in terms Will.
told him he may do. The Act evidently intended to en*
courage payment into Court, and it is for the advan-
tage of society that a trustee should feel that he may
make such payment without risk.

Mr. Roundell Palmer and Mr. Shapter, for the Re-
spondents, were not called upon.

77i€ Lord Chancellor.

In this case the trustee of a certain fund availed him-
self of the provisions of the Act for better securing trust
fiinds, and for the relief of trustees, to pay money into
the Court of Chancery and discharge himself of the
trusts. He might have filed a bill praying to have the
accounts taken, which would have been his only course
before the passing of the Act to which I have referred.
He did not do so, but availed himself of the statute. He
bad a right to take this course, but he took it in circum-
stances which, as it must on the present occasion be
assumed, made it right that he should be ordered to pay
the costs of taking the fund out of Court, supposing the
Court to have jurisdiction to make such an order against
him. Notwithstanding the elaborate arguments of Mr.
Uoyd and Mr. Toller^ I concur with the Master of the
Rolls in thinking that the Court has such a jurisdiction.

The 2nd section of the statute enacts, ^* That such
orders as shall seem fit shall be from time to time made
by the High Court of Chancery in respect of the trust
monies stocks or securities so paid in transferred and
deposited as aforesaid, and for the investment and pay-
ment

34fl CASES IN CHANCERY.

1857. ment of any such monies^ or of any dividends or interest

^'^^^^^ on any such stocks or securities^ and for the transfer and

Woodburm's delivery out of any such stocks and securities, and for

^li*^ the administration of any such trusts generally, upon a
petition to be presented in a summary way to the Lord
Chancellor or the Master of the Rolls, without bill, by
such party or parties as to the Court shall appear to be
competent and necessary in that behalf, and service of
such petition shall be made upon such person or persons
as the Court shall see fit and direct y and every order
made upon any such petition shall have the same aotho-
rity and effect, and shall be enforced and subject to re-
hearing and appeal, in the same manner as if the same
had been made in a suit regularly instituted in the
Court."

The order of the Master of the Rolls directs the dis-
tribution of the fund in a manner, the particulars of which
are not material for the present purpose, but it also goes
on to order the trustee to pay the costs of the applica-
tion ; and the question is, whether the section to which I
have referred, gives jurisdiction to make such an order.

How would the matter have stood before the passing
of the Act? It cannot be seriously disputed, that if the
trustee had filed a bill the Court would have had juris-
diction to make him pay the costs of the suit. A trustee
is in general entitled to his costs out of the fund, but if
he has misconducted himself the Court often refuses him
his costs. The case of his being ordered to pay costs ia
more rare, but there is no doubt that the Court has juris-
diction to make such an order.

Now what was the object of the Act? It was this —
that without the formality and expense of a proceeding
by bin trustees might pay money into Court, and the

Court

CASES IN CHANCERY. 340

Court make all such orders with respect to it as should 1857.
be just. This, in the strict sense of the words, is an ^

order *' in respect of the trust monies ;" but even if those Woodbuen's
words had not been found in the statute, I think that on Will.
general principles the Court must have the power (which,
as the Lord Justice Knight Bruce has observed, is a
necessary incident to a contentious jurisdiction) to order
payment of costs. If this be not so, and if the words of
the statute do no't authorize orders as to the payment of
coats by parties, what is to be done with respect to pay-
ment of costs by one claimant of the fund to another ?
If the words of the statute do not apply to the present
case it does not appear to me that they can apply to
that.

As to the authorities which have been referred to, I
am of opinion that they do not oblige us to decide this
contention in favour of the Appellant Re Isaac was a
case under the statute 6 Anne, c. 18, which enables a
reversioner, whose interest is expectant on an estate de-
pending on a life, to have the cestui que vie produced.
This is done through the medium of the Court of Chan-
cery, to which the Act gives power to make orders for
iuch production. It was held, in that case, that the
jurisdiction thus created was a special jurisdiction, and
that the Court could do no more under it than what the
Act in terms gave it power to do. I need not consider
that case at length. I think that it was rightly decided,
and went on the ground that the jurisdiction was a spe-
cial jurisdiction, not given to the Court of Chancery as
such, but given to the holder of the Great Seal as a
persona designata, in the same way as it might have been
given to the Lord Mayor, though the expression " the
Court of Chancery" occurs in the Act. The case in
bankruptcy, JSx parte Bright, re Clarh (a), went on a

similar
(fl) 2 G. * J. 79.

360 CASES IN CHANCERY.

1857. similar ground. The Lord Justice Knight Bruce ap-

^^^'^ pears to think that decision wrong, and I believe other

WooDBURN*s Judges have said the same, but I need not inquire

Will. whether it was right or wrong, for if right it must be on
the above ground. The Bedford Charity due oc-
curred under what I must take to be a private Act, which
empowered the trustees to apply to the Lord Chancellor
for directions, and empowered him to give them, and
directed the costs to be paid out of the rents of the
charity estate. A petition was presented by persons
claiming to be entitled to the benefit of the charity,
asking the Court to make a particular declaration as to
its objects ; and Lord Eldon having intimated a strong
opinion that he had no jurisdiction to make an order
upon this petition, another was presented by the trustees,
upon which Lord Eldon made a declaration, and all that
he decided as to costs was, that the trustees would take
their costs under the Act without. any order, and that he
had no jurisdiction to give costs to the parties who had
presented the former petition upon which he had no
jurisdiction to make any order. He held that the Act
created a special jurisdiction enabling him to tell the
trustees what they were to do, but not enabling him to
do more. The case of Re Heming^s Trust (a\ before
Vice-Chancellor Wood^ is very shortly reported; but if it
is to be considered as expressing his deliberate opinion,
I can only say that, with all the diffidence which I must
feel in differing from so eminent a Judge, I dissent from
that opinion, and I think that the present appeal ought to
be dismissed with costs.

The Lord Justice Knight Brucb.

It was not from any opinion of the difficulty of this
point, that the Lords Justices wished it to be brought

before
(a) 3 X. ^ /. 40.

CASES IN CHANCERY. 351

before the full Court. They were influenced by the ex- 1857.
tensive bearing and considerable importance of the ques- ^^^*^^
tion, and the probability, or possibility at least, that were Woodburn's
the Appellant right, it would be the duty (if I may so ^*^^-
express myself) of the Legislature to interfere. The
Act under consideration is a useful Act, but, construed as
the Appellant contends, would be a nuisance.

7^ Lord Justice Turner.

The object of this Act was to enable trustees to pay
money into Court in a summary way, but I cannot agree
in thinking that it was meant to exonerate them from
any liability to costs, except so far as it necessarily has
that effect by making the proceedings less expensive. It
has been contended, that cases under this Act fall within
a statutory jurisdiction, and not under the ordinary juris-
diction of the Court ; that the statute creating the juris-
diction says nothing about costs, and that the Court,
therefore, has no jurisdiction to order the trustees to pay
costs. To this I think there are two answers — the first
is, that the express words of the statute authorize such
an order, for that an order on a trustee to pay costs is
within the meaning of the Act an order in respect of the
trust funds. The second answer — and this may explain
why the Act does not in so many words mention costs —
is, that the fund paid into Court by the trustee, is to be
paid in in trust to attend the orders of the Court, and,
therefore, becomes subject to the general jurisdiction of
the Court, which includes a power to order the payment
of costs.

The appeal was accordingly dismissed with costs, the
order to bear date on the day of the hearing before the
full Court.

852

CASES IN CHANCERY.

1857.

May 30.

Before The
Lord Chati"
cellor Lord
Cranworth

and The
Lords Jus-
tices.

CASTLE t;. CASTLE.

rriHIS was an appeal from a decree of the Master of
•^ the Rolls, upon the construction of the will of
Thomas Child Castle, dated the 13th o( Nwember, 1848,
whereby, after reciting the testator's desire that his wife
should after his decease continue to carry on the business

A hotel keeper ^f ^ j^^^^j ^j^j^j^ ^j^g testator kept, or such other hotel as
by his will be- ....

queathed his his executors, on her request, might in their judgment

toiSees^ upon consider for the benefit of herself and his family, so long
trust to permit as the same could be conducted with advantage, but

his widow to . , ■ i. i •!• i •

carry on the without any personal liability to his executors or trustees

for any loss accruing therefrom, and that the profits
thence arising should be applied as part of his personal
estate in the manner thereinafter mentioned, the testator

business, so
Ions as it
could be car-
ried on with

advantage to

his estate, and gave all his estate and effects to three trustees, upon
to nc^ve the ^"sts for conversion into money (except as regarded the
VJ^ofxiB, so that furniture, stock in trade and effects of and which should

be in the hotel, or such other hotel as the testator migh^

at the time of his decease be carrying on the business),
and investment, and upon trust to permit testator's wife

maintain her-
self and her
family, and
educate the
testator's chil-
dren. He
also directed

that if the profits were insufficient for this purpose, the deficiency should be nippRed
out of the income of the general estate, which, subject to this direction, was to be
accumulated, and, with the principal, to be divided among the testator's cbildreii
on their attaining twenty-one. There was a proviso that if nx>m any cause it ihoald
be advisable to discontinue the business (which the trustees were to have power to do)
the stock in trade should be sold, and the proceeds form part of the eeneral estate^
and that the income of the whole, or so much of the income as should be required,
should be applied in the maintenance of the testator's wife and family and the educa-
tion of the children : — Held, that, on the widow by misconduct becoming unfit to
maintain and educate the children, she was not entitled to the surplus profits aAsr
setting apart sufficient for their maintenance and education, but could only daim
maintenance for herself.

CASES IN CHANCERY.

S5S

to carry on and continue the business of the hotel or
such other hotel as he might be carrying on at the time of
his decease, in the same manner as the same should have
been conducted in his lifetime, so long as the same busi-
ness could be conducted with profit and advantage to his
estate, and for that purpose to suffer his wife, so long as
the said business should be carried on, to have the use of
the furniture, plate, linen, china and other effects which
should be in the hotel at the time of his decease, and also
the stock of wines and other liquors, and all other the
efiects necessary for the business in the said hotel ; and
upon further trust to permit and suffer his said wife
to have and receive the profits arising from the said
business, so that she might apply the same in the main-
tenance of herself and her family, and the education
of his children ; and upon this further trust, that if the
profits arising fi'om the said business should not be
sufficient for the proper maintenance of his said wife and
children, and for the education of his children, his sfud
trustees should apply such proportion of the interest,
dividends and annual proceeds of the residue of his
estate thereinbefore directed to be invested, as they
should think proper, towards such maintenance and
education, and upon trust to continue such application
of the interest, dividends and annual proceeds of his
estate and effects as thereinbefore mentioned, until the
decease or marriage again of his wife, whichever should
first happen, and to invest all such portion of such in-
terest, dividends and annual proceeds of his estate as
should not be needed or applied in such maintenance
and education as thereinbefore mentioned fi'om time to
time, so that such surplus income might become part
of the principal trust fund of his estate, to be applied as
such in manner thereinafter mentioned ; and upon trust
that his trustees should on the decease or marriage
agiun of his wife, which should first happen, distribute
Vol. I. A A D.J. and

1857.

354 CASES IN CHANCERY.

1867. and divide all his estate and effects which should then
be existing (with the exception thereinafter mentioned,
in the event of his wife's second marriage^) unto and
equally amongst his children who should be living
at his decease, or bom in due time afterwards, in
equal shares and proportions as tenants in common,
such children to take vested interests when they
should severally attain twenty-one years, and that
in the meantime and until they should severally attain
the said age, their respective shares should be and
remain invested as thereinbefore mentioned, and the
annual interest and annual produce thereof should be
applied towards their maintenance and edubation : pro-
vided always, that if from any cause it should be found
necessary or advisable to discontinue the business of the
said hotel, which his said trustees should hav^ power to
do, then the furniture, stock and efiects should be sold
by his said trustees in such manner as they should think
proper, and the proceeds of such sale should go into
and form part of his general estate, and should be in-
vested and applied as such in the manner thereinbefore
mentioned, and in such case, the interest, divid^ds and
annual proceeds of the whole of his estate, or such portion
thereof as should be necessary, should be applied towards
the maintenance of his wife and family and the education
of his children, until the decease or second marriage of
his said wife as aforesaid : provided always, that in case
the testator's wife should marry again, the provisioo
thereinbefore made for her should cease and determine,
and she should in lieu thereof have an annuity of lOOL
per annum, which he directed his said trustees to pay to
her by half-yearly or quarterly payments during h«f
natural life at her discretion, such annuity to be for her
sole and separate use, and not to be subject to the debts,
control or engagements of any husband whom she
might marry, and to be paid to her upon her own re*

ceipt

CASES IN CHANCERY. 855

oeipt alone from time to time, notwithstanding coverture ; 1857.
and the testator directed that his trustees should, inune-
diately after such second marriage of his wife, sell and
^pose of and convert into money the said furniture,
stock and effects in the said hotel, and should (after
setting aside and investing out of his estate a sufficient
principal sum of money, the annual interest or proceeds
oi which should be sufficient to raise and pay the same
annuity) make the same division and distribution of his
estate amongst his children as was thereinbefore directed
to take place on the death of his said wife, and upon the
death of his said wife, he directed that the principal sum
set apart for securing the said annuity should also be
^tributed and divided in the same manner as was
thereinbefore directed with respect to the residue of his
estate.

Upon the testator's death, which took place in 1851,
the acting trustee under the will permitted the widow to
continue to reside with the children in the hotel, and to
conduct the business for the maintenance of herself and
her children, but on the SOth of July, 1852, she eloped
with a married man, with whom she went to live at
Bmdogne.

The trustee thereupon took charge of the hotel and of
the children, who shortly afterwards, by a next friend,
instituted this suit, praying by the bill for the usual
accounts of the testator's estate, and that the trusts of
the will might be carried into effect.

The widow by her answer expressed her contrition for
her conduct, and she stated that she had entirely se-
parated from the person with whom she had eloped.

By the decree under appeal, which was made by the

A A S Master

856 CASES IN CHANCERY.

1857. Master of the Rolls on the 4th of July, 1853, it was
declared^ that in the events which had happened the
profits of the business, since the 20th of July, 185£,
belonged to the widow and the infant Plaintiffs in equal
third parts or shares as tenants in common ; and that the
allowance of 2002. per annum, allowed by an order made
in the causes on the 15th of March then last, for the
maintenance of the infant Plaintiffs, ought to be con-
tinued and paid out of the infants' two third shares of
the profits of the said business, and that the residue of
their shares ought to be invested and accumulated ; and
it was declared, that the widow was entitled to the net
profits of the said business from the time of the death of
the testator to the 20th of July, 1852, and the usual
accounts were directed ; and it was ordered, amongst
other things, that a scheme should be approved for the
future management of the hotel business, the widow, by
her counsel at the bar, continuing to undertake not to
interfere in the conduct or management thereof.

A scheme for the management of the hotel business
had been proposed and approved by an order of the
30th of March, 1854.

Orders had been made on further directions, and the
widow now appealed from so much of the decree of the
4th of July, 1853, as declared, that in the events which
had happened the profits of the business had, since the
20th otJuly, 1852, belonged to the widow and the infiuit
Plaintiffs in equal third parts as tenants in common,
as well as from so much of the same order and of sub-
sequent orders as proceeded upon the footing of that
declaration.

Mr. Cairns and Mr. Giffard, in support of the appeal.

The decision of the Master of the Rolls proceeded on

the

CASES IN CHANCERY.

867

the footing of the widow and children being entitled to
the income as tenants in common. This^ however, is
not consistent with the limitations in the will as to the
children only taking on attaining twenty-one. The true
construction is, that the widow, who has the profits of
the business, subject to the maintenance and education
of the children, is entitled to them for her own benefit,
subject to that trust. AAer making sufficient provision
for the execution of the trust, she is entitled to the resi-
due of the profits. When a legacy or annuity is given
to a parent impressed with a trust for the maintenance
and education of children, if the trust is not properly
executed, the Court does not on that account take away
from the parent the whole income, but merely sets apart
sufficient to satisfy the trust In Raikes v. Ward (a),
Sir James Wigram says, " Wetherell v. Wilson (b) is a
very strong case. The interest of a fund was directed to
be paid to the husband, in order the better to enable him
to maintain the children of the marriage until their shares
should become assignable to them. The husband as-
signed all his property to trustees for the benefit of his
creditors, and it was held, that there was a trust for the
children, and therefore that the interest of the fund
did not pass under the assignment. This, I presume,
was on the ground that the Court could measure the
extent of the obligation which was imposed upon the
husband by the words of the instrument. In all these
cases the Court, without laying down any positive rule,
has referred it to the Master to inquire of the extent and
manner in which the intended gift should be applied for
the benefit of the parties indicated," and in that case
SOO/. a year was considered sufficient to be set apart.

1857.

So, in Woods v. Woods (c), the testator, after directing

a sale,

(a) 1 Hare, 448. (6) 1 Keen, 80. (c) 1 Myl ^ Cr, 401.

S68 CASES IN CHANCERY.

1857. a sale, said^ ''all overflush to my wife towards her support
and her family, if any there be/' and it was held that
the widow took the property subject to the trust.

They also referred to Crockett v. Crockett (a),
Broum v. CcLsamajor (&), Hammond v. Neame (c),
Hadow v. Hadow {d), Browne v. Paull {e\ JodreU y.
JodreU(f).

Mr. R. Palmer and Mr. Eddis for the Re-
spondent.

They referred to Longmore v. Elcum{g).
Mr. W. R. Cole for the executors.
Mr. Cairns in reply.

ITie Lord Chancellor.

The object of the testator obviously was that the
business should be carried on by his widow, but I
think that there may be deduced from the will a second
intention, namely, that if for any reason the widow
could not carry on the business, it should nevertheless
be carried on so long as such a course would be of
advantage to the estate. This event has happened.
There is no doubt, however, as to the testator having
meant that if the widow so conducted herself or mis-
conducted herself, that she could not perform the trusts
for maintaining and educating the children, the trust for*
her carrying on the business should come to an end*

(fl) 2 Phil. 553. (e) 1 Sim. N. S. 92.

(6) 4 Vet, 498. (/) 14 Beav. 397.

(d) 9 Sim. 553.

CASES IN CHANCERY.

359

The direction to permit her to carry on the business so
long as it could be conducted with profit and advantage
to the estate, is so worded as to mean strictly so long
88 it could be so carried on by her. But it appears by
the subsequent provision as to the discontinuance of the
business, that the testator may have contemplated a
tertium quid, viz. a carrying on of the business though
not by the widow. But what was to be done then?
"Why, the trustees were to permit her to receive the
profits, so that she might apply the same in the main-
tenance of herself and her family, and the education of
the children. That clearly means that she shall have the
income if she performs the duty imposed upon her, but
that if she chooses to say that she will not maintain
or educate the children, or if she incapacitates herself
firom so doing by her conduct (which is the same thing),
she will thereby put herself out of the trust. That I
think, looking at the whole scope of the will, is tlie
meaning of it.

1857.

Still I think that there is an intention that even in
that event she shall be maintained, and it was a correct
course, as it appears to me, to allow her a proper main-
tenance. The Master of the Rolls has allowed her, not
unreasonably, one-third of the income ; and we certainly
do not mean, by altering the form of the order, to relieve
the Appellant from any of the costs of the appeal. We
think, however, it better to declare that she is entitled to
maintenance, and that one-third of the profits is a proper
allowance for the present.

The Lord Justice Knight Bruce.

If there is any error in the decree, it is that the
Appellant will receive under it more than she is entitled
to. Considering the position in which she has placed

herself

860 CASES IN CHANCERY.

1857. herself towards the children, those children being her
own, I should have thought it impossible for any
woman so placed to consent to be made the subject of
such an appeal as this. It is a discreditable appeal and
must be dismissed with costs.

TTie Lord Justice Turner.

Upon the true construction of this will, I think that
the wife becoming no longer in a position to perform the
trusty the income became part of the general estate, and
that the trusts applicable to the general estate attached
upon it. Under these trusts the widow is entitled to
maintenance, which may be reasonably taken, for the
present, at one-third of the profits of the business. The
decision appears to me to turn on the words of this will,
and not to be affected by the cases cited in the argument

Decree varied by declaring that the
widow was entitled to main-
tenance out of the estate, and
that one-third of the profits
of the business should be al-
lowed her in that respect for
the present, with liberty to
apply.

CASES IN CHANCERY. 861

1857.

LISTER V. LEATHER.

June 4.

THIS was an appeal by the Defendant from an Before The
Order of Vice-Chancellor Wood, made on the ^**!f* '"•"
application of the Plaintiffs, dismissing the bill without ^ y^i^ ^^
costs, and without prejudice to the Plaintiffs filing any f^^^.J^J®'*'*^
other bill as they might be advised. ment of a

patent The
Plaintifl&, by

The bill was filed in •Ttt/y, 1855, to restrain the in- leave of the

i. • /. f ' . • xi- Court, brought

mngement of two patents for improvements in the ma- ^n action, and
chinery for woolcombins:. In the same month, a motion fwled on the

^ ^ . ground of part

for an injunction was made, and was ordered by Vice- of their appa-
Chancellor Wood to stand over, with liberty to the Plain- ^^^""^^
tifiii to bring such action as they might be advised for the then filed a
purpose of establishing their title at law, the Defendant (^^^ p^^ jq
being ordered in the meantime to keep an account. *^i« ■***® ^^

® ^ things the

cause came on

An action was accordingly brought, and in December ^ and the A^ce-
1866, a verdict was found for the Defendant, the jury ChanceUor

suggested,

finding that there had been an infringement, but that the that, to save
Plaintiflfe' patents were bad for want of novelty, part of a^^/^s^ ^^
the apparatus being the same as ** HeilmanrCs nipping thePlaintiffl
apparatus," the subject of an earlier patent. The Plain- Defenders
tiffi moved for a new trial, and on 2nd May, 1856, the «°«^ of suit up

^ ^ ^^^ time

Court and be al-
lowed to
amend their bill, instead of having it dismissed with costs, with liberty to file a new bill;
and an order to the above effect was made without the Vice-Chancellor's attention
being called to an enactment prohibiting the reading of a disclaimer in any suit
penning when it was filed. The costs were paid and the bill amended. The De-
fendant, by answer to the amended bill, insisted on this statutory objection, which the
Vice-Cbancellor, on a motion for an injunction being made, held fatal to the suit.

HMf that the Plaintiffs were entitlea, on motion, to have their bill dismissed without
costs, and without prejudice to a new bill, as they had been misled by the act of the
Court

S62

CASES IN CHANCERY-

1867.

Court of Queen*s Bench gave the Plaindfis their option
either to take an order for a new trial, with liberty to
amend their declaration and proceed on either patent
without the other, or to be nonsuited, leaving them at
liberty to begin again. The Plaintiffs chose the latter
alternative.

On S7th May J 1856, the suit came on to be heard, and,
at the request of the Plaintiffs, stood over while an ap-
plication was being made to the Solicitor-General for
leave to enter a disclaimer.

In 30th June^ 1856, disclaimers of part of the appa-
ratus were enrolled.

On 15th Julyy 1856, the cause came on again for hear-
ing, and the Defendant insisted that he was entitled to
have the bill dismissed with costs, as the Plaindfis had
failed at law, and could not support the title alleged on
their bill. The Vice-Chancellor acceded to this view,
but suggested that it would be much the best course, that
the Plaintiffs should pay the costs of the suit up to that
time, and have leave to amend their bill, since if it were
dismissed, they would certainly file a new one. The coun-
sel for the Defendant said, that the Plaintifis would find
themselves in difficulty, if they took such an order, and
that they must take it at their own risk, but ofiered no
further opposition. The Vice-Chancellor then made the
following Order: — ^"'This Court doth order, that the
Plaintiffs be at liberty to withdraw their replication filed
in this cause, and also to amend their bill as they shall
be advised. And it is hereby referred to the proper
Taxing Master of this Court to tax the Defendant his
costs of this suit up to and including the costs of this
Order. And it is ordered, that such costs when taxed
be paid by die Plaintiffs 8, C. Lister and G. E. Danu-
tharpe to the said Defendant."

The

CASES IN CHANCERY. 868

The costs were taxed and paid under this Order, and 1857.
the bill was amended.

On 4th August, 1856, the Plainti£& obtained a verdict
in their fresh action.

On 17th December, 1856, an answer was put in to the
amended bill, insisting on the provision contained in 5 &
6 WUL 4f,c.83,s. 1, '' That no such disclaimer or alter-
ation shall be receivable in evidence in any action or
suit (save and except in any proceeding by scire facias)
pending at the time when such disclaimer or alteration
was enrolled, but in every such action or suit, the
original title and specification alone shall be given in
evidence, and deemed and taken to be the title and spe-
dfication of the invention for which the letters patent
have been or shall have been granted."

On 27th April, 1857, the Court of Queen's Bench
refused a motion for a new trial.

The Plaintiffs then on 4th May, 1857, moved for an
injunction. The Defendant insisted on the objection
taken by his answer. Vice- Chancellor Wood considered
it well founded, and refused the injunction, but without
costs, expressing great dissatisfaction at such a defence
being insisted on, and he at the same time gave the
Plaintiff leave to give notice of motion for the following
day to dismiss their bill without costs and without pre-
judice to a new bill.

On 5th May, the motion was accordingly made, and
the Vice-Chancellor made the following Order, '' Upon
motion this day made unto this Court by Mr. Rolt, of
counsel for the Plaintiffs, that the bill filed in this cause
might be dismissed without costs, and that the Plaintiffs

might

364

CASES IN CHANCERY.

1857.

might be at liberty to file any other bill for the same
matters as are mentioned in the bill or amended bill or
any of them as the Plaintiffs might be advised, and upon
hearing Mr. Fischer of counsel for the Defendant,
this Court doth order, that the Plaintifl&* bill do stand
dismissed without costs and without prejudice to the said
Plaintiffs filing any other bill as they may be advised."

The Defendant moved by way of appeal firom this
Order.

Mr. W. M. James and Mr. Fischer, for the appeal
motion.

In former times, it does not appear to have been held,
that there was any jurisdiction to allow a Plaintiff* to
dismiss his own bill without costs ; 4 Anne, c. 16, s. 23,
Anon, (a), Dixon v. Parkes (6). — [The Lord Justice
Knight Bruce. The jurisdiction is now established.
— The Lord Justice Turner. The statute of Anne
does not apply to a special application.] — The later cases
no doubt show, that the jurisdiction is established, but
it is to be cautiously exercised; Van Sandau y.
Moore (c). The cases in which it has been exercised
have been cases where the Plaintiff^ has been in no de-
fault, as ip the case of The Sutton Harbour Company v.
Hichens {d), where the decision of one Lord Chancellor,
on the faith of which the bill had been filed, was, after
the filing, overruled by his successor. The other cases
are there collected. A Plaintiff* has been allowed to
dismiss his bill without costs, where the insolvency of
the Defendant has rendered the suit useless, or an alte-
ration in the law by the act of the legislature has ren-
dered

(a) 1 Vetjun. 140.

(6) Ibid. i02.

(0 1 ilttii. 441,466.

(d) 15 Bern. 161 ; 1 I>e O.,
M. ^ G. 161.

CASES IN CHANCERY. 866

dered its success impossible, but no case has gone so far 1867.
as to give this privilege to a Plaintiff who has made a
blunder, and persevered in it after it had been pointed
out by the answer. This Order was made without any
evidence, and the Vice-Chancellor evidently went upon
the notion, that this was an unreasonable objection
which we ought not to have taken ; but we submit, that
our taking any objection which the law enabled us suc-
cessfully to take, was no ground for giving the Plaintiffs
this indulgence.

Mr. Rolt and Mr. Fooks for the Plaintifl&.

The Vice-Chancellor made this Order on the ground,
that after the Defendant had on 15th July, 1856,
allowed the Order to amend to be made without op-
position, it was unreasonable in him afterwards to insist
on this statutory objection. Evidence in support of
the application was unnecessary; the Vice-Chancellor
went on what had passed before himself in Court, and
thought that, though the statute obliged him to allow
the objection, it was one which, after what had passed in
Court on 15th July, 1856, ought not to have been
taken. This Court will not readily interfere with the
discretion of a judge exercised on what took place before
himself in Court. The Vice-Chancellor would not have
made the Order for amendment had it occurred to him
that the objection, which afterwards prevailed, could be
taken.

Mr. James in reply.

The Lord Justice Knioht Bruce.

In July last the Vice-Chancellor made this Order —
[his Lordship here read the order of 15th July"].

In fact, when the Order was made, a particular clause

806 CASES IN CHANCERY.

1857. in an Aet of Parliament existed, which, as it has been
since construed by the same learned Judge, rendered the
amendment that he gave leave to make and the farther
proaccnikm of the suit useless.

The Vice-Chancellor, however, made the Order with-
oat having been aware (and it is not a matter of surprise
dial he should not have been aware) of the existence of
lliat dasse in the Act of Parliament, and without having
hb attention called to it He made the Order under the
impression and belief that the suit might be usefully
prosecuted for the purposes of justice; he would not
otherwise have made it. The Order was carried into
effect, the costs were paid and received under it, and the
suit was prosecuted accordingly by amendment But
afterwards, upon an application for an iigunction in the
cause, an objection, taken, as I understand, by the answer
to the amended bill, was made, that there did exist the
clause to which I have referred in an Act of Parliament,
rendering the amendment useless and the prosecution of
the suit vain. His Honor acceded to the objection ; I
give no opinion as to its validity. The abjudication has
been submitted to— reasonably submitted to— as having
so weighty a support as the opinion of the learned Judge
of whom I am speaking. His Honor, so viewing the
Act of Parliament, felt himself obliged to give eflfeet to
the objection, a decision which involved the conclusion
that he had not only made, but in fact suggested, in
the preceding July^ an Order which, with all that had
been done under it, had come to be, and from the be-
ginning was, in his opinion formed in the month <tf
May last, useless. He then immediately gave leave to
the Plaintifl& to give a notice of motion for the following
day to dismiss their bill without costs and withotxt pre-
judice to another suit; and, upon argument, he made on
that motion the Order now under appeal.

CASES IN CHANCERY.

867

In my opinion it was an Order founded on reason in
the abstract, and on those principles which have of late
yean governed the Court upon the question whether a
Plaintiff shall be allowed to abandon his suit without
paying the costs of it. The Defendant has had all the
costs down to the period when the Order of 15th July
was made, an Order which in a sense he allowed to be
madci although I do not say that he consented to it.
Certainly the learned Judge would not have made it if at
the time he had had his attention called to the Act of
Parliament, and had viewed it as he afterwards did. It
is in an espteial manner the case therefore, I would almost
say, in whifch those principles ought to have operation.

1857.

It is true the reasons and grounds upon which the
Order under appeal was made, might well have been
more expanded in it. The Order is naked in that
respect, a circumstance not at all attributable to the
learned Judge, who, if his attention had been called to
the matter, would, probably, have directed those reasons
and grounds to be stated. That, however, is not here
material ; for no person was misled ; all concerned in
the cause knew the grounds upon which his Honor
proceeded. It was a reasonable Order ; it was a
righteous Order; and the present application ought, I
think, to be refused with costs.

The Lord Justice Turner.

I also think that this motion ought to be refused with
costs. It is satisfactory that we can dispose of it
without reference to the question of what passed in
Court between counsel. I agree generally in the
proposition that the rule of the Court, as to allowing
a Plaintiff to dismiss his bill without costs, ought not
to be applied to new cases, but it seems to me that the

present

368

CASES IN CHANCERY.

1857.

present case falls most strictly within the principle of
the decided cases. If a man files a bill upon the au-
thority of decisions of the Courts which are adterwards
reversed, he may, upon their reversal, have his bill dis-
missed without costs ; and in the present case, the Order
made by the Vice-Chancellor in t/uZy, 1856, was made
upon his Honor's own suggestion, under a misappre-
hension or an oversight on his part. He suggested and
made that Order, without foreseeing the difficulty which
would arise in consequence of the proviso in the statute*
There was thus a miscarriage originating in an over*
sight on the part of the Court; and what difiference is
there in principle between such a case and a case in
which the Plaintiff has been misled by previous de-
cisions of the Court. Whether the Plaintiff has been
misled by a decision of the Court, or by an oversight oi
the Court in not having seen what were the provisions
of an Act of Parliament, cannot be material, the founda-
tion of the cases being, as it seems to me^ that the party
has been misled by the act of the Court.

CASES IN CHANCERY. 869

1857.

SCOTT ». The MAYOR, ALDERMEN and BUR-
GESSES of the BOROUGH of LIVERPOOL.

June 8.

rflHIS was an appeal by the Plaintiffs, from an Order Before The
of Vice-Chancellor Stuart^ giving the Defendants Jubx^ces.
leave to file further affidavits after the time for taking where the
evidence had closed. ^^^'^h

affidaviti filed
immediately
before the time

The bill was filed against the Corporation of Liver- for doung evi-
poolf and Thomas HawhsUy their engineer, to obtain ^ence, made
accounts of works done by the Plaintiffs for the Cor- charges againit
poration. The ground on which the interference of the felJdaiitt' wit^
Court was sought was, mainly, that Hawksley fraudulently neases, with a
refused to give certificates of the due performance of the credit their tea-
works, which certificates were by the terms of the con- K"!?®"^' *!** ,

, bill not clearly

tract necessary in order to enable the Plaintiffs to re- raising any

cover at law. It was also alleged that Hawksley^ and ^uia^re'™^
the other engineers and agents of the Corporation, from the Defend-
time to time occasioned to the Plaintiffs numerous guch charges,
undue delays and hindrances in the execution of the though the
works, and prevented the Plaintiffs from completing whom they

them by the time specified in the contract. ^^'^^ made

•^ *^ were named m

the bill in con*
mi. /• 1. .1 11 ^ tm \ o nexion with the

The time for taking evidence closed on the 17th of transactions
April, 1857. The Plaintiffs' affidavite were filed on JJ ^ ^^«^*>

* ^ ^ ^ ... their evidence

the 16th, and contained charges aimed at discrediting was given :^
the testimony of Thomas Henry Statham and Samuel ^gj' allowing
Oakes, two of the sub-engineers of the Corporation, who the Defend-
had been employed on behalf of the Corporation in affidavits as to
inspecting the progress of the works done by the Plain- *^®'®.^*^®''
tiffs, and had made affidavits in the cause on behalf for closing the
of the Defendants to show that the Plaintiffs had not ^jf^^^p^'p^^y
Vol. I. B B D.J. done made.

370 CASES IN CHANCERY.

1857. done their work properly. The substance of these

^'^^''^^^ charges was, that Statham, who had since died, was

V, addicted to drunkenness so as to be incapable of at-

The Mayor, tending properly to his business, and that Oakes was

Aldermen . .

AND Bur. biased against the Plaintiffs because they had refused a
THE^BoRouoH ''^"^st madc by him to become a partner in the execu-
oF LivBR- tion of the works to which the suit related.

POOL.

The Defendants procured an enlargement of the time
for cross-examination until the 10th of June, but no
cross-examination took place.

On 21 st May the Defendants took out a summons for
leave to file affidavits in answer to the affidavits on the
part of the Plaintiffs. This summons was adjourned to
be heard in Court, and on the 28th of May, the Vice-
chancellor made an order that the Defendants should
be at liberty within ten days to file affidavits with reference
to the charges made against Statham and Oakes. The
Plaintifis appealed.

Mr. Malins and Mr. Karslahe for the Plaintiffs.

Mr. Bacon and Mr. Hawkins for the Defendants*

Thompson v. Partridge (a) was referred to.

The Lord Justice Knight Bruce.

The charges sought to be answered were introduced
by the evidence on the part of the Plaintiffs, and are
contended, on the side by which they were introduced,
to be material, and it is rather probable than otherwise
that they are rightly contended to be so ; though this
is not the time for deciding that finally or directly.

Those

(a) 4 De G., M. ^ G. 704.

CASES IN CHANCERY. 871

Those against whom these charges are justly or unjustly 1857.

produced desire to answer them^ and it is prim^ facie T^^'*^^

reasonable that they should have an opportunity of v.

doini; so, unless they have allowed too long a time ^^^ Mayor,

^ ' J o ^ Aldermen

to elapse. They seem to me to have used sufficient and Bor-
diligence after the time of the introduction of these the^Borouoh
charges. I think, therefore, that the order was right ; <>' Livbr-
but it may now be modified, as the Appellants consent
to withdraw the charge of drunkenness made against
one of the persons mentioned. The other charge
remains.

Tht Lord Justice Turner.

I give no opinion on the question, whether the evidence
adduced on these matters falls within the issues raised
by the bill. That is a question to be decided at the
hearing, and I do not mean to prejudice it. The
Plaintiffs contend that the evidence is material, and
we must, therefore, for the present purpose, assume it to
be so. Taking then the evidence to be material, is the
issue upon which it is material so distinctly raised by the
bill as to have bound the Defendants to meet that issue,
and to enter into evidence upon it. 1 think not ; and
I am of opinion, therefore, that upon this matter coming
out in the evidence, it was due to justice that the
Defendants should have an opportunity of meeting it by
evidence. The Order, therefore, seems to me to be
right: but as the Appellants consent to abandon one
of the charges, it may be modified by restricting the
new affidavits to the other charge. I think that this
Order is quite consistent with our decision in Thompson
V. Partridge.

BB2

372

CASES IN CHANCERY,

1857.

May 25.

June 10.

Before The
Lords Jus-
tices.

The directors
of a company
allotted to
themselves a
number of
shares, by a

Ex parte DANIELL.

In the Matter of THE UNIVERSAL PROVIDENT

LIFE ASSOCIATION."

rilHIS was an appeal by Dr. Daniell from a decision
of the Master of the Rolls, refusing to relieve him
from the payment of a call on 200 out of the 400 shares
in respect of which he was on the list of contributories.

The Company was formed in 1853 and the capital was
rewlution pro- ^^ ^g 50,000/., in 10,000 shares of 51. each. Dr. DanieU

▼idmg that the j j j

was one of the promoters and a director of the Company

from the first, and to qualify himself to be such, he took

200 shares, executed the deed of settlement in respect of

D. ao^pted ' ^hem, and paid a deposit of 5s. per share. As to these

shares no question arose on the present occasion.

shares so al-
lotted were to
be treated as
having been

shares under
this resolution.
An order hav-
ing been made
for winding up
the company,
and a call hav-
ing been made,
]). applied to
be relieved
from calls un-
til the other
shareholders
had paid up
their shares in
full, which
none of them
had done : —
Held, by the
Lord Justice
Turner (the
Lord Justice
Knight Bruce

At a meeting of directors on 26th October^ 1854, the
following resolution was passed : —

** At a meeting of the directors of this society, held at
52, King William Street, on Thursday^ 26th October^
1854,

" Present,
" Mr. Sleeman, in the chair, Mr. Ayres, Mr. Beavan,
Mr. RuthveUf Mr. Simmons, Mr. Smith and Rev. Mr.
Statham. In attendance, Mr. Pagden^

'Mt was moved, seconded and resolved, that 2,400
paid-up shares be divided equally amongst the promoters

doubting), that

the Master of

the Rolls had rightly held D. to be liable to calls, to the same extent as if the resolatioii

had not provided that the shares were to be treated as paid up.

CASES IN CHANCERY. 373

of the Society, in consideration of the services rendered 1857.
by them in its formation and management.** ^^^^

Ex parte
Damiell.

The minutes of this meeting were read and confirmed R^

at a subsequent meeting on 2nd November, 1854, at p^oy^^NT

which Dr. Daniell was present. Life

Association.

In pursuance of the above resolution SOO shares were
allotted to Dr. Daniell, and certificates were given him
of the ownership of twenty of them, in which certificates
it was expressed that 5L had been paid upon each share,
and he was entered in the share ledger as owner of the
whole 200, under the date of 26th October, 1854. They
remained standing in his name till February, 1855, in
which month all his 400 shares were transferred to
several other persons, in pursuance of an arrangement
made between him and the other directors on the 15th of
that month with a view to his retiring from the Company
and being released from all liability.

An order having been made for winding-up the Com-
pany, the official manager applied to have the name of
Dr. Daniell placed on the list of contributories in respect
of the 400 shares. The case was adjourned from cham-
bers to be heard in Court, and the Master of the Rolls>
on 2 1 St June, 1856, decided that Dr. Daniell was a con-
tributory in respect of all the shares. The case is re-
ported 22 Beav. 43.

An order for a call of 30*. per share was subsequently
made on the contributories, and a balance order, dated
17th March, 1856, was made against Dr. Daniell^
ordering him to pay to the official manager ** the sum of
650/., such sum being the balance now appearing due
from the said J. B, Daniell on his account with the said
Company, after debiting the same with the amount

chargeable

Association.

374 CASES IN CHANCERY.

1857. chargeable against him in respect of the call of IZ. lOs.
^■^^'^^^ per share."

Ex parte
Dan I ELL.

Re Dr. Daniell applied at chambers to vary this order by

Universal reducing the sum of 650/. to 3251. The application was

Provident ^ **

Life adjourned to be heard in Court, and on 18th April,
1857, was refused with costs. Dr. Daniell appealed
from this Order.

Mr. Cairns and Mr. Batten for the Appellant.

We say that the shareholders must take the agreement
of October, 1854, as a whole, and not treat it as good in
part and bad in part. Dr. Daniell took the shares on
the footing of that resolution, and if the other contribu-
tories claim to treat him as a shareholder, they must
treat him as being such upon the terms of that resolu-
tion ; and he will not be liable to calls upon these shares
until all the allotted shares not comprised in this resolu-
tion have been paid up in full. The questions arising
are three: — First. What was the construction of the
agreement ? That is clear. The shares allotted to the
directors were to be treated as shares on which the whole
amount of calls had been paid up. Second. Did any-
thing subsequently occur to alter the equities? We
submit not, for there is no one on the list of contribu-
tories who became a shareholder after the passing of this
resolution. Third. Had Dr. DanielVs act in transferring
his shares any effect on his position ? We submit that it
had not. It has been decided that he obtained no benefit
from that transfer, but remains a contributory. The
Master of the Rolls, however, appears to have thought
that he was placed in a worse position by it, for that, by
attempting to transfer his shares, he admitted himself to
be the owner of them, and so was fixed with all the
liabilities of a shareholder.

Mr.

CASES IN CHANCERY. 875

Mr. Selwyn and Mr. Beavan for the Official Manager. 1857.

The attempted transfer of the shares was invalid, and Daniell.
Dr. Daniell cannot dispute that after the decision of this Re

Court in Munfs Case (a). Pa^iDiMi

Live

Now, as to the effect of the resolution. The directors
had power to allot shares, and were agents of the share-
holders for that, but not to annex a stipulation that they
should be treated as paid up. We are not bound to
accept their act as a whole. We accept what they were
oar agents to do, but no more. The stipulation that the
shares should be treated as paid up was wholly without
the scope of their agency, and the allottees being the
directors themselves knew that it was made without
authority. They must therefore be taken to have acted
as individuals, not as agents for the shareholders, in
this respect ; Re CamerorCs Coalbrook Steam Coal and
Swansea and Lotighor Railway Company (b). The same
argument as has been used here, that a contract cannot
be split, was used without success in HitchcocVs Case(c).
The Appellant, having transferred his shares, has con-
clusively established that he became a shareholder; Urch
V. Walker (d). The Appellant having accepted the
shares roust take them cum onere. The case is like that
of trustees dividing the trust property among themselves
and making a bargain that they shall not be subject to
the liabilities incident to it

Mr. Cairns, in reply, said that Hitchcock's Case did
not govern the present, the contention of the contributory
there having been that he was not a contributory because
the directors had no power to issue shares of the kind

they

(a) 22 Beav. 58» n. (c) 3 De G. ^ Sm. 92.

(6) 5 De G., Mac. ^ G. 284. (d) 3 M. ^ C. 702.

376 CASES IN CHANCERY.

1857. they professed to allot him, though he had received
^■^^^'^^^ dividends on that footing.

Ex parte
Daniell.

Universal
Provident

LiPB 7%€ Lord Justice Turner.

Association.
June 10. Dr. Daniell, the Appellant in this case, stands upon

the list of contributories of this Company as proprietor
of 400 shares. A call having been made upon the shares
in the Company, and Dr. Daniell having been charged
with the call upon the whole of the 400 shares, he ap«
plied to the Master of the Rolls to reduce the sum with
which he was charged by the amount of the call on SOO
of the shares. The Master of the Rolls having refused
the application, Dr. Daniell has appealed to us from his
Honor's decision. The facts of the case, so far as they
are material to the question before us, may be shortly
stated thus: — The Company was formed in the year
1853. The capital was to be 50,000/., divided into
10,000 shares of 5/. each. Dr. Daniell was a promoter
of the Company, and a director of it from the commence-
ment, and he, as I understand, subscribed the deed for
SOO shares ; at all events he had taken that number of
shares, and his liability to the call in respect of those
shares is not disputed. The question is as to his lia-
bility in respect of the remaining 200 shares. As to
these latter shares the case stands thus : — On the 96ih
October, 1854, the following resolution was passed at a
meeting of the directors of the Company. — [His Lord-
ship here read the resolution, which has been stated
above.] — Dr. Daniell was not present at this meedng,
but he was present at another meeting of the directors
held soon afterwards, on the 2nd November, at which the
minutes of the meeting of the 26th October, 1854, were
read and confirmed.

CASES IN CHANCERY. 877

In pursuance of the above resolution 200 of the 2,400 1857.
shares were placed in the name of Dr. DanielL Certi- "^^^^

_ , . . - « , Ex parte

ficates were granted to him in respect of twenty ot the Daniell.
shares, which purported that 5/. per share had been Re

paid. He was registered as the holder of the shares, p^ov'demt

and they continued to stand in his name till February^ Lipb

1855, when they were transferred into the names of

other directors, under an arrangement made by them

with Dr. Danielle by which he was to be released from

all liability, as well in respect of these shares as in

respect of his original shares, but this arrangement has

been held not to be operative for the purpose of releasing

Dr. Danielle and he has consequently been put upon the

list of contributories for the whole of the 400 shares.

Under these circumstances the question is, whether
Dr. Daniell is liable to the call in respect of the 200
shares placed in his name in October ^ 1854. It was very
properly admitted at the bar, that the directors of the
Company had no power to pass the resolution under
which these shares were placed in the name of Dr.
Daniell^ and that the shareholders of the Company were
not originally bound by that resolution ; but it was
argued on Dr. DanieWs behalf, that the shareholders
could not claim against him except on the footing of the
resolution, and that, if they claimed against him upon
that footing, they must take the resolution as it stands,
and treat him as holder of shares in respect of which
5/. had been paid — that tl'.e contract into which he had
entered could not be severed. This argument, however,
rests, as it seems to me, upon this basis — that in deter-
mining this case we are to look to contract, and to con-
tract only, and I think that basis is unsound. There
was, in truth, no contract in the case. These shares were
placed in the name of Dr. Daniell under no contract
with the shareholders, but by the mere unauthorized act

378 CASES IN CHANCERY.

1857. of the directors^ of whom Dr. Daniell was one, and we
^"^^^^'^ are bound, I think, to consider this in determining the

Ex parte . ....

Daniell. question before us. Taking then this consideration into
Re account, how does this case stand ? These 2,400 shares

Universal

Provident ^^^^ assets of the Company. Dr. Daniell appropriated

Life 200 of them to himself. By that appropriation they were
Association. , » * *

prevented from being disposed of for the benefit of the

Company. Can trustees (and directors of companies are
trustees or quasi trustees) appropriate the trust property
to themselves, and then say to their cestuis que trust, —
" we took this property upon the terms that we should
not be liable for any loss which might arise upon it.*' I
think a court of equity would not permit this, but would
view the matter in this light — there is a double breach
of trust — a breach of trust in taking the property at all,
and a further breach of trust in introducing this stipu-
lation into the contract, and the cestuis que trust must
have the option of affirming the one breach of trust and
disaffirming the other. I treat this case as one of stipu-
lation that there should be no liability for loss, because
that is in effect the case contended for on behalf of Dr.
Daniell, his contention being that he is not to be liable
until the other shareholders have paid up 5/. per share.

Much reliance was placed, in the argument, upon the
position of the Company at the time when this trans-
action took place, and it was urged, that there were no
subsequent shareholders, and that creditors could not
have been deceived by Dr. DanielVs name being upon
the register. I am not satisfied with the evidence in this
respect, particularly upon the latter point; but, inde-
pendent of these considerations, I think there was in
this case what, in the view of a court of equity, amounts
to fraud on the existing shareholders ; and, upon the
grounds which I have stated, I concur in the opinion of
the Master of the Rolls, and the appeal, therefore, must

Association.

CASES IN CHANCERY. 879

be dismissed. My learned brother, however, as I under- 1857.

stand, either entertains a different view, or, at all events, v^^/-^^

has very serious doubts upon the case, and the dismissal, Daniell.
therefore, must be without costs. Re

Universal

Provident

I think, also, that an addition should be made to the Life

order — that it is to be without prejudice to any question
as to the right of Dr. Daniell, if any, to indemnity
against his co-directors, who were parties to the reso-
lution of the 15th Febrtiary, 1855.

Ttie Lord Justice Knight Bruce.

I acknowledge that I have not been able to free my
mind from doubt on this case ; but as the opinion of my
learned brother is in accordance with that of the Master
of the Rolls, my doubts are rendered immaterial. The
appeal being dismissed without costs, I have no objection
to the addition which my learned brother proposes to be
made to the order.

880 CASES IN CHANCERY.

1857.

j^^2y FINDON V. FINDON.

Before The fipHIS was an appeal from the decision of the Master

cellorLoKD ^^ ^^® Rolls on the construction of the will of

Cranworth. Francis Findon, who thus declared the trusts of a sum of

^ui^^d to^his ^'^»000Z., to which he was entitled under a settlement, and

daughter an which was charged upon the settled property : — " With

loSrwHle respect to the said sum of 17,000/., I hereby bequeath

she remained and dispose thereof in manner following; (that is to say),

her marriage, ^ bequeath to my dear wife 1,OOOZ. at her own disposal,

and on some ^^d in addition thereto an annuity of 100/., payable half-
adequate pro- '' ' r J

vision made, yearly, for her life, and also such part of my household
direcTed^to be 8^^^^* Stock and effects as are hereinafter more particu-
made, by larly enumerated ; I also bequeath to my dear daughter a

her for life and '^^^ annuity of 100/., payable to her while she remains
to the use of gole and unmarried, but on her marriage, and on some

her issue, he , ,

bequeathed to adequate provision made by some settlement made for
*" «*^5/llf7 lier for life and to the use of her issue, which provision

use 2,500/., ^ ' ^

and in default I direct may be made, I bequeath to and for her use the

he'^tueXd ®""* ^f 2,500/.; in default of such issue I bequeath that

that sum for sum for the benefit of my grandchildren then living, the

his grand- children of my eldest son Francis, equally, with benefit

children who of survivorship, except issue left, who shall then share

should be then , ♦ ,.

living. The the parent s part.

daughter mar-
ried, but no
settlement was After several other dispositions, the testator directed

annuity" on- ^ the residue to be divided into five equal parts, and gave
tinuedtobe the same as follows: — "One to my wife, one to my
She had an daughter, one to Francis, one to my grandson, and the
only child, who remaining one to be equally divided between the three

died m her ^ ^ ^

lifetime under granddaughters,

age : — Held,

that the gift over did not take cflfect, and that her personal representative was entitled

to the 2,500/.

CASES IN CHANCERY.

granddaughters, and I expressly direct the share of my
son Francis shall be retained and kept at interest for his
use for life, and after his death I give the same to be
equally divided amongst all his said children in the pro-
portions above mentioned."

The will contained also this passage : — '^ This is at
present my will, hastily composed, to be from time to
time more regularly formed and executed ; in the mean-
time I declare this to be my last will, written on six half-
sheets of paper and in my own hand.** And it concluded
by ratifying and confirming an agreement which the tes-
tator had made with another son named Frederick, and
which is not material to be further noticed.

The testator died on the 1st oi May^ 18S5, and shortly
after his death his daughter Mary married Francis JDe-
mainbray. No settlement was made upon her marriage,
but the trustee paid her the interest on the 2,500Z. during
her life. She survived her husband, and died on the
3rd o{ Augtist, 1856, without leaving any issue, her only
child having died in her lifetime under age. The De-
fendant had taken out letters of administration to her
and to the child.

The testator's son Francis Findon had four children,
two of whom were the Plaintiffs, Sophia Findon and
Eliza Louisa Harbidge, and they were the only children
of Francis who were living at the time of the death of
Mary Demainbray, By the bill they claimed, in the
events which had happened, to be entitled to the sum of
2,500/. under the executory bequest over, in default of
issue of Mrs. Demainbray.

The Master of the Rolls held, that the gift over did
not take effect, Mrs. Demainbray having had issue. The
Plaintiffs appealed.

Mr.

381

1857.

S82 CASES IN CHANCERY.

1857. Mr. Lee and Mr. W. Morris^ in support of the appeal.

Fin DON There were two conditions precedent to the trust as

„ ^« to the 2,500Z. for the daughter arising. One was her

FiNDON

marriage, which has been fulfilled, the other was a set-
tlement being made upon her. The latter has never
been fulfilled, and therefore the trust for the daughter as
to the capital sum did not arise. Also the limitation in
default of issue has taken effect. For, in construing these
wordsy regard must be had to the circumstance that the
trusts were executory merely, and that consequently the
Court would so model them as to effect the probable in-
tention ; Earl of Stamford v. Hobart (a). This will be
best done by considering the trust as one for the daughter
for life, and after her decease for her children, who,
being sons, should attain twenty-one, or being daughters,
should attain that age or marry. Taking the trusts as so
framed the Plaintiffs* title is clear, for there is a default of
the issue intended. Some form of settlement must be
supposed to have been intended, and the only question is,
whether the Court will supply a usual and almost uni-
versal one, or will prefer one which no conveyancer would
think of adopting, having instructions expressed in the
terms of this will. — [7%6 Lord Chancellor. Is there
any authority to the effect that where a testator has
directed a settlement to be made for a woman for life,
and for her issue, the Court has made the interests of
the issue contingent upon their attaining twenty-one ?] —
There may be no express authority, but such is the
practice in the Master's office in framing settlements
under articles. — [ The Lord Chancellor. Is there not
a difference between articles and a will?] — Not, as we
submit, in this respect.

They

(fl) 3 Bro. P. C. 31.

CASES IN CHANCERY. 383

They also referred to Taggart v. Taggart (a), Doe v. 1857.
Mvlgrave (ft), Stanley v. Jackman (c). ^v^^^^^

Mr. 12. Palmer and Mr. TFAi^fercad, for the Respond- F«»'>on.
ents, were not called upon.

The Lord Chancellor.

I do not think that there is any doubt about this case*
Two questions have been raised. The first is, whether
this is not a conditional gift ; and Mr. Lee said truly, it is
not unusual, when a gentleman is providing for his chil-
dren, to stipulate that what his daughter shall have shall
be contingent upon her having a proper settlement from
the husband. No doubt it is not unusual, but the ques-
tion is, whether that is what is meant here by the testator.
He gives lOOZ. a year to his daughter so long as she
shall remain sole and unmarried, ** but on her marriage,
and on some adequate provision made by some settle-
ment made for her for life and for the use of her issue,
which provision I direct may be made*' (that evidently
shows Uiat it was a provision thathe had a power of
directing to be made), " I bequeath to and for her use
the sum of 2,500/." In my opinion the only reasonable
way of construing that (especially taking into considera-
tion what the testator says at the end, namely, that he
meant to perfect it in a better form afterwards) is, that
he meant to give her 2,500Z. to be settled upon her for
life, and after her death upon her issue. To make the
gift dependent upon the settlement being made seems to
me a very narrow way of looking at the will. The settle-
ment, though not made, has been acted upon as if it were
made, because the interest has always been paid, that is,

the

(a) I Sck,^ Lef. 84. (6) 5 T. R. 320.

(r) 23 Beav. 450.

S84

CASES IN CHANCERY.

1867.

FlNDOM

V.
FiNDON.

the lOOZ. a year, which is the interest upon the Z^SOOL
at four per cent. It is clear that all parties treated this
gift as if it were a gift with respect to which a settlement
had actually been made.

Then, considering the settlement as having been made,
the only question is, whether in the events which have
happened there is a gift over directly expressed or im-
plied by the language of the testator's will. If there is
such a gift over, then it is a gift over to the children of
the testator's eldest son Francis^ who are the present
Plaintiffs. I am clearly of opinion that there is no such
gift. It is perfectly true that a considerable latitude may
be taken where there is a direction in a will to make a
settlement, and still more where the direction is con-
tained in marriage articles, and therefore the Master of
the Rolls may have been quite right in the case referred
to of Stanley v. Jojckmanj in saying that, where a tes-
tator had directed a settlement to be made upon a woman
so as to secure it to herself for her life and afterwards to
her issue, there ought to be inserted a provision against
anticipation and a power of appointment, and perhaps in
saying that a clause as to survivorship should be intro-
duced. But that is not this case. Here the gift is to the
daughter for life and to her issue, and upon a particular
event, namely, the default of such issue, there is a gift
over. The question is, what meaning I am to put upon
that. Mr. Lee says that it may mean in default of issue
who would under what, as he contends, would have been
a reasonable settlement, have obtained a vested interest in
the fund. I quite concur, however, with the Master of
the Rolls in thinking such a construction not warranted
by the words of the will. Mr. Lee says that the common
way of framing a settlement is to limit the property to
sons upon attaining twenty-one, and to daughters upon
attaining twenty-one or marriage. Certainly that is very

common^

CASES IN CHANCERY.

common^ but I am sure that Mr. Le^s experience must
have taught him that it is by no means universal. I have
seen settlements where neither the sons nor the daughters
are to take unless they attain twenty-one. I have also
seen settlements where the property was to go to sons if
they married under twenty-one^ or if they have issue, or
if the wife is enceinte. Who is to say what are the
limitations which the Court is to impose when the testator
has only said *^ in default of such issue/' there being no
direction as to what is to give a vested interest? In such
a case who is to say what restriction the testator meant
to impose ? ^

I am clearly of opinion that the Master of the Rolls
was right, and that this was an absolute gift in the first
instance, subject only to the obligation in the event of the
daughter's marriage of making a settlement upon her and
her issue.

With respect to the argument on the question whether
the issue took absolutely or the daughter took absolutely,
it 18 one which it is quite immaterial to consider, because
quacunque vi& the same person would be entitled to the
fimd.

I think, therefore, the appeal must be dismissed with
costs.

Vol. I.

D.J.

386 CASES IN CHANCERY.

1857,

TN this case a petition had been presented^ under the
^ Act to facilitate Leases and Sales of Settled Estates,

j^^ ^ In the Matter of FOSTER'S Settled Estates.

IMarr TV

IV cnuHh 19 & dd Vici. c 120. The petition had been answered

M « 4 »te^ ^^ earned into chambers, and the advertisements re-

vKMt dir qixSrvd br the SOih section had been issued. An appli-

t^^Tr^^ casactt TO then made to the Master of the Rolls to

if^ Idi ^"^ jlk i,|^*£iic 4 solicitor to take the separate examination of a

w tiuimt aurned vcoon whose consent was requisite. The qaes-

w^^^'^w'^ an ac viut stage of the pfoccnfings such examinatioos

MM% *^ «il^ ^otf^c «» take place haiing beai the subject of some

9iK ^ mktt AwArfi «f thnMOL hn Honor recommended the appli-

wotiMn lkN» ctfsm »? Ve n^ i» tS* L«di Jvstioes.

qfHifif inrawmvK

«iii .MmM ^^ Xji jl— fic' dhe iffficadoo, stated the fiicts,

jiivtmr ,^Mis 4fe-^ ir Ar aiw rf Re Brmfy's Settled Es-
:Mev ^ ^s^ X- mi A SoAnmV SfttM JSrfalef (ft), in which

^^X][J^%^ Q^ ^ViKoer 4C :tw Biiflb bai keU that the examinadon
''^"^ ^' ^'**^ ^MC^ ^ la^* ''itts^ )«miff die petition was presented,
^^a^ ^ V n SfitHi^f S«»Btf £4Bte(c), m whidi Fice-
•*^ '*'*^ "^umn4i4C WW iac hdfl Ait it might take place at

l^^ff the pedtxm was heard. He then ad-

tr thr ^hi4 ^Sth^ :X)th and 37th secBons of the

_^.^T^ jicu ami IP the 5rd <d^ the General Orders of 15th No-

Ae fimker, IS56L [ne Lord Justice Turkeb,— The

onestfon seems to turn on the meaning of die word

« _l

* ^ v^ •' first ** in the S7th section. The Lord Justice Kkight

"•^*!Wi.V

'"^^ 3if^tc*B, — Is the Court seised of the matter until the
V \?V?!- t^fik4i hat been presented and answered ?] The 36di

^v'^i^ ,<ii^ > r*t«r ^^ 613. (6) Ibid. 614. (c) IbkL 670.

CASES IN CHANCERY.

section, relating to infants, &c., is similar in nature to
the 37th ; and in cases coming under that section, the
10th Order expressly provides when the application to
the Court for directions may be made, and it appears to
assume that the Court has jurisdiction, while the appli-
cation only rests in intention.

Their Lordships directed the case to stand over till a
later hour in the day, that inquiry might be made as to
the course taken with regard to answering petitions under
this Act On the case being mentioned again, it appeared*
that the course was for the Lord Chancellor's secretary
to affix to a petition under the Act the ordinary fiat,
as in the case of other petitions, that the petition was
then not set down, but carried at once into the chambers
of the Judge before whom it was to. be heard, where
directions were then given as to issuing the advertise-
ments directed by the Act.

887

1857.

In the
Matter of
Foster's

Settled
Estates.

The Lord Justice Knight Bruce.

I think that the consent of a married woman to a
petition under this Act ought not to be taken until the
petition has been carried into the chambers of the Judge
by whom it is to be heard ; but that it ought to be taken
before any judicial step by him upon the petition. The
directing of the issuing of the advertisements seems
scarcely a judicial step.

The Lord Justice Turner.

I also think that the examination ought not to take
place before the petition has been answered ; but I think
that, as a general rule, it should be taken immediately
afterwards, and before the advertisements are issued, not
merely because the Act says ''first/' but because the

C C 2 whole

388

CASES IN CHANCERY.

1857.

In the

Matter of

Foster's

Settled

Estates

whole of the proceedings will be rendered -useless, if the
married woman does not consent I do not, however,
think that the issuing of the advertisements before the
consent is taken invalidates the proceedings.

TTie Lord Justice Knioht Brucb.

I do not dissent from the view, that the consent had
better be taken before issuing the advertisements.

TERRELL v. HIGGS.

Jultf 2.

Before The
Lords Jus-
tices.

A Defendant

in an action

pleaded an , ^

equitable plea, question being, whether the Plaintiff's title to relief was

upon which barred by his having unsuccessfully pleaded in the action
issue was ^ ° ^ '^

joined, and a by way of equitable defence, a case substantially the

for the Plain. ^^^^ ^ ^^ ^^^ sought to establish,
tiff. After
▼erdict, but

rpHIS case came before the Court on Appeal from an
■*" Order of Vice-Chancellor Wood, refusing an in-
junction to restrain the principal Defendant bom signing
judgment and issuing execution in an action at law, the

before judfl^
ment, the D(
fendant filed
a bill setting
up substan-

The case as stated by the bill was shortly this. The
Plaintiff J. H. Terrell had joined as surety for the De-
fendant James Baker in a joint and several promissory
^|y^e same note, payable on 1st July, 1856, of which the Defendant

Higgs was the holder. On Ist July, 1856, this note

was renewed, the Plaintiff again joining as surety in a
joint and several note, payable on 1st January, 1857.

Nothing

in his plea,
and applied
for an in-
junction
which was re-
fused. Three
days later

judgment was entered up, after which the Defendant at law gave notice of motioo, bf
way of appeal from the order refusing the injunction : — Heldf that the applicadoo was
too late and must be refused.

Stmhle, that the Vice-Chancellor was right in refusing the injunction, althon^ when
it was applied for judgment had not been entered up.

HlOGS.

CASES IN CHANCERY. 389

Nothing was said in the note as to interest, but it was 1857.
agreed that interest at 7/. lOs. per cent, should be paid. ^
At the same time, unknown to the Plaintiff^ an agreement v.

was entered into between Higgs and Baker^ that the
money should not be called in without three months*
notice. Ader the note became due, it was agreed be*
tween Baker and Higgs, that payment should not be
required till the 1st of April, The Plaintiff, when in-
formed of this, protested; but Higgs, according to the
agreement, took no steps to call in the money, and Baker
became insolvent before 1st April, 1857.

On 36th Marck, 1857, Higgs commenced an action
against Terrell on the note, to which Terrell pleaded by
way of defence on equitable grounds, that at the time of
the giving of the renewed note, there was a secret agree-
ment made between Baker and Higgs, that Baker should
pay Biggs interest at 7/. lOs. per cent, till he should pay
the amount due on the note, and that Biggs should not
require payment of the amount of the note until after
three months* notice to Baker of his intention to do so
— that Terrell never assented to, approved of or ratified
this secret agreement — that Higgs never gave Baker
notice of his intention to require payment — that after the
note became due, it was agreed between Higgs and
Baker, that Higgs should forbear to sue Baker till 1st
April, 1857, — that Baker should for such forbearance
pay Biggs interest at 11. \0s. per cent till 1st April,
1857, — that thereupon Higgs forebore to sue Baker
for payment of the note, and gave him time for payment
till Ist April, 1857, and that the last-mentioned agree-
ment was made, the said forbearance had, and the said
time given, without the consent and against the will of
Terrell.

The Plaintiff at law took issue on the plea, and the

action

890 CASES IN CHANCERY.

1857< action went to trial. It was alleged by the bill that
Terrell proved the whole of his plea, except the alle-
gation that the agreement to pay interest at the rate of
71. lOs. was a secret agreement, and that the Judge
directed the jury to find a verdict for the Plaintiff at law,
on the ground that the agreement alleged by the plea
bad not been proved. The verdict was given for Higgs
on 29th May, 1857.

On 6th June, 1857, the Plaintiff filed the present bill
to prevent any further proceedings in the action, and oq
ISth June, moved before Vice-Chancellor Wood for an
injunction, which was refused.

On 15th June, Higgs signed judgment in the action,
after which the Plaintiff gave notice of appeal motion
before the Lords Justices.

Mr. Rolt and Mr. Tripp, for the Plaintiff.

The Plaintiffs case is not one in which, independently
of the Common Law Procedure Act, Courts of Common
Law and of Equity have concurrent jurisdiction, it is one
belonging to the exclusive jurisdiction of a Court fX
Equity. Pleading an equitable plea does not of itself
prevent the Defendant at law from sustaining a bill;
ProtheroY. Phelps {a), Evans y. Bremridge(b), Pboleyj.
Harradine (c), and we filed our bill, and applied for an
injunction before judgment That there was a verdict is
unimportant. But taking the case as it stands now, treat-
ing this as the first application to a Court of Equity, we
submit that a judgment on an equitable plea, if it in-
volves principles which a Court of Equity cannot recog-
nize^

{a) 4 WcMy Rep. 189. (h) Ibid. 350.

CASES IN CHANCERY. 891

nize, ought not to prevent the filing a bill. Here the 1857.
Judge decided on the ground that we had not proved the
whole of what our plea alleged: that is true, but we
proved enough: we failed in proving what we alleged
to have passed at the time of giving the note^ but we
proved a subsequent agreement to give time^ and that
was enough to discharge the surety. Harrison v. Nettle*
ship {a\ appears against us, but that was a case in which
the Courts of Law and Equity had concurrent jurisdiction.
No case can be produced in which, even where there is
concurrent jurisdiction, a verdict makes the application
to Equity too late. The jurisdiction we submit may be
changed at any time before judgment. [Davies v. Stain*
bank (b), was also referred to.]

Mr. Wigram and Mr. Karslake, for Hiffgs, were not
called upon.

The Lord Justice Knight Bruce.

Mr. Terrellf the Plaintiff in Equity, as a surety for
Mr. Baker, joined with Baker in a joint and several
promissory note to Mr. Higgs, the principal Defendant
in Equity. Higgs brought an action against Terrell on
the note in March last. Mr. Terrell, instead of de-
fending himself by a suit in Equity, or on grounds
strictly legal, puts in a plea which he commences with
the words ** for defence on equitable grounds," and by
which he alleges — [His Lordship here stated the
effect of the plea as set out above]. This plea was
filed on the 27th of April, and certain proceedings
which I need not particularize, were taken upon it be-
fore trial. It may be that the mere filing of the plea
did not prevent Mr. Terrell from filing a bill in Equity

(a) 2 Mjfl. if K. 423. (b) 6 De G., Mac. Sf G. 679.

S92 CASES IN CHANCERY.

1857. on the same grounds; but the trial takes place late in
May^ and the verdict against Terrell on the whole plea
finds against the truth of every material fact stated in
the plea ; then, and not till then, this bill is filed ; and
before judgment had been signed, a motion was made
before one of the Vice-Chancellors for an injunction,
which was refused. Now it may not be necessary (for a
reason which I shall state), to say whether I agree with
the Vice-Chancellon Though a verdict in an action not
followed by judgment is not, in general, much regarded
by this Court, yet in a case depending on choice and
conduct, it may be material, and I am disposed to think
that the Vice-Chancellor took a correct course, in con-
sequence of the Plaintiff's application to a Court of
Equity being so late. His Honor, however, having
taken that course, no application was made to the Lord
Chancellor or to us, before judgment had been entered
up, which was done on the 15th of June ; the judgment
establishing between the parties, according to an old
legal phrase, " the incontrovertible verity" of the
denial of every material fact alleged in the plea. In
these circumstances, looking at the question as one of
time and conduct, I am of opinion that a Court of Equity
cannot relieve. The Plaintiff might have applied at law
for a new trial ; we have no jurisdiction to grant one.
Without questioning anything that has been done in
other cases, I am of opinion, that in the present case,
the Plaintiff has not now any title to relief in this
Court.

The Lord Justice Turner.

I am not prepared to say, that in no case can an ap-
plication be made to this Court for relief after a verdict
at law on an equitable plea, but I think, that, under the

circumstances

CASES IN CHANCERY.

893

circumstances of this case, relief ought not to be granted.
I rely mainly on the fact, that notice of appeal was not
given immediately after the decision of the Vice-Chan-
cellor, but judgment was allowed to be entered up
before any application was made to this branch of the
Court.

1857.

1856.

Nov. 19.

1857.

Msy 27, 28.

June 10.

July 14.

Before The

Lords
Justices.

CAMPBELL V. INGILBY.

rriHIS was an appeal by the Plaintiff William Green--
"^ ing Campbell, from a decision of the Master of
the Rolls, who held that the Plaintiff was not entitled to By marriage
compensation out of the personal estate of his late wife, ^^icles made
formerly Diana Ingilby^ for the loss he had sustained was agreed

owing to her real estate (which was comprised in the ^ certain
^ ^ *^ personal estate

same articles of settlement made when she was a minor) of the in-
never having been effectually settled. who^asa^*

minor, and
At the time of the execution of the articles, certain husUand to
estates, called the Harrington Estates, were vested in ^^ «>» «^d her
Augusta Ingilby in fee, subject to a shifting clause, freehold esute
^ving them over to Diana Ingilby in fee, in the event ^®^ *^® ^•

of be settled upon
certain trusts,
under which the husband took a life interest, and the wife, on failure of the trusts for
the issue of the marriage, had a power of appointing the personalty by will. The
personalty was afterwards duly transferred to the trustees of the articles. In 1835
the only issue of the marriage died, and the trusts for the issue failed of effect. The
wife died in 1840, having by will appointed the personalty to some of her relatives.
In 1855 her interest in the H. Estate, (which was a contingent limitation in fee^ vested
in possession and went to her heir, no fine having ever been levied to confirm the
articles. It did not appear that the husband had ever asked the wife to join in a fine,
or that there was any ground to suppose that, if asked, she would have refused. The
husband filed a bill seeking compensation from the wife's appointees for the loss of his
life interest in the real estate. Ueld^ that the loss must be deemed to have been occa*
iioned by his own negligence, and that he had no title to the relief sought.

S94

CASES IN CHANCERY.

1866.

Campbell

Inoilbt.

of Augusta coming into possession of a certain other
estate, called the Kettlethorpe Estate, which stood limited
to Augusta and her children after the determination of
other life estates and estates in tail.

On 18th Aprils 1811, Diana Ingilby married the
Plaintiff, who was a Scotchman resident in Scotland,
Previous to the marriage, articles of settlement, dated
nth April, 1811, were executed, by which it was agreed
that Diana Ingilby's interest in the Harrington Estates
and in some other estates, and certain property in the
funds to which she was entitled, should be settled as
to both real estate and funded property upon trust for
the Plaintiff for life, and after his death for the wife
for life, and after the death of the survivor, upon certain
trusts for the issue of the marriage, and on failure of
those trusts, then, as to the landed property— in trust
for the heirs of the wife: and as to the funded pro-
perty— in case she survived, to her absolutely; but if she
died in her husband's lifetime, then upon such trusts as
she should appoint by will, and in default of appointment
to her husband absolutely. By the same articles, Mr.
CampheWs father undertook to secure a jointure for Mrs.
Campbell, in the event of her surviving her husband.

