ments; and I think that I can render material assistance in the matter; at all events, it is of great moment to the second son of the late Lord Langford."

For the first time he there gives some slight indication that he has something to reveal upon this subject; but I do not find a single trace until that moment of an intimation that he had any information which could at all affect the deeds. Under those circumstances it would be quite impossible for me to say that the evidence of this one witness, whose testimony in itself is not only wholly unsup-[258]-ported, but is so contradicted by his own acts, would be sufficient to remove the difficulty which is in the way of the Plaintiff, in consequence of my finding here, as I said before, that the deeds were, on the face of them, properly executed, and that they were in the proper custody; or to make out a case of their having been delivered conditionally and to take effect solely upon the completion of a particular transaction.

I come then to the other part of the case, as to which I have felt much more anxiety, for this reason. I think there is scarcely any part of the doctrine of this Court which requires to be upheld in its integrity more than the most useful and salutary doctrine respecting the exercise of powers by parents in favour of their children; and I should be extremely sorry if any decision of mine should appear to throw for a short period, however short, any doubt whatever upon the great principles upon which this doctrine has been established. But the more I have considered this case, and the more I have had the benefit of having it fully and completely discussed, the more I feel satisfied that there is really no ground whatever, upon any of those principles, for saying that the appointment of the £25,000, under the whole circumstances of this case, is to be held invalid.

With regard to the position of this doctrine as to powers, there are three different and distinct classes of cases: There is, first of all, the case in which there may be a fraud on the donor of the power, or those who claim under him, by the person who takes the fee-simple or other estate which is the subject of the power. There may be cases in which the fraud is on him alone, there being only one person interested in the charge which may have been created, as in the case of a jointure, and many other similar cases, such as, for example, a power of raising a given sum of money out of a given estate, for a single individual, and, if [259] the power be exercised so as to enable the donee of the power to raise money upon it for a purpose of his own, it is a fraud upon the donor of the power and the party claiming through him that any part of that sum should be raised for any purposes except those prescribed by the power. A second class of cases is where the fraud may be wholly on the parties who are interested in the distribution of the fund, and cannot be in any way a fraud upon the donor of the power, that is, the charge would remain whether the power be exercised or not, but the distribution of the fund would be the only point in question. That is the case I have before me. It is a case in which £30,000 would be necessary to be raised whether there were any appointment under the power or not; and, therefore, the fraud, if any, is one which would affect the persons only who are interested in the distribution. There is also a third class of cases, which comprehends both the classes I have just mentioned, namely, where the power is to create a charge as well as to distribute it under certain circumstances, or to particular individuals, in which case it would be a fraud to have the power exercised at all, if the circumstances had not arisen, or for the benefit of parties who were not interested in it, and who were not intended to be interested in it. The owner of the estate in the last class of cases would be entitled to say it never was intended to be distributed except in a fair and upright and honest manner, as between all parties interested in the charge. With regard to a power to jointure the doctrine which the cases have established, and which Lord St. Leonards, in his Book on Powers, says that he conceives is not likely to be changed (2 Sugd. Pow. edit. 7th, 188), is certainly open to the observations made by Sir William Grant in Daubeny v. Cockburn (1 Mer. 626). In the case of a power to jointure nobody is interested but the one party, the jointress; and, therefore, if the charge be raised under a [260] corrupt bargain, or one by means of which some benefit is to be handed over to the husband, the Court will, and it has done so in several cases, sever the appointment and hold it to be good to the extent to which the jointress is entitled, but will hold it to be bad with reference to the corrupt and improper use that may be made of the surplus. But that is open to the observation

made by Sir William Grant in the case of Daubeny v. Cockburn (1 Mer. 626), where he says, in effect, "How do I know that this power would ever have been exercised except for this corrupt bargain, for, up to that time, there had been no exercise of the power; and, therefore, until he made this bargain, I do not know that the power would have been exercised at all." Lord St. Leonards says he conceives that to be a case of great authority for upholding the principle that appointments cannot be severed except under circumstances of that description; but that, notwithstanding the case of Daubeny v. Cockburn (Ibid.), it is now too late to have that principle as to jointures changed. But, in the case of distribution among several objects of a power, where there is a clear right in all the parties interested in the distribution, it is a novel thing to say that the fund is to be considered as one gross fund, which is to be fairly apportioned among the different persons interested, and that, to the extent to which the donee of the power takes out of the common fund any portion whatever from which he is himself to receive a benefit, to that extent he has diminished the common fund which ought to be appropriated amongst all; and, having diminished it to that extent, the Court will not permit him to have any further power over it, but will consider the right of the other parties to be determined as from that moment; the object of the donor of the power being to have a fair and equal distribution of it. All the cases that have happened have been cases confined expressly to the mode of dealing with those shares which have been taken out of the common fund by means of the [261] corrupt bargain. I find no case applying at all to the balance of the fund which remains after that share has been so taken out. The Court has said that share at least we will bring back; and all the cases have gone to that extent and no further. There is no decided case in which a father, having power of making a distribution among eight or nine children, having made a corrupt bargain with one of those children, the appointments to the other children have, therefore, been set aside.

