TITHES.-Practice-Issues-Action-Different

modes of ascertaining legal rights.-A bill by vicar claiming, as such, a customary payment of 6d. in the pound on all lands and houses within the parish, was, on a rehearing, retained, with liberty to the plaintiff to bring an action; the Lord Chancellor considering that a more proper course than the one proposed to be taken by the court below, of directing first an issue to try the immemoriality of the custom, and then taking the opinion of the court of law upon the validity of such a custom; the case being one in which the jurisdiction of this court was resorted to merely as ancillary to a legal right. Suggestion as to the propriety, in such cases, of going to law first to ascertain the right before filing the bill in this court. Neither party to an issue directed by the court is precluded, by going to trial, from afterwards appealing against the order by which it was directed. Butlin v. Masters, 2 P.290.

TITLE. See PLEADING, 1.

TRUST-1. Breach of trust--Duty of plaintiff in suit for, towards other cestuis que trust.-When one of several cestuis que trust institutes a suit for relief in respect of a breach of trust, he is bound, in the conduct of the suit, to take care of the interests of the others as well as of his own. Williams v. Powell, 2 P. 329.

2. Breach of trust-Liability of trustee for reserving insufficient rent-Distinction between personal fraud and corruption, and omission or neglect of duty.-A bill founded on an imputation of fraud and personal corruption will not warrant an inquiry, on that case being disapproved, whether there has not been neglect or an omission of duty. A trustee letting a farm originally at a proper rent will not be held personally liable for the difference between that rent and the rent which, at a subsequent period of the tenancy, might have been obtained, merely because he neglected to give notice to quit a few months after there appeared to be a probability that the price of agricultural produce would enable him, with propriety as between landlord and tenant, to obtain a higher rent. And, semble, that rule would be applicable even to a case in which the tenant was a near relation to the trustee, unless there were some other circumstances to confirm the suspicion of personal favour which that relationship is calculated to excite. Ferraby v. Hobson, 2 P. 255.

3. Declaration of trust in agreement-Statute of Frauds-Effect of repudiation of trust by trustee.-A. and B., for whom land" had been purchased by C. with a view to its being resold in building lots, on the land being conveyed to them, signed a paper writing purporting to be a memorandum of an agreement between them relative to the land, by which it was agreed that they should each advance half the purchase money and receive interest on the same at five per cent., and that they were to have each one-third interest in the purchase, and to reserve one-third of the profits arising therefrom for C., in lieu of his commission for purchasing, selling, surveying, valuing, and laying out the lands in lots, or any other services that might be

required of him; but that it was clearly and distinctly understood that C. should have no power or authority whatsoever over the land, and that he should not be entitled to receive any compensation therefrom until the whole was sold and paid for. The land having afterwards greatly increased in value, A. and B. refused to recognize C.'s interest in the speculation, and offered him a money compensation for his services. Whereupon C., who had objected from the first to the clause in the memorandum which excluded him from all control, as inconsistent with the original terms for which he had verbally stipulated, filed his bill for an immediate sale of the land. And the court being of opinion that the defendants, by repudiating the trust as to C.'s share, had devolved upon the court the discretion which they had by the memorandum reserved exclusively to themselves, as to the time of sale, declared C. entitled to one-third, and referred it to the Master to enquire whether it would be for the benefit of all parties that the land should be sold. Dale v. Hamilton, 2 P. 266. 4. Invalid contract between trustees-Corporation-Hospital.A hospital having a corporate character was established in close connection with a municipal corporation. The ex-mayor was to be the governor, the masters and assistants were elected from the corporation, and the mayor and aldermen were visitors: Held, that the corporation and hospital were, in equity, incapable of contracting, and a purchase by the corporation of property belonging to the hospital was set aside. Att. Gen. v. The Corporation of Plymouth, 9 B. 67.

5. New trustee, appointing on petition, 1 Will. 4, c. 60, s. 22.The court may appoint a new trustee on petition, under 1 Will. 4, c. 60, s. 22, although the instrument creating the trust contains a power to appoint new trustees. In re Foxhall, 2 P. 281.