Mrs. Campbell was several months under the age of
twenty-one when these articles were executed, but she
was a party to them, and executed them as if of age, and
there was nothing in their form to show that she was not
so. By a deed appointing new trustees, executed in the
following year, to which Mrs. Campbell and her brother.
Sir William Ingilby, who aflerwards became her heir at
law, were parties, it was recited that she was of age at
the time when the articles were executed. The Plaintifl^
by his bill, alleged, that until after her death, he never

became

CASES IN CHANCERY. 895

became aware that she was a minor at the time of the 1856.
marriage. ^-^n-^^

Campbell

The funded property mentioned in the articles was Inoilbt.
duly transferred to the trustees, but no fine was ever
levied of the real estate, nor was any act done to corn-
firm the articles as to it

The only child of the marriage died in 1835, and the
trusts in favour of the issue failed.

Mrs. Campbell died in 1840, leaving a will dated
17th April, 1837, by which, in exercise of the power in
the articles, she disposed of the funded property among
some of her own relatives. After her death her will was
proved by i2. Cracroft and Arthur Campbell, the exe-
cutors therein named. She left her brother. Sir TFl
Ingilby, her heir at law.

In I854f Aufftista Ingilby became entitled in possession
to the KettUthorpe Estate, whereupon the shifting clause
as to the Harrington Estates took effect. Sir W. Ingilby
died in 1854, and his devisees laid claim to the Har^
rington Estates, discharged from the trusts of the articles,
on the ground of Mrs. CampbeWs having been a minor
when those articles were entered into.

Mr. Campbell thereupon filed his bill against Sir W.
Ingilby's devisees and the parties claiming under Mrs.
Campbell's will, praying for a specific performance of the
articles, and asking in the alternative, that if that relief
could not be granted, compensation might be made to
him out of Mrs. Campbell's personal estate for the loss
of bis life estate in her realty. The Master of the Rolls
decided against Mr. Campbell on both points. The pre-
sent appeal was brought against so much of the decree

S96

CASES IN CHANCERY.

1856.

Campbell

Ingilbt.

as was consequent on the decision that the Plaintiff had
no right to compensation out of the personal estate.

The appeal came before the Court on 19th Novem-
ber, 1856, when their Lordships, not being fully satisfied
on the evidence that Mrs. Campbell was a minor when
the articles were entered into, directed the appeal to
stand over that further inquiry might be made upon the
point. The result was, that not only the fact of her
minority was established beyond all doubt, but it was
also discovered that Mr. Campbell, before his marriage,
made the affidavit commonly made before a marriage by
licence with a minor. He deposed, however, to the
effect, that he had done this as a matter of form, and
he adhered to his statement, that he had not, at the time
of his marriage, any idea that the lady was a minor.

The Attorney-General (Sir R. Bethell), and Mr. W.
D. Lewis, for the Appellant.

We admit that where there are issue, marriage articles,
if incapable of being carried out altogether, must, in
their favour, be carried out as far as they can be: but
we contend, that when the issue are out of the question,
there ought not to be a partial performance. The con-
tract here was one and entire— that all Mrs. CampbelTs
property should be settled. A bill might have been
filed to make her elect to take under or against the settle-
ment, and a right to compensation arises in every case of
election, where the election has been made against the
instrument.

The judgment of Lord JRedesdale in Crofton v.
Ormzby (a), shows, that where issue are out of the case,
unilateral performance will not be decreed of a contract

made

(a) 2 Sch, Sf Lef. 583, 602.

CASES IN CHANCERY.

897

made in consideration of marriage any more than of any
other contract. In Lloyd v. Lloyd {a), the Plaintiffii
were issue of the marriage, though the marginal note
does not state it; Perhins v. Thornton {J)\ and Harvy v.
Ashley (c), turned entirely on the claim of the children ;
and the judgment of Lord JSldon in Lord Rancliffe v.
Parhyns {d\ carries the matter no further. North v.
AnseU (e), is more against us ; but what was said there
as to the effect of the marriage contract was extrajudicial;
the decision turned on the presumption that the covenant
had been performed.

1856.

That Mr. Campbell is Plaintiff does not put him in a
worse position than if he were Defendant ; Hanson v.
Keating (f), where the operation of the rule, that he
who comes into equity must do equity, is considered.

Savill V. Savill (g), is substantially the same case as
this, and is in our favour. We are, in all respects, in as
good a position as the successful party there ; Clough v.
dough (A), also supports our case.

The appointees of the wife are not purchasers, but
mere volunteers. They are not within the consideration
of the marriage contract. — [The Lord Justice Knight
Bruce here referred to Davenport v. Bishopp{i),'] —
The subject was much considered in Johnson v. Le-
gard(k). If the names of the appointees had been
written into the settlement, they would have taken as

volunteers,

(a) 2 Af. 4- C. 192.
lb) AmbL 502.
(c) 3 Atk. 607—610.
{d) 6 Dow. 209.
(e) 2 P. Wmt, 617.
(/) 4 Hare, 4.

(g) 2 Coll. 721.
{h) 5 Pel. 730.
(0 2 F. 4- C. C. C. 451 ; 1
PhiU. 698.

(k) T. Sf R. 281.

898

1856.

Campbell

Inoilby.

CASES IN CHANCERY.

volunteers, and their taking under the power comes to
the same thing.

The Master of the Rolls observes in his judgment,
that the contract could not be varied by the parties after
the marriage, and that is the key to his judgment. But
we submit, that he has erroneously applied that prin-
ciple ; it is varying the contract to carry out a part of it,
and no more. The issue of the marriage, we admit, are
entitled to isolate the consideration of marriage, and to
say, that, this having been given, the one party who was
capable of contracting as to property shall be compelled
to perform the contract on his or her part, though the
rest of the consideration has failed by reason of the in-
competency of the other party to contract ; but marriage
is not the only consideration in a settlement. — [The
Lord Justice Turner. The case is one of a contract,
with two considerations — one of which, one incapable
of valuation, has been paid.] — Yes, and therefore the
issue cannot be met by the allegation of fiiilure of con«
sideration; but, as between the parties to the contract
themselves, the rest of the considerations cannot be over-
looked. To disregard part of the consideration is to
alter the contract which the parties made for themselves.

Mrs. Campbell could have been compelled to elec^
JLady Cavan v. Pulteney (a)^ Wilson v. Lord Towns-
Iiend (J), Moore v. Butler (c). The liability to be put to
election is wholly independent of the power to contract

But Courts of Equity have, where justice required it,
overridden the disability of a married woman to contract.
Dyne V. Costobadie{d)f Jones v. Kearney (e), Derbiskire

V. Home

(a) 2 Vesjun. 544.

lb) Ibid, 693.

(d) 17 Beav. 140.

(f) 1 Dm. ^ War. 134.

CASES IN CHANCERY. 399

V, Home (a), Hughes v. Wells (6), Lassejice v. Tiemey (c). 1856.
— [The Lord Justice Turner. I believe that Hughes
v. Wells has not been altogether approved of).

Campbell

Inqilbt.

Marriage is not part performance, Hammersley v. De
BieHd\ but bringing property into settlement is; which
shows that the marriage consideration is not the only
thing to be looked to.

•

If the contract had been in terms conditional, the
appointees could not have claimed, and a condition is to
be implied, Ardesoife v. Bennett («).

Mr. Baily and Mr. Nalder for the appointees of Mrs.
Campbell.

This is a case in which the Plaintiff is seeking com-
pensation for a loss occasioned by his own negligence
extending over a quarter of a century; for it is not so
much as alleged, that Mrs. Campbell was ever asked to
concur in any act to make the articles binding on the real
estate, or that, if she had been asked to do so, she would
have refused.

The Plaintiff treats the case as if we were asking for
specific performance of the articles, and alleges that we
are volunteers. But we are not asking the aid of the
Court in any way, and there is no case for specific per-
formance. The fund to which we are entitled, was, after
the marriage, transferred with Mr. CampbelVs privity and
approbation to the trustees of the articles, and so the
settlement of it was complete.

(fl) 3 De G., Mac. 4* G. 80. (rf) 12 CI. 4r Fin. 45.

(6) 9 Hare, 749. (e) Dick. 463.

400 CASES IN CHANCERY.

1856. We submit, however, that we are not volunteers, Pulr

q" vertoft V. Pulvertofl {a\ Heap v. T(mge{b). We are

V. so undoubtedly as between us and the wife, but not as

regards other parties to the settlement. We do not
admit, that if the names of the appointees had been
inserted in the settlement, they would have been volun-
teers ; but, if they would, we say that taking under a
power is not, for all purposes, the same thing as taking
directly under the instrument itself, and that our case is
better than if the names had been inserted. The power
of giving away the property by will is part of what the
wife bargained for.

Then the Plaintiff says that the contract was condi-
tional— that the wife failed to perform the condition, and
that we come in under her and have no better title than
she. But the wife was under age, unable to contract,
and the husband knew it ; how can he complain of her
breaking a contract which he knew she had no power to
enter into.

But suppose there was a contract and a breach of it ;
the husband concurred in the breach ; the wife could not
alone do any act to confirm the articles, and the husband
never asked her to concur with him in doing it

It has been argued, that the husband ought in justice
to be compensated for the loss he has sustained ; but why
are we to pay for the loss occasioned by his negligence
when we gain nothing *by it. If we claimed anything
against the articles the case would stand very differently.

The argument on the other side as to election is diffi-
cult to follow. We say that election has nothing to do
with the case.

(a) 18 Vtt. 84. (6) 9 Eorty 90.

CASES IN CHANCERY.

401

It is true, that in most of the cases in which it has
been held that a settlement may be carried out against
one of the parties where it cannot against the other^ the
parties seeking to have it carried out have been the issue
of the marriage ; but there is no case in which it has been
held that only the issue of the marriage can claim the
application of this principle. Two cases, North v. Au"
sell (a) f and Perkins v. Tkomton{b), are against the Plain-
tiff on this point. The other cases are cases where the
issue were the claimantSi and in their favour of course
it was strongly urged that they did not claim under
either party alone ; but the decisions do not rest solely
on that. In Harvy v. Ashley (c), Lord Hardwiche relied
on thisi but he also relied on the fact^ that the principal
consideration was paid by the marriage.

Savill v. Savill does not touch our case. The Plain-
tiff there came asking the assistance of the Court against
the husband, and claiming the personal estate under the
articles, and the real estate against the articles. It was
moreover a hard case, for the wife had not survived her
majority a month, so the husband was in no default.
Here we are not claiming both under and against the
articlesj nor are we seeking the assistance of the Court.

Ardesoife v. Bennett (cf ), was a clear case of election ;
Clough V. Clough (^), turned on the special provisions of
the settlement.

Mr. LetoiSj in reply.

The other side do not notice Crofton v. Ormshy{f).
That case recognizes the right of the children, and at
the same time shows, that when their rights are out

(a) 2 P. W. 617.
(h) Amb. 502.
(c) 3 Atk. 607.

Vol. I.

{d) Dick 463.
(0 5 Ves. 710.
(/) 2 Sch. 4- Lef, 583.

D D D.J.

1856.

Campbell

Inoilbt.

i8fia

CASES IN CHANCERY.

of the way, contracts in contemplation of laarrii^e are
governed by the same rules as other contncts.

I omitted to cite Green y. Green (a), which shows that
the marriage consideration does not cover the £ftilare of
all other considerations in the waj contended for» and it
was a decision against issue of the marriage. [The Lord
Justice Turner. The decision was that the son could
not take both under the settlement and against it. Here
the appointees take nothing against the settlement] NO|
but they claim under the wife, and all parties claiming
under her must be subject to the same equity as she was«

That Mr. Campbell is the party seeking relief does not
distinguish the case from Savill v. 8canU(b\ The posi-
tion of the parties to the record makes no difference, as
was laid down in Hanson v. Keating (c). [The Lord
Justice Turner. It often does make a difference whe-
ther a party is a Plaintiff or a Defendant. Whether it
does so here is another question.]

It is said that Mr. Campbell is seeking compensation
for a loss owing to his own omission, but considering
that during Mrs. CampbelVs life her interest in this real
estate was nothing but a remote contingent interest, he
cannot in fairness be accused of delay, even supposing
the case one in which delay ought to have any efiect. If
there had been no written contract this case would have
been the same as Surcame v. Pinniger{d), and the exist-
ence of a written contract cannot put Mr. Campbell in a
worse position than if there had not been one.

(a) 2 Mer, 86.
(6) 2 CoU. 721.

The

{d) 3 DeG., Hoe. 4 6.^71.

CASES IN CHANCERY.

40S

7%^ Lord Justice Knioht Bruce.

In this case it is conceded, and, as I view the matter,
properly conceded, on the part of the Plaintiff as well as
the Defendants, that Miss Diana Ingilby, whom the
Plaintiff married in the year 1811, was at the time of
their marriage a minor, although the prenuptial settle-
ment made on that event, the settlement on which the
bill proceeds or which has led to the suit, does not dis-
close the fact of her infancy. Perhaps it would (though
I am not sure that it would) have been material had the
evidence established that the Plaintiff, deceived or mis-
taken with respect to the lady*s age, married her in the
belief that her minority had terminated. It is, however,
vpon the proofs, an unavoidable conclusion, that pre-
viously to the marriage he had direct and express notice
that she had not attained majority, and I am clearly of
opinion that be cannot be taken either to have become a
party to the settlement or to have married in the belief
or under the impression that the lady had attained her
majority ; in saying which I desire distinctly to be under-
stood as not imputing to the Plaintiff any intentional
inaccuracy of statement. The marriage I repeat took
place more than forty-five years ago. How his case
would have stood if the lady had died before or soon
after her majority, or had after that event refused or been
unwilling or unable to concur in what was necessary on
their parts to give effect to the settlement as to her real
estate according to its tenor, I need not and I do not
express any opinion ; for she was living in the year 1839,
having attained her majority previously to the year 1813;
and it must, I think, on the materials before the Court, be
taken that there never was any such refusal or unwilling-
ness or inability on her part. I believe, as the Master
of the Rolls seems to have believed, that it was merely
and solely owing to the forgetfiilness, inaittention or in-

DD9 difference

1857.

Jufy 14.

404

CASES IN CHANCERY.

1857.

difference of the Plaintiff, whether proceeding or not
proceeding from his want of knowledge of the English
law, that the settlement was not after the lady's majority
made by fine or otherwise effectual as to her real estate
according to its tenor. I find no ground or reason for
supposing that at any time she was asked or was wished
to concur or would not on request have concurred with
him in doing so. Without his concurrence the act was
impossible.

In this state of things, considering that the lady sur-
vived her majority more than a quarter of a century, and
that her heir at law, Sir William Ingilbi/j was not an
appointee mentioned in her will, nor had or claimed any
benefit under it, I am of opinion that the Plaintiff, who
is not nor has been her personal representative, has no
equity to take from those who claim by force of her will
or testamentary appointment made under the settlement
the benefit of that will or appointment, or to charge the
fund thus appointed with any amount of indemnity or
compensation to him for the loss of that real estate,
which in my view of the matter he must be deemed to
have lost by his own election and act. That he was, if
in fact he was, during the whole of his wife's lifetime,
wholly ignorant of the English law of real property, so
far as it relates to the estates of minors and married
women, is, I repeat, in my opinion, immaterial. And it
seems to me equally immaterial that the interest of Mrs.
Campbell in the real estate in question was not in her
lifetime present or vested. It was specifically mentioned
in the settlement.

I cannot say that the decree appears to me erroneous,
and so far as I am concerned it must stand — a conclu-
sion consistent, as it seems to me, with the decision in
Savill V. Savill, a decision w^hich of course I thought

correct

CASES IN CHANCERY.

405

correct at the time. But whether I was right or wrong
in thinking so^ is not, I conceive, on the present occasion
a material question, for in Savill y. Savill it was I think
shown, that Mrs. Parker had not survived her majority
more than a month, had not made any will or appoint-
ment, and was represented by her husband as her admi-
nistrator.

1867.

The Lord Justice Turner.

I have but a few words to add. Several points of very
great importance were discussed in the argument before
us. The Appellant's argument embraced these ques-
tions : — First, whether in the case of a settlement on the
marriage of a female infant purporting to affect the in-
fant's real estates, and no effectual settlement of the real
estate being made, the husband is in any event entitled
as against the wife and those claiming under her, there
being no issue of the marriage, to compensation out of
other property of the wife comprised in the settlement,
for any loss which he may sustain by the real estate not
being effectually settled ? Secondly, whether, assuming
the husband to be entitled to compensation in any such
case, he can himself originate the claim, or can set it up
only where the wife or those claiming under her resort
to the Court for relief? And thirdly, whether the ap-
pointees and next of kin of the wife are to be considered
as purchasers or volunteers ? It does not appear to me
that this case renders it necessary for us to come to a
decision upon any of these points, and upon questions of
80 much importance I do not think it prudent to give a
merely speculative opinion. I go no further therefore
than to say, that neither the arguments urged at the Bar
nor the cases which were referred to, nor other cases to
which I have referred, have satisfied my mind upon any
of these points. In this case I think that the existence of
the Plaintiff's claim can be attributed only to his own neg-
lect,

406 CASES IN CHANCERY.

1857. led, and I am of opinion that, under such cireuinstanoes,
C^'pBBu. ^ ^^ ^^^ entitled to the compensation which is claimed
V. by this bill. I agree therefore that this appeal must be

dismissed, and I think it must be dismissed with costs.

FYFE V. ARBUTHNOT.

Jdfjf 4.
Before The 'T^HIS was an appeal from the decision of Vice-Chan-

LoRD Chah- X ^^Hq^ Stuart, dismissing the PlaintiflTs bill.

CELLOR.

A party to a

deed of family The bill sought a declaration that a covenant con-
thereby cove- tained in a deed of settlement and family arrangement,

santed that if executed by the Plaintiff, was void and incapable of

be should at . . .

any time be- being carried into effect, and prayed that the covenant

to^ro^'^rt * «- "**^^ ^ struck out and erased from the deed accordingly,
ceeding the with consequent declarations as to the rights of the
Jwhich waT" parties ; or that if the Court should be of opinion that
left in blank), the covenant was not absolutely void, then that the
It upon certain settlement might be altered and rectified in such manner

specified trusts, j^g the Court should think fit, so as to render the cove-
Before any
such property nant intelligible and capable of taking effect, and that

accrued, or the ^]j necessary directions might be given for the purposes

tied under the aforesaid.

trusts were at-

certain. J, he

filed a bill to The settlement was dated the 7th of February, 1850,

dared that the and was made between Jane Currie Fyfe of the first part,
cofenant was jjjg Plaintiff Douglas Monro Fyfe of the second part,
certainty. Jane Catherine Fyfe of the third part, and John Alvei

KfR that the ^fiuiJinot, James Gardiner and William Gascoigne
bill was pro- ' ^

perly dia- Roy of the fourth part. By it Jane Currie Fyfe and

l^^turelT. ^^^® Plaintiff released and assigned to Jane Catherine
Stmik^ that F)ife, her executors, administrators and assigns, all the
Mch unctr- right and interest of Jane Currie Fyfe and the Plaintiff,

lainty as to ^j^^ ^^^jj q( them, to and in certain property therein
wimI^ the M M. if

t«v«ttant void, mentioned, and comprising a sum of 91,028 sicca rupees

upon

CASES IN CHANCERY. 4QT

upon truaU for Jom Currie Fyfe during her widowhoodi 1867.

•ad after her death or second marriage upon trust for
the Plaintiff for life, with divers subsequent trusts, under «.

which unborn persons might become interested. The Amuthhot.
clause on which the question arose was as follows : —

** And in consideration of tlie said release by the said
Jiowe Currie Fj/fe of her life interest in the said sums of
stock as hereinbefore mentioned, he the said DougUu
Monro Fyft^ for himself, his heirs, executors and admi-
nistrators, hereby covenants with the said John Ahes
Arhuthnot and James Gardiner^ their executors, admi-
nistrators and assigns, and with the trustees and trustee
for the time being of these presents, that if he the said
Douglas Monro Fyfe shall at any time obtain or become
entitled to any property exceeding in value the sum
of (a) he will immediately after he shall obtain

possession of the same or become entitled thereto,
whichever shall first happen, assign the same to the
trustees or trustee for the time being of these presents,
upon the trusts hereby declared concerning the said sum
of 91,028 sicca rupees after the decease or marriage of
the said Jane Currie Fyfe*'*

Jane Currie Fyfe was still living, and it did not
appear that the Plaintiff had, since the execution of the
deed, become entitled to any property to which the co-
venant could apply.

The bill contained an allegation, which was not, how«
ever, established in evidence, that this covenant was in-
serted in the deed by mistake and contrary to the real
intentions of the parties thereto ; but the Plaintiff sub^
mitted that, at all events, the covenant as at present

framed

(a) This was left Uank in the deed.

408 CASES IN CHANCERY

1857. framed was wholly unintelligible and impossible to be
carried into effect, and that the same ought to be declared
absolutely void and of no effect, on the ground of un-

Ftps

Arbuthhot. certainty.

Mr. Dean, in support of the appeal, referred to Roe ▼.
Vernon (a), Lewis v. Madocks (i), Hardy v. Oreen (c),
Mohun V. Mohun (d), Richardson v. Watson (e), Jvhber
v.Jubber(f), Peck \,Halsej/(g), Radford v. Sothem (A),
Rooke V. Lord Kensington (i). Child ▼. Douglas {h).
Miller v. Trovers (Z).

Mr. Ferrers, for the trustee, and Mr. Wickens, for
Jane Currie Fyfe^ were stopped by the Court.

The Lord Chancellor.

This deed has been executed, and there is no evidence
to show that it was other than was intended, except so
far as is to be collected upon the face of it. There
has been no evidence read to me to show that there has
been any mistake made, except so far as it is to be inferred
from the fact that there is a blank in the document. I
think that the Plaintiff must take the deed as he has
executed it, and if the time should arrive when there
shall be any property to which the covenant can apply
it can be then decided what is its effect. But I can*
not make a declaratory order beforehand to bind the in-
terests of unborn persons. Without, however, intending

(a) 5 East, 51. (A) I M.SfS. 299.

(6) 8 Vet. 150; 17 Vu. 48. (i) 2 K. if J. 753; 4 IF. K.

(0 12 Beav, 182. 829.

{d) 1 Swant, 201. (k) 1 Kay, 560.

(0 4 £. 4- Ad. 787. (/) 8 Bingh. 244 ; 1 Moo. 4- 5.

(/) 9 Sim. 503. 342.

{g) 2 P. Wm$, 388.

CASES IN CHANCERY. 409

to give any opinion on the point, I do not myself see 1867.
any great difficulty in it, because my impression at the ^^^^
present moment is, that the covenant would not extend 9.

to anything but some capital sum. This, according to Arbuthmot.
my present impression, is apparent on the face of the
deed. Therefore the difficulty that has arisen, as pointed
out by Lord Eldon, in some of the cases referred to, that
every 5/. a man receives shall be subject to the settle-
ment, does not appear to me to arise here. I think that
there is sufficient upon the face of the instrument to ex-
clude that construction. The covenant is, that if any
property shall come to the covenantor (which I take to
be other than income which he is to expend) he will
settle it, if it exceeds the sum left in blank. The ques-
tion, if it arises^ will be whether the result of that cove-
nant is not that if anything should come to him he must
settle it.

I will not give an opinion on this, for I think the
Vice-Chancellor perfectly right in saying that the ques-
tion cannot be decided before it arises. When the pro-
perty comes into his possession, then let the persons
claming to be interested in it applyt

*I0

CASES IN CHANCERY.

1857.

Before The
Lords Jui-

TICBB.

An interim
ofder for pro*
tection under
theft &6Fic^
0. n6;7&8
Vkt. c. 06,
and 10 k 11
Vkt. c 102,
beld to extend
to an attach-
ment for non-
payment into
tlie Court of
Chancery of a
■um of money
by a default*
ing tniitee»

WYLLtE V. GREEN.

rtlHIS was a motion to discbarge an Order made by
■*■ Vice-chancellor Stuart on tbe 11 th of June, 1857,
whereby it was ordered that Henry Spencer Lucy, Esq.,
tbe sheriff of fVarwickshire, should show cause why he
should not be committed to tbe Queen's Prison for not
having taken the Defendant Oeorge Joseph Cheen on an
attachment under the following circumstances.

By an Order in the cause, dated tbe 15th of jPe-
bruary, 1856, it was ordered that the Defendant Oeorge
Joseph Green should, on or before the ISth of March,
1857, pay into Court to the credit of the cause, the sum
of 167/. lOs. 6d., being the balance appearing by the
Chief Clerk's certificate, and an affidavit in the cause to
be remaining in his hands.

Shortly afterwards Mr. Green filed a petition for pro-
tection under the 5 & 6 Vict. c. 116; 7 & 8 VicL c 96,
and 10 & 11 Victc. 102(a).

(a) The following were the
■ections of the Acts referred to in
the argument.

6 & 6 Vki. c 116, a. 1.
'* Whereas it is expedient to pro-
tect from all process against the
person such persons as have be-
come indebted without any fhiud
or groes or culpable negligencci
■o as, nerertheless, their estates
may be duly distributed among
their creditors; be it enacted/'
&c; **That if any person not

being a trader within tbe meaning
of the Statutes now in force re-
lating to bankrupts, or if any
person being such trader, bat
owing debts amounting in tbe
whole to less than 300/^ tbaD
gire notice according to die
schedule to this Act annexed to
one^fourth in number and Tahie
of his creditors, and shall caoee
the same notice to be inserted
twice in the London GateiU and
twice in some newspaper dren-

CASES IN CHANCERY.

411

On this petition the following interim order was made t
— " Be it remembered, tlut the above-named Qtorge

Joseph

1SS7.

latiDg within the county wherein

he reeides, he may present a pe-

titioo for protection from procesa

to the Coort of Bankruptcy, if

he has resided twelve calendar

months in London or within the

hmdon district, or to the Com*

missioner of Bankrupt in the

eountry, within whose district he

may have resided twelve calendar

months, which petition shall have

Anneied to it a Aill and true

■chedule of his debts, with the

names of his creditors and the

dates of contracting the debts

■everally, the nature of the debt

and the security (if any) given for

the same, and also of the nature

and amount of his property and

of the debts owing to him, with

their dates, and the names of his

debtors, and the nature of the

securities (if any), which he may

have for such debts, and which

petition shall also set forth any

proposal which he may have to

make for the payment, in whole

or in part, of his debts; and it

shall thereupon be lawful for the

Judge or Commissioner of the

Court of Bankruptcy, to whom

by any order of the Court, as

hereinafter provided, the same

ahaU be referred, or for the Com-

missiooer in the country to whom

the petition shall be presented,

to give upon the filing of such

petition a protection to the pe-

titioDer from all process whatever,

either against his person or his pro*

perty of every description, which

protection shall continue in force.

and all process he stayed matil
the appearance of the petitionir
in Court as hereinafter provided*"
Sect. 4« " That the Commia-
sioner so authorised, or the Com*
missioner in the country (as the
case may be), shall on the day
notified in such notice as afore«
said proceed to examine upon
oath the petitioner and any cre-
ditor who may attend such exa*
mination, and any witnesa whom
the petitioner or any creditor may
call ; and the said Commissioner
may adjourn the examination
from time to time, and summon
to be examined before him any
debtor of such petitioner, or any
creditor of such petitioner, or any
other person whose evidence may
appear necessary for the purposes
of the inquiry; and if it shall
appear to the said Commissioner
that the allegations in the petition
and the matters in the schedules
are true, and that the debts of the
petitioner were not contracted by
any manner of firaud or breach
of trust, or any prosecution against
the petitioner whereby he had
been convicted of any offence, or
without having at the time of be*
coming indebted reasonable as-
surance of being able to pay the
debts, and that such debts were
not contracted by reason of any
judgment in any proceedings for
breach of the revenue laws^ or in
any action for breach of promise
of marriage, sedvction, criminal
conversation, libel, slander, as-
sault, battery, malicioos arrest.

4IS

CASES IN CHANCERY.

1857.

Joseph Green, being a trader within the meaning of the
statutes now in force relating to bankrupts^ but owing

debts

malicious suing out a fiat in bank*
ruptcy, or malicious trespass, and
that the petitioner made a full
discovery of his estate, effects,
debts and credits, and has not
parted with any of his property
since the presenting of his pe-
tition, it shall then be lawful for
the said Commissioner to cause
notice to be given, that on a cer-
tain day to be named therein he
will proceed to make an order,
unless cause be shown to the
contrary, which order shall be
called a final order, and shall be
for the protection of the person of
the petitioner from all process,
and for the vesting of his estate
and effects in an Official Assignee,
to be named by such Commis-
sioner, together with an assignee
to be chosen by the majority in
number and value of the creditors
who may attend before the Com-
missioner on such day, or for the
carrying into effect such proposal
as the petitioner shall have set
forth in his petition; provided
that the consideration of such
final order may be adjourned
from time to time by the Com-
missioner without any fresh no-
tice: provided always, that it
shall be lawful for the said Com-
missioner, if he shall think fit,
to direct in such final order some
allowance to be made for the sup-
port of the petitioner out of his
estate and effects."

Sect. 5. " That, at the first
examination of the petitioner, it
shall be lawful for the Commis-

sioner to renew the order for pro-
tection, and to renew it from time
to time until the final order for
protection or distribution."

7 & 8 VicL c. 96, s. 3. " That
the Commissioner authorized to
act in the matter of such petition
shall forthwith after such petition
shall have been filed cause notice
of the filing of such petition to
be given, in such manner as the
Commissioner shall direct, to the
creditors named in the schedule
of the petitioner and resident
within the United Kingdom, and
whose debts respectively iball
amount to the sum of 5L, and to
be inserted in the London Gauite
and in some newspaper or new*-
papers circulating within the
county wherein the petitioner
shall reside, and shall thereby
appoint a public sitting of the
Court, whenever the Coromif-
sioner shall think fit, for the fbit
examination of the petitioner,
and the Commissioner may ad-
journ such sitting from time to
time, and allow the petitioner to
amend his schedule and correct
any mis-statement therein, at tba
discretion of the Commissioner;
and the choice of the crediton'
assignee shall take place at inch
sitting or any adjournment thereof,
and shall be made by the majority
in number and value of the cre-
ditors who may attend by them-
selves or their attomies, duly au-
thorized by letters of attorney in
that behalf before the Commis-
sioner on such day; prorided

CASES IN CHANCERY.

418

debts amounting in the whole to less than 300/., having
presented a petition to this Honorable Court under the

provisions

1867.

that the Coromisriooer shall have
power to reject any person so
chosen who shall appear to him
unfit to be such assignee as afore-
said, or to remove any assignee,
and upon such rejection or re-
moval a new choice of another
anignee shall be made in like
manner."

Sect 6. '* That any prisoner
in execution upon any judgment
obtained in any action for the
recovery of any debt, either not
being a trader within the meaning
of the Statutes relating to bank-
rupts, or being a trader within
the meaning of the said Statutes,
owing debts amounting on the
whole to less than 300/., may be
a petitioner for protection from
process, and every such petitioner
to whom an interim order for
protection shall have been given
shall not only be protected from
process as provided by the said
recited Act, but also from being
detained in prison in execution
upon judgment obtained in any
action for the recovery of any
debt mentioned in his schedule;
and if any such petitioner, being
a prisoner in execution, shall be
detained in prison in execution
upon any such judgment, it shall
be lawful for the Commissioner
to order any officer who shall
have such petitioner in custody
by virtue of such execution to
dtschaxge such petitioner out of
eustody as to such execution

without exacting any fee, and
such ofiicer shall hereby be in-
demnified for so doing, and no
sheriff, gaoler or other person
whatsoever shall be liable to any
action as for the escape of any
such prisoner by reason of such
his discharge, and such petitioner
so discharged shall be protected
by his interim order from all pro-
cess for such time as the Com-
missioner shall by such interim
order or any renewal thereof
think fit to appoint, until the
making of the final order for
protection, in the same manner
as if such petitioner had not been
a prisoner in execution : provided
always, that after the time allowed
by any such interim order or any
renewal thereof (as the case may
be) shall have elapsed, such pe-
titioner shall not by such dis-
charge be protected from being
again taken in execution upon
such judgment, but such judg-
ment shall remain in full force
and effect notwithstanding such
discharge."

Sect. 22. « That the final order
to be made under the provisions
of the said Act,* as amended by
this Act, shall protect the person
of the petitioner from being taken
or detained under any process
whatever in the cases hereinafter
mentioned (that is to say), from
all process in respect of the seve-
ral debts and sums of money due
or claimed to be due at the time

• 5&6 Fic^c. 116.

414

CASES IN CHANCERY.

1857.

provisions of the statutes made and passed in the fifth
and sixth and seventh and eighth years of the reign of

her

of filing the petition from lueh
petitioner to the seyeral persons
named in his schedule as cre-
ditors, or as claiming to be cre-
ditors for the same respectively,
or for which such persons shall
have given credit to such peti-
tioner before the time of filing
such petition and which were not
tiien pajrable, or in respect of the
daims of any other person not
known to soch petitioner at the
time of making the final order
who may be indorsees or holders
of any negotiable securities set
forth in sach schedule : provided
always, that every such final order
may be made without specifying
therein any soch debt or debts,
or sum or sums of money, or
claims as aforesaid, or naming
therein any such creditor or cre-
ditors as aforesaid ; and such final
order shall be in the form speci-
fied in schedule (A, No. 3)."

Sect. 26. *• That the final order
for protection firom process shall
and may extend to all process
issuing from any Court for any
contempt of Court, ecclesiastical
or civil, for non-pajrment of money
or of costs or expenses in any
such Court, and that in such case
soch final order riiall be deemed
to extend also to all costs which
the petitioner would be liable to
pay in consequence or by reason
of snch contempt or on purging
the same; and that evefy final
order as to any debt or damages
of any creditor of the petitioner
shall be deemed to extend also to

all costs incurred by such creditor
before the filing of the petitioner^
schedule, in any action or suit
brought by such creditor i^inst
the petitioner for the recoveiy of
the same ; and that all persons as to
whose demands for any such eostei
money or expenses as aforesaid,
the final order obtained by the
petitioner shall be adjudged to
extend, shall be deemed and
taken to be creditors of such peti-
tioner in respect thereof, and en-
titled to the benefit of all the
provisions made for creditors by
the said recited Act er by tins
Act, subject neveitheless to sooh
ascertaining of the amount of the
said demands as may be had by
taxation or otherwise, and to such
examination thereof as is hereni
provided in respect of all daime
te a dividend of soch petitioBer'i
estate and efieets.*

10 & 11 Vict. e. 102, a. 4.
•* That from the time iSbh Act
shall oomroenoe and take eflbel»
all power, jurisdiction and autho-
rity given to her Mafesty's Court
of fiankruptcy and District Comti
of Bankruptcy, and to the Com-
missioners thereof, in matters of
insolvency, by an Act passed is
the sixth year of the reign of ksr
Majesty, intituled 'An Act for
the Rdief of Insolvent Debleii^'
and by an Act passed in the eighth
year of the reign of her Msjes^,
intituled ' An Act to amend the
Law of Insolvency, Bankmptey
and Execution,' and by an Act
passed in the ninth year of the

CASES IN CHANCERY.

415

her present Migeflty, enlitied respectively 'An Aet for
the Relief of Insohent Debtors/ and * An Act to amend
die Law of Insolvency, Bankruptcy and Execution/ and
an Act passed in the tenth and eleventh years of her
Majpst/s reign, entiUed ^ An Act to abolish the Court
ef Review in Bankruptcy, and to make alterations in the
jerisdiction of the Courts of Bankruptcy and Court tot
Relief of Insolvent Debtors,* and such petition having
been filed in this Court, a protection is hereby gifven to
die said Oecrge Joseph Green from all process whatever
(except as hereinafter mentioned) either against bis per-
son or his property of every description, which protection
shall continue in force, and all process (except process
for arresting or holding him to bail under the aothority
ef a Judge's order for that purpose) be stayed until the
9rd day of Aprils I8£7, at ten o'clock in the mornings
being the time appointed for his first examination.**

vasj.

Wtllii

The protection was extended by the following Order
ef die 9rd of AprU, 1857^ '< The within Order for the
protection of the said Cfecrpe Joseph Oreen is hereby
ivnewed until the 15th day of May next, at ten o*clock
in die forenoon.**

On tike 9Mk of March, 1857, the attachment in ques-

fieo was inued, commanding the sheriff to attach the

Defendant Oreen for his contempt in the breach ef the

Order of the SSnd of January.

The

TCifBof berMi^ty.intitQled < An
Aet for better sccurng the Paj-
meat of Small Debts,' or by the
ndm and orden made in punn-
anee of any of the laid Acts, riiall
be transferred to and Tested in
the Court for the Relief of InsdU
Tent Debtors in England, and to
and in the Commissioners thereof

fo the time beii^, and to and in
the County Courts constituted or
to be constituted under an Act
passed in the lOth year of the
reign of her Majesty, intituled
* An Act for the more easy Re-
covery of Small Debts and De-
mands in England,' in manner
hereinafter mentioned."

416 CASES IN CHANCERY.

1857. The attachment was endorsed as follows: — ''By the

Court. For the breach of an Order, dated the S2nd
day of Janwxry, 1857, made in a cause wherein Emma
Wyllie is complainant, and the within-named George
Joseph Green and others are Defendants, in not paying
into the Bank, with the privity of the Accountant-Ge-
neral of this Court to the credit of this cause, WyUie ▼•
Green, the sum of 167/. 10$. 6J. appearing by the affi-
davit of Thomas Parher sworn in this cause, and filed
the S^d day of January then instant, to be the balance
of 544/. 4f. in a certain certificate dated the 9th of
August, 1856, in the said Order mentioned remaining in
the hands of the said George Joseph Green, after deduct-
ing therefrom the several sums of 100/. and 276/. 13s. 6dl
mentioned in the affidavit of George Joseph Chreen, filed
in this cause on the 16th day of January then instant,
as by the said Order the within-named George Josepih
Green was commanded."

The sheriff, by his return, certified that Mr. Chreen
had, before the delivery of the writ to the sheriff, pre-
sented a petition to the County Court of Warwickshire,
according to the provisions of the statutes made and
passed in that behalf, and that such petition having been
filed in the said Court, protection had, before the delivery
of the writ to the sheriff, been, by virtue of the said
statutes, given to Mr. Green, from all process whatever,
either against his person or his property of every descrip-
tion, except process for arresting or holding him to bail
under the authority of a Judge's Order for that purpose,
which protection continued in force, and all process had
(except as aforesaid) by virtue of such statutes, been and
was stayed until and up to the delivery of the writ to
the sheriff, and such protection was then continuing and
in force. Wherefore the said sheriff could not at any

time

CASES IN CHANCERY. 41?

time lawfully attach the said George Joseph Green as by •I'SST.
such writ was commanded.

On the 15th of Mat/, 1857, a final Order for protec-
tion was made as follows : — " Be it remembered, that
the said George Joseph Green having presented his peti-
tion for protection from process of this Honorable Court,
and such petition having been duly filed in Court, and
the said Petitioner having duly appeared and been
examined touching his debts, estate and effects, and it
appearing to the said Court that the said George Joseph
Green, by virtue of the said statutes in that case made
and provided, is entitled to the protection of his person
from being taken or detained under any process whatever
in respect of the several debts and claims hereinafter
mentioned, a final Order is hereby made to protect the
person of the said George Joseph Green from being
taken or detained under any process whatever in respect
of the several debts and sums of money due at the time
of filing his petition from the said Petitioner to the
several persons named in this Schedule as creditors, or
as claiming to be creditors for the same respectively, or
for which such persons shall have given credit to the
said Petitioner before the time of filing his petition, and
which were not then payable, and as to the claims of
all other persons not known to the said Petitioner at the
time of making this Order who may be endorsers or
holders of any negociable security set forth in his said
Schedule. Given under the seal of the said Court this
15lh day of May, 1857."

Upon a motion on behalf of Mr. Green on notice, the
Vice-Chancellor rilade the Order under appeal.

Mr. Bacon and Mr. Quain for the sheriff, in support
of the appeal.

Vol, I. E E D.J. As

418 CASES IN CHANCERY.

1857. As the attachment is one for nonpayment of money, it

is within the protection granted under the 5 & 6 Vict.
c. 116« This is made clear by the subsequent Act of
7 & 8 Vict c. 96, s. 26, which must be taken not as
indicating that a case of contempt for nonpayment of
money was not within the former enactment, but as ex-
planatory of that enactment. Beavan v. Walker (a),
which may be relied upon on the other side, does not
apply. That was an action of tort, in which judgment
was obtained before the date of the protection order.
If it be said that this was a case of breach of trust, and
therefore not within the Acts, the answer to that argu-
ment is, that it could not have been the intention of the
Legislature to throw upon the sheriff or officer having
the execution of the process the onus of discovering
whether any debt was contracted fraudulently or by
breach of trust, and that the remedy of the creditor in
such a case is by application to the Insolvent Court.

They also referred to Phillips v. Pichfordijb) and
7 & 8 Vict. c. 70.

Mr. T. H. Terrell and Mr. M. Kerr, for the Plam-
tiff.

The protection afforded by the Acts is only against
legal debts, except where others are expressly mentioned*
This appears from the 5 & 6 Vict. c. 116, ss. 1 and 4,
as well as from the 7 & 8 Vict. c. 96, ss. 3, 6, ftZ and 26,
and particularly from the two last-mentioned provisions,
the former of which shows that the protection afforded
by the final order is to be in respect of the several debts
and sums due to or claimed by the ^rsons named in
the Petitioner's schedule as creditors, or as claiming to

(a) 12 C. B. 480. (6) 9 C. fi. 459.

CASES IN CHANCERY.

419

be creditors. The final order is therefore restricted to
sums claimed by persons as creditors who are mentioned
in the schedule to the petition; Phillips v. Pickfard (a).
The interim order cannot have more extensive effect.
And by the last of the above-mentioned clauses express
provision is made for the case of contempt for nonpay-
ment of money, a provision which would be unnecessary
if the word *' debt** included sums for the nonpayment
whereof such process was issued. An order to pay a
sum of money into Court cannot be a debt within the
meaning of the Acts, inasmuch as there is no creditor to
whom it is to be paid ; and all the provisions of the Acts,
except where contempt of Court is mentioned, contem-
plate the existence of a creditor, to whom the demand is
payable. As the provision with respect to contempt is
confined to a final order, it does not apply to the state
of circumstances set forth by the return, there having
been no final order made at the date of that return.
The validity of the return consequently depends en-
tirely on the effect of the interim order. Now, not only
is the effect of this interim order shown by the express
provision in the ^6th section as to a final order with
respect to contempts, but it appears, from contrasting
the language of the 5 & 6 Vict. c. 116, with that of the
1 & 2 Vict. c. 110, s. 35, where the words are "debt,
damages, costs, sum or sums of moneys or for or by
reason of any contempt of any Court whatsoever for non-
payment of any sum or sums of money," showing that
neither in framing this Act did the legislature consider a
contempt for nonpayment of money to fall within the
description of a *' debt." It is true that Beavan v.
Walker (b) was specifically a case of a debt arising out
of a tort, but the pinciples on which it was decided ap-
ply to the present case. Lord Chief Justice Jervis there

said: —
(a) 9 C. B. 459. (6) 12 C. B. 480.

E E2

1857.

ma CASES m CHANCERY.

1857* sdd:— "The question turns upon thie constnictfon of
two statutes, the 5 & 6 Vict. c. 116, and the 7 & 8 Vict.
c. 96. With regard to the former of these statutes the
ln^ords seem to me to show plainly that it was intended
to apply to debts, and to debts only. Indeed the only
argument urged by Mr. Hawkins upon that statute is
founded upon the 4th section, which says that 'the order
shall be called a final order and shall be for the protec-
4ion of (he person of the Petitioner from all process, and
for the vesting of his estate and effects in the Official
Assignee.' It is manifest that that section was not meant
to have so extensive a meaning as that suggested, but
that it was intended that the final order should protect
the party from all process which shall have reference to
the subject-^matters which could under the statute come
before the Commissioner for adjudication. The 7 & 8
Vict. c. 96, so far as regards the jurisdiction, seems to
me to come to the same result. But it is said that, as
the final order section of that statute (sect. 22) contains
larger words, it must have been intended to have a larger
operation than the former statute in this respect. By
that section the final order is to protect the person of the
Petitioner 'from all process in respect of the several
debts and sums of money due or claimed to be due at the
time of filing the petition from such Petitioner to the
several persons named in his schedule as creditors or as
claiming to be creditors for the same respectively, or for
which such persons shall have given credit to such Peti-
tioner before the time of filing such petition, and which
were not then payable, or in respect of the claims of any
other persons not known to such Petitioner at the time
of making the final order who may be indorsees or
holders of any negociable securities set forth in such
schedule.' This clearly was not a debt* But it is said
that it was ' a sum of money due or claimed to be due/
So it was, but not due or claimed to be due to the Plain-
tiff

CASES IN CHANCERY. 481

tiff 09 a creditor. No credit was ever givei> to the De- 1857.

fendant either for the judfirment or the costs. The 22nd ilT^'^^^

section was, I apprehend, only intended to apply to debts v.

or to mercantile claims not finally adjusted and ascer- Grbbm^
tained between the parties, and not to cases, like the
present."

The return is also bad for not setting out whether the
protection was under an interim order or a final order,
and a return is strictissimi juris, so that a bad return is
no return.

They also referred to Regina v. Hemswarth (a).

The Lord Justice Knight Bruce.

I think that the sheriff was right. It b not an imma-
terial fact that a final order has been made, though not
before the return of the writ, the delivery of the writ and
its return having taken place between the dates of the
interim order and of the final order. The demand in
respect of which the process has issued is founded merely
on a debt, and arises out of contract wholly and simply.
A trustee, having duly received trust money, and being
called on to account, had failed to discharge himself of
part of it, and consequently an order was made that he
should pay that portion into Court. Having been ordered
to pay this into Court, the usual process issued to compel
the payment, so that through the Court the money might
be paid to the persons entitled to it.

The question is, whether under these Acts of Parlia-
ment there is not protection against caption under an
attachment for this nonpayment I say *^ these Acts of

Parliament"
(«) 3 C. B. 745.

488

1857.

CASES IN CHANCERY.

Parliament" because all the Acts, so far as they are not
repealed, must be taken together. Taking them together
I have no doubt that process issued upon such a demand
as this is one against which the interim order was in-
tended to be a protection by the Act of Parliament, or
the Acts of Parliament bearing immediately on that
point.

The Lord Justice Turner.

I am entirely of the same opinion. It is said that the
protection under 5 & 6 Vict, c. 116, is confined to legal
debts. That is not my opinion. I think that the statute
applies to equitable as well as legal debts. The case has
also been said to be governed by JBeavan v. Walker (a);
but there is a material distinction between the two cases,
for in JBeavan v. Walker the demand arose out of a tort,
whereas in the present case it arises on contract. The
only difficulty which I have felt has arisen from the cir-
cumstance of the enactment in 7 & 8 Vict. c. 96, s. 1^,
expre^ly providing that the final order shall and may
extend to a case of process issuing for contempt for non-
payment of money. But I think that this must be con-
sidered as explanatory of the previous Act, and not as
showing that the previous Act did not reach the case.

Costs of both parties out of estate.

(a) 12 C. B. 480.

CASES IN CHANCERY. 4SS

1857.

JOHN INNES, otherwise HANNIS, and RICHARD
INNES, otherwise ANNIS . . . .Plaintiffs;

AND

ALEXANDER MITCHELL, WILLIAM MIT-
CHELL, calling himself WILLIAM MITCHELL
INNES (out of the jurisdiction), JOHN THOMSON
(out of the jurisdiction), and JANE CUNNING-
HAM, otherwise SCOTT (out of the jurisdiction).

Defendants,

July 7.
rriHIS was a motion on behalf of the above-named Before The

^ Defendants miliam Mitchell Innes, John Thom^ ^''ti«1'"'
son and Jane Cunningham, otherwise Scott, to discharge Where Scotch

an Order of Vice-Chancellor Kindersley, directing ser- e*«c"^ort had

•^ ' °^ ^ under an

vice of the bill upon the Defendants, out of the juris- English pro-
diction, under the first article of the 33rd Order of tbem8dlv«i!rf
May, 1845, which is as follows: — "The Court, upon English aaseu
application, supported by such evidence as shall satisfy testatrix, and

the Court in what place or country such Defendant is, or removed the

•^ "^ greater part of

probably may be found, may order that the subpoena to them into

.pp.., ». or .. .ppe.r U, .„d ..swe, .he bill, „., S'lS,
be served on such Defendant in such place or country, a suit was

or within such limits, as the Court thinks fit to direct/' Sdminwtra-

tiou of those
_^ 4 assets and of

The statements of the bill are very fully set out in Scotch pro*

the 4ih Volume of Mr. Drewry's Reports, p. 57. The P^^y com;

•^ x- * r pnsed in the

following is a short summary of them. willt— Hr^,

T hyL. J. Knithi
•^««« Bruce, .ffiii-
ing the deci-
sion of V. C. Kinder»let/t dubitante L< J. Tymerj that the existence of such a suit
was not sufficient ground for refusing leave to serve the executors who were out of
the jurisdiction with a bill filed in the Court of Chancery of England for the admi-
nistration of the testatrix's estate.

404 CASES IN CHANCERY.

1857. Jane Innes, late of the City of JEdinburgh, a Scotch

woman domiciled in Scotland, died seised of large real
or heritable estates in Scotland, and also possessed of
considerable personal or moveable estates, a very large
portion whereof, exceeding 500,000/., was, at the time of
ber death, invested in the public funds in England.

On the 7th of March, 1832, she executed, in the
Scotch form, a testamentary trust disposition of her heri-
table and moveable real and personal estate, whereby she
gave and disponed the same to Colonel Qeorge Scott,
John Thomson and JSttgh Watson, and the survivor of
them, as trustees and executors : To hold the same in
such manner, and in favour of such person or persons,
and for such ends and purposes, as she might by any
writing under her hand appoint and direct, and failing
any disposal by her of her property, to dispone, assign
and make over Hae same to her '' nearest heirs and exe-
cutors whomsoever."

The testatrix died on the 2nd of December, 1839, and
the trust disposition was soon afterwards duly recorded
in the Books of Council and Session in Scotland, and
was also proved by the said George Scott and John
Thomson, the surviving executors thereof, in the Prero-
gative Court of Canterbury.

The Plaintiffs claimed to have been at the death of
the testatrix, and to be now, two of her nearest of kin
according to the law of Scotland,

The bill further alleged, that Alexander Mitchell, one
of the Defendants, claimed to be the heir at law of the
testatrix, and that William Mitchell (calling himself
William Mitchell Innes) another Defendant, claimed to
be her sole next of kin, and that immediately after the

record

CASES IN CHANCERY. 4M

record and proof of the trust disposition and will of the Ifti?.
testatrix various sums amounting to 624,856^. were, upon
the application of the Defendant WiUiam Mitchell Innes,
transferred by the executors into the name of that De-
fendant! and that the same, or the greater part thereof,;
still were standing either in his name or in that of the
Defendant Alexander Mitchell. The bill alleged, that
the rest of the testatrix's personal estate was paid to the
Defendant William Mitchell Innes^ by the executors, in
the month of December^ 1839, and that the Defendants
Alexander Mitchell and William Mitchell Innes, or one
of them, had ever since retained possession thereof, and
refused to account for the same.

The bill also alleged, that the executors and trustees
permitted Alexander Mitchell or William Mitchell Innes
to enter into possession of all the heritable estate of the
testatrix in Scotland, and that the said Defendants, or
one of them, had ever since continued, and the Defendant
Alexander Mitchell then was in possession of the same^
and refused to give up the estate to the Plaintiff John
Innes as such heir at law as aforesaid.

The bill, as amended, also stated that the Defendant^
Alexander Mitchell, had received various sums of money
out of the proceeds of the estate of the testatrix, and had
invested the same in the purchase of Government funda
and other securities, and of lands, tenements and here*
ditaments in England or Wales, and that the Defendant
WiUiam Mitchell Innes, on behalf of himself and of the
Defendant Alexander Mitchell, paid the sum of 10,000/.
to the Defendant John Thomson, and the sum of 5fiOOL
to George Scott, and various sums, amounting in the
whole to the sum of 5,000/., to various members of the
^Eimily of George Scott, immediately after the real and
personal estate of the testatrix had been as aforesaid

transferred

4S6

CASES IN CHANCERY.

1857.

transferred to the Defendants Alexander Mitchell and
William Mitchell Innes. The bill further stated, that
the Defendant, Alexander Mitchell, was served such
heir as aforesaid^ and the Defendants Alexander Mitchell
and William Mitchell Innes were put into possession of
the real and personal heritable and moveable estate of the
testatrix as aforesaid immediately after the death of the
testatrix, without any regard having been had to certain
notes, memoranda, directions or other information con-
tained in a book of the testatrix mentioned in the bill ;
and although the Defendants John JTiomson and Qeorge
Scott well knew, or had good reason to believe, that the
Defendants Alexander Mitchell and William Mitchell

•

Innes were not respectively such heir at law and next of
kin of the testatrix as aforesaid, and without any notice
of the death of the testatrix, or of the purport or efiect
of her said trust disposition having been given to the
Plaintiffs, or either of them, or to any other person who
was or might have been properly interested in oppos-
ing the respective claims of the Defendants Alexander
Mitchell and William Mitchell Innes to be such heir at
law and next of kin of the testatrix respectively as afore-
said, and before the Plaintiffs or either of them, or any
other person interested in opposing the claims of the said
Defendants or either of them, had become acquainted
with the fact of the death of the testatrix, or with the
provisions of her said trust disposition, and that the exe-
cutors had transferred the real and personal estate of the
testatrix to the Defendants Alexander Mitchell and FFt/-
liam Mitchell Innes, in collusion with the Defendants
William Mitchell Innes and Alexander Mitchell, and
without having made any inquiry or taken any other
measures to discover who were or was respectively the
next of kin or heir at law of the testatrix, and without
having inserted any advertisement or other sufficient
notice of the death of the testatrix, or of the record and

proof

CASES IN CHANCERY. 4Sft

proof of her said trust disposition, or of the provisions 1857.
thereof, in the *' London or Edinburgh Gazette,*' or in
any other newspaper in common circulation in England
or Scotland^ or having taken any other precautions to
secure the due execution of the trusts contained in the
said trust disposition of the testatrix, and they so acted
in order that the Defendants Alexander Mitchell and
William Mitchell Innes might obtain and keep posses-
sion of the said heritable and moveable real and personal
estate, without any proper investigation of the evidence
produced in support of their respective claims to be
respectively such heir at law and next of kin of the tes-
tatrix as aforesaid ; and in order to defraud the person
or persons really entitled to the said real and personal
estate respectively, although they well knew or had good
reason to believe that the Defendant Alexander Mitchell
was not the heir at law of the testatrix, and that the
Defendant William Mitchell Innes was not one of her
next of kin, and that the said Defendants were not really
entitled to the said real and personal estate of the tes-
tatrix, or any part thereof respectively.

The prayer was, that the personal estate of the testa-
trix might be administered under the direction of the
Court, and that for that purpose directions might be
given and accounts taken; that an account might be
taken of the real estate of the testatrix and of the rents
and profits thereof received by the Defendant Alexander
Mitchell or any other person on his behalf, and also of
the real estate and other property so purchased by the
said Defendant out of the proceeds of the estate of the
testatrix as aforesaid ; and that the said Defendant might
be declared to be a trustee thereof for the benefit of the
Plaintiffs, or one of them, and might be charged with an
occupation rent for such part of such real estate as should
appear to have been in his occupation for his own benefit ;

that

4ea CASES IN CHANCERY.

1857. that the clear residue of the personal estate of the tes-
tatrix and of the rents and profits of her real estate might
be ascertained and secured for the parties respectively
entitled thereto, and that for that purpose the rights and
interests of all parties in such residue might be ascertained
and declared ; that, if necessary, a receiver of the rent»
and profits of the real estate of the testatrix, and of the
rents and profits of the real estate so purchased by the
Defendant Alexander Mitchell as aforesaid, might be
appointed ; that the Defendants Alexander Mitchell,
William Mitchell Innes and John Thomson might respec-
tively be restrained by injunction from parting or other-
wise dealing with real and personal estate of the testatrix,
or any part thereof, without the leave of the Court ; that
it might be declared that the defendant John Thomson
and George Scott were guilty of a breach of trust in
transferring the real and personal estate of the testatrix
to the Defendants Alexander Mitchell and William Mit"
chell Innes under the circumstances aforesaid, and that
the Defendant John Thomson and the estate of George
Scott might be rendered liable to make good to the
parties respectively entitled to the said real and personal
estate respectively any deficiency in the same respec-
tively which might eventually appear to have resulted
from such breach of trust.

The original bill was served upon the Defendant
Alexander Mitchell only, who demurred, and the de-
murrer being allowed, the Plaintiffs amended their bill
as above stated.

The Defendant Alexander Mitchell again demurred,
and the demurrer was sUll pending.

On the 23rd of March, 1857, the PlaintiflP obtained ex
parte an Order for service of the bill upon the Appellants

William

CASES IN CHANCERY.

4S9

William Mitchell Innes, John TTiomson and Jane Cun"
ntJigham, in Scotland, and they, having been served virith
copies of the bill, the interrogatories and the Order, in
Scotland, moved before the ViceJChancellor to discharge
the -Order. His Honor refused the application, where-
upon the present motion was made by way of appeal.
The case is reported before the Vice-Chancellor in the
4th Volume of Mr. Drewry's Reports {a\ first on the
demurrer (to wliich reference has been already made),
and afterwards on the motion to discharge the Order for
service.

1857.

It appeared from the affidavits that very little of the
testatrix's estate remained in England, the greater part
liaving been laid out by Mr. Mitchell Innes in the pur-
chase of landed estates in Scotland, of which he and his
fiaimily were in possession. It also appeared that Mr.
Mitchell had in Scotland personal estate of the value of
about SOOjOOO/., derived from the testatrix, and that a
suit was in the course of prosecution in Scotland for the
administration of the testatrix's estate, in which the pre-
sent Plaintiffs might, if they thought fit, intervene and
have their rights (if any) fully investigated and enforced.

Mr. Holt, Mr. Baily and Mr. Cotton, for the Appel-
lants.

This is not a mere question of form, for the Court, by
sanctioning the service of the bill in the exercise of a dis*
cretionary power, will have decided on the propriety of
the administration of this testatrix's estate taking place
partly here and partly in Scotland, If the service be
directed the suit will proceed, and all the expense will be
incurred. It is not pretended that there is any debt un-
paid in this country. The business of administration,

therefore,

{a) Pages 57—141.

ASO

CASES IN CHANCERY.

1857.

therefore, is completed as far as debts are concerned; and,
in the distribution of the clear residue among the persons
entitled, the law of Scotland must be followed. A suit is
now in prosecution in that country, where substantially
all the assets are now situate, and where the distribution
can in all respects be more satisfactorily made than it
can here, irrespectively of the fact of the Scotch Courts
having had seisin of the litigation before the English
Court was applied to. On every ground, therefore, this
is not a proper case for the exercise of a jurisdiction
which the legislature has said is only to be exercised in
cases which the Court, in its discretion, shall consider
proper. Here the will is Scotch, the property is in
Scotland, the law is Scotch, and the parties interested
are Scotch, and yet the Court is asked to exercise a dis-
cretionary power for the purpose of having some small
portion of the property administered, apart from the rest,
in an English Court, thereby producing double litigation,
increased expense, and a possible difference between the
Courts on points on which the Scotch Court must be the
most competent to decide.

They referred to Whitmore v. Ryan{a)y Story, Con-
flict of Laws, pi. 518, The Carron Iron Company v.
]ifaclaren{b), Bushby v. Munday(c\ Jones v. Geddes{d),

Mr. Anderson and Mr. Miller, for the Respondents.

If the executors had happened to be in this country,
the circumstances insisted upon on behalf of the Appel-
lants could not have prevented the Plaintifis from pro-
ceding in the suit. The Act of Parliament and the
Orders were meant to obviate all such difficulties as
arose merely from the residence of parties out of the

jurisdiction.

(a) 4 Hare, 612.

(6) 5 H.qfL. Cfl. 416.

CASES IN CHANCERY.

jurisdiction. The difficulty here is of that kind merely,
and although the power of the Court is discretionary,
yet the only discretion to be exercised is that of seeing
that injustice is not done to the absent Defendant on
account of his absence, and not that of forming a judg-
ment on the merits of the suit. If it were to be exer-
cised as the Appellants contend, every suit must he heard
on the merits before the Order could be made. In this
case, however, the property which the Plaintiffs claim
was English, they are domiciled Englishmen, and they
are entitled to have their title to property acquired by
means of an English probate ascertained and enforced by
an English Court, even if it has been all removed by the
executors out of this country. In fact, however, it has not
all been removed, and part of it still remains here, and of
course, therefore, within the jurisdiction of the Court.

4S1

1857.

They referred to Preston v. Melville {a), Lewis v.
Baldwin (b) J Kennedy v. JEarl of Ccissillis (c), Meihlam
V. Campbell {d).

Mr. Rolt, in reply.

The Lord Justice Knight Bruce.

I was not prepared to think it possible for even five
Counsel to make a dispute of this description last so
long a time. The Order under appeal is one by which
the Vice-Chancellor gave leave to serve, in Scotland, the
process of the Court of Chancery on Defendants (who are
living out of the jurisdiction of the Court in that part of
the country) in order to their appearance here, the subject

(a) 8 a. 4- Fin. 1 ; 15 Sim.

35.

(d) 28 L. T. 351.

(6) 11 Beav. 153.

Inkes

438 CASES IN CHANCERY.

1857. of the suit being one clearly within the jurisdiction of the
Court, by which (as I understand the matter), if the De-
fendants were in England^ the suit would be disposed of
Mitchell, according to the ordinary course and duties of the Court.
For the matter is this: — A Scotch testatrix died the owner
of considerable personal property in England^ amounting
to upwards of 500,000/. in the English funds. It was
necessary, therefore, that her will should be proved in
England^ and it was accordingly proved by her executors
at Doctors* Commons. One of her executors is a De-
fendant, who is now appealing from the Vice-^Chancel-
lor's decision. The executors possessing this very large
amount of personal estate of the testatrix in England
have (it is said) removed it into Scotland. It may be so,
but the fact is immaterial, for it is agreed between the
parties that a clear residue of large amount belonged to
the next of kin of the testatrix ; and the whole matter in
dispute is one merely of fact, viz., who was or were the
next of kin ? The executors have acted on the notion
that one of the Defendants on this record was the next
of kin, and have distributed the property accordingly.
The Plaintiffs, who are resident in England, assert that
this is a mistake, and that they are the next of kin, or
some of the next of kin, and seek in the suit to establish
that fact. It is clear, therefore, that if the Defendants,
to whom I have referred, were in this country for how-
ever short a time, they might be served, and the suit would
go on in the ordinary way. Why should they not be
served in Scotland^ the question in dispute being a mere
matter of fact, and the executors having obtained posses-
sion of the property in England by means of an English
probate ? The motion must be refused, and if I alone
had to dispose of it I should give the costs. But that will
depend on the view which my learned brother may take.

The

CASES IN CHANCERY. 483

ne Lord Justice Turner. 1867.

As the Lord Justice agrees with the Vice-Chancellor Innbs
I have little doubt that they are right in their conclusion. Mitchell.
But I do not feel so confident as to the correctness of
that conclusion. That there is jurisdiction in this Court
over the subject matter of the suit I have no doubt, but
before the Act of Parliament in question had passed, and
the Orders of 1845 were made, this Court had no juris-
diction over the persons of the Defendants, and the
jurisdiction over the person is only, according to the Act
of Parliament, to be exercised by the Court, if the Court
think fit to exercise it. The question, therefore, is under
what circumstances the Court ought to think fit to grant
this power of bringing absent parties before the Court.
In this case there is a litigation in Scotland, in which
the present Plaintifis might (it appears) be conjoined,
and might there dispute whether the property should be
pdd over or not. The Scotch Court, it appears, could
in that conjoint process try whether the Plaintiffs were
next of kin, or nearer or more remote of kin than the
other claimants.

There seems to me great convenience in the question
being so tried, and, at all events, it is not so clear to my
mind that the question will not be properly disposed of
in Scotland as to induce me to think that the application
should have been acceded to. But, as the Lord Justice
agrees with the Vice-Chancellor, the order will stand.
There should, however, I think, be no costs.

Vol. L F F D.J.

4S4 CASES IN CHANCERY.

1857.

FARfNA V. SILVERLOCK.

Juljf 8.

Before The HP HIS was an original motion on behalf of the Plain-
Lord Chan- X jjflp ^jj^^ notwithstanding an Order made in the

celior Lord ^ ^ ^

Cranworth. cause on the 9th of July, 1856, retaining the Plaintiff's

When a bill bill for a year, with liberty to bring an action^ the bill in
has been re-
tained for a this cause might be retained until the 18th of January,

lln' fbr^thl ^^^^' ^^ enable the Plaintiff to proceed to trial in an
Plaintiff to action at law already commenced by him against the De-

don^ hJnTay ^ndant.
be advised,

enlarge the ^^^ following were the material facts as appearing on

time, if it ap- the affidavits,
pear that there
has been a

bon& fide in- fhe Plaintiff was a manufacturer of Eau de Cologne,

tentioQ and .

prompt action at Cologne, and by his bill sought to restrain the De-

theVufntiffto f®'^^^"^ Henry Silverlock, who was a Chemical and
obtain a de- Pharmaceutical label printer at Wardrobe Place, Doctors*
although that Commons, in the City of London, from printing and
from some ac- selling labels resembling those used by the Plaintiff

cidental cir-
cumstances

the decision gy ^ decree of the 9th of February, 1856, the Lord

nas not oeen

obuined Chancellor, varying the decree of the Vice-Chancellor,

within the directed that the bill should be retained for twelve

months; with liberty for the Plaintiff to bring any action
at law he might be advised. The case is reported in the
6th Volume of Messrs. De Gex, Macnaghten and Got-
don's Reports (a).

Inquiries were set on foot, on behalf of the Plaintiff,
as to the use of the labels complained of, but were com-
paratively

(a) Page 214.

year.

SlLYBRLOCK.

CASES IN CHANCERY. 435

paratively for a long period unsuccessful^ owing (as it was 1857.
alleged) to the fact, that subsequently to the institution of ^^'^
the suit in 1855, the Defendant had communicated with «.

several persons who had purchased labels from him, and
had rendered it difficult for the Plaintiff's solicitors to
obtain information, as well as from the fact, that from the
length of time which had elapsed, the stock held by
various persons, with labels printed prior to the year
1855, had been disposed of.

Ultimately, in the early part of December ^ 1856, the
Plaintiff*s solicitors prepared a case for the opinion of
Counsel, and had a consultation on the 18th of Decem-
ber, 1856, between the Counsel engaged on behalf of the
Plaintiff.

On the 13th of January , 1857, the Plaintiff's soli-
citors obtained the written opinion of Counsel, and, on
the same day, issued the writ in the action.

Subsequent delays were occasioned with reference to
providing security for costs, and exhibiting interroga-
tories under the Common Law Procedure Act, so that it
was not till the 13th of May, 1857, that the Defendant
pleaded his pleas and issue was joined. Notice of trial
was given for the sittings in Middlesex after Trinity
Term, being the earliest sittings at which a special jury
cause could be tried.

On the 27th of June the briefs were delivered, and on
the 29th of June the Plaintiff arrived in this country
from Cologne, with an important witness, to attend the
trial of the cause.

Owing to a misunderstanding as to an arrangement for
the postponement of the trial, the junior Counsel for the

F F 2 Plaintiff

436 CASES IN CHANCERY.

1857. Plaintiff was alone present when the cause was called on

^IT^'^^^ at Guildhall, and applied to have the cause postponed,

V. but the Lord Chief Justice refused the application, and,

SiLVERLocK. y^jj^j. ^j^g circumstances, the Plaintiff withdrew the

Record. It appeared, however, on the affidavits, that the
Plaintiff, and nineteen witnesses on his behalf, were in
attendance at the time.

Mr. Daniel and Mr. Hetherington in support of the
motion.

They referred to Stevens v. Praed{a\ Swanger v.
Gardner (ft), Giddings v. Giddings (c), Casbome v.
JBarsham (d),

Mr. Willcock and Mr. Buxton for the Defendant

In Stevens v. Praed the decree was not complete ; and
Giddings v. Giddings was not a case of a decree. In
Swanger v. Gardner, it does not appear whether there
might not have been some special circumstances rendering
proper the course there taken.

JTie Lord Chancellor.

I think the Plaintiff entitled to the indulgence sought
In these cases it is very difficult indeed to make the deci-
sion in one case a precedent for what is to be done in
another. What the Court has to look to is, whether
there has been a bon^ fide intention and prompt action
on the part of the Plaintiff to bring the matter to adju-
dication by the action that he was authorized to bring.
That seems to me fairly shown to have been the case
here. This order was made just before the Long Vaca-
tion, and must be treated as if it had been made at the end

(a) 2 Cox, 374. (c) 10 Beav. 29.

(6) 3 DeG.^ Sm. 696. {d) 5 Afy/. ^ Cr. 113.

CASES IN CHANCERY. 487

Farina

of the Long Vacation as, rightly or wrongly, much atten- 1857.
tion is not given to legal proceedings during the autumnal
months. However, the opinions of Counsel were taken, «.

and at the commencement of Hilary Term the action Silverlock,
was brought. The declaration was delivered in Fe^
bnuzry, and then the delay was on the part of the De-
fendant, to whom, however, no blame appears to be attri-
butable on that account*

But the necessity for this application arises from what
I can hardly call other than an accident. No doubt the
Lord Chief Justice acted quite rightly, for the absence
of Counsel is no reason for postponing a case. A Judge
at Nisi Prius is bound to proceed with the cause, and if
a cause is not ready, whether from the absence of Counsel
or otherwise, it must be struck out or the Record with-
drawn. In this case the Record was withdrawn. It is
quite obvious, however, that the Plaintiff was anxious,
and intended bon& fide to proceed. His having brought
a witness from abroad, and other witnesses from other
parts, affords abundant reason to satisfy me that this was
a bona fide proceeding.

The only question then seems to be as to the terms
on which the indulgence is to be granted. I think that
the Plaintiflf must indemnify the Defendant to the fullest
extent ; that is to say, the costs of this application, and
such sum of money as shall be ascertained to have been
the costs and expenses occasioned by the delay must be
paid to the Defendant, and I think that the security
already given for the costs must be doubled. On these
terms the motion may be granted, and the Plaintiff may
have a further extension of time up to the sixth day of
Hilary Term.

438 CASES IN CHANCERY.

1867.

July 8, 22.

FIELDING V. PRESTON.

Before The rXlHIS was an appeal from a decision of Vice-Chan*
celiorL(yiiD cellor Kinderslet/, and the question turned upon

Cranworth. the construction of the will of James Fielding, whereby

««!^*°'*^^* he gave and devised all his real and personal estate, of
▼anous annul- ® *

ties for lives what nature or kind soever, upon the trusts thereinafter
over ofthem mentioned, that was to say, he gave and bequeathed unto

and charged ^ hjg ^jfe Elizabeth Fielding the annual sum of 400i,

them upon his

freehold and to be paid to her by quarterly instalments, in addition

l^sehold es- ^^ j^^^. pQ^jiQ^ under his marriage settlement, for her

gave all his life for her sole use, not to be subject to the debts, con-

sonaf property *''^' ^^ engagements of any future husband. He also

to trustees in gave unto her the use of his house, garden and pleasure

the rents of ground, with the appurtenances, with the use of his

his freehold, books, furniture, plate, linen, pictures and china, for her

copy bold and

leasehold es- natural life if she should so long continue unmarried,

intmst of aU ^^^^P^ ^^^ books of accounts, title deeds, bills, bonds

his stock in and other securities, which he desired might be delivered

funds, with ^^ ^^^ executors, and kept in his iron chest in his parlour

the interest of q^ "m some safe place. He gave and bequeathed unto his

all inortgaffes.

annuities and daughter Sophia Fielding an annuity of 400/. for her

other Becu- jjjg f^j. j^^j. separate use, and after her decease the tes-
nties of which *^

he might die tator

possessed, to
his son for

life, with a disposition in favour of the son's children, and after his death without
any (which happened), the testator gave his freehold, leasehold and copyhold estates
to one daughter and her issue, and all his funded property and other personal estate
to another daughter and her issue. Held, that the gift of the leasehold estates to the
one daughter was specific, but that the gift of the funded property to the other was not,
and that the latter was consequently chargeable with the annuities in priority to the
former. Held also, that in case of its insufliciency, the freeholds and leaseholds
specifically devised and bequeathed must contribute rateably to the payment of the
annuities. Held also, that, for the purpose of this contribution, the values of the
freeholds and leaseholds must be taken at the death of the testator, and not at the
death of the tenant for life.