It seems to me that there are only two grounds on which I could arrive at the conclusion that, because there had been this corrupt bargain as to part, the whole of the appointments are to be set aside. Those grounds have been urged by the Solicitor-General. One is that the intention of the party executing the power is frustrated. Now I will suppose the case of a party executing the power in an inoperative manner, irrespective of the corrupt motive actuating him, I will suppose he has an intention to grant £5000 to A., and £25,000 to B. The Solicitor-General says the moment the intention to grant £5000 to A. is shewn the surplus is modified in amount, and bears a necessary relation to what had been taken out by the original grant, and that the two things are correlative. It is asked, what would the appointor have done if he had known that, instead of giving £5000 to his first son, he had only attempted to give him that which the law would take away from him? Suppose he felt assured of that, and in that state of circumstances had handed over the £25,000 to the other son. And I might put the possible case of hardship of there being no hotchpot clause and a bill being filed by the second brother to set aside the appointment of the £25,000. In this case there is a hotchpot clause, but there might be such a case supposed as that here Hercules Rowley might file a bill to set aside the appointment of the £5000, and thereby get the half of it. Still I do not think it is. possible to rely upon the inten-[262]-tion alone, independently of the question of the corrupt motive, because it constantly occurs that the donee is disappointed in the result of the distribution that he makes by his having overstepped some rule of law which it is presumed that he knew: yet no one ever heard of all the appointments failing because one fails. Therefore, as far as it depends upon the circumstance of the intention being frustrated, I apprehend that this case has no analogy at all to those cases in which the Court arrives at the intention of the donor by looking at the whole nature of the instrument, as in the case of Jackson v. Jackson (Dru. 120), and Askham v. Barker (12 Beav. 499).

I come now to that part of the case which has been so much pressed with reference to the corrupt motive of the donee of the power which, it is said, is to taint the whole of this transaction. Upon the evidence this part of the case stands thus: Lady Langford was afraid that her youngest son would get nothing. She contracted with the donee of the power that she would give him a certain benefit and advantage if he would make an appointment in favour of the youngest child. The child, of course,

is perfectly innocent in this transaction; but I should have very little hesitation in saying that an appointment of that kind could not be supported if it became the interest of any parties to dispute it, although I do not find any precise case to that effect. There are numerous cases where the father has taken an advantage from the fund subject to the power of appointment. I think it would be impossible to contend, if a direct bribe were given to the appointor, though out of a separate fund, that the appointment could be upheld in favour of the party to whom the fund subject to appointment was given. Lady Langford has, then, here bargained to have the £5000 appointed to her youngest son; but, so [263] far from having made any contract with reference to the £25,000, it is perfectly clear that the appointment of the £25,000 was concealed from her-it was just the very contrary of what she wished-she would have been very glad to have got £10,000 for the youngest son if she could --she wished, at least, to secure £5000 out of the common fund for the benefit of her youngest child. That being so, the solicitor, to whose evidence I have before referred, says that all that took place with reference to the £25,000 was simply that the father was advised that, as he was appointing the £5000, he might as well appoint the whole fund. The deed by which he appointed the balance of £25,000 was never shewn to Lady Langford, and was evidently no part of the transaction with her. Then, I am told to apply the doctrine of Daubeny v. Cockburn (1 Mer. 626) to this case, and to say that the motive was one and cannot be severed. I acquiesce in every word that fell from Sir William Grant when he said in effect that, where there is an appointment made by a father to a child of a given sum of money, out of which he is to be paid something for making it, it is quite impossible to separate the appointment by dividing it into two parts, and to say, as far as the donee was guided in his wish to provide for his child, it is good, and therefore the Court will support it; but, so far as he wished to benefit himself from the fraud, it is bad. And for this reason: because the party in remainder might say that the donee was not actuated in the appointment by love to his child, or by the wish to provide for her; or, at all events, it was so mixed up with his own benefit that it was impossible in any way to sever the two motives, and to say how much was to be attributed to the one and how much to the other; and, therefore, the motive for his doing the act at all, being a desire to benefit himself, was fraudu-[264]-lent, and the subsequent act depending upon that motive must be set aside. That is perfectly intelligible, and it would seem very absurd to come to any other conclusion. The argument here is that the children have also the right to say, "This was our common fund, divisible amongst us all; and the appointor never would have taken this part out of that common fund except he had been bribed by this means he did not wish to benefit us-his intention was to benefit himself, or, at all events, that was such a part of his intention that the act must stand or fall together, and cannot be severed."