6. New trustees-Refusal to appoint.-By marriage settlement a judgment was vested in trustees; and it was declared that if the wife should, with the consent of her husband, think it advisable to call in the sum secured thereby, the trustees were to permit her to use her discretion as to the re-investment of same. One trustee died; the other was out of the jurisdiction. The wife, with the consent of her husband, called in the money, and she and her husband assigned the judgment to a third person, who advanced the money, but the surviving trustee refused to execute the assignment and desired to be discharged from the trusts. The court thinking that the real object of the parties was, not to continue the money in settlement, but, under colour of the power, to get it out of settlement, refused to appoint new trustees. In re Molony, 2 J. & L. 391.

7. Public trust-Deed-Construction-Vendor and purchaser.— The statute of the 27 Eliz. c. 20, authorized the corporation of Plymouth to construct a watercourse or conduit, for bringing a supply of fresh water from a distance to Plymouth, for public objects, as for the supply of the ships and town, and to scour the haven. were erected on the watercourse, and the corporation afterwards conveyed away a portion of their interest in the leat: Held, that the

Mills

corporation had undertaken the performance of a public trust, and could not divest themselves of the means of fully executing it; that the primary duty of the corporation was to provide for the public objects contemplated by the act; and that the surplus water only, after satisfying the public purposes, could be applied to the use of the mills. The court also considered it to be doubtful whether the corporation could alienate the watercourse, or any part, for satisfying their own debt. Upon the construction of the particular instruments, held, that by the conveyance of one fourth "of and in the leat or watercourse," the purchaser acquired no interest in the water, other than such part as remained after supplying the public purposes for which the leat was authorized to be made. Att. Gen. v. Corporation of Plymouth, 9 B. 67.

8. Solicitor-Trust to secure costs-Enforcing.-P. being indebted to I. G. in 30007., and Sir G. G., the father of I. G., being indebted to T. and H. in 1000l., for recovery of which they had instituted an action at law against him; an arrangement was entered into, part of which was, that the action against Sir G. G. should be discontinued, and that P. should pay the costs of it; and P., pursuant to the agreement, mortgaged his estate for 1400l. to a trustee, upon trust inter alia to secure to S., the attorney for T. and H. in the action, the costs of the plaintiffs in that action, to be paid as therein mentioned. S., though named in the declaration of trust, was not a party to the arrangement: Held, that he was not entitled, as a cestui que trust under the deed, to institute a suit to carry the trusts of it into execution; and that, having done so, the objection might be taken by any party to the suit. The principle of Garrard v. Lord Lauderdale (2 R. & M. 451) not to be extended. Gibbs v. Glamis (11 Sim. 584) observed upon. Simmonds v. Palles, 2 J. & L. 489.

And see INTEREST, 2. LUNACY, 10.

VACANCIES. See CHARITY, 3.

VENDOR AND PURCHASER.-1. Agent and principalAgreement for sale-Specific performance.-A principal agreed to sell part of his estate to his agent, being ignorant at the time that the agreement included the only turf bog on the entire estate, there being no concealment or apparently any knowledge of that circumstance by the agent. The agent, who was named a trustee for sale in his will, gave assistance to his co-trustees, and did not insist on the agreement for nearly a year after the death and after the estate was advertised for sale: Held, that the first circumstance would be a ground to refuse specific performance; and the latter was a virtual abandonment of the agreement. The letters which contained the agreement showed the vendor's object was to sell to pay his debts in his lifetime. Semble, this would be no objection to a specific performance after his death, the agreement being in other respects precise. Chambers v. Betty, Beat. 488.

2. Contract of sale-Rectifying contract after execution, on ground of mutual mistake.-Premises were sold for the residue of a term, of

which both parties at the time supposed that eight years only were unexpired, and the price was fixed expressly on that supposition. It afterwards appeared that twenty years were in fact unexpired at the time of the sale. But a bill by the vendor to make the purchaser a trustee of the term for the twelve additional years was dismissed. Okill v. Whittaker, 2 P. 338.