CASES IN CHANCERY. 489

tator gave the said annuity amongst all her children on 1857.
their respectively attaining the age of twenty-one, share ^"^^^^
and share alike ; and in default of issue of his daughter «.

Sophia he gave the said sura of 400Z. per annum unto P**"®*''
his son James Fielding^ his heirs and assigns for ever.
The will contained similar bequests of an annuity of like
amount to another daughter named Henrietta and her
children ; and in default of issue of Henrietta, unto
James Fielding, his heirs and assigns for ever. And the
testator gave and devised unto his daughter Sophia
Fielding his freehold house at Churchill, in the parish
of Haslemere, together with the meadow and ponds, with
the appurtenances thereunto belonging, to hold unto his
daughter Sophia, her heirs and assigns for ever ; and in
case of the decease of his daughter Sophia without
issue, then he gave and devised the said house and pre-
mises unto his son James Fielding and his heirs ; and
he gave and devised unto his daughter Henrietta Field-
ing his great house in the borough of Haslemere, which
he formerly lived in, and to her heirs and assigns for
ever ; and in case of the decease of his daughter Hen-
rietta without issue, then the testator gave and devised
the said house and premises, situated in the said borough
of Haslemere aforesaid, unto his said son James Fielding,
his heirs and assigns ; and he gave and bequeathed unto
his said son James Fielding the annual sura of 500/., by
quarterly payments, until his said son attained the age
of twenty-four years. And the said testator thereby
charged and made chargeable all his freehold and lease*
hold estates with the payment of the aforesaid annuities.
And so soon as his son James Fielding attained his age
of twenty-four years, then the testator directed his trustees
or the survivor of them to pay unto his said son during
his natural life all the rents and profits of the testator's
freehold and leasehold and copyhold estates, and the in-
terest of all his stocks in the public funds or Government

securities,

Fielding

440 CASES IN CHANCERY*

1857. securities, together with the interest of all mortgages, an-
nuities and other securities whatsoever the testator might
V. die possessed of; and immediately after the decease of

RE8T0N. j^jg g^jj g^j^ James Fielding he gave and devised the

whole of his freehold estate, and also his copyhold
estates, together with all his personal estate, of what
nature or kind soever, unto the trustees of the will,
their heirs, executors or administrators, upon trusts for
the children of James Fielding ; and in case James
Fielding should happen to die without lawful issue,
then he gave and devised unto his daughter Sophia
Fielding all his freehold, leasehold and copyhold estates,
and to the heirs of her body lawfully begotten ; and in
case of no child or children of his said daughter Sophia
Fielding lawfully begotten, then he gave and devised
the same unto his daughter Henrietta Fielding, and to
the heirs of her body to be lawfully begotten ; and also,
in case his said son James Fielding should not have any
issue lawfully begotten, then the testator gave unto his
daughter Henrietta Fielding, her executors or adminis-
trators, all his funded property, and all other his perscmal
estate not thereinbefore bequeathed, for her sole absolute
use and benefit. And in case no child or children, the
issue of his said son James Fielding, Sophia Fielding
and Henrietta Fielding^ should live to attain the age of
twenty-one years or day of marriage, then the testator
gave and devised all his estates, both real and personal,
to Christopher Richard Preston, and to his heirs, exe*
cutors, administrators and assigns for ever.

There was a codicil to the will, whereby the testator
bequeathed the residue of his personal estate not dis-
posed of to James, and ^,000/. to each of his daughters
Sophia and Henrietta, on their attaining twenty-one or
marrying.

The

CASES IN CHANCERY. 441

The son and the two daughters sunrived the testator, 1857.
and the son afterwards died a bachelor. ^^^^

FiBLDIMO

The principal question was out of what portions of the Pasnoir.
property the annuities were payable, and the Vice- Chan-
cellor having decided that they were payable out of the
leasehold and other personal estate rateably, according
to the values of those estates at the time of the testator's
death, Defendants, who claimed under Sophia, appealed
from so much of the decree as related to the interests
given to Sophia by the will.

Mr. Gohkmid (with whom was Mr. Teed), in support
of the appeal.

There are two questions, first, whether the annuities
are payable out of the residuary estate exclusively of the
leaseholds ; and secondly, if not, and if the whole is to
costrihttte rateably, whether the values for this purpose
are to be taken as at the time of the testator's death, or
as at the death of the tenant for life. I submit that the
bequest of the leasehold is clearly specific, and, if so, the
former quesUon must be determined in the affirmative,
and, if so determined, will obviate the necessity of de-
termining the latter.

He referred to Ooodenough v, Tremamondo{a), Picker-
ing V. Pickering (p), Daniel v. Warren {c), Neville v.
Fortescue(d), Bowden v. Bowden{e).

Mr. Olasse and Mr. Wickens for Henrietta and her
children.

Either no part of the bequest is specific, the son and
his children being universal legatees, or else the funded

property

(a) 2 Beav. 512. (d) 16 Sim. 333.

(6) 4 M^L if Cr. 289. (e) 17 Sim. 65.

44«

CASES IN CHANCERY.

1857.

Fielding

Preston.

property is as specifically bequeathed as the leaseholds.
The property must therefore contribute pro rat&, and
then the rule is, as in charity cases, and all others where
apportionment is necessary, to take the values at the time
of the apportionment.

They referred to Bowden v. Bowden (a), Crowe v.
Crisford{b)f Bethune v. Kennedy (c).

Mr. Baily and Mr. H, Stevens ^ for the heir at law.

The test of a legacy being specific is the character
which it has under the will at the death of the testator.
If not specific then, it cannot become so afterwards.
Here nothing was specifically bequeathed at the death of
the testator, the son being universal devisee and legatee.
Formerly, the test was considered to be, whether the
legacy was capable of ademption. And in Stephenson
V. Dowson {d)y Lord Langdale said, '^ a specific legacy is
something distinguished from the rest of the testator's
estate ; and it is sufficient if it can be specified and dis-
tinguished from the rest of the testator's estate at the
time of his decease. The question, whether a legacy is
specific, implies the question of ademption, or, at least,
very much so ; but I think it has never been laid down,
that there can be no such thing as a specific legacy in a
case in which the testator himself sufficiently specifies
and distinguishes it from the rest of his property at the
time of his own death. There are certainly instances of
specific things of that nature being given, and in which,
I believe, no doubt has ever existed of their being specific,
as the case put by Chief Baron Richards (e), of a be-
quest

(a) 17 Sim. 65.

(b) 17 Beav, 607,

(r) 1 MjfL^Cr, 114.

(d) 3 Beav. 342, 349.

(e) ¥ontainev,Tyler,9Prkt^

98.

Fielding

CASES IN CHANCERY. 443

quest of the horses which the testator had in his stable 1867.

at the time of his death: the common-case of a bequest

of all the plate which should be at a certain house at the ' "v.

time of the testator's death ; or a library or collection of P*"*®"*

books which the testator should have in a particular

room; or of all the testator's wearing apparel, and things

of that sort."

They also referred to Dummer v. Pitcher (a).

Mr. Goldsmid, in reply.

The Lord Chancellor.

With respect to the leaseholds, I think that the bequest
of them is clearly specific. There have been attempts,
in various cases, to determine the meaning of a specific
legacy, and what is the test whereby such legacies may
be distinguished from general bequests. There are
objections to most of the definitions, but I think we are
quite safe in treating that as a specific bequest which the
testator directs to be enjoyed in specie. Now, here it is
perfectly true, that at the death of the testator, this was
not a specific bequest in the sense in which the word is
ordinarily interpreted, because the person to whom it was
given was the person who was to take everything as
tenant for life, and was therefore constituted universal
legatee, and it would be a sort of solecism to speak of any
particular part of the property being a specific bequest, as
far as he was concerned, inasmuch as such portion would
be only a part of the universal gifl. There being a
universal gifl to the son of all the real and personal estate,
including, of course, the leasehold, if he had taken abso-
lutely, there would have been no question whether it was

specific

(a) 2 Afy/. 4- K. 262.

444

CASES IN CHANCERY.

1857.

Fielding

V.
PUBITOK.

specific or general. But he is to enjoy this gift only for
his life, and after his death there is a gift of the leasehold
estates. Therefore, whatever was the name properly
attributable to the bequest during the son's life, it cer^
tainly, in my view of the law, became specific, when it
was given to be specifically enjoyed by another. I con-
fess that, upon that part of the case, I came to the conclu-
sion at which I have arrived with little or no hesitation.

The other question is, whether the gift of the funded
property is specific. It may be said in the same way as
with respect to the leaseholds, that it was absurd to
speak of its being specific, when it only formed a portion
of the whole, which was given to the son for his life.
I cannot help thinking, that if the testator were here to
to state his intention, he would wish this bequest also to
be considered specific, but this is a matter on which I
have no means of judging, and upon which, if I had the
means of so doing, I should not think myself at liberty
to speculate, because it is a very old rule of constructiont
that you cannot construe a gift by considering the amount
of the personal estate, inasmuch as that may increase
or diminish to any extent during the life of the testator.
My mind has fluctuated on this point, but at last I have
arrived at the conclusion that this is not a specific gift
of the funded property, and I come to that conclusion,
because I think it would be very dangerous to hold that
in a will where there is a gift of the residue, and the
testator unnecessarily chooses to enumerate some par-
ticular things in that residuary gift, such a circumstance
was sufllicient to constitute the things so enumerated
specific gifts. It rarely happens, that in the gift of a
residue, something is not mentioned specifically. For
instance, a testator may give his horses, and all his other
personal estate or his stock-in-trade, and the rest of his
personal estate. Such bequests could not, I think, be

properly

CASES IN CHANCERY. 445

properly held to be specific. Suppose the will to be 1857.
worded thus : — " I give to Henrietta, her executors, ad- J^^*^"^^^

, FlELDINO

ministrators and assigns, all my other personal estate, «.

including my funded property." That would not have ?*«•«>».
been specific, and it would be introducing refinements
that are much to be avoided to make any distinction
between such words and those which I previously sug-
gested as instances of a diflerent form of expression.

The consequence is, that the Order of the Vice-Chan-
cellor will be altered by a declaration, to the effect, that
the leaseholds were to be considered as a specific bequest
at the death of James the son, and that the gift of the
share that was given to Henrietta (including the funded
property) was to be considered as general residuary pro-
perty not specifically bequeathed, and that the latter must
be the property first liable to the payment of the annui-
ties. I suppose there is no doubt that the fund will be
sufficient with that declaration. I must add, that had
I thought the gift of the funded property specific, as well
as that of the leasehold, I should have entirely concurred
with the Vice-Chancellor in saying, that in assessing the
relative proportions of the annuities to be borne by these
two funds, you must calculate what the value of the
leaseholds was at the death of the testator, not what it is
now. To say that they are wearing out, and are now of
much less value, is only another mode of stating the con-
sequence of the proposition, that the testator meant the
tenant for life to enjoy them in specie.

The case was again mentioned on this day, on the Jufy 22.
question, whether the specifically devised and bequeathed
freeholds and leaseholds must contribute rateably to make
up the deficiency (which it appeared there would be in

the

446

CASES IN CHANCERY.

1857.

Fielding

Preston.

the general residuary estate including the funded pro-
perty) for payment of the annuities, or whether the lease-
holds, being personal estate, must not be first applied.

Tombs V. Moch (a), and the cases there cited, were
referred to.

The Lord Chancellor held that the freeholds and
leaseholds must contribute rateably according to their
values at the death of the testator.

(a) 2 Coll. 490.

Jufy 14, 15.

Before The
Lords Jus-
tices.

Trustees of a
charity pur-
chased land
and cove-
nanted to
erect upon it
buildings, con-
sisting of a
hall in the
centre, with
almshouses
(some on each
side of the
hall, and others

Lord ROBERT GROSVENOR v. The HAMP-
STEAD JUNCTION RAILWAY COMPANY.

rilHIS was an appeal from the refusal by Vice-Chan-
cellor Wood of a motion for an injunction to re-
strain the Defendants the Hampstead Junction Railway
Company from taking a part of what was alleged to be a
'' house'* without taking the remainder, according to the
9Snd section of the Lands Clauses Consolidation Act (a).

The property in question consisted of a piece of land
in front of the site of one of an intended row of alms-
houses

of any house or other building or
manufactory, if such party be
willing and able to sell and con-
vey the whole thereof.

(a) Sect. 92. ** That no party
forming wings ghall at any time be required to
? ..J? *"**" sell or convey to the promoters
a garden in ^^ ^^® undertaking a part only
the centre. A

portion was to be built within a specified time, and the rest as funds were subscribed.
Before more than the centre was completed a railway company, under the provisions
of the Lands Clauses Consolidation Act, required to take a portion of the land which,
when the design was complete, would be part of the garden in front of one of the
intended (but then unbuilt) almshouses. Held, that the land was part of a house
within the meaning of the 92nd section of the Act.

CASES IN CHANCERY.

447

houses held by a charitable society called the St, Pancras
Almshouses Institution, under the following title: —

By articles of agreement dated the 29th January,
1852, and entered into by and between a corporation
called "The Governesses' Benevolent Institution/* and
the Plaintiffs, who were trustees of the St. Pancras
Almshouses Institution, of the second part, the Govern-
esses' Institution agreed to sell to the Plaintiffs the land
delineated in a plan thereto annexed, for the purpose
of having certain almshouses built thereon by the Alms-
houses Institution, according to certain plans already ap-
proved by the Governesses' Institution. And it was
thereby agreed that the centre portion of the almshouses,
with accommodation for twelve inmates, as specified in a
plan referred to, should be erected and completed within
five years from the date of the agreement, and the re-
mainder as soon after as the state of the almshouses
funds would allow. The plans approved of delineated a
row of almshouses, with a hall in the centre, wings at
each end and a garden or pleasure ground in front.

1867.

Lord
Grosybnor

The

Hampstead

Junction

Railway

COMPAMY.

Pursuant to the said agreement, the Plaintiffs, in the
month of February, 185^, took possession of the land.
They afterwards entered into a contract with builders,
dated the 11th October, 1852, for carrying the first-
mentioned agreement into effect.

There was annexed to this contract a plan which
showed the design of the intended buildings, and accord-
ing to which there was to be a centre part, which was to
be a hall with proper offices annexed; and there were to
be three houses on each side of the centre building, which
were to be completed in the first instance and within eight

months.

448

CASES IN CHANCERY.

1857.

Lord

Grosvbmoe

«.

Th«
Hampstkad

iuNCTIOK

Railway

COMPAJIT.

months. As to the other portion of the building, which
included additional almshouses on each side of those
already referred to^ and the two wings besides those
additional almshouses, the contract provided, that these
two several wings, and the remaining portions of the in-
tended almshouses, together with all works and thii^
incident thereto, and together also with 300 feet of the
boundary wall in the rear of each of such wings, should
be respectively commenced and should be respectively
completed in manner therein mentioned at or within such
respective spaces or times as the trustees should from
time to time direct

Pursuant to the terms of the contract, the builders
proceeded to erect a portion of the works, and before the
15th July, 1854, the centre or middle portion of the line
of building was completed, including the common hall,
library, room and offices.

By an indenture dated the I6th August j 1853, the site
was conveyed to the trustees, who thereby covenanted
that the land should be used and employed for the
purpose of erecting and building almshouses thereon by
the St. Pancras Almshouses Institution, together with
suitable gardens and offices thereto, according to the
plans.

The Plaintiffs, as trustees of the almshouses, had on
their part fully performed up to the present time the
terms of the agreement of the 16th August, I85S, and of
the contract with the builders, and of the conveyance of
the site, and had altogether expended on the land in so
doing nearly 8,000/.

The Defendants were incorporated under an Act of

Parliament

CASES IN CHANCERY.

448

Parliament of the 16 & 17 Vict, intituled " An Act for
making a Railway from the London and North- Western
Railway at Willesden to the North London Railway, with
a Branch to the North and South-Westem Junction
Railway, to be called the Hampstead Junction Railway,
and for other purposes/' and the provisions of the Lands
Clauses Consolidation Act, 1845, were made part of the
Act, which empowered the Defendants to take lands, in-
cluding the site conveyed to the Defendants as above
mentioned.

1857.

Lord

Grosvenor

iThe

Hampstbad

Junction

Railway

CoMPANT.

On the 15th July^ 1854, the usual notice was served
by the Company on the Plaintiffs' solicitor, requiring to
take a portion of the land, being a part of that intended
to be used as a garden in front of one of the intended
almshouses not yet in course of erection, whereupon the
Plaintiffs required the Defendants to take the whole or
no part of the site conveyed to the Plaintiffs, assigning
as a reason, among others, that the part which the Com-
pany proposed to take was a portion of a continuous
tenement, which, by the abstraction of such part, would
be entirely destroyed for the purposes for which the land
had been purchased.

The Company disputed their liability to take the
whole, and gave notice of their intention to proceed
under the compulsory clauses of the Lands Clauses Con-
solidation Act, by giving a bond under those provisions.

After some fiirther communications between the par-
ties the bill in the present suit was filed, praying that the
Railway Company might be restrained by injunction
from entering upon, taking possessipn of or otherwise
intermeddling with the said piece of ground and premises
or any part thereof, and from commencing or carrying on
any railway or other works or operations in or upon or

Vol. L G G D.J. affecting

450

CASES IN CHANCERY.

1857.

Lord
Grosvenor

The

Hampstead

Junction

Railway

Company.

affecting the said piece of land and premises, or any part
thereof; and that it might be declared that the Railway
Company were compellable to take the whole of the said
piece of land and premises, and not merely such part
thereof as was specified in their notice, and that it might
be ordered and decreed accordingly.

The Vice-Chancellor, in refusing the injunction, said,
that, looking at the whole circumstances of the case, he
could not say that any portion of a " house" had been
taken. It appeared to his Honor that the portion as to
which notice had been given, being a portion of land not
yet built upon at all, could not be considered part of a
house or building. The question seemed to be, whether
any portion of the land proposed to be taken by the Com-
pany would pass by a grant of the only portion of the
building which had been at present erected, namely, the
centre portion. If a conveyance had been made of that
portion, his Honor apprehended that it would not have
passed any portion of the land required by the notice, for
there was nothing which amounted to a curtilage for the
use of the part already built upon. It was true that it
might, when the whole was complete and built upon, have
been turned into a curtilage, but it had not by usage or
otherwise acquired that character. It had not, therefore,
become any part of that house, which was the centre
building, and which was the only building which had
been yet erected, and seemed to be a complete build-
ing. It was not necessary for him to consider what would
have been the result if the other portion had been built,
or whether, in that case, the Defendants could have con-
tended that the almshouses were to be taken as separate
tenements, if the whole had been erected ; or have insisted
on taking away any number of the tenements they pleased
leaving the others standing. His Honor apprehended
that, when the whole was completed and surrounded with

railings

CASES IN CHANCERY.

451

railings as intended, the garden would have formed one
complete curtilage to this species of collegiate establish-
ment ; but at present the land in question did not appear
to be part of either a house or building, or a curtilage of
a house or building, or anything to which with propriety
the term part of a house or building could be attached.

From this decision the Plaintiffs appealed.

Mr. Willcock and Mr. Torriano in support of the
appeal.

A grant of a '^ house " will pass a curtilage, and this
piece of land is the curtilage to the building; Doe v.
Collins (a), BettiswortK s Case{b), Co, LitU 5 b, Garden
Y. Tuck (c), Smith v, Martin (d), Shepp, Touch. 94.
The principle of Stone v. Commercial Railway Com-
pany (e), is against the Defendants ; see also Taylor v.
Clemsonif). The building, now only in part erected,
cannot be considered a set of separate houses, it is one
mansion occupied by a number of inmates who are under
one common control; attend the same place of worship;
have a general common room ; a common washhouse and
a common cistern. To this building the piece of land
is the curtilage which would pass by a grant of the
*' house," and the word is not in favour of a public Com-
pany to be construed as less extensive in an Act of Par-
liament than in a deed. Moreover, the Defendants are
bound by their first notice, which shows an intention
to cut off a corner of one building. Sparrow v. Oxford,
Worcester and Wolverhampton Railway Company (g).

(a) 2 Term R. 498.
(6) 2 Rep. 32 a.
(f) Cro. Eliz. 89.
{d) 2 Saund. 400.

Mr.

(e) 9 Sim. 621 ; ^ M. J^ C.
122.
(/) 2 Q. B. 978, 1036.
(g) 2 De G., Mac. ij- G. 94.

GG2

1867.

Lord
Orobvenor

The

Hampbtead

Junction

Railway

COMPAMT.

i6St

CASES IN CHANCERY.

1867.

LOED

G&oaTEnoE
«.

Th«

Hampstkao

jukctiqv

Kailwat

Con^Aiir.

Mr. Speed (with whom was Mr. Holt) for the Railway
Company.

The word ** house/' in this section of the Aot, is used
in a more restricted sense than usual, for otherwise the
additional word *' building " would have been unne-
cessary. Nor is there any hardship in so construing it,
for the Act of Parliament contains ample provisions for
compensation, and the Plaintiffs may, under those pro-
visions, if justice require it, obtain as large a sum for
compensation as if the whole building were taken. The
Appellants, however, wish to attribute to the word
** house ^ even a larger meaning than it legally has, and
in substance contend for an interpretation which would
make it synonymous with the word *' messuage," a term
of much larger import, and which does not occur in the
section in question. Nor can this land be said to be part
of the '^ curtilage/' even supposing the curtilage to be
included in the word " house " in the section. The lan-
guage of 4 Edward I. stat. 1, shows that the meaning of
" curtilage " is different from that of the word " garden,*
the words of that Act being " with the gardens, curti-
lages, dovehouses," &c. If one building in the Temple
were taken, must the whole Inn be purchased?

The Lord Justice Knight Bruce.

The singular manner in which the 92nd section of
the Lands Clauses Consolidation Act is worded gave
rise to questions as to the true meaning of the word
*' house," contained in that section ; whether it was, or
was not, to be considered as used in a more limited sense
than that in which the law generally, if not universally,
understands it. But I thought that all such questions
had been set at rest ; and that, for the sake of general
convenience and for the sake of ordinary justice to pri-
vate

CASES IN CHANCERY. 468

vate proprietors^ it had been considered right to read the 1857.
word ** house " in that section in its ordinary legal sense. v^»v^^^

If that be so, then, in my view of the case (with the gaosvenor
utmost respect and deference — which no man can ex- v.

press more sincerely than I do — for the opinion of the ttxiitsiEAb
learned Vice-Chancellor Wood, if I am differing from Jonctioh
it), the Railway Company, in proposing to take this Compamt.
land — although they do not propose to touch the actual
building—are proposing to take part of a ''house," and
are therefore liable to an injunction, which I think ought
to be granted.

2Tie Lord Justice Turner.

This question arises upon the construction of the 9Snd
section of the Lands Clauses Consolidation Act, by which
it is enacted, '' That no party shall, at any time, be re-
quired to sell or convey to the promoters of the under-
taking a part only of any house or other building or
manufactory, if such party be willing and able to sell
and convey the whole thereof" The argument, on the
part of the Railway Company, as I understand it, is
this : — that in the descriptive words " part only of any
house or other building or manufactory," the word
" building " interprets the word " house " so as to con-
fine the latter word to the actual edifice or structure of a
house. I cannot, however, agree in that construction ;
on the contrary, I think that the word " building," in
this section, was inserted for the purpose of extending
the provision of the section to erections which might
not fall within the description of the word " house ;'^ to
buildings not being houses. I think, therefore, that
the question we have to consider is, whether the pro-
perty, which the Company are proposing to take, is
"part of any house," without reference to any such

limited

454

CASES IN CHANCERY.

1857.

Lord
Grosvbmor

The

Hampstbad

Junction

Railway

Company.

limited construction as is contended for by the Com-
pany.

I know of no means by which we can interpret the
word " house " in this section, except by a reference to
the legal construction put upon that word in other in-
struments. I take, therefore, the question to be, what
would pass under a conveyance of the house ? That,
as I think, must be judged of by the particular situation
and circumstances of the property at the time. Now, the
circumstances appear to be these: — that in front of the
line of buildings, at a little distance from them, lies
a road, and that between the houses and the road
there is an open space intervening. Would that open
space pass by the description of "the house" in a
conveyance ? In my opinion it would ; and I think so
the more, because, when I refer to the plans of the
property, the intention evidently was, that the inter-
vening land should constitute a garden to the almshouses,
and should be separated by an iron fence from the
road.

If, then, this intervening land would legally pass by
the description of " the house," there is nothing further
to consider, except the question, whether the Railway
Company does, or does not, propose to take any part of
that intervening land. It is clear that it does, because
it proposes to pass over and take parts of the land which
would be immediately in front of one of what Mr. Speed
calls "these separate tenements.*' If the Company could
maintain the argument, that this building was composed
of "separate tenements," it might be arguable, that only
that tenement ought to be purchased, in front of which
the piece of land taken was situate. But I think it in

vain

CASES IN CHANCERY. 455

vain to argue, that these can be considered as separate 1857.
tenements. v^v-^/

Lord
Grosvenor

As the Company, therefore, take parts of what I con- _J;
aider to be the " house," according to the legal construe- Hampstead
tion of the word, they must, under the Act, take the junction

xvAIIi WAT

whole; and this injunction, therefore, must go. Company.

BLACKMORE v. SNEE.

July 1 8.

rpHIS was an appeal from the decree of Vice-Chan- Before The
cellor Stuart upon a special case stated for the ,,^ Chan-

*^ ^ ^ cellor Lord

purpose of determining the construction of the will of Cranworth.

Thomas Blackmore, dated the 6th June, 1826, whereby 4 *estatoj de-

vised and be-
the testator gave and bequeathed to trustees all his lease- queathed his

hold and copyhold estates, messuages and premises, in J®«>"waryes-
trust for his wife for life or widowhood, with the follow- for his widow
ing gift over: — "And from and immediately after the hCTdeath°to*'

decease of my said wife I direct my said trustees or trustee sell and pay,

II 1 <i* /• 1 n ^^ assign or tran»>

to sell and dispose of such part of my said trust estate fer the moniei

and effects as may be in its nature saleable, and to pay, ?""ng there-
assign or transfer the monies arising therefrom, and all testator's four

and singular other my said trust estate, monies and pre- ^"""'^° "^

o J 9 f name, equally

raises, unto Eunice Wilmot Blachmore my daughter, to to be dirided
James Blachmore my son, to Eliza Blachmore my ste'and*"""'
daughter, and to John Blachmore my son, equally to be ^^^^^ a^'^^e*
divided between them, share and share alike, or equally divide the

^Q aforesaid ef-
fects between
the survivors of" his said children, immediately after his wife's decease, in case the
youngest of the said children for the time being should then have attained twentv-
one years, but if the youngest should not then have attained twenty-one years, tne
testator directed the trustees to receive the annual interest, produce, profits and
proceeds of the trust monies, and pay and apply as much of the interest as should
arise from the equal share of each child in the maintenance and advancement of each
such child, as the trustees should deem expedient. Held, that there was a clear gift
to the children equally, that the provision as to survivors was not sufficiently clear to
control it, and that, consequently, all the children took vested interests, which were
not divested by their dying in the lifetime of the widow.

466 CASES IN CHANCERY.

to divide the aforesaid effects between the survivors of
my said children immediately after the decease of my
said wife^ in case the youngest of my said children for the
' time being shall then have attained the age of twenty-one
years ; but if the youngest of my said children should not
have attained the age of twenty-one years^ then I direct
that my said trustees or trustee shall receive the annual
interest^ produce^ profits and proceeds of all and singular
the last-mentioned trust monies^ estates and premises
hereinbefore devised as aforesaid, and pay and apply so
much of the said interest and annual produce as shall
arise from the equal share of each child in the said trust
estate, monies and premises for the maintenance, educa-
tion and advancement of each such child, in such manner
as such trustee or trustees shall deem expedient: pro-
vided always, that, notwithstanding all or any of the
aforesaid trusts, it shall be lawful for my said trustees or
trustee at any time after my said son John Blackmart
shall attain the age of sixteen years, by and with the
consent of my said wife, and after her decease at their or
bis discretion, to advance out of the said trust estate,
monies and premises of this my will any sum of money
not exceeding 300/. for the advancement and preferment
in the world of my said son John Blackmore in any pro-
fession, business or employment; and I direct that the
sum so advanced to my said son John Blackmore shall
not be deducted out of his equal share of the whole of
my effects when the final and equal distribution as afore-
said shall be made."

The testator died shortly after the date of his will, and
the same was, on the ^th July, 18^6, proved by the
executors therein named.

The four children of the testator named in the will
were all living at his death. One of them, Eliza Black'-

IftOTtf',

Blackmorb

CASES IN CHANCERY. 467

m^Cf died on the 6th November, 18S2, an infant. Ano- 1857.
ther, Eunice Wilmot Blackmore, married Henry Snee,
and upon the marriage her interest, under the testator's
will, was settled upon trusts for herself, her husband and Shbb.
their children, with a testamentary power to herself. She
died in 1841, having exercised the power in favour of her
husband. Another of the children, James Bhickmore,
attained twenty-one, and died in 1841, intestate.

Eunice Blackmore, the widow of the testator, died on
the 14th November y 1856, at which time the Plaintiff
was the only survivor of the testators four children
mentioned in his will.

The Plaintiff* contended that, according to the true
construction of the will, the trust estate was bequeathed
to such only of the testator's children as should survive
the testator's widow Eunicey and that consequently, ac*
cording to the true construction of the will, the Plaintiff
was entitled to the entirety of the trust estate as being
the only child who had survived her.

The whole of the testator's estate comprised in the
general bequest consisted of personalty.

The questions which the Plaintiff and Defendants
submitted for the opinion of the Court were—

1. Whether, under the will of the testator James
Blackmore, his four children in the said will named did
or not take vested transmissible interests in the testator's
estate ?

2. Whether such only of the four children as survived
the testator and attained twenty-one years of age took
such vested interest ?

3. Whether

458 CASES IN CHANCERY.

1857. 3. Whether under the will the Plaintiff^ as the sole

survivor of the four children at the death of Eunice
Blackmore^ was now entitled to the whole of such

Blackmore

Sneb. estate?

4. Who, upon the death of the testator's widow
Eunice^ became entitled to the testator's estate ?

5. Out of what fund the costs of this case should be
paid?

The special case came on to be heard before his Honor
Vice-Chancellor Stuart on the 28th March^ 1857, when
it was declared that Eunice Wilmot Blackmore^ James
Blackmore, Eliza Blackmore and Jokn Blackmore, the
four children of the testator James Blackmore named in
his will, took vested interests under the said will in the
estate and effects of the testator; and it was ordered
that the costs of the Plaintiff* and Defendants of the
special case, and consequent thereon, as between solicitor
and client, should be raised and paid out of the testator's
estate.

From this decision John Blackmore the Plaintiff* ap-
pealed.

Mr. Craiff and Mr. Lewin in support of the appeal.

They referred to Pope v. Whitcombe {a), Cripps v.
Wolcott(b), Taylor V, Beverley (c), Wordswortky. Wooded),
Howgrave v. Cartier (e), Neatkway v. Read {f), Seam
V. Baker (g), Weedon v. Fell (A).

Mr.

(o) 3 Ruu. 124. (e) 3 Ves, * B. 79.

ib) 4 Madd. 11. (/) 3 Dt G., Mac, ^ G. 18.

(d) 1 H. o/L. Ca. 129. (h) 2 Aik. 123.

CASES IN CHANCERY. 459

Mr. Bacon and Mr. W. Forster for the Respondents. 1857.

Smeb.

Blackmore
They referred to Woodcock v. JElarl of Dorset (a), v.

Powis V. Burdett (b), Bouverie v. Bouverie (c), Walker

V. Simpson (rf).

Mr. Craifff in reply.

J%c Lord Chancellor.

The question is, whether the wife, having had the four
children mentioned in the will, but having only lefl one
surviving her, the others having died, two having attained
the age of twenty-one, and one under that age, the son,
upon the true construction of the will, takes the whole,
or whether all of the four children took vested interests,
which have not been divested. A great deal has been
said as to the authorities on such a point, and the prin-
ciple of them is said to be, that if there be a gift to a
class of persons, or to the survivors or survivor of them,
the survivorship must prim& facie be construed as apply-
ing to the period of distribution. Thus, if there be a
gift to the children of A,, or the survivors or survivor of
them, and such a gift follow a gift of a life estate, the
period at which the survivorship is to be ascertained
must be taken to be that of the death of the tenant for
^ life. Whether this is a good rule or not I do not stop
to inquire, and it is often better to adhere to a rule
than to dispute about the propriety of it. I may, how-
ever, observe, that where there is a gift to a parent
for life, and after his death to his children, or the sur-
vivors or survivor of them, the intention of the testator
is probably disappointed in 99 cases out of 100 by such

a rule,

(a) 3 Bro. C C. 569. (f ) 2 Phill, 349.

(6) 9 Vei. 428. (</) 1 K. «}• /. 713.

460 CASES IN CHANCERY.

1857. a rule, for a testator would rarely intend that the acci-
dent of a child dying in the parent's lifetime should
deprive the child of his share altogether. I agree, how-
ever, that, prim& facie, such is the rule of construction.
But it is only a rule to be followed where there is nothing
to show an intention to the contrary. The question is,
whether there is not enough here to show a different in-
tention. I think there is. The testator has shown, that
what he intended was, that each child should have an
equal share.

But then follows the provision for the event of the
children having all attained twenty-one in the widow's
lifetime. What is the meaning of that povision ? Was
it intended to alter the description of the persons who
were to take under the words contained in the preceding
line of the will, or ought the subsequent line to be read
so as to make it conformable to the preceding line f The
Court must look at the whole will, and see which is the
more probable intention. Now, it is so probable, that
the testator intended to provide for all the children, and
not for such only of them as should be living at a given
period, that the Court is entitled to construe, if it can,
the second line in conformity with the preceding line*
Throughout the will the testator speaks of the shares
being equal, and I strongly incline to think that the sub-
sequent direction in which the provision as to survivor-
ship occurs, was not intended to interfere with this. The
testator had before said, that all his effects were to be
sold and turned into money. At the time of his death
his- property consisted of shares in leasehold estates and
copyhold estates, and money in the funds. But in the
claiise providing for the event to which I have referred,
the trustees are directed to divide the " aforesaid effects "
between the survivors in specie, instead of being directed
to sell. The meaning might have been this, that the

survivors

CASES IN CHANCERY.

461

survivors should have the right of electing whether to
take their shares in specie or not, so that the effect
would be not to alter the class of persons entitled, but
to give to those of them who survived the right of elect-
ing to take in specie. Whether this be so or not, I am
of opinion, that there are words indicating a clear inten-
tion that all the children should take equally, and that
there is no sufficient indication of a different intention
to cut down the import of those words.

1867.

Appeal dismissed.

PEARL V. DEACON.

npHlS was an appeal from the decision of the Master
of the Rolls, reported in the 24th Volume of
Mr. JBeavan's Reports, p. 186, where the facts are fully
stated. The following is an outline of them. In iVb-
vembeTy 1852, Mr. Pearson, a publican, applied to Messrs.
Deacon, the Defendants, who were brewers at Windsor,
for a loan of 2501., which they advanced him on the
Plaintiff joining Pearson in a promissory note for half
that amount as a surety, and another surety joining him
in another note for a similar amount. These notes bore
date the 16th November, 1852, and were delivered to the
Defendants, to whom Pearson, on the 25th November,
assigned, among other things, furniture and effects at
a house which he held as tenant to the Defendants,
subject to redemption on payment of the debt on the
16th November, 1858, or at such earlier or other time as
the Defendants should appoint. In 1852 the Defendants
distrained and seized the goods comprised in the security
for rent in arrear, and they brought an action against

the

July 16.

Before The
Lords Jus-
tices.

Landlords ad-
vance money
to their te-
nant on a joint
note of himself
and a surety.
They after-
wards take a
security for
this and ano-
ther sum ad-
vanced at the
same time, by
an assignment
of furniture of
the tenant by
way of mort-
gage. Held,
that, by taking
the furniture
under a dis-
tress for rent
in arrear, they
discharged the
surety.

462 CASES IN CHANCERY.

1857. the Plaintiff on the note, whereupon he filed a bill to
restrain the action at law, on the ground, among others,
that, by distraining, the Defendants had prejudiced the
collateral security, to the benefit of which the Plaintiff
was as surety entitled. The Master of the Rolls, by the
decree, among other things, granted the injunction, and
the Defendants appealed from the whole decree.

Mr. Bevir (with whom was Mr. M. Palmer\ for the
Plaintiff, referred to Newton v. Chorlton (a), Mayhew v.
Crickett (fi), Capel v. Butler (c), Bowker v. Bull {d).

Mr. Selwyn and Mr. W. R. £llis, for the Appellants.

The Appellants were not precluded by any rule of law
or equity from exercising the right of distraining, which
they had as lan(llords totally irrespectively of any con-
tract express or implied with the Plaintiff. If the De-
fendants could not distrain, they could do nothing which
would enable any other person to distrain. They could
not therefore have sold the house.

They also relied on the arguments which they urged
below, and cited Ex parte Whitworth (e), Kirby v. Duke
of Marlborough {J ), Plomer v. Long (g), Wade v.
Coope (A), Craythorne v. Swinburne (t).

Mr. Bevir, in reply.

The Lord Justice Knight Bruce.

My opinion is with the decision of the Master of the
Rolls. However little the parties may have thought

about

(a) 10 Hare, 646. (/) 2 Mali. 4" Sel. 18.

(b) 2 Swanst. 185. (g) 1 Stark. 153.

(d) 1 Sim, N, S, 29. (i) 14 Ve$. 160.
(«) 2 Mon., D. 4- De G. 164.

CASES IN CHANCERY. 468

about the matter, whether they thought at all of it or 1857.
not, the effect of the transactions was, that the creditors
precluded themselves as between them and the surety
from applying, by means of a distress or otherwise,
either as landlords or in any other character, the goods
which were the subject of a security for the debt for
which the Plaintiff was surety to them to any other pur-
pose than that of the security.

As to costs, my impression is, that as this suit was
occasioned by the action, and as the action was brought
to recover a sum to which neither the Master of the Rolls
thought, nor we think the Defendants entitled, the Appel-
lants must pay the costs, and that the circumstance of
the Plaintiff having suggested grounds for relief besides
those on which we think him entitled ought in the pre-
sent case to make no difference.

The LoBD Justice Turner.

I am of the same opinion. It seems to me, that the
security of the 25th November operated for the benefit
of the surety. It is clear that the Defendants could not
have released the property comprised in that security
without losing their remedy against the surety, and if
they could not have released it, could they, by the exer-
cise of a paramount right, destroy the benefit of it afler
having taken upon themselves the obligation of pre-
serving that benefit for the interest of the surety ? I am
of opinion that they could not, and that having accepted
the security, it was not competent for them to defeat the
rights conferred by it.

464

CASES IN CHANCERY.

1857.

LOCKHART ». REILLY.

RE ILLY V. LOCKHART.

REILLY V. LOCKHART.

ELLIS V. ELLIS.
J«fyl8.22. ELLIS r. LEE.

Before TAe rilHIS was a rehearing of two petitions on which an

Lord Chan- I , , , , ,1^1.^1^.1. 11

ctllor Lord order had been made by the Lord CnanceUor.

Cranworth.

One of two
trustees of a
deed of settle-
ment had»
with the ad-
vice of the
other, who
was a solicitor,
and who had
acted as the
legal adviser
of the trustees,
concurred in

By an indenture of release and settlement of the 4th
Juli/y 1822, made between Thomas Reilly the elder of
the first part, Tliomas Reilly the younger of the second
part, James Lockhart the younger and Charles Ellis of
the third part, and William HeJger and Henry Isaac
Lee of the fourth part, the manor of Westharpe, in

Suffolk,

the investment

of trust funds on unauthorized securities. The solicitor died, and a suit was in-
stituted against the surviving trustee and the representative of the deceased tmitee,
to have the loss made good occasioned by the breach of trust Another Miit waa
instituted for the administration of the estate of the deceased trustee. In the
latter suit proof was made in respect of the loss as a specialty debt, and the amonnt
of the assets payable in respect of the proof was ordered to be transferred to the credit
of the other suit. In that suit the unauthorized securities were realized, and were
nearly sufficient to make good the breach of trust, and after it had been made good
out of the proceeds, and out of the money transferred from the administration tuit,
there remained a surplus. Held,

1. That the surviving trustee was not, independently of the Mercantile Law Amend-
ment Act, a specialty creditor of the deceased trustee in respect of costs which be
had paid under the decree in the settlement suit.

2. That that act is applicable to contracts made before it passed, and applied to dit
amount which the surviving trustee had paid since the passing of the Act.

3. Tliat the sur\'iving trustee was not entitled to have the fund transferred from the
administration suit applied in the first instance to make good the breach of trust, and
to have the proceeds of the unauthorized securities treated as part of the trust fund
out of which his costs were primarily to be paid, but that those proceeds were to be
first applied, and the deficiency made up out of the fund transferred from the admi-
nistration suit, leaving the balance of that fupd to be transferred back to the credit of
the administration suit, and applied rateably towards payment of the costs of the sur-
viving trustee, and the general simple contract debts of the deceased trustee.

CASES IN CHANCERY. 465

Suffolk, with other hereditaments, were settled to the 1857.
use of Thomas Reilly the elder, and his assigns, for his
life, with remainder to the use of Thomas Reilly the
younger, and his assigns, for his life, with remainder to
the use of James Lochhart the younger and Charles
Ellis, and their heirs, during the lives of Thomas Reilly
the elder and Thomas Reilly the younger, and the life of
the survivor of them, upon trust to support contingent
remainders, with remainder to the use of the first son of
Thomas Reilly the younger, and the heirs male of his
body, with divers remainders over ; and powers of sale
and exchange were given to James Lochhart the younger
and Charles Ellis, with trusts for the interim investment
of the proceeds in the ordinary form.

In 1824 the trustees James Lochhart the younger and
Charles Ellis exercised the power of sale, and the pro-
perty sold produced a net balance of 8,824/. 5s. 5d., of
which they laid out 1,98 IZ. lOs. 8d» on a mortgage of a
house in Pall Mall, and 6,8i2L I5s. on second mort-
gages of hereditaments at Luggershall in Buchingham-
shire and at Ensham in Oxfordshire.

On the 16th October, 1845, Charles Ellis having died,
TTumuis Reilly the younger filed a bill against James
Lochhart the younger and Maria Ellis, the legal per-
sonal representative of Charles Ellis, for an account of
the trust property which had been or, but for the wilful
default of James Lockfiart the younger and Charles
Ellis, and Maria Ellis since his death, might have been
received by them, or either of them, under the settle-
ment, and of the application thereof; and for payment
by James Lochhart the younger and Maria Ellis of
what should be due from them upon such account.

Mrs. Ellis married Henry Isaac Lee, and a supple-
Vol. I. H H D.J. mental

466 CASES IN CHANCERY.

1857. mental suit was instituted by Maurice SheUan jReilly
against James Lockhart the younger and Mra. Leej seek-
ing to make James Lockhart the younger and the estate
of Charles Ellis liable in respect of the mortgage invest-
ments, as not being proper according to the trusts of the
settlement.

In 1848 a suit of Ellis v. Ellis was instituted for the
administration of the estate of Charles Ellis, and under
a decree in that suit, and a revived suit of ElUs v. Lee,
made on the 18th November, 184^> the Master, by bis
general report dated the ^3rd February ^ 1854| found that
certain simple contract debts were due to the persons
named in the report. He also found that a claim had
been brought before him on the part of Thomas Reiibf
the younger and others, by which the claimants insisted
that several thousand pounds arising from the settled
estate were received by Charles Ellis in his lifetime and
unaccounted for; and that by their claim they stated that
a suit had been instituted by Maurice Shelton Heilfy
against James Lockliart the younger, the Defendants
Henry Isaac Lee and Maria his wife, Thomas ReiUy
the younger, Richard Lane, James Lane, Elizabeth
Fogg and William Lane, and that the said suit of ReUly
V. Lockhart had not then been heard, but that it had
been agreed between all the parties to the suit of JReilly
V. Lockhart, and also to an earlier suit of Lockhart v.
Reilly, that, inasmuch as both the said suits related to
the same matters, they should come on to be heard
together, viz., the suit of Lockhart v. ReiUy should be
heard on further directions, and the suit of JReilly v.
Lockhart on the hearing, and that the claimants were
advised that in these suits, or one of them, they would
be able to establish that the estate of Charles EUis was
then liable to the persons interested in the settled pro-
perty to the amount of several thousand pounds, but

that

CASES IN CHANCERY. 467

that it was impossible to state the precise amount until 1857.
the suits of Lockhart v. Reilly and Reilly v. Lockhart
were disposed of; and that Tliomas Reilly the younger,
Richard Lane^ James Lane, Elizabeth Fogg and William
Lane further claimed, that whatever should be found due
on such inquiries from the estate of the testator Charles
JEUis, would constitute a specialty debt, having priority
over simple contract creditors, in the distribution of his
personal estate, and which claim tlie Master submitted to
the judgment of the Court.

The cause of Lochhart v. Reilly and the two causes of
Reilly v. Lochhart were heard before Vice-Chancellor
Stuart on the 6th May, 1854, and, his Honor's decree
then made having been appealed from, the Lord Chan-
cellor, on the appeal on the 3rd February, 1855, made
a decree which (reversing that of the Vice-Chancellor,
except a part thereof which directed James Lockhart
the younger to take proceedings for the completion of
the sales therein mentioned, and selling and realizing the
other property comprised in the mortgage securities) de-
clared, that James Lockhart the younger and Charles
Ellis were guilty of a breach of trust in lending the sum
of 6,842/. 15*., part of the trust fund of 8,824/. 5*. 5d.,
on an insufficient security, and that the Plaintiff Maurice
Shelton Reilly ought not to be compelled to take upon
himself the burthen of carrying into effect the several
contracts for sale of the lands and hereditaments com-
prised in the security, but that James Lockhart the
younger and Maria Lee, as the personal representative
of Charles Ellis, ought to bring into Court the sum of
6,842/. 15^., and a sum of 200/. on the trusts of the
settlement of the 4th July, 1822; and it was ordered,
that James Lockhart the younger and Maria Lee,
(as representative of Charles Ellis, deceased) should
within six months from that time pay into Court, to the

H H 2 credit

468

CASES IN CHANCERY.

1857.

LoCKHART
V.

Reilly.

credit of the cause of Reilly v. Lockkart, the sums of
6,842/. I5s. and 2001, and also a sum of 163/. 2s. lOd.
(making together 7,205/. 175. lOd.). And it was declared,
that the estates comprised in the Buckinghamshire and
Oxfordshire mortgages, and certain subsisting contracts
for sale thereof, and other the property comprised in the
mortgaged securities, were in the meantime, until the pur-
chase-monies and interest of the respective lots were
brought into Court, to stand as a security, as well for the
sums ordered to be paid into the Bank, as for the interest
due thereon and for costs, each lot standing as such security
only to the extent of the purchase-money of such lot and
the interest thereon ; and James Lochhart the younger
and Maria Lee were to be at liberty to take such steps,
under the sanction of the Judge to whose Court these
causes were attached, as the Court might direct, for com-
pleting the sales and selling and realizing the other pro-
perty, in the mortgage securities and in the pleadings
mentioned, and not already realized ; and it was ordered,
that the purchase-monies and interest as realized should
be brought into Court to the credit of the cause of Reilly
V. Lochhart, in or towards satisfaction of the sums of
6,842/. 15^., 200/. and 163/. 2s. lOd. And the declara-
tions and directions contained in the decree were to be
without prejudice to any question between the tenant for
life and his incumbrancers and James Lochhart the
younger and the representative of Charles Ellis, And
James Lochhart the younger and the representative of
Charles Ellis and Thomas Reilly, the tenant for life, and
his incumbrancers, were respectively to be at liberty to
present such petition as they might be advised to his
Lordship, or to their Lordships the Lords Justices in the
first instance, for the purpose of having any question,
between the tenant for life and his incumbrancers on the
one hand and James Lochhart the younger and the re-
presentative of Charles Ellis on the other, determined.

And

LOCKHART

CASES IN CHANCERY.

And it was ordered, in the cause of Lockhart v. Reilly,
that James Lockhart the younger should pay unto the
Defendants, other tKan the Defendants Henry Isaac "^ v.
Lee and Maria Lee, their costs of that suit, exclusive R^illy.
of the costs of Maurice Shelton Reilly until he attained
his majority; and in the cause of Reilly v. Lockhart,
that James Lockhart the younger and Maria Lee, as
such representative as aforesaid, should pay unto the
Plaintiff his costs of that suit. And the decree was
to be without prejudice to any question between the
representatives of Charles Ellis and James Lockhart
the younger as to how the costs were to be ultimately
borne.

On the 26th June, 1855, a petition was presented by
Maurice Shelton Reilly in the causes of Ellis v. Ellis
and Ellis v. Lee, which stated the original trust deed of
the 4th July, 1822, creating the Reilly Trust, the insti-
tution of the suits of Lockhart v. Reilly and Reilly v.
Lockhart, the decree of the Lord Chancellor, dated the
3rd February, 1855, made upon appeal, the institution
of dk suits of Ellis v. Ellis and Ellis v. I^ee, to admi-
nister the estate of the late Charles Ellis, and the report
of the 23rd February, 1854; an Order of the 9th March,
1854, in Ellis v. Ellis and Ellis v. Lee, and a decree
therein, dated the 9th May, 1854, and prayed that the
petition might come on to be heard with the causes
of Ellis V. Ellis and Ellis v. Lee, on further con-
sideration, and that the petitioner might have and be
entitled to the same benefit of the original and supple-
mental decrees in Ellis v. Ellis and Ellis v. Lee, as if
the joint and' several debt of 1,2051. Ms, 10c?., and the
Petitioner's costs of the suit of Reilly v. Lockhart,
had been respectively proved before the Master in the
suits of Ellis V. Ellis and Ellis v. Lee as specialty debts,

and

470

CASES IN CHANCERY.

1857.

and had been included in the Master's general report as
special^ debts.

•

On this petition the Vice- Chancellor, on the 11th July^
1855, made an Order, which was affirmed upon appeal.
It declared that the Petitioner, Maurice Shelton Reilly,
was a specialty creditor as against the estate of Charles
Ellis for the above-mentioned sum of 7,205/. 17*. lOrf.,
and also for 206Z. I85, 4</., (part of the costs of an
Order of the 19th February, 1853, in the cause of
Lochhart v. JReilli/,) which sum it was, by the decree,
declared ought to be borne and paid by and out of the
estate of Charles Ellis. And it directed that, after the
payment of certain costs therein mentioned, the residue
of a sum of £3,277 Consolidated Bank Annuities therein
mentioned should be carried over to the credit of the
cause of Reilly v. LockharU

One of the petitions, which came on to be reheard,
was that of James Lochhart the younger. It alleged,
that Charles Ellis had been the acting trustee undl^ the
settlement, and bad assumed to act as the sole trustee
thereunder, and that the mortgage securities were in fact
taken under his advice ; the Petitioner, James Lochhart
the younger, having confided in him as being, as he in
fact was, the professional adviser of James Lochhart the
younger, and that Charles Ellis never informed him that
the investment of the sum of 6,84*2/. \5s. was a breach
of trust, and that James Lochhart the younger was not
aware that it was so until it had been so decided by the
Court, and that the said sales were, under the circum-
stances aforesaid, made by Charles Ellis alone, and that
the difficulties in completing the sales arose solely from
his acts, conduct or omission, and that all other the acts

and

CASES IN CHANCERY.

and amissions complained of by Thomas Reilly the
younger, to such extent as the same were capable of
being complained of, were in fact attributable to the acts,
conduct or omission of Charles Ellis, and that the estate
of Charles Ellis was liable to make good to James Lock-
hart, and indemnify him against all loss, costs, charges,
damages and expenses which he had incurred, sustained
or paid, or might incur, sustain or pay under the decree
of the Lord Chancellor or any of the proceedings in
Chancery, or otherwise in relation to the investments
in the pleadings mentioned.

471

1857.

LOCKHART

R'EILLT,

I^e Other petition sought to be reheard was that of
Thomas Reilly the younger.

The Order made on these petitions directed an in-
quiry, what was the amount of the money which had
been paid into the Bank to the credit of Rtilly v. Lock-
hart, on account of principal of the mortgages in the
petitions mentioned.

It ordered that so much of the Bank Annuities stand-
ing to the account of Reilly v. Lockhart, as would be
sufficient to raise the amount of the money which should
be found to have been paid into the Bank on account of
the principal of the mortgages should be sold, and that
the money to arise by the sale should be paid into the
Bank to the credit of the cause.

It further ordered that the money to arise by such sale,
when so paid in, should be carried over to the credit of
the cause, Reilly v. Lockhart, to an account to be enti-
tled " Capital Account."

472 CASES IN CHANCERY.

1857. It further ordered that so much of 3,178/. I9s. Con-

solidated Bank Annuities (which was the amount carried
over pursuant to the above-mentioned Order of the
11th July, 1855| from the causes of Ellis v. Ellis and
Ellis V. Lee) as with a sum therein mentioned, and with
the amount to be raised by the sale thereinbefore directed
would be sufficient to raise the sum of 8|734Z. I3s. 7d.,
should be sold, and the proceeds placed to the credit of
Reilly v. LockharL

It declared that as between James Lockhart and Maria
Lee, the costs of the suit of Reilly v. Lockhart^ by the
decree directed to be paid by Maria Lee and James
Lockhart, and also all costs, charges and expenses pro-
perly incurred by James Lockhart, as trustee, including
his costs properly incurred in the several causes, ought
to be borne by Maria Lee out of the assets of Charles
Ellis.

It further ordered that so much of the residue of the
above-mentioned sum of 3,178/. \9s. Consolidated Bank
Annuities, after the sale thereout thereinbefore directed,
as would be sufficient to raise such costs and costs,
charges and expenses when taxed, should be sold.

It further ordered that the residue, if any, of the said
last-mentioned Bank Annuities, after paying the sevenfl
sums thereout thereinbefore directed to be paid should
be carried over to the cause of Ellis v. Ellis, subject to
the further order of the Court.

It further declared that such Bank Annuities, when so
carried over, were to be administered in the cause of

Ellis

CASES IN CHANCERY.

JEllis Y, Ellis, as part of the personal estate of Charles
Ellis.

Mrs. Lee now sought to have this order varied upon
a rehearing, and by her petition stated, that as executrix
of Charles Ellis, she had personally been applied to by
the creditors of Charles Ellis, mentioned in the report^
to pay them the amount of the debts found due to them
as aforesaid, or at all events to pay them the amount of
their said debts rateably with the debt of James Lochhart
out of the estate of Charles Ellis, as far as that estate
would extend, but that the Petitioner was unable to
comply with such demands by reason of the above order.
She submitted, that the debt of James Lochhart against
the estate of Charles Ellis, in respect of the costs and
costs, charges and expenses, which it was declared by
the above order ought to be borne by the Petitioner
out of the assets of Charles Ellis, deceased, was a
debt which ought not, according to the course of the
Court, to have priority over the other debts found due
from the testator's estate, but that the debt due to James
Lochhart, the Plaintiff, from the said estate, ought to
be paid rateably with the other debts found by the
Master's report to be due from the estate of Charles
Ellis. The prayer was, that the above-mentioned peti-
tions might be reheard, and that the order might be
varied or altered in the particulars mentioned in the
petition for rehearing.

473

1867.

It appeared \\idX James Lochhart had, under the order
for payment of costs, paid 2,1S9L 7s. 2d., of which
340Z. 7s. lOd. had been paid by him since the Mercan-
tile Law Amendment Act (a), came into operation.

Mr.

(fl) 19 & 20 VicL c. 97.

474

CASES IN CHANCERY.

18^.

LOCKBMIT

Rbillt.

Mr. Malins and Mr. Martijidaley for Mrs. Z«e, in

support of the petition for rehearing.

There is no ground for holding that the costs paid
by James Lockhart constitute a specialty debt ; Copis v.
Middleton (a). The surplus^ therefore, of the 8,178/. 19*.
£S per Cents., carried over from Ellis v. BUis to Reilhf
V. Lockhartf must be paid back to the credit of the
former of those causes, and James Lockhart can only
claim pari passu with the simple contract creditors of
Charles Ellis.

Mr. Wigram and Mr. C. Hall, for Mr. James Lock"
hart.

The ground on which, in Adey v. Arnold (b), a breach
of trust was held to constitute a specialty debt was that
of the parties having executed an instrument under seal,
by which they undertook to perform the trust. That
reason was held by your Lordship, in the present case,
sufficient to constitute the obligation to replace the trust
fund, a specialty debt as between the trustees and the
cestuls que trustent. But as both trustees were parties
to the trust deed, the same reason applies as between
themselves, and it follows that the obligation whicb they
incurred under it towards one another also created a
specialty debt. At all events, so much of the costs as
has been paid by James Lockhart since the Mercantile
Law Amendment Act (c) came into operation, is by the

express

(a) 2\ini. 4- IL 224.

(b) 2 De G., Mac. 4- G. 432.

(c) 19 & 20 Vict. c. 97, ». 5.
** Every person who, being surety
for the debt or duty of another,
or being liable with another for
any debt or duty, shall pay such
debt or perform such duty, shall
be entitled to have astigned to

him, or to a trustee for him, sveiy
judgment, specialty or other se-
curity which shall be hdd by the
creditor in rapetit of mch debt
or duty, whether such j«dgmeol^
specialty or other security shall
or shall not be deemed at law to
have been satisfied by the pay-
ment of ike debt or performanee

CASES IN CHANCERY.

475

express provisions of that Act constituted a specialty
delbi.

But, independently of this consideration, the 3,178/. 19s.
h first applicable to make ;good the breach of trust, and
the sum which arises from the proceeds of the securities
is part of the trust fund, out of which James Lockltart^s
costs are payable. It is only the residue of Uiese monies,
after paying the trustee's costs, that can properly be
carried over to the credit of Ellis v. JEllisj to relieve
Mr. JEllis^s estate pro tanto from its liability to replace
ihe trust fund.

1867.

They referred to Gifford v. Manley{a\ Benson v.
Benson (6), Mavor v. Davenport (c).

Mr. MalinSf in reply.

Independently of the Mercantile Law Amendment Act,
the case is settled by the authority of Capis v. Middleton,
and the new Act can, if applicable aft all, aSect only a
very small amount of the sum claimed ; namely, so much
of it only as has been paid since the passmg of the Act

But

of the duty, and sticb person shall
be entitled to stand in the place
•of the creditor, and to use all the
remedies, and, if need be, and
upon a proper indemnity, to use
Ae name of the creditor in any
action or other proceeding at law
or in equity, in order to obtain
from the principal debtor or any
co-surety, co-contractor or co-
debtor, as the case may be, in-
demnification for the advances
made and loss sustained by the
person who shall have so paid
tacb debt or performed such duty,
and vucfa piqrment or performanoe

80 made by nidi surety vhaH not
be pleadable in bar of any sncfa
action or other proceeding by
him: provided always, that no
co-surety, co-contractor or co-
debtor shall be entitled to lecover
from any other co-surety, oo-con-
tractor or co-debtor, by ihe means
aforesaid, more than the just pro-
portion to which, as between those
parties themselves, such last-men-
tioned person shall be justly lia-
ble."

(a) Cases temp. Talb. 109.

lb) 1 P. Wms. 130.

476

CASES IN CHANCERY.

1857.

But we submit that the Act affects no part of it, for it
would be unjust to give the Act a retrospective operation
by making it apply to obligations incurred antecedently
to the passing of the Act. — [The Lord Chancellor,
on reading the section in question of the Act^ intimated
an opinion that the words appeared sufficient to operate
retrospectively, and the point was not further argued.] —
As to the argument founded on the payment into Court,
that payment was made without prejudice ; and although,
from the unexpectedly favourable result of the realization
of the unauthorized securities, the amount paid in has
proved to have been too great, no question of principle
can be affected by this miscalculation.

TTie Lord Chancellor.

It is not necessary to. repeat the details of the case,
which have been fully gone into. Mr. James Lockhart
the younger and Mr. Ellis were trustees, who had been
parties to what the Court has held to be a breach of
trust in lending trust monies upon improper securities —
improper in these respects, that the value of the pro-
perty which was the subject of the securities was insuf-
ficient, and that they were second mortgages, the legal
estate being outstanding. A great deal of litigation has
taken place of a complicated and expensive character.
In the result of it the trustees have both been declared
guilty of the breach of trust, and to be both liable to
bring into Court the trust money, and the Court has
decreed accordingly. But the Court declared that the
securities improperly taken should be a security to the
cestuis que trustent for the trust monies. It so happens
that the securities have proved nearly sufficient to replace
the whole fund. Mr. Ellis had been the trustee who
had been guilty of the breach of trust ; by which I do
not mean to say that any positive misconduct has been

proved

CASES IN CHANCERY.

477

proved against him, but he was a solicitor, and Mr,
Lockharty who was a country gentleman, left the trust
to his management. The Court, in these circumstances,
declared that as between Mr. Lockhart and Mr. Ellis,
the latter was bound to indemnify the former ; apd that
the former was only liable secondarily, although, as be-
tween the trustees and the cestuis que trustent both were
liable.

1857.

Lockhart

Rkilly.

I have hitherto been speaking as if Ellis were still
living. He is, however, dead, and his estate is in the
course of administration in a suit in this Court. It is
insolvent, but the funds in Court representing it amount
to between 3,000/. and 4,000/. The result of the decree
was, that Ellis* s estate was bound to make good the trust
fund with interest. An application was made in the
administration suit of Ellis v. Ellis, that the amount
thus due should be transferred to the credit of the cause
of Reilly v. Lockhart, on the ground that the debts
proved in the cause of Ellis v. Ellis, other than that in
respect of the breach of trust, were simple contract
debts, whereas the latter was a specialty debt. I was at
first rather surprised at hearing it stated, as a main-
tainable proposition, that the debt in respect of the breach
of trust was a specialty debt. But I found that this had
now been settled by authority, and I therefore assented to
the proposal to transfer the fund from Ellis v. Ellis to
Reilly v. Lockhart, It has since turned out that a very
small portion of what has been thus paid into Court will
be required for the purpose of making good the breach of
trust, for (as I have already said) the securities have
proved sufficient to pay nearly (within 6(X)/. I think) the
whole trust fund, with interest for seventeen years. The
sum of 600/., therefore, is the whole amount due from
Ellis's estate in respect of the breach of trust.

But

478 CASES IN CHANCERY.

1857. But the Court declared that, aa between Lockhart and

Ellis^ Ellis s estate was liable to indemnify Lockhart in
respect of the costs of the suit, and the question now is,
as only 600/. is required of the amount of upwards of
3,000/. brought into Court, what is to be done with the
surplus ? The order declared that the demand of Loch-
hart against his co-trustee for the costs waa a specialty
debt, and the first question is, whether the same prin-
ciple which governed the decision that the breach of
trust constituted a specialty debt to the cestuis que
trustent applied as between the two trustees, and ren*
dered Lockhart s costs a specialty debt ako. It was
argued that it did, on this ground ; that inasmuch as the
execution of the deed created a specialty debt as be-
tween the trustees and the cestuis que trustent, it must
have the same effect as between the trustees. I think,
however, that this is a fallacy, ami that if this argument
could prevail, Copis v. Middleton must have been wrongly
.decided.

I think that there is no pretence for saying that this
was a specialty debt, and indeed this point waa not
strongly argued, for another argument was that principally
relied upon, viz., that the money transferred from one
cause to the other constituted part of the trust fund out
of which the trustee*s costs must be paid, and that Ellis^s
estate can take nothing until these costs have been paid.
The answer to that argument, however, is, that if the
result of the realization of the securities had been known
when the application was made for transferring the
money into the settlement suits, only 600/. would have
been ordered to be so transferred, and the rest would
have remained to the credit of the administration suit,
and then the question would have been, whether Mr.
Lockharfs costs would have been treated as a specialty
debt in that suit I think that they would not, and I

therefore

CASES IN CHANCERY.

therefore think that the order which is the subject of the
rehearing should be varied, and that the fund should be
re-transferred to the credit of Ellis v. Ellis, with a
declaration that Mr. Lockhari should be admitted a cre-
ditor for the amount of his costs. With r^ard, however,
to the amount (about SOOL) which he paid after the
passing of the Act of Parliament of last session, which
haa been referred to, I think that he is entitled to be
tfeated as a specialty creditor.

«79

1887.

The following were the minutes of the order ultimately
made. It purported to be made in the settlement causes,
and also by consent of the only creditors who had proved
in the cause of Ellis v. Ellis in that cause also : —

Declare that the said James Lochhart is only
entitled to stand as a specialty creditor
upon the estate of the late Charles Ellis,
for the sum of 340/. Is. lOtf., being the
amount of the costs paid by James Lock'-
hart to the Plaintiff Maurice Shelton
ReiUy, pursuant to the said Order of the
ith June, 1856, and being a part of the
sura of 2,7391. Is. 2d., the amount certi-
fied by the Taxing-Master, Mr. Marr
tineau*s, certificate dated 9th July, 1857,
as the costs, charges and expenses of
James Lochhart.

Declare that, as regards the sum of S,398/.
I9s. M., being the residue of the said
costs, charges and expenses, after deduct-
ing therefrom the said sum of 340/. 7^. lOd.,
the said James Lochhart is only entitled

LOCKHART
V.

480 CASES IN CHANCERY.

1857. to rank as a simple contract creditor upon

the estate of the said Charles Ellis, and

that the sum of 2,565/. \9s. Hd. Bank £3

^^"''•'^* per Cent. Annuities, part of the sum of

4,285/. 9s. 5d, like Annuities, standing to
the credit of the said cause of Reilly v.
Lockhart, and the sum of 117/. I3s. cash,
part of the sum of \22L 3s. cash, standing
to the credit of the said last-mentioned
cause, is so much of the fund in Court
standing to the credit of the said last-
mentioned cause as belongs to the estate
of the said Charles Ellis.

Declare that the estate of the said Charles
Ellis is apportionabie between the said
James Lochhart and Joseph Tatham and
Henry Hull, the creditors who have
proved their claims in the suit of Ellis v.
Ellis.

And by consent of the said Maria Lee and Joseph
Tatham and Henry Hull, —

Let the sum of 1 17/. 13^. cash, part of the sum
of \22l. Ss, cash, standing to the ^redit of
the said cause of Reilly v. Lochhart, be
paid to Mr. Henry Smith Lawford, the
solicitor of the said James Lockhart, in
part satisfaction of the said sum of 340/.
7*. 10c?.

Let the sum of 242/. 2s. Bank £3 per Cent.
Annuities, part of the said sum of 2,565/.
I9s. Sd. like Annuities, which forms a
part of the said sum of 4,285/. 9s. 5d. like
Annuities, be transferred to the said Henry

Smith

CASES IN CHANCERY.

Smith Lawford in satisfaction of the re-
sidue of the said sum of 340/. Ts. \0d.

Let the sum of 1,790/. 17*. 4rf. Bank £3 per
Cent. Annuities, further part of the said
sum of ^,565/. 19^. 8d. like Annuities
(being the apportioned share of the said
James Lockhart on account of the said
sum of ^,398/. 19«. 4d.\ be transferred to
the said Henry Smith Lawford.

Let the sum of 523/. 17«. 4d. Bank £3 per
Cent. Annuities, further part of the said
sum of 2,565/. 19^. 8d. like Annuities, be
transferred to Joseph Tatham (being the
apportioned share on account of his debt
of 701/. 15^.)

And let the sum of 9/. 3s, Bank £3 per Cent.
Annuities, being the residue of the said
sum of 2,565/. I9s. 8d, like Annuities, be
transferred to Henry Hull (being the ap-
portioned share on account of his debt of
12/. 5s.)

1857.

Vol. I.

I I

D.J.

482 CASES IN CHANCERY.

1857.

July 11, 13,

3"- CHILDERS V. CHILDERS.

Aug. 4.

Before The HpHIS was an appeal by the Plaintiff from a decree of

°TicM."*" Vice-Chancellor Wood, dismissing his bill, which

J., the owner was filed to obtain a declaration that the Defendant, the

Sif ^^?J? '? infant heiress at law of the Plaintiff's son, was a trustee

the Bedford ^ '

Level, wishing for the Plaintiff of certain land which had been conveyed

a°q?altfication" ^V ^^^ Plaintiff to his son under the following circum-

as bailiff, for stances,
which, accord-
ing to the

Bedftfrd Level x^g Plaintiff was the owner of large estates in the

Act, it 18 ne- ° .

cessary to Bedford Level, and in the year 1855 was desirous that

" . .t his son, Rowland Francis Walhanke Childers, should
acres in ine '

Level, wrote become one of the bailiffs of the Corporation of the JBed-
of the Level^*'^ /orrf Level, which was incorporated by the stat. 15 Car. 2,
stating his c. 17. The 15th section enacts, "That none be capable

wish and a8K~

ing him to find to be or continue governor or bailiff that hath not 400

a qualification, ^^^es or more '* of the land in the Level.
The registrar
thereupon,

without any f\

further in- ^"

structions, se-
lected out of A.*t land the smallest lot that exceeded 400 acres, and sent to him a
deed, by which he purported to convey it to the son in fee, in consideration of natural
love and affection. This deed was at once executed by A. and registered. The son
died soon after without having ever heard of the transaction. It clearly appeared
that neither A. nor the registrar intended or considered the transaction to have the
effect of makinff the son beneficial owner, nor intended any fraud or illegality. On a
bill being filed oy A. to establish his title to the land —

Held, that the letter written by i4. to the registrar, excluded any defence grounded
on the Statute of Frauds.

Held, on the construction of the Bedford Level Act, that a dry legal estate was a
sufficient qualification, and that, therefore, tliere was nothing illegal in A,*t design-
no intention to represent the son as beneficial owner appearing.

Held, that, on the ground of trust, or of mistake, or on both grounds, the Plaintiff
was entitled to the relief sought.

Held, that this conclusion was not affected by the circumstance that the legal estate
was outstanding under a mortgage in fee not known to the registrar.

Per the Lord Justice Turner ^ sembUt that, even apart from the Plaintiff's letter, the
Statute of Frauds would not have been a good defence.

CASES IN CHANCERY.

On the 10th October, 1855, the Plaintiff, without any
communication with his son, wrote to Mr. Archer, the
Registrar of the Corporation, the following letter : —

" Dear Sir, — I am desirous of giving my son a quali-
fication for the Bedford Level Board. His name is
Rowland Francis Walbanke Childers. I presume there
will be no difficulty in doing it. I think it had better be
a bailiff's qualification. I think you will perhaps find
some old qualifications for Mr. Roberts and Mr. Maxwell
Edmondsy but I do not know that they will be of any
use to you, as they were only conservators.

" Yours, &c.,

" J. W. Childersr

488

1857.

Childbrs

17.
CaiLDERS.

Mr. Archer was a solicitor, but had never been em-
ployed by the Plaintiff in that capacity, and was not
acquainted with the state of the Plaintiff^s title to his
lands in the Bedford Level.

On the receipt of the above letter, Mr. Archer, with-
out further communication with the Plaintiff, selected,
for the purpose of this qualification, a plot of 932 acres,
being the smallest plot of those belonging to the Plain-
tiff which exceeded the required extent of 400 acres,
and he prepared and forwarded to the Plaintiff a con-
veyance in fee of this plot to the son.

This deed, when executed, bore date the 19th Oc-
tober, 1855, and was a simple conveyance in fee expressed
to be in consideration of natural love and affection, and
of twenty shillings. On the day after its execution it
was duly registered by Mr. Archer, according to the
provisions of the Act, and was immediately afterwards
returned to the Plaintiff.

I I 2

The

484

CASES IN CHANCERY.

1867.

CuiLIMSEi
V.

Crildbm.

The son was abroad during the whole of this trans-
action, and died intestate at Florence on the 12th No*
vember in the same year, without ever having been made
acquainted with any of the above circumstances.

The intention of the Plaintiff was merely to confer
such an interest on the son as would qualify him for the
office of bailiff, and he did not intend to give up the bene-
ficial ownership of the land, and he executed the deed
under the impression that it would have no further effect
than giving a qualification. Mr. ^rcA^, as appeared
from his evidence given in the cause, understood it to be
the Plaintifi**s intention to give a qualification only, and
not the beneficial ownership, and prepared the convey-
ance with the view of effectuating this intention, it being
his idea that a dry legal estate in 400 acres of land was
t sufficient qualification, and that the deed which he had
prepared Would give the son such an estate without
affecting the beneficial interest of the Plaintiff, it having
been the custom to confer qualifications in that way.
The legal estate, however, did not, in fact, pass by the
deed, the property being subject to a mortgage in fee
made in 1850, of the existence of which Mr. Archer
was not aware, and which therefore of course was not
noticed in the conveyance.