The

Now, the whole force of this argument appears to me to depend upon the assumption that, although this is an appointment of the respective shares to the respective parties, and I will for this purpose assume it to be by one deed, yet that the appointment was all one act. It is not one act. The giving of a share to each particular child is, as to each particular share, a clear and distinct and separate act. motive then, in every way, probably often may be, and in fact almost always is, different with regard to each child. It is not one motive that you cannot separate and split, actuating the donee of the power to make the grant, but there is a different motive directing each and every one of those particular acts. He gives to child A. £10,000, because he is not so well provided for, and then to child B. £3000, because he is better provided for; and whether it be by one deed or by several deeds the acts are several, each capable of being separated, weighed, estimated and balanced distinctly the one from the other. That seems to me to distinguish this case from Daubeny v. Cockburn (1 Mer. 626). In that case it seems the motive was one. What is the motive in this case? The motive is to get the consent of Lady Langford to postpone her pin-money and dower. That is the whole corrupt motive that is suggested, and that, it is argued, so runs through the whole act that it [265] would be impossible to separate the motive of the appointment to Hercules Rowley of the £25,000, from the motive of the appointment to the younger child of the £5000, and that the appointment of the £25,000 must fail, as well as the

appointment of the £5000. Now, anything more clearly at variance with the facts than the imputation of this motive to Lord Langford, for making the appointment of the £25,000, can hardly be conceived. The only corrupt motive being to get money from Lady Langford, he is supposed, with that object, to do that which would have been the very thing to prevent her concurring in the act which he wished her to do. If she had been told that the whole balance would at once go to Hercules it is probable that would have prevented her from giving her consent; but, at all events, am perfectly justified, judicially, in saying that he was not moved in any way to appoint the £25,000 in order to induce Lady Langford to give her consent. If that be so, then the case is a very distinct one from the case of Daubeny v. Cockburn (1 Mer. 626). I am not called upon to split motives; it seems to me that his having put it out of his power to appoint the £5000, by reason of this improper act, is not to affect that which he has otherwise disposed of. As far as the question of the intention being frustrated is concerned, I have dealt with that argument. With regard to the actual fraudulent motive, it is quite clear that the moment he had executed the power for the £5000 everything had been achieved which he wished; his fraud had succeeded completely. Lady Langford was prepared to give her consent, knowing nothing of the appointment of the £25,000. That left Lord. Langford master of his own motive and conduct with regard to the £25,000, and he might have left it wholly undisposed of, or he might have given the whole of it to the Plaintiff, or he might have given half to the one and half to the other. It is very true that he did appoint the £25,000 on the same day, but he might have done it a year [266] after; and it seems to me the argument would have been just as good, with reference to the intention, if he had done it a year after, because, if he supposed that the younger son had the £5000, and a year afterwards he was led to execute the power for the £25,000, the argument as to the intention would have been just the same, and I feel perfectly satisfied in my own mind that the facts render it almost impossible to come to any other conclusion than that, so far from having any illegal and corrupt motive imported into the appointment for the £25,000, it was quite confined to the appointment of the £5000, which was the bargain that Lady Langford made as the consideration for giving her consent.

