1844.-Ridgway v. Woodhouse.

his will or the trusts thereof, the sum of 100l. and when so retained pay the same to a charity.

So that this direction necessarily implies that the payment to the charity was to be made out of the income given to the wife; and this income consisted of the rents of land, or of interest or dividends arising from personalty impressed with the character of land. Such direction to pay to the charity is therefore void, and, consequently, the direction to retain, so far as it was intended to operate for the benefit of the charity, was also [*443] void, and had no effect; and that purpose *failing, I think the direction to retain must fail altogether.

By the will, the annual income arising from the property is actually vested in the wife. By the codicil, though the testator declares his will only as to the sister, saying that if the sister shall do such acts, the trustees are to retain and pay over, yet such acts are acts which cannot properly be done without the consent of the wife. However, the object appears to have been, and I think the effect was, to impose a condition on the wife subsequent to the vesting, and the effect of which was to be the divesting in part of an interest previously vested. It ought therefore to be strictly construed, and as all the circumstances which the testator had in view do not concur, and as the purpose which he contemplated cannot be effected, it seeems to me that the divesting cannot take effect, and therefore that the condition is void.

A great deal might have been said upon the uncertainty of the condition imposed; but I think the conclusion which I have stated, is that to which I must come. I have had a good deal of difficulty, but I consider this direction as in the nature of a condition subsequent, imposed on the wife; and that the condition subsequent having the effect of divesting interests previously vested, it ought to be strictly construed; and having regard to all the circumstances, if it fails in any of the circumstances it appears to me the condition fails.

I cannot say I think the condition itself was an illegal condition.

And his Lordship doth declare, that the direction contained in the codicil to the

1844.-Ridgway v. Woodhouse.

said testator's said will, bearing date the 22d day of November, 1841, that, in the events therein mentioned, the trustees and executors should retain, &c. &c., is void and of no effect, and doth decree the same accordingly.

1844: April 16.

POWELL v. WRIGHT.

Observations on what is termed the "substantial representation," in a suit of absent parties, and how far such absent parties are bound.

After bill filed but before subpoena served, the defendant assigned the subject matter of the suit: Held, that the assignee was a necessary party, and that the court would, if necessary, grant an injunction to restrain any further assignment. Scheduled creditors to a creditor's deed, who were not parties thereto, held not necessary parties to a suit by a subsequent incumbrancer, to have the moneys out of which it was intended to pay such creditors raised, the trustees being parties.

THIS case came on upon objections for want of parties, under the 39th general order of August, 1841.(a)

By indentures of the 13th and 15th of December, 1834, certain estates were conveyed by Lord Wellesley and his eldest son to trustees, to raise a sum of 462,000l. This was to be applied, in the first place, in payment of certain specified charges which did not exhaust the whole, and the residue was to be paid to Lord Wellesley for his own use.

By indenture of the 16th of December, 1834, and made between Lord Wellesley of the one part, and Messrs. Springall and Thompson of the other part, Lord Wellesley appointed the surplus of the 462,000l. to Messrs. Springall and Thompson, upon trust to pay, in such order and priority, and in such manner and way, in all respects, as the said trustees should in their discretion think fit, to the several persons whose names were specified in the *first and second schedules thereunder writ- [*445] ten, the several sums of money set opposite to their respective names, being respectively principal sums or debts alleged to be due by Lord Wellesley to such several persons, upon judgment, bond, and simple contract, or otherwise, or so much of the

(a) Ord. Can. 175.

1844.-Powell v. Wright.

same several sums, as the said trustees should agree to pay, in full for such respective debts, and pay the residue to Lord Wellesley. The schedules contained the names of 130 creditors, but none of them were parties to the deed.

In 1836, Lord Wellesley granted to the plaintiff an annuity, for securing which he charged the surplus of the 462,000l., after satisfying the sums mentioned in the deed of the 16th of December, 1834.

This bill was filed on the 9th of January, 1841, to have the trusts of the deed of the 15th of December, 1834, carried into execution, and to obtain payment of the plaintiff's annuity which was in arrear.

None of the creditors mentioned in the deed of the 16th of December, 1834, were made parties to the suit, but the bill prayed, that, if necessary, this bill might be taken to be a bill on behalf of all persons interested in the execution of the deed of the 16th of December, 1834.