The Plaintiff, under these circumstances, filed his bill,
praying that the Defendant might be declared a trustee
of the land in question for the Plaintiff, within the mean-
ing of the Trustee Act, 1850, and for a reconveyance
under the provisions of that Act. V ice-Chancellor H'oad
dismissed the bill (a). Upon the present Appeal coming
before the Lords Justices, matters which were not before
the Vice-Chancellor were referred to in argument, aiid

their

(fl) 3 Katf^J,3\0,

CASES IN CHANCERY.

4fi£

their Lordships, on the 13th July^ at the close of the
argument reported below, discharged the order of dis-
missal without prejudice to any question, and gave leave
to amend the bill ; both sides to be at liberty to adduce
further evidence. It was agreed that the Defendant
should be treated as having claimed the benefit of the
Statute of Frauds.

The bill was accordingly amended and fresh evidence
adduced. The above statement of the facts is a sum-
mary of the case made by the amended bill, and esta-
blished by the whole evidence. When the fresh evidence
had been taken, the case was mentioned again on the
30th July^ but both parties declined to address any fur-
ther argument to the Court, the matters introduced by
the amendments having been already commented upon.

1857,

CBILDEEf
V.

Chilp^rb.

The Attorney-General (Sir R, Beihell), Mr. Cairns
and Mr. S, Percival, in support of the appeal.

No beneficial interest passed to the son since none
was required for the object in view, a mere legal estate
being sufficient for the purposes of the Act according to
its true scope and meaning. Moreover, there was no
consent on the part of the grantee. All thai the Plain-
tiflF did was to execute a deed which would qualify the
son. It could not be acted on without the son's consent.
It only qualified him to become a bailiff, but he could
not have been made bailiff without his consent. It was
a qualification, provided the son would do something,
viz. if he would become bailiff. The principle of the
cases is, that if a fraud has been intended to be com-
mitted on an Act of Parliament, the Court will grant no
relief; but that if there have been merely mistake or mis-
apprehension, the Court will relieve, and this must espe-
cially be so when the matter does concern not- the general
law but local law merely.

They

486 CASES IN CHANCERY.

1867. They referred to Ward v.Lant(a), Birch y. Bla-

^'^^^^^^ grave (b), Curtis v. Perry (c), Platamone v. Staple (d),
Childbrb

Childerb. [Their Lordships sent for the decree in Platamone v.
Staple. It was in these terms : — 18th Jwne, 1818 —
" This cause coming on, &c.y and the pleadings in the
cause being opened upon debate of the matter and hear-
ing what was alleged by the counsel on both sides, this
Court doth order that the PlaintifTs bill do stand dis-
missed out of this Court with costs (e).*'J

In Cottington v. Fletcher (f), there was nothing in
writing but the deed itself; here we have the PlaintiflTs
letter of 10th October, which shows his intention to do
no more than give a dry legal estate. Even if the Court
should be of opinion that the scheme was illegal, which
we submit it was not, still as the purpose was never
effected, we are within Birch v. Blagrave (b). Cecil v.
Butcher {g\ does not conflict with that decision, and the
observations of Sir T, Plumer, which have a bearing
the other way, were extrajudicial ; Groves v. Groves (h\
shows the importance of the fact, that the deed was
never communicated to the son ; Mitford v. Reynolds (t),
supports our case.

They also referred to Downton's Case (h).

Mr. Willcock and Mr. Crrenside, for the Defendant.

No relief can be had in this case under the head of
rectification ; there was no intention that the instrument

should

(a) Prec. in Chan. 182. (g) 2 Jac. if W. 565.

(6) Amh, 264. (A) 3 F. ^ J. 163, 173.

(d) G. Cooper^ 250. (k) 1 Ludenon Election C^aes,
(c) Reg. L B. 1817, fo. 1694. 109.

(J) 2 Atk. 155.

CASES IN CHANCERY.

487

should contain a declaration of trust for the father, so
there is nothing to correct. Moreover, subsequent decla-
rations of intention cannot be allowed to control the
effect of a deed, Irnham v. Child^a), Cecil v. Butcher {b).

1867.

Childerb
Childebb.

The Statute of Frauds is a good defence, Cottington
V. Fletcher (c).

With respect to the cases cited on the other side. In
Ward V. Lant {d), the trustee and cestui que trust were
brought into communication ; here there was no under-
standing between the grantor and grantee; nothing to
raise an equity against the latter. Platamonev. Staple{e),
turned much on the answer ; and it is a case which the
Courts have shown no inclination to follow, as appears
by Doe v. Roberts (/), and Roberts v. Roberts (ff), where
a distinction is taken between deeds communicated to
the grantees and deeds which are not. In Groves v.
Groves (A), the same distinction is taken. Lord Hard''
wickers observation in Birch v. Blagrave was only a
dictum, and hardly to be relied on ; Cecil v. Butcher
shows this. .All that the Plaintiff could do in the matter
was done ; his act was complete ; and he cannot be
relieved from its effect. The intent could not be to give
a dry legal estate, for as the legal estate was in the mort-
gagee, the Plaintiff had it not to give. Moreover, on
the true construction of the Bedford Level Act, we
submit that a dry legal estate would not give a qualifi-
cation. It is true, that until the recent changes in the
law, the dry legal estate gave a right to vote for members
of Parliament, but that arose in a time when trusts were

unknown ;

(6) 2 Jac. Sf W. 565, 573.

{d) Free, in Chan, 182.

(e) G. Cooper, 250.

(/) 2 B. 4- Aid 367.

(g) DanUly 143.

(h) 3 r.*/. 163, 173, 174.

488

CASES IN CHANCERY.

1857.

CHILDEKi

V.
CHILt>Rftfl.

unknown ; and the same observation applies to qualifi-
cations for jurors. A dry legal estate gave no right to
kill game under 22 & £3 Car. 2, c. 25. The deed was
made known to all the world by the registration^ and the
Defendant was represented to the Corporation as the
owner. It would be in the nature of a fraud on the
Corporation, if the father were allowed to retain the
beneficial ownership while representing his son as owner.

Mr. Cairns^ in reply.

The Plaintiff executed this deed under the idea that
he should retain the beneficial ownership, and give bis
son a qualification by means of the legal estate. He
therefore executed it under a double mistake as to its
efiect, for it purported to be a conveyance of the bene-
ficial interest, and did not pass the legal estate, which
was outstanding. The letter to Mr. Archer shows the
Plaintiff's intention, which he directed Mr. Archer to
effectuate, and relied on his doing it properly. This
intention was perfectly lawful, and there was nothing in
the nature of a fraud on the Corporation. The 16tb &
17th sections of the Bedford Level Act show that the
Act recognizes owners of dry legal estates. The pro^
bable intention was, that the persons having the legal
estate should be treated as owners for the purposes of
the Act, and the word' " hath," in the Act, is suited to
effectuate it, Anelay v. Lewis (a). The most closely
analogous case is that of Railway Companies, and there
only the legal ownership of shares gives the title to
vote.

The Statute of Frauds is put out of the question by
the Plaintiff's letter, which preceded the execution of the
deed. But apart from this, the Statute of Frauds does

not

(a) 17 C. B. 316, 327.

Chxlderi.

CASES IN CHANCERY. 489

not apply where you come to rectify a deed on the ground 1 667. ^

of fraud or mistake, Irnham v. Child (a), admits this, and -/^"^^"^

^ ^ Childcri

the same rule is laid down in Skelburne v. Inchiquin (i), v.

Cripps V. Jee (c), and Mortimer v. Shortall (rf). Collett
T. Morrison {e), is an instance of the application of the
same rule. Still less can the statute stand in the way,
when it is sought to set aside a deed on the ground of
mistake.

As to illegality, it is clear that the Plaintiff never
intended to do anything illegal. He wished to give his
son a qualification, and took what he supposed to be
the best advice he could get as to the proper way of
doing it.

The Lord Justice Knight Bruce.

This cause was originally heard in the Court of the Aug. 4.
Vice-Chancellor Wood, who dismissed the bill. Upon the
appeal here the evidence was added to, so that we had
materials which his Honor had not ; and those new ma-
terials seemed to me of some weight. At the conclusion
of .the argument before us on the 13th of July last we
thought that it would be right to make, and we accord-
ingly made, this order. — [His Lordship here read the
order of 13th July, the effect of which is stated above.]

The bill was under the order amended, and, as I think,
importantly amended. The evidence has been again
added to, and the learned counsel on each side having
elected to leave the case for our decision upon the order
of the 13th of July, the bill as amended, and the entire

evidence

(fl) 1 Bro. C. C. 92. (d) 1 Con ^ Law, 417.

(6) Ibid. 338, 340. (r) 9 UarCy 162.

(r) 4 Bro. C. C. 471.

400 CASES IN CHANCERY.

jf 1857. evidence in its present state, without any fresh argument

Z^^"^^^"^ (for the matter had been fully and ably argued here on
Childerb

v. the 1 1th and 13th otJuly, with reference, in effect, to all

Cbxldbri. ^jjg circumstances now regularly before us), we have de-
liberated and come to a conclusion upon the cause, the
condition of which, as I have said, differs considerably
from what it was when the suit was before Sir William
Page Wood, who, I believe, was not asked to give leave
either for amending the bill or adding to the evidence.
The difficulty between the parties arose thus : —

The Plaintiff appears to have been in 1855 the owner
in fee simple of the equity of redemption of a large and
valuable tract of land in Cambridgeshire, part of the
95,000 acres subjected by the Bedford Level Act, 15
Car, 2, c. 17, to the provisions of that Act, and particu-
larly mentioned in it. He had, as I have said, only an
equitable interest in the property. The mortgage to
which it was subject, and under which the legal fee was
outstanding, had been duly registered under the Act. A
very considerable sum of money was in and J}efore Oo
tober, 1855, and is still, due on the mortgage. The
Plaintiff had an only son, Mr. Rowland Francis Wal-
banke Childers, who, in or before the autumn of 1855,
married and went abroad, but not with any intention of
residing permanently out of England, It occurred to the
Plaintiff as desirable that his son should be qualified to
become, if elected, one of the bailiffs under the Act of
Parliament; and accordingly, in October, 1855, after the
departure of Mr. Rowland Francis Walbanke Childers
from this country, the Plaintiff wrote to Mr. Archer,
then holding the office of registrar to the Bedford Level
Corporation under the Act, this letter, dated the 10th
of the month. — [His Lordship here read the letter, which
is set out above.]

The

CASES IN CHANCERY.

461

The letter (signed by the PlaintiflT) was received by
Mr. Archer^ who, in consequence, prepared and sent to
the PlainlifF for his execution, and he accordingly exe-
cuted, this deed. — [His Lordship here read the convey-
ance to the son.]

1857.

Childbks

CaiLDfiRI.

The deed was on the 20th of the same month duly
registered under the Act. Very soon afterwards, in No*
vember, 1855, the son died in Italy, without having re-
turned to England. He seems to have died intestate,
and not at any time to have known or heard of the deed
or qualification, or of his father's intention to execute or
give either. The Defendant, an infant, is the only
child and heiress of the son. The Plaintiff has instituted
the suit before us for the purpose of obtaining a declara-
tion that, notwithstanding the deed of October, 1855, he
was, as between him and his son, and is, as between the
Plaintiff and Defendant, entitled to the beneficial interest
in the lands comprised in the deed, and of obtaining, if
material, a conveyance accordingly. His allegation and
contention are, that the purpose and meaning of the deed
of 19th October, 1855, were to give his son such a qua-
lification in point of estate as should render him eligible
to the office of a bailiff under the 15th section of the
Bedford Level Act, and not, as between them, to confer
on him a beneficial interest in any part of the lands con-
veyed ; and that, accordingly, at his decease, he was a
trustee of them for the Plaintiff, so far as there could be
a trustee of a mere equity of redemption. No such trust
or purpose, however, appears on the deed, which also
does not notice the mortgage. For the Defendant it is
contended that the purpose and object ascribed to the
transaction by the Plaintiff were and are illegal, that the
Court therefore ought not to be active for him in the
matter, and that, whatever the true view of the legality
or illegality of the Plaintiff^s alleged object, he has not

established

49»

CASES IN CHANCERY.

1857.

Childeks

Childers.

established his case by sufficient evidence, and the
benefit of the Statute of Frauds is claimed on her behalf.

First, then, as to the question of fact — Was it the
Plaintiff's intention in executing the deed of 1855 that
his son should, as between them, have a beneficial interest
in the whole or any part of the lands which it com-
prised, or, in other words, should, as between them, be
otherwise than a trustee, or as a trustee, for the PlaintifT?
And this question ought, I think, on the whole evidence,
to be answered in the negative. I see no reason for
distrusting any one of the affidavits. Those made by the
Plaintiff are, if true, conclusive on the point, and he is
confirmed by the letter of the 10th October, 1855, leav-
ing to Mr. Archer the selection of the land that was to
form the son's qualification, and referring to the former
instances of Messrs. Roberts and Maxwell Edmonds. I
have not alluded to any intention upon the son's part, not
merely because he was the recipient, but because, also, it
is to be believed that he died without having been informed
or aware that the Plaintiff had made or designed to make
the conveyance, or conferred or intended to confer on
him a qualification or any estate or interest in the dis-
puted lands. The letter of 10th October, 1855, written
and signed by the Plaintiff, which produced the deed,
and upon which alone the deed proceeded, appears to
me effectually to exclude the Statute of Frauds from all
operation, if otherwise it could have had any operation
upon the controversy. I think it impossible to read that
letter, in connection with the other evidence admissible
consistently with the statute, and not to arrive at the
conclusion that the writer did not intend that, as between
him and his son, the latter should under it, or by means
of anything to be done under it, acquire a beneficial
title to any part of the lands, whatever they might be, of
which a qualification for him might be made by Mr.

Archer.

CASES IN CHANCERY.

49S

Archer. Then, however, arises the question of illegality.
Was the deed, was the transaction, one against law or in
fraud or contravention of public policy ? The answer to
this may perhaps depend on the proper construction,
the true meaning, of the 15th section of the Bedford
Level Act. For the Plaintiff it was contended, and for
the Defendant denied, that, according to the true inter-
pretation of that section, a qualification for the office of
conservator or bailiff is afforded by a legal ownership of
land, whether accompanied or not accompanied by the
beneficial • ownership ; that is to say, that a man legally
seised in fee simple of 400 of the 95,000 acres mentioned
in the section, though holding the 400 acres as trustee
for another, and having no beneficial interest in any part
of them, is by virtue of that seisin eligible for the office
of conservator or bailiff under the Act* Upon this point
my opinion is with the Plaintiff. The word " hath'* in
the section is nearly the same as the French word ** ait"
in the Statutes of 8 Hen. 6, c. 7, and 10 Hen. 6, c. S,
with reference to which, among other things, the Statute
7 & 8 Will. 3, c. 25, seems to have been made. My
conclusion in this respect is independent of any con-
sideration of what has been the usage under the Act of
Charles the Second. That usage, however, upon the
supposition that we are at liberty to look at it, has been
in conformity with the view that I have stated myself to
take. There are various instances of the usage, and
among them those, already mentioned, of Mr. Roberts
and Mr. Maxwell Edmonds. My conviction, I acknow-
ledge, is, that if at the time of executing the conveyance
of October^ 1855, the mortgage had not existed, and the
Plaintiff had been legally and beneficially seised in fee
simple of the lands comprised in it, there would have
been nothing illegal, nothing contrary to the policy of
the law, in the deed or transaction, and I should have

thought

1867.

404

CASES IN CHANCERY.

1857.

Childeks

Childbrs.

thought hinii on the ground of trust or mistake, or on
both grounds, entitled substantially to the relief prayed
by the bill.

Assuming this view to be right, I have then to say
whether the circumstance, that his title at the time was
equitable merely, was such in fact as has been stated,
makes in my opinion any difference for the present pur-
pose, and I think that it does not. He was, before and in
and throughout the year 1855, in the receipt of the rents
and profits of the lands as owner, and the particular
nature of his title did not, as I conceive, render illegal
or contrary to public policy an instrument or a transac-
tion, which, had his title been one complete at law and
in equity, would have been not illegal, would have
been not contrary to public policy. Whether, therefore,
the Statute of 15 Car. 2 was a public or a private Act,
whether in the circumstances of the case a qualification
for the office of conservator or bailiff under it was con-
ferred or not conferred by the deed, I think that the
Plaintiff is entitled to succeed in the suit, but should
pay all the Defendant's costs of it from the commence-
ment, including those of all proceedings before us. What
I should have thought the proper mode of dealing with
this case, if it had seemed to me that the Plaintiff or
Mr. Archer intended to do a thing or act in a manner
believed by either of them to be unlawful, improper or
irregular, or that either the omission from the deed of
all mention of the mortgage, or the form of the deed in
any respect, had been occasioned by a desire of conceal-
ment, or by a wish to deceive, or that Mr. Archer and
the Plaintiff, or either of them, had designed or wished
Mr. Rowland Francis Walbanhe Childers to be con-
sidered or understood by any person or body of persons
to have acquired, as between him and the Plaintiff, a

beneficial

CASES W CHANCERY.

495

beneficial title by the deed to the rents and profits of the
lands comprised in it, or that either Mr. Archer or the
Plaintiff had acted, or meant to act, in an oblique, a de-
ceptive or a covert manner, I abstain from saying, for I
am convinced that on the materials before us there is not
the least ground for holding either of those gentlemen
to be subject to any such charge or open to any such
imputation.

1857.

Childers
Cbildbrs.

7%tf Lord Justice Turner.

I agree, both in the conclusion and in the reasons,
and I only desire to add, that I am by no means satisfied
that under the circumstances of this case the Statute of
Frauds could in any event have availed the Defendant,
the infant. It is, I think, unnecessary to decide the
point, but I strongly incline to the opinion that, even
without reference to the letter to which my learned
brother has referred, the Plaintiff would have been en-
titled to the relief which is asked by this bill.

406 CASES IN CHANCERY.

1857.

LUDLOW V. STEVENSON.

Ji//y 25.

Before The HpHIS was an appeal from the decision of Vice-Chan-
^cELLo^t"" cellor Wood upon the construction of the will of

A testator William Ford Stevenson.
eave to his

&&,*" The will was dated the |2th AprU, 184«, aqd the

plate, linen, material parts of it were the following : — " I devise to

china, weanng ^

apparel, nay four children Harriet, William, Francis and Henry,

watches,jeweU ^nd their heirs, my freehold estates at Balham Hill and
and money ^ ' •'

(except money Peckham, in the county of Surrey, and elsewhere, upon
oM'n^h^ftllfd^ *^5^ ^^ receive the rents and profits thereof until the
or placed on decease of the said William Stevenson and his present
all other pro- ^'^^^f ^^^ ^^^ survivor of them, and to apply the same to
perty noi the purposes of this my will; and upon the decease of
va$ed of. And such survivor, I devise the said estates to such one of the

that imhm i - ®^"® ^^ ^^® ®^'^ William Stevenson by his present wife
dispensably living at my decease who shall first have attained the
funded and ** *8® ^^ twenty-one years, for his life, with remainder to
other property his first and other sons in tail male; and in default of

should remam , . t i • i % /. • j

as it was until s^^h issue, 1 devise such estates to the next of my said

the decease of grandsons who shall first attain the age of twenty-one
certam annul- ° , -^ j

tanu under years, for his life, with remainder to his first and other

on^the decease ^^^^ ^^ ^'' ™^'^ » *"^ ^" default of such male issue by
oftheannui- each of my said grandsons, with remainder to my right

rectedthe heirs; and I desire that such freehold estates be con-
whole of his tinued to be let upon leases for twenty-one years at the

oersonal estate ^ •'

to be invested present annual rents, and upon receiving a sufficient fine
sec^riife^^nd' ^^ compensation, to form part of my personal estate ; and

one- fourth part I hereby

to be traniP-

ferred to the Royal Society, and the other three parts to other specified public institu-
tions. Held, that the daughter was not entitled to railway shares, foreign securities or
other investments forming parts of the testator's personal estate, but that these de-
scriptions of property pasMd under the residuary bequest

CASES IN CHANCERY.

407

I hereby empower my said trustees to make such leases
accordingly. I hereby give to my said daughter Harriett
an annuity of 500/. for her sole and separate use, inde-
pendent of any husband she may marry ; I also give a
like annuity of 500/. to my said son William^ and upon
his decease I direct such annuity to be paid to his pre-
sent wife to enable her to educate and support the said
children. I give to each of my other sons Francis and
Henry an annuity of 300/. ; and I direct that all the said
annuitants be paid half-yearly^ on the 10th April and
15th October; and I direct that the legacy duty on the
said annuity, as well as the other annuities given by this
my will, be paid out of my personal estate; and I declare
that all the said annuities are given and must be taken in
full of all claims and demands which any or either of the
said annuitants may have upon me or my estate by virtue
of any marriage settlement or other contract of whatever
nature, and that they must each release my estate from
every such claim when necessary so to do. It is also my
will that an insurance should be effected in the Equitable
or some other established office on the life of each of my
said four children, and that the sum of 50/. be paid out
of my estate annually on each of such policies, and that
the amount payable upon the decease of the party insured
be paid to her or his executors or administrators ; and it
is my will that, upon the death of the survivor of them
my said son William and his present wife, the annual
sum of 100/. be paid to such of their sons living at my
decease as are not entitled to a life interest in my free-
bold estates, and the like annuity to each of their daugh-
ters living at my decease, the same to be for their sole
and separate use independent of any husband, such
annuities to be payable on the same days as the other
annuities. I give to my daughter Harriett all my books,
plate, linen, china, wearing apparel, watches, jewels and
money (except my money at my bankers or in the funds
Vol. I. K K D.J. or

1857.

Ludlow

Stevsnson.

498

CASES IN CHANCERY.

1857.

Ludlow

Stevenson.

or placed on security), and all other property not other-
wise disposed of, for her sole and exclusive use. It is
my desire that, unless indispensably necessary, my
funded and other property may remain as at present until
the decease of the annuitants, and that Messrs. Drum--
mond continue to be the bankers of my estate, and
receive the dividends and interest under proper powers
to be given them for that purpose. It is my wish that,
if from any circumstances my rents, dividends and other
revenue be insufficient to pay the annual sum on the
policies and the annuitants, that all such annuities be
reduced pro rat& in order to enable such policies to be
paid; and upon the decease of the said annuitants, I
direct the whole of my personal estate to be invested in
Government securities, and that one-fourth part thereof
be transferred to the President and Council of the Royal
Society, or such Fellows thereof as shall be capable of
taking the same, upon trust to apply the dividends and
interest for ever in furtherance of the objects of the said
society and for the advancement of science, and that one
other fourth part be transferred to the President and
Fellows of the Antiquarian Society, or such of the
Fellows who can legally take the same, in trust to apply
the dividends and interest in furtherance of the objects of
the said society; one other fourth part thereof to be
transferred to the trustees of the association in London
for the relief of Destitution, and the remaining fourth
part thereof to the trustees of the association for the
relief of the Houseless Poor, in order that the dividends
and interest may be applied in relieving the objects of
such charities/*

By a codicil the testator directed as follows : — *' I re-
quest John Malcolm Ludlow, of Chancery Lane, London,
Esq., to assist my daughter in the execution of my will ;
and I trust he will be able to effect an arrangement with

the

CASES IN CHANCERY.

the societies interested in the residuum of my personal
estate (and in which I am sure he will receive their aid),
for the management of my property, so as to prevent the
necessity of a suit in Chancery, which I much depre-
cate."

499
1857.

Ludlow

Stbvbnson.

By another codicil dated the 5th October, 1850, the
testator revoked so much of his will as directed an
assurance to be effected on the lives of his four children
(except that on his daughter's life, which he requested
might be made with the Equitable Assurance Company,
or with some other old-established company), and in lieu
thereof the testator gave to each of the children of his
sons Francis and Henry, who should be living at their
respective decease, an annuity of 100/. sterling ; and the
testator directed that such annuities, and all the other
annuities given by him, should commence on the quarter
day preceding his death or the death of such son or per*
son on whose death such annuities were to become pay-
able ; and the testator directed that the legacy duty on
every such annuity be from time to time paid out of his
personal estate, so that each of the annuitants might
receive the clear annual sum of 100/.

By the decree under appeal, it was declared, —

That under the bequest to the testator's daughter
Harriett, of all his " books, plate, linen, china, wearing
apparel, watches, jewels and money" (except his money
at his bankers or in the funds or placed on security),
" and all other property not otherwise disposed of." The
testator's stocks, securities, shares, funds and investments
(which were specified in a schedule to the Chief Clerk's
certificate, and the balances in the hands of the testator's
bankers) did not pass; and that the institutions mentioned
in the will were entitled to the whole of the testator's

K K 2 personal

500 CASES IN CHANCERY.

1867.- personal estate other than that part which passed by the
^'^^^'^^^^ gift in the will to the Defendant Harriett Stevenson.

Ludlow

Stevenson. Against this decree Harriett Stevenson appealed.

Mr. Willcoch and Mr. Waley (with whom was Mr.
Molt), in support of the appeal.

Mr. Daniell, Mr. Cairns, Mr. Kenyon, Mr. Amphlett,
Mr. W. Bovill and Mr. W. D, Lewis for the Respond-
ents.

Mr. Willcoch in reply.

The following cases were referred to: — Hotham v.
Sutton (a), Parker v. Marchant (6), Woolcomb v. Wool-
comb (c), Lamphier v. Despard (d), Wyndham v. Wynd^
ham {e), Shawe v. CunUffe (/), Harris v. Lloyd{g).

The Lord Chancellor.

This is a will as to which one cannot help wishing
that the construction which has been put upon it by the
Vice-Chancellor should not be that ultimately adopted,
because, prim& facie at least, it appears a strange mode
of dealing with a testator's property, to give the great
bulk of it away from his own children to certain scientific
and charitable institutions. But this will must be con«
strued like any other ; and if it appears that the intention
of the testator was to give the general residue amongst
these institutions, even to the sacrifice of the interest to

a great

(a) 15 Fe*. 319. (e) 3 Bro. C. C. 58.

(6) 1 Y,^C. C. C. 290. (/) 4 Bro. C. C. 144.

CASES IN CHANCERY.

a great extent of his own children, that is a lawful mode
of disposing of his property, and it would be very im-
proper for the Court not to carry that intention into effect
if it be clearly expressed.

His Lordship, after going through portions of the
will not in controversy, said — Certainly this is a very
strange will, but a will which ultimately does make a
provision, and I am bound to say, substantial provision
for the family ; but, with reference to his large property,
not one which a parent, who does not appear to have any
reason to be displeased with his children^ would be
expected to make. It is stated, I do not know how accu*
rately, that the property altogether amounts to 170,000/.,
and I suppose this disposes of about 40^000/.

Then comes the bequestj which gives rise to the dis-
pute— " I give to my daughter Harriett all my books,
plate, linen, china, wearing apparel, watches, jewels and
money, except my money at the bankers, or in the funds,
or placed on security, and all other property not other-
wise disposed of, for her sole and exclusive use."

601

1857.

Ludlow

STBVBiiioir.

The meaning of this appears to be — ** I give the
money that I may have in my house or in my purse,''
and seems to be the same as if the testator had said
" watches, jewels, money and all other property not
otherwise disposed of, except my money at my bankers,
or in the funds, or placed on security."

I think it quite clear that the daughter cannot take
any money at the bankers, or money in the funds, or
money placed on security under the words "all other
property." The testator having expressly excepted those
particulars, clearly does not mean at least under this
bequest to give her the money at the bankers, the money

' in

602 CASES IN CHANCERY.

1857, in the funds, or the money placed on security. She
^^^'^^ does not indeed claim the money in the funds, but she
9. claims the Railway shares and foreign securities, and

Stbtenion. Qther property of the same sort. On this claim, I have
come to the same conclusion as the Vice-Chancellor, and
I believe, on the same grounds, that these properties,
which were yielding income, are " otherwise disposed
of," because the testator goes on to say — " It is my
desire that, unless indispensably necessary, my funded
and other property may remain as at present until the
decease of the annuitants." Those words roust mean
** remain invested as at present ;*' and I think the inten-
tion clear to demonstration from what follows, that all
property yielding income should so remain, for the tes-
tator goes on to say — " And that Messrs. Drummond
continue to be the bankers of my estate, and receive the
dividends and interest under proper powers to be given
them for that purpose."

Then the next question is, how long they were to
receive the dividends ?

It appears to me, that unless a different course became
" indispensably necessary," the dividends were intended
to be so received as long as the annuities were to endure.
The testator then expresses a wish, that if from any
circumstance the rents, dividends and other revenue
should be insufficient to pay the annual sum on the
policies, the annuities should abate, and not the policies,
so that the insurance might be kept up, and he proceeds
thus: — "And upon the decease of the said annuitants,
I direct the whole of my personal estate to be invested in
Government securities, and that one-fourth part thereof
be transferred," &c. That means the whole of his then
personal estate, which includes everything that would then
remain.

I further

CASES IN CHANCERY, 503

I further come to the conclusion that these words 1857.

include the money at the bankers, and that the invest- 7^'^^^

Ludlow
ment was intended to take place immediately, because v.

I quite agree with the observation, that the postponement Steveniok.

was directed only because there were the annuities to

provide for.

Therefore I think, coming to the conclusion not with-
out much regret (although I confess without much doubt)
that these Societies take the whole between them in equal
fourths, except the wearing apparel, watches and other
specified articles, and the money in the house, and that
they take it as residuary legatees.

I do not dwell much on their being described in the
codicil as being interested in the residuum. Nor do I
proceed upon the direction, that the executor, in order to
prevent the necessity of a Chancery suit, should arrange
with the societies, for if the case had rested on that, the
answer would have been, that a testator may as properly
direct his executor to effect an arrangement with a par-
ticular as with a residuary legatee, to prevent a Chan-
cery suit. I think, however, that there is great force in
the observation made by Mr. Cairns, founded on the
provision that the insurance should be kept up out of the
residue with the small sum of 50/. a year. Such an insu-
rance could not have produced above 1,000/. or 1,500/.
for the benefit of this lady*s estate at her death, and if
she had been intended to take the whole residue, would
have been a very unlikely, if not an absurd, provision.

The view, which I take, is exactly that taken by the
Vice-Chancellor, and consequently the Appeal must be
dismissed ; but as the will is so strangely framed, I think
the costs of all parties should be paid out of the estate.

604 CASES IN CHANCERY.

1857.

Ju/y 27, 28,

29- MICKLETHWAIT v. MICKLETHWAIT.

Aug, 4.
Before The npHE bill in this case was filed by Henry Shamhorne

^^icE.^.*"' Nathaniel Michlethwait against John Nathaniel

A testator left Michlethwait and others, to restrain J. N. Mickkthwait

hismansiofH f^Q^ cutting down timber, alleged to be ornamental

hoose on the

B, estate, went timber, upon an estate called the Beeston estate, being

^ otT*^* ^ute P*^'^' ^^ certain estates of which he was tenant for life in
at the distance possession, and to have a receiver appointed for the pur*
mifes, 'pulled* P^^® ^^ securing the rebuilding of a mansion-house,
down the B. which the same Defendant had pulled down upon an
house, cut estate called the Taverham estate, being other part of the

down some of ^y^^^ estates,
the ornamental
timber about

H, turned the <• i • i • •

estate into a The facts of the case, the statement of which is pnn-

coverfor cipally taken from the judgment of the Lord Justice

together acted Turner^ were as follows : —

so as to show
that he had no

intention that Nathaniel Michlethwait ^ the testator in the cause,

the mansion-
house should was,
be rebuilt.

Held, that the rest of what had originally been ornamental timber on the B, estate
was not, as between the parties claiming under the will, protected as ornamental, bat
might be cut by a tenant for life whose estate was without impeachment of waste.

The testator, when he did the above acts, was only tenant for life in possession,
with an ultimate reversion to himself in fee expectant on the failure or determination
of a subsequent estate for life and various estates tail, which did not fail and deter-
mine till after his death. Held, that as between the parties claiming under his will,
the case stood on the same footing as if he had been entitled in fee simple in posses-
sion.

The testator devised his estates to A, B, for life without impeachment of waste,
** except voluntary waste in pulling down houses and not rebuilding the same or
others of eoual or greater value." A, B. pulled down the mansion-house, with the
intention of forthwith building a better on the site, and was proceeding with all rea-
sonable dispatch to carry such intention into effect. Held, that the person entitled
to the next vested remainder was not entitled to have a receiver of the rents appointed
in order to secure the rebuilding of the mansion.

CASES IN CHANCERY.

505

was, in the year 181 S, seised in fee of two estates in the
county of Norfolky the Beeston estate, containing about
SOO acres, and the Taverham estate, containing about
3,000 acres. In that year be settled these estates to the
use of himself for life (whether without impeachment of
waste did not appear), with remainder to Nathaniel
Waldegrave John Branthwayte Mickkthtoait, his eldest
son, for life, with remainder to the first and other sons of
the eldest son in tail, with remainder to himself in fee.

1857.

The Beeston and Taverham estates were detached and
disconnected estates, about eight miles distant the one
from the other. There was a mansion-house on each
estate, but prior to and in the year 1812, and thenceforth
until the year \S23, the testator resided in the mansion-
bouse at Beeston. About this mansion house and the
parks and grounds belonging to it there were trees,
which, upon the evidence in the cause, appeared to have
been planted or left standing for ornament. Some of
them were in a sort of avenue, at the end of which there
were iron gates opening to the road. It appeared, how-
ever, that the avenue never reached down to the house,
but terminated at a distance from the house of some 200
or 300 yards.

In the year 1833 the testator left Beeston and went to
reside at Taverham, and thenceforth to the time of his
death he resided wholly at Taverham, The mansion-
bouse at Beeston, after the testator left it, was let to a
tenant for two or three years, but it then became vacant,
and was not again occupied. The testator suffered it to
fall into decay ; it became dilapidated, and ultimately, in
the year 1845, he pulled it down. He not only did so,
but l)e wholly dismantled the place. The ornamental
garden had been protected by a wire fence: he took
away the fence and removed it to Taverham, During his

residence

506

CASES IN CHANCERY.

1857.

residence at Beeston he appeared to have planted ex-
tensively^ and to have taken into the plantation about
100 yards of the avenue nearest to the mansion-house.
AAer he left the mansion-house he cut down and sold
several of the trees which were in the line of the avenue
and had been taken into the plantation. He also cut
down at other times other trees standing about the man-
sion-house and in the parks^ and which were at least
as well entitled to be considered as having been planted
or left standing for ornament as the trees in question in
the present suit. The gardens and pleasure grounds
were suffered to grow wild, and were left without protec-
tion, with the exception of the kitchen garden, which was
let to a market gardener. The testator was fond of
shooting, and ader he removed to Taverham he seemed
to have regarded the Beeston estate merely as a cover for
game.

It appeared that the testator, after dismantling the
Beeston grounds, allowed some of the timber on the
estate to stand until it was considerably deteriorated by
age, and some evidence was given with a view of show-
ing that the testator left it standing in order that it might
serve as ornamental timber if any one chose to rebuild
the mansion. . The view which the Court took of the
effect of the evidence appears from the judgments, and it
is not thought necessary to give the particulars of it.

In the year 1852 the testator made his will, whereby
he devised (inter alia) the Beeston and Taverham estates
to the Defendant J, N, Micklethwait and his assigns for
his life, " without impeachment of or for any manner of
waste other than and except voluntary waste in pulling
down houses or buildings and not rebuilding the s^me or
others of equal or greater value," with remainder to the
first and other sons of «/. N. Micklethwait in tail male,

with

CASES IN CHANCERY.

507

with remainder to the Plaintiff for life, with a like direc-
tion as to waste, with divers remainders over. The will
contained a power of leasing any part of the estates
except the mansion-house at Taverham, with the build-
ings, plantations, gardens and pleasure-grounds usually
occupied therewith, and also a power of sale and ex-
change.

The testator died on the 7th January, 1856. His
eldest son N, W. J, JB, Micklethwait survived him, but
died on the 18th July, 1856, without ever having had
any issue.

Upon the death of N, W. J. B, Micklethwait, the
Defendant «/. N. Micklethwait entered into possession
of the estates as tenant for life under the will, and shortly
before the filing of the bill in this cause he began to cut
down some of the trees on the Beeston estate, which, as
the Plaintiff (who was entitled to the next vested estate
under the will, J. N, Micklethwait having no issue)
contended, were planted or left standing for ornament,
several of the trees proposed to be cut down being in the
avenue above referred to.

1857.

Mickle-
thwait

Mickle-
thwait.

In March and April, 1857, the Defendant J. N.
Micklethwait advertised the materials of the Taverfiam
mansion-house for sale, and commenced pulling it down
with the view of building a new one. The materials
were sold for 750/. lOs. On 17th Apil the PlaintiflF
wrote to remonstrate against these proceedings, insisting
that, before the old house was pulled down, the Defend-
ant ought to give security for building a new one, as
otherwise the Plaintiff might come into possession of the
estate and find it without a house. On 25th April an
agent of the Defendant replied, to the effect that the
Defendant intended to insure his life for 10,000/. for at

least

608

CASES IN CHANCERY.

1867.

least five years, to secure there being money enough to
complete the rebuilding, and that it was considered that
the work would be completed within that period. An
answer was returned on behalf of the Plaintiff to the
effect that 10,000/. was a totally inadequate security, and
that the demolition of the old house was quite unneces-
sary. The Defendant, however, proceeded with his
undertaking, and on 21st May finally approved of plans
for a new house, which was to be erected at an estimated
cost of about 13,000/.

In the meantime the Plaintiff* filed his bill, the sub-
stance of the prayer of which was, that an injunction
might be granted to stop the felling of trees in the avenue
and park at Beeston, and any other trees on the Beeston
estate ; that the Defendant might be decreed to complete
a suitable mansion-house on the Taverham estate, and to
give sufficient security, to be approved of by the Court,
for its completion ; and that, if necessary or proper for
insuring the completion of the mansion, a receiver of the
rents and profits of the devised estates might be ap-
pointed, and the rents and profits applied accordingly ;
that an account might be taken of the proceeds of the
timber already felled and of the proceeds of the sale of
the materials of the mansion-house, and that such pro-
ceeds might be secured and invested for the benefit of the
persons entitled thereto.

On 12th May, 1857, Vice-Chancellor Kindersley
made an order ex parte, that the Defendant J. N. Michle-
thwait, his workmen and agents, should be restrained
from felling or cutting any trees in the avenue or in either
of the parks forming part of the Beeston estate.

The Defendant J. N. Micklethwait shortly afterwards
moved, before Vice-Chancellor Wood, to whose Court

the

CASES IN CHANCERY.

509

the cause was attached, to dissolve the injunction ; and
by an Order made by his Honor on S9th May^ it was
ordered that the above injunction should be continued,
and that the Defendant J, N. Micklethwait, his servants
and agents, should be restrained from cutting down any
trees forming either side of the avenue on the JSeeston
Estate, or any other trees planted or left standing for
ornament on any part of the Beeston estate until the
further Order of the Court, and that it should be referred
to Mr. F.J. Clark, a land agent and surveyor, to inquire
and certify what trees had been planted or left standing
for ornament on the Beeston estate, and whether any
and which of such trees were proper to be cut, having
regard to the purpose for which the same were planted
or left standing.

1857.

On the 4th June, a motion by J. N. Micklethwait, to
discharge these orders, came on before the Lords Jus-
tices, who were of opinion that a notice of motion for a
decree had better be given, so that the case might be
finally disposed of at one hearing. The Plaintiff ac-
cordingly gave notice of motion for a decree, and the
case now came before their Lordships upon the Defend-
ant's motion to dissolve the injunction, and upon the
Plaintiff's motion for a decree.

Mr. Cairns and Mr. Lewin^ for the Plaintiff.

In the first place, as to cutting the timber. Whether
the timber is ornamental or not, is a question of inten-
tion ; and, as there can be no doubt that the purpose for
which the timber now in dispute was planted originally
was that of ornament, it is therefore dmber to which
the protection of the Court will be extended. In Marker
V. Marker (a), one of your Lordships said, " I consider

the

(a) 9 Hare, 17.

510

CASES IN CHANCERY.

1857.

the doctrine of the Court applicable to cases of equitable
waste perfectly well settled. The Court considers the
excessive use of the legal power incident to an estate
unimpeachable of waste to be inequitable and unjust, and
therefore controls it; but it exercises that control with
reference to the presumed will and intention of the party
by whom the power was created, and not to any fancied
notions of its own, and therefore, as to ornamental
timber, confines its protection to timber planted or left
standing for ornament. The question, therefore, in all
such cases is a question of fact, and the main difficulty
lies in the evidence necessary to establish the fact.''

The Defendants rely on the circumstance of the man-
sion having been pulled down, but the same circumstance
occurred in Wellesley v. Wellesley (a), and yet the tenant
for life was restrained from felling the timber. It was
in that case urged before the V ice-Chancellor of Eng-
land, that there was no case in which the mansion, having
been pulled down under a provision in the settlement, the
Court had protected the timber which would have been
ornamental, if the mansion had remained ; but the Vice-
Chanoellor said, in the course of the argument, that the
timber need not necessarily be ornamental to the house,
for that the Court protected trees, though out of sight of
the house, and his Honor made the injunction perpetual
at the hearing of the cause.

They also referred, on this part of the argument, to
Wickham v. Wickham (6), Vincent v. Spicer (c).

In the next place, a receiver ought to be appointed to
manage the estate and prevent waste from being com-
mitted,

(fl) 6 Sim. 497. (6) 19 Va, 419.

(r) 22 Beav, 380.

CASES IN CHANCERY.

511

mitted, by retaining out of the rents and profits sufficient
to keep the property in repair, in the same way as is
done with respect to the raising of renewal fines in the
case of renewable leaseholds. There is now no mansion
on either estate. Will the Court permit that state of
things to continue? — [7%e Lord Justice Turner. How
is it known that the tenant for life is not about to rebuild
the mansion ?] — He has not the means, and may die in-
solvent In Jones v. Jones (a), Vice-Chancellor Wigram
contemplated this contingency; his Honor said, ''Unless
some course be taken to protect the interest of the
remainderman, the tenant for life may enjoy the estate
during his whole life without bearing any greater charge
than the interest on the debt created by the renewal, and
he may leave no assets to pay his proportion of the
principal money. This is one of the difficulties noticed
by Lord Eldon in White v. White, That inconvenience
may perhaps be avoided by requiring the tenant for life
to give security —a course to which Lord Eldon points in
that case. The late cases of Greenwood v. Evans (&),
and Reeves v. Creswick (c), are authorities which recog-
nize the course of giving security, as a course proper to
be pursued, where no other means are open for providing
for a proper apportionment.*' — [^The Lord Justice
Knight Bruce. If a testator has directed that the
tenant for life shall not pull down without rebuilding,
and the tenant for life has pulled down and not rebuilt,
is that anything but past waste?] — We submit that it is
continuing waste which the Court will remedy by the
best means in its power. — [^The Lord Justice Turner.
Can any case be found of a legal tenant for life, of a
renewable leasehold, where the Court has appointed a re-
ceiver, for the purpose of providing renewal fines?] — The
principle of the authorities would extend to such a case.

They

(a) 5 Hare, 465. {b) 4 Bcav. 44.

1857.

512

CASES IN CHANCERY.

1857.

They referred to Baylies y. JSayties (a), and Coote y.
O'Reilly (J).

Mr. Holt and Mr. Giffard, for J. N, MicklethwaiL

In all the cases relating to ornamental timberi it will
be found that the timber protected was ornamental directly
or indirectly to a mansion-house; there is no case in
which timber has been treated as ornamental within the
rule, unless in some way connected with residence. There
was reference to a residence in Chamberlayne v. Xhtm-
mer(c), Marquis of Downshire v. Lady Sandys (d), and
Coffin V. Coffin(€). Wellesley v. TTellesleyif), was a very
special case^ and does not touch the present. Morris v.
Morris {g)^ is not against us ; there the timber was timber
ornamental to mansion-house, and the tenant for life
could not, by wrongfully pulling down the house, alter
the character of the timber ; that would be taking advan-
tage of his own wrong. — [77*€ Lord Justice Knioht
Bruce asked whether, in any decided case, the instru-
ment creating the life estate had contained an exception
like that in the present case.] — In Vincent y. 8picer{h)
a somewhat similar exception occurred, but it was more
extensive than in the present case, and the observations
of the Master of the Rolls, on an exception like the pre-
sent, are in our favour, and show that it may fairly be
contended that the testator, by expressly prohibiting one
kind of equitable waste, sanctions other acts which a
Court of Equity would otherwise restrain as being equi-
table waste. The principle, expressio unius est exclusio
alterius, which is well illustrated, though with reference to
an entirely different subject by Doe d. Spilsbury v. Bur-

dett

(a) 1 Coll, 537.
{b) 1 Jo. 4- Lat, 455.
(r) 3 Bro. C, C. 549.
((/) 6 r«. 107.

(e) Jac, 70.
(/) 6 Sim. 497.
(g) 15 Sim. 505.
(A) 22 Beav. 380.

CASES IN CHANCERY.

dett{a) and the other cases as to the omission of the
word *' signed'* from an attestation clause, applies here.

Eminent judges have regretted the establishment of
the rule as to equitable waste. Burgess v. LambiJ))\ and
it ought not to be extended. In the application of it,
regard should be had to the principle which gave rise to
it, which, as stated by Lord Redesdale (c), was, that a
Court of Equity interfered to prevent a legal right frotn
being abused for the purposes of " malicious mischief.*'

If timber can in any case be protected as ornamental,
without regard to the ornament of a mansion-house, at
all events the onus must lie on those seeking to protect
it, to show that it has had this ornamental character im-
pressed upon it ; and, with this view, if the estate has
recently belonged to an owner in fee, his intention must
be looked to, as manifested by his acts as well as by the
language of the settlement he has made. Let us look to
the acts of the testator in this case. The other side say
they were tortious acts by a tenant for life, and in some
sense they may have been so ; but the only person who
could have complained of them is out of the way ; and as be-
tween all parties claiming under the will, the testator must
be considered as if he had been all along the owner in fee.
Now, the acts of the testator clearly show that he never
intended to rebuild the mansion at Beeston, and that he
never looked upon the grounds there with any regard tor
ornament after he ceased residing at that place. The
place was not even used as a spot to take excursions to. —
IThe Lord Justice Turner. Is there any case bearing
on the question, whether, where ornamental timber has
become vested in an absolute owner, the Court can go

back

(a) 4 Ad. 4- EU, 14; 10 CL^ (6) 16 Ves. 174, 185.
Fin. 340. (r) Mil/. Pleadings, 140, 4th ed.

Vol. I. L L D.J.

1857.

514

CASES IN CHANCERY.

1857.

back beyond him for the purpose of ascertaining whether
the timber is to be treated as ornamental ?] — We believe
the point has never been raised, but we submit that the
present case does not call for an answer to so wide a
question as that ; the point is, whether, when a testator
absolutely entitled has shown a decided intention to treat
timber as not being ornamental, the Court can go back
beyond him in order to affix an ornamental character to
it. The intention of the settlor governs the case. Marker
V. Marker (a).

As to the pulling down the mansion at Taverkam, we
submit, that where, as here, a tenant for life has an ex-
press licence to pull down buildings provided he rebuild,
there is no pretence for a remainderman's coming for a
receiver to secure the rebuilding, unless he can show that
the tenant for life is guilty of some default.

Bewick v. Whitfield (J), was also referred to.

Mr. Lewin, in reply.

There is no reason for holding that timber cannot be
protected as ornamental unless connected with a house.
Suppose a settlor laid out ornamental grounds in the
country, as a pleasant place to which to take excursions
from town, would a tenant for life be entitled to destroy
their ornamental character because they were unconnected
with a residence?— -[JXe Lord Justice Turner. The
decrees commonly refer to "ornament or shelter." Shelter
must mean shelter to something; must not "ornament** also
be relative.] — I submit not; the words are in the alter-
native. Moreover, in Marquis of Downshire v. Sandys,
the injunction was expressly extended to timber orna-
mental to the common.— [27/e Lord Justice Knight

Bruce.

(fl) 9 Hare, 1 . (6) 3 P. Wms. 267 ; 3 Mad, 523.

CASES IN CHANCERY.

515

Bruce. Did not the common form a drive to the house?]
— If ornament can only be understood with reference to a
mansion, a tenant for life unimpeachable for waste might
cut down every tree about such a place as Netley Abbey
or Tintern Abbey.— [7%« Lord Justice Turner. The
principle of the rule against equitable waste is, that a
tenant for life is not to make an unconscientious exercise
of a legal power. How far is it such an unconscientious
exercise to cut down timber which has been left standing
merely for fancy ?] — The answer to that is, that all orna-
ment depends on fancy. You must look to the intention
of the settlor. The Court cannot inquire whether his
taste was good or bad. Vincent v. Spicer(a) and New-
digate v. Newdigate(Jb) show that the exception as to
waste contained in the will does not enlarge the power
of the tenant for life. The pulling down the mansion
at Taverham must give us an equitable lien on the
beneficial interest of the tenant for life to secure its
being rebuilt; there being an express condition for re-
building.

1857.

TTie Lord Justice Knight Bruce.

This cause was heard by us, not by way of appeal or
rehearing, but originally. There was, however, con-
joined with the hearing a motion, by way of appeal from
one or both of two interlocutory orders in the suit, which
had been made respectively on the 12th and 29th oi May
last by two of the learned Vice-Chancellors. — [His Lord-
ship, after reading the two orders, proceeded as follows:]

Aug.\,

The present circumstances render it, I think, unne-
cessary to give an opinion as to either order, but I may

say

(a) 22 Beav. 380.

(6) 1 Sim. 131.

LL2

516

CASES IN CHANCERY.

1857,

say that the one made ex parte was probably right ; and
I am not satisfied, considering the stage of the litigation
at which the other was made, that the continuance by it
of the injunction until further order was not correct.
Perhaps security, if it was asked, might well have been
required to be given to the restrained Defendant as a
condition of continuing the restraint upon him ; but as
to this I am not stating an opinion.

The suit is thus circumstanced. The Defendant Mr.
J. N. Mickletkwcut is tenant for life in possession, under
the will of his father Mr. N, MickUthwait, of two estates
in Norfolk ; the Taverham estate, one of some size and
importance, having an area exceeding 2,500 if not ex-
ceeding 3,000 acres, and the Beetton estate, one much
smaller and more inconsiderable, having an area of not
more than 350 if of more than 300 acres; this tenancy for
life being expressly without impeachment of waste, ex-
cept in respect of buildings. Mr. J. N. Micklethwaii ia
charged by the bill with what we call equitable waste as
to JBeeston, and with legal or equitable waste, or both,
as to Taverham ; the questions being of his right to cut
timber, which, standing on the JBeeston estate, is said to
be protected as ornamental, or as planted or left standing
for ornament (timber worth for sale, it appears, not more
than 1,600/., if so much), and of the liability incurred
by him in consequence of having pulled down the man-
sion-house of Taverham (a moderate house of no great
value), which stood on the other, the greater, estate, as he
has done; the materials of it having been sold by him
for something less, I believe, than 800/. The will ex-
pressed the licence and the restriction which it con-
ferred and imposed on him as to the life interest in
these words: — "Without impeachment of or for any
manner of waste other than and except voluntary waste
in pulling down houses or buildings and not rebuilding

the

CASES IN CHANCERY.

617

the same, or others of equal or greater value.** All the
parties to the cause claim under and solely under the
will, the Plaintiff being the next brother of Mr. J. N.
Micklethwaity and a devisee for life in remainder ex-
pectant on the death and failure of the male issue of Mr.
J. N. Micklethwaity who is said not to have any issue.

The motion for a decree, upon which the hearing took
place — a motion probably not exceeding the scope of the
prayer of the bill — was thus: — [His Lordship here read
the notice of motion for decree.]

The suit may, I think, for every purpose, be dealt
with as if the testator, when he made his will, had been
seised in fee of the two properties, for though at that
time he was tenant for life of them, with remainder to
his eldest son Mr. N. W. J. B, Micklethwait for life,
with remainder to the sons, if any, of Mr. N, W, J. B.
Micklethwait successively in tail male, with remainder
or reversion to the testator in fee, Mr. N. W. J. B.
Micklethwait died soon af\er the decease of the testator,
and left no issue.

At one period of the argument I had been rather dis-
posed to think the rights of the deceased eldest son
and his male issue, if any, in the Beeston estate not
immaterial with regard to the timber in dispute, as the
father died in the eldest son's lifetime, but my opinion is
now otherwise, although it is probably or certainly true,
that while a mansion-house which formerly stood on the
Beeston estate was standing, the timber in dispute was
ornamental with reference to that mansion-house, and
could not, as against the deceased eldest son or his male
issue, have been rightfully cut by the testator: and it may
be that after the demolition, in or before 1846, of the
Beeston mansion house, this timber was protected during
the whole of the deceased son's life, and that his assets, if

after

1857.

518

CASES IN CHANCERY.

1857.

MlC&LE-

THWAIT

MiCXLE-
THWAIT.

a(\er his father's death he had cut it, would have been
answerable for its value, nor alone to the Defendant
J. N, Micklethwaitf the now eldest son of the testator
and tenant for life in possession, as I have said, under
the will.

I assume, in the PlaintifTs favour, that the words by
which alone the will expressly limits the power of the
Defendant J. N, MickUthwait to commit waste, do not
improve or assist his case as to the timber ; though upon
this point I do not mean to express any opinion.

Two undisputed facts, very material in my judgment
with respect to the timber, are, that the Beeston mansion-
house, already mentioned, was in or before the year
1827 abandoned by the testator as a place of residence,
and was never after that year resided in ; and that in or
before the year 1846 it was, with the consent of his then
eldest son, also already mentioned, pulled down and de-
molished by the testator. It was never rebuilt, nor at
any time since the year 1846, if since the year 1845, has
there been any mansion-house on the Beeston estate.
The testator, from a time preceding the year 1828, re*
sided at the mansion-house of Taverfiam, distant seven
or eight miles from Beeston, and standing on the Taver-
ham estate, which, adjoining not any part of the Beeston
estate, but distinct altogether from it, and being, as I
have said, a much larger and more valuable property, is
devised, together with it, by Mr. N. MicklethwaiCs will.
The evidence in the cause satisfies me that if the testator,
at any time in or after the year 18:^8, had any intention
of building at Beeston, or returning or going to live there
(which without building he could not), he had no such
intention at any time after the year 1845. But the date
of his will is 29th May, 1852, and he was living in the
early part oi January, 1856.

Considering

CASES IN CHANCERY.

519

Considering these facts^ and the manner in which the
site of the destroyed mansion-house at Beeston and the
rest of the Beeston estate were for many years next before
the year 1852, and during the whole of that year and
the whole interval between it and the testator's death,
treated and used, (a manner that seems to me inconsistent
with the possibility of entertaining rationally a belief
that the testator, after the demolition of the Beeston
mansion-house, considered the Beeston estate otherwise
than as merely an ordinary farm, except as he appears
to have made it subservient rather to the encouragement
of the breed of rabbits and game and to sporting pur-
poses than to purposes of profit, save the garden which
was let to a market gardener,) I am of opinion that not
any portion of the timber standing on the Beeston estate,
with whatsoever view or object planted, or before the
year 1846 preserved, whether in an avenue or otherwise,
whether near or not near the site of the destroyed man->
sionhouse of Beeston, and whether ornamental or not
ornamental to it when it was standing, is, at the instance
of any person claiming an interest only under the will,
entitled to protection as ornamental timber, or as timber
planted for ornament or left standing for ornament. That
character, once probably or certainly belonging to it in
connection with the late mansion-house there, has, in my
judgment, never belonged to it in any other manner, nor
as between or among any persons claiming title solely
under the will ; a conclusion consistent, I think, with all
the decisions and dicta (so far as my knowledge extends)
of Lord Hardwicke, Lord Thurlow, Lord Kenyon and
Lord Eldon upon the subject. If the protection of this
timber as ornamental, or as having been planted or left
standing for ornament, has not ceased, when or how is
it to cease? If there had been proof, or we could infer,
that in demolishing or after the demolition of the Beeston
house the testator intended designed or wished to re-
build

1857.

aao

CASES IN CHANCERY.

1857.

MlCKLE-

THWAIT

THWAIT.

build it, or to reside or erect a mansion-house or place
of residence on that estate, or intended designed or
wished that any devisee under his will should do so, the
Plaintiff might have been entitled to protection for these
trees, but there is no such case. It is said, however, for
him, that the timber is handsome, is well placed and
well grown, is generally ornamental, is ornamental, that
is to say, independently of any notion of a mansion-house
and without reference to residence, and that the testator
considered it so; and having allowed, as he did allow,
the trees to remain standing after some of them had at^
tained maturity and were becoming year by year through
age less valuable for purposes of use or sale (though
probably his eldest son would have interposed no objec-
tion against any cutting at Beeston by him), he ought
therefore, if on no other ground, to be deemed to have
desired their preservation. All this, in my opinion, is
immaterial and amounts to nothing, nor in saying so am
I forgetful of Lord Doumshire v. Lady Sandys. Perhaps
a state of circumstances may be imagined in which timber
would, in the absence of any express direction in a will or
any instrument governing the title, be protected as orna^
mental without reference to any former or present or io^
tended residence or house, and independently altogether
of any such consideration. But of this I am not sure. I
am, however, satisfied that there is no such state of circum*
stances here; and as, in my judgment, I repeat, the tea->
tator, under whom alone all the litigants before us claim,
did not in or after the demolition of the BeesUm bouse,
which demolition preceded by some years the will, con-
template or intend that in his lifetime or after his death
there should or would again be a gentleman's residence
at Beeston, I believe the suit to be as to the timber, if
pot unexampled, at least not warranted by any example
that binds us, nor supported by the principles on which,
with a view to prevent the malicious or fraudulent use or

the

CASES IN CHANCERY.

S21

th? abuse of a legal power, the Court of Chancery, as a
Court of Equity, has interfered to restrain a right con-
ceded by the Courts of Law to a proprietor having less
than an absolute interest. It can seldom be right, I
agree, to consider the extent of a rule as being only that
of the examples of it, but there must probably be surer
and more dangerous error in stretching a rule beyond
the reason for it. That is what the Plaintiff, I think,
feeks to do here, in opposition to the maxim which,
as sound as it is familiar, says, *' Nulla juris ratio aut
ssquitatis benignitas patitur ut quae salubriter pro utilitate
hominum introducuntur ea nos duriore interpretatione
contra ipsorum commodum producamus ad severitatem."

1857.

The injunction should, in my judgment, be dissolved,
and the bill as to the timber dismissed.

Then as to Taverham, it is unnecessary to say what I
should have thought of the case had Mr. J. N'. Mickle-
thwait pulled down the mansion-house there, or sold the
materials, capriciously, or from any motive or feeling of
ill-will or of mischief, or without any intention of re-
placing it by a suitable mansion-house at Taverham of
equal or greater value, for the evidence does not warrant
any such belief or inference. The demolition of the
Taverham mansion-house and the sale of the materials,
connected, as they were with his intention to erect a new
mansion-house on that estate, an intention which seems
to me to have been reasonable, were, in my opinion,
reasonable steps for him to take. That intention does not
appear to have been abandoned, nor does there appear
to have been negligence or undue delay in proceeding to
carry it into effect. Although the building has not yet,
I believe, been commenced, preparations have been and
are in progress. The new mansion-house designed to be

erected

522

CASES IN CHANCERY.

1857.

erected I understand as meant to be of greater value than
the Taverham house pulled down^ and to be a house at
least as well adapted to the property. Mr. J. N. Mickk"
thwait has by his counsel expressed his willingness to
undertake^ and I consider him accordingly as under-
taking, to continue, without unnecessary delay and with
reasonable despatch, the works preparatory to erecting,
and proceed to erect on a suitable site upon the Taverham
estate a substantial mansion-house, exceeding in value or
equal at least in value to the mansion-house at Taverham
demolished by him. We receive that undertaking. It
will be embodied in the decree or order to be now made,
which, beyond that and the dissolution of the injunction
and the dismissal as to the timber, will be merely that
the cause stand over generally (except as to the timber),
with liberty to apply. I cannot say that I admire the
suit, at least in the ordinary sense of that expression, but
my learned brother, I believe, thinks that no party
should in any event have any costs of it to the present
time, and to that I agree.

TTie Lord* Justice Turner.

The questions in this case are new and important, and
are not, as I think, altogether free from difficulty. By
far the most important question in point of law is that
as to the timber, as it involves the extent of the doctrine
of this Court with respect to equitable waste.

[His Lordship then stated the facts as to the timber
on the Beeston estate, as given above, except that he
omitted all mention of the acts of the testator with
respect to the Beeston property and the trees upon it,
which in the above narrative follow the statement that he
pulled down the house there. His Lordship then, after

stating

CASES IN CHANCERY.

5SS

stating that he should consider these acts separately from
the above part of the case, proceeded as follows :]

In disposing of the case it is, I think, material, in the
first place, to consider the position in which the testator
stood. He was tenant for life of the estates, with re-
mainder to himself in fee, subject to intervening limita-
tions in favour of his eldest son and his male issue ; and
it was suggested on the part of the Plaintiff that, assum-
ing the trees in question to have been impressed with
the character of ornamental timber as understood by this
Court, it was not competent to the testator, in the position
in which he stood, to alter or affect their character. Of
the eifect of the testator's position as bearing upon the
evidence of his intention in the acts which he did, I shall
have occasion to say a few words presently ; but without
reference to that consideration, I think that in this case,
and as between these parties, we are bound to regard the
testator as if he had been owner in fee of the estates.
He was so, subject only to the rights of the eldest son
and his issue male ; he assumed so to act, without regard
to those rights ; those rights have ceased to exist, and
we have now to deal with the rights of parties claiming
under the testator's will, and under his will only. What-
ever it may be competent to those parties to say upon
the eifect of the testator's position as bearing upon the
evidence of his intention to be deduced from his acts, I
do not think it can be competent to them to say that it
was not in his power to deal with the trees upon the
estate, so far as their ornamental character is concerned,
as a tenant in fee might have done. The broad question
then arises, whether, if an owner in fee of an estate, with
a mansion-house upon it and trees planted or lefl stand*
ing for ornament around or about the mansion-house,
pulls down the mansion-house without any intention to
rebuild it, for in this case it is clear that there was no

such

1857.

£24

CASES IN CHANCERY.

1857.

such intention, a tenant for life, without impeachment of
waste, under the will of such an owner, is or is not
entitled to cut down the trees ; whether the doctrine of
this Court as to equitable waste reaches to such a case ?
This doctrine of equitable waste, although far too well
settled in the Court to be now in any way disturbed, is
(it is to be observed) an encroachment upon a legal right
At law a tenant for life without impeachment of waste
has the absolute power and dominion over the timber
upon the estate, but this Court controls him in the exer-
cise of that power, and it does so, as I apprehend, upon
this ground, that it will not permit an unconscientious
use to be made of a legal power. It regards such an
unconscientious use of the legal power as an abuse, and
not as a use of it. When, therefore, the Court is called
upon to interfere in cases of this description, it is bound,
I think, in the first place, to consider whether there are
any special circumstances to affect the conscience of the
tenant for life, for in the absence of special circumstances
it cannot be unconscientious in him to avail himself of
the power which the testator has vested in him. We
have then to consider what are the special circumstances
which the Court will regard as affecting the conscience of
a tenant for life, and I apprehend that what is principally
to be regarded is the intention of the settlor or devisor.
If by his disposition or by his acts he has indicated an
intention that there should be a continuous enjoyment in
succession of that which he has himself enjoyed, in the
state in which he has himself enjoyed it, it must surely
be against conscience that a tenant for life, claiming
under his disposition, should, by the exercise of a legal
power, defeat that intention. We have here, I think, the
clue by which the difficulty of this case can be solved.
If a devisor or settlor occupies a mansion-house, with
trees planted or left standing for ornament around or
about it, or keeps such a mansion-house in a state for

occupation.

CASES IN CHANCERY.

dS5

occupation, and devises or settles it so as to go in a
course of succession, he may reasonably be presumed to
anticipate that those who are to succeed him will occupy
the mansion-house ; and it cannot be presumed that he
meant it to be denuded of that ornament which he has
himself enjoyed. This Court, therefore, in such a case
protects the trees against the acts of the tenant for life ;
but if, on the other hand, the devisor or settlor himself
pulls down the mansion-house, upon what ground is it to
be presumed that he intended that which is incident to
the mansion-house to be preserved? Is it to be presumed
that he meant that the incident should be preserved when
he himself has destroyed the principal? It was said for
the Plaintiff that the testator may have intended that the
trees should be preserved as an ornament to the estate
without reference to the mansion-house, and it was
argued, that if the trees were in fact planted or left
standing for ornament, it could make no difference
whether there was a mansion-house on the estate or not;
but there is a plain difference between cases in which
there is and cases in which there is not a mansion-
house on the estate. In the former case continued
residence may well be presumed to have been contem-
plated. In the latter it cannot.

1867.

There is another consideration which seems to me to
have an important bearing upon this case. These trees are
assumed to have been planted for ornament to the man-
sion-house. Are they to be preserved for ornament to the
estate when the mansion-house is pulled down? Are
trees which were planted for one purpose to be protected
for another ?

The difficulty in which the Court will be involved if it
carries the doctrine of equitable waste to the length con-
tended for by the Plaintiff is, I think, also a matter not

unworthy

526

CASES IN CHANCERY.

1857.

unworthy of consideration. It is already difficult in
many cases to determine whether trees have been planted
or left standing for ornament, but the existence of the
mansion-house generally furnishes some criterion for
determining the point. How is the loss of that criterion
to be supplied ?

I have hitherto dealt with the case without reference
to the testator's acts and conduct as to the estate and the
trees about it, but it is material to consider his acts and
conduct. [His Lordship here stated the removal of the
wire fence from the garden at Beeston, and the testator's
other dealings with the estate and the trees upon it, almost
the words given in the statement of the present report,
and proceeded as follows :] — These acts, and this con-
duct on the part of the testator, furnish, I think, the
strongest evidence that the trees on the estate were not
left standing for ornament. If the testator was, as I think
he was, to be considered as between these parties as
tenant in fee, I hardly see what better evidence we could
have of his intention. It was much urged on the part of
the Plaintiff, that the trees which the testator left standing,
and amongst them the trees which are in question here,
were overripe and decaying, and that they must be pre-
sumed therefore to have been left standing for ornament
But this argument goes much too far ; if followed out to
its legitimate consequences, it would go to the protection
of all overripe trees in the kingdom which had been
originally planted for ornament. Why may not the tes-
tator have left these trees to be enjoyed by his successor
for the purposes of profit, and not of ornament merely ?

Some argument was also attempted to be deduced
from the fact of a power of sale and exchange being
given by the will, but powers of this description apply
to the estate as it is given. They cannot alter the cha-
racter

CASES IN CHANCERY.

527

racter of the gift. If the trees on this estate are to be
protected by virtue of an inference to be derived from
this power, I do not see why the trees upon all the
devised estates are not equally to be protected on the
same ground.

1857.

A more plausible argument in support of the PlaintifTs
case was founded on a passage in one of the affidavits on
the part of the Plaintiff, in which the deponent states his
belief that the testator, although he did not intend him-
self to rebuild the residence at Beeston, left the estate,
with the parks and avenue, and ornamental timber stand-
ing thereon, so that any person thereafter interested
therein might build a residence upon the estate, if he
thought proper to do so, and that the deponent had
heard the testator express himself to that effect. But
this evidence really goes no further than that the testator
thought that possibly somebody might rebuild the man-
sion-house, not that he contemplated that anyone would
do so, or that he intended the trees to be preserved with
that view. The evidence is, I think, far too loose to be
acted upon in contravention of a legal right, and in con-
tradiction of the acts and conduct of the testator himself.
Some reliance was also placed on the part of the Plain-
tiff, upon what I have supposed to have been the kitchen
garden having been preserved, but the inference to be
deduced from this fact seems to me to be rather un-
favourable than favourable to the Plaintiff's case. It
tends to show that the testator regarded the estate with
reference to profit merely.

Looking at this case, therefore, with reference to the
principles of the Court, and the acts and conduct of the
testator (and I do not see how the inference to be deduced
from his acts and conduct can improve the PlaintifTs
case, although it may well have a contrary tendency),

I think.

928

CASES IN CHANCERY.

1857.

I think, that so far as respects the trees, the Plaintiff's
case cannot be maintained.

It is said, however, that the authorities are in the
Plaintiff's favour, and great reliance was placed on Lard
Downshire v. Lady Sandys, Wellesley v. Wellesley and
Morris v. Morris. The case of Lcrd Lhwnslnre v.
Lady Sandys does not seem to me in any way to affi*ct
the question before us. In that case the mansion-house
was standing. An injunction had been granted to restrain
the cutting of any trees standing or growing for oma<^
ment or shelter of the mansion-house, and the sole ques-
tion when the case first came before Lord JEldan was,
whether the trees in question were standing or growing
for ornament of the mansion«house, and he held that
they were, proceeding, as I collect from the judgment,
upon the footing that they were ornamental objects as
seen from the "grounds*' which of course were in con-
nection with the mansion-house. This part of the case
certainly does not furnish any indication favourable to
the Plaintiff, of what Lord Eldon's views would have
been of a case where there was no mansion-house, or
the mansion had been pulled down. So far, indeed, as
any inference is to be drawn from this part of the case,
I think it unfavourable to the Plaintiff, as Lord Eldon
plainly refers to the " grounds " in connection with the
mansion-house, and when the case came a second time
before him, the question was not whether Lady Sandys,
as an ordinary tenant for life, without impeachment of
waste, could cut down the trees in dispute, which it was
assumed she could not, but whether on the context of
the deed she had powers beyond those of an ordinary
tenant for life unimpeachable of waste. That case there-
fore may. be laid out of consideration, as may also the
case of Morris v. Morris, in which the mansion-house
was standing when the Defendant, the tenant for life,

came

CASES IN CHANCERY.

529

came into possession. There would seem to have been
two grounds on which the injunction in that case was
granted — that the tenant for life could not, by pulling
down the mansion-house, entitle himself to the orna-
mental timber, and that if he was justified in pulling down
the mansion-house, by reason of the estate in his trustees
being unimpeachable of waste, there was an intention,
to be collected from the power to grant building leases,
that the mansion should be rebuilt. It was upon this
latter ground, too, and upon the ground of there being
villas upon the estate and the general scope of the
settlement, that the case of WeHesleij v. Wellesley seems
to have proceeded. It was attempted to bring this case
within these authorities, by referring to the statutory
powers for granting building leases, but the statute giving
those powers, if it could in any case aiTect such a ques-
tion as this, cannot affect the present case, as it did not
come into operation till afler the death of the testator.

1857.

Upon the whole, therefore, finding no authority to
support the Plaintiff^s case, I am driven to the conclu-
sion, that what we are asked in this case to do is to
extend the doctrine of equitable waste. I am not dis-
posed to do 80, and upon the grounds which I have
stated, I think, that so far as respects the trees^ this bill
ought to be dismissed. I have satisfaction in adding,
that if this case had come before us, as it came before
the Vice-Chancellor, upon motion only, I should probably
have thought it right to grant the injunction, considering
the question proper to be discussed at the hearing of the
cause.

The only remaining question upon the bill is as to the
Plaintiff^s right to have security given for the rebuilding
of the mansion-house at Taverhanij or to have a Re-
ceiver appointed for securing its being rebuilt. This

Vol. I. MM D.J. claim

530

CASES IN CHANCERY.

1857.

claim 18 founded upon the will, under which the De-
fendant takes the estate without impeachment of waste,
except voluntary waste in pulling down houses without
rebuilding the same or others of equal value. It is said
that the Defendant is an equitable debtor for the value
of the house pulled down, by virtue of the obligation
imposed upon him by the will to rebuild ; but assuming
this to be the case, the equitable debt is one arising upon
an obligation which cannot be immediately discharged,
and there is no pretence for saying that the Defendant
is not proceeding to fulfil the obligation. I doubt, there-
fore, whether as to this part of the case the bill is not
premature. The case does not seem to me to be analo-
gous to that of a fine upon the renewal of a lease, which
is payable immediately; or to be governed by the case of
JRe Skinfflet/{a), in which the question seems to have been,
whether there was a debt to be paid out of the lunatic's
estate, not when the debt would become payable. As
the Defendant, however, is very properly willing to give
the undertaking to rebuild, and the necessity of future
litigation may be prevented by it, I agree to the decree
as my learned brother has proposed it. There ought,
I think, to be no costs of the suit to the present time.

(a) 3 Mac. 4- G. 221.

CASES IN CHANCERY. 581

1857.

The GOVERNORS of the GREY-COAT HOS-
PITAL t;. The WESTMINSTER IMPROVE-
MENT COMMISSIONERS.

