1844.-Davis v. Barrett.

could never be substantiated, would it not then be quite open to him to amend his bill, by striking out of it all those charges of direct fraud, and relying on those charges or those facts which tend to show, as against these defendants, that there has been that which has been called equitable fraud? Why is this suit to go on with such a complicated state of charges, when, even after the imperfect examination of evidence which we can have here, the result might very probably be to send the matter to a court of law, and when, in this stage of the cause and action, those questions of direct fraud might, at once, be brought to a satisfactory conclusion?

I am disposed to permit this action to go on to a trial, and, if necessary, to make an order that there shall be no execution taken out upon it, or to take the undertaking of these parties, as I have done before, that they will not do any thing upon it, either without the leave of this court, or giving to the plaintiff an opportunity of applying to the court. There may have been such

a course of conduct between these parties, that the plain[*171] tiffs at law, though they obtain a verdict, may still be restrained in this court from enforcing it. I think, therefore, that I must allow the action to proceed in order that the matter may be tried; but I must not allow execution to be taken out until that verdict can be further considered here.

NOTE. The defendant at law pleaded fraud, covin, misrepresentation, and collusion with other persons, but, on the trial of the action, the issues were found for the plaintiffs. On the 6th of June, 1844, a motion was made for liberty to proceed on the judgment, which, after full discussion of the circumstances of alleged equitable fraud, the court granted.

1844: February 26.

DAVIS v. BARRETT.

A notice of motion and affidavit in support professed, in its title, to give the names of all the parties, but omitted one. The court would not proceed, but gave leave to amend, and re-swear.

MR. Burge, Mr. G. Turner, and Mr. Hoare, were proceeding to open a motion in this case, when,

1844.-The Countess Berchtoldt v. The Marquis of Hertford.

Mr. Kindersley objected, that the notice of motion and affidavit in support of it, which professed in its title to give the names of all of the defendants, omitted the name of John Graham Clarke He insisted that the motion could not therefore proceed.

THE MASTER OF THE ROLLS said the strict rule was, that there ought to be a correct title to the heading. He would not hear the motion, but would give leave to amend the notice of motion, and to re-swear the affidavit.

NOTE.-See Salomon v. Stalman, 4 Beav. 243.

*COUNTESS BERCHTOLDT v. MARQUIS OF HERTFORD. [*172]

1844 January 19.

By deed, 10,000l. was settled on A. B. for life, with power to appoint to her children or their issue, and in default in trust for her children; power was also given to A. B. to appoint a life interest to her husband. Afterwards, by will, the settlor gave a similar sum "to be laid out for the sole benefit of C. D., in the same manner, as nearly as might be, as the 10,000l." secured for A. B. by the deed. Held, that C. D. was entitled to powers of appointment in favor of her children, their issue, and her husband; but that the children took nothing, except through the power.

THE testator, by a codicil dated the 10th of January, 1834, gave as follows: "I give to Lord Lowther, Sir Edmund Antrobus, Bart., and Edward Marjoribanks, Esq., 10,000. over and above the legacy tax, in trust to be laid out for the sole benefit of my ward Matilda, now Countess of Berchtoldt, in the same manner, as nearly as may be, as the 10,000l. I have secured on my Birmingham property for Charlotte Leopoldina Strachan, (Countess Zichy Ferraris.) Naples, 10th January, 1834. This is meant over and above other legacies. August 1st, 1834."

The 10,000l. referred to in the codicil was secured on the Birmingham estate in the following manner :

By indenture, dated the 19th of October, 1833, and made between the testator of the one part, and trustees of the other part, reciting that the testator had determined and agreed to make such VOL. VII.

19

1844. The Countess Berchtoldt v. The Marquis of Hertford.

provision for the Countess Zichy de Ferraris (then Miss Strachan) and her issue, and failing them, for her sister, the Princess of St. Antimo and her issue, as was thereinafter mentioned, the testator granted to the trustees a perpetual rent charge of 400/ a year, issuing out of his Birmingham property, upon trust, for the Countess Zichy de Ferraris, for her separate use for life; and after her decease, in trust for such of her children, or the issue of her children, as she should appoint, and in default, in trust for her children equally. And in case of there being no child, or of their dying under 21 without leaving lawful issue living [*173] at their decease, then there *was a gift to the Princess of St. Antimo and her children and their issue similar to

the preceding, with an ultimate limitation in favor of the settlor. The deed contained a power for the Countess Zichy de Ferraris and the Princess St. Antimo to appoint all or any part of the 4001. a year to any husband for life, to take effect on her death, and to precede the trust for her children.