One of the defendants, by his answer, submitted whether the several creditors named in the schedules to the deed of the 16th of December, 1834, were properly represented in this suit, and he stated, that on the 2d of June, 1842, Lord Wellesley and his son had conveyed the trust estate to John Smith of Regent Street, in fee, for securing a sum of 70001., which mortgage was

created before the defendant was served with the [446] *subpoena in this suit, and he submitted whether John Smith was not a necessary or proper party to the suit.

Mr. Kindersley, and Mr. Chandless for the plaintiff.-The schedule creditors not being parties to the deed, acquired no interest in the estate, nor any right to enforce the trusts of the deed; Garrard v. Lord Lauderdale, (a) Foster v. Blackstone.(b) Their numbers would also render it impossible to proceed in this suit, If they were all made parties.

Smith, being a purchaser pendente lite, is bound by the proceedings, and need not and cannot be made a party to this

(a) 3 Sim. 1, and 2 Russ. & M. 451.

(b) 1 Myl. & K. 297, and 3 Cl. & Fin. 456.

1844.-Powell v. Wright.

bill;(a) this bill cannot therefore be said to be defective for want of parties.

Mr. Turner and Mr. Toller, contra.-The creditors are necessary parties; for circumstances may have happened since the deed was communicated to them, which give them an indefeasible interest in the trusts of the deed. The plaintiff has an interest opposed to that of the creditors; their rights cannot be adjudicated on in their absence. The defendants, however, do not require that they should all be made parties: all they want is to have them substantially represented, by making some of the class defendants, by which means they will be bound and prevented instituting a multiplicity of suits of their own.

[THE MASTER OF THE ROLLS :-Where some only of a class are made parties, it is a very inaccurate mode of expression to say that they represent the rest. The others may be perfectly ignorant of the proceedings and *of what is [*447] really going on. It is a matter of convenience or neces

sity when the court allows one to sue on behalf of the rest. In consequence of the difficulty arising from the number of parties interested, the court relies on the assistance of one of the class, on the faith that having the same interest with the absent parties, the facts as affecting them will be fairly brought before the court. But in such a case as this, how could you prevent another of the same class filing his own bill, if he will not submit to be represented by the person party to the record? Besides which, the defendants named to represent the class would, in this case, be selected by the plaintiff himself; if those only whom the plaintiff pleases be made parties, it would be strange to say that the others, who are absent, would be bound.]

The principle of representation has, however, long been sanctioned; Cockburn v. Thompson,(b) Adair v. The New River Company.(c) Though the conveyance to Smith was after the

(a) See Bishop of Winchester v. Paine, 11 Ves. 197; Metcalfe v. Pulvertoft, 2 Ves. & B. 205.

VOL. VII.

(b) 16 Ves. 321.

(c) 11 Ves. 444.

48

1844.-Powell v. Wright.

filing of the bill, still it does not appear that the suit has been duly registered as directed by the 2 Vict. c. 11,(a) and therefore he would not be bound by it.

Mr. Kindersley, in reply.-It is for the interest of all parties that the 462,000l. should be raised, and the court will then see to its due distribution.

THE MASTER OF THE ROLLS:-This case comes before me upon two objections for want of parties taken by the defendant. One objection is, that certain creditors named in the schedules

to the deed of the 16th of December, 1834, are not [*448] *any of them substantially made parties to this suit. The other is, that Smith, the assignee of the interest of Lord Wellesley, under a deed, executed subsequent to the filing of the bill, is not before the court.

The case seems to be that Lord Wellesley, being indebted, and his estates being subject to charges of large amount, in 1834, soon after his son came of age, made arrangements for raising a large sum of money to satisfy the charges; and accordingly, in December, 1834, a provision was made for raising 462,000l., which was, in the first place, to be applied in satisfaction of the several charges on the estates which were enumerated in the deed. The amount of the charges was less than the amount to be raised, and the surplus was intended for the benefit of Lord Wellesley.

It seems to have been part of the same transaction, that this surplus should be applied in the particular manner stated in the deed of the 16th of December, 1834. By this deed, Lord Wellesley appointed the surplus to Springall and Thompson, in trust to apply it as they should think fit, in payment of the scheduled creditors, and to hold the surplus upon trust for Lord Wellesley. There appear to be about 130 names set forth in the schedules, but none of them are parties to the deed. These creditors, not being parties to the deed, and not being in a situation to demand the execution of the trusts, must each depend upon Lord Wellesley for payment of his demand.

(a) S. vii.