Jufy 29.

rilHIS was an appeal by Mr. Samuel Ward Tucker, Before The
the purchaser of part of- the estates sold under the Justices.
decree in this cause, from an order of Vice-Chancellor A. agreed to
Stuart, overruling objections to the title and ordering J^^o accept^ '
him to pay his purchase-money into Court. the title, paid

part of his

To explain the nature of the only objection now in- nioney, and

sisted upon, the object of the suit must be shortly stated. ^** let into

^ ' ^ ^ possession, but

took no con-
In 1845 the Plaintiffs contracted to sdll certain free- vevance. A.

hold lands to the Defendants the Westnlinster Improve- obtdned a de-
ment Commissioners. The title was accepted by the ^J![®®*^"?*'^

. B. for sale of

Commissioners, who were let into possession, though the property,
part only of the lands was conveyed to them. The *f ^h^J^imce
property to which the present appeal motion related was of purchase-
part of the land which had not been conveyed. Se^procceds.

Held, that

Some time after this transaction the Commissioners * purchaser

under the de-
became unable to fulfil their engagements, and, a large cree could not

part of the purchase-money remaining due, the Plaintiffs ^ ^mplete

filed their bill for specific performance, asking that in without the
,-.,.« r 1 • 1 ^ concurrence of

default of payment of the purchase-money the property ^he registered
might be resold, and what was due to the Plaintiffs paid judgment ere-

ditors of ii.,
out of the proceeds. whose judg-

ments were

On the S8th of July 1856 a decree was made according decree, and

to the prayer of the bill. The Commissioners made de- who were not

parties to the
fault suit.

MU2

532 CASES IN CHANCERY.

1857. fault in payment of the balance of the purchase-money,

^"^^^^^^ and the property was accordingly put up for sale under

Governors the direction of the Court. Mr. Tucker became the pur-

of the chaser of a lot of considerable value.
Gret Coat

Hospital

*|i^'^ At the time of the institution of the suit there were

Westminster numerous registered judgments against the Commis-

Improvement

Commis- sioners, but none of the judgment creditors were parties
sioMiRs. iQ jjje suij. Mr. Tucker made a requisition that all the
creditors whose registered judgments bore date prior to
the decree should release their interests in the property
or enter up satisfaction on their judgments. The convey-
ancer of the Court, to whom the title was referred, con-
sidered that the requisition was ill-founded, as the vendor's
lien had priority over the lien of the judgment creditors.
The purchaser insisting on his requisition, the point was
brought before Vice-Chancellor Stuart in chambers, and
having been adjourned to be argued in Court, the ob-
jection of the purchaser was overruled, and the order
under appeal was made.

Mr. W, Wellington Cooper ^ for the Appellant.

A registered judgment is a direct charge upon any
estate or interest, legal or equitable, which the judgment
debtor has in any land ; 1 & 2 Vict. c. 1 10, s. 13 ; Baldr
win V. Belcher (a), Craddock v. Piper (6), JRolleston v.
Morton (c). Here the Commissioners were equitable
owners, subject to a lien for the unpaid purchase-money.
Upon this equitable ownership the judgments are a direct
charge, and the holders of them are entitled to redeem
the PlaintiiTs. Not being parties to the suit, they are
not bound by the decree, and a sale to T\icker with-
out their concurrence will not give him a good title.

Suppose

(a) 1 Jo, 4- Lai. 18. (b) 14 Sim. 310.

SI0MBR8*

CASES IN CHANCERY. BSS

Suppose the Commissioners had before the institution of 1857.

the suit mortgaged their interest, could it have been con- _,

tended that an effectual decree for sale could be made in Govern orb

the absence of the mortgagee ? That case is in sub- q^^^^ Coat

stance identical with the present. Hospital

The

Mr. Bacon and Mr. G. W. Collins^ for the Plaintifis. Wbstminstbe

The lien of the Plaintifis is prior to the title of the Commis-
Defendants, and therefore to all incumbrances attaching
on that title, so the decree for sale is efiectual. The bill
for enforcing the paramount right of the vendor takes
away the subject on which the judgments attach. It
would be most inconvenient to hold that a vendor cannot
enforce his rights against a purchaser without being em-
barrassed by a litigation with all the purchaser's judg-
ment creditors.

The Lord Justice Knight Bruce.

Where a vendor is seeking to enforce the specific per-
formance of a contract against a purchaser, if a question,
whether of title or conveyance, arises between them,
it is generally enough for the purchaser to show that the
case is one of reasonable doubt. Here, to say no more,
I doubt whether the purchaser would be safe if his requi-
sition were not complied with.

Tlie Lord Justice Turner.

I entertain no doubt upon the question. The Statute
makes a registered judgment a direct charge on the
estate, whether legal or equitable, which the debtor has
in any land. Here the Commissioners had accepted the
title of the Plaintifis, and so, before the commencement
of the suit, had become the equitable owners of the land

534

CASES IN CHANCERY.

1857.

The

OoTERNOftl

of the
Geet Coat

HofPITAL
V,

The
Westminster
Improyeiibrt

CoMlflt-
SIOHERS.

in question, subject only to the lien of the Plaintiffi for
the unpaid portion of the purchase^money. I am of
opinion, therefore, that the requisition of Mr. Thicker is
well founded. I do not say how the case would have
stood if the title of the Plaintiflb had never been ac-
cepted by the Commissioners.

At the suggestion of the Court it was then arranged
between the parties that an order for discharging the
Appellant from his purchase should be taken.

CASES IN CHANCERY. BS5

1857.

DAVEY V. DURRANT. J"?« *; V'

SMITH v. DURRANT. Ju/y i. 2, 6,

31.
riiHIS was an appeal from a decree of the Master of Before The

the Rolls for foreclosure, with which by arrange- ^okdb

' J to Justices.

ment a cross suit for redemption involving the questions \ mortgagee,

on which the decision turned came on to be heard ^j^^J^ power
• • 11 .1 • i_ • . .1. 1-J-. « of sale, either

origmally, those questions bemg as to the validity of by public

certain alleged sales under a power of sale contained in ®"5^*"" ®'

° ^ * ^ private con-

the mortgage, which was the subject of the foreclosure tract, and a

1 proviso that

•decree. J,, ,„,„g^

meiits, sales,

This mortgage was created by an indenture dated the acu^ mauere'
14th of September, 181-3, and made between Henry ^^^^^^'^^S*

^ , /.I i"ade and

Lornfoot of the one part, and George iJurrant of the done by him

other part, and by it, after a covenant in the usual form *^^}^}^ ^^ *■

* -^ valid without,

by George D arrant, for payment of the mortgage debt as if made

of 25,000/. and interest, the hereditaments in question, ^uVrence 0?°"
which for brevity will be called the Branhsome Estate, ^*^e mortgagor,
were expressed to be granted and released unto and vate contract

to the use of George Durrant, his heirs and assigns ®"*^ agreed

^ ' ^ that a part of

for the purchase-
money might
remain on a mortgage of the property sold : — Held, that the sale was not invalidated
by the want of a previous attempt to sell by auctioi) or by the stipulation as to the
purchase-money remaining on mortgage, but was good as regarded both the purchaser
and the mortgagee.

The same mortgagee, being in possession, ofTered to give a portion of the land as a site
for a building in the nature of a hospital, but being apprised by the proposed grantees
that his title did not enable him to do this, he agreed to sell the site to the institution
at a valuation, and to give the price to the charity. The land was conveyed in pur-
suance of the contract: — Hdd, that this was not a valid sale within the terms of the
power.

The mortgagors hod approved of a general building plan with which the edifice
built for the charity was not at variance: — HtU, that the transaction could only be set
aside on reimbursing to the grantees the whole sum laid out by them upon the
land.

Vol. I. N N D.J.

roe, CASES in chaxcery.

18i57* f'^f €rv#!T, but subject to a proviso for redrmpdoo
^^^•^ payment at tlic expiration of six calendar mondki fi

y^ the date of the now stating indenture by Htmry C^fn-

l)u%%k%i. fwdf his heirs, executors, administrators or asfigns. to
^ (Jearye Durrant, his executors, administrators or assigns,

iyv%%kni, of all principal and interest monies which should be theo
due upon the covenant thereinbefore contained; and it
was thereby declared and agreed, that, subject only as
between Henry Corn foot and George Durrani per-
sonally to the proviso thereinafter contained with regard
to previous notice, it should be lawful for George Dwr^
rant after he should become entitled to call in the prin-
cipal and intercHt monies thereby secured, to enter into
the poHseshion or receipt of the rents and arrears of rents
and profits of the said hereditaments thereby appointed
and released, or any part or parts thereof respectively,
with powers of leasing as therein mentioned, and also
(whetluT he should or should not have entered into pos-
seHsion) absolutely to sell and dispose of the land, plan-
tations, messuages, buildings and other hereditaments
comprised in the deeds or any part thereof respectively,
subject to any such conditions respecting the proof or
neceptancc of the title to the same premises as he should
deem necessary, cither together or in parcels and by
public sale or private contract, without the consent or
concurrence of Henry Curnfoot, his heirs, executors,
administrators or assigns, for the best price in money
that could be reasonably obtained for the same, and to
buy in when otfered for sale, and to rescind or vary any
contract or contracts whatsoever for the sale thereof, and
that gratuitously or upon such terms as the vendor might
think fit, without being responsible for any loss to arise
thort*by, and to make and execute all necessary contracts
with and convevances unto or according to the direction
of the purchaser or purchasers of the same hereditaments
and pivmiscs res|>ectively ; and it was further declared, that

CASES IN CHANCERY.

537

all arrangements, demises, notices, sales, conveyances,
assurances, acts, matters and things made by George
Durrani of and concerning the premises thereby autho-
rized to be sold as aforesaid, or the rents and profits
thereof, should be equally as valid and effectual without
as the same would be with the concurrence therein re-
spectively oi Henry Cornfoot^ his heirs, executors, admi-
nistrators or assigns, and that the purchaser or purcha-
sers (under the now stating indenture) of the said here-
ditaments and premises or any part of them should not
in the first instance be bound to ascertain whether the
aforesaid power of sale should have arisen, nor at any
time afterwards be prejudiced if the same had not in fact
arisen, and that the receipt in writing of George Durrani
for any monies which he should receive under any of the
powers thereinbefore contained should be a sufficient
discharge to the person paying the same from all liability
in respect of the application thereof.

1857.

The evidence of the Plaintiff's title to an interest in
the equity of redemption was (among other documents)
an indenture dated the 23rd of February^ 1850, and
made between George Stevenson, Leader Stevenson and
Joseph Gutteridge Stevenson of the first part, John
Foster Elmslie and Henry John Preston of the second
part, Henry Cornfaot of the third part, the Plaintiff
Maria Smith of the fourth part, the Phintiff Flizabeth
Mary Smith of the fifth part, George Durrani of the
sixth part, and Robert Winter, Stephen Williams, John
Howard Hilliams and William Esdaile Winter of the
seventh part, which, after reciting the indenture of the
14th of September, 184'3, and reciting divers subsequent
incumbrances, and also reciting that the equity of re-
demption of the Branksome Estate was then vested in
henry Cornfoot and the Plaintiff Maria Smith and
Elizabeth Mary Smith, or some or one of them, either

NN2 as

5d8

CASES IN CHANCERY.

1857.

as owners or incumbrancers, and also reciting that the
estate was advant^^geously situated for building purposes,
and was otherwise capable of great improvement, and of
yielding a large rental, but that owing to the great
number of persons interested therein, and the complica-
tion of their interests the said estate had not been there-
tofore effectively managed, and that therefore the parlies
to the now stating indenture of the 2nd, 3rd, 4th and
5th parts had agreed for their mutual benefit to vest the
said estate in trustees with powers for the management and
improvement thereof in manner thereinafter appearing :
it was witnessed,- that in pursuance and performance of
the said agreement, George Stevenson, Leader Stevenson,
Joseph Gutteridge Stevenson, John Foster Elmslie,
Henry John Preston, Henry Cornfoot, Maria Smith
and Elizabeth Mary Smith, according to their respective
estates and interests, thereby granted and conveyed unto
Robert Winter, Stephen Williams, John Howard
Williams and William Esdaile Winter, and their heirs,
the pieces or parcels of the land in question among
others, unto and to the use of Robert Winter, Stephen
Williams, John Howard Williams and William Esdaile
Winter, their heirs and assigns, nevertheless, upon and for
the trusts, intents and purposes thereinafter declared, being
trusts for general management and letting of the Brank*-
some Estate, either for habitation or agricultural put^
poses, or for building purposes, or for digging brick
earth or clay, and manufacturing bricks, tiles, pottery
and the like, or for any other purpose whatsoever. And it
was further witnessed, and was thereby agi'eed and de-
clared between and by the parties to the now stating
indenture of the 1st, 2nd, 3rd, 4th and 5th parts, and the
Defendant George Durrant, that George Dnrrant, his
heirs, executors, administrators or assigns, should not be
bound by the trusts and powers thereby declared and
created, but it was intended, and thereby expressly de-
clared,

CASES IN CHANCERY.

5S9

claredy that George Durrani, his heirs, executors, ad-
ministrators or assigns, should be at liberty from time to
time as he or they should think proper to consult with
and advise the trustees and trustee for the time being
of the now stating indenture respecting the execution of
the said trusts and powers, and to overlook and interfere
with the execution thereof, and to concur in and give
legal effect to any acts of the said trustees and trustee,
without being deemed thereby to have entered into pos-
session of the Braiiksome Estate, and without subjecting
himself or themselves to any liability or accountability
whatsoever to the persons interested in or entitled to the
equity of redemption of the same estate, or to any other
person whomsoever, and without prejudice to his or their
right at any time or times to put an end to and determine
the aforesaid trusts and powers either wholly or partially
by selling or leasing the Branksome Estate, or any part
or parts thereof, under the powers for those purposes con-
tained in the first-mentioned indenture of the 14th Sep-
tember, 1843, either pursuant to and acting under the
preliminary notice for payment of principal and interest
already served by him the Defendant George Durrani on
Henry Cornfoot, the validity and due and efficient service
whereof the parties to the now stating indenture did
thereby acknowledge, or pursuant to and acting under
any subsequent notice or by ousting the said trustees or
trustee, or by foreclosing the equity of redemption, or
otherwise, as he might be enabled by virtue of his afore-
said security.

1857.

P0](i|ANt.

Smith

DUSSAMT.

The bill for redemption was filed by Miss Maria Smith
and Miss Elizabeth Mary Smith against, among other
Defendants, Mr. Durrani, Messrs. Winter and Williams,
Mr. Packe, a purchaser from Mr. Durrani under the
power of sale, the trustee of an Independent Cbapel,
and the trustees of a charitable institution called a

Sanatorium,

540 CASES IN CHANCERY.

1857. Sanatorium, who respectively claimed to be purchasers
under the same power.

The redemption bill alleged in substance as follows : —
That since ihe execution of the indenture of the ^•Srd of
February, 1850, by the several persons parties thereto,
Robert Winter, Stephen WW lams, John Howard Wil^
Hams and William Esdaile Winter, in pursuance of the
trusts thereof, had been in possession of the Branksome
Estate, except so much thereof as they alleged to have
been sold. That by an indenture dated the 26th of -F<?6-
ruary, 1850, Henry Comfort conveyed his interest in the
Branksome Estate, to the use otJohn Foster Elmslie and
Henry John Preston, their heirs and assigns, absolutely,
and had no longer any interest in the property. That
by an indenture dated the 12th oi November, 1851, the
Branksome Estate was mortgaged to the Plaintiff Davey
as a security for the payment of 5,000/., and further ad-
vances not exceeding in the whole 10,000/. with interest;
but that the whole 10,000/. claimed to be due on this
mortgage was, in fact, money of Durrant, so that Davey
had really no beneficial interest in the property.

That the alleged sale to Mr. Packe was purported to
be effected by an indenture of the 23rd of June, 1852,
whereby a portion of the estate to the extent of 745 a.
3r. 16p. was expressed to be conveyed to Mr, Packe,
in fee simple, absolutely for the alleged price of 12,000/.;
but that the transaction was invalid on (among others) the
following grounds: — 1st. That Mr. Di/rraw^, under whose
mortgage of 1843 the alienation purported to have been
made, had not given the Plaintiffs a proper notice of his
intention to exercise his power of sale, a notice which he
had given being alleged to have been waived by subse-
quent negociations respecting the building scheme. 2nd.
That on the occasion of it only 5,000/., part of the alleged

purchase-money

CASES IN CHANCERY. 641

purchase-money of 1^,000/., was paid by Mr. Packe 1867.

to Mr. Durrani, Mr. Packe having, instead of actually ^^v*^^

. . . Davey

paying the purchase-money, only nominally paid it, and «.

having executed to Mr. Durrani, or to a trustee for Durrant.

him, a mortgage, with a power of sale, on the heredita- ^^

ments so pretended to have been sold, to charge and Durrakt.

secure thereon and thereout the payment of 7,000/., part

of the 12,000/., to Mr. Durrant, who allowed Mr. Packe

to retain the same. 3rd. That Mr. Durrani did not use i

his best exertions or indeed any exertions to obtain the

best price for the hereditaments alleged to have been

sold by him as aforesaid, and particularly that he did not

put the same up for sale in the first instance by public

auction, and that the alleged purchase-money of 12,000/.

was a very inadequate price for the property, and in

fact not more than the value of the timber then growing

thereon.

That the transaction with the trustee of the Independ-
ent Chapel purported to have been completed by an in-
denture dated the 23rd of April, 1853, whereby the fee
simple of a piece of ground, part of the estate, was
purported to be conveyed by Mr. Durrani to George
Olive Aldridge, one of the Defendants, as a trustee, for
the purpose of the erection of the chapel, no money hav-
ing been paid as the consideration for such grant. That
the erection of such chapel had been commenced not-
withstanding the Plaintiffs* expressed disapprobation of
the site appropriated to that purpose. That the indenture
had not been enrolled as required by the 9 Geo. 2, c. 36.

That the transaction with the trustees of the Sana-
torium was the alienation of a piece of land, part of the
estate, for the purpose of that institution, and took place
under the followinof circumstances: —

That in August, 1853, Mr. Durrani contracted to

sell

54«

CASES IN CHANCERY.

1857.

sell to Charles Lavington Pannel for 400/., and by an
indenture dated the 25ih of Amjust, 1853, Mr. Dur-
rantf as mortgagee, purported to convey under his power
of sale for 400Z. the fee simple of the piece of land in
question, containing three acres or thereabouts. That
no money was actually paid as the consideration for such
land, but that upon the completion of the alleged pur-
chase Mr. Durrani directed that the sum of 400/. should
be treated as one of the subscriptions then collecting for
the erection of the Sanatorium, and the same was by his
direction considered and treated as a gift by him to the
institution. That such alleged sale and conveyance were
void as against the Plaintiffs, or at all events Mr. JDurrant
ought to account to the Plaintiffs for the full value of
the land ; and the Plaintiffs charged that 400/. was a
very inadequate price.

The prayer was, that the Plaintiffs might be declared
entitled to redeem as well the said hereditaments so
alleged to have been sold to Mr. Packe, and the said
hereditaments so alleged to have been conveyed to the
trustees for the Chapel and the Sanatorium as the other
parts of the mortgaged hereditaments and premises
known as the Branhsome Estate ; that it might be de-
clared that the alleged sale and conveyance to Mr.
Packe, and the conveyances to the trustees for the
Chapel and the Sanatorium, were respectively null and
void as against the Plaintiffs, and that the same might
be respectively set aside; but if the Court should be
of opinion, that the alleged sales and conveyances were,
as regarded the alleged purchasers, not null and void,
then that the same respectively might be declared null
and void, and might be set aside, so far as respected
the other Defendants, and that the Defendants George
Durranty Joseph Davey, Stephen Williams, John HoW'
ard William and WiUiam Esdaik Winter might be

respectively

CASES IN CHANCERY.

543

respectively decreed to make satisfaction or compen-
sation to the PlaintifTs in respect of the hereditaments so
alleged to have been so sold and conveyed as aforesaid^
that all proper accounts might be taken.

Mr, Durrani by his answer stated (among other things),
that the sale to Mr. Packe had been made for the best
price that could be obtained ; that, under the provisions
of the deed of 1850, plans for the improvement of the
JBranksome Estate had been submitted to and approved
of by the Plaintiffs the Misses Smith, and that the sites
for the Independent Chapel and the Sanatorium had
been granted and the edifices erected in conformity with
those plans, and with the sanction or at all events with
the acquiescence of the Plaintiffs.

With respect to Mr. Packers purchase, that Defend-
ant by his answer stated in substance as follows : — The
agreement for the purchase was dated the £9th of April,
1852, and thereby Mr. Durrani agreed to sell to Mr.
Packe, the lands and hereditaments therein particularly
described for 1^,000/., and it was thereby agreed, that
7,000/. part of the said 12,000/. should either be al-
lowed by the vendor to remain on the security of the
said hereditaments, or that the vendor should procure
for Mr. Packe 7,000/. on mortgage of the said here-
ditaments to remain on such security for the term of four
years at interest after the rate of 5/. per cent, per annum,
reducible to 3L 10«. per cent, if paid half-yearly within
thirty days after it should become due; and if before
the expiration of the said term of four years the 5,000/.
should have been expended by him on his assigns or
lessees in improvements, for the further term of four
years at the same rate of interest; and it was thereby
amongst other things provided, that power should be
given by the mortgage deed to Mr. Durrani, or such
other person as should advance the 7,000/., in case the

interest

1857.

5ii

CASES IN CHANCERY.

1867.

Davby

V.
DURRAMT.

Smith

V.
DURRAMT.

interest should be in arrear, or the sum of 5,000Z. should
not have been laid out within the time aforesaid, to call
in and require payment of the sum of 7,000Z. by giving
three calendar months' notice in writing, and in default of
payment at the expiration of such notice to sell the said
hereditaments without any concurrence or to enter into
possession and grant building or other leases, and exer-
cise the fullest powers for the management of the same ;
and it was thereby further agreed, that the sum of 5,000/.
residue of the purchase-money of l^flOOL should be paid
on the 24th of June then next, at the office of Messrs.
Winter, Williams & Co., at which time and place the pur-
chase and mortgage were to be completed; and after divers
stipulations as to the title which he should be entitled to
call for, it was thereby further agreed, that he should,
upon payment of 5,000/., ha^fe a proper conveyance
from the vendor, to be prepared by Mr. Packe at his
expense, whereupon he should execute the mortgage for
7,000/. and be let into possession, and be entitled to the
rents, royalties and profits from the 24th of June then
next ; and it was thereby agreed, that the deeds and docu-
ments of title should remain in the custody of the vendor,
his heirs and assigns, until the 24th of June, 1862, or if
the said sum of 7,000/. and interest should not have been
then paid off, until the same should have been so paid off,
the vendor entering into a covenant to produce the deeds
and documents to him and his heirs or assigns. That
a Mr. Edward Stewart, at the request of Mr. Durrani,
had advanced 7,000/. upon a mortgage of the purchased
land, upon the terms stipulated by the above contracti
and had paid that sum to Mr. Durrant, who received
it on account of the purchase-money of 12,000/., Mr.
Packe paying the balance. And the Defendant denied
the allegations in the bill as to inadequacy of price.

With respect to the Independent Chapel the answer of

the

CASES IN CHANCERY.

545

the grantee of the site stated, that the building and the
appropriation of the land for it were in accordance with
a scheme for it, which had been submitted to and ap-
proved of by the Plaintiffs, and that the Plaintiffs had
been well aware of the conveyance, and of the erection
of the chapel, and had never objected to it.

With respect to the site of the Sanatorium the answer
of the Defendants, to whom the site had been conveyed,
and the evidence in the cause, made out the following
state of circumstances : —

In the beginning of the year 1852 a proposal was made
that a portion of the Branksome Estate should be granted
for the erection of a Sanatorium, for which subscriptions
were then in the course of collection, the grant to be
made without the payment of any purchase money, but
the grantees to enter into covenants for the erection of
the building, which was to be of a specified description.
This was acceded to, and an abstract of Mr. Durrani's
title ending with his above mentioned mortgage of the
14th of September y 1843, was furnished, whereupon the
proposed grantees of the site were advised that the title
was not one which would enable Mr. Durrani to make
a gift of the proposed site, and that they could only pur-
chase it for its full value. Subsequent correspondence
took place, and it was finally arranged that the site should
be valued and the price of it treated as Mr. Durrani's
subscription to the Sanatorium.

Accordingly the land was valued at 400/. and a con-
veyance prepared dated the 25th of August^ 1853, pur-
porting to be made between Mr. Durrani, of the one
part, and the proposed grantees of the other part, where-
by, after reciting the mortgage, and that default had been
made in the payment of the sum of 25,000/. according to
the proviso for redemption, it was witnessed that Mr.
Durrant, in consideration of 400/. in the deed acknow-
ledged

1857.

546 CASES IN CHANCERY.

1857. ledged to have been paid by the grantees to him, ap-
pointed and assured the site unto and to the use of the
grantees, their heirs and assigns for ever for their own
use and benefit. The deed contained covenants to erect
a building of a specified description, but no reference to
the use to which it was to be devoted.

The deed was executed by Mr. Durrani^ and on
the execution of it he took from the solicitors of the
grantees a letter acknowledging that the 400Z. had not
in fact been paid, but was considered as a gid from him
to the Sanatorium.

Mr. Bngshawe and Mr. W. W, CoopeVj for the
Plaintiffs in the redemption suit.

With respect to Mr. Packes purchase, although Mr.
Durrant had given notice of his intention to exercise
the power of sale, he had subsequently negociated with
the Plaintiffs respecting the building scheme, and such
negociation amounted to a revocation of the notice, so
that the power could not be properly exercised without
a new one being given. This was sufficient to avoid the
transaction, at all events as between the Plaintiffs and
Mr. Durratit ; Tommeyw. White {a). In the next place
the power did not authorize Mr. Durrant to permit part
of the purchase-money to remain outstanding on a mort-
gage of the estate or to take back a new power of sale
as he does by such mortgage. Moreover the mortgagee
ought not to have sold by private contract without making
an attempt to sell by public auction, and thus to ascertain
how much might have been offered for the property.
The evidence shows that the property was worth greatly
more than the price for which it was sold to Mr. Pache,
and indeed that price was so grossly below the real
value of the property, shown by the evidence, as on
that ground alone to invalidate the sale.

They

(a) 3 H.o/L, Cat. 49.

CASES IN CHANCERY.

547

They referred to Reidv, Skergold{a\ Ordv, Noel{jb\
Cocherell v. Cholmley (c), Clay v. Hufford (d), Guerreiro
V. Peile{e\ Sugden, Vend. & Pur. p. 53 (13ih edit),
Or me v. Wright (/), Matthie t. Edtvards (g), Downes
V. Grazebrook{h), Reid w. ShergoldiS), Conolly v . Par-
sons (k)y Campbell v. Walker (Z), Oliver v. Court {m),
Peckel V. Fowler (n).

Next, as to tlie chapel. This is not pretended to have
been a sale. It was a gift and therefore not within the
power, nor was the chapel built in conformity with the
plan submitted to the Plaintiffs, nor have the require-
ments of the Mortmain Act been complied with.

Lastly, as to the Sanatorium. This transaction takes,
on the conveyance, the form of a sale. But the evidence
shows that it was also really a gifl, and therefore is
equally invalid with the other.

Mr. Lloyd, Mr. M, Palmer and Mr. JBaggallay, for
Mr. Durrant and Mr. JDavey,

The sale to Mr. Packe was made after due notice,
and there is no foundation for the argument that the
notice was ever waived. It is nowhere laid down, either
that a mortgagee must attempt to sell by public auction
before he sells by private contract, nor that he may not
allow a portion of the purchase-money to remain on the
security of the property. If he debit himself with the
full amount, that is all that the mortgagor can require.
The price is more likely to be enhanced than diminished
by such a course. The appropriation of the pieces of

ground

(a) 10 Ves. 370.
(6) 5 Madd. 438.
(c) 1 a. 4- Fin. 60.
(</) 5 De G. 4- Sm. 768.
(«) S B.^ A. 616.
(/) 3 Jur, 19.

(g) 2 Coll, 465 ; S. C, on ap-
peal, 16 Law J,, Ch.f 405 ; 11

Jur. 504, 761.

(A) 3 Mer. 200.

(<) 2 Sugd. on PotoerSf App»
649.

{k) 3 Ves. 625, n.

(I) 5 Ves. 678.

(m) 8 Fri. 127, 165.

(n) 2i4iM/r. 549.

1857.

Davey

Durrant.
Smith

Durrant.

548

CASES IN CHANCERY

1867.

ground which form the sites of the Independent Chapel
and the Sanatorium was in accordance with the plan of
which the Plaintiffs approved. The case of undervalue

fails altogether on the evidence.

Mr. Selwyn and Mr. Speed, for Mr. Packe,

The evidence shows that no more could have been
obtained for the property purchased by Mr. Packe than
he paid for it. But it is sufficient if it fail to prove that
there was any such undervalue as to constitute fraud. With
respect to the notice of the sale, the terms of the power
exonerate the purchaser from any responsibility on this
subject, and as to a portion of the money being left on
mortgage, Mr. Packe understood and believed, that the
advance was made by a str;»nger, and that the transaction
was one of the most ordinary description on a purchase,
but if he had known that Mr. Durrani was really the
new mortgagee it would have made no difference, as
there is nothing to preclude a mortgagee with a power
of sale from allowing part of the purchase-money to re-
main due either on the security of the property or other-
wise. If by his wilful default any part had been lost he
might have had to be responsible for it, but here he
offers to be charged with the whole, and the whole has
in fact been now paid to him.

Mr. Skapter for the trustees of the Independent
Chapel.

The evidence shows that the Plaintiffs have consented
to this transaction, and that they were, as long ago as the
year 185i3, cognizant of the expenditure made by the
trustees upon the land. They must consequently be
taken to have acquiesced in the appropriation, even if
they had not (as I submit they had) done so at the very
inception of the transaction.

Mr.

CASES IN CHANCERY.

549

Mr. Cairns and Mr. De Gex for the the trustees of
the Sanatorium.

The contract for the acquisition of the site for the
Sanatorium, which has been really carried into effect, was
a sale. It can make no difTerence, that in the early
negociations, before the state of the title was adverted to
and considered, a gift of the site was contemplated.
That proposed arrangement was altogether abandoned
when the state of the title was brought under the conside-
ration of the legal advisers of the parties, and a contract
for sale for the full value of the land was that which was
alone entered into. That there was simultaneously an
intimation of Mr. Durrani's intention to give the pur-
chase-money to the charity cannot affect the validity
of the transaction. Cannot a mortgagee with a power
of sale, after receiving the purchase-money, give it to a
charity debiting himself with the amount? Or does not
the argument which has been addressed to the Court on
behalf of Mr. Packcy on the question of leaving a
portion of the purchase-money outstanding, apply at
least with equal force to a gift of it to a charity? It
will be new to lay down, that though the mortgagee
might have directed the purchase-money to be applied
for any purpose of his own he could not give it in charity.
There is no principle on which such an extension of the
law of mortmain could be made. The transaction in the
present case had no tendency to prejudice the mortgagors,
for the vendor must be assumed to have intended one
of two things, either to benefit the charity, or to improve
the rest of the estate, or both. In the first case, he
cannot be presumed to be a person likely to have sold at
a fraudulent undervalue, and in the second and third
he would have intended what was most for the mortgagors'
interest as well as his own. On the other hand the
cause of reduction in price which in general exists in
the purchaser's endeavour to obtain the property for as

small

1857.

550

CASES IN CHANCERY.

1857.

Da VET

V,
DURRANT.

Smith

V.
DuRRANT.

small a sum as possible would here be removed^ and on
the whole, the result would probably be a greater ad-
vantage to the estate than would be obtained under
ordinary circumstances. At all events, it was left open
to the mortgagors to discuss the question of value with
the mortgagee as in any other case, on taking the
accounts, the amount of the debit being the only
question. This has indeed been attempted, although
without success, it appearing clear, that 400/. is the
utmost that could be obtained for the property. The
transaction cannot be set aside without laying down the
proposition that a mortgagee having sold cannot give the
money to a charity. For such transaction, if lawful at
all, could not be substantially conducted otherwise than
this has been. The interchange of cheques could not
have made any difference.

At all events, if the transaction is not to stand, the
trustees must be allowed all that has been laid out on
the land, that outlay having been made with the ac-
quiescence of the Plaintiffs, and in accordance with the
general plan in which they concurred. In M^Kenzie v.
The York Buildings Company (a), on setting aside a
purchase, even by a trustee, he was allowed the expenses
of erecting a mansion-house and of making plantations.
Speaking of this case Lord Eldon^ in Ex parte Hughes (ft),
said, — " The question as to the repairs is of some di65-
culty ; and on that account I am afraid to go the length
of determining that he should not be entitled to the value
of the substantial improvements made, at the hazard,
upon a question of considerable doubt, of doing a sub-
stantial injustice. Supposing the assignee, instead of
mingling himself in the sale, had kept the property, and
had bonCi fide, with an honest view of improving it, ex-
pended in the repairs of the machinery a considerable
sum, which had been added to the purchase-money, it
would be hard dealing not to allow that to the assignee.

I am

(a) 8 Bro. P. C. 42. (6) 6 Vet. 624.

CASES IN CHANCERY.

I am the more disposed to think this right, recollecting
that in M^Enzies* Case the House of Lords did allow
him the value of improvements of all kinds, even in the
instance of a mansion-house erected, and plantations of
shrubs, &c." And his Lordship dealt in the same way
with that case, which was one of a purchase by an
assignee, as was also Ex parte James (a), where the
same course was taken.

1857.

Mr. Prenderffost, Mr. Osbante, Mr. T. H. Terrell and
Mr. Eevir, for other parties.

Mr. Bagshawe, in reply.

Judgment reserved.

The Lord Justice Knight Bruce.

This case, comprising two causes, was brought before
us and argued upon two hearings and certain motions.
The motions, though they must be mentioned in our
decree or order (a single decree or order) now to be
made, may be considered as having ceased to be prac-
tically of importance. The costs of them, however, must
now or hereafter be in some manner disposed of. One
of the hearings was that of an appeal in the earlier suit,
— JDavey v. JDurrant^ — from a decree made in it by the
Master of the Rolls. The other was an original hearing
by us of the later suit, — Smith v. Durrant. The Plaintiff
in JDavey v. Durrant sued and claims as an incumbrancer
on an estate situate at and near Bournemouth in Hamp-
shire, of which the equity of redemption, subject to heavy
mortgages, appears to belong to the Misses Smith, the
Plaintiffs in the second suit. Mr. Davey had not nor

has

Vol. L

(a) 8 Va, 351.

July 31.

D.J.

553

CASES IN CHANCERY.

1857.

has any beneficial interest. He was and is^ in respect of
his interest, merely a trustee for Mr. Durrant, a De-
fendant in both suits and the first mortgagee; the in-
cumbrance of his trustee Mr. Davey being later than that
vested in Mr. Durrani in his own name.

The object of the former suit is redemption nominally

and foreclosure substantially ; Mr. Durrani (I need
scarcely say) being the real Plaintiff, though placed
among the Defendants in it. The object, or one object,
of the second suit is redemption, and it seeks to impeach
and invalidate certain transactions which are alleged by
some of the Defendant? in that suit to have withdrawn
from the right of redemption certain portions of the pro-
perty originally mortgaged ; to have done so, namely, by
means of alienations, contended by the Misses Smiih not
to be binding on them.

I think it unnecessary to state what course I should
have deemed it right to take in the suit of Davey v.
Durrani had it come before us as it did before the
Master of the Rolls, without that of Smith v. Durrani,
which, now before us together with the other, was never
at the Rolls for hearing, and has originally, I repeat,
been heard here with the appeal from the decree in
Davey v. Durrani. It being convenient, if not neces-
sary, that there should be one decree or decretal order
in the two suits, we consider it right, in consequence of
their nature respectively, to discharge wholly the decree
made at the Rolls in Davey v. Durrani, and the certi-
ficate under it made by the Chief Clerk of the Master of
the Rolls, but as to both without prejudice to any ques-
tion ; nor do I mean to say how I should have thought
it right to deal with that decree or the certificate had the
suit of Smith v. Durrani not existed ; except that, even
upon that supposition, I think the decree in Davey v.

Dunrant

CASES IN CHANCERY.

553

Durrant defective and erroneous, a defect and error
arising, in my opinion, from the facts and circumstances
of the case as they stood at the time of the Rolls hearing,
not having been brought fully or sufficiently under his
Honor's attention.

The principal questions for decision here were not in
any sense before the Master of the Rolls. The first (or
what I will call the first) is that of the validity or in-
validity of the sale to Mr. Packe by Mr. Durrant of a
considerable portion of the originally mortgaged lands,
under a power of sale vested in him by one of his se-
curities. It appears to me that, both as between the
Misses Smith and Mr. Packe, and as between those
ladies and Mr. Durrant, the sale is good and must be
upheld. There is not any reasonable pretence, I think,
for saying that the notice of sale was waived or aban-
doned, that the sale was unfair, or that the price was
insufficient. It may be that, by speculating and waiting
a long time, a larger sum would thereafter have been
obtainable, had the sale not taken place as it did. But
Mr. Durrant was not bound to speculate or wait, and
was justified in accepting Mr. Packers price, which was,
I repeat, in my opinion, a reasonable and fair price.

1857.

It was said that the arrangement by which part of the
purchase-money was suffered to remain on a mortgage of
the property sold was such as to reduce the price, and
was otherwise unjustifiable. But that arrangement ap-
pears to me to have increased rather than diminished the
price, if the price was at all affected by it. Nor can I
say that it is beyond the right or authority of a mort-
gagee with a powex of sale to effect a sale, of which one
of the terms shall be that even a considerable portion of
the purchase-money shall be allowed to remain on mort-**
gage of the property, that mortgage being as between

O O 2 the

654

CASES IN CHANCERY.

1867.

Davit

«.
dukjulkv.

Smitm

«•
DUERANT.

the seller and those entitled to the equity of redemption
at the seller's risk ; that is, he charging himself with the
whole amount of the purchase-money in account with
them, as has been done in the present instance. It
appears to me that the mortgage by Mr. Packe^ who
made himself personally liable to Mr. Durrani or his
trustee for so much of the purchase-money as was not
paid down, did no wrong nor was of disadvantage to the
Misses Smith, and that their bill should be dismissed,
with costs, so far as it seeks to impeach the sale to
Mr. Packe, and therefore as against him be wholly dis-
missed with costs. Of course, as between Mr. Durrani
and the Misses Smith, he, as I have said, is chargeable
with the whole purchase-money, which he has never
objected to be.

Next, as to the transactions concerning the parcels of
land on which or parts of which an edifice called a San-
atorium intended for the reception and cure of invalids,
and another used or intended to be used as a place of
worship, have been built or begun to be built. These
parcels were colourably and fictitiously sold, though,
I believe, not with any dishonest intention. Neither
of them was really and truly sold, nor was either of
them effectually bestowed as a gift for any charitable
or public purpose, since, as to neither, were those con-
ditions followed or those terms agreed upon, which the
Misses Smith, with reference to the application of any
portion of their property to a charitable or public pur-
pose had stipulated for. They are, therefore, as I con-
ceive, entitled to redeem each of these two parcels of land
with the rest of the estate not sold, but ought not, in my
opinion, to be permitted to do so» without allowing the
sums which have been expended in building on them.
The buildings erected on these pieces of land are of a
kind in conformity with the ground plan for improving

the

CASES IN CHANCERY.

555

the mortgaged estate, and ought, I think, to be treated
as lasting improvements, and liable to the same conside-
rations as if they had been properly erected by a mort-
gagee in possession.

There should, I think, be declarations and accounts
on the basis that I have mentioned, and an inquiry to
what incumbrances the whole estate remaining unsold is
subject, and in what order, and an account of what is due
on them respectively, and to whom. Any directions as to
redemption or foreclosure had better, I think, be de-
layed until the further consideration of the causes ; nor
should any decision now, I conceive, be pronounced ad
to costs beyond what I have stated, except that some of
th6 Defendants in Smith v. Durrani having disclaimed,
the .costs of the Defendants so disclaiming should be
paid by the Misses Smith, with a reservation of the ques-
tion how they ought ultimately to be borne.

1867.

The Lord Justice Turner.

These causes have come before us on four different
applications: — 1st. On the rehearing of the cause of
Davey v. Durrani ; 2nd. On a motion to vary the Chief
Clerk's certificate under the decree in that cause ; ctn). On
a motion in Smith v. Durrant, for an injunction to stay
proceedings under the decree in Davey v. Durrani;
4th. On a motion for decree in Smith v. Durrani.

These four applications open the whole matter in con**
test between the parties ; and what we have to consider
therefore is, not what might be right to be done upon
any of the applications, separately considered, but what
ought to be done upon all the applications taken
together.

556

CASES IN CHANCERY.

1857.

Davet

V.
DuRKAMT.

Smitm

V.
DURRANT.

It is in this view that we have first to consider decree
in Davey v. Durrant. The bill in that cause was filed
by Mr. Davey ^s second mortgagee, to redeem Mr. Dur-
rant the first mortgagee, and to foreclose some subsequent
incumbrancers and the parties entitled to the equity of
redemption. It is an ordinary bill for redemption and
foreclosure, without any special allegation, except an
allegation, that some parts of the mortgaged estate had
been sold by Durrant, the first mortgagee, under a power
of sale contained in his mortgage deed.

Upon this bill a decree was made for redemption and
foreclosure, taking no notice of the sales by Durrant the
first mortgagee, but directing him, upon payment of what
should be found due to him, to convey all the estates
comprised in his mortgage to the Plaintiff Davey; and
foreclosing all the subsequent incumbrancers and owners
of the equity of redemption collectively on non-payment
of what upon the subsequent account should be found
due to the Plaintiff Davey. It now appears that the
Plaintiff Davey had in truth no interest in the mortgage
made to him, that the monies advanced upon that mort-
gage were the monies of the Defendant Durrani the first
mortgagee, and that the Plaintiff Davey was a mere
trustee for the Defendant Durrant Under these cir-
cumstances, I think it quite impossible that this decree
can be permitted to stand. Even without reference to the
fact that no account is directed of the proceeds of the
sales, and that a reconveyance is ordered of all the es-
tates (in which respects I think the decree is defective
and erroneous); and without reference to the question
whether the subsequent incumbrancers and the owners
of the equity of redemption ought to have been fore-
closed collectively (on which I give no opinion as it
will properly be the subject of further consideration
under the decree we are about to pronounce), it is suffi*

cient

CASES IN CHANCERY.

557

cient to say that this is a decree obtained by suppression
of the true facts of the case^ and that a decree so obtained
cannot be supported. I am perfectly satisfied that no
such decree would have been made if the facts as they
appear before us had appeared before the Master of the
Rolls.

1867.

This decree thus falling to the ground, it is unneces*
sary to say anything on the second and third of these
applications before us. The decree falling, the Chief
Clerk's certificate of course falls with it, and there can be
no need for an injunction to stay proceedings under a
decree which is not to remain in force.

The substantial questions in these causes arise upon
the motion for a decree in Smith v. Durrant. That suit
is instituted by the Misses Smith, who claim to be en-
titled to the equity of redemption of the estates ; and,
by the bill in the suit, they seek, in addition to the or-
dinary relief by redemption, to impeach a sale and con-
veyance of part of the estates made by the Defendant
Durrani to the Defendant Packe, and also to impeach
a conveyance of a further part of the estate alleged to
have been made by the Defendant Durrant to the De-
fendant Aldridge (under whom other Defendants now
claim to be entitled), for the purpose of building a dis-
senting chapel, and another conveyance of another part
of the estate alleged to have been made by the Defend-
ant Durrant to the Defendants Pannell and Roae for
the purpose of building a Sanatorium.

The case made by the bill and attempted to be made
at the bar as to the sale to the Defendant Pache is this :
That the sale was upon terms not warranted by the
power of sale vested in the Defendant Durrant. Thai
the price was grossly inadequate, so much so indeed as

558

CASES IN CHANCERY.

1857.

Smith

V,
DUEEANT.

to amount to evidence of fraud. That the notice^ which
was the necessary preliminary to the sale^ had become
ineffectual and had been waived, and that the proper
steps had not been taken for securing an advantageous
sale. With many of these objections the Defendant
Packe, as I apprehend, has no concern whatever. I
agree that he was bound to see that the terms of the sale
fell within the limits of the power, and of course he
could not maintain a purchase made at a fraudulent
undervalue ; but, except in these respects, I apprehend
that he cannot be affected. By the terms of the deed
creating the power of sale he was absolved from inquir-
ing whether the power had arisen ; and I cannot go the
length of holding, that, in the absence of fraud or col-
lusion, a purchaser from a mortgagee with a power of
sale is bound to inquire what steps have been ante-
cedently taken for the purpose of promoting the sale.

It was objected, on the part of the Plaintiffs, that, by
the terms of the agreement for the purchase, part of the
purchase-money was to remain upon mortgage, and it
was insisted that this was a stipulation which a mort-
gagee with a power of sale was not warranted in agree*
ing to. But, in the first place, the agreement was, that
the mortgagee would either allow this part of the pur-
chase-money to remain on mortgage, or would procure
the amount for the purchaser upon mortgage ; and it
appears that the transaction was carried into effect by a
mortgage being made by the Defendant Packe to a
person, who was believed on his part to have actually
advanced the money. I doubt therefore whether this
objection on the part of the Plaintiffs at all arises. But,
supposing it to arise, I find, on referring to the power of
sale in the mortgage deed, that all arrangements made
by the mortgagee are to be as binding as if the mort-
gagor, his heirs or assigns, had concurred, and I think

therefore

CASES IN CHANCERY.

559

therefore that this objection is wholly untenable* For
the same reason I think that the other objections raised
on the part of the Piaintiflfs to the terms of the purchase*
agreement are also untenable ; and, with respect to the
sale being at a fraudulent undervalue, I am perfectly
satisfied upon the evidence that there is no foundation
whatever for the charge. The evidence on the part of
the Plaintiffs as to the value of this estate is upon the
face of it too much exaggerated to be entitled to credit^
and the facts which are sworn to on the part of the
Defendants seem to me wholly to displace it. In my
judgment it is upon facts, and not upon mere opinions,
that reliance ought to be placed in cases of this descrip-
tion*. I agree therefore with my learned brother, that
this bill must be dismissed with costs against the De-
fendant Packe.

1857.

Dayet

V.
DURRANT.

Smith

V.
DURRAMT.

It was insisted, however, on the part of the Plaintiffs,
that, whatever the result of the suit might be as against
the Defendant Packe, inquiries ought to be directed as
to this sale, so as to charge the Defendant DurranL I
am of opinion, that the Plaintiffs have failed in making
out a case for any such inquiries, for I am satisfied that
this sale was a bona fide sale at a fair value, and was
warranted by the power, not only as respects the De-
fendant Packe, but also as respects the Defendant
DurranL It was urged on the part of the Plaintiffs,
that the notice had been waived, or had become in-
efiectual, and the transaction of 1851, to which the
Plaintiffs' consent was given, and the additional pur-
chase under the deed of 1850, were relied on in support
of this view ; but the transaction of 1851 does not seem
to me to have any bearing on this part of the case, and,
with respect to the additional purchase, it would be
strange to hold that it could destroy the notice, when the
very deed under the authority of which it was made

expressly

560

CASES IN CHANCERY.

1857.

expressly kept the notice on foot. It was further
urged on the part of the Plaintifis, that the property
ought, in the first instance, before the sale to the De-
fendant Packe, to have been put up to sale by auction,
or at all events announced for sale by advertisement; but
to hold that the mortgagee was bound in the first instance
to put up the property for sale by auction would be to
limit, cut down the power given by the deed, which
expressly authorizes a sale by public auction or private
contract ; and certainly I am not prepared to hold, that a
mortgagee is not justified in accepting a fair offer for the
purchase of the mortgaged property until he has ad-
vertised the property for sale. I think, therefore, with
my learned brother, that this bill must be dismissed with
costs as to all parties so far as it impeaches the sale to the
Defendant Packe.

I agree also with my learned brother, in the opinion
he has expressed as to the rights of the parties claiming
under the grants for the chapel and Sanatorium. That
those grants cannot be supported as valid exercises of
the power of sale vested in the Defendant JDurrant^ I
feel no doubt whatever, and they do not seem to me to
have been warranted by the consent given by the Plain-
tiffs in October y 1851.

It is plain, however, that the Plaintiffs intended, that
the chapel and Sanatorium should be built upon the
estate, and I think that they must be taken to have had
notice as early as October^ 1853, that the buildings were
about to be erected. It does not appear that any ob-
jection to this proceeding was then or at any time be-
fore the filing of this bill suggested on their part ; and,
under these circumstances, I think that they are not
entitled to get back without paying the amount expended
by the grantees or those claiming under them.

I had

CASES IN CHANCERY. 561

I had hoped that a decree might have been made 1857.
which would have worked out the rights of the parties,
but in attempting to frame such a decree, I have found,
that it would not be safe to proceed without some pre-
vious inquiries. The decree, therefore, must be as my
learned brother has proposed.

WILLIAMS V. PAGE. • , ^„

npHIS was a motion on behalf of the Plaintiffs to va- Before The
cate the enrolment of an order, dismissing with ^^^^^ Lo"""

costs the bill for want of prosecution as against one of Cranworth,

the Defendants. An order on

motion dis-
missing a bill

The order was made by the Master of the Rolls, on prosecution
the 8th of May, 1857. ™ay properly

•^ be enrolled

and is pro-
T n 1 » -hr -r rni' i i perly entitled

In support of the motion, Mr. James J^lhot, clerk to in the causes
the Plaintiffs' solicitor, made an affidavit stating, that ^atlT^thV*'^
he had the conduct and management of the cause on the order on the
part of the Plaintiffs. Between the 8th of Mat/, and the \^^^^{^ ^^^^^^
22nd of the same month, the Plaintiffs' solicitor re* some of the
ceived information, that the will of Mr. Porter, a De- |n the title
fendant who had died recently, had been proved on the "™ay '^e then

, n t . n . dead, and the

2l8t of April, and on the receipt of such information, suit may have
the Plaintiffs' solicitor instructed counsel to move on the ^ f" ''®^*|

between the

22nd of May, to revive the suit against the executor of date of the
the deceased Defendant, and an order of revivor was ^^d the enrol-
made on that day, and was, on the 3rd of June served i"^"^-

A. mere

on the solicitors of the Defendant who had obtained the communica-
order of dismissal in question. 5)°/* '® ? •®'.

^ hcitor of an m-

On tention to ap-
peal is not
sufficient to preclude him from enrolling an order without giving notice of his in-
tention.

662

1857.

CASES IN CHANCERY.

On the 4th of June^ in pursuance of notice, the so-
licitors attended at the Registrar's Office to settle minutes
of the order of the 8th of May^ when the Plaintiffs' so-
licitor objected to the regularity of that order, on tlie
ground that the cause had been set down.

On the 6th of June^ the order of the 8th of May was
spoken to before his Honor the Master of the Roils, with
reference to the objection taken before the Registrar,
and it then appeared, that the cause had not been regu-
larly set down, subpoenas to hear judgment not having
been served, and thereupon the order of the 8th of May^
1857, was affirmed, and his Honor ordered, that the costs
of the application should be paid by the Plaintiffs.

On the 15th of June^ the Defendant who obtained
the order of the 8th oi May^ 1857, caused the docquet
of the order to be left for enrolment, and it was actually
enrolled on the 30th.

The Plaintiff by his affidavit, in support of the
motion, submitted, that the enrolment was irregular, and
ought to be vacated on the grounds, — 1st, that an order,
on a motion for dismissal of a bill, for want of prosecution,
was not properly the subject of enrolment ; ^ndly, that
the enrolment was irregular in not noticing the abate-
ment of the suit by the death of one of the Defendants,
and Srdly, that a communication had taken place between
the solicitors, which, it was submitted, rendered it in-
equitable to enrol the order.

This communication was stated by the Plaintiffs' so-
licitor to have been made by him to one of the Defend-
ant's solicitors, whom he met on leaving an omnibus,
and consisted of a statement that the Plaintiffs intended
to appeal in the case of Williams and Pa^e, The reply

was

CASES IN CHANCERY. 563

was diSerently represented in the affidavits ; those in 1857.
support of the motion stating that the Defendant's soli-
citor said ** Very well/' and those in opposition stating
the words were ''Are you? I know nothing about it/'
or to that effect; one of the latter affidavits further
stating that the Plaintiffs' solicitor must have known that
the solicitor whom he was addressing did not attend to
the suit, as he had been previously so informed.

Mr. Jessell and Mr. H. Smith, in support of the
motion.

There is no precedent of the enrolment of an order on
a motion to dismiss for want of prosecution. Such an
order could never be pleaded in bar of a new suit, and
therefore its enrolment can be of no nse except to prevent
an appeal. Next, the enrolment is irregular, since the
title includes among the parties mentioned in it Mr.
Porter, who was then dead. Lastly, it was not proper
for the Defendant's solicitor to enrol the order without
giving to Plaintiffs' solicitor notice of his intention to do
so after the conversation that had taken place between
them.

They referred to and commented on Lord Clarendon's
Order of May 22nd, 1661, the Order of 7th of August,
1852, Benson v. Vernon{a), Kemp v. Squire (i), Anon.{c),
Man V. Richetts (d).

Mr. Lloyd and Mr. Hardy, for the Respondents.

It is the constant practice to enrol interlocutory orders,
and the tenor of the Order of 1852 shows that expedition
is considered desirable in making the enrolment, as leave
is required to enrol after six months have been suffered

(u) 4 Bro. p. C. 546. (c) 1 Vet. sen. 326.

(b) 1 Ves, itn, 205. (</) 2 C. P. Coop. 25.

564 CASES IN CHANCERY.

1857. to elapse. As to the title to the order, there had been
no order to revive on May Sth, the date of the order in
question, and the order was properly entitled in the cause
as it then stood on the records of the Court. A De*
fendant has no other means of knowing the state of the
cause or whether a co-defendant is dead.

They referred to Wichendea v. Rayson (a), Backhouse
V. Wylde (6), Barnes v. Wilson (c), Pickett v. Loggon{d).

Mr. Jessell replied.

The Lord Chancellor.

The practice has been not to vacate an enrolment un-
less there has been on the part of the person who ob-
tained it something in the nature of mala fides. One
cannot wonder at the Defendant in the present case
endeavouring to get rid of such a suit as this, and I see
nothing in his conduct which can be considered improper
or irregular. The notion that an order of this descrip-
tion cannot properly be enrolled is entirely unfounded.
Nothing is more common than an appeal to the House
of Lords from an order made on a motion or a petition.
This is not an order which has been passed as a matter
of course. Counsel were heard, and affidavits read on
both sides ; and the Master of the Rolls, on the 8th of
May^ came to the conclusion that this Defendant was
entitled to have the bill dismissed as against him for want
of prosecution. A(\er that there was another discussion,
and his Honor refused to alter the order. I cannot pay
any attention to the conversation stated to have taken
place on the S2nd of ilfay, inasmuch as the solicitor with

whom

(a) 1 Jur. N. S. 945. (c) 1 Rust. ^ M. 486.

(b) 3 Jur. N. S. 398. (d) 14 Ves. 232.

CASES IN CHANCERY. 565

whom it took place was not the solicitor who was at- 1857.
tending to the suit on behalf of the Defendant. When,
therefore, the Plaintiffs' solicitor said '' I am going to
appeal/' and the gentleman addressed, and who was
known to have nothing to do with the conduct of the
suit, said ** Very well," that really amounted to nothing
at all.

With regard to the observation, that the title of the
enrolment is inaccurate in not noticing the abatements
which had occurred, it must be observed that the enrol-
ment states all the abatements to which the attention of
the Defendant had been called, and he cannot be pre-
judiced by the fact that, without his knowledge, some
other Defendants were dead. The record is all he can
look to in order to know what has taken place ; and I
think that in this respect also the enrolment is perfectly
regular.

Motion refused, with costs.

566 CASES IN CHANCERY.

1857.

May 30.

J""' 1. 2- BELLAMY v. SABINE.

Avg. 1.

Before The H^HIS was an appeal by two of the Defendants in the
Lord aan- ± g^j^ ^f j^^^ Bellamy v. Sabine, who will be re-

eeilor Lord ^ '

Cr AN WORTH ferred to as Brickenden and Good, from an order in-

LoRDs Jus- validating a mortgage held by them, on the ground that

TicEs. they were affected with notice of John Bellamtft title,

'^\ ^th^^"ff* "^y reason of the pendency of an earlier suit as to the

of lis pendens same estate, in which John Bellamy was a Defendant,

an alieneeV ^"^ '" which that title appeared,
not founded
on any prin-
ciples of The facts of the case were as follows :—
Courts of

Equity with In 1827, John Bellamy, the Plaintiff in the present

t^*but°on^he ^"'*> ^^® entitled to real estates at Corscombe and SotUh
pound that Perrott for life, with remainder to his son Edward Bel-
to the ad- lamy in tail, and was seised in fee of an estate at Ched-
ministration of dington. The South Perrott Estate consisted of two

justice that the '^

decision of the parts,

Court in a suit

should be binding, not only on the litigant parties, but on those who derive title from

them pendente lite, whether with notice of the suit or not.

A person who, without notice of a suit, purchases from one of the Defendants
property which is the subject of it, is not in consequence of the pendency of the suit
affected by an equitable title of another Defendant, which appears on the face of the
proceedings, but of which he has no notice and to which it is not necessary for any of
the purposes of the suit to give effect.

F, B.J the heir-at-law of E. B., filed a hill against J. B. and S., to impeach two
agreements, one of which was for the sale of a life estate by J. B. to £. B., and by
the other of which E. B. had agreed to sell to S. the entire fee-simple, which ac-
cordingly was conveved to 5. by J. B. and E, B. AAer the institution of the suit S.
mortgaged to B. and G. The bill was dismissed as to the first agreement, but the
second was sot aside and a decree made for a reconveyance by S. to F, B. on the
terms of F. B. making certain payments to i$. It was afterwards decided in another
suit on the state of facts which appeared in the first suit, that J. B. was entitled to a
lien on the estate as against F. B. and .S. for monies payable under the first agree-
ment:— Hftdf that B. and G. not having when they took their mortgage any notice
of the first suit, or of the circumstances on which J. B.*s claim was founded, were not
affected, on the ground of the pendency of the first suit, by the claim of J. B. ; though,
owing to the pendency of that suit, they were entitled as against F. B. to no more
than S, was entitled to.

CASES IN CHANCERY, fjffi

parts, referred to in the judgment of the Lord Chancellor 1667.

as " The Manor Farm" and **VUlabenC Wv-^

Bmlamt

By a deed dated 8th June^ ISST, made between John SUsuis.
Bellamy and Edward Bellamy, it was agreed that the
Corscombe, South Perrott and Cheddington Estates •
should be assured to Edward Bellamy for an estate of fee
simple in possession, and that Edward Bellamy should
pay certain debts of John Bellamy j pay certain sums for
the benefit of John Bellamy^s younger children, secure to
him an annuity of 210L for his life, and demise to him
the Cheddington property for a term of years determinable
on his death, and pay certain other annuities.

By articles of agreement dated 21st June, 18S7, in-
dorsed on the above deed, and made between Edward
Bellamy and Thomas Sabine, Edward Bellamy, in con-
sideration of Sabine's undertaking to pay the debts, sums
of money and annuities which Edward Bellamy had by
the deed undertaken to pay, and for other considerations,
agreed to convey all the above properties to Sabine, sub-
ject to the agreement for the lease of the Cheddington
property to John Bellamy.

In pursuance of these agreements, the Corscombe and
South Perrott Estates were, by indentures of lease and
release of the 15th and 16th November, 1827, and by
common recoveries suffered in pursuance thereof, limited
to the common uses to bar dower in favour of Sabine.

On 4th August, 1828, Edward Bellamy died intestate,
leaving his brother Francis Bellamy his heir-at-law.

On 23rd February, 1829, Sabine mortgaged the Cors-
combe Estate to Davis to secure 3,000Z.; and on 13th
July, 1830, he mortgaged the Manor Farm to Thomas

Vol. I. P P D.J. Brichenden

568

CASES IN CHANCERY.

1857.

Brichenden to secure a like sum. No question arose as
to either of these mortgages, which were admitted to be
the first incumbrances on the estates comprised in them.

On 26th July^ ISSO, Francis Bellamy, who before the
recoveries were suffered was tenant in tail of the Cors^
combe and South Perrott Estates in remainder imme-
diately expectant on the estate tail of Edward Bellamy^
and was also his heir at law, filed his bill against Sabine^
John Bellamy and others impeaching the agreements of
18/^7 as fraudulent, and praying that they, and all deeds
executed in pursuance of them, might be cancelled ; and
that, if necessary, the Corscombe and South Perrott
Estates might be reconveyed to the uses to which they
originally stood limited.

By indentures of lease and release of the 14th and 15th
November, 1833, Sabine mortgaged the South Perrott
Estate (subject as to the Manor Farm to Brichenden s
mortgage) to Brichenden and Good to secure 800/. This
was the mortgage as to which the present question arose,
and it was taken by Brichenden and Good without any
notice of the agreement of 8th June, 1827, or of the
pendency of Francis Bellamy s suit, to which they were
never made parties. Good afterwards died, and at the
time when the present appeal was heard, Brichenden
was solely entitled to this mortgage in trust for John
Batten; but as nothing turned on this alteration of
ownership, it is thought most conducive to clearness to
speak throughout of the owners of this mortgage as
" Brichenden and Good''

The suit of Francis Bellamy v. Sabine afterwards
came on to be heard before Lord Cottenham, then Master
of the Rolls, and by his decree, dated the 8th of May,
1835, the bill was dismissed so far as it sought to have
the agreement of the 8th otJune, 1827, and all convey

ances

CASES IN CHANCERY.

569

ances executed in pursuance of that agreement, delivered
up to be cancelled ; but it was declared that the agree-
ment of SI St June, 18^7, was fraudulent and ought to
be cancelled, and that the conveyances to Sabine in pur-
suance of that agreement were also fraudulent and ought
to be cancelled. Accounts were directed of what Sabine
had paid upon the footing of this agreement, and of what
he had laid out in lasting improvements on the property.
An account of rents and profits was directed against him
as a mortgagee in possession, and it was ordered, that on
Francis Bellamy paying to Sabine the balance which
should be found due to him on the result of the accounts,
Sabine should convey to Francis Bellamy, or as he should
appoint, the South Perrott and Corscombe Estates, subject
to the mortgages subsisting thereon at the date of the
agreement of Slst June, 1827, but free from all incum-
brances created by himself.

1857.

By indenture dated 18th May, 1835, an outstanding
term created in 18S4 in the South Perrott Estate was
assigned to a trustee for Brickenden and Brickenden
and Good, for better securing the sums due to them on
their respective mortgages.

By indenture dated 20th November, 1835, made be-
tween Sabine of the first part, Davis of the second part,
Brickenden of the third part, Brickenden and Good of
the fourth part, and John Batten and Joseph Stone of
the fifth part, Sabine assigned to Batten and Stone all
monies coming to him under the decree of the 8th of
May, 1835, upon trust to apply the same in payment of
the monies due to Davis, Brickenden, and Brickenden
and Good, on their respective mortgages.

On 15th March, 1839, John Bellamy filed his bill
against Sabine, Davis, Brickenden, Good, Francis BeU

P P 2 lamy

CASES IN CHANCERY.

1867.

lamy and others, praying for the specific performance of
the agreement of 8th June, 1827, so far as it remained
unperformed, and for an account of what was due to him
on the footing of that agreement ; that the amount might
be paid to him by the Defendants, or raised by sale or
mortgage of the premises comprised in the agreement ;
and that the lease of the property at Cheddington might
be executed, and the annuities secured on the estates,
according to the agreement.

On 8th November, 1847, this cause was heard on
appeal before Lord Cottenkam (a), and by decree of that
date, specific performance of the agreement of 8th June,
1827, was decreed, — accounts were directed for the pur-
pose of ascertaining what was due to the Plaintiff upon
the footing of that agreement, — inquiries were directed
as to the premises comprised in the several mortgages;
and it was declared, that without prejudice to any ques-
tion in the cause as to the priority of the respective
liens, charges and incumbrances of the Plaintiff, Davis,
Brickenden, and Good, upon the estates and premises
comprised in the agreement of the 8th June, 1827, the
Plaintiff had a lien, and was entitled to rank as an equit-
able incumbrancer upon all the said estates and premises
in respect of what should be found to be due to him, and
to have the annuities secured upon competent parts of
the said estates and premises ; and the accounts directed
by the decree of the 8th May, 1835, were ordered to be
carried on and prosecuted. A report was made in pur-
suance of this decree, but was imperfect, as it did not
embrace the accounts directed by the decree of 1835,
and therefore, by an order on further directions, dated
20th December, 1852, made in the two suits, those ac-
counts were directed to be prosecuted, and by consent of

all

(a) 2 PhiU. 425.

CASES IN CHANCERY.

571

all parties it was ordered, that the priorities of the re-
spective liens, charges and incumbrances of the Plaintiff,
Davis, Brickenden, Good, and others, should be ascer-
tained.

1867.

The chief clerk, in pursuance of this order, made his
certificate, dated the 4th May, 1855, by which he cer-
tified that there was due to Sabine 7,855Z. 2s. dd. That
the priorities were as follows, viz., that Davis was the
first incumbrancer on the Corscombe Estate, — that
Brichenden was the first incumbrancer on so much of
the South Perrott Estate as was comprised in his se-
curity,— that the Plaintiff John Bellamy was the first
incumbrancer on so much of the South Perrott Estate
as was not comprised in Brickenden's security, — and the
second incumbrancer on Corscombe, and on so much of
South Perrott as was comprised in Brickenden's security,
— that Sabine was, in respect of the 7,855Z. 2s. 9d. found
to be due to him, the third incumbrancer on Corscombe
and the last-mentioned part of South Perrott Estate, and
the second incumbrancer on so much of South Perrott
as was not comprised in Brickenden^s security ; but that,
by virtue of Sabine s assignment of November, 1835,
Brichenden and Good were entitled to what was due to
himi and that they were not otherwise entitled to any
liens, charges or incumbrances upon the estates.

Brichenden and Good moved before Vice^-Chancellor
Wood to vary the certificate, so that they might be ranked
as first incumbrancers on such part of the South Perrott
Estate as was not comprised in Brichenden's mortgage,
and as second incumbrancers on such part of that estate
as was comprised in his mortgage. The Vice-Chan-
cellor refused the motion with costs, and by his order on
further consideration carried out the Chief Clerk's cer-
tificate.

Brichenden

572

CASES IN CHANCERY.

1857.

Brickenden and Good appealed from the order made
on the motion, and from so much of the order on further
consideration as carried out the same principle.

Mr. Roltj and Mr. Chapman Barbery for the Appel-
lants.

The decision of the Vice-Chancellor proceeds on the
ground that the pendency of the suit of Francis Bellamy
V. Sabine puts Brickenden and Oood in the same position
as if they had had notice of John Bellamy's equitable
rights under the agreement of 8th June, \8^, and it can
only be supported on the ground that lis pendens is con-
structive notice to all the world of the existence of the
suit and of everything that appears in it.

Now we contend that the doctrine of lis pendens does
not proceed on the principle of constructive notice. Effect
is given to notice because it affects the conscience (see
the observations in Johnson v. Holdsworth {a)), but there
is nothing in lis pendens to affect the conscience of a
person who has no actual notice of the suit. The effect
given to lis pendens does not depend on the doctrines of
notice peculiar to courts of equity, but is simply a rule
of law which obliges a purchaser pendente lite to give
effect to the rights ultimately established by the decree ;
Bishop of Winchester v. Paine (6). The object of the
rule is to prevent a Plaintiff^s being obliged to litigate the
matter over again with alienees, and if the benefit of the
rule can be given to any one but the Plaintiff*, still its
effect must be limited to the extent of what is decided
by the decree. Now here nothing was done as to the
agreement of 8th June, 1827, by the decree at the Rolls
in Francis Bellamy's suit The bill was dismissed so far
as it sought to impeach the agreement, but the decree in

(«) 1 Sim. ^. S. 106. (6) 11 Ves. 194.

CASES IN CHANCERY. 578

no way provided for enforcing that agreement, nor did it 1857.
fall within the scope of that suit to decide anything
between John Bellamy and Sabine, To ascertain the
effect of lis pendens the Court must look to what is
sought by the bill ; not to matters disclosed by it, which
only affect the rights of Defendants inter se, and do not
modify the relief given in the suit

Mr. Cairns and Mr. Lambert, for John Bellamy in
support of the Vice-Chancellor's decision.

It is urged on the other side, that the doctrine of lis
pendens is merely that no alienation pendente lite shall
affect the rights of the Plaintiff. That, we submit, is an
incomplete statement and unduly limits the rule to the
particular case in which it is most usually applied. We
contend that the rule is this, that the title of an assignee
pendente lite is cut down to what the suit establishes the
title of his assignor to be.

No authority has been cited in support of the con^
tention, that the rule enures for the benefit of the Plain-
tiff only. — [The Lord Justice Knight Bruce here
suggested, whether the benefit was not confined to the
Plaintiff until a decree or material order had been made
in the cause.] — The admitted exceptions to the rule for
which the other side contend are so large that they anni-
hilate the rule, for instance, it could not be contended,
that in an administration suit instituted by a person
having only a partial interest in the estate, the Plaintiff
alone has the benefit of the doctrine of lis pendens, noi^
that in a suit by one of several tenants in common to set
aside a deed on the ground of a fraud affecting them all,
the Plaintiff alone is protected. The title that is impeached
is what is to be looked to. The 7th sect, of 2 & 3 VicL c.
11, confirms this view. Neither is there any authority for
restricting the effect of lis pendens to what is prayed by

the

574

CASES IN CHANCERY.

1867.

Bellamy

Samnb.

the bill. Jennings v. Bond (a) is strong in our favour.
The bill in that case was such, that no one reading it
could have supposed that it would affect the land in
question. Biihop of Winchester v. Paine (b) is also ii>
our favour, Sir W. Grants says '' litigating parties/' not
confining the benefit of lis pendens to the Plaintiff.

Now what was the effect of the decree at the Rolls
in Francis Bellamy v. Sabine? It cancelled Sabine s
interest as owner, and if it had stopped there he would
have had no title at all to the estate. It then went on to
give him a lien for certain sums, and respited the recon-
veyance till those sums were paid, it thus gave him a
new right instead of his old one, and it confirmed the
agreement of 8th June, 1827, as was afterwards decided
by Lord Cottenham, in the suit of J. Bellamy v. Sabine{c).
Sabine, therefore, had power to give his assignee a title
to hold the estate till the monies ordered to be paid to
Sabine had been paid, but he could not give more. Our
incumbrance was prior to the rights of Edward, and,
therefore, to the claims of Sabine derived under Bdwcnrd,
Francis Bellamy has a clear right to the benefit of lis
pendens as against Sabine^s mortgagees. We have a better
title than F. Bellamy, and it is an absurdity to say, that
he has a title against Sabine's mortgagees, and that we,
with a title preferable to his, have not.

Mr. Barber, in reply.

The cases cited on the other side do not support the
Respondent's case. What are alleged against us as ex-
ceptions, destroying the rule, such as we allege it to be,
are no exceptions at sdl. — [The Lord Justice Knight
Bruce here suggested the question, whether a Defend-
ant could claim the protection of lis pendens, unless his

rights

(a) 2 Jo. 4- Lot 720. (6) 11 Fei. 194. (c) 2 PhiU. 450.

CASES IN CHANCERY, 675

rights were represented by the Plaintiff.] — We submit 1867.
that he cannot; and that at all events no right not capable
of being worked out in the suit can be protected by lis
pendens. Suits, such as administration suits and foreclo-
sure suits, where the rights of Defendants are worked
out under the decree, stand on a different footing from
ordinary suits. Here, the rights otJohn Bellamy against
Sabine could not have been worked out in Francis Bel-
lamy's suit, there was no antagonism between John BeU
lamy and Sabine in that suit, they both stood merely on
the defensive, and there was no lis pendens between them.
After the institution of that suit, no alienation by Sabine
could affect the rights of Francis Bellamy, but to hold it
a good alienation as against John Bellamy in no way
interferes with the giving full effect to any decree that
could be made in that suit, and this is the true test, whe-
ther the doctrine of lis pendens applies.

The Lord Chancellor, after stating the facts of the Aug. 1.
case, except the suit of Francis Bellamy v. Sabine, pro-
ceeded as follows : —

Upon the documents and transactions which I have
stated, supposing that I had stated all which affects the
case, there could be no doubt but that Davis was the
first mortgagee on Corscombe, Brichenden the first mort-
gagee of that part of South Perrott which I have de-
signated by the name of the Manor Farm, and Brich-
enden and Good the first mortgagees of the rest of South
Perrott, which I have called Villabent, and second
mortgagees of the Manor Farm. But the Plaintiff
claims to have priority over Brichenden and Good, by
reason of certain proceedings in this Court, to which I
have not yet adverted.