The deed contained a power for the owner of the estate to exonerate it by payment of 10,000l. The sum was to be invested in land, and was to be conveyed upon the same trusts, and with, under, and subject to the same powers, provisions, &c., as those declared respecting the 4007. a year.

This bill was filed to have the trusts of the legacy declared.

Mr. Burge and Mr. Tripp, for the plaintiff, contended that the plaintiff was entitled for her separate use for life, with power to appoint to her children, and their issue, and to her husband in the same way as was directed in favor of the Countess Zichy de Ferraris by the deed. They argued that these powers formed part of the benefits intended by the testator.(a)

Mr. Gordon, for the children of the plaintiff, argued that the plaintiff had the power of appointing the fund to them.

Mr. Simpson, for the plaintiff's husband, contended, either that the plaintiff took the fund absolutely, or with the several powers of appointment.

(a) Phipson v. Turner, 9 Sim. 246.

1844. The Countess Berchtoldt v. The Marquis of Hertford.

*Mr. Kindersley and Mr. Schomberg, for the Marquis [174] of Hertford. The plaintiff takes a life interest only, and subject thereto, the Marquis, as residuary legatee, is absolutely entitled to the fund. The legacy is to be laid out "for the sole benefit" of the plaintiff: this excludes the notion that any other party is to take a benefit. It does not, in any way, appear, that the husband or children were objects of the testator's bounty.

THE MASTER OF THE ROLLS:-By the deed of 1833, the owner of the estate had the power of redeeming the charge of 4007. a year, on payment of 10,000Z.; and this sum was to be laid out on lands to be settled to the same uses, and with the same powers &c., as the rent charge. It has been admitted, throughout the argument, that this redemption money is the sum referred to in the codicil by the description of the 10,000l. "secured on my Birmingham property."

If the rent charge had been redeemed, and the 10,000l. thus secured, had been laid out as directed, what interest would the Countess Zichy de Ferraris have taken? She would have had a life interest, with a power to appoint to her children or their issue, and a power to give a life interest to her husband. In default of her appointing, there would also have been a distinct independent gift to her children, in conformity with the recital in the deed, of the settlor's intention to make a provision for her "and her issue." In the codicil nothing is said as to the children, but the legacy is to be laid out for the sole benefit of the Countess Berchtoldt, in the same manner, as nearly as may be, as the 10,000l. secured on the Birmingham property. Great stress has been laid on the word "sole ;" and it has been argued, that because the legacy is to be settled for the legatee's "sole "benefit," therefore any construction by means of [*175] which a beneficial interest may be taken by any other person must be excluded. No doubt the word "sole" must have its full effect and operation; but I am of opinion that the effect of that word is not such as is contended for by the defendant. The 10,000l. is to be laid out for the "sole benefit" of the plaintiff, but "in the same manner," as nearly as may be, as the other 10,000l. secured on the Birmingham property. How was

1844. The Attorney General v. The Corporation of Leicester.

that settled for the benefit of the plaintiff? She had a life interest with these powers. A life interest is surely improved by the addition of a power to appoint to a husband and children.

I admit that there is no gift to the children, except through the power; but I am of opinion that the plaintiff, in addition to her life interest, is entitled to a power of appointment over this legacy, in favor of her husband and children or their issue, with an ultimate limitation, in default of appointment, to the representatives of the settlor. I must declare so accordingly.

The costs must be paid out of the testator's estate.

[*176] THE ATTORNEY GENERAL v. THE CORPORATION OF LEICESTER.

1844 February 17, 19.

An agent assisting in a breach of trust is personally responsible.

A municipal corporation were trustees of a charity. They permitted their town clerk to receive and retain the trust moneys, instead of seeing it applied to the purposes of the trust. Held, that the corporation and the town clerk were liable for the breach of trust.

In a suit to remedy a breach of trust, it is not, since the new orders, necessary to make every party participating in the breach of trust party to the suit.

THIS was an ex officio charity information filed by the Attorney General against the corporation of Leicester, Mr. Burbidge, their former town clerk, and against the present trustees of one of the charities in question.

It appeared that Sir Thomas White, Robert Heyrick, and John Parker had, many years back, made several benefactions to the corporation of Leicester, upon certain charitable trusts, by which they were, in effect, to employ the income in making loans to young men, repayable without interest, and, on repayment, the same sums were to be lent out again in a similar manner. The corporation had, accordingly, for a considerable period, lent out these moneys on bond; and it had been the practice for the outgoing mayor to hand over the balance of the funds to his successor, together with the securities; but for some years previous to the passing of the municipal corporation act, (1835,) the moneys