3. Notice-Conveyance by person entitled in several rights-Registry -Lis pendens.-The defence of a purchase for value without notice is not available against a covenant to renew, or other equitable claim under a prior registered instrument. A. conveyed lands to a trustee on trust to pay his debts. The deed was registered, but before it was acted on, Ă. made a lease with covenant for renewal, which was also registered. The lands were sold in an administration suit by a judgment creditor of a deceased owner. The purchase money was paid into court, and the balance paid to the trustee, who joined in the conveyance. A. had not been served with subpoena, or appeared till after the date of the lease. In a suit, instituted after a great lapse of time, for renewal by the representative of the lessee against the representative of the purchaser, insisting that the trust deed was voluntary and revocable, and that the sale in the suit did not affect the lease: Held, that the purchaser having got a prior legal estate under the trustee, and the equitable estate free from payment of the prior incumbrances, was not bound to renew, especially after such a time had passed, without recognition of the plaintiff's rights. A person, joining in a conveyance of all his estate, &c. in one right, transfers to the purchaser all the title he has in any other right. Semble, a suit is lis pendens before service of subpoena, and a general administration suit is lis pendens as to lands ultimately sold in it (though it did not seek to enforce a specific claim against them), so as to avoid a lease by the inheritor after its institution. The plaintiff claimed under a renewable lease of 1782 lands then let under a prior lease subject to the same rent. The prior lessees remained in possession till their lease expired in 1839, paying the rent directly to the head landlord. The lessee of 1782 neither received or paid rent, but was served with an ejectment begun by the landlord in 1833. Semble, his rights were barred by the statute of limitations. Drew v. Lord Norbury, 9 Ir. Eq. R. 171.

And see LIEN. PRINCIPAL AND AGENT, 2. TRUST, 3, 7.

VESTING. See CONVEYANCE, 1. PORTIONS, 3, 5. WILL, 10. VICE-CHANCELLOR. See JURISDICTION.

VOLUNTARY SETTLEMENT.-1. Distinction between voluntary settlement and voluntary conveyance to pay debts.-Distinction be tween voluntary settlements, where the object of the donor is bounty, and voluntary conveyances in trust to pay debts to which the creditors are not parties. Simmonds v. Palles, 2 J. & L. 489.

2. Marriage articles-Proviso to settle lands.-By marriage articles, reciting the lady's fortune to be 1000l., the husband agreed to settle 4000l. secured by his bond and judgment, with a proviso that it should be void if he should afterwards settle lands to the value of 1001. a

year. He did subsequently settle lands to a value considerably beyond 100l. a year. The lady's friends had given her an additional sum of 1000l. On a bill filed under the former Bankrupt Act (in pari materia with the statute of fraudulent conveyances): Held, that the settlement could not be impeached as voluntary as to the excess beyond 100l. a year. Maguire v. Nicholson, Beat. 592.

WAIVER.

See ANNUITY, 1. LESSOR AND LESSEE, 6.

WASTE.-1. Injunction — Open quarries-Mines. A tenant for lives, renewable for ever, having demised for years part of the lands upon which there was at the time an open quarry, which he was in the habit of working for sale, without any reservation or exception in the sublease: Held, the subtenant was not entitled to work the quarry for sale, and that his landlord had the right to enjoin him. There is no analogy between open quarries and mines. Mansfield v. Cranford, 9 Ir. Eq. R. 271.

2. Injunction-Timber acts. - The Irish society in 1618 granted lands to the Fishmongers' Company, reserving the timber. By deed of 1741, the society declared they would not claim trees thereafter planted, but that the company might cut them, so as they should be first applied in the improvement of the estate. In 1747 the company demised to a lessee, excepting the trees, with liberty to themselves to cut them for the improvement of their estates, according to their interest, but not for sale. He cut for sale: Held, that neither the nature of their title nor the timber acts were any objection to a suit by the company for an account and injunction. A bill by a landlord for an account of waste, in cutting timber, by a tenant in his lifetime, lies against the tenant's executors. But where the waste had been committed for fifty years during the tenant's life, and the bill was not filed till a few years after his death, the account was refused as to all the waste in his lifetime, but granted with an injunction as to waste by the executors. Fishmongers' Company v. Beresford, Beat. 607.

And see INJUNCTION, 3.

WILL.-1. Bequest of plate-Life use.-Bequest of the use of plate, with power to dispose of such portion thereof as the legatee might think proper, preceded by an absolute gift of other chattels to the same person: Held, to give a life interest only in the plate, with a power of disposition over part of it. Espinasse v. Luffingham, 9 Ir. Eq. R. 129.

2. Charge on real estate.-A testator gave legacies, and charged his executors, to whom he devised real and personal estate, with the payment thereof: Held, that the legacies were charged on the real estate. Cross v. Kennington, 9 B. 150.

3. Estate tail.-A testator devised lands to his son A. and his heirs for ever, and in case A. should die without lawful issue, desired that, after his death, all the property should go to his daughter and her heirs ; and in case both A. and the daughter should die without lawful issue, desired the property should go to his brothers: Held, an estate tail in