After the death of Edward Bellamy in August, 1828,
Francis, who, as I have already stated was his brother

and

576 CASES IN CHANCERY.

1857. and heir, filed a bill in this Court against Thomcu
Sabine, John Bellamy and the other parties who took
benefits under the deed of the 8th day of June^ 1827|
and by that bill he prayed to set aside both the instru-
ments of June, 1827, (i. e. the deed of the 8th of June,
whereby the Plaintiff* agreed to sell to Edward, and
the agreement of the 21st day oi June, whereby Edward
agreed to sell to Thomas Sabine), alleging by his bill that
both these instruments were obtained by fraud. This
bill was filed in July, 1830, and the cause was pending
in the month of November, 1833, when Brichenden and
Good advanced their 800/., and took their mortgage of
South Perrott, and the question for our decision is, as to
the effect of that pending suit on this mortgage.

The cause was duly prosecuted, and a decree was
pronounced on the 8th day oi May, 1835, dismissing the
bill, so far as it sought to impeach the deed of the 8th
day of June, 1827, but declaring that the agreement of
the 2l8t June, 1827, whereby Edward agreed to sell to
Thomas Sabine, was fraudulent and void, and that the
deeds, whereby that agreement was carried into effect
and the estates were conveyed to Thomas Sabine, were
also fraudulent and void, and ought to be delivered up
and cancelled. Accounts were directed of the sums paid
by Sabine in pursuance of the agreement of the 21st day
of June, 1827, and on the other hand of the net rents
and profits come to his hands; and it was ordered, that on
payment by Francis Bellamy to Thomas Sabine of what
should be found due to him on taking those accounts, he
(Sabine) should convey to Francis Bellamy the whole
of the property free from all incumbrances created by
him. Sabine soon afterwards assigned the whole of
what should be coming due to him on taking these
accounts to trustees for the better security of his mortga-
gees according to their respective priorities.

The

CASES IN CHANCERY, 577

The accounts thus directed do not appear to have 1867.
been prosecuted, but in the decree subsequently made in
the suit instituted by the present Plaintiff t/oAn Bellamy
in March, 1839, it was specially provided, that the
accounts directed in the prior suit should be taken in
that subsequent suit.

These accounts were accordingly taken in that suit|
and a large sum, of between seven and eight thousand
pounds, was found due to Thomas Sabine from the
Plaintiff in respect of what he had paid in discharge of
the obligations under which he had come by the agree^
ment of the 21st day oiJune, 1827. It was stated that
the money thus payable to TTiomas Sabine would be
more than sufficient to satisfy all the three mortgages.
But the mortgagees have no means of compelling
Francis Bellamy to prosecute his demand against
Sabine, and to pay the money found due to Sabine, out
of which their demands might be satisfied.

No question was or could be raised as to the priority
of the two first mortgages, i. e. the mortgage of Cors*
eambe to Davis for 3,000/., and of the Manor Farm to
Brichenden for 3,000/. These mortgagees claimed by
conveyance from Sabine at a time when he was owner
of the fee, and when no doubt had been cast on the
validity of his title as a purchaser from the Plaintiff and
his son Edward, But as to Brichenden and Good, it
was argued, that their title was founded on a mortgage
made in 1833, when the suit of Francis, instituted in
1830, was pending, which suit gave distinct notice that
Sabine*s title was subject to a claim by the Plaintiff in
the nature of a lien for unpaid purchase-money. The
Plaintiff John Bellamy contended, that when the title
o( Brichenden and Good accrued in November, 1833,
he had an equitable claim on the estate of Sabine their

mortgagor,

Sabimb,

678 CASES IN CHANCERY.

1857. mortgagor, of which, from the pendency of the suit of
^^'^'^^ Francis Bellamy^ they roust be deemed to have had
notice. The Vice-Chancellor considered this claim to be
well-founded, and decreed accordingly. I cannot concur
in this view of the law.

It is scarcely correct to speak of lis pendens as affecting
a purchaser through the doctrine of notice, though un-
doubtedly the language of the Courts often so describes
its operation. It a£R;cts him not because it amounts to
notice, but because the law does not allow litigant parties
to give to others, pending the litigation, rights to the pro-
perty in dispute, so as to prejudice the opposite party.

Where a litigation is pending between a Plaintiff* and
a Defendant as to the right to a particular estate, the
necessities of mankind require that the decbion of the
Court in the suit shall be binding, not only on the
litigant parties, but also on those who derive title under
them by alienations made pending the suit, whether such
alienees had or had not notice of the pending proceedings.
If this were not so, there could be no certainty that the
litigation would ever come to an end. A mortgage or
sale made before final decree to a person who liad no
notice of the pending proceedings would always render a
new suit necessary, and so interminable litigation might
be the consequence. Thus in the present case it is
certain, that though Brickenden and Good were entirely
ignorant of any right on the part of Francis Bellcuny to
question the title which Sabine derived under Edward,
yet as their mortgage was made to them by Sabine after
the institution of the suit of Francis, questioning SMne^s
title, and while it was pending, they cannot set up against
Francis any right from which Sabine their mortgagor
was excluded by the decree. Their title is good against
Sabine, and so may be asserted against whatever money is

coming

CASES IN CHANCERY.

coming due to him under the decree, but against Francis
the Plaintiff they can be in no better position than
Sabine himself.

This proposition is not disputed, but John Bdlamy
the Plaintiff contends further, that not only did the
pendency of the first suit prevent Brickenden and Oood
from insisting against Francis on their mortgage, but
that, inasmuch as the proceedings in that suit gave notice
of his the now Plaintiff's equitable rights under the
deed of the 8th day of June^ 1827, therefore they took
their mortgage subject to those rights. I have already
stated that for this argument I can discover no warrant.
Of course if they had had notice of the suit, the case
might be different. Notice of the equitable claim insisted
on by the Plaintiff would prevent them from setting up a
legal title against that claim, and whether the notice
came to them by means of their being made aware that
a suit was pending in which the right appeared, or by
any other means, would be immaterial. But in such a
case the legal title would be affected, not by reason of
there being a lis pendens, but by reason of the mortgagees
having notice of a claim appearing in a lis pendens, and
here there is no suggestion that any such notice
existed.

That this is the true doctrine as to lis pendens, ap-
pears to me to be not only founded on principle, but also
consistent with the authorities.

St9

1857.

Thus in Culpepper v. Aston (a), lands had been devised
to a trustee to sell for payment of debts. The heir filed his
bill against the trustee, alleging that the real estate was
not wanted for the debts, and therefore praying for a

conveyance.

(a) 2 Ch. Cm. 115 and 221.

fiSLLAMT
V.

680 CASES IN CHANCERY.

1857. conveyance. It was held, that a sale by the trustee
pendente lite did not bind the heir. This decision was
clearly right. So in Sorrell v. Carpenter (a), the Plain-

Sabimb. iiff ))2J instituted a suit against one Ligo on a claim,
which by the decree he had established, to certain
leasehold estates. Pending the suit, Ligo sold to the
Defendant, and the question was, whether the Defendant
Carpenter could sustain his purchase. Lord King was clear
that he could not, though on some formal grounds the bill
in that case was dismissed. In both these cases the doctrine
really was that, pending a litigation, the Defendant cannot
by alienation affect the rights of the Plaintiff to the
property in dispute, and the same principle is applicable
against a Plaintiff, so as to prevent him from alienating
to the prejudice of the Defendant where, from the nature
of the suit, he may have in the result a right against the
Plaintiff, as on a bill by a devisee to establish a will
against an heir, if in the result the devise is declared
void, the heir is not to be prejudiced by the alienation
of the devisee (Plaintiff) pendente lite. See Garth v.
Ward (fi).

The language of the Court in these cases, as well as in
Worslet/ V. The Earl of Scarborough (c), certainly is to the
effect that lis pendens is implied notice to all the world.
I confess, I think that is not a perfectly correct mode of
stating the doctrine. What ought to be said is, that,
pendente lite, neither party to the litigation can alienate
the property in dispute so as to affect his opponent The
doctrine is not peculiar to Courts of Equity. In the old
real actions the judgment bound the lands, notwith-
standing any alienation by the Defendant pendente lite,
and certainly that did not depend on any principle arising
from implied notice.

After

(a) 2 P. WfM. 482. (ft) 2 Atk. 174. (c) 3 Alk. 392.

CASES IN CHANCERY. 681

After all it would not be material in what form the 1857.
principle is enunciated, were it not that by treating the
question as one of implied or constructive notice we incur
the risk of pushing the doctrine beyond its legitimate
limits. This has, I think, been done in the present case.
If the doctrine really rested on the ground of implied
notice, the consequence might be that the person affected
by notice is affected by notice of everything reasonably
deducible from or appearing in the suit, and this might
warrant the order now complained of. I am, however,
of opinion that the pendency of Francis Bellamy's suit
cannot be treated as having amounted to notice of the
equitable rights of John Bellamy against his co-De*
fendant Sabine,

The certificate of the Chief Clerk, and -the order con-
sequent thereon, ought therefore to be varied, by making
those now claiming in right of Brickenden and Good, in
respect of the mortgage for 800/., first incumbrancers on
80 much of South Perrott as is not subject to the mort-
gage for 3,000/. to Brickenden, and second mortgagees
of what is so subject

The Lord Justice Knight Bruce.

There is no question of priority here between the
Appellants and Francis Bellamy, the Plaintiff in the
first suit. The Appellants, claiming under the security
of 1833, admit that it conferred no better title on the
mortgagees of 1833 as between them and Francis Bel'
lamy than it would have conferred if the mortgagees of
1833 had taken it with express notice of Francis BeU
lamy*s rights against Thomas Sabine, The controversy
is between the Appellants and John Bellamy, and its
decision, depends on the effect, if any, which, between
J. Bellamy and the Appellants, the sOit instituted by

Francis

5S2

CASES IN CHANCERY,

1857.

Francis Bellamy in 1830 had on the transaction of
1833.

In that suit, the only suit which in or before 1833
existed, Francis Bellamy was the sole Plaintiff, and
neither of the mortgagees of 1833 a Defendant, nor does
there appear to have been in or before 1833 any decree
or material order in the cause ; consequently, in my
opinion, there was not a lis pendens created by it, at
least in or before 1833, between John Bellamy and
Thomas Sabine, who were both Defendants in the cause,
or between John Bellamy and the mortgagees of 1833;
and as those mortgagees respectively had neither in nor
before the year 1833 actual notice, so, in my judgment,
as between them and John Bellamy, neither in nor before
that year had either of them constructive notice of the
suit of 1830. John Bellamy, in and before the year
1833, stood, so far as any litigation was concerned, on
the defensive merely. John Bellamy was not in any
sense an actor in any litigation before the year 1835.

There is therefore nothing, as I conceive, to prevent
the Appellants, as to the property comprised in their
security, the legal estate in which is under their control,
from saying effectually, as they aver truly, against John
Bellamy, that the mortgagees of 1833 took from Thomas
Sabine the security of that year without notice of the
deed of the 8th otJune, 1827.

The security therefore of 1833 is, in my opinion, as to
the property in which the legal estate is under the Ap-
pellants' control, of higher rank than the claims of John
Bellamy under the deed of the 8th of June, 1827. How
the case would have stood had the Appellants been
claiming anything under any act done by Francis Beir
lamy after the commencement of the suit of 1830, it is

immaterial

CASES IN CHANCERY,

583

immaterial to consider^ for the Appellants are not nor
have been so claiming anything.

I may add, that the Lord Justice Thimer having been
80 good as to remind me of an ordinance of Lord Bacon,
and a General Order of 1649, showing, to some extent
at least, the effect which a lis pendens was held by this
Court to have in the 17th century, I have not failed to
consider them ; but with much deference to my learned
Brother, if he thinks otherwise, I am not of opinion that
they affect or bear upon the present controversy.

1867.

The Lord Justice Turner.

The decision of the Vice-Chancellor in this case giving
priority to the Plaintiff John Bellamy over Brichenden
and Good, the mortgagees of Sabine, rests wholly upon
the doctrine of lis pendens. The only lis pendens at the
time when the mortgage to Brichenden and Good was
made was the suit instituted by Francis Bellamy^ the
heir o( Edward Bellamy, against the now Plaintiff JbAn
Bellamy and against Sabine and other parties, for the
purpose of setting aside the agreement of the 8th oi June,
18^7, by which John Bellamy sold to Edward Bellamy,
and the agreement of the ^Ist of June, 1827, by which
Edward Bellamy sold to Sabine, Francis Bellamy did
not succeed in impeaching the agreement of the 8th of
June, 1827. The bill, so far as it sought to impeach that
agreement, was dismissed. Except with respect to that
agreement, there was no question to be decided in that
suit between Francis Bellamy and the then Defendant
and now Plaintiff John Bellamy ; nor, so far as I can
see, was there any question which could be reached in
that suit between John Bellamy and Sabine, at all events
so as to affect the right of the Plaintiff Francis Bellamy.
The decree in the suit seems to me to show that this was
Vol. I. Q Q D.J. the

684 CASES IN CHANCERY.

1857. the case, for Sabine was ordered to convey to Francis
Bellamy on payment of what should be found due to
him. The equities between John Bellamy and Sabine
were treated as being left, and were left, to be decided in
a future suit. Nevertheless the Vice-Chancellor, whose
opinions are always entitled to the highest consideration,
was of opinion that this suit of Francis Bellamys con*
stituted a lis pendens which affected Brichenden and
Goody the mortgagees of Sabine, He seems to have
considered that, consistently with the doctrine of lis
pendens, the Appellants could in no case be entitled to
stand in any better position than Sabine, — that their title
must stand or fall with his. I am not prepared to follow
the decision to this extent. The doctrine of lis pendens
is not, as I conceive, founded upon any of the peculiar
tenets of a Court of Equity as to implied or constructive
notice. It is, as I think, a doctrine common to the
Courts both of Law and of Equity, and rests, as I ap-
prehend, upon this foundation, — that it would plainly be
impossible that any action or suit could be brought to a
successful termination, if alienations pendente lite were
permitted to prevail. The Plaintiff would be liable in
every case to be defeated by the Defendants alienating
before the judgment or decree, and would be driven to
commence his proceedings de novo, subject again to be
defeated by the same course of proceeding. That this
doctrine belongs to a Court of Law no less than to Courts
of Equity, appears from a passage in ^nd Inst. 375, where
Lord CokCy referring to an alienation by a mesne lord
pending a writ, says, that the alienee could not take ad-
vantage of a particular provision in the Statute of West-
minster the 2nd, because he came to the mesnalty pen-
dente brevi, and in judgment of law the mesne as to the
Plaintiff remains seised of the mesnalty, for pendente
lite nihil innovetur; and though Lord Bacon's Orders
which give the rule in equity are very generally ex-
pressed.

CASES IN CHANCERY.

685

pressed, the language of the order upon this subject
being, '' No decree bindeth any that cometh in bon^ fide
by conveyance from the Defendant before the bill exhi-
bited, and is made no party, neither by bill nor order ;
but where he comes in pendente lite, and while the suit
is in full prosecution, and without any colour of allow-
ance or privity of the Court, there regularly the decree
bindeth ;*' this order must, I think, be understood to
mean that the decree binds so far as the title of the
Plaintiff is concerned, for the context of the order seems
to me to show that it was the title of the Plaintiff only
which was contemplated by it. We have, therefore. Lord
Coke expressly pointing to the title of the Plaintiff as
what is to be protected by the doctrine of lis pendens,
and Lord Bacon apparently not extending the protection
further. On examining too the subsequent cases, I have
not found any authority for carrying this doctrine to the
extent to which this decision has gone. No case, so far
as I am aware, has yet occurred in which the doctrine
has been applied so as to affect the title of the alienee of
a Defendant by virtue of a claim not interfering with the
title of the Plaintiff in the pending litigation. What is
said in the cases of Worsley v. Lord Scarborough (a),
and Mead v. Lord Orrery (b), and also in Metcalfe v.
Pulvertoft (c), seems to me to tend the other way. I
regard this decision, therefore, as one of the first im-
pression, and it is plainly one of the utmost importance.

1857.

John Bellamy and Sabine were co-Defendants in the
suit which was pending when the alienation to Bricken^
den and Good was made, and the effect of the decision is
to cut down the title of Sabine's alienee in favour of his co-
Defendant John Bellamy. Generally speaking, between
co-Defendants there can be no decree — is it to be said

that

(a) 3 Atk. 392. {b) 3 Atk. 243. (c) 2 Vei. i B. 200.

QQ2

586

CASES IN CHANCERY.

1857.

that there is a lis pendens between them? If so, when
did it commence ? The service of the subpoena consti-'
tutes a lis pendens between the Plaintiff and Defendant,
but when is the lis pendens between co-Defendants to
commence? This is one of the difficulties which would
arise from this extension of the doctrine, but the diffi-
culties to which the extension of the doctrine would lead
are but of little importance when compared with the
consequences which would result from it. If this de-
cision be right, and an alienee of a Defendant is, by
virtue of this doctrine of lis pendens, to be affected by
the claim of a co-Defendant, upon what principle is the
alienee to be protected from the claim of a mere stranger?
Laying out of consideration the cases in which decrees
can be made between co-Defendants, (which are rare, and
for the most part go no further than where it is necessary
for the purposes of the Plaintiff to adjudicate between
the Defendants,) upon what ground is the case of a
CO- Defendant to stand in a different position from that
of a stranger ? and if the doctrine of lis pendens is to be
carried so far as to affect a purchaser with notice in
favour of a stranger, I hardly know what title would be
safe, independently of the late acts requiring registration.

Of course the observations which I have made are not
to be taken as importing that the alienee of a Plaintiff
will not be bound as much as the alienee of a Defendant,
or to have any reference to cases where there is notice
independently of the lis pendens, or to cases in which the
rights of the Plaintiff may require that there should be
an adjudication between the Defendants ; but in this case
no notice is proved independently of the suit, and I see
nothing to show that the rights of Francis Bellamy^ the
Plaintiff in the suit which was pending when this aliena-
tion was made, could render it necessary for the interest
of Francis to decide any question of right between John

Bellamy

CASES IN CHANCERY. 687

Bellamy and Sabine. I am of opinion, therefore, that 1857.

this decision cannot be supported, and that the order

must be varied by declaring the priorities according to the

notice of motion on the part of the Defendants Brickeu" Sabine.

den and Good.

Bellamy

SKELTON ». COLE.

Nov. 4.
rriHIS was an appeal from the dismissal by Vice-Chan- Before The

^ cellor Stuart of a bill filed by an alleged purchaser ^''''''' •'"■"

TICB8.

for the specific performance of an agreement for sale. During parol
alleged to have been entered into under the following negociationg

. for the pur-

Circumstances : — chase of an es-

tate, the vendor
wrote to the

In the "Lincoln, Rutland and Stamford Mercury^* purchaser's
weekly newspaper, published on the 29th day oi August, ^8h,gJhat Ae
1856, there was inserted by the authority of Mr. Maurice solicitor's

. "client**

Cole, the Defendant, the following advertisement : — shouldadvance
" Paston, Northamptonshire. To be sold by private * *""* *® P^^

, , , . off a mortgage

contract, with immediate possession, in four lots, a very on the pro-
desirable freehold estate, comprising a genteel family ftJJt*her paro^
residence, with gardens and ornamental plantations, and negociations as
about 180 acres of good land, the greater part of which thgy ^g^e '

is old pasture within a ring fence, with farming buildings fg^'ced upon

by parol I and
and every convenience for occupation. The property is the vendor

situated within three miles of the city of Peterborough, u^"jiT^*t,
and half a mile from the Walton Station on the Great purchaser a
Northern Railway. Lot 1 consists of house, plantations ment^of'the
and gardens, with farming buildings, and fifty-five acres particulars of
of land (more or less) immediately contiguous. Lot 2. and of the
Two closes of land adjoining the above, containing F»^®*. ^"'^^

4^a. Or. 15p. he signed and

addressed to
the purchaser a letter containing the following passages : — " 1 am about to relet the
land at P. for another year, concluding you will agree to it. . . The Ladif Day rents
will be mine and the Michaelmai yours:" — Held^ that the signed statement of par-
ticulars was not a sufficient memorandum in writing, the purchaser's name not being
mentioned in it, and that the defect was not supplied by the correspondence.

588 CASES IN CHANCERY.

1857. 46a. Or. 15p. (more or less). Lot 3 consists of 44a. Sr.Op.,

^^^'^^ with cottage and garden. Lot 4 contains 33a. Sr. 16p.,

V, together with 2a,, 2r. 18p. of wood land. Parties wishing

^"' to treat for the purchase of any of the above lots will

receive full particulars by applying to Maurice Cole, Esq.,

Ivy House^ Stranraer, Scotland, To view the property

apply to Mr. Geo. Holman, Paston Green, where a plan

of the several lots may be seen."

The same advertisement was subsequently repeated.

About the commencement of the month of September,

1856, the Plaintiff, whose attention had been attracted

by the first advertisement, sent to the Defendant a letter

requesting to be allowed to look over the property with

a view of becoming a purchaser. After some immaterial

correspondence the Defendant wrote to the Plaintiff as

follows : —

'* Peterborough P. O.

" 26th September, 1856.
" Sir,

" As I am likely to be here up to Wednesday next,

I shall be glad to show you over the estate at Paston, if

you still should think of purchasing a part of it. Your

answer will oblige

" Your obedient

" Maurice CoUr

The Plaintiff in reply wrote a letter appointing to meet
the Defendant at Peterborovgh on the 29th of September.
On that day accordingly the Plaintiff met the Defendant
and in his company viewed the farm and lands comprised
in the advertisement, and the Defendant, on their return
to Peterborough on the same day, gave to the Plaintiff
the particulars in writing of the property comprised in
Lots 1 and 2.

Cole.

CASES IN CHANCERY. 689

At the time of delivering these particulars to the Plain- 1857.
tifF the Defendant demanded 1^,000/. for the whole of ^^^

Skelton
the property described in the advertisements, and stated v.

that 11,000/. had been offered for it on behalf of the

Ecclesiastical Commissioners.

On the 30th of September, 1856, the PlaintiflF again
visited the property, and on the same day the Plain-
tiff's solicitor had an interview with the Defendant and
made him an offer on behalf of the Plaintiff to pur-
chase Lots 1 and 2, including fixtures, for 7,200/., subject
nevertheless to tithe payable to the rector and to quit
rents and other usual charges, but the Defendant refused
the offer and demanded 7,700/. In the course of the last-
mentioned interview the Defendant inquired whether the
Plaintiff would have any objection to pay off a mortgage
held by Mr. Tollemache on Lots 1 and 2, and to obtain
from the mortgagee the possession of the title deeds
relating thereto.

On the same day the Defendant wrote and sent to the
Plaintiff's solicitor as follows : —

" Sept. 30th, '56, Peterboro'.
" Dear Sir,

" My solicitor, Mr. Hooper, of the Temple,
London, is unfortunately unable to do any business what-
ever, having had a paralytic stroke, nor has he a partner.
Mr. Hooper is joint solicitor both for the Honourable
Hugh F. Tollemache and myself, and was constituted
receiver under the deed of mortgage in the sum of 6,100/.
remaining due to the mortgagee. The Honourable
H. F. lollemache holds all the deeds both as relates to
the Paston Estate, as well as the London property, and
they are in his own keeping, he will surrender them on
my paying him the above sum at any time. If your client
would be disposed to pay down 6,500/. in order that I

might

590 CASES IN CHANCERY.

1857. might get relieved from this difficulty (should you see
no objection to it on my part), the deeds relating to the
Paston Estate might be lodged with him, and possession
of the property given on his receiving the title, and
paying over to me, the executor of my late father, the
balance on the part he might purchase. Before going
into anything, I should wish to see the agreement of
sale.

" Yours faithfully,

*^ Maurice ColeJ'

The Plaintiff declined the proposition, that he should
advance the money to pay off the mortgage ; and on the
1st of October, 1856, the Plaintiff's solicitor had another
interview with the Defendant, and offered 7,300/., which
the Defendant refused.

At a later hour of the same day the Defendant wrote
and sent to the Plaintiff's solicitor the following letter,
enclosing a particular of the property : —

"Peterboro\ 1st October, 1856.
" Dear Sir,

" By the enclosed it will be seen that the amount

of land is 103a. Or. 8p.(a) (more or less), being one acre

more than stated in the particulars I gave your client.

I will come down 100/. on my price at 7,7(X)/., which in

fact is 175/. less than I intended to take, having put the

land at about 102 acres. Your answer will oblige

" Yours truly,

« M. Cole.''

On the morning of the following day (the 2nd of
October), which was Bridge Fair day at Peterborough the
Plaintiff met the Defendant on Peterborough Bridge, and
offered 7,5(X)/., at the same time declaring his intention

not
{a) So in the papers, but seems to be a misealculation.

CASES IN CHANCERY.

not to offer any further advance. The Defendant said
he would go to the Wentworth hotel, and make out a
memorandum or particular of the lots, and he asked the
Plaintiff to meet him at 12 o'clock of the same day with
the PlaintiflTs solicitor at the hotel. They accordingly
attended there, and the Defendant, without further hesi-
tation, accepted 7,500/. for Lots 1 and 2, and immediately
afterwards delivered to the Plaintiff the following writing,
signed by the Defendant : —

" Lots 1 and 2—Pa8ton Estate.

Lot 1.

No.

Map. A. B. p.

116 Mansion house, buildings,

garden, shrubberies, plan-
tations, &c 4 1 7

117 Park and High Close .... 17 S 24 Grass
Shepperd Close 8 3 8 Ditto

126 Howe Close and part of

Four Acre, Six Acres.. . 10 2 24 Ditto

121 Low Riding and C 2 0 23 ) ^

,/,.vr» /.r. A i.. Jin one, arable

120 Part of Four Acres t 1 1 14)

122 Low Close 8 3 4 Grass

124 Nursery 0 3 26 Wood

J 23 Garden ground 0 2 24 Arable,poorof

Pas ton
1 15 Kitchen ground 0 1 0 Ditto, house

55 2 34 .

Lot 2.

127 Peaches Close rl3 3 9^ Arable, and in

131 Ditto (9 2 36 3 one close.

134 Old Field rl8 3 10 Grass) in one

162 Busby Close (4 0 0 Ditto 3 close

46 1 15

591

1867-

Annual

592

1857.

CASES IN CHANCERY.

Annual charges against Lot 1 .

Taken quarterly, paid to Rector, Almshouses ... 15 0 0

Paid to Rector, Sermon preached 2 0 0

Taken once in 7 years, viz. 21/., Apprentice fee 3 0 0

Paid in Peterboro,' Feoffee, Peterboro* 5 0 0

Paid to Lawrance, Marquis of Exeter, Sheriff*

Field 0 16 0

25 16 0

Amount of charges against Lot 2.

Copyhold, fine certain of. 1 0 0

Brought over charges in Lot 1 25 16 0

^£26 16 0

These two lots of land make together 103a. liu 9p. (more
or less).

Lot 1, the price • jCi,950

Lot 2, „ „ 2,550

^7,500
£750 deposit. "'

** The enclosed quantities of land are taken from the
tythe commutation map at Paston, with George Holman.

" M. CoUr

On the 3rd of Octoher^ 1856, the Defendant wrote
and sent to Plaintiff* the following letter : —

" Peterboro' P. O.,
" Dear Sir, 3 October, '56.

'' I am about to relet the land at Paston for another
year up to Michaelmas, and conclude that you will agree
to it, provided you receive the rents from Lady Day
next. The house and buildings I could give possession
of at Lady Day. Will you give me a line on this sub-
ject? The Lady Day rents will be mine, and the

Michaelmas yours.

" Yours truly,

" Mr. Shelton, " Maurice Cole:'

" Binleyr

The

Skelton

CASES IN CHANCERY. 593

The Plaintiff replied by a letter, stating that the De- 1857.
fendant might re-let the grass land up to Lady Dat/j
1857, but. that he, the Plaintiff, thought the arable or
ploughed land could not be let up to that period with Cole.
profit or advantage to the Defendant.

On the 6th of October, 1856, the Defendant wrote and
addressed and sent to the Plaintiff the following letter : —

" Paston, Peterboro\

*' Dear Sir, Monday, 6th.

'' It is my intention to let the grass land as you

say, but what is to be done with the twenty-three acres of

arable as well as the small three acre piece ? As a great

part is coming beans and wheat, it would be wise that we

should let it, or that you should yourself enter upon it as

tenant to Lady Day, by which means you would have a

crop to look to at Michaelmas. I shall be glad to make

any arrangement with you respecting it. Shall be here

on Wednesday,

" Yours truly,

'' M. CoUr

The Defendant having returned from London to Peter-
borough f wrote and sent from thence on the 10th of
October, 1856, the following letter to the Plaintiff: —

" Peterboro' P. O.
" Dear Sir, Friday, 10th.

" I returned from London yesterday, and before
any agreement of sale is signed by me I shall require
references, knowing nothing of your means and sub-
stance. You had better send me two, namely, your
banker and a gentleman in your neighbourhood, with
their addresses, that I may write to them or see them, as
it will be on my way to the North.

"Yours truly,
" Mr. Skelton:' " Maurice Coler

594 CASES IN CHANCERY.

1857. On the 13th October, 1856, the PlaintiflTs solicitor

wrote to the Defendant's solicitor as follows : —

Skelton

Cole. u jjj^g jyjj.^ (j^j^ spoken to you herein or given you

any instructions.**

On the following day the Defendant's solicitor wrote
to the PlaintiflTs solicitor as follows : —

"I have received Mr. CoWs instructions upon this
subject, and hope to be able to send you the draft agree-
ment for perusal in a short time, and in the meantime I
will prepare the abstract of title."

On the 21st of October , 1856, the Defendant wrote
and sent to the Plaintiff a letter containing the following
passages : —

*' I am still unable to account for you refusing to refer
me to your bankers as I required, more particularly so as
Mr. Broughton told me that you have at this time 5,0002.
at your bankers. Having once been bitten this way, I
assure you that I shall require other references before
going into any agreement, although you may pay the 10
per cent, deposit, and which, if not given within a week
from this date, I shall consider the matter at an end.**

Some further correspondence ensued, but the Defend-
ant declined to complete, and the present suit was insti^
tuted.

The Defendant by his answer claimed the benefit of
the Statute of Frauds.

Mr. Malins and Mr. Prendergast, for the Appellant

The memorandum of the 2nd of October contains
every particular required by the Statute of Frauds, ex-
cept the name of the purchaser. That omission, how-
ever.

CASES IN CHANCERY. 595

ever; is entirely supplied by the correspondence both 1857.
preceding and following the 2nd of October. In War"
ren v. Wellington (a), the name of the lessor was omitted
in the written memorandum^ but the Vice-Chancellor
Kindersley held, that a subsequent letter^ in which the
Defendant referred to the memorandum as one which the
Plaintiff affected to consider a contract, was sufficient to
supply the defect.

They also referred to Coleman v. Upcott (6), Owen v.
Thomas (c).

Mr. Bacon and Mr. Tripp, for the Respondent, were
not called upon.

The Lord Justice Kniqht Bruce.

Independently of the Statute of Frauds, this case stands
so close to the boundary which separates negociation
from agreement, and it seems so reasonably doubtful, to
say the least, whether the Defendant ever intended to
bind himself or meant to represent himself as intending
to be bound, that it would be dangerous to exercise the
jurisdiction of the Court in directing specific performance,
especially as, if there was a contract, an action for da-
mages may be brought. It is a case in which, I need
hardly say, there has been no part performance, and the
Defendant claims the benefit of the Statute of Frauds,
and if it had rested upon the document of the 2nd of
October, it is plain, that the requisitions of the Statute
of Frauds would not have been satisfied. The circum-
stance of this document having been delivered by the
vendor to the purchaser amounts to nothing. The
doubt which I felt as to this point was upon the question

whether

(a) 3 Drew. 523. (6) 5 Viner*s Ab. 528. (c) 3 Afy/. ^ K. 353.

596 CASES IN CHANCERY.

1857. whether the previous and subsequent letters could be
taken into account to supply the defect. I have re-
peatedly looked at those documents, and, in my opinion,
they do not supply the deficiency. It is clear, that the
subject of sale, the price, and an identification of the
vendor and purchaser, must be found in the virritten me-
morandum, and of course the intention to sell must be
expressed. A portion of those necessary particulars is
absent from the document of the 2nd of October^ and
not supplied by the previous or subsequent correspon-
dence or both. In my opinion, therefore, it was right
to dismiss the bill. On the subject of costs, we will
hear the counsel for the Defendant.

The Lord Justice Turner.

This bill must, I think, be dismissed, and the only
question is, whether it is to be dismissed with or without
costs, a question remaining to be discussed. The ground
on which, I think, that the bill must be dismissed is, that
there is no memorandum or note of a contract in writing
within the provisions of the Statute of Frauds. There
are two ways of considering this point, — first, with re-
spect to the document of the 2nd of October^ and next,
with reference to the other documents relied upon.
In the document of the 2nd of October ^ there is a plain
defect, since it does not mention who is to be the pur-
chaser, nor is there any mention of a contract or a pur-
chase. The case of Warner v. Wellington (a)^ before
Vice-Chancellor Kindersley, was referred to as a strong
decision, but the case of Champion v. Plummer{b), to
which the Vice-Chancellor there refers, is more appli-
cable to the present, for in the last-mentioned case there
was, as in the present, a contract signed by the vendor,

but

(a) 3 Drew. 523. (6) 1 N. R. 252.

CASES IN CHANCERY.

but which did not mention the name of the purchaser^
and Sir James Mansfield said, '' how can that be said
to be a contract or memorandum of a contract, which
does not state who are the contracting parties ?'' I am
of opinion, therefore, that the document of the Snd of
October is not a sufficient memorandum in writing within
the statute.

597

1857.

With respect to the other documents, if they had re-
ferred to the memorandum of the 2nd of October^ it
is possible that they might have been taken in con-
nexion with that memorandum, but upon a careful
perusal of those documents, they do not appear to me to
contain any mention of or reference to that of the 2nd of
October^ and I do not see how they can be taken in con-
nexion with it. Of themselves, they are clearly insuffi-
cient to constitute a contract. On the Statute of Frauds,
therefore, the PlaintifiTs case fails.

Mr. Bacon and Mr. Tripp contended, that the appeal
ought to be dismissed with costs.

Their Lordships held, that the conduct of the Defend-
ant had not been such as to entitle him to costs, and
varied the order by dismissing the bill without costs, and
giving no costs on the appeal.

598 CASES IN CHANCERY.

1857.

YEM V. EDWARDS.

Nov 5.

Before The HpHIS was an appeal by the Defendants from a decree

^TicEs"'" ^^ Vice-Chancellor Wood^ establishing the equi-

A.y having table title of the Plaintiffs to certain lands in the Forest

made an en- ^f Dean, which were orimnally taken by encroachment
croacbment on ' ^ o .^ j

the lands of upon the domain of the Crown.

the Crown in
the Forest of

■eised'oflt, John Yem, who had made the encroachment before

leaving a will 1812, died in 1824, being then in actual possession of
devised it to ^^^ premises, and having made a will dated in the same

hit widow for year, by which he devised them to his wife Benedicta
life with re-
mainder to the Yem for her life, with remainder to the Plaintiffs in fee.

Plaintiffs. Qq j^jg jgath Benedicta Yem took possession. By the
entered into Act of 20 Car. 2, c. 3, the lands of the Crown in the
afterwards* un- ^^""^^t of Dean were made inalienable, so that it was
der the Act impossible for any person making an encroachment to
c. 42 au- acquire any title to the land he took.

thorizing the
making grants

from the In January, 1832, a commission was issued under the

Crown for J^' »

nominal con- authority of the statute 1 & 2 WilL 4, c. 12, to inquire
th^X\d°'% into the encroachments which had been made on the

the encroach- lands of the Crown in the Forest of Bean. The com-
ments, she . . 1 4. j» • J* a1_ La
procured a missioners made a report, dividing the encroachments

conveyance into different classes according to their dates, and dis-
crown to her- tinguishing the classes by colours upon a plan. The
self m fee, and encroachments made between 1787 and 1812 were

died, havmg

devised the coloured

property to

the Defendants.

Hfld^ on the construction of the statute, that it contained nothing to take the case
out of the general rule, according to which, the grant having been obtained by the
widow by virtue of a possession referable to her husband's will, must be treated in
e<|uity as made for the benefit of his devisees, and that, therefore, on the death of the
widow, the Plaintiffs were entitled to the land.

CASES IN CHANCERY. 599

coloured blue, and the premises in question fell within 1857.
this class.

By the statute 1 & 2 Vict. c. 42, s. 4, it was enacted,
that as regarded the encroachments coloured blue, the
Commissioners of Woods and Forests should, on the
application of the persons respectively claiming to be
entitled thereto, grant leases of the several encroachments
to the persons whose names were mentioned in the
references annexed to the plans as the holders thereof,
** or the persons claiming under them or otherwise," such
leases to be for three lives at rents not exceeding two
shillings per acre. By the 8th section it was enacted,
that as regarded the encroachments coloured blue or
yellow, it should be lawful for any person to whom any
lease thereof should have been granted under the act, or
who in the opinion of the Commissioners of Woods and
Forests should be entitled to have a lease granted under
the act, at any time within ten years from the passing
of the act, to purchase the fee simple of the encroachments
at a price not exceeding twenty-five years* purchase on
the amount of the rent, or if no lease had been granted,
then on the amount of rent which in the opinion of the
commissioners ought to be reserved in any lease pro-
posed to be granted. The 12th section provided, that if
any dispute should arise between two or more persons as
to their right to have a lease or conveyance of any of the
encroachments granted to them in pursuance of the Act,
such dispute should be settled as therein mentioned, the
mode of settlement being by a reference to the verderers
of the forest.

After the passing of this Act Benedicta Yem obtained
from the Crown a lease of the premises in question for
three lives, and in 1843 purchased the fee under the
provisions of the Act. The premises were accordingly

Vol. I. R R D.J. conveyed

000 CASES IN CHANCERY.

1857. conveyed to her in fee by the Commissioners of Woods
and Forests. She died in 1846, having made a will by
which she devised the property to the Defendants. The
Plaintiffs being in possession, the Defendants brought
an action of ejectment against them, upon which the
Plaintiffs filed the present bill to restrain the action,
and to obtain a conveyance of the property firom the
Defendants.

The Vice-Chancellor having on motion made a decree
granting the Plaintiflb the relief prayed, the present
appeal was brought.

Mr. Jessel for the Plaintiffs.

Mr. Dowdeswell and Mr. Southgate for the Defend-
ants referred to 20 Car. 2, c. 3, Goodtitle v. Bald-
win (a\ and the above clauses of the statute 1 & S VicL
C.42. It was admitted that in the event of the Plaintiflb'
being held entitled to jthe property, the estate of Bene-
dicta Yem had a lien upon it for the amount of purchase*
money which she had paid, but this was so extremely
small that the Defendants did not claim it.

The Lord Justice Knight Bruce.

I think this one of the most clearly groundless appeals
that I have known. A man holds land by a bad title ;
he therefore has no right to it, but he holds it claiming
it as his own, and, being in possession, devises it to his
widow for life with remainder over. He dies in posses-
sion ; and the necessary inference from the materials
before us is, that his widow entered as tenant for life.
AH this was of course immaterial to the true owner of

the

(a) 11 £«tf,488.

CASES IN CHANCERY. 601

the land; but after the testator's death his widow is 1857.
dealt with as the person in possession, and acquires a
title from the true owner. Then it is said that her heirs
can retain the estate against the remainderman under
her husband's will. It was attempted to justify this on
the language of a statute which has nothing to do with
the question, and was never intended to do anything so
improper as to give effect to such a contention. The
appeal must be dismissed with costs.

The Lord Justice Turner.

I am of the same opinion. It is admitted that the
Plaintiflfs are entitled to succeed under the general rule
of law. The question therefore is, whether the Act has
introduced a different rule. By the fourth section of
the Act leases of the encroachments are to be granted to
the persons whose names are mentioned in the reference!
to the plans as the holders thereof, or the persons
claiming under them ** or otherunse.'' This section,
therefore, leaves the question open to whom the leases
are to be granted. Then the eighth section provides for
the granting the fee to the persons to whom the leases
have been granted, or who, in the opinion of the com-
missioners, are entitled to have the leases granted. If a
lease had been granted under the Act to a trustee he
would have held it on trust — could he have claimed the
fee beneficially because the Act said it was to be granted
to the person entitled to the lease. The twelfth section,
as to the trial of rights, appears to me to apply only to
persons claiming under adverse titles, not to persons
claiming by way of trust. I think that a claim of this
description is not affected by the provisions of the Act,
and that the general law must prevail. The appeal must
be dismissed with costs.

RR2

602

CASES IN CHANCERY.

1857.

rriHIS was an appeal by the Defendants Melville,

Cotton, E. B. Lawrence and E. J. Lawrence, from

a decree of Vice-Chancellor Stuart directing specific

performance of a contract entered into by them for the

FAREBROTHER v. GIBSON.

Nov, 5.

Before The
Lords Jus-
tices.

A house was
stated in par-
ticulars or sale

to be *< in the purchase of a house.

occupation of
the C. J. Com-
pany under

a lease." The The house in question was put up for auction by the
Company were direction of the Defendant Gibson on 16th July, 1856,

in occupation ^ ^' ^

by virtue of and was stated in the printed particulars of sale to be

howe'^er\I^' "'" ^^^ occupation of the Catholic Law and General

not been Insurance Company under a lease, for a term of which

them, but to ten and a-half years will be unexpired at Lady Day,

A. B. and a, ig^Q ^t a rent of 350Z. per annum." The Appellants

who were their ^ i i i_

trustees. The wished to purchase it, and Mr. Cotton attended at the

HcltoHmme- ^^'® ^^^ ^^^' purpose. Immediately before the sale he
diately before asked to see the lease ; upon which the solicitor of Mr.
the purchaser Gibson Said that it was not there ; and further stated, in

that he did not answer to the inquiries of Mr. Cotton, who wished to
remember the , , . , i i t ^ i

names of the know to whom it was granted, that he could not exactly

recollect the names, but that he believed Dr. Magee and

Dr. Morris were two of them. Mr. Cotton then stated

lessees, but
believed that
A and B.
were two of
them. The
purchaser ob-
jected to the
title on the
ground that
the above
statement in
the particulars

amounted to a representation that the Company were the lessees: — Held^ that, as-
suming the statement to be such that if the case had stood on the particulars only
the contract ought to have been rescinded, the purchaser, having bought with the above
information, must be held to his bargaiu.

his determination not to bid, but after. conferring with
the Appellant E, J. Latvrence, who was a barrister of
some standing, he bid for the property, became the pur-
chaser, signed a contract for purchase on behalf of him-
self

CASES IN CHANCERY. 60S

self and the other Appellants, and paid a deposit of 1857.

1,260/. to the auctioneers. „ ^-""v-^^

Farbbrothbr

On inspection of the lease on 22nd July, it appeared Gibioh.
that it was granted to lit, JdageCy Dr. Morris and a
third party, who were still the holders. It was esta-
blished in evidence, though the fact did not appear on
the face of the lease, that these three gentlemen were
trustees of it for the insurance company.

The Appellants refused to complete, insisting that
the particulars represented the insurance company as
the lessees of the property, that they had purchased on
the faith of this representation, and were not bound to
take a property let, not to the company, but to three
individuals, who alone were liable to the landlord in re-
spect of the rent and covenants. The vendor, Mr. Gib^
son, then called upon the auctioneers to pay the deposit
to him under the conditions of sale. The Appellants
claiming to have it returned, the auctioneers filed a bill
of interpleader against Mr. Gibson and the Appellants.
At the hearing, the parties consenting that the matter
should be disposed of as on the hearing of a suit by the
vendor for specific performance, the Vice-Chancellor
mude a decree for specific performance with costs.

From an affidavit of the vendor's solicitor, it appeared
that in the drafl particulars of sale drawn by the auc-
tioneers, and sent to him for perusal, the property was
stated to be *'iet on lease to and in the occupation of"
the insurance company, and that he, finding the lease to
be one made to three individuals who were not shown
on the face of it to have any connection with the com-
pany, altered the statement to the form given above.

Mr. Malins and Mr. Prendergast for the Appellants.

The property is described in the particulars in such a

way

6W CASES IN CHANCERY.

1857. way as to lead a purchaser to believe that the lease was
"^^^^^ granted to the company itself so as to make it liable for
V, the rent and covenants. This is such a misrepresenta-

OiBioN. ^Jqj^ g^g ^Q entitle the purchaser to be discharged, Ridff-
way V. Gray (a). The communications before the bid-
ding cannot have any effect ; the purchaser had a right
to attend to the printed particulars only, and to neglect
what has been called *' the babble of the auction room.''
To hold otherwise would be to make previous parol
communications alter a written contract.

Mr. Wiffram and Mr. Hishp Clarke for the Plain-
tiffs, and Mr. Bacon and Mr. Erskine for the vendor,
were not called upon.

. Hke Lord Justice Knioht Bruce.

If the single question for our decision had been whe-
ther a person reading these conditions was entitled, as
between himself and the vendor, tq read the statement
before us as representing that the company was the
lessee or were the lessees in the lease, I should pro-
bably, for myself, have answered that question in the
affirmative, though the fact is not distinctly stated in the
conditions. The point having been brought under the
attention of the vendor's solicitor in the draft, in which
it was stated that the company were the lessees, I should
have been better pleased had he distinctly stated the
matter as it was. I do not, however, im^te to him any
wrong intention, but it was a mistake. Had the matter
rested here, the question might have arisen whether the
misstatement was material. Now supposing the lease to
contain the clauses usual in leases, including the com-
mon proviso for re-entry, we ought, perhaps, before con-
sidering

(a) 1 Mac. 4 6. 109.

Fakebrothbe

CASES IN CHANCERY. 006

sidering such a misstatement material, to know something 1857.
about the actual lessees, on which point the evidence is,
as I understand, an absolute blank. So fer, therefore,
as the materials before us go, the statement may possibly Gibsoh.
be regarded as unimportant. The case does not however
rest there. Mr. Cottony a solicitor of experience, and
Mr. Latcrencef a barrister of twelve years* standing,
entered the room in the belief that the conditions meant
what I have said. A communication is then made to
Mr. Cotton, which is conveyed by him to Mr. Lawrence^
and the information thereby given, if not full as to all
the particulars of the lease with respect to parties, was
more than enough to satisfy Mr. Cotton that the com-
pany were not the lessees, but that other persons were.
Mr. Cotton resolves not to bid, but after communicating
with Mr. Lawrence he does bid, and now he asks that
he may have compensation or be released from his con-
tract on the ground that three individuals are the lessees
instead of the company. I am of opinion that, whether
the purchasers are to be treated as Plaintiffs in a suit
for rescinding the contract, or as Defendants in a suit
for the specific performance of it, this appeal is without
foundation, a conclusion which I consider quite consis-
tent with all the authorities both at common law and in
equity as to the inadmissibility of parol communications
to affect a subsequent written contract.

The Lord Justice Turner.

It is unnecessary to give any opinion as to what our
decision ought to have been if the matter had stood
merely on the conditions of sale. Had the case rested
there, the Court might have refused to enforce the con-
tract; it might even have rescinded it: but the case
turns on the conversation, in which the purchaser was
informed that certain individuals were lessees. Having

inquired

606 CASES IN CHANCERY.

1857. inquired into the matter and been so informed, he must,
'''•^^>^^ I think, be considered to have bought on the faith of the

FaREBROTHER , ^ ,.1 -JJl.- 1 xl_

V. miormation be received, and having chosen so to buy,

Gibson. [jg must take the consequences.

HENRY V. The GREAT NORTHERN RAILWAY
2^01,9,10,11, COMPANY.

14, 21.

Before The HpHIS was an appeal from a decree of Vice-Chancellor

Lord Chan- -1- Wood, establishing the right of the preference

Cranworth shareholders in the Great Nortliem Railway Company

Lords Jus- ^^ receive out of the profits made in the first half of the

TicEs. year 1857, not only a dividend for that half year, but

Preference also a dividend for the latter half of 1856, which had

shares iii &

Railway Com- remained unpaid,
pany were
issued under

the provisions The material facts of the case were as follows : —

of an Act of

Parliament au- The Company was constituted by Act of Parliament
Gjmpanyto* '" the year 1846; the works of the railway were pro-
guarantee the ceeded with in the ordinary way ; calls were made and
dividends sums paid up ; but in, and previously to, the year 1849,

thereon at a ^ large amount of shares had been forfeited for non-
fixed rate m ^

preference to payment

the payment

thereof on the ordinary shares of the Company. The resolution for issuing them pro-
vided that they should bear ** 5/. percent, interest or preference dividend in perpetuity."
Other preference shares were issued under an Act of Parliament providing that the
holders should be entitled to dividends thereon at a given rate *' in preference to the
payment of dividends on the ordinary shares : '* — Held^ that if the profits at any period
of distribution were insufficient to pay in full the dividends due to the prefer^ce
shareholders, the arrears must be paid out of subsequent profits.

A subsequent Act of Parliament directed the profits of a particular half year to be
applied in replacing a loss sustained by the Company, and directed the surplus, if
any, to be applied so far as it would extend, in paying the preference shareholdert
their dividends for that half-year: — Htld^ that this Act did not take away their claim
against the subsequent profits, and that the right given them by the latter direction
was cumulative and not substitutionary.

CASES IN CHANCERY.

607

payment of the calls. In consequence of that, the
directors, previous to a meeting held on 7th June^ 1849,
made a report, in which they recommended that there
should be issued in lieu of each of the forfeited shares,
the number of which was then stated to be 26,534 (the
shares being of 25Z. each), two scrip shares of \9,l. 10«.
each, and that each of these \%L 10«. scrip shares should
have credit for 2/. 10^., as a deposit paid thereon, and
'^ should bear interest or preference dividend at the rate
of 51. per centum per annum in perpetuity/' The report
then proceeded to recommend a mode in which, and the
terms on which, these new shares should be allotted and
apportioned among the ordinary shareholders.

1857.

Hemkt
o.

The

Great

North BftN

Railway

COMPAMT.

An extraordinary meeting took place, in consequence of
this report, on the 7th of Juney 1849, and at that meeting
the following resolutions were come to : — " That the for-
feiture of the 26,534 shares be and hereby is confirmed,
and that they be sold or otherwise disposed of by can-
celling, at the discretion of the directors. That in lieu
of, and to the amount of capital represented by the
Great Northern 251. shares, of which the forfeiture has
been confirmed by this meeting, there be issued, upon
the terms and conditions recommended by the directors
to this meeting, scrip shares of 121. lOs. each, bearing
51. per cent, interest or preference dividend in perpe-
tuity." Other resolutions were passed as to another
class of shares in terms substantially the same as the
above. It was considered to be at least doubtful whether
these resolutions could be carried into effect without the
sanction of Parliament.

An Act of Parliament, which was at that time pending
for extending the works of the Company, received the
Royal Assent on the 1st of August, 1849. That act, 12
& 13 Vict, c. Ixxxiv, intituled *' An Act to amend the

Acts

608

CASES IN CHANCERY.

1857.

Acts relating to the Crreat Northern Railway, and to
make a Diversion of such Railway at Bentley-withn
Arksei/f in the West Riding of Yorkshire^ and to enlarge
the Boston^ Lincoln and London Stations of such Rail*
way,** had several objects in view, and by the S5tb section
it was enacted as follows : — ^* That in any case in which
it shall happen that the market price of shares which
may be forfeited for non-payment of calls shall be such
as to render it impossible for the Company to sell the
same so as to realize a sum equal to the arrears of calls
due upon the same, it shall be lawful for the company to
cancel the same shares, and to issue so many new sbiures,
and of such nominal amount as they may think fit; pro-
vided the capital to be represented by such new shares
shall not in the whole exceed the capital represented by
the unpaid portion of the shares which shall be so can*
celled ; and any such cancelling of forfeited shares and
issue of new shares since the 5th day of June last, in
accordance with this provision, are hereby confirmed.**

The ^th section enacte<l, *^ that it shall be lawful for
the company, with the assent of three-fifths of the votes
at any general meeting, to guarantee the payment of
dividends, not exceeding in any case seven per centum
per annum, on any particular shares which the company
may, by any of the before recited Acts, be authorized to
issue, in preference to the payment thereof on the ordi-
nary shares of the Company, and upon such terms as
shall be by the resolution of such oieeting defined: pro-
vided always, that any preference shares, which shall
have been already issued by the company, shall have a
preference or priority of dividend over the shares so
guaranteed as aforesaid, and all preference shares shall
have priority of dividend, according to the dajte at which
such shares shall have been issued." This proviso ap-
peared to have been introduced merely ear mqjori oautelif

and

CASES IN CHANCERY.

609

and in pursuance of a rule acted upon in Parliament, to
introduce that proviso as a matter of course in clauses of
that nature, lest, per incuriam, the Legislature should,
by giving preference to a new class of shareholders,
be doing injustice to persons who might have already
acquired rights by way of preference.

In pursuance of the resolution of 7th June^ 1849, and
the Act of 1849, a number of shares were issued. That
was the first issue of preference shares. At a meeting
held on 11th August, 1849, a report wa» read referring
to the resolution of 7th June, and stating that the mea-
sures authorized at that meeting had been attended with
complete success; that by a clause in the recent Act,
Parliament had sanctioned the issue of the shares con-
templated by that meeting, and that about 4,000 of them
had been taken. The report recommended the issue of
further shares to have the same privileges as those issued
under the resolution of 7th June, and it was unanimously
adopted.

1857.

Hbmrt

The

GftBAT

NoftTBBRH
RAILWA.T
COMVAKY.

In the year 1851, by the 6th section of an Act of
Parliament, 14 & 15 Vict. c. xlv, which received the
Royal Assent on the 3rd of July in that year, it was
enacted as follows : — " It shall be lawful for the com-
pany, with the assent of three-fifths of the votes at any
general meeting specially convened for that purpose, to
guarantee the payment of dividends not exceeding in any
case seven per centum per annum on the shares which
the company are hereby authorized to issue, and also on
the shares which they are authorized to issue under
' The Leeds Central Railway Station Act, 1848,' in pre-
ference to the payment of dividends on the ordinary
shares of the Company, and upon such terms as shall be
by the resolution of such meeting defined : provided, ftc."

(here

610
1857.

Hbnrt
o.

The

Great

northeem

Railway

Company.

CASES IN CHANCERY.

(here followed a proviso similar to that stated above in
the Act of 1849).

In the same year by an Act of Parliament, 14 & 15
Vict. c. cxivy that received the Royal Assent on the 24th
o{ July, 1851 y a similar power was given to issue further
shares.

On the 28th otJune^ 1853, an Act of Parliament, 16 &

17 Vict, c Ix, authorizing the raising of further capital,
received the Royal Assent, and by the 12th section it
was enacted as follows : — ^* The capital so to be raised
shall be divided into shares of 102. each, and shall bear
and receive dividends at the rate of 4Z. lOs. per centum
per annum, in preference to the payment of dividends on
the ordinary shares of the Company.** This section then,
after giving the company a power of redemption, pro-
ceeded as follows : — ** and such dividend shall be calcu-
lated upon the instalments paid upon such shares from
the time of payment of the same."

On the 2nd o{ July, 1855, another Act of Parliament,

18 & 19 Vict. c. cxxiv, received the Royal Assent, autho-
rizing the raising of further capital, and it was thereby
enacted, — " That the holders of the said shares shall be
entitled to the payment of fixed dividends thereon, or on
so much thereof as may from time to time be paid up, at
the rate of five per centum per annum, in preference to
the payment of dividends on the ordinary shares."

In pursuance of these Acts of Parliament, preference
shares, afterwards converted into stock, were from time
to time issued. The forms of the certificates given to

the

CASES IN CHANCERY. 611

the shareholders were as follows. Those issued under 1857.

the Act of 1840 were in thiar form : — "^"^^^

Henrt

" The Oreat Northern Railway Company. »•

" Incorporated 9 & 10 Vict. c. 71, 26lh June, 1846. Grb!t

" £ 5 per Cent. Perpetual Preference Stock, issued I^tbirh

under the provisions of * The Cheat Northern Rail- Company.
way Acts Amendment Act, 1849.'
" Register, No. ) Folio (Mr. (£

^' Is proprietor of this stock certificate. No. 185 ."

Those that were issued under the two Acts of 1851,
were thus : —

" The Great Northern Railway Company.
"Incorporated 9 & 10 Vict. c. 71, 26th June, 1846.
" £ 5 per Cent. Redeemable Preference Stock issued
under the provisions of * The Cheat Northern Rail-
way Acts Amendment Act, No. 1, 1851.'"

The material part of those issued under the Act of
1853 was thus: —

"4^ per Cent. Redeemable Preference Stock, issued
under the provisions of ' The Cheat Northern Rail-
way Company's Increase of Capital Act, 1853.'

Those issued under the Act of 1855 were thus: —

"The Cheat Northern Railway Company.
" Incorporated 9 & 10 Vict. c. 71, 26th June, 1846.
" Five per Cent. 121. lOs. Preference Stock, redeemable
at five per cent, premium, created on the 12th Dec.
1854, under the authority of the resolution of the
half-yearly general meeting of the 26th Aug. 1854,
and confirmed by *The Cheat Northern Railway
Act, 1855.'

« >•

The preference stocks thus issued amounted altogether

612

CASES IN CHANCERY.

1857.

to 8,413,087/., of which 796,440/. bore a dividend of four
and a half per cent., and 2,6 16,647/. a dividend at Si. per
cent. The dividends on all these preference stocks were
regnlarly paid up to the 30th June, 1856, inclusive.

In the Autumn of 1856 it was discovered that Leopold
jRedpathf the registrar of the company, had by means
of false entries, fictitious transfers and otherwise, created
from tidie to time spurious stock and shares to the
amount of about <£221/)70, which by means of transfers
to bon& fide purchasers had become so mixed up with
the genuine stock and shares of the Company that it had
become almost impossible to ascertain who were the
holders of genuine stock and shares. The account of
profits was made up to 31 December , 1856, and showed
a balance of 243,928/. 5e. Sd. for the half-year. The
preferential dividends for the half-year amounted to
85,000/. In this state of things, the directors, being
advised that no dividend could be legally declared, ap-
plied for an Act of Parliament to solve the difficulty.
This course was sanctioned by a meeting of the Com-
pany, held on 12th Marchy 1857, which also passed a
resolution authorizing the directors to apply the balance
of 243,928/. b9. 8d. to meet the losses occasioned by
RedpatKs forgeries. It was found that the bill originally
introduced by the directors could not be proceeded with,
but ultimately on 10th Avywt, 1857, " The Or^at
Nartbem Railway Company (Capital) Act, 1857" (20
& 21 Vict. c. cxxxviii) was passed. The material sec-
tions of this Act were as follows : —

Sect 1. All stock of whatever description, and all
shares in the GrecU Northern and JE!ast Lincolnshire
Railway Companies respectively, appearing upon the
registers of stock and shares of the same Companies re-
spectively on the 81st day of Jamuary and the SlsC day

CASES IN CHANCERY.

613

of March, 1857, respectively (when the said registers
were respectively last closed ), are hereby declared to be
valid, and to entitle the holders thereof to all the rights,
privileges and advantages, and to subject the holders
thereof to all the duties and liabilities, which attach to
the same stock or shares, or which would attach to the
same if they had been all legally created and issued
under the authority of the acts relating to the said Com*
panies respectively.

1857.

Sect. S. The directors shall apply the said sum of
24Sfi2SL 5s. 8d,y and any monies which shall be received
by the Great Northern Railway Company, towards re-
imbursement as aforesaid of the said losses, in repayment
of all monies expended by the said Company because of
such frauds and forgeries, and in payment of the costs,
charges and expenses resulting therefrom, inclusive of
the expense of applying for, obtaining and passing this
Act, and in purchasing from time to time at their discre*-
tion stock or shares of the said Companies in each of the '
several capitals mentioned in the said schedule, to the
amount of the several stocks or shares of the same Com-
panies respectively so fraudulently created and issued,
whether already discovered or hereafter discovered ; and
they shall forthwith cancel and extinguish the stock and
shares so purchased : provided always, that any pur-
chases of stock or shares which the directors may have
made pursuant to the said resolution of the 12th day of
March last are hereby ratified and confirmed, and the
said directors are hereby required forthwith to cancel
and extinguish the stock or shares so purchased; pro-
vided also, that after the purchase and cancelling and
extinguishing hereinbefore directed, it shall be lawful for
the Company or the directors thereof to exercise all the
powers heretofore vested in tbem for the creation and

issue

614 CASES IN CHANCERY.

1857J issue of capital, as fully as though no such stock and

"^^'^^^ shares had been so fraudulently created and issued.
Hkmrt

'^^ Sect 3. If any balance shall remain of the said sum

Northern and of the said monies af^er such application thereof as

Railway hereinbefore directed, it shall be lawful for the directors,

COMPAMT. '

and they are hereby required, to apply such balance, so
far as the same will extend, in paying to the proprietors
of the several classes of preference stock or shares the
dividends to which they would have been entitled out of
the said sum of 243,9^^ 5$. 8d. if the same been de-
clared and apportioned as dividend at the said half-yearly
meeting of the 12th day of March, 1857 ; provided al-
ways, that all the proprietors of each class of preference
stock or shares shall receive their dividends according to
the priority o£ the said class and in preference to any
subsequent class ; provided also, that if the balance re-
maining af^er payment of the dividend to preceding
classes of stock or shares is not sufficient to pay the
' whole amount of the dividend to the next subsequent
class, such balance shall be divided rateably among all
the proprietors of the same class of stock or shares ac-
cording to the amount of the same held by them respec-
tively.

The directors, immediately after the passing of the Act,
intimated an intention of proposing at the next general
meeting, to be held on 29th August, 1857, a scheme for
distribution of the profits accrued since 3 1st December,
1856, providing for a dividend to the preference share-
holders for the half-year ending 31st June, 1857, and
dividing the surplus among the ordinary shareholders,
thus treating the preference shareholders as having no
right to a dividend for the latter half of the year 1856.
The Plaintifis thereupon filed their bill on behalf of

themselves

CASES IN CHANCERY.

615

themselves and the other preference shareholders against
the Company and the directors to restrain the declaration
of a dividend on the footing proposed by the directors.
A motion for an injunction was made before Vice-Chan-
cellor Wood and by consent was treated as a motion for
a decree.

On 24th August his Honor made a decree, declaring
that the Plaintiffs and the other holders of preference
stock in the Great Northern Railway Company, on
whose behalf the Plaintiffs respectively sued, were en-
titled to be paid dividends out of the profits realized by
the Company on the amount of the preference stock held
by them respectively from 30th June^ 1856, according
to the amount of dividends which the several classes of
preference stock respectively carried, before any payment
in respect of dividends or otherwise was made to the
ordinary shareholders. An injunction was granted to
restrain the Company from paying dividends to the
holders of ordinary stock without first providing in manner
therein mentioned for the rights of the holders of pre-
ference stocL And it was declared, that, according to
the true construction of the third section of the Great
Northern Railway Company (Capital) Act, 1857, the
remedy thereby given to the preference shareholders was
cumulative and by way of security to them for the amount
of their dividend, and not in substitution of such dividend.

The Defendants appealed from this decree.

Mr. Daniel, Mr. Cairns, Mr. Speed and Mr. Turner
for the Plaintiffs, in support of the decree.

Before proceeding to the construction of the Act of
1857, it is necessary to consider what the rights of the
Plaintiffs are, independently of that Act. We submit
that a preferential dividend, in the absence of a context
limiting its meaning, must mean a dividend to be paid

Vol. I. S S D.J. out

1857.

Henry

The

Great

Northern

Railway

Company.

616

CASES IN CHANCERY.

1857.

out of profits, whene?er realized, before the ordinary
shareholders can receive anything. The other side say
that the right of the preference shareholders is only to
receive half yearly a preferential dividend out of the
profits of that half year, so that if in any one half year
there are no profits the preference shareholders lose half
a year's dividend. Now we have been paid up to June^
1856, but the profits for the half year ending December,
1856, have been applied as directed by the Act, and they
say that even if we can go beyond the half year we can-
not go beyond the year, and that as all the profits of 1856
have been duly applied we have no claim in respect of
our dividend due in December, 1856; for that we cannot
come against the profits of 1857.

The Defendants attempt to make a difierence between
a guaranteed dividend and a preference dividend. Now
the report of 1849, proposing the issuing of the earliest
preference shares, shows that, if any such difference
exists, it was proposed that the dividend on these shares
should be guaranteed. The report recommends the
issue of shares bearing '' interest or preference dividend**
at the rate of 5/. per cent, in perpetuity, commencing from
a certain date, thus treating a guaranteed dividend as
equivalent to interest. A promise of this nature cannot
be satisfied until payment has been made of 5/. per cent
for every year from that date. We next come to the
resolutions passed at that meeting, and they are that
shares shall be issued bearing 5/. per cent. *' interest or
preference dividend in perpetuity." Then the 86th sec-
tion of the Act of 1849 authorizes the Company to ** gua-
rantee the payment of dividends" not exceeding 7/. per
cent., with a proviso that preference shares already issued
by the Company should have priority.* There were not in
fact at that time any preference shares, this proviso being
a common form always introduced ; but it is clear from

the

CASES IN CHANCERY.

617

the section and proviso together, that the legislature un-
derstood preference shares and shares with a guaranteed
dividend to mean the same thing. Then, in the report
presented to the meeting of 11th Avgust, 1840, the
directors inform the shareholders, that they have shares
ready to be issued under the resolution of 7th June, the
issue of such shares having been sanctioned by parlia-
ment, thus clearly telling them that the shares to be
issued were such as were determined upon by that re«
solution. The meeting confirms this report. The next
document is the certificate issued. Before proceeding to
its construction, consider what we might expect to find
in a document issued under such circumstances. The
avowed object of issuing these shares was to raise money
for the benefit of the Company. We might expect then
to find, that the nature of the shares was such aa to
induce the public to advance money on them, that they
would offer the advantages of a certain investment and
fixed income, instead of the risk and fluctuation attend-
ing ordinary shares. The words of the certificates are
not the best that might be used, but are reasonably clear;
they import a promise to pay 5/. per cent, per annum
out of profits from 1st July, 1849, and contain nothing
to cut down the right of the holder to receive it out of
the profits whenever they accrue.

The second class of preference shares stand on exactly
the same footing, the only reference to time in the certi-
ficate being to the date of issue, and the other documents
being precisely similar to those in the former case. As
to the third class, the case turns solely on the words of
the Act of 1853, which are quite clear, and those of the
Act of 1855, relating to the fourth class of shares, are
still stronger.

We contend, therefore, that we should be entitled, if
necessary, to claim arrears as against profits in the same

S S 2 way

1857.

618

CASES IN CHANCERY.

1857.

Henry
o.

The

Great

Northern

Railway

Company.

way as a creditor could claim interest. To show the
results to which the argument of the Defendants, that we
are not entitled to anything, unless we can get it half-
yearly out of the profits of that half-year, will lead, let
us look to the provisions of the Companies Clauses Con-
solidation Act. The 115th and 116th sections provide
for the keeping and balancing the accounts ; the 120th
provides for the declaration of a dividend. According to
this section, it rests with the shareholders (and so prac-
tically with the ordinary shareholders, who must gene-
rally be a large majority), whether a dividend shall be
declared or not. Now suppose two classes of preference
shareholders, one having priority over the other. The
directors resolve upon some extraordinary expenditure,
which leaves for that half-year profits enough to pay the
first class, but not the second. A dividend to the first
class is declared and paid ; then, on the Defendants' con-
tention, the second class of preference shareholders lose
their half-year's dividend, the excess of profit occasioned
in the next half-year by the extraordinary expenditure
enuring to the benefit of nobody but the ordinary share-
holders. Again, there is nothing which makes it com-
pulsory on a meeting to declare a dividend at all. If
then the extraordinary expenditure of any half-year
leaves the profits of that half-year sufficient to pay the
preference shareholders, but not to pay any dividend to
the ordinary shareholders, it is the interest of the latter,
if the argument of the Appellants is right, that no divi-
dend should be declared, for thus the preference share-
holders lose their half-year's dividend, and the ordinary
shareholders get the benefit at the next division of pro-
fits. If such be the law, the preference shareholders,
who generally form a small minority in a Company,
are placed very much at the mercy of the ordinary
shareholders, and the supposed certainty of income,
which is the great inducement to take shares of this

nature,

CASES IN CHANCERY.

619

nature, is done away with. The preference share-
holders are no doubt, like other shareholders, subject
to the powers given to the directors, by sect. \22 of
the Companies Clauses Consolidation Act, 8 Vict, c. 16.
If^ therefore, in any half-year the directors, in the bon&
fide exercise of their discretion, retain to meet contin-
gencies the sum which would otherwise be applicable to
a dividend, the preference shareholders cannot complain,
and cannot insist on being paid at the end of that half-
year ; but how does it follow, in the absence of special
contract, that they can be told at the end of the next
half-year, that they are only to receive half a year's
dividend.

1857.

Hbnrt

The

Great

Northern

Railway

CompAnt.

But although we contend that our right is to be paid
up our fixed income from the first, whenever there are
profits to pay it, it is not necessary for the purposes of
the present case to take so high a ground. The scheme
under the 120th section of the Companies Clauses Act,
8 Vict. c. 16, is to provide for the appropriation of the
profits accrued since the time when the laist dividend was
declared. Now no dividend has been declared since
June, 1856. The next scheme must therefore include
the profits accrued from June, 1856, to June, 1857.
Those profits are amply sufficient to pay all we claim,
and how is it to be made out that in dealing at once with
the profits of a whole year, and declaring a yearly divi-
dend, only half a year's dividend is to be allotted to us ?

Then, does the Act of 1857 take away our right?
The Defendants rely on the 3rd section. But that sec-
tion enacts, that if there is any surplus of the 243,9231.
the preference shareholders shall have it : not enacting
that they are to take it in satisfaction of their claims.
The words " so far as the same shall extend " negative

the

620

CASES IN CHANCERY.

1857.

the idea of satisfaction. The clause was not intended to
abridge their rights in any way.

The case of Stevens v. South Devon Railway Com-
pany (a) shows that any ambiguity in the resolution by
which preference shares are created is to be construed
against the ordinary shareholders. Sturge v. Eastern
Union Railway Company (b) supports the same view,
and the observations there made on the meaning of the
word " guarantee '* are important.

A preliminary objection taken before the Vice^Chan-
cellor, founded on Foss v. Harbottle (c), was, and as we
submit rightly, overruled by him, on the ground that the
company, having agreed to pay certain shareholders a
fixed dividend, could not be allowed to be the judges on
the question whether it should be paid or not.

The Crystal Palace Act, 19 & 20 Vict, c. cxvii, creating
preference shares, may be considered as giving a legisla-
tive definition of " preference share;** and the Legislature
thought it necessary to introduce an express provision
negativing the right to arrears. The Oxford^ Worcester
and Wolverhampton Railway Act, 1856, 19 & 20 Vict.
c. cxxvi, appears to establish that ** preference stock/'
if it differs from '' guaranteed stock,** stands higher.

The Attorney- General f Mr. Rolt^ Mr. Denison and
Mr. Rochfort Clarke, for the Defendants.

To arrive at a just conclusion on the question at issue,
the proper meaning of the word '^ dividend" must be
borne in mind. If this be done, it will be seen that the
guarantee in the acts is confined to priority and rate of
dividend, leaving the preferential dividend, like any other

dividend,
(a) 9 Hare, 313. (6) 7 De G., M. & G. 158. (c) 2 Hare, 461.

CASES IN CHANCERY.

621

dividend, contingent on the existence of profits. A divi-
dend means a share of the profits which have to be
divided ; and if the profits have been accruing for a half
year, the dividend of a preference shareholder is the
share to which he is entitled of the profits of that half
year, according to the conditions and subject to the limi-
tations under which his shares have been created. To
talk of arrears of dividend is an absurdity, if the meaning
of the word dividend be attended to.

1867.

HBNaT

«.

The

Grbat

North BRN

Railway

COMVAMT.

Upon the true construction of the Acts the obligation
is to divide the profits according to a certain rule, and
so often as this is done the obligation of the guarantee is
up to that time discharged. The right of a preference
shareholder may be said to be a right to bring a cup of
a certain measure to be filled at each dividend meeting,
if there be enough to fill it.

From the concluding part of the 70th section of 11 &
12 Vict. c. cxiv, it is clear that the Legislature did not
understand by "guarantee** an absolute contract binding
the Company at any period of time. In the 26th section of
12 & 13 Vict. c. Ixxxiv, the word interest does not occur.
Power is given to the Company to guarantee a " divi-
dend'* at a certain rate. Read this according to the true
meaning of " dividend/' as saying ** guarantee a division
of profits," and it is clear that the guarantee is conditional
on there being profits to be divided. If you apply any
other rule, and treat the preference dividend as in the
nature of interest, there is no reason why a preference
shareholder should not, on the failure of profits in 1857,
call on the ordinary shareholders to refund those of
1856. The same observations apply to the two Acts of
1851, 14 & 15 Vict. c. xlv, s. 5; 14 & 15 Vict c. cxiv,
ss. 10, 11, 12. Then, in the Act 16 & 17 Vict. c. Ix,

8.12^

CASES IN CHANCERY.