Now, one word with regard to the authority of Askham v. Barker (12 Beav. 499). That case seems to have been simply this: The father having made a fraudulent appointment in the first instance to his daughters of part of the fund; by his second appointment gave the whole remainder of the trust fund, and also all other sums which might not be comprised in the appointment; indicating, therefore, that he had some little suspicion as to the previous appointment, which appears to have been absolute, because there was no other sum which he had the power of appointing but the sum in question. Lord Langdale observes, in that case, that he thinks the whole transaction is a continuation of the same proceeding by which the donee had given originally the daughters the exclusive possession of part of the property, and, finding the original transaction tainted with fraud, and also the subsequent one, before anything takes place for setting aside the deed in question, by which the daughters got an undue hold over the fund, he says, in effect: "I find this to be one and the same transaction with reference to these particular children, and therefore a transaction which should not be upheld." But that is very different from [267] this case, where the party having a portion of the fund to dispose of, after having disposed of a certain portion, disposes of the balance upon motives which cannot in the slightest degree be suggested to have been corrupt, or to have been influenced in any possible way by the motive which induced him to dispose of the first portion. The case, therefore, that is here made of any degree of fraud affecting the contract proceeding upon the second part of the appointment seems to me wholly to fail; and there are only these words which occur in the evidence which have a semblance of bearing on the point, namely, where the solicitor says that, except for this transaction, Lord Langford would not have made the appointment at all. Probably, in one sense, that is true; it is very probable that, unless he was settling his affairs, he would not have made this appointment at this particular juncture of time. It is just as if a man for some cause or other is induced to make his will; he probably would not have made his will, but for that cause. So here Lord Langford was not advised to settle the property upon one

person or the other, there was nothing to make it incumbent upon him to do so in the transaction that had occurred. But the solicitor says to him, "You are now doing an act by which you are indicating your intention with regard to one, and it is better that you should at the same time shew what your intentions are with regard to the other;" and his intentions were his own, and perfectly unconnected with any fraudulent conduct or bargain whatsoever.

Therefore, under these circumstances, I can only come to the conclusion that the appointment to Hercules Rowley must stand unaffected by any fraud that may be supposed to have been committed by the appointment of the £5000, and the Plaintiff's bill must be dismissed, and, I think, dismissed with costs, except the costs of the solicitor, who is made a party to this suit.

[268] THE ATTORNEY-GENERAL v. THE MAYOR, ALDERMEN AND BURGESSES OF WIGAN AND OTHERS. Jan. 24, 25, 1854.

[S. C. affirmed, 5 De G. M. & G 52; 43 E. R. 789 (with note).] Powers of Municipal Corporation. Illegal Rate. Nuisance. 5 & 6 Will. 4, c. 76. Where a municipal corporation are raising an illegal rate the proper course is to apply to a Court of law to quash the rate under the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, or to appeal by certiorari to the Court of Queen's Bench, under the 7 Will. 4 & 1 Vict. c. 78, s. 44.

It is not competent for persons having in their hands funds which have been appropriated by an Act of Parliament to certain given purposes to apply them for the extension of those purposes, without a previous application to the Court of Chancery. Therefore such persons will not be permitted to apply the funds to pay the expenses of promoting a bill, which is thrown out, if they have not previously obtained the authority of the Court for so doing.

Nor is it lawful for them to apply the funds in promoting a bill for an extension of the purposes of their existing statutes.

Where an incorporated town had the benefit of a river passing through it, which was the main sewer of two-thirds of the town, and a bill was before Parliament for the purpose of enabling certain persons to abstract a very large portion of the water from this river before it reached the town: Held, that under the Municipal Corporation Act, and particularly sects. 90 and 92, whether the corporation of the town had any surplus Borough Fund or not, as they would be justified in incurring the expense of an information for an injunction to prevent the commission of such a nuisance, if unauthorised, they were equally justified in applying their funds to oppose the bill for legalising the threatened injury to the river.

The corporation of the borough of Wigan were subject to the provisions of the Municipal Corporation Act, 5 & 6 Will. 4, c. 96. They possessed some property in the nature of a Borough Fund, consisting of certain shops and houses in the town, and of the fair and market tolls in the borough, but such property was not sufficient to defray the expenses directed by the Act to be paid out of such fund; and there was never any surplus of the Borough Fund applicable to the public benefit of the inhabitants, or the improvement of the borough. In consequence of the deficiency of the Borough Fund borough rates were made and levied by the corporation from time to time, under the provisions of the said Act. In the spring of 1847 the corporation of the borough of Liverpool applied to Parliament for an Act to enable them to obtain a better supply of water from various sources, and, amongst others, from a stream of water which formed one of the principal supplies of the river Douglas, which flowed through the town of Wigan. The millowners and landowners using the [269] water of the river, apprehending an injury from the proposed Act, determined to oppose the bill, and desired the Corporation of Wigan to concur in such opposition; and a meeting of the town council was held, at which resolutions were