623

On the preamble of the Act two things appear, —
firstly, that^ owing to Medpath's forgeries, things had been
brought into such a state that no dividend could be declared,
it having become impossible to distinguish the forged stock
from the genuine ; secondly, that the net residue of profits
for the latter half of 1856 v^as enough to pay the pre-
ference shareholders in full, and leave a dividend for the
ordinary shareholders. Then the first section of the Act
makes valid all the spurious stock. The whole mass
was tainted, so that nobody could prefer any claim : Par-
liament restores the mass to life from 31 Jantuiry, 1857»
but the language is prospective only ; not saying that the
shareholders shall have the rights which they would
have had if their stocks had been originally valid. There
can, therefore, be no claims to the 24S,923l,, except so
far as expressly given by the Act. The declaration of a
dividend being impossible, this sum it may be said was
no man's money. The Act then proceeds to deal with
it as the fund which ought to be applied in making good
the loss mentioned. in the preamble. It is quite. contrary
to the spirit of this enactment to suppose that Parliament
meant to deal with the sum on such a footing as to leave
the preference shareholders creditors for whatever portion
of it was taken away from them. The preference share-
holder is a partner, not a creditor ; he has a preference
in the division of profit, but no claim except as against
profit, and no immunity from losses.

1857.

Henry

The

Orbat

Northern

Railway

Company.

So far as to the general scope of the Act. Now let us
notice the language of the 3rd section. We submit that
it amounts to a parliamentary order of dividend. The
fair interpretation of this section is, that what it directs
is intended to be equivalent to what would have been
done if the 243,000/. could have been legally appro-
priated as dividend, in which case the right to dividend
would have been satisfied. It is contended on the other

side.

684 CASES IN CHANCERY.

1857. side, that the words^ " so far as the same will extend,**

^•^^^^^ are inconsistent with this view, but those words were

H EM tLlt

y^ evidently inserted to avoid interfering with the relative

The priorities inter se of the different classes of preference

NoRTHEaw shareholders.

Railway

COMPAMT.

Now as to the argument based on the 180th section
of the Companies Clauses Act, the Vice-Cbancellor held
that, under that section, the scheme for division of profits
must go back to the last time when a dividend was de-
clared, i. e. in this case to June, 1856, and that, there-
fore, the division of profits in Junef 1857, must embrace
the profits for a year, and the dividend must be a yearly
one. This, we submit, could not be done in the face of
the Act of 1857, for to do so would be to represent the
profit now divisible as attributable to the whole of the
year, from June, 1856 to June, 1857, whereas the profits
for the latter half of 1856 had been ascertained and
realized, and had formed the subject of a separate report,
and been disposed of by Parliament. After this the
profits divisible in June, 1857, must be treated as at-
tributable only to the half-year then ending, and a half-
yearly dividend only can be declared.

The Plaintiffs say, that if in case of deficiency the
preference shareholders are not entitled to arrears out
of subsequent profits, the result is that the Company
can by a resolution at any half-yearly meeting, without
any ground but their own will, defeat the right of the
preference shareholders to a dividend for that half-year
by declining to declare a dividend. We submit that this
is not so, and that such an attempt could only be made
by a palpable, discoverable, and therefore remediable,
fraud. If for a good reason the Company think fit not
to declare a dividend, the preference shareholders, who
are partners, not creditors, have no right to complain.

The

CASES IN CHANCERY.

625

The C6th section of the Companies Clauses Act provides,
that ordinary meetings shall be held half-yearly or at
prescribed periods. The 90th and Qlst sections point
out the general powers of the directors^ the declaration
of dividend not being one, that being reserved to the
general meetings. We then come to the provisions as
to the holding of meetings. The 1 16th section makes
it imperative that the account shall be made up before
every general meeting ; the 120th provides, that a scheme
shall be made out for apportioning the profits before
every meeting at which a dividend is intended to be
declared, but clearly leaves it open whether a dividend
shall be declared or not. The I22nd shows one reason
why the declaration of a dividend is not compulsory ; it
empowers the directors to set aside such sum as they
may think proper to meet extraordinary expenses. The
rendering a balance-sheet is, therefore, compulsory,
though the declaration of a dividend is not. Now the
balance-sheet produced at any half-yearly meeting can
only be a balance-sheet for the last half-year (sect. 118),
because there must already have been a balance sheet
for the next preceding half-year. The balance-sheet
for Christmas, 1856, in the present case, shows a
balance of 243,923/., but does not declare it profit. On
the 120th section it is material to observe, that a divi-
dend is to be paid according to the period during which
the amount of call may have been paid, so that a shares
holder does not in all cases receive a dividend for the
half*year. Now we are not concerned with the question,
whether if an account were rendered, showing a profit,
and the directors resolved to retain the whole of it, so
that no dividend could be declared, that would bar the
claim of the preference shareholders. Neither is it
necessary to contend, that if there are no profits, and it
is, therefore, resolved at the meeting, that there shall be
no dividend, this would be equivalent to a declaration

1857.

Henet

The

Great

North EEV

Railway

COMPAMT.

626

CASES IN CHANCERY.

1857.

Hbnrt

The

Great

Northern

Railway

Company.

of dividend, so as to satisfy the demand of the preference
shareholders, though we submit that it would. We do
contend, however, that on the true construction of the
l^th section, if, at Christmas, 1856, there be a balance-
sheet showing a profit of, say 10,000/., while there are
several classes of preference shareholders entitled among
them to ^,000/., and the 10,000/. is only enough to pay
the first and second class, leaving nothing for the third,
and nothing for the ordinary shareholders, and the
directors present a scheme, which the meeting approves,
for paying a dividend to the first two classes, leaving
nothing for anybody else, then this will be, within the
terms of the l^th section, a *' meeting at which a divi-
dend was declared,'' and the scheme to be presented at
Midsummer, 1867, can only be a scheme for dividend
from Christmas, 1856. There is thus a loss to the lower
class of preference shareholders ; but this is quite
different from the contention, that if profits are shown,
the Company can of their own mere will defeat the
right of the preference shareholders to receive a dividend
from it.

Now, as to the construction of the contracts under
which the Plaintiffs claim, we submit, that the Plaintifl^
cannot substantiate a claim to arrears, unless it appears
that there is some clear expression used tantamount to
'< guaranteed interest," and that such an expression as
" preferential dividend" will not give a right to arrears,
for it means no more than a preference to a limited
extent in the division of the sum which has to be di-
vided. The word interest only once occurs, and that
in the premature resolution of 7th June, \S49, which
was quite ultra vires. Even there it may be satisfied
by adverting to the fact, that at that time interest was
allowed to be paid on calls, and it might fairly mean in-
terest till completion of the railway, preferential dividend

afterwards.

CASES IN CHANCERY.

627

afterwards. But be that as it may, the resolution cannot
control the subsequent Act of Parliament. The Act of
1849, sects. 25, 26, does not use the word interest, nor
does it in any way ratify the resolution of 7th June; it
only authorizes the Company to guarantee the payment
of dividends, and the certificates issued carry the right no
further. The other preference stocks stand on a similar
footing.

1857.

Henry

The

Great

Northern

Railway

Company.

The case of Stevens v. South Devon Railway Com-
pany {a) does not affect us. The guarantee was of 6/.
per cent, per annum, not saying anything about ''divi-
dend," and there was a later act, which made the matter
plain. Sturge v. Eastern Union Railway Company (i)
turned mainly on the word '' interest."

There were three Acts passed in the years 1850, 1853
and 1854, relating to the Oxford, Worcester and Wolver-
hampion Railway Company, by all of which preference
shares were created. In 1856, an Act 19 & ^ Vict. c.
cxxvi, authorized the creation of pre-preference shares ;
and, as an indemnity to the old preference shareholders,
the 9th sect, gave them in terms a right to arrears, thus
showing that the Legislature considered them to have
no such right already. The provision in the Crystal
Palace Act, which is cited against us, is explained by the
peculiar character of the undertaking, the profits of which
are much larger in one-half of the year than in the other.
So, in the Manchestei*, Sheffield and Lincolnshire Act of
1849 (IS & 13 Vict. c. Ixxxi), which consolidated
several companies, it was thought necessary to intro-
duce a clause, sect. 44, expressly giving to preference
shareholders, whose shares bad been created under
former Acts, a right to arrears.

(a) 9 Haie, 313. (6) 7 Dt G., M. ^ G. 160.

638

CASES IN CHANCERY.

1857-

Hbnrt

The

Grbat

nortbbrii

Railway

COMPANT.

It is admitted, that the word ''guaranteed" is at least
as strong as "preference." It does not occur here, but it
occurs in the Manchester ^ Sheffield and Lincolnshire Act«
yet there is an express clause giving arrears. The legis-
lature, therefore, cannot have considered that " guarantee"
in these cases imported an absolute promise to pay. The
word is also used in a very loose sense in the Great
Northern Railway Act of 1848, 11 & 12 Vict. c. cxiv,
8. 70, and in the Crystal Palace Act, sect, 6, with re-
ference to shares already existing ; but from the recitals
it is plain, that there were not, in the strict sense of the
word, any guaranteed shares in the Company, and the
Act seems indeed, from the repetition of the word " or,"
to treat " preference" as identical with " guaranteed." In
the Oxford, Worcester and Wolverhampton Act, already
referred to, the shares are spoken of as "guaranteed,"
yet arrears are given to the holders expressly as a com-
pensation for their loss occasioned by the creation of fur-
ther preference shares.

Our construction gives a more equitable operation to
the Act of 1857, than that of the Plaintiffs* does. It was
a very reasonable arrangement by way of compromise to
dispose of this 243,000/. by placing all parties when it
was paid away in the position in which they would have
been had they received their half-year*s dividends. This
would take away 21. lOs. per cent, from the bulk of the
preference shareholders, and about 3/. 10s. percent, from
the ordinary. But on the Plaintiffs' construction the
ordinary shareholders, whose stock is genuine, suffer
double damage. A quantity of forged preference stock
being made valid is set over their heads, and the reduced
amount left applicable to the ordinary shareholders is made
divisible between the forged and ordinary genuine stocks.
On the Plaintiffs' construction, the 3rd clause of the Act
of 1857 is mere surplusage, it was not wanted. The

Vice-Chancellor

CASES IN CHANCERY.

629

Vice-Chancellor held, that it gave a cumulative remedy,
but none such was wanted. On our construction, the
clause is useful, but for it the surplus of the 2^flOOL
would have gone back into the general funds of the Com-
pany, and the preference shareholders would not have
received any of it.

Mr. Daniel, in reply.

The Lord Chancellor at the close of the argument
said, ihat the question was one of great importance, and
that it was desirable that the Court should dispose of it
on general grounds, and not merely on any special
ground, if any such there were, applicable only to this
particular case, and that their Lordships, therefore,
thought it best to take a short time to consider the terms
of their judgment.

Judgment reserved.

1867,

Henry

The

Great

northeru

Railway

Company*

The Lord Chancellor, after stating the facts of the
case as far as regarded the creation of the preference
stocks and the payment of dividends thereon down to
30th June, 1856, proceeded as follows: —

^00.21.

The duty of the directors as to the declaration of divi-
dends is defined by the 120th section of the Companies
Clauses Act, 8 & 9 Vict. c. 16 (a).— [His Lordship here

read

(a) " Previously to every ordi*
nary meeting at which a divi-
dend is intended to be declared,
the directors shall cause a tcheme
to be prepared, showing the pro-
fits, if any, of the company for
the period current since the last
ordinary meeting at which a divi-
dend was declared, and appor-
tioning the same or lo much

thereof as they may consider ap-
plicable to the purposes of divi-
dend among the shareholders ac-
cording to the shares held by
them respectively, the amount
paid thereon, and the periods
during which the same may have
been paid, and at such meeting
a dividend may be declared ac-
cording to such scheme."

630

CASES IN CHANCERY,

1857.

Henrt
o.

The

Great

Northern

Railway

Company.

read that section.] — Ordinarily dividends have (in this
Company at least) been declared half-yearly, in respect
of the profits realized up to the 30th of June and the
31st December in every year. On the 31st December^
1856, there was a sum of 243,9231. Bs. 8d. realized
profits, which would have been divisible in dividends but
for the circumstances which have given rise to this liti-
gation,— I allude to the frauds of Redpath, one of the
officers of the Company. Before any division of this
large half-yearly accumulated profit, it was discovered
that frauds to an enormous amount had been perpetrated
by Redpath, who had, by a long-continued system of
forgeries, created fictitious stock in the books of the
Company, to an amount of above 22lf0O0L, and this
fictitious stock had been so transferred and mixed up
with other good stock as to have become incapable of
separation, or at least to have been considered so to have
become. The directors were therefore unable to proceed
in the manner pointed out by the statute for enabling the
shareholders to declare a dividend. No dividend could
be declared on the fictitious stock ; and it was impos-
sible to say which stock was genuine and which was
fraudulent.

In this dilemma the directors applied to Parliament to
cut the knot, and obtained, in the last session of Par-
liament, an Act intituled ''An Act to make Provision
with respect to Capital fraudulently created in the Cheat
Northern and East Lincolnshire Railway Companies."
By the 1st section of the act, the fictitious stock and
shares were declared to be valid, and the holders were
declared to have all the rights and privileges attaching to
stock legally created. But, as this would have the
effect of unduly increasing the amount of capital, it is
provided in sect. 2, that the directors shall apply the
243,9^3/., in purchasing up a quantity of stock equiva-
lent

CASES IN CHANCERY.

631

lent to that which had been fraudulently created by Red--
path, and in otherwise making good the losses occasioned
by his frauds. The effect of this was, that there was no
longer any fund divisible for profits accrued in the period
from 30th of June, 1856, to 31st of December, 1856;
but in the next half-year, (that is, in the half-year ending
the 30th of June, 1857,) a farther sum has been realized
for division, amounting to 200,000/., or thereabouts.

1857.

Hbnrt

The

Great

Northern

Railway

CoMFANT.

What, then, is the duty of the directors in respect to
this sum ? That depends entirely on the same 120th sec-
tion of the Companies Clauses Consolidation Act, to which
I have already referred. The directors are, by the express
provisions of this clause, bound to prepare a scheme, ap-
portioning the sum realized among all the shareholders,
according to their respective rights. The profits to be
apportioned are, the profits for the period current since
the last preceding declaration of dividend. If that period
is half-a-year, then half-a-year's dividend would be due ;
if a whole year, then a whole year's would be due. In
the present case the period is a whole year ; and, there-
fore, the shareholders are entitled to a whole year's divi-
dend, unless there is something in the act of last session
to interfere with that right. I can discover nothing of
the sort in that Act. The first section, as I have already
stated, legalizes the fictitious stock. The second section
directs an appropriation of the sum realized for profits up
to 31st December, 1856, which, but for such direction,
could not have been made.

These provisions certainly do not touch the question
as to how the profits to be apportioned after June, 1856,
should be applied ; but the argument of the Appellants,
so far as it rested on the eflfect of the Statute, was founded
mainly on the third section.

Vol. I. T T D.J. By

6S2

CASES IN CHANCERY.

1857.

By that section it is enacted^ *'\( any balance shall
remain of the said sum " (that is^ the sum of 24iSy923L),
''and of the said monies afler such application thereof as
herein before directed" (that is, the application of it in
purchasing stock and clearing off RedpaiKs frauds)^
** it shall be lawful for the directors, and they are hereby
required to apply such balance, so far as the same will
extend, in paying to the proprietors of the several classes
of preference stock or shares, the dividends to which
they would have been entitled out of the said sum of
£43,9^^ '5«. M., if the same had been declared and
apportioned as dividend at the said half-yearly meeting
of the 12th day of Marchj 1857 : provided always, that
all the proprietors of each class of preference stock or
shares, shall receive their dividends according to the
priority of the said class, and in preference to any sub-
sequent class : provided also, that if the balance remain-
ing after payment of the dividend to preceding classes
of stock or shares is not sufficient to pay the whole
amount of the dividend to the next subsequent class,
such balance shall be divided rateably among all the
proprietors of the same class of stock or shares, ac-
cording to the amount of the same held by them re-
spectively."

It was contended, that the effect of that section, either
alone or together with the others, is, to confine the right
of the holders of privileged shares, so far as relates to
profits accrued between the 30th oi June and the 31st of
December f 1856, to the balance, if any, of the 243,000/.,
which should remain after making good RedpatKs frauds.
But what foundation is there for such an argument? I
will not say that such an enactment would have been
unjust. The whole act was a compromise, rendered, or
supposed to have been rendered, necessary by RedpaiKs

frauds ;

CASES IN CHANCERY, 683

frauds; and if, therefore^ the legislature had said in ex- 1857.

press terms, that the future declarations of dividend were ^T"^^

. Henet

to be made as if the 243,000/. had been applied in satis- «.

faction of the profits accrued for the half-year next fol- Great
lowing the 30th of June, 1856^ and that the future profits Northern
should be deemed to be profits accrued, not, according to CoMPAiiY.
the l^th section of the General Act, for the period current
since the last declaration of profits, but for the period cur-
rent since the 31st of December, 1856, then indeed there
would have been good ground for the argument of the
Appellants. But I do not so construe the Act ; and if I
am right in assuming that, irrespective of the Act, the
duty of the directors would, on the next declaration of
dividend, be to apportion the sum then divisible as a sum
representing the profits for the period current since June,
1856, which would give the privileged shareholders the
right to a year's dividend, that right cannot be taken from
them, unless an intention to deprive them of it is posi- 4
tively stated, or clearly deducible from the language of
the Legislature. I do not so construe the clause in ques-
tion. It merely provides that the balance, if any, of the
S4<3,000/. shall go as the whole would have gone if
there had been no default. The object of the Act was to
give validity to the shares fraudulently created, and to
enable the directors to apply the existing fund in re-
ducing the capital to its proper amount. Wh^t would
be the amount required for such a purpose was uncertain ;
it might not be so large as to exhaust the whole of the
243,000/. ; it was therefore necessary to enact how the
surplus, if any, should be applied. If there should be
no surplus, then the funds of the Company would be
dealt with as if no divisible fund had existed on the Slst
of December y 1856, aind the consequence would be that the
next division of profit would be made on the fund realized
since the 30th of June, 1856. The only effect of the 3rd

T T 2 section

6S4 CASES IN CHANCERY.

1857. section is, to authorize the application of a particular
^TT"^^ balance, if any should exist, in the same way as if it
V, had been appropriated for division by a regular vote of a

G T general meeting. The clause does not say that for all
Northern purposes it is to be deemed that an apportionment of
Coif PANT, pi'ofits had been made by the resolution of the 12th
March, 1857. The Legislature contemplated the possi-
bility of a surplus, and therefore provided for its applica-
tion, if it should exist. If there should be no surplus,
then the 3rd section may be struck out of the Act, and
it is impossible to suppose that the Legislature meant
that the right of the preference shareholder should de-
pend on the accident of whether there should or should
not be a surplus — a matter which could not be ascer-
tained till possibly a distant day.

I think it clear, therefore, that there is nothing in the
Act of last session to interfere with the right of the pre-
ference shareholder to receive a year's dividend out of
the sum ascertained by the directors to be the amount of
profits applicable to dividend since the last declaration
of dividend in respect of profits which accrued up to the
30th oiJune^ 1856. It is from that date that the dividend
is to be declared, and the sum out of which the dividend
is to be declared is more than sufficient to produce the
full amount of the dividends payable to the holders of
the privileged shares, and this is all that practically con-
cerns the parties in this litigation.

But the decree goes further. It declares '' that the
Plaintiffs respectively, and the other holders of prefer-
ence stock in the Oreat Northern Railway Company
on whose behalf they respectively sue, are entitled to be
paid dividends out of the profits realized by the Com-
pany on the amount of preference stock held by them

respectively.

CASES IN CHANCERY,

635

respectively^ from the 30th day oi June, 1856^ according
to the amount of dividends which the said several classes
of preference stock respectively carry before any payment
in respect of dividends or otherwise is made to any of the
holders of original ordinary stock, A. stock and B. stock
in the said Company, or any of such stocks, out of such
profits. And it is ordered, that a perpetual injunction
be awarded to restrain the Defendants, the Oreat
Northern Railway Company, from declaring any divi-
dend on the original ordinary stock, A. stock and B.
stock, in the said Company, or any of such stocks, or
any part thereof respectively, without regard to the
rights of the Plaintiffs respectively, and the other holders
of preference stock on whose behalf they respectively
sue, to be paid in priority the full amount of the divi-
dends payable upon or in respect of the preference stock
held by them respectively, to be computed from the 30th
day of June, 1856, and from making or causing to be
made any payment for dividend or otherwise to any of
the holders of original ordinary stock, A. stock and B.
stock, in the said Company, or any of such stocks, with-
out first paying or providing for the payment to the
Plaintiffs respectively, and the several other holders of
preference stock in the Company, on whose behalf they
respectively sue, of the full amount of the dividends pay-
able upon or in respect of the preference stock held by
them respectively, to be computed from the SOth day oi
June, 1856."

1857.

He NET

The

Grbat

Northern

Railway

Company.

It is necessary, therefore, for us to say whether that
declaration, and the consequential directions, are right
— in other words, whether, if the sum to be divided at
any period of distribution is insufiicient to pay in full
the dividends due to the holders of preference shares,
they are entitled on the next declaration of dividend to
receive the arrears unpaid as well as the new dividend.

The

6S6

CASES IN CHANCERY.

1857.

The Vice-Chancellor decided in the affirmative ; and, as
I thinky correctly.

The difficulty arises from the want of a specific and
distinct definition as to the extent of the rights conferred
on each particular class of shareholders by way of pre-
ference. The Plaintiffs say^ the right of a shareholder
who is entitled to a dividend by way of preference is, to
receive his dividend out of all profits firom time to time
accruing, and to carry over his demand for any unpaid
arrears to all subsequent divisions of profit. The De-
fendants say that he has no right upon any fund, save
that actually under distribution, and that if that fund is
insufficient to satisfy him, he has no claim on any sub-
sequent profits.

The expressaon " preference shareholder*' is equivocal.
It by no means clearly indicates what are the rights of
those to whom it applies. I do not think it can fairly
be said to be an inaccurate expression, whichever of the
two constructions be put upon it All which the language
fiurly imports is, that some preference is given to the
persons to whom the language applies. How far the
preference is to extend must be ascertained by other
media than the mere expression itself.

It was argued that the word ^* dividend" must be taken,
ex vi termini, to apply merely to the one fiind tox be
divided, and that it could not in its true meaning be ex-
tended to any fund afterwards to be brought into division.
But it must be observed that the word '^ dividend,** as
used in this and similar cases, is never used with strict
accuracy, if strict accuracy depends upon its primary
meaning. The word " dividend/* if we look to its deri-
vation, means obviously the fiind to be divided, not the
share of any particular partner or person in that fund,

and

CASES IN CHANCERY.

687

and strict language would require us to speak, not of the
dividend which any shareholder receives^ but of his
aliquot portion of the dividend, This^ however^ is
rather a verbal or grammatical than a substantial discus-
sioUy and I advert to it only for the purpose of showing,
that in construing the clauses in these Acts, which give
to certain shareholders, in preference to others, rights to
dividends, we must construe the word ''dividend" in a
secondary sense, and not according to its strict original
meaning. And, acting on this view of the case, I have
come to the conclusion, that what these Statutes^ in fact,
guarantee to the favoured shareholders is, a charge on
all accruing profits at the stipulated rate, before anything
is divided among the ordinary shareholders. This is,
substantially, interest chargeable exclusively on profits.
There is nothing in such a use of the word ** dividend"
which is at all at variance with ordinary usage. We
speak of the dividends payable upon the 3 per Cents.,
when in truth we mean no more than an annuity of 3L,
chargeable upon and payable out of the public revenue.

1857.

Henrt

The

Great

Northern

Railway

Company.

But the strong ground on which I rest in support of
this construction is, that on any contrary hypothesis the
Legislature would not unfrequently place the interest of
the directors in conflict with the duty they owe to the
shareholders. Thus, before the directors propose a fiind
to be apportioned by way of dividend among the share-
holders, they may and ought to set apart any sum which
they may think reasonable to meet contingencies, or to
enable them to enlarge or improve the works. It is
expressly provided by the 122nd section of the Com-
panies .Clauses Act, — " Before apportioning the profits
to be divided among the shareholders, the directors may,
if they think fit, set aside thereout such sum as they may
think proper to meet contingencies, or for enlarging,
repairing or improving the works connected with the

undertaking

638

CASES IN CHANCERY.

1857,

undertaking or any part thereof, and may divide the
balance only among the shareholders." It is obvious
that the question, what amount it may be reasonable to
set apart for such a purpose, must often be one of great
nicety ; and in deciding it the directors may have to de-
termine whether the fund retained may or may not be so
large as to make the divisible surplus insufficient to pay
the privileged shareholders in full. The consequence of
such an appropriation may be to deprive them of a por-
tion of their dividend^ and, on the other hand, materially
to increase the next half-year's dividend, so as to leave a
large surplus for the general ordinary shareholders. If
the loss on the former dividend is not to be carried on
and made good out of the next apportionment, it is
obvious that the relative rights of the different classes of
shareholders may depend on the discretion of the di-
rectors— a state of things which the Legislature could
hardly have intended. If the directors are, as probably
they will be, ordinary shareholders, they will have an
interest so from time to time to set aside portions of their
funds for the benefit of the Company in the next half-
year, as to prevent the preference shareholders from
receiving a dividend in full, and they will thus create a
larger fund for division on the next occasion, the entire
benefit of which, on the argument of the Appellants, will
accrue to the benefit of the ordinary shareholders.

I am aware that it will always be the duty of the di-
rectors to fix the amount of the fund retained with
reference to the general interest of all classes of share-
holders, and not to favour any one class at the expense
of the other. But when I see that on one constnyi^tion of
these Acts the Legislature will have given to the directors
an interest in opposition to their duty, and that on the
other construction they will not have done so, I am led

strongly

CASES IN CHANCERY-

639

strongly to believe that the latter is the sounder interpre-
tation.

The same reasoning is also applicable to the duty of
the directors under section 1^. There is no time fixed
at which dividends are to be declared, and if at the end
of any particular half-year the fund for division should be
little more than nominal, prudence would, or might, lead
the directors to postpone the taking of any step towards
the declaring of a dividend until a subsequent period.
But if by declaring a dividend when the fund is merely
nominal the claim of the preference shareholder is cleared
up to time of the distribution, it is obviously the interest of
the ordinary shareholders that such a declaration should
be made, so that here too the interest of the directors
as ordinary shareholders may be in conflict with the
duty they have to perform towards all persons interested^
including the preference shareholders.

1857.
Hbnrt

The

Great

Northern

Railway

COMPAMT.

These anomalies are all avoided if we hold that the
preference given by these statutes confers a right to
receive dividends at the stipulated rates, not only out of
the profits accrued when the dividend is declared, but, if
they are insufficient, then out of subsequent profits. On
such a construction, which the language well justifies,
there can be no inducement to the directors, either
unduly to set aside funds for enlarging the works with a
view to future profit, or to propose a dividend when
there is no substantial fund for distribution. The
rights of those entitled to preference will be effectually
secured, and the interests of the directors cannot be
brought into inconvenient conflict with their duties.

I therefore concur with Vice-Chancellor Wood in the
conclusion at which he arrived ; namely, that if on the
declaration of a dividend the fund to be divided should

CASES IN CHANCERY.

641

as^ for instance, a dividend declared at Lady Day, 1856,
for the time between that and the preceding Michaebnoij
which does not give a stockholder of 10,000^ entitled
to preference to the extent of 5/. per cent, per annum, so
much as 200L

In such circumstances, the Defendants contend, that
in respect of aU profits and dividends subsequent to
Lady Day, 1856, the preference stockholder must, as
between himself and the ordinary shareholders, stand in
the same position, and be considered to have merely the
same rights as if the Lculy Day dividend had given him
250L instead of a sum less than 200L

I think this proposition not maintainable, and am of
opinion, clearly of opinion, that, according to the true
meaning of the Acts of Parliament, resolutions, and cer-
tificates creating the title of the Plaintiffs (and the other
persons on whose behalf they are here), the ordinary
shareholders are not entitled to any dividend, or share
of profits, in respect of any time or period, until payment
or provision made for paying to the preference stock-
holders the full amount of their minimum dividend se-
verally, in respect not only of the same time or period,
but also of all antecedent time ; for example, until, in
the instance supposed, the difference between the former
dividend of the 10,000/. preference stockholder and
2501. shall, independently of any other dividend, have
been made good to him.

The phraseology of the statutes, reports and certi-
ficates, not very expanded as concerns the matter in con-
test, may be open to grammatical or philological or con- .
veyancing cavil, or, indeed, criticism; but, compared
with that of some compositions which the Courts of
Justice of this country are expected to construe, is of
absolute accuracy and perspicuous clearness.

Hay

1857.

e*z

CASES IN CHANCERy.

1857.

Henrt

The

Great

North ERtf

Railway

COMPAVT.

I lay no stress against the Defendants, though, probably,
stress might well in favour of the Plaintiffs be laid, on the
grossly unjust consequences likely, if not certain, to follow
an adoption of the Defendants' construction. Not any
such consideration is, I think, requisite for ascribing to
the language of the Acts, reports, resolutions and certi-
ficates a force adverse to the appeal. If, indeed, inten-
tion were made subservient to words, and not words to
intention, there might, perhaps, be something to be said
for the ordinary shareholders, but I do not know that
even such a wide departure from the principles of juris-
prudence would help them.

The expressions " Five per cent, perpetual," " Five per
cent, redeemable," " Four-and-a-half per cent, redeem-
able" and " Five per cent. 12L IO5. preference'* in the cer-
tificates must, of course, be read in conjunction with the
Acts of Parliament and resolutions which authorized them
respectively, and be understood as if in each case the
words '' per annum" had been inserted immediately after
the word " cent." or " centum." Of this there can be no
doubt.

The word " dividend" carries no spell with it. Ap-
plicable to various subjects, it is not intelligible without
knowing the matter to which it is meant as referring, and
of course, where there is a context, it is liable to be
affected by that context. But the Defendants' gloss
upon it seems to me arbitrary and fanciful. The word,
as used in the places in which we have now to deal with
it, means, I apprehend, ** share of profits," nor can I
. discover any necessity, authority or reason for limiting
and restricting the effect of the word "preference" as the
Defendants require it to be. The expression, where
we have to consider it, seems to me correctly used in a
large and general sense, as between or amongst the

stockholders

CASES IN CHANCERY.

64^

stockholders and shareholders, in respect of time and
profits.

A. and JB. and C are partners in a trade, each having
contributed an equal share of capital, but they agree that
out of the profits 51, per cent, per annum shall preferably
and in the first instance be paid to il. on his portion of
the capital. The division of the profits among them is
agreed to be and is periodically made. At one of the
periodical divisions the profits fall short of a sufficiency
to pay this amount to A. firom the time to which out of
the profits his interest had previously been paid. Is the
deficiency not afterwards to be made good to him firom
profits more than adequate to answer it ? I have heard
no reason why not. If, indeed, such a thing is prohibited
by the terms of the contract, they must, of course, be
abided by. Is there any such prohibition in the present
instance ? As it seems to me, clearly not.

A part of the argument for the Defendants having
been illustrated by the figure of the filling of a cup, I
may be excused for suggesting another case. Let us
suppose a right to have a tun of wine fi'om a vineyard.
Is that the same merely as a right to have a tun of wine
from a vintage? I do not think so. In the former
case the deficiency of an earlier would have to be sup-
plied by a later vintage; not so possibly in the other.
Here, as I apprehend, the Plaintiffs have the vineyard
and not merely the chance of a particular vintage to
look to.

In what I have been saying I have disregarded nor
meant to refer to the statute of the present year, except
as by the first section it enacts thus : — [His Lordship
here read the section which is set out above.] — This sec-
tion, in my judgment, must be considered both retrospec-
tive and prospective as to its effect. But then comes the

question.

1867.

Hemrt

The
Great

Northern
Railway

COMPAMT.

644

CASES IN CHANCERY.

1857.

HllTET
V.

The

Great

northbem

Railway

Company.

question, if question it should be called, as to the eflect
on the Plaintiffs' rights of the second and third sections
of the Act of the last session. And it is in my judgment
plain that, as between the Plaintiffs and the ordinary
shareholders, the legislature meant by those sections to
leave and did leave the Plaintiffs, with respect to their
rights under the first section and the former statutes and
their contracts, in the same position, as if the profits re-
presented by the sum of 243,923Z. Bs. 8d, mentioned in
the second section had not existed, or had been originally
less by the amount of such portion of that sum as should
be abstracted by force of that section. This the Vice-
Chancellor has, perhaps, better expressed in the last
declaration of his decree, in these words : — " This Court
doth declare, that according to the true construction of
the third section of the Great Nortliem Railway Com-
pany (Capital) Act, 1857, the remedy thereby given to
the preference shareholders is cumulative and by way of
security to them for the amount of their dividend, and
not in substitution of such dividend.** I adopt that de-
claration, and though not because — ^yet not the less wil-
lingly because — the claim of the Defendants to support
their appeal upon the ground, the alleged ground, that
the Act of 1857 is fatal to the suit, even though inde-
pendently of that Act the Plaintiffs would have been
entitled to succeed — is one which could not in my opinion
be sustained without casting much discredit, not only on
those who prepared and conducted the bill of 1857, but
on both Houses of Parliament also. I do not think such
an imputation deserved by either House of Parliament or
by the promoters of the bill, especially the Defendants'
solicitor Mr. Leech, whom, having had him under my
observation professionally for more than twenty years, I
consider to be an excellent man of business, that is to
say, a man of integrity as well as diligence, accuracy and
knowledge.

CASES IN CHANCERY.

645

It may be or is superfluous to add, but I will never-
theless distinctly say, that, independently of the Statute
of this year, the losses sustained by the Company through
the frauds of their servant Hedpath, whether any of those
above him neglected or did not neglect their duty, were
in my judgment most clearly losses to be» as between the
preference stockholders and the general shareholders,
borne wholly by the latter ; nor perhaps before parting
with the cause should I omit to observe that the pro-
visions mentioned in the argument which certain Acts of
Parliament relating to other Companies have made re-
specting preference dividends, appear to me altogether
immaterial for any present purpose, and that the Statute
of the 8th of the Queen, c. 16, upon which, and espe-
cially its 66th, 90th, 91st and 116th and six following
sections, much comment was bestowed at the bar, though
containing, probably, matter favourable to the Plaintiffs,
appears to me not to afford the least assistance or coun-
tenance to .the Defendants' contention.

1857.

I think the whole decree manifestly right and the
appeal unreasonable.

The Lord Justice Turner.

The question which we have to determine in this case
is, whether the holders of the preference stocks in this
Company, who are represented by the Plaintiffs in this
suit, are entitled, as against the holders of the Company's
ordinary stock, to be paid out of the net revenue of the
Company for the half-year ending the 30th otJune, 1857,
dividends upon their preference stocks from the 30th
June, 1856, or from the 31st December , 1856, only; the
Plaintiffs, the holders of the preference stocks, claiming
their dividends from the former date, and the Defendants,
who represent the holders of the ordinary stock, insisting

that

646

CASES IN CHANCERY.

1867.

Hbmrt

The

Great

Northern

Railway

Company.

that they are due only from the latter date. Upon the
facts on which this question depends there does not appear
to be any dispute. It is admitted that the Company's net
revenue for the half-year ending the 30th of June, 1857,
is more than sufficient for the payment of the full amount
of the dividends claimed by the holders of the preference
stocks^ and the validity of those stocks is not disputed.

This question depends, as it seems to me, upon three
points; 1st. What were the rights which were attached
to the preference shares (now converted into stock) under
the Acts and resolutions by which those shares were
created ? Sndly. What were the rights belonging to the
holders of these stocks under the Companies Clauses
Consolidation Act? and Srdly, Whether the rights thus
attached and belonging to these stocks have or have not
been taken away by the Act of this Company passed in
the year 1857, in consequence of RedpatKs irauds.

In order to determine the first of these questions, we
must of course examine the constitution of these shares,
of which there are four classes. The first class was
created in the year 1849. By the Act of that year it was
enacted — [His Lordship here read the 26th sect, of 12
& 13 Vict. c. Ixxxiv, set out above.]

In pursuance of this Act stock was issued, the certifi-
cates of which purported that the holder was entitled to
5/. per cent, perpetual preference stock. How the case
would have stood if it had rested upon these certificates
alone, I will not undertake to say. The certificates
plainly import that the holders were entitled to stock bear-
ing bl. per cent. ; but whether 5/. per cent interest or 5/.
per cent, dividend, or, if 5/. per cent dividend, whether
5/. per cent, dividend at certain periods or SL per cent
dividend when a dividend should be made to other share-
holders.

CASES IN CHANCERY.

647

holders, is not expressed. On the one hand, the certi-
ficates are issued by the company, and form the induce-
ment to the holders to take the stock. They ought
therefore, as I think, to be construed in favour of the
holders, and of course it must be more for the benefit of
the holders to have 5/. per cent, certain than 5/. per
cent, dependent upon a contingency. On the other
hand, they are certificates of stock, and stock carries
dividend not interest ; and dividends, it is said, must be
construed to mean portions of profits, more especially
when put in contrast with the ordinary dividend, as may
be said to be the case here by force of the word prefer-
ence. This was the difficulty to which I meant to refer
in Sturge's Case, although it was not there so clearly put
as it might have been, the passage referring to the sub-
ject being blended with observations on the Act which I
then had under consideration, and which did not, or at all
events did not prominently, present the difficulty. To
say that my mind is altogether free from this difficulty
now would be going too far. I can go no further than
to say, that I do not feel the difficulty now so strongly
as I felt it when that case was before me. I think more
weight is due to the consideration that these certificates
ought to be construed in favour of the holders, than I
gave it in that case. Returning, however, to the case
before us, it cannot, I think, be denied, that the language
of these certificates as to the 5Z. per cent, is equivocal,
and we must look to the context to explain it. Now, the
certificates refer to the Act of Parliament, and the Act of
Parliament refers to the resolutions. How then does the
case stand upon the Act. The Act, as I understand it,
empowers the Company to pledge itself to the payment
of dividends at a certain rate per cent, per annum, in
priority to the ordinary dividend. It may be admitted,
therefore, that the Act refers to payments out of profits,
Vol. I. U U D.J. but

1867.

Henrt

The

Great

Northern

Railwat

CoMPAiir.

646

CASES IN CHANCERY.

1857.

Henry

The

Great

nortuerv

Railway

Company.

but to what description of payments does it refer ? To
payments to be measured by time; and if the payments are
to be so measured, how are they to be distinguished from
interest to be paid out of profits at certain periods. It
cannot surely make any difierence^ that they are de*
nominated dividends. Take then the resolutions in con-
nection wiih the Act. It appears that there were two
issues of these shares, one before the Act, under the reso-
lution of the 7th o{ June, 1849; the other after the Act,
under the resolutions confirming the report of the 11th
August, 1849; but it appears, that the report confirmed by
the resolution of the 11th o{ August, 1849 recommended
that the shares to be created under it should be entitled
to the same privileges as the shares issued under the re-
solution of the 7th of June, 1849, and both sets of shares,
therefore, were to stand upon the same footing and to be
governed by the resolution of the 7th of June. Now, what
was the purport of the report on which that resolution
was founded. It seems to me to be clear, that the ex-
pression " preference dividend" in that report was used
in the sense of interest. It was argued, indeed, for the
Appellants, that the expression '' interest or preference
dividend'* in that report meant — interest until the shares
were fully paid up, and preference dividend afterwards.
I am by no means satisfied of this, but even supposing it
to be so, there would still remain the question, what was
meant by preference dividend after the shares were paid
up. The whole tenor of the report shows, I think, that
what was so meant was interest

It may further be observed, as to the shares created in

1849, that such of them as were created before the passing

of the Act were, as I understand the Act, confirmed by the

S5th sect, of it, a section which it can hardly be doubted

had reference to the resolution of the 7th of June, as it

confirms the shares which had been issued since the 5th

of June.

Passing

CASES IN CHANCERY.

649

Passing then from the shares issued in 1849, we come
to the shares issued under the Act of 1851. I think it
quite unnecessary, however, to enter in detail into the
consideration of the question before us with respect to
these shares. The provisions of the Act of 1851 are ip
all material respects the same as the provisions of the
Act of 1849, and there is no variance between the certi-
ficates issued under the two Acts. It is sufficient, there-
fore, to say, that the observations which I have already
made as to the former shares, so far as they relate to the
Act and the certificates, ^PP^y equally to these shares.

1857.
Hbnrt

The

Great

Northern

Railway

Company.

Then, as to the shares created under the Act of 1853.
The case of the Plaintiffs as to these shares seems to me
to be even stronger than their case as to the former
shares, for these shares depend wholly upon the provi-
sions of the Act under which they were created, and the
Act is express, that the shares shall bear and receive divi-
dends at the rate of 4/. 10^. per cent, per annum, in pre-
ference to the payment of dividends on the ordinary
shares ; and so as to the shares created under the Act of
1855, which enacts, that the holders of these shares shall
be entitled to fixed dividends at the rate of 5/. per cent
per annum, in preference to the payment of dividends on
the ordinary shares, with the modification only, that the
title shall be subject to such conditions as shall be ex-
pressed at the time of the issue of the shares, at which
time it does not appear that any conditions were ex-
pressed.

It was argued on the part of the Appellants, with refer-
ence to all these shares, that, from the relation in which
the preference and ordinary shareholders stand to each
other, their relation being that of partners, and not of
creditor and debtor, the preference shareholders could
be entitled to no other advantage over the ordinary

U U 2 shareholders

650

CASES IN CHANCERY.

1857.

Henry

The

Great

northbrn

Railway

Company.

shareholders than the priority of payment; but this con-
sequence does not seem to me at all to follow from the
relation of the parties. The position of the preference
shareholders may indeed show that what is payable to
them must be payable out of profits, but I see no ground
for saying that it shows that what is payable to them is
payable only out of the profits of the current year, or
that it at all limits their demand against the profits.
Their rights in those respects would depend not upon
the relation of the parties, but upon the terms on which
that relation was constituted.

Reference was also made on the part of the Appellants
to several other Acts of Parliament, from which it was
sought to be inferred, that the Legi^ature had assumed
that preference shareholders were not entitled to back
dividends, but the Acts referred to are later in date than
the Acts which we have had in this case to consider, and
if these Acts give the right, it cannot, as I conceive, be
taken away by inference to be deduced from later
Acts. I have, however, thought it right to look into the
Acts referred to, and I think that the provisions on which
the Appellants relied may well be accounted for on other
grounds.

Upon the whole, therefore, I am of opinion, upon the
first point, that there was attached to all these preference
shares in their creation a right to be paid out of the
profits of the Company, whenever those profits should
accrue, before any payment to the holders of ordinary
shares, the full amount of dividends at the rates men-
tioned in the certificates from the times when such full
payment had last been made.

Supposing, however, that this right did not attach to
these preference shares in their creation, it would be ne-
cessary

CASES IN CHANCERY.

651

cessary to consider how the rights of the holders of them
would stand under the Companies Clauses Consolidation
Act. By the iJ^Oth section of that Act it is enacted —
[His Lordship here read this section, which is given above
in a note to the commencement of the Lord Chancellor's
judgment.] — Where, therefore, a dividend is intended to
be made, the scheme to be prepared by the directors is
to show the profits from the period when the last divi-
dend was made, and those profits are to be apportioned
according to the shares, which of course must mean with
reference to their priority, as well as in other respects,
for otherwise no dividend could so far as I can see ever
be declared upon the preference shares. The scheme
for this dividend, therefore, was to show the profits from
June, 1856, when the last dividend was declared, and the
profits to be apportioned by it were the profits from that
period. How these profits were to be apportioned ac-
cording to the shares, having regard to the priority to
which as I have observed regard must be had, without
the dividend for the whole year being apportioned to the
preference shareholders, I have been wholly at a loss to
understand.

1857.

Henry

The

Great

Northern

Railway

Company.

Some argument was attempted to be raised upon the
other provisions of the Act, by which the accounts are to
be made up half-yearly ; but the half-yearly account, and
the scheme of dividend, are perfectly distinct matters, and
are so treated by the Act. It was said too, that there
were no profits from June to December^ 1856, for that
Parliament had by the Act of 1857 appropriated the in-
come during that period to other purposes, and the ar-
gument was even carried so far as to contend that the
Act of 1857 amounted to a legislative declaration of di-
vidend. Suppose, however, that matters had proceeded
in the regular course and dividends had been declared
half-yearly, and Parliament had in any half-year appro-
priated

652

CASES IN CHANCERY.

1857.

Henry

The
Great

NoRTHERIf

Railwat
Company.

priated the income of a week or a month to some other
purpose, could it have been contended, that the remainder
of the income was not divisible according to the shares ?
I think not ; and if the argument could not be maintained
as to such a period as I have mentioned, I do not see
how it can be good as to any portion of the period for
which the account is to be made up. As to the argu-
ment on the legislative declaration of dividend, no more,
I think, need be said, than that nothing could, in my
opinion, be more foreign to the purposes of the Act of
1857 than to impute such an intention to the Legis-
lature. I think, therefore, this point also must be de-
cided against the Appellants.

There remains then, only the question on the opera-
tion of the Act of 1857, whether it has taken away from
the preference shareholders those rights which existed
up to the moment of its being passed. I am of opinion
that it has not. After what has been already said oa
this subject, I shall say but a few words upon it. I
take it to be a sound rule of construction, that certaia
rights are not to be taken away by uncertain words.
The scope and purpose of this Act seems to me to be
plain — to reduce the capital of the Company within its
proper limits, a purpose wholly foreign to the determination
of any question between the preference and the ordinary
shareholders. If, therefore, the Legislature has done
what the Appellants contend for, it has done so, not by
any enactment designed for the purpose, but by the means
which it has used for carrying into effect a different pur*
pose. It has indeed taken away a fund which would have
been applicable to the payment of the preference dividend^
but the fund which it has taken away would also have been
applicable to the payment of the ordinary dividend. It doea
not seem to me, therefore, that the mere fact of this fund
having been resorted to can furnish any inference in

favour

CASES IN CHANCERY.

65S

favour of the ordinary shareholders. The rights of the
preference shareholders were both present and future,
present as to the fund with which the Legislature dealt,
and future as to the profits which might afterwards
accrue, and I do not see how the fact of their present
right having been interfered with can be taken to have
destroyed their future right. The Appellants, therefore,
cannot, I think, maintain their case either upon the
general scope and purpose of the Act, or upon the par-
ticular fund having been resorted to in order to effectuate
it.

1857.

It was said, however, on their part, that the misfortune
which gave rise to the Act was a common misfortune,
and that the Legislature intended that it should be borne
in common : but the Act itself contradicts this theory, for
the surplus which, according to this theory, was to go
to the preference shareholders in lieu of their dividend,
was to go to them according to their priorities, so that the
loss would fall wholly on the lower classes. Are we to
impute to the Legislature this intention, that, as between
the preference shareholders themselves, the whole toss
should fall upon the lower classes, but that as between
the preference shareholders and the ordinary share*
holders, the whole loss should not be borne by the
ordinary shareholders. Again, it was said for the
Appellants, that Parliament must have intended to suIk-
stitute the balance, which is disposed of by the 3rd
section, for the full dividend which would have been
payable to the preference shareholders, for that other-
wise the preference shareholders might be twice paid;
and this argument was also pressed as bearing upon the
second point, by creating a difficulty in the apportion-
ment to the preference shareholders from the uncertainty
what would be coming to them under this third section.
But how did this balance mentioned in the third section

arise ?

654

CASES IN CHANCERY.

1857.

HSNRT
V,

The

Great

nortrern

Railway

Company.

arise ? From a fund which was primarily applicable to
the preference dividends. Is it to be inferred that the
Legislature meant to take away other rights of the pre-
ference shareholders, because it gave back to them a
fund to which they were originally entitled ; and as to
the double payment to the preference shareholders, and
the suggested difficulty in the apportionment, of course
the preference shareholders could not be twice paid.
What, if anything, they had received under the third
section would be known to the Company and would be
deducted from what was apportioned to tbem for
dividend.

Another argument on the part of the Appellants was
that, except upon their construction of this Act, the third
clause was unnecessary ; but this argument assumes that
there would of necessity be a surplus sufficient for the
payment of all that was due to the preference share-
holders, and this the Legislature cannot, I think, be taken
to have known, and even if it did know, I do not think
that the mere fact of its having secured the fund to those
to whom it originally belonged could justify us in
adopting the inference for which the Appellants
contend.

Upon these grounds, I am of opinion, that the argu-
ment of the Appellants on this third point also is un-
tenable, and I think this Appeal must be dismissed, and
with costs.

CASES IN CHANCERY. 655

1857.

DIXON V. GAYFERE.
DIXON V. GAYFERE. '

FLUKER V. GORDON.

rr^HIS was an appeal from the decision of the Master ^or. 2,3, 20.

of the Rolls reported in the '21st volume of Mr. Before The

BeaverCs Reports (a), where the facts are stated. ^.^//^ Lq^J

Cranwortb.

The question was, whether the Appellant, who claimed puV*has an*
under the vendor of a moiety of a freehold estate, had a eaute from B.,
lien on the moiety for an annuity, which was part of the ^late^being*
consideration for the sale. conveyed, to

grant a life an-
nuity to B.^ to

By the will of Elizabeth Gordon, dated the 12th of ^^!'_!^fi^^
August f 1801, she devised her real estate to trustees that B. had no
in fee upon trusts, under which ultimately Nathaniel ^^ ^^ the***
Dunbar and Maria Finucane claimed to be entitled payment of
beneficially to the estate in moieties. Nathaniel Dun* but was en-
Jar entered into possession of the whole, and accounted ^}^^ ^\*^® P"^
, chaser being

to Mana Finucane for one moiety of the rents. In this dead and
state of things the following agreement (on which the beerfnoco*^
question arose) was entered into between Nathaniel veyance) to

7^ I 1 -mm- • -rt* have the an-

Dunbar and Mana Finucane :— „„ijy ^^^^^

by a valid and
effectual bond

" Memorandum of an agreement made and concluded before he
this 26th day of August, 1826, between Maria Finucane, ^V^ ^
of New Street, in the parish of St. John, Westminster, convey the
widow, and Nathaniel Dunbar, of the Middle Temple, "^^*
London, esquire. The said Maria Finucane being well

entitled

(a) Page 118.

656

CASES IN CHANCERY.

1857.

entitled to one-fourth part or share of certain real estate
situate at Shorne in the county of Kent, and also having
purchased from Katherine Herman one other fourth share
of the said estate, of which they the said Maria Ftnu-
cane and Katherine Herman are two of the four parties
devisees under the will and codicil o( Elizabeth Gordon,
late oi Percy Street, St, Pancras, widow: Now the said
Nathaniel Dunbar having, in the year 1819, contracted
and ^reed for certain of the said property with the said
Maria Finucane, and then and since such period having
advanced and paid various sums of money on such ac-
count, the balance whereof is settled up to this day, and
the said Katherine Herman having an unsatisfied claim
of 500/., and interest thereupon, the said Nathaniel
Dunbar has agreed to discharge the same upon having
an assignment of all the right and interest of the said
Maria Finucane in the said two fourth parts conveyed
to him in due form of law ; and upon such assignment,
and all the interest whatsoever and wheresoever of her
the said Maria Finucane under and by virtue or means
of the said will and codicil, as touching or relating or in
any manner to be derived from the real and personal
estate of the said Elizabeth Gordon, deceased, and all
benefit to be derived from the said estate or property
whatsoever, the said Nathaniel Dunbar hereby, in con-
sideration of the said assignment and conveyance of such
property, agrees to pay over to the said Maria Finucane
the further sum of 251, and to grant a certain annuity for
the payment of 50/. per annum, quarterly, upon and
for the joint lives of the said Maria Finucane, Maria
Eliza Finucane and James Francis Finucane, and the
survivor of them, to be secured by bond, and payable at
Michaelmas, Christmas, Lady Day and Midsummer in
each and every year during such lives or life ; and the
said Maria Finucane and Nathaniel Dunbar hereby
mutually agree to perform all such further acts as in law

shall

CASES IN CHANCERY.

shall be requisite for the completion of this agreement
when required. Dated the day and year first above
written. " Maria Finucane.

" Nathaniel Dunbar.''

After the execution of the agreement Dunhar regu-
larly paid the annuity until 1837, when he died intestate^
but no conveyance had been made of the legal estate.

In 1842, Maria JFtnucane died leaving all her pro-
perty, including the annuity, to her son and daughteri
from whom the Defendant Bayley, the present Appel-
lant, derived title.

The present Respondent Mr. Fluher derived title from
the co-heirs of Dunbar ^ subject to a mortgage on one of
their shares.

1867.

By the decree in the cause, it was declared that the
Defendant ^Tin Frances Elizabeth Gayfere^ as the heir-
ess at law of Thomas Gayfere^ the surviving devisee in
trust named in the codicil to the will of Elizabeth Gor-
don the testatrix, was a trustee of the estates devised by
the codicil remaining unsold for the persons and for such
shares and interests therein as were thereinafter named.
And the decree then specified the interests of the parties
in the estate, which, as to two-fourths, subject as to a
portion of them to a mortgage, was declared to be held
in trust for the Defendant Fluher, and as to two other
fourths for the Defendant Bayley. And it was declared
that the Defendant Bayley was entitled (as purchaser of
the interest of the late Defendant Maria Finucane) to
the arrears and future payments of the annuity of 501,,
and was entitled to have the said arrears and future pay-
ments properly secured according to the agreement ; and
if the same bad not been so secured, then it was ordered

that

658

CASES IN CHANCERY.

1857.

Dixon

Gatfebb.
Dixon

Gatpbbb.
Flukbb

GOBDON.

that the arrears and future payments should be properly
secured accordingly, such security to be settled by the
Judge in Chambers. And it was ordered that an account
should be taken of what was due in respect of the arrears
of the said annuity. And it was ordered that the De-
fendant Ann Francis Elizabeth Gat/fere should execute
a proper conveyance of the undivided fourth shares and
moieties of undivided fourth shares to the parties entitled
thereto according to the declaration thereinbefore con-
tained.

Under this decree it was contended in Chambers, that
the Appellant was entitled to have the annuity secured
upon the moiety sold, but the Respondent insisted that
this was precluded by the terms of the decree, and that
if it were not so, yet upon general principles there was
no lien on the estate for the annuity.

The Master of the Rolls, on the question being ad-
journed into Court, held that it was really determined
against the Appellant by the decree, and that if it had
not been, the Appellant's contention could not be sup-
ported.

The Appellant appealed both against the decree and
this consequential decision.

Mr. JR. Palmer and Mr. Goren, in support of the
appeal, referred to Tardiffe v. Scrughan (a), Remington
V. Deverall{b), Winter v. Anson (c), Hughes v. Kear-
^^(d), Mackreth v. Symmons (e), Bower v. Cooper (/),
Sugd, Vend. ^ Pur. 557 (13th edit.).

Mr.

(a) Cited 1 Bro, C C. 423.
(6) 2 Ansi. 550.
(c) 3 Ritft. 488; 1 Sim. ^ Si,
434.

(d) 1 Sch. if Lrf, 132.

(e) 15 Vet. 352.
(/) 2 Hare, 408.

CASES IN CHANCERY.

659

Mr. Lloyd and Mr. J. H. Taylor ^ for the Respon-
dentSy referred to Suckland v. Pocknell{a), Clarke v.
Royle (&)•

Judgment reserved.

ITie Lord Chancellor (after detailing the facts of
the case) said —

1857.

Dixon

Gayferb.
Dixon

Gayferb.
Fluker

Gordon.

The question is a simple one, namely, whether Mrs.
Finucane, having been entitled in equity to a moiety of
an estate, and having sold her share in consideration of
an annuity to be secured by a bond, but no conveyance
having been executed, she, or those who represent her,
became entitled to have the annuity secured by a charge
on the property sold, or in any and what other manner.

With respect to the general law on this subject, there
is no doubt that if a person sells an estate for a sum of
money which is not paid (whether it be expressed to be
paid or not on the conveyance), the seller has a lien on
the property for it. Again, there is no doubt that the
lien is not lost by the vendor taking a note or bond or
even a real security, the intention being assumed in this
Court to be prim^ facie, that if the -purchase money be
not paid the vendor shall have a lien. These are principles
not in dispute, but the question is, whether they apply to
a case in which the price consists not entirely of a gross
sum of money but in part of an annuity. That is a
question which has been often in controversy; and I
agree with the Master of the Rolls in thinking it impos-
sible to state in the abstract, either that the vendor has

always,

(r«) 13 Sim. 406.

(b) 3 Sim. 499.

660

CASES IN CHANCERY.

1867.

always, or that he has never, a security on the property
in such a case by way of lien. Whether he has or not
depends on the circumstances of each case. Several
authorities have been referred to. One was Tardiffe v.
Scrughan (a), which was a case of this description. A
man and hfs wife in the North of England being far ad-
vanced in life, and having two daughters, agreed to con-
vey their real property to their two daughters as tenants
in common in fee, in consideration of an annuity of ^/.,
to be secured to them and the survivor of them and in
consideration of the payment of the father's debts, and
the annuity was to be secured by bond. It was so
secured ; the property was given up ; the daughters paid
the annuity for some time. One of them died, and the
husband then disputed his liability to pay it any longer,
and the question was, whether the parents had a lien on
the property for the annuity? It was held they had.
Another case referred to was Remington v. Deverall^b),
of which there is only this short note — ** Upon a motion
for an injunction to stay proceedings at law, it appeared
that the Defendant had agreed to purchase an estate from
the Plaintiff for 100/. and an annuity for her life, but it
was not specified what security should be given for the
annuity, and the question now made was respecting this
security, the Defendant oflPering his bond and judgment
as sufficient. The Court decided that it should be se-
cured by being charged upon the purchased estate, as
well as by the bond and judgment of the Defendant."
Several other cases were cited, one was Matthew v.
Bowler (c).

The Master of the Rolls considered that the autho-
rities cited before him depended on their own particular

circumstances,

(a) Cited 1 Bro. C. C. 423. (c) 6 Hare, 110.

{b) 2 Ami. 550.

CASES IN CHANCERY.

661

circumstances, and did not establish any general rule.
Two of the cases referred to in the course of the argument
were decided by the Vice-Chancellor of England^ viz.,
Buckland V. Pocknell (a), and Clarke v. Royle(b\ and
in those cases the Vice-Chancellor regarded Tardiffe v.
Scruffhan (c) as having been, if not expressly overruled,
at all events disapproved of by Lord Eldon in Mackreth
V. Symmons {d). The subject is canvassed by Lord St.
Leonards in his Work on Vendors and Purchasers, and
the conclusion at which I have arrived on all the autho-
rities is, that the Master of the Rolls is right in saying
that no general rule can be laid down, and that we must
be guided by the circumstances of each particular case.
I not only concur with the Master of the Rolls in
thinking that there is no lien of necessity in the case of
a sale for an annuity, but I agree also in the opinion that
the circumstances of this case exclude the notion that the
parties could have so intended, and I come to that con-
clusion very much on the same ground as his Honor,
namely, that it could not have been intended to make a
purchase of an estate, so that it would be inalienable for
so long a period as that of three lives. When the pur-
chase money is a gross sum the charge is easy to deal
with, by paying it off, but the consideration here being an
annuity for three lives, I confess that I should be slow
to believe that the purchaser and vendor could possibly
have understood that the estate was to be inalienable for
so long a period, as it would be if the annuity were
charged on it, since an incumbrance of that description
would not be redeemable at the option of the landowner.

1857.

There are some expressions which have been adverted
to in the agreement itself, which, though less conclusive,

lead

(a) 13 Sim. 406.
(6) 3 Sim. 499.

(f) Cited 1 Bro. C. C. 423.
(d) 15 Vet. 352.

662

CASES IN CHANCERY.

1857.

Dixon

Oayperb.
Dixon

Gatperk.

Fluker

Gordon.

lead to the same inference, but the substantial ground of
my decision is, that it is not possible to suppose the pur-
chaser to have intended to take subject to such a burden.

I do not think, that any of the cases cited impugn the
decision of the Master of the Rolls. In Tardiffe ▼.
Scrughan(a) the parents were giving up the property
to their children, and, probably, they only meant to give
it up by way of a settlement. The same observation
applies to the case before Vice-Chancellor Wiffram{b).
There a poor person had some small ground rents, and
gave them up in consideration of 1 5s. a week during her
life, evidently meaning that the 15^. should be paid out
of the ground rents. The case in Anstruther is so
shortly stated that little can be deduced from it. All it
seems to decide is, that the Court will take care to secure
the annuity, unless there is something to indicate a con-
trary intention.

It remains to consider the rest of the decree, and the
consequential proceedings, and I confess that I do not
think the decree framed altogether as it ought to be, even
supposing that the Master of the Rolls is right and I am
right in saying that there is no lien on the property.
For the decree, if I rightly interpret it, excludes the
party claiming under Mrs. Finncans from a right to which
she and those claiming under her appear to me entitled.
The decree orders that the Defendant Ann Frances
Elhaf'ftk Gay fere should execute a proper conveyance
according to the declaration in the decree. That appears
to roe not correct, for although I think that there is no lien
for the annuity, I am of opinion, that the Court ought not
to have called on Mrs. Finaetvus trustee to conrev her
interest until thev had that for which she undoubtedW
stipulated as the consideration for the conveyance, namelj,

a bond
(«> atcd 1 Br«. a C 4S3. (k) 6 Barty 110.

CASES IN CHANCERY.

66S

a bond to secure the annuity. There is in the order a refer-
ence to the judge in Chambers to settle a bond^ and I think
that the order should have directed the conveyance to be
made after the bond had been given. That bond no doubt
was intended to have been that of Mr. Dunbar, and ought
to have been given by him if he had been alive ; and
what the Appellant is now entitled to, is a bond which
the judge in Chambers shall find valid and sufficient. As
there are considerable arrears of the annuity, no bond
will be sufficient that does not effectually secure the pay-
ment of the arrears and the future payments. From the
terms of the decree it seems very doubtful whether this
point was brought to the attention of the Master of the
Rolls. I hardly suppose that if it had been he would not
have done what I propose to do. The decree must be
varied in this respect in the manner I have mentioned.

1857.

KING V. KING.

rpHIS was an appeal by the Plaintiffs from so much

of a decree of V ice-Chancellor Stuart as ordered

them to pay the costs of the Defendants.

Nov. 7, 25.

Before The

Lords
Justices.

A iiind was
settled on A,

The Plain tiff* Richard Twyford King was the only ^o*" Hfe, with

^J i' -^ remainder to

child such of his

children or re-
moter issue by his deceased wife as he should appoint Shortly before his son, the
only child of the marriage, attained twenty-one, A. requested the trustees to prepare
for a transfer />f the fund to himself and his son, such transfer as to the greater part of
the fund to be into A.*% own name. Not long before this A, had complained to one of
the trustees of his son's extravagance, and had said to the solicitors of the trustees
that a son ought to be dependent on his father. On the son's coming of age A.
made an appointment of the fund to him, and they then applied to the trustees to
transfer it mto their joint names. The son was living with the father's solicitor: —
Htldy by the Lord Justice Turner (diasentiente the Lord Justice Knight Bruce), that
the trustees had been rightly allowed their costs of a suit to obtain such transfer ;
for that they were justified in declining to make it without the sanction of the Court,
though the son was represented by a separate solicitor, and declarations were made
that there was no bargain between him and the father for the father's Benefit

Vol. I.

D.J.

CASES IN CHANCERY.

child of the Plaintiff Captain King, By the settlement
made in 1830 on the marriage of Captain King, the
funds to which the suit related were vested in trustees,
upon trusty after the death of the husband or wife, for
the survivor for his or her life, and, after the decease of
the survivor, upon trust for all or such one or more of
the children or remoter issue of the marriage as the
husband and wife should jointly appoint, and in default
of any joint appointment, then as the survivor should by
deed or will appoint, with ulterior trusts, which it is not
necessary to mention. The Defendants were the trustees
of this settlement, and the trust monies held by them
stood invested, at and for some time before the institution
of the suit, on two mortgages, one for l2flOOL and the
other for 2,000/.

Richard Twyford King was born 20th May, 1836,
and his mother died shortly afterwards without having
concurred in any exercise of the joint power of ap-
pointment.

On 16th February^ 1856, Captain King sent from
Geneva to the trustees the following letter : —

" 16th February, 1856.

" To William King and T. W. Bushell, Esqrs.

" Gentlemen,

*' As trustees of my marriage-settlement, I beg
leave to inform you, that my son consents to a joint
discharge of the trust, in conjunction with myself, in
May next, when he will have attained the age of twenty-
one years. We will thank you, therefore, when the
proper time is come so to do, to cause the necessary
writings to be prepared, and the proper notices to be
given to the mortgagees. With respect to the 2,000/.
mortgage to Mr. Edward Clarke of Reading, it is our

intention

CASES IN CHANCERY. 665

intention to call that in positively, and as the notice to 1857.

pay that mortgage in was given some months backy and

must now be good and in force, we beg that you will

cause Mr. Clarke to be informed that he will stand by

that notice, and be prepared to pay the money in at the

time of our signing the release. With respect to the

1^,000/., mortgaged to Mr. Lewis Davis of Wooltoich,

it is OUT wish not to call that mortgage in, but by the

necessary writings to transfer it into my own name only.

Any other course respecting this mortgage will depend

upon Mr. Davis himself.

** I make this communication to you, that you may have
the earliest possible notice of my son's consent to cancel
the trust, but it is of course open to your opinions and de-
tailed arrangement. As this letter will be sent to Dr.
King in the first instance, I must ask the favour of him
to forward it to Mr. Bushell after reading it. I have
only to add, that I shall not communicate with the so-
licitor, I leave that to the trustees, and that I intend to
return to England about the end of the present month.

'' I remain, &c.,

"fl. H. Kingr

On 21st May^ 1856, the day after the son had at-
tained twenty-one, the father wrote again to the trustees
on the subject of the transfer of the securities to himself
and his son, not saying anything as to the transfer of
either of them into his own name alone. The trustees
raised some difficulty as to the transfer, on the ground
that the son was under parental control, and suggested
the desirableness of an application to the Court for their
protection. The father, after taking the opinion of
counsel, executed on \\i\i July, 1856, an absolute ap-
pointment of the trust fund to his son, subject to his own
life interest, and on the same day Mr. Cowd^ry^ the

X X S solicitor

666

CASES IN CHANCERY.

1857.

Kino

Kino.

solicitor employed by Captain King, wrote to Messrs.
Haines, the solicitors of the trustees, renewing the ap-
plication for a transfer of the securities to the Plaintiffs.
The solicitors of the trustees, considering that the
transfer could not, under the circumstances, be safely
made, submitted a case to one of the most eminent of
her Majesty's counsel, who advised that the trustees
might safely make the transfer if certain conditions were
complied with (a). On 10th August, Dr. King, one of the

trustees.

(a) The opinion was as fol-
lows:— "I think it would be
going too far to say that no trans-
fer, such as that requested, could
safely be made except under the
direction of the Court, and I am
disposed to advise the trustees to
make it without such directions,
subject to the following condi-
tions:—IsL Mr. Kingf the son,
must not be represented in the
matter by the same solicitor with
his father, but must have the be-
nefit of the independent advice
of a separate solicitor of un-
doubted respectability and expe-
rience, who has never before acted
for the family, and who must
communicate on his behalf with
the trustees, after having had the
correspondence which has already
passed placed in his hands. 2nd.
The trustees must be assured on
the part of both the father and
the son, separately represented,
that the appointment which has
been made (if any reliance is to
be placed on that) is uncondi-
tional and absolute, and free from
any previous bargain or agree^
ment between the father and the
son as to any division or transfer,
or other use or appropriation of

the fund for any purpose benefi-
cial to the father; 3rdly. The
father and son should join in a
proper release to the trustees in
such form as counsel may ad-
vise. These precautions are in
my judgment necessary, not only
to secure the trustees against any
subsequent impeachment of the
transaction by the son himself
(who would, as far as I can see,
be entitled to say that all the com-
munications hitherto made to the
trustees are his father's, and not
his own, and that the trustees
have notice of circumstances
amply sufiicient to affect them
with any equity which may exist
as between himself and his father),
but also to make the trustees safe
against the possible effect of any
future appointment by the father
to issue of the son, in case, under
any unforseen state of circum-
stances, the father should here-
after desire to raise, by means of
such an appointment, any ques-
tion as to the validity of the trans-
action. If the trustees receive
satisfaction on all the above points,
I think they may safely make the
transfer without suit If they
receive satisfaction on the IsC

CASES IN CHANCERY.

667

trustees^ wrote to Captain King^ saying, that the opinion
was clogged with many qualifications and restrictions,
with which it would be difficult and expensive to comply,
and as to the fulfilment of which differences of opinion
might arise, making an appeal to the Court necessary at
last, and that the trustees thought it would be better
for all parties that an amicable suit should at once be
instituted.

1857-

On the 3rd of November, 1856, a formal notice, signed
by the solicitor of the father, and by another solicitor for
the son, was served on the Defendants, the material
part of which was as follows : — " With reference to the

opinion of Mr. which has been taken by you and sent

to Captain King, (without conceding your right to impose
the conditions contained in it,) Captain King and his son,
the said R. T. King, have agreed to comply with them,
as you will see by the accompanying papers marked A.,
B. and C. You are hereby required to transfer the
said mortgage securities into the joint names of the said
Captain King and the said R. T. King. In the event
of your declining to give any answer to this requisition,
or of your refusing to comply with it, a bill will be filed
against you by Captain Kirig and the said R. T. King
to compel such transfer, and the costs of the suit will be
prayed against you." The paper marked A. was a

paper

and 3rd points, but not on the
2nd, I think it probable that the
transfer may still safely be made,
subject, however, to the judgment
of the counsel who may have to
prepare the release (which ought
in that case to extend to a release
of the power of appointment),
and to the full and unreserved
communication to all parties of
the arrangements actually made
and intended between the father

and the son. But unless satis-
faction to this extent, at all events,
is given upon the above points, 1
think the trustees cannot safely
transfer in the manner desired
without the direction of the
Court, and I should feel no ap-
prehension at all as to their being
allowed their costs of the suit,
should a suit become necessary
under such circumstances."

668 CASES IN CHANCERY.

1857. paper signed by Captain King, stating that the appoint-
ment of 11th Juli/f 1856y was unconditional and absolute,
and free from any bargain between him and his son as
to any division, transfer or other use or appropriation
of the fund for any purpose beneficial to himself, and
that he was ready to join with his son in a proper
release to the trustees. Paper B. was a paper to the
same efiect, signed by the son. Paper C. was signed
by the son*s separate solicitor, and stated to the effect
that he was a solicitor of eleven years' standing, had
been retained by the son in the matter, had never before
acted for the family, and had perused the correspondence
between the parties. No answer was returned by the
trustees, and on S4th December the bill was filed.

The case set up by the trustees was, that R. T. King
was residing with, and under the influence and control
of, his father, upon whom he was dependent for support,
and that when at college he had contracted many debts,
and displayed the greatest want of prudence and fore-
sight. They laid stress on the letter of February , 1856,
and added, that Captain King had, before the date of
that letter, stated to the Messrs. Haines that a son ought
to be dependent on his father, and that his son had con-
sented to give him the control of the fund in question,
and trust to his honour to provide for him. They also
suggested, that the father was engaged in hazardous
speculations, and the son still in difficulties from his
extravagance at college. It was proved that the father
had, before his son came of age, complained strongly to
Dr. King of his extravagance at college. Captain
King by affidavit denied his being engaged at all in
hazardous speculations, and the son deposed, that he
himself was not in any pecuniary embarrassment, that
his college debts with some trifling exceptions were paid,
and that he was reading with Mr. Cowdery with a view

CASES IN CHANCERY. 669

to being called to the bar. The son further deposed^ 1857.
that he bad never stated to his father that he consented
to give to the father the sele control of the funds, and
trust to his honour to provide for him. The two Messrs.
Saines, who acted as solicitors for the Defendants, de-
posed, that Captain King had, in December ^ 1855, so
stated to them, and had also said that a son oUght to be
dependent on his father. Captain King, by his affidavit
in reply, denied that he had, in or about December,
made any such statement as to the control of the funds
and as to the son's trusting to his honour, and went on
to say, "In or about the month of February , 1856, I
for the first time had any conversation with my son on
the subject of the property comprised in my marriage-
settlement, and it was then arranged I should have the
same placed in my sole name ; and on my return from
Geneva it is possible I may have stated to the said
Messrs. Haines, as my legal advisers at the time, the
purport of the arrangement so come to with my son;
but I deny that I ever stated to them to the effect, that
my son must trust to my honour, or that my honour was
pledged as a consideration for what my son had agreed
to do ; on the contrary, it was perfectly understood by
me and by my son, that the property would be held by
me for his benefit"

On the cause coming on for hearing, Vice-Chancellor
Stuart decreed a transfer of the fund, but gave the De-
fendants their costs, considering that, under the circum-
stances, they had not acted vexatiously or unrea-
sonably.

Mr. Matins and Mr. B. L. Chapman for the Ap-
pellants.

Angell v. Davis (a) shows, that this case is one in
which an appeal for costs will lie. The case is one in

which

(a) 4 JIf. ^ C. 360.

670 CASES IN CHANCERY.

1857. which the conduct of the trustees has been as vexatious
as that of the trustee in the case of Re Woodbum'g
Trust {a), in which this Court made him pay costs, and
at all events the trustees here ought not to receive costs.
We complied with every requisition made by the very
eminent counsel who advised them, and they without
reason refused to transfer. The cases of Campbell ▼•
Home(b) and Firmin v. Pulham{c)f show that the
trustees went beyond their duty in raising such diflSculties
as they did.

Mr. Bacon and Mr. Wickens for the trustees.

When this case first came before the Vice-Chancellor,
he was so dissatisfied, that he ordered it to stand over, till
an explanation could be given why the Plaintiffs asked to
have the fund transferred in this way, the son being still
under parental influence. The trustees were justified in
feeling a similar difficulty. Though this may be a case
where an appeal for costs will lie, the Court will not be
disposed to encourage appeals on matters resting so
much on discretion.

The Court acts on the principle, that to support a
dealing between parent and child, which takes place just
after the minority has terminated, absence of parental
control must be clearly proved. Here the transaction
had its origin before the son was of age ; and after such
a letter as that of 16th February, 1856, the trustees
could not safely make the transfer on their own respon-
sibility, until they were satisfied by the plainest evidence,
that the parental authority which that letter indicates
so strongly had ceased. Moreover, the circumstances
showed, that the appointment by the father was part of
a scheme for giving him a control over the fund, and it

was,

(a) Supra, 333. (b) 1 F.* C C. 664. (c)2DeG.^Sm, 99.

CASES IN CHANCERY. 671

was, therefore, very doubtful, whether the issue of the 1857.
son, if the father should afterwards make an appointment
in their favour, could not successfully impeach the first
appointment as made upon a bargain. The trustees, at
the worst, only made an honest mistake for which they
ought not to be punished. We submit, however, that they
made no mistake, but only acted with reasonable caution.

Mr. Malins in reply.

The Lord Justice Turner, after stating the facts of ^cw. 25.
the case, proceeded as follows : —

I regret to say I differ in opinion from my learned
brother upon the case. After fully considering the case
and reading the documents and evidence, my opinion is,
that the decree is right. I have arrived at that conclu-
sion upon these grounds :— *This Court watches with
jealousy transactions between parent and child occurring
shortly after the child has attained twenty-one, more
especially where the transactions have had their inception
during the minority of the child ; and I think that dan-
gerous consequences would result if the Court were not
to support trustees in exercising the same jealousy which
the Court itself is in the habit of exercising. It must
be ascertained of course, in all cases of this nature, that
the trustees have acted bon& fide, and have been in-
fluenced by no corrupt or improper motives; but if it
appears that they have so acted, it is in my opinion the
duty of this Court to support and not to punish them.

With this view I have considered the effect of this
proposed transfer and the circumstances bearing upon it.
The effect of it is plainly this, — to give the father a
control over the property of the son. It may be wise,
it may be prudent, that this should be done, and in this
case, I have no doubt, it is both wise and prudent ; but

the

67a CASES IN CHANCERY.

1857. the question, as I view it, is not whether it is wise or
prudent, but whether the trustees are to be deprived of
their costs because they have desired the opinion of this
Court whether it ought or ought not to be done. This,
of course, must depend upon the circumstances of the
case, and when the circumstances of this case are looked
into, I find that before the son had attained twenty-one,
the father, with or without reason, had become alarmed
at and dissatisfied with the son's extravagance and had
complained of it in very strong terms to his brother, one
of the trustees ; that the father also, before the son
attained twenty-one, stated to the solicitors of the trus-
tees that he thought a son ought to be dependent upon
his father, for, upon looking carefully into the evidence,
I do not find that this statement is denied, although it is
denied that the father had ever said that his son had
consented to give him the control of the fund, or to trust
to his honour to provide for him. I find, also, that in
February^ 1856, three months before the son attained
twenty one, the father wrote to the trustees, proposing
that the larger of these mortgages, — that for 1S,0001, —
should be transferred into his own name only — [His
Lordship here read the letter of 16th February ^ 1856.] —
I further find that on the very day aAer the son attained
twenty-one, application was made to the trustees for the
transfer of both the mortgages into the joint names of the
father and the son ; and that the son was then living
and has ever since lived with a gentleman who then
acted and who now acts as the solicitor both of himself
and his father.

Under these circumstances, I have not been able to
bring my mind to any other conclusion than that, if the
case rested here, the trustees were justified in asking the
opinion of the Court, whether this transfer ought to be
made or not

There

CASES IN CHANCERY. 678

There is another ground on which I think they were 1857.
also justified in requiring the authority of the Court for
the transfer. The father^s power of appointment in this
case extends to the remoter issue of the marriage. Sup-
pose he should hereafter again become dissatisfied with
his son, and exercise the power in favour of any issue
there may be of the son : would it not be in the power
of the issue to question the transfer ? The appointment
by the father in favour of the son would, it is said, pre-
vent them from doing so, but was not that appointment
part of the scheme for getting this property transferred
to the father and the son ? I think it plain that it was ;
and if the principal transaction could not stand, I do not
see how the accessory could be supported. This pro-
posed transfer, therefore, is not a transaction in which,
in my opinion, there would be a total absence of risk.
It may be that the risk would be small; but I think that
trustees are entitled to the protection of this Court against
any risk.

It is said, however, that the trustees were advised by
counsel that they might safely make the transfer if certain
conditions were complied with, and that those conditions
have been complied with. It appears that the counsel
consulted by the trustees advised that the transfer might
safely be made on the following conditions: — 1st, that
the son was . represented by a separate solicitor ; ^ndly,
that the trustees were satisfied that the appointment
was unconditional, and Srdly, that there was a proper
release : and these conditions seem to have been complied
with. But with all respect to the opinion of the very
eminent counsel who advised the trustees, and there is
DO more eminent counsel at the bar, I think the opinion
falls short of what was required ; I think that for the
security of the trustees it was necessary, not only that
what was required by the opinion should be done, but that

there

674 CASES IN CHANCERY.

1857. there should be the means of proving that it had been

^""^^ done, if at any future time either the son or his issue, or

V. at all events the issue, should impeach the transaction,

* and I do not see how this could be secured without

the institution of a suit.

Upon these grounds I think that this decree is right
and that this appeal must be dismissed, but my learned
brother being of a different opinion, of course it will be
dismissed without costs.

The Lord Justice Knight Bruce.

The Defendants, before December 1856, and therefore
some weeks before the filing of the bill, were apprised
of facts, which in my judgment rendered it perfectly
safe for them to comply with the requests made to them
on the Plaintiffs' part before that month, to execute the
assignment or assignments, for obtaining the execution
of which by the Defendants the bill was filed. They
ought in my opinion to have done so previously to that
month. There may very possibly not have been, nor do
I say that there was, wrong intention upon the part of
either Defendant; I do not, however, feel convinced that
their conduct can accurately be represented so favourably
for them as that of men merely cautious overmuch and
strict beyond precisianism, but I am persuaded that an
interpretation more favourable for them there ought not to
be. Had I therefore heard this cause originally, my con-
clusion would have been at least to refuse them their own,
if not also to direct them to pay the Plaintiffs', costs of
it. My learned brother, however, who, I need not say,
is at least as likejy to be right as I am, holding with
the decree, it stands affirmed. I do not think the De-
fendants entitled to any costs of the appeal.

CASES IN CHANCERY. 675

1857.

STROTHER v. DUTTON.

Nov, 25.

rflHIS was an appeal from a decision of Vice-Chan- Before The
cellor Kinderslet/f on the construction of the fol- ^tices."*"

lowing bequest :— A testator be-

queathed to
" To ray natural daughter Ruth Scholefield, wife of K. 5. 1,000/.

undeniable security, and the interest arising therefrom curity, and the

interest to be
to be paid to her during her life and that of her husband paid to her

James Scholefield, and that at the death of the longer fi"J^"fn^*^e
liver the principal sum of 1,000/. shall be called in and directed that
distributed equally share and share alike amongst their ^^ princbal
children, in case any lawful children are living from son should be
or daughter being dead, the issue of their marriage, that distributed
such child or children shall be equally entitled to the equally among

^ "^ . her children,

part or share their parent would be entitled to if they and that if any
had been living." f^^l^^ ^^'*

^ living, from son

or daughter

Ruth Scholefield died in 1843, having survived her bus- guclMjhild or
band and the testator. She had thirteen children, four of children
whom died without issue in the testator's lifetime, and four the share their

more died without issue in the lifetime of their mother. V^^^l would

have been en-

The question was, whether the latter four children took titled to if
vested interests, so as to entitle their personal represen- *^^f/^ ^y^^^
tatives to shares in the 1,000/. The Vice-Chancellor by the represente-
order dated the 18th o( Aprils 1857, declared that each children of
child oi James Scholefield and Ruth his wife, who died ^- S- «jssur-

vived the tes-

between the death of the testator and the death of Ruth^ utor and died
without leaving child or children living on the latter jJ^^^i^/eTme
event, took a share. The Plaintiff, who was the pur- of R. 5., were
chaser of the interests of those children of Ruth Schole- J^ares.
field who survived her, appealed from this decision.

Mr.

676

CASES IN CHANCERY.

1857.

Strother

V.
DUTTOM.

Mr. ElmsUy and Mr. Moxan, for the Appellant, con-
tendedf that there was no gift of the principal but in the
direction to divide it ader the death of the tenant for life ;
that the time of payment was, therefore, of the substance
of the legacy, and that the case was distinguishable from
the ordinary one where a fund is given to trustees upon
trust for one for life with remainder over. They relied
on Beck v. Bum{a\ as undistinguishable from the present
case, and also cited Currie v. Oould (b), Brograve v. TFin-
der{c)^ Hoghton v. Whitgreave {d) and Billingsleg v.
Wilk (e).

Mr. Selwyn and Mr. C T. Simpson^ for the Respond-
ents, were not called upon.

ITie Lord Justice Knight Bruce.

This discussion would have been startling but for
the gift to more remote issue, which seems the only dis-
tinction between the present case and SaUifax v. Wil-
son (/). That gift in favour of the issue of the children
who have issue does not affect the shares of the chil-
dren who died without leaving issue ( g). I am of opinion,
that the decision of the Vice-Chancellor is right.

The Lord Justice Turner.

I am of the same opinion. I think that in this will
an intention is clearly shown, that the 1,000/. should
be severed from the general estate, and invested in the
names of trustees on the trusts of the will. If, then, a
gift of the capital to trustees be necessary to support the
conclusion at which the Vice-Chancellor has arrived,
I think that such a gift is found in this case.

(a) 7 Beav. 492.
(6) 4 Beav. 117.
(0 2 Ves.jun. 634.
(<0 1 Jae. if W, 146.

(0 3 Atk. 219.
(J) 16 Va. 158.
ig) See Baldwin ▼. Kogen^ 3
J>e G., M. 4 G. 649.

INDEX

THE PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

ABROAD.

See Practice, 2,

ACKNOWLEDGMENT.

See Limitations, Statute of.

ACQUIESCENCE.
See Husband and Wife, S.

ACT OF BANKRUPTCY.
See Bankruptct, 1.

ACT OF PARLIAMENT.
See Dean, Forest of.
Injunction, 1.

ADJUDICATION.
See Bankruptcy, 1.

AFFIDAVIT.
See Evidence.
Practice, 1.

AGREEMENT.

See Specific Performance.
Vendor and Purchaser, 1.

ANNUITY.

See Bankruptcy, 3.

Vendor and Purchaser, S.

ANNULLING ADJUDICATION.
See Bankruptcy, 1.

APPEAL.
See Bankruptcy, 2.

APPOINTMENT.

See Mistake,
Trustee, 2.
Will, 2.

APPROPRIATION.
See Bankruptcy, 2.

678

INDEX TO THE PRINCIPAL MATTERS.

ASSIGNMENT.
See Bankruptcy, 9.
Chose in Action.

ATTACHMENT.
See Protection.

BANKRUPTCY.
1 . A trader's remaining abroad, with
intent to defeat or delay his cre-
ditors, is, under the 67th section of
the Bankrupt Law Cpnsoh'dation
Act, a continuing act of bank-
ruptcy, whether his going abroad
was or was not an act of bank-
ruptcy.

Where, therefore, a trader went
abroad with intent to delay his cre-
ditors, so that his departure was
an act of bankruptcy, and remained
abroad with the same intent, and a
petition for adjudication was filed
more than twelve months after his
leaving England: — Held, that as
he had, within twelve months be-
fore the filing of the petition, been
remaining abroad, with intent to
delay his creditors, the adjudication
was not invalidated by section 88
of the Act.

An action brought by a bank-
rupt in a British Colony, in which
action he disputes the validity of
the adjudication, is a proceeding
which, under the S33rd section of
the Act, will keep alive his right
to dispute the adjudication.

The Court refused to annul an
adjudication on the ground of the
objection that the bankrupt, having
gone abroad, had not, within six
months before the petition for ad-

judication was presented, either
resided or traded within the dis-
trict of the Court in which it was
filed, so that the petition could not
be in the form prescribed by the
89th section of the Bankrupt Law
Consolidation Act. Ex parte
Bunny. Page 309

2. S. and /. of Buenos Ayre$ bought
from Latham & Co. of that pkce,
in May and /tine, ten bills drawn
by them on Latham Brothers of
Uverpool^ the seller giving an ex-
press assurance that they would
make remittances to Liverpool to
meet them. On 1st August, La-
tham & Co. despatched bills to
Latham Brothers, with a letter spe-
cifically appropriating them to meet
the first five of the purchased bills.
On 8th August, Latham Brothers
became bankrupt. On 1st Sep-
tember, Latham & Co., not know-
ing of the bankruptcy, despatched
other bills to Latham Brothers,
with a letter appropriating them to
meet the other five purchased bills.
There was evidence to show that
the firm of Latham & Co. and La-
tfiam Brothers were identical.

Held, that the first remittance
was effectually appropriated to
meet the first five purchased bills,
whether the drawing and accepting
houses were identical or not, and
that the assignees of Latham Bro-
thers held it for S. and /., to the
extent of what was due on those
bills.

Whether the second remittance,
having regard to the time when it
was made and to the time of the

INDEX TO THE PRINCIPAL MATTERS.

679

bankruptcy, was effectually appro-
priated to meet the latter five pur-
chased bills, qncere.

A motion bv 5. and J. before the
Commissioner for an order to give
effect to their lien was dismissed.
Their solicitors in England^ some
months afterwards, having ob-
tained fresh information, renewed
the motion upon evidence giving a
materially different character to
the case. Heldy that the Commis-
sioner was not precluded by the
12th section of the Bankrupt Law
Consolidation Act from disposing
o/ the second application on the
merits. Ex parte Imbert.

Page 152
3. A deed of partnership for life be-
tween two solicitors contained a
covenant, that on the death of
either the survivor should, during
the joint lives of himself and the
widow of the deceased partner, pay
to such person or persons as the
deceased partner should appoint,
an annuity of 200/. per annum, or
one-fourth of the annual profits of
the survivor, as the survivor should
elect, and also provided for the ad-
mission on certain conditions of a
son of the deceased partner into
the "said** partnership business.
One of the partners, by an ante-
nuptial settlement made shortly
after the execution of the partner-
ship deed, exercised the power of
appointment in favour of his wife,
and several years afterwards died
greatly indebted to the firm. The
survivor continued to practise as a
solicitor for some years, and rea-
Vol. I.

lized profits by his business, if
estimated without regard to the
former business, but they were
insufficient to make good the out-
standing liabilities of the late part-
nership, and he became bankrupt
without having made any payment
to the widow of the deceased part-
ner or electing between the two
modes of payment mentioned in
the articles. Held^

That the assignees were entitled
to make the election.

That on their electing not to
pay the annuity of 200/., the widow
had no proveable demand, the
business carried on by the survivor
being, according to the true con-
struction of the deed, a continua-
tion of the partnership business,
and the payments made on account
of the partnership being properly
set off against the profits of the
sole business. Ex parte Harper,

Page 180
4. A. and B. were partners at Liver'
pool, and y^., B. and C, at Pernam'
buco. Each firm traded under the
name of A., B, & Co. A,, B, and
C. being in advance to A. and B,,
drew bills upon them, which they
accepted. A. and B, became bank-
rupts, and afterwards A., B. and
C, became "fallidos," according .
to the Brazilian law, and entered
into a concordata with their cre-
ditors according to the same law,
which does not adopt the English
practice in bankruptcy of distri-
buting joint estate among joint cre-
ditors, and separate estate among
separate creditors, nor that adopted

Y Y

D*J.

680

INDEX TO THE PRINCIPAL MATTERa

in Ex parte Moult and Ex parte
Hinlon^ of excluding a holder of
bills drawn by one firm on another,
consisting partly of the same part-
ners from double proof: —

Held^ by Lord Justice Turner ^
agreeing with the Commissioner,
disMent'tente Lord Justice Knight
Bruce.

That Ex parte Moult and Ex
parte Hinton have been too long
decided to be departed from in
this Court.

That according to those au-
thorities the bill holders, having
received a dividend under the con-
cordata, were not entitled to prove
under the Enghsh adjudication, the
differences between the concordata
and aa English bankruptcy, and
between the practice in England
and the Brazils, not being sufficient
in the opinion of Lord Justice
Turner to constitute a valid dis-
tinction between the above cases
and the present. Ex parte Gold-
imid» Page 257

5, The holder of a bill of exchange,
who has received from the drawers
sums of money in part payment of
it, is not entitled to prove against
tlie estate of the bankrupt acceptor
for the full amount of the bill, but
only for what remains due upon it
after deducting all the sums paid
in respect of it by the drawers
before the proof is tendered,
whether such payments were made
before or after the bankruptcy.
Ex parte Taylor. 302

6. The rent of a cotton mill was
made payable half a year in ad-

vance, and the tenant covenanted
with the landlord to keep in the
mill machinery of the value of
3,0002., as a security for the rent.
The lessee became bankrupt, no
rent being due. The official as-
signee immediately entered, and
claimed to be entitled to remove
the nuichinery before the next in-
stalment of rent became due,
which claim the landlord resisted,
on the ground that the covenant
gave him a lien on the machinery:
— Held, that the provision as to
reputed ownership applied, and
that the assignee was entitled to
remove the machinery. Shuttle'
worth V. Hernaman, Page 322

7. A holder of shares in a railway
company, which was subject to
the provisions of the Companies
Clauses Consolidation Act» 1845,
was one of the secretaries of the
company and a solicitor. He
borrowed money of a client on a
deposit of tlie certificates of the
shares, but no further notice of
the deposit was given to the com-
pany. On the solicitor becoming
bankrupt, held, that the shares
were in his order and disposition
with the consent of the client.

Whether an equitable mortgage,
valid against assignees in bank-
ruptcy of the mortgagor, can be
made of railway shares, qucere.

Ex parte Smyth, 3 Mont., Deac.
8f De GeXf 687, observed upon
and distinguished. Ex parte BoaU
ton. 163

8. In June, T., the solicitor of the
Plaintiffs in an administration suit,

INDEX TO THE PRINCIPAL MATTfiRS.

681

assigned his costs as a security for
a debt. Notice of this assignment
was given to the Plaintiffs and

. to the executors of the testator in
the cause. In August an order
was made on farther directions
for payment to T, of the Plain-
tiffs' costs out of the funds brought
and to be brought into Court, after
satisfying certain prior demands.
In October T. became bankrupt.
The fund in Court at the times of
the order on further directions
and of the bankruptcy was insufli-
oient to pay the charges prior to
T.*8 costs, but in January follow*
ing a fund was brought in by the
executors applicable to payment
of those costs. No stop-order was
ever obtained by the assignee of
the costs.

Held, that this fond did not pass
to the assignees in bankruptcy as
having been within the order and
disposition of the bankrupt with
the consent of the true owner, but
belonged to the assignee of the
costs. Day v. Day, Page 144

9. JB. assigned his reversionary in-
terest in a fund in Court to 7^.,
who obtained the common stop
order. T, afterwards itiortgaged
this interest to H.^ but no fresh
stop-order was obtamed. T. be-
came bankrupt before the rever-
sionary interest came into posses-
sion : — Held^ that it passed to his
assignees in bankruptcy fVee from
the mortgage, as having been
within his order and disposition
at the time of his bankruptcy, with
the consent of the true owner.

Heldt also, that this result was
not prevented by the fact that T.
had acted as the solicitor of H, in
the mortgage transaction, and that
H, relied on his doing whatever
was necessary to make the secu-
rity perfect, or by the fact that B.
knew of the mortgage. Bartlett
v. Bartlett, Page 11^7

10. A condition annexed to the grant
of a certificate, that it should not
protect the property or person of
the bankrupt in respect of a parti-
cular debt, was discharged as being
contrary to the policy of the bank-
rupt laws, though the bankrupt, in
contracting the debt, had been
guilty of gross misconduct towards
the creditor. Ex parte Anderton.

298

11. Time bargains in stock, though
they may be " gaming or wager-
ing*' within the meaning of the
Stat. 8 & 9 Vict, c. 109, relating
to games and wagers, are not so
within the meaning of the 201st
section of the Bankrupt Law Con-
solidation Act.

Held, therefore, that the fact of
a bankrupt having lost on several
occasions by time bargains in con-
sols and Turkish scrip more than
20/. in a day, did not make it in-
cumbent on the Court to refuse
him a certificate, though such
transactions were blameable, and
regard v^as to be had to them on
the question of certificate. Ex
parte Ryder, 317

BARON AND FEME.
See Ht7^BAKD AKD Wife.

Y T 2

682

INDEX TO THE PRINCIPAL MATTERS.

BEDFORD LEVEL.

Sec Qualification.

BILL.
When a bill has been retained for a
year, with liberty for the PlaintiflT
to bring such action as he may be
advised, the Court may enlarge
the time, if it appear that there has
been a bond fide intention and
prompt action on the part of the
PlaintiflT to obtain a decision at
law^ although from some accidental
circumstances the decision has not
been obtained within the year.
Farina v. Silverlock,

Page 4d4
Set Costs.

BILL OF EXCHANGE.
See Bankruptcy, ?, 5.

BLANK.
See Covenant.

BUILDING.
See Lands Clauses Consolidation

Act.

CALL.

See Winding-up Acts, 2.

CERTIFICATE.
See Bankbuptct, 10, 11.
Practice, 4.

CHARITY, GIFT TO.
See MoRTOAOB.
Mortmain.

CHIEF CLERK.
See Practice, 4.

CHOSE IN ACTION.
F, and G. assigned a debt due to them
from M. to J, and B. as a security
for a debt due from F, and G, to
■/. and B, M, received notice of
this assignment, and promised in
writing to act upon it. After this
F. and G. sued A/, at law for the
debt. M, oflTered to pay «/. and B.if
they would indemnify him, which
they declined to do, upon which
M, paid F. and G., taking an in-
demnity : —

Held, that A/., though he might
have no defence at law against the
action was not discharged, but
must be decreed to pay the money
to J. and B., and that their having
refused him an indemnity did not
alter the case.

The course to be pursued by a
debtor who receives notice of an
equitable assignment of the debt
considered. Junes v. FarreiL

Page 208

See Husband and Wife.

CODICIL.

See Will, 1, 8.

COMMISSIONER,

See Bankruptcy, 2.

COMMON LAW PROCEDURE.

See Injunction^ 2.

^ COMPANY.

See Preferrncs Shares.
Winding-up Acts, 1, 2.

INDEX TO THE PRINCIPAL MATTERS.

683

CONFIDENTIAL ADVISER.

See Trust.

CONSTRUCTION. .

See Bankruptcy, 3.
Covenant.
Dean, Forest of.
Election.
Will.

CONSTRUCTION OF STA-
TUTE.
,See Dean, Forest or.
Tolls.

CONTRIBUTION.
See Will, 5.

COSTS.
A bill was filed to restrain the in-
fringement of a patent. The Plain-
tiflTs, by leave of tlie Court, brought
an action, and failed on the ground
of part of their apparatus not
being new. They then filed a dis-
claimer of that part. In this state
of things the cause came on for
hearing, and the Vice-Chancellor
suggested, that, to save the ex-
pense of a new suit, the Plaintiffs
should pay the Defendant's costs
of suit up to that time and be
allowed to amend their bill, in-
stead of having it dismissed with
costs, with liberty to file a new
bill ; and an order to the above
effect was made without the Vice-
Chancellor's attention being called
to an enactment prohibiting the
reading of a disclaimer in any
suit pending when it was filed.
The costs were paid and the biA

amended. The Defendant, by
answer to the amended bill, in-
sisted on this statutory objection,
which the Vice-Chancellor, on a
motion for an injunction being
made, held fatal to the suit.

Held^ that the Plaintiffs were
entitled, on motion, to have their
bill dismissed without costs, and
without prejudice to a new bill,
as they had been misled by the
act of the Court. Lister v. Leather*

Page 361
See Trustee, 2, 3.

COVENANT.
A party to a deed of family arrange-
ment thereby covenanted that if he
should at any time become entitled
to property exceeding the value of
— (which was left in blank), he
would settle it upon certain spe-
cified trusts. Before any such
property accrued, or the persons
entitled under the trusts were as-
certained, he filed a bill to have it
declared that the covenant was
void for uncertainty. Held^ that
the bill was properly dismissed as
filed prematurely. Sembkt that
there was no such uncertainty as
to render the covenant void. Fiffe
V. Arbulknot. 406

CURTILAGE.
See Lands Clauses Consolioa*
tion Act.

DEAN, FOREST OF.
i^., having made an encroachment on

684

INDEX TO THE PRINCIPAL MATTERS.

the lands of th« Crown in the
Forest of Dean, died seised of it,
leaving a will by which he devised
it to his widow for life, with re-
mainder to the Plaintiffs. The
widow entered into possession, and
afterwards, under the Act 1 & 2
Fict, c. 42, authorizing the making
grants from the Crown for nominal
considerations to the holders of the
encroachments, she procured a
conveyance from the Crown to her-
self in fee, and died, having de-
vised the property to the Defend-
ants.

Held, on the construction of the
statute, that it contained nothing to
take the case out of the general
rule, according to which, the grant
having been obtained by the widow
by virtue of a possession referable
to her husband's will, must be
treated in equity as made for the
benefit of his devisees, and that,
therefore, on the death of the
widow, the PlaintiflTs were entitled
to the land. Yem v. Edwards.

Page 598

DEBT.

See Chose in Action.

DEBTOR AND CREDITOR.

See Limitations, Statute of.
Winding-up Acts, 1,

DECREE.

See Practice, 3.

DEED.
See Bankruptcy, 3.

DESCRIPTION.
See Vendor and Purchaser, 2.

DIRECTORS.

See Winding-up Acts, 2.

DISCLAIMER.
See Costs.

DISMISSAL.
See Costs.

DIVIDEND.
See Banicruptct, 5.

DOUBLE PROOF.
See Bankruptcy, 4.

ELECTION.
An estate called H, F. stood limited,
along with some other property of
small amount, to W. S, for life,
with remainder to his children in
tail, remainder to J, S. for life, re-
mainder to trustees for a term, in
trust to raise 10,000/. for the
younger children of J. S, and the
younger children of C. S., and sub-
ject thereto to the first and other
sons of ■/. S, successively in tail,
with divers remainders over. /. S.
died in the lifetime of [T. S., leav*
ing a will, by which, though not in
possession of the H, F, estate, and
having no devisable interest in it,
he purported to devise it to the
Plaintiff, who was his eldest son,
in fee, and gave various benefits to
his own younger children. fV, S.
aflerwards died without issue, upon

INDEX TO THE PRINCIPAL MATTERS.

685

which the PlaintiflT became entitled
to the H, F. estate as tenant in tail,
subject to the 10,000/. charge.

Held, that the younger children of
J, S. were not put to their election
between their aihares of the 10,000/.
and the benefits given them by
their father's will ; for that a de-
vise of an estate does not per se
import an intention to devise it free
from incumbrances, so as to put
incumbrancers to their election ;
and, moreover, that an absence of
intention to devise the estate free
from incumbrances was to be in-
ferred from the fact that nothing
had been given by the will to the
children of C, S,, so that they were
clearly not put to their election as
to their shares of the 10,000/.
Stephens v. Stephens, Page 6^
See Bankruptcy, S,

ENLARGEMENT OF TIME.
See Bill.

ENROLMENT.
See Practice, S.

EQUITABLE PLEA.

See InjunctioHi ^.

EQUITY TO A SETTLEMENT.
See Husband and Wifb, 1.

EVIDENCE.
Where the Plaintiffs, by affidavits
filed immediately before the time
for closing evidence^ made specific
charges against two of the De-
fendants' witnesses, with a view
to discredit their testimony, the

bill not clearly raising any issue
which could prepare the Defend-
ants to meet such charges, though
the persons against whom they
were made were named in the bill
in connexion with the transactions
as to which their evidence was
given : — Held, that an order, allow-
ing the Defendants to file affidavits
as to these charges after the time
for closing the evidence^ had been
properly made. Scott v. Mayors
<Jt. of Liverpool. Page S69

EXAMINATION*

See Settled Estates Act.

FEME COVERT.
See Husband and Wife.

FOREIGN LAW,
See Bankruptcy, 4.

FOREST OF DEAN.
See Dean, Forest of.

FRAUD.
See Specific Performance.
Trust.
Trustee, 2.
Vendor and Purchaser, 1.

FRAUDULENT GRANT.

See Qualification.

FUND IN COURT.

See Bankruptcy, 8.

686

INDEX TO THE PRINCIPAL MATTERS.

GAMING OR WAGERING.
See Bankruptcy, 11.

GIFT OVER.

See Will, 4.

HOUSE.
See Lands Clauses Consolidation

Act.

HUSBAND AND WIFE.

1. A testator devised lands to his
widow for life, with remainder to
a nephew in tail, charged with
the payment of a legacy to a niece
at the widow's death. After the
testator's death the niece married,
and her father advanced to her
hushand the amount of the legacy,
taking from the husband an as-
signment of it. The tenant in tail
in remainder of the land charged
became the residuary legatee and
executor of the father, and paid
the father's debts and legacies to
an amount greater than that of the
father's personal estate. Upon the
widow afterwards dying — Held,
that the son must be considered to
have been beneficially entitled both
to the legacy and the land charged
with it, and must be presumed to
have received the legacy, and that
it was thus so reduced into posses-
sion that the niece was not entitled
to a settlement out of it. Held,
also, that the result would be the
same whether the assignment to
the niece*s father was absolute or
by way of mortgage only. Allday
V. Fletcher. Page 82

ft, A married woman entitled to the

income of a legacy for her sepa-
rate use, continued for fifteen
years, with full notice of the cir-
cumstances affecting her rights,
to receive income on the ktoi'ing
that the legacy was liable to con«
tribute in favour of the residuary
legatees to a loss occurring on the
reinvestment of part of the estate.
It was afterwards decided that the
legacy was not liable so to con-
tribute, but must be paid in full :
— Held, that she was not entitled
to recover from the residuary
legatees the. difference between
the income of the full amount of
the legacy and the reduced income
she had actually received.

Whether her claim, apart from
acquiescence, was not to a great
extent barred by the Statute of
Limitations, quare, Stafford ▼.
Stafford. Page 193

See Mistake.

Settled Estates Act.

INJUNCTION.
1. It is not imperative on the Court
to enforce by interlocutory injunc-
tion a statutory prohibition, and
where a railway company were
about to violate a clause in their
Act expressly prohibiting the open-
ing of a main line until a junction
line was opened, but which ap-
peared to have been introduced
merely for the purpose of obliging
the company to complete speedily
the junction line, the Court, on
an undertaking being given to
complete the junction line with all

INDEX TO THE PRINCIPAL MATTERS.

687

practicable diligence^ suspended
an interlocutory injunction granted
by the Court below to restrain
the opening of the main line.
Cromford High Peak Railway
Company v. Stockport, DisUy, ^c.
Railway Company, Page 326

2. A Defendant in an action pleaded
an equitable plea, upon which
issue was joined, and a verdict
found for the Plaintiff. After
verdict^ but before judgment, the
Defendant filed a bill setting up
substantially the same case as that
in his plea, and applied for an in-
junction which was refused. Three
days later judgment was entered
up, after which the Defendant at
law gave notice of motion, by way
of appeal from the order refusing
the injunction : — Held, that the
application was too late and must
be refused.

Semblet that the Vice-Chancellor
was right in refusing the injunc-
tion, although when it was applied
for judgment had not been entered
up. Terrell v. Higgs, 388

See Practice, 1.
Waste.

INSOLVENT.

See Protection.

INSURANCE.
See Winding-up Acts, 1.

INTERPLEADER.

See Practice, 1.

ISSUE.

See Will, 9.

JOINT-STOCK COMPANY.
See Winding-up Acts, 1, 2.

JUDGMENT CREDITOR.
A. agreed to sell land to ^., who ac-
cepted the title, paid part of his
purchase-money, and was let into
possession, but took no convey-
ance. A, subsequently obtained a
decree against jB. for sale of the
property, and payment of the ba-
lance of purchase- money out of the
proceeds.

Held, that a purchaser under the
decree could not be compelled to
complete without the concurrence
of the registered judgment cre-
ditors of B,j whose judgments
were prior to the decree, and who
were not parties to the suit. Grey
Coat Hospital v. Westminster Im^
provement Commissioners, Page^31.

JURISDICTION.
See Practice, 2.
Trustee, 3.

JURISDICTION OF COMMIS-
SIONER.
See Bankruptcy, 2.

LANDLORD AND TENANT.
See Bankruptcy, 6.

Principal and Surety.
Specific Performance.

LANDS CLAUSES CONSOLI-
DATION ACT.
Trustees of a charity purchased land
and covenanted to erect upon it

688

INDEX TO THB PRINCIPAL MATTERS.

buildings, consisting of a hall in
the centre, with almshouses (some
on each side of the hall, and others
forming wings of the main build-
ing), with a garden in the centre,
A portion was to be built within a
speciBed time, and the rest as funds
were subscribed. Before more
than the centre was completed a
railway company, under the pro-
visions of the Lands Clauses Con-
solidation Act, required to take a
portion of the land which, when
the design was complete, would be
part of the garden in front of one
of the intended (but then unbuilt)
almshouses. Held^ that the land
was part of a house within the
meaning of the 92nd section of the
Act. LordGrosvenorv. Hampstead
Junction Railway Company,

Page 446

LEASE.

See Specific Performance.

LEGACY.
See Husband and Wife, 1, 2.
Mortmain.
Will, 1, 5, 6, 7, 8.

LIEN.

See Bankruptcy, 2, 6.

Vendor and PurchaseRi 3.

LIMITATIONS (STATUTE OF).

Payment by a devisee for life of in-
terest on a specialty of his testa-
tor's, in which the heirs were
bound, held to be an acknowledg-
ment made ^'by the party liable
by virtue of such specialty ," within

the meaning of the 5th tection of
the Act 8 & 4 Will. 4, c. 42, and
as such sufficient to keep the right
of action alive in its integrity
against all parties interested in re-
mainder.

Money due on a bond by an
ancestor is not a sum of money
payable out of land within the
meaning of the 40th section of the
Act 3 & 4 Wm. 4, c. 27. Roddam
▼, Morley, Page 1

See Husband and Wipe, 2.

LIS PENDENS.
The doctrine as to the effect of lis
pendens on the title of an alienee
is not founded on any principles of
Courts of Equity with regard to
notice, but on the ground that it is
necessary to the administration of
justice that the decision of the
Court in a suit should be bindings
not only on the litigant parties, but
on those who derive title from
them pendente lite, whether with
notice of the suit or not.

A person who, without notice of
a suit, purchases from one of the
Defendants property which is the
subject of it, is not in consequence
of the pendency of the suit affected
by an equitable title of another
Defendant, which appears on the
face of the proceedings, but of
which he has no notice and to
which it is i>ot necessary for any of
the purposes of the suit to give
effect.

F. B., the heir-at-law of E. B.,
filed a bill against /. B, and S,, to
impeach two agreements, one of

INDEX TO THE PRINCIPAL MATTERS.

689

which was for the tale of a life
estate by /. B. to E. B., and by
the other of which E. B, had
agreed to sell to S. the entire fee-
sirople, which accordingly was con-
veyed to S, by /. B. and E, B.
After the institution of the suit S.
mortgaged to B, and G. The bill
was dismissed as to the 6rst agree-
ment, but the second was set aside
and a decree made for a reconvey-
ance by S. to F, B> on the terms
of F, B, making certain payments
io S. It was afterwards decided
in another suit, on the state of facts
which appeared in the first suit,
that /. jB. was entitled to a lien on
the estate as against F, B, and S.
for monies payable under the first
agreement i^Held, that B. and G.
not having when they took their
mortgage any notice of the first
suit, or of the circumstances on
which /. B.*s claim was founded,
were not affected, on the ground
of the pendency of the first suit,
by the claim of J. B«; though,
owing to the pendency of that suit,
they were entitled as against F. B.
to no more than S. was entitled to.
Bellamy v. Satnne, Page 566

MACHINERY.
See Bankruptcy, 6.

MARRIAGE AGREEMENT.
See Trust.

MARRIED WOMAN.
See Husband and Wife, 1, 2.

MERCANTILE LAW AMEND-

MENT ACT.

See Trustee, 1.

MISTAKE. .
By marriage articles made in 1811,
it was agreed that certain personal
estate of the intended wife, who
was a minor, and known by the
husband to be so, and her interest
in a freehold estate called the H.
Estate, should be settled upon
certain trusts, under which the
husband took a life interest, and
the wife, on failure of the trusts
for the issue of the marriage, had
a power of appointing the person-
alty by will. The personalty was
afterwards duly transferred to the
trustees of the articles. In 1885
the only issue of the marriage died,
and the trusts for the issue failed
of efiect. The wife died in 1840,
having by will appointed the per«
sonahy to some of her relatives.
In 1855 her interest in the H.
Estate, (which was a contingent
limitation in fee,) vested in pos-
session and went to her heir, no
fine having ever been levied to
confirm the articles. It did not
appear that the husband had ever
asked the wife to join in a fine, or
that there was any ground to sup-
pose that, if asked, she would have
refused. The husband filed a bill
seeking compensation from the
wife's appointees for the loss of
his life interest in the real estate.
Held, that the loss must be deemed
to have been occasioned by his
own negligence, and that he had

690

INDEX TO THE PRINCIPAL MATTERS.

no title to the relief sought. Camp-
bell V. hgilby. Page 393
See Qualification.

MISTAKE OF COURT.
See Costs.

MORTGAGE.
A mortgagee, with a power of sale,
either by public auction or private
contract, and a proviso that all
arrangements, sales, conveyances,
acts, matters and things made and
done by him should be as valid
without, as if made with, the con-
currence of the mortgagor, sold by
private contract and agreed that a
part of the purchase-money might
remain on a mortgage of the pro-
perty sold:— //e/rf, that the sale
was not invalidated by the want of
a previous attempt to sell by auc-
tion or by the stipulation as to
the purchase-money remaining on
mortgage, but was good as re-
garded both the purchaser and the
mortgagee.

The same mortgagee, being in
possession, o0ered to give a portion
of the land as a site for a building
in the nature of a hospital, but
being apprised by the proposed
grantees that his title did not en-
able him to do this, he agreed to
sell the site to the institution at a
valuation, and to give the price to
the charity. The land was con-
veyed in pursuance of the con-
tract:— Heldt that this was not a
valid sale within the terms of the
power.

The mortgagors had approved of

a general building plan with which
the edifice built for the charity was
not at variance: — Held^ that the
transaction could only be set aside
on reimbursing to the grantees the
whole sum laid out by them upon
the land. Davey v. Durrant,

Page 5$S
See Bankruptcy, 7, 8, 9.
Tolls.

MORTMAIN.
A bequest to . a corporation for
founding, establishing and uphold-
ing an institution within a mile of
fVestmmsier, Southwark or Dublin,
for studying and endeavouring to
cure maladies of any quadrupeds
or birds useful to man, Held^ a
good charitable bequest, and not
within the Mortmain Act, as in-
volving the acquisition of land in
England. Unicersity of London v.
Yarrow, 72

NOTICE.
See Bankruptcy, 7, 8, 9.

ORDER AND DISPOSITION.

See Bankruptcy, 6, 7, 8, 9.

PARENT AND CHILD.

See Trustee, 2.

PAROL CONTRACT.

See Specific Performance.
Vendor and Purc&asek, 1

- INDEX TO THE PRINCIPAL MATTERS.

691

PARTICULARS OF SALE.
See Vendor and Purchaser, 2.

PARTNERSHIP.
See Bankruptcy, 3.

PART PERFORMANCE.

See Specific Performance.

PATENT.

See Costs.

PETITION.
See Bankruptcy, 1.

PLEA, EQUITABLE.
See Injunction, %.

POLICY.
See Winding-up Acts, 1.

PORTIONS.
See Will, 2.

POWER.

See Trustee, 2.
Will, 2.

POWER OF SALE.

See Mortgage.

PRACTICE.
1. Leave given, valeat quantum, to
file a bill of interpleadcri on an
affidavit by the solicitor of the
Plaintiffs that there was no col-
lusion, the Plaintiffs being abroad,
and the case being pressing.

L. bought goods, and as he al-
leged, from M, B,y from whom
M. had ordered them, commenced
in December an action against Z.

for the price, and arrested him,
and, in the February following,
obtained a verdict. L, obtained
from a common law judge stay of
execution on paying the purchase-
money into Court, and applied for
a new trial, which on the 16th
April was refused. He then filed
a bill to make M, and B. inter-
plead, and for an injunction to
restrain the taking the money out
of Court. The injunction was re-
fused.

Per the Lord Justice Knight
Bruce : — The time which had been
allowed to elapse was a bar to the
application.

Per the Lord Justice Turner : —
Such a bill would not lie, being
in the nature of a bill for a new
trial — the only point at issue being
whether L, was a debtor at law to
B,t which it had been decided at
law that he was. Larabrie ▼.
Brown, Page 204

2. Where Scotch executors had under
an English probate possessed them*
selves of English assets of a Scotch
testatrix, and removed the greater
part of them into Scotland, in
which country a suit was pending
for administration of tbose assets
and of Scotch property comprised
in the will: — Held, by Lord Jus-
tice Knight Bruce, affirming the
decision of V. C, Kindersley, du-
bitante L. J. Turner, that the ex-
istence of such a suit was not suf-
ficient ground for refusing leave
to serve the executors who were
out of the jurisdiction with a bill
filed in the Court of Chancery of

692

INDEX TO THE PRINCIPAL MATTERS. '

England for the administration of
the testairtx'a estate. Innes v.
MUchelL Page 42.1

d. An order on motion dismissinfi
a bill for want of prosecution may
properly be enrolled and is pro-
perly entitled in the cause as it
stood at the date of the order on
the record, although in fact some
of the parties named in the title
may be then dead, and the suit
may have been rcTived between
the date of the order enrolled and
the enrolment.

A mere communication to a so-
licitor of an intention to appeal is
not sufficient to preclude him from
enrolling an order without giving
notice of his intention. Williams
V. Page. 561

4. The Court will not in general
hear appeals directly from Cham-
bers where the parties have not
had an opportunity of being heard
by Counsel. Strough'tll v. Gul-
Hver. 113

See Bankruptcy, 1, 2.

EviDBNCE.
PapTECTION.

PREFERENCE SHARES.
Preference shares in a Railway Com-
pany were issued under the pro-
visions of an Act of Parliament
authorising the Company to gua-
rantee the payment of dividends
thereon at a fixed rate in pre-
ference to the payment thereof on
the ordinary shares of the Com-
pany. The resolution for issuing
them provided that they should
bear " 6L per cent, interest or

preference dividend in perpetuity."
Other preference shares were is-
sued under an Act of Parliament
providing that the holders should
be entitled to dividends thereon
at a given rate " in preference to
the payment of dividends oo the
ordinary shares:** — HeU tbat if
the profits at any period of dis-
tribution were insufficient to pay
in full the dividends due to the
preference shareholders, the ar-
rears must be p«d out of subse-
quent profits.

A subsequent Act of Parliament
directed the profits of a particular
half-year to be applied in re-
placing a loss sustained by the
Company, and directed the sur-
plus, if any, to be applied, so far
as it would extend, in paying the
preference shareholders their di-
vidends for that half-year : — Heldj
that this Act did not take away
their claim against the subsequent
profits, and that the right given
them by the latter direction was
cumulative and not substitutionary.
Henry v. The Great Norlhem Hail-
way Company. Psge 606

PRESUMPTION.
See Husband and Wxfs, 1.

PRINCIPAL AND SURETY.
Landlords advance money to their
tenant on a joint note of himself
and a surety. They afterwards
take a security for this and ano-
ther sum advanced at the same
time, by an assignment of furni-
ture of the tenant by way of mort-

INDEX TO THE PRINCIPAL MATTERS.

693

gage : — Heldy that, by takiog the
furniture under a distress for rent
in arrear, they discharged the
surety. Pearl v. Deacon,

Page 461
See Trustee, 1.

PROOF.
See Bankruptcy, 3, 4, 5.

PROTECTION.
Ad interim order for protection under
the 5 & 6 ricL c, 1 16 ; 7 & 8 Vict.
c. 96, and 10 & 11 Vict. c. 102,
held to extend to an attachment
for nonpayment into the Court of
Chancery of a sum of money by
a defaulting trustee. Wyllie v.
Green^ 410

PUBLIC COMPANY.
See Injunction, 1.

Lands Clauses Consolidation

Act.
Preference Shares.
Winding-up Acts, 1, 2.

QUALIFICATION.
A.^ the owner of estates in the Bed'
ford Level, wishing to give his son
a qualiBcation as bailiff, for which,
according to the Bedford Level Act,
it is necessary to " have" 400
acres in the Level, wrote to the
registrar of the Level stating his
wish, and asking him to find a qua-
lification. The registrar there-
upon, without any further instruc-
tions, selected out of A.*i land the

smallest lot that exceeded 400
acres, and sent to him a deed, by
which he purported to convey it
to the son in fee, in consideration
of natural love and affection. This
deed was at once executed by A,
and registered. The son died
soon after without having ever
heard of the transaction. It clearly
appeared that neither A. nor the
registrar intended or considered
the transaction to have the effect
of making the son beneficial owner,
nor intended any fraud or ille-
gality. On a bill being filed by A.
to establish his title to the land —

Held, that the letter written by
A, to the registrar excluded any
defence grounded on the Statute
of Frauds.

Held, on the construction of the
Bedford Level Act, that a dry legal
estate was a sufficient qualification,
and that, therefore, there was
nothing illegal in A*$ design — no
intention to represent the son as
beneficial owner appearing.

Held^ that, on the ground of
trust, or of mistake, or on both
grounds, the Plaintiff was entitled
to the relief sought.

Held^ that this conclasion was
not affected by the circumstance
that the legal estate was outstand-
ing under a mortgage in fee not
known to the registrar.

Per the Lord Justice Turner^
semble, that, even apart from the
Plaintiff's letter, the Statute of
Frauds would not have been a
good defence. ChUders v. Chil'
ders. Page 482

694

INDEX TO THE PRINCIPAL MATTERS.

RAILWAY COMPANY.
See Injunction, 1.

Lands Clauses Consolidation

Act.
Preference Shares.

RAILWAY SHARES.
See Bankruptcy, 7.

RECEIVER.

See Tolls.

REDUCTION INTO POSSES-
SION.
See Husband and Wife, I.

REHEARING.

See Bankruptcy, 2.

REPUTED OWNERSHIP.

See Bankruptcy, 6, 7, 8, 9.

RETAINING BILL.
See Bill.

RETURN PROCEEDS.

See Bankruptcy, 2. j

REVERSIONARY INTEREST. '
See Bankruptcy, 9.

REVOCATION. \

See Will, 8.

SEPARATE ESTATE.
See Husband and Wife, 2.

SERVICE ABROAD.
See Practice, 2.

SETTLED ESTATES ACT.
The examination of a married wo-
man under the S7th section of 19
& 20 VicL c. 120, ("An Act to
facilitate Leases and Sales of
Settled Estates,") ought not to
take place until the petition has
been presented and answered and
carried into the Chambers of the
Judge by whom it is to be heard,
but ought to take place before any
judicial step lias been taken by him
upon it.

The issuing of advertisements
under the 20th section, before the
examination, will not invalidate
the proceedings, but as a general
rule it is desirable that the exa-
mination should take place imme-
diately after the petition has been
carried into Chambers. Re Fa$^
ter'i Settled Estates. Page S86

SETTLEMENT.
See Will, 2.

SOLICITOR.
See Bankruptcy, 3, 7, 9.

SPECIFIC GIFT.
See Will, 5.

SPECIFIC PERFORMANCE.
A parol agreement was entered into
for a lease on terms, which, by the
direction of the proposed lessor,
the proposeil tenant instructed a
solicitor to reduce to writing. The
solicitor took down the terms as
stated by the tenant, and after-
wards prepared from them a draft
agreement, embodying these and

INDEX TO THE PRINCIPAL MATTERS.

695

other termS| and sent it to the
lessor, who afterwards, and with-
out objecting to it, let the tenant
into possession, and directed the
solicitor to prepare a lease in con-
formity with the draft agreement,
but subsequently objected to the
lease so prepared, and gave the
tenant notice to quit. — Held,

That the delivery and taking of
possession was a sufficient part
performance of the agreement, as
expressed in the draft, to exclude
a defence founded on the Statute
of Frauds.

That there being a conflict of
evidence on the question whe-
ther the covenants agreed upon
had not been already broken, the
proper decree was to direct the
lease to be dated at a time ante-
cedent to the alleged breaches, and
to require from the Plaintiff an
undertaking to admit in any action
that the lease was executed on the
day of its date.

QiLcere — whether possession
taken previously to, but continued
after, a parol agreement, may not
be such a part performance as to
exclude a defence founded on the
Statute of Frauds. Pain v. Coombs,

Page 34
See Vendor and Purchaser, 1.

SPECIALTY DEBT.
See Limitations, Statute of.

STATUTE.
See Tolls.

Vol. I.

STATUTE OF FRAUDS.
See Qualification.

Specific Performance.
Vendor and Purchaser, 1.

STATUTE OF LIMITATIONS.
See Husband and Wife, %,
Limitations, Statute op.

STOCK.
See Bankruptcy, 11.

STOP ORDER.

See Bankruptcy, 8, 9.

SUBSTITUTION.
See Will, 9.

SURETY.
See Principal and Surety.
Trustee, 1.

SURVIVORS.
See Will, 6.

TIMBER.
See Waste.

TIME.
See Bankruptcy, 1, 2.
Bill.

Evidence.
Injunction^ 2.

TOLLS.
The trustees of a turnpike road be*
ing desirous of obtaining an Act
authorizing the making a new road
connected with the former, the
Plaintiff agreed to advance 2,000/.

Z Z D.J.

696

INDEX TO THE t»RINCIPAL MATTERS.

for the purpose of making the new
road, upon having the repayment
secured by a mortgage of the tolls
of both roads. The trustees ob-
tained an Act which authorized the
making of the new road, repealed
the Act under which the old road
was made, and placed both roads
under one system of management,
treating them for most purposes
as one road. By this Act it was
provided that the tolls of the old
road should be applied (1) in pay-
ing the expenses of obtaining the
Act ; (2) in paying the interest on
mortgages of the tolls receivable
under the old Act ; (3) in repair-
ing the old road ; and (4) in paying
the principal of the old mortgages :
and that the tolls of the new road
should be applied (1) in paying
the expenses of obtaining the
Act ; (2) in making and repairing
the new road ; (3) in paying the
interest of money borrowed on
the tolls of the new road ; (4) in
paying the principal of monies
borrowed under the repealed Act
or borrowed on the tolls of the
new road. The Plaintiff advanced
the 2,000/., and a mortgage was
made to him of the tolls, toll-
houses, &c, in such a form that it
was doubtful whether it extended
to the tolls of the new road.

Held, on the context of the Act,
that it did not take away the power
of mortgaging given by the General
Turnpike Act, 3 Geo, 4, c. 126,
s. 81 ; that the trustees, therefore,
had power to mortgage the tolls of
the old road as well as the new

road for monies borrowed for the
purposes of the new road, and
that the Plaintiff, having advanced
his money on the faith of having
a security on both roads, was en-
titled in equity, if not at law, to a
security on the tolls of the old
road as well as of the new.

A mortgagee of turnpike tolls
and toll -houses, which are in lease
and are subject also to other mort-
gages, may apply to this Court to
have a receiver appointed, instead
of taking steps to obtain posses-
sion at law. Cremc ▼. EdUstoiu

Page 93

TRUST.
An elderly lady married a barrister
who had for some years been her
confidential friend and adviser.
Before the marriage a lengthened
correspondence took place be-
tween them, in which she insisted
that her personal estate should be
settled so as to be *' hers as if un-
married/* and hers " to give, to
use and to will.'* He assented to
this, and undertook to prepare the
settlement. By the marriage he
acquired, under her father's will, a
life interest, expectant on her de-
cease, in a considerable sum of
stock : — Heldf that having under-
taken to prepare the settlement,
he was bound to prepare such a
one as under the circumstances a
conveyancer would have drawn or
the Court would have sanctioned
— that such a settlement would
have given him no interest in her
absolute property in default of ap-

INDEX TO THE PRINCIPAL MATTERS.

697

pointment by her, and that, she
having died without making any
disposition in his favour, he was a
trustee of her personal estate for
her next of kin. Corky v. Lord
Stafford. Page 238

See Qualification.

Winding-up Acts, 1.

TRUSTEE.
1 • One of two trustees of a deed of
settlement had, with the advice of
the other, who was a solicitor, and
who had acted as the legal ad-
viser of the trustees, concurred in
the investment of trust funds on
unauthorized securities. The so-
licitor died, and a suit was insti-
tuted against the surviving trustee
and the representative of the de-
ceased trustee, to have the loss
made good occasioned by the
breach of trust. Another suit was
instituted for the administration of
the estate of the deceased trustee.
In the latter suit proof was made
in respect of the loss as a specialty
debt, and the amount of the assets
payable in respect of the proof
was ordered to be transferred to
the credit of the other suit. In that
suit the unauthorized securities
were realized, and were nearly
sufficient to make good the breach
of trust, and after it had been made
good out of the proceeds, and out
of the money transferred from the
administration suit, there remained
a surplus. Held,

That the surviving trustee was
not, independently of the Mercan-
tile Law Amendment Act, a spe-

cialty creditor of the deceased
trustee in respect of costs which
he had paid under the decree in
the settlement suit.

That that Act is applicable to
contracts made before it passed,
and applied to the amount which
the surviving trustee had paid
since the passing of the Act.

That the surviving trustee was
not entitled to have the fund
transferred from the administra-
tion suit applied in the first in-
stance to make good the breach
of trust, and to have the proceeds
of the unauthorized securities
treated as part of the trust fund
out of which his costs were pri-
marily to be paid, but that those
proceeds were to be first applied,
and the deficiency made up out of
the fund transferred from the ad-
ministration suit, leaving the ba-
lance of that fund to be transferred
back to the credit of the adminis-
tration suit, and applied rateably
towards payment of the costs of
the surviving trustee, and the ge-
neral simple contract debts of the
deceased trustee. Lockhart ▼•
Reilly. Page 464

2. A fund was settled on A, for life,
with remainder to such of his chil-
dren or remoter issue by his de-
ceased wife as he should appoint.
Shortly before his son, the only
child of the marriage, attained
twenty-one A. requested the trus-
tees to prepare for a transfer of
the fund to himself and his son,
such transfer as to the greater
part of the fund to be into J.*s

z z 2

698

INDEX TO THE PRINCIPAL MATTERS.

own name. Not long before this
A. had complained to one of the
trustees of his son's extravagance,
and had said to the solicitors of
the trustees that a son ought to be
dependent on his father. On the
son's coming of age A. made an
appointment of the fund to him,
and they then applied to the
trustees to transfer it into their
joint names. The son was living
with the father's solicitor : — Htld^
by the Lord Justice Turner (dis-
sentiente the Lord Justice Knight
Bruce), that the trustees had been
rightly allowed their costs of a
suit to obtain such transfer ; for
that they were justified in de-
clining to make it without the
sanction of the Court, though the
son was represented by a separate
solicitor and declarations were
made that there was no bargain
between him and the father for
the father's benefit. King v. King,

Page 663
3. The Court has jurisdiction to
order a trustee to pay the costs
of an application for payment out
of Court of a fund paid in by him
under the Trustee Relief Act, 10
& 11 Fict. c. 96.

A trustee of a small trust fund
which had become divisible called
upon the claimants for proof of
their title. They procured evi-
dence which, though not techni-
cally complete, was tolerably satis-
factory, and he declared himself
ready to pay the fund to them.
Afterwards, without assigning any
reason, he receded from this de-

termination, and the matter, whicfa
had been conducted on his be-
half by his country solicitors,
was placed in the hands of his
London agents, who made various
objections to the sufficiency of the
evidence. The claimants produced
additional evidence, and requested
to know what more the trustee
required, and offered to produce
it. The trustee however, with-
out waiting for its production,
paid the money into Court. The
applicants petitioned for pay-
ment of the fund to them, and
m^ade out their title to the satis-
faction of the Court : — Heid, that,
under the circumstances, the trus-
tee had been properly ordered to
pay the costs of the petition. In
re Woodbum. Page 333

See Protection.

TURNPIKE ACTS.

See Tolls.

UNCERTAINTY.
See Covenant.

UNDUE INFLUENCE,

See Trustee, 2.

VACATING ENROLMENT.
See Practice, 3.

VENDOR AND PURCHASER.
1. During parol negotiations for the
purchase of an estate, the vendor

INDEX TO THE PRINCIPAL MATTERS.

699

wrote to the purchaser's solici-
tor, proposing that the solicitor's
** client" shoald advance a sum to
pay off a mortgage on the pro-
perty. After further parol nego-
tiations as to the terms they were
agreed upon by parol, and the
vendor signed and handed to the
purchaser a written statement of
the particulars of the property and
of the price. On the following
day he signed and addressed to the
purchaser a letter containing the
following passages : — " I am about
to relet the land at P. for another
year, concluding you will agree to
it. . . The Ladif Day rents will be
mine and the Michaelmas yours :"
— Heldf that the signed statement
of particulars was not a sufficient
memorandum in writing, the pur-
chaser's name not being mentioned
in it, and that the defect was not
supplied by the correspondence.
Skelton V. Cole. Page 587

2, A house was stated in particulars
of sale to be " in the occupation of
the C. J. Company under a lease."
The Company were in occupation
by virtue of a lease, which, how-
ever, had not been granted to them,
but to J., B. and C, who were their
trustees. The vendor's solicitor
immediately before the sale told
the purchaser that he did not re-
member the names of the lessees,
but believed that A. and B. were
two of them. The purchaser ob-
jected to the title, on the ground
that the above statement in the
particulars amounted to a repre-
sentation that the company were

the lessees : — Held^ that, assuming
the statement to be such that if the
case had stood on the particulars
only, the contract ought to have
been rescinded, the purchaser,
having bought with the above in-
formation, must be held to his
bargain. Farebrother v. Gibson,

Page 602
3. A. agreed to purchase an estate
from JB., and upon the estate being
conveyed to grant a life annuity to
B. to be secured by bond. Held^
that B, had no lien on the estate
for the payment of the annuity,
but was entitled (the purchaser
being dead and there having been
no conveyance) to have the an-
nuity secured by a valid and ef-
fectual bond before he could be
called upon to convey the estate.
Dixon V. Gayfere. 655

See Judgment Creditor.

VESTED INTEREST.
See Will, 6, 9.

VOLUNTARY SETTLEMENT.

See WiNDiNO-up Acts, 1.

WASTE.
A testator left his mansion-house oa
the B, estate, went to reside on
another estate at the distance of
about eight miles, pulled down the
B, mansion-house, cut down some
of the ornamental timber about it,
turned the estate into a cover for
game, and altogether acted so as
to show that he had no intention

INDEX TO THE PRINCIPAL MATTERS.

that the mansion-house should be
rebuilt. Held, that the rest of
what had originally been orna-
mental timber on the B. estate was
not, as between the parties claim-
ing under the will, protected as
ornamental, but might be cut by a
tenant for life whose estate was
without impeachment of waste.

The testator y when he did the
above acts, was only tenant for life
in possession, with an ultimate re-
version to himself in fee expectant
on the failure or determination of
8 subsequent estate for life and va-
rious estates tail, which did not fail
and determine till after his death.
Held, that as between the parties
claiming under his will, the case
stood on the same footing as if he
had been entitled in fee simple in
possession.

The testator devised his estates to
A. B, for life without impeachment
of waste, " except voluntary waste
in pulling down houses and not re-
building the same or others of
equal or greater value.*' J, B,
pulled down the mansion-house,
with the intention of forthwith
building a better on the site, and
was proceeding with all reasonable
dispatch to carry such intention
into effect. Held, that the person
entitled to the next vested remain-
der was not entitled to have a re-
ceiver of the rents appointed in
order to secure the rebuilding of
the mansion. MickUthwaite v.
Michkihwaite, Page 504

WIFE.
See Husband anh Wife.

WILL.

1. A tesUtor bequeathed 20,OO0/L
Consols upon trust, to pay the
dividends to his wife for life, and
after her decease to B, (the wife of
A.) for life for her separate use,
and afVer the death of B, upon
trusts for the benefit of BJi chil-
dren. The testator's wife, who
was his residuary legatee, survived
him only two days^ and by her
will, after giving several legacies
of 100/. each, bequeathed to A,
and B. " the same amount and on
the same trusts and conditions" as
were " named'* in her late hus-
band's will. She directed her
residuary estate to be divided into
two moieties, whereof she gave
one to A. and B. and their chil-
dren, " on the same trusts as be-
fore alluded to." There was no
other part of the testator's will to
which the bequest in the testatrix's
could be referred except that
above stated. Held, that a legacy
of 20,000/. Consols passed by the
wife's will on the same trusts as
those above mentioned of the hus-
band's will. Stephens v. Powys.

Page 24

2. A term of years was limited by
will to trustees upon trust, if there
should be two or more younger
children of T. D,, to raise for their
portions 9uch sum or sums, not
exceeding 8,000/. as T. Z). should
appoint^ and in default of appoint-
menty the sum of 8,Q00/. to be

INDEX TO THE PRINCIPAL MATTERS.

701

paid to such of the children and
in such shares as T. D. should ap-
point, and in default of appoint-
ment, to all the children equally.
T, D., hy his marriage settlement,
directed that 6,000/. should be
raised for the younger children of
that marriage, if two or more, and
that if he should survive his in-
tended wife and die without being
married again, or if so married
should not have any issue of any
future marriage who should take
an interest in the sum provided by
the will for younger children, then
the further sum of 2,000/. should
be raised for the younger children
of the first marriage, if there should
be two or more. Neither the will
nor the settlement contained a
hotchpot clause. Afterwards T, D,
appointed to one of his daughters
" the sum of 2,000/., part of the
sum of 8,000/., made raisable by
the will in the event which has
happened, of there being two or
more younger children." T. D.
died in the lifetime of his wife.

Held, that, on the construction
of the will, 8,000/. was to be raised
unless T, D, directed that a less
sum and no more should be raised,
and that neither of the instruments
executed by him contained any-
thing amounting to such a direc-
tion, and that therefore 8,000/.
and not 6,000/. only must be
raised.

Semble, that T. D*s settlement
ought to be construed as directing
that if no child of a future lisar-
riage became entitled, the ad-

ditional 2,000/. should be raised
for the children of the first mar-
riage.

Held, reversing the decision of
the Court below, that the ap-
pointee of 2,000/. was entitled to
participate in the unappointed
6,000/. Walmetley v. Vaughan.

Page 114
8. A hotel keeper by his will be-
queathed his property to trustees,
upon trust to permit his widow to
carry on the business, so long as
it could be carried on with advan-
tage to his estate, and to permit
her to receive the profits, so that
she might maintain herself and her
family, and educate the testator's
children. He also directed that
if the profits were insuBScient for
this purpose, the deficiency should
be supplied out of the income of
the general estate, which, subject
to this direction, was to be accumu-
lated, and, with the principal, to
be divided among the testator's
children on their attaining twenty-
one. There was a proviso that if
from any cause it should be ad-
visable to discontinue the business
(which the trustees were to have
power to do) the stock in trade
should be sold, and the proceeds
form part of the general estate,
and that the income of the whole,
or so much of the income as should
be required, should be applied in
the maintenance of the testator's
wife and family and the education
of the children : — Held^ that, on
the widow by misconduct becom-
ing unfit to maintain and educate

70S

INDEX TO THE PRINCIPAL MATTERS.

the children, she was not entitled
to the surplus profits afler setting
apart sufficient for their main-
tenance and education, but could
only claim maintenance for herself.
Castle V. Cattle. Page 352

4. A testator bequeathed to his
daughter an annuity of 100/. while
she remained single, but on her
marriage, and on some adequate
provision made, and which he di-
rected to be made by settlement
for her for life and to the use of
her issue, he bequeathed to and
for her use 2,500/., and in default
of such issue, he bequeathed that
sum for the benefit of his grand-
children who should be then living.
The daughter married, but no
settlement was made, and the
annuity continued to be paid to
her. She had an only child, who
died in her lifetime under age : —
Held^ that the gifk over did not
take effect, and that her personal
representative was entitled to the
2,500/. Findon v. Findon. 380

5. A testator gave various annuities
for lives with bequests over of
them and charged them upon his
freehold and leasehold estates.
He gave all his real and personal
property to trustees in trust to
pay the rents of his freehold, copy-
hold and leasehold estates, and the
interest of all his stock in the pub-
lic funds, with the interest of all
mortgages, annuities and other
securities of which he might die
possessed, to his son for life, with
a disposition in favour of the son's
children, and after his death with-

out any (which happened), the
testator gave his freehold, lease-
hold and copyhold estates to one
daughter and her issue, and all
his funded property and other
personal estate to another daugh-
ter and her issue. Held, that the
gift of the leasehold estates to the
one daughter was specific, but
that the gid of the funded property
to the other was not, and that the
latter was consequently chargeable
with the annuities in priority to
the former. Held also, that in
case of its insufficiency, the free-
holds and leaseholds specifically
devised and bequeathed must con-
tribute rateably to the payment of
the annuities. Held also, that, for
the purpose of this contribution,
the values of the freeholds and
leaseholds must be taken at the
death of the testator, and not at
the death of the tenant for life.
Fielding v. Preston, Page 438

6. A testator devised and bequeathed
his residuary estate in trust for his
widow for life, and at her death to
sell and pay, assign or transfer the
monies arising therefrom to the
testator's four children by name,
equally to be divided between
them, share and share alike, " or
equally to divide the aforesaid ef-
fects between the survivors of* his
said children, immediately after his
wife's decease, in case the youngest
of the said children for the time
being should then have attained
twenty-one years ; but if the
youngest should not then have at-
tained twenty-one years, the testa-

INDEX TO THE PRINCIPAL MATTERS.

708

tor directed the trustees to receive
the annual interest, produce, profits
and proceeds of the trust monies^
and pay and apply as much of the
interest as should arise from the
equal share of each child in the
maintenance and advancement of
each such child, as the trustees
should deem expedient. Held,
that there was a clear gift to the
children equally, that the provision
as to survivors was not sufficiently
clear to control it, and that, con-
sequently, all the children took
vested interests, which were not
divested hy their dying in the life-
time of the widow. Blackmore v.
Snee, Page 455

7. A testator gave to his daughter all
his books, plate, linen, china, wear-
ing apparel, watches, jewels and
money (except money at the bank-
ers, or in the funds, or placed on
security), and all other property not
otherwise disposed of. And he di-
rected that, unless indispensably
necessary, his funded and other
property should remain as it was
until the decease of certain annui-
tants under the will, and on the de-
cease of the annuitants he directed
the whole of his personal estate to
be invested in government secu-
rities, and one-fourth part to be
transferred to the Royal Society,
and the other three parts to other
specified public institutions. Held,
that the daughter was not entitled
to railway shares, foreign securities
or other investments forming parts
of the testator's personal estate,
but that these descriptions of pro-
Vol. I.

perty passed under the residuary be-
quest. Ludlow V. Stevenson, p. 496

8. A testator gave to each of his
daughters a legacy of 1,500/., and
gave a legacy of 6,500/. upon trusts
for each of them and her children ;
and in the event of any of the
daughters dying without having
children who should attain a vested
interest, he directed that the
6,500/. legacy of each of such last-
mentioned daughters should go
over to the other daughters and
their children, in equal shares, per
stirpes, their respective shares to
be held upon the same trusts for
them and their respective children

. as were declared concerning their
original legacies of 6,500/. After-
wards, on the marriage of E. A,,
one of his daughters, he settled on
her by deed 8,000/. By a codicil
reciting the gift of the two sets of
legacies and the advance of the
8,000/., and that the testator in-
tended it to be in satisfaction of
the two legacies of 1,500/. and
6,500/. bequeathed to or for her
benefit as aforesaid, the testator
revoked the said legacies of 1,500/.
and 6,500/. in and by his said will
given and bequeathed " to or for
the benefit of*' his said daughter
E. A., "and otherwise as in the
said will '* was mentioned.

Held, that the codicil revoked
only the original legacies of 6,500/.
and 1,500/. to £. A. and her chil-
dren, and not their contingent in-
terest under the gift over of the
other 6,500/. legacies.

Held, also, that though the trusU
3 A D.J.

704

INDEX TO THE PRINCIPAL MATTERS.

of the accruing shares in favour of
E. A. and her children were de-
clared only by reference to the
trusts of their original legacy, the
revocation of their original legacy
did not invalidate the declaration
of the trusts of the accruing shares.
Agnew V. Pope. Page 49

9. A testator bequeathed to R, S.
1,000/. to be placed out on real
security, and the interest to be
paid to her during her life; and
be directed that at her death
the principal should be called in
and distributed equally among her
children, and that if any children
were living from son or daughter
being dead, such child or children
should take the share their parent
would have been entitled to if
living.

Held, that the representatives
of such children of R, $, as sur-
vived the testator and died without
issue in the lifetime of R, S. were
entitled to shares. Strother v.
Dutton. 675

See Election.
Mortmain.

WINDING-UP ACTS.
1. A father who had been in pecu-
niary difficulties, and was largely
indebted to his son, effected a
policy on his own life in the names
of the son and another person, as
trustees for daughters of the father,
and paid the premiums. The son
accepted the trust, and on the
father's death, some years after-
wards, he, with the sanction of
his co-trustee, received the policy

monies, and purchased with them
debentures of a banking company
of which he was a director, and to
which he was largely indebted.
The banking company was wound
up under the Winding-up Acts,
and the son became bankrupt. The
same person was appointed oflicial
manager of the company and as-
signee under the son's bankruptcy.
On the daughters' claiming to be
creditors of the company to the
amount of the debentures, — Held^

That, notwithstanding the state
of the accounts between the father
and son, the trust for the daughters
ought to be assumed, for the pur-
poses of the application, to have
been well created.

That the trust was not deter-
mined by the receipt of the money
and the investment on the deben-
tures.

That the right of the daughters
to the debentures was not affected
by the state of the accounts between
the bankrupt and the banking com-
pany.

That, there appearing no pro-
bability of this apparent state of
things, on the existing evidence,
being altered by further investiga-
tion, the ofiicial manager was not
entitled to have an issue or further
inquiry directed. BoytTs Case.

Page 223
2. The directors of a company al-
lotted to themselves a number of
shares, by a resolution providing
that the shares so allotted were to
be treated as having been paid up
in full. D. accepted shares under

INDEX TO THE PRINCIPAL MATTERS.

705

this resolution. An order having
been roade for winding-up the
company, and a call having been
made, D. applied to be relieved
from calls until the other share-
holders had paid up their shares in
full, which none of them had done :
— Held, by the Lord Justice

Turner (the Lord Justice Knight
Bruce doubting), that the Master
of the Rolls had rightly held D.
to be liable to calls, to the same
extent as if the resolution had not
provided that the shares were to
be treated as paid up. Ex parte
Daniell. Page 372

LONDON :

PSIMTID BT C. ROWOR1H AHD
■ILL YARD, TIMPLR 14 R.

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Full text of "Reports of cases heard and determined by the lord chancellor, and the Court of appeal in chancery. [1851-1857]"

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