Sell so much of the £3297, 10s. 11d. consols, mentioned in the prayer, as will raise £1000; and let the £1000 be paid to A. and B., trustees appointed by the Court for that purpose; and let them, out of the same, pay the first premium and the expense of effecting in their own names a policy of assurance for the life of the Petitioner, William Cooper, in the Legal and General Life Assurance Company, for the sum of £1000; and let them thereout pay to all parties their costs of this application, and pay over the balance of the said £1000 to the Petitioner, Susannah Cooper; and let the said policy and all monies to be payable by way of bonus or otherwise in respect thereof be paid to the trustees, and held by them upon the trusts of the will of Sarah Phillips in the petition mentioned as to the said sum of £3297, 10s. 11d. consols; and let the Petitioner, William Cooper, execute a bond in a proper penalty to the trustees for securing the payment by him, his executors or administrators, of the sum of £1000, and also, until the same should be paid, of the premiums hereafter to become payable for keeping up the policy during his life, such bond not to be put in suit without the leave of the Court; and any party is to be at liberty to apply.

By a settlement made in contemplation of marriage a lady assigned a certain sum of money and interest, due to her from a trading firm, to one of the partners in the firm and the Plaintiff, as trustees, upon trust to permit the fund to remain in the hands of the firm until the trustees should be requested by the settlor, in writing, to call it in, and upon such request to call in and compel payment of the same, and invest it, and to hold such sum and the investment upon the trusts therein mentioned; and it was provided that it should be lawful for the trustees, with the consent of the settlor, after giving to the partner trustee, or any other member of the firm, three months' notice in writing, to call in the said fund; but that, so long as it remained in the hands of the firm with the consent of the settlor, the trustees were not to be answerable for any insufficiency thereof. The firm suspended payment, and made a composition with their creditors: and after such suspension the settlor, for the first time, requested the trustees to call in the fund. The Plaintiff thereupon requested his co-trustee to pay the money. Upon his refusal to do so the Plaintiff filed his bill against his co-trustee and the cestuis que trust to have the trust executed by the Court, and himself indemnified. Held, that the partner trustee must be considered as having the fund in his hands from the expiration of three months after the notice requiring him to pay it; and that, therefore, a decree for payment of the debt might be made against him, although the other partner in the firm was not a party to the suit.

If adult cestuis que trust insist upon their strict rights, the Court will not exercise any discretion for the benefit of other cestuis que trust who are infants.

A Plaintiff may have the same relief upon a motion for decree, "according to the prayer of the bill," that he could have at the hearing of the cause in the ordinary way.

By an indenture of settlement, dated the 23d of June 1846, and made between Matilda Steinkopf, then Matilda Miller, widow, of the first part; Augustus Lewis Steinkopf, since deceased, of the second part; and Quarles Harris and William Norton, of the third part; after reciting that the said Matilda Miller was entitled to a certain debt of £1200 then due to her from the said Quarles Harris and his partners, and reciting that there was issue of the said Matilda Miller by her then late husband, Walter Idle Miller, two children, namely, Frederick Norton Miller and Matilda Clarissa Miller; and that a marriage was intended to be solemnised between the said Matilda Miller and the said Augustus Lewis Steinkopf, it was witnessed that the said Matilda Miller thereby assigned to the said Quarles Harris and William

Norton, their executors, administrators and assigns, the said debt of £1200 due to the said Matilda Miller from the several persons constituting the said firm of Quarles Harris & Sons, and all interest then due and thereafter to become due, with power, in the name or names of the said Matilda Miller, her executors, administrators or otherwise, to recover and receive, and give sufficient receipts for, the said debt, interest and premises; to hold the said debt and premises unto the said Quarles Harris and William Norton, their exe-[46]-cutors, administrators and assigns, in trust for the said Matilda Miller, her executors, administrators and assigns, until the said marriage should be solemnised; and immediately after the solemnisation thereof, upon trust, during the life of the said Matilda Miller, to permit the said sum of £1200 to remain in the hands of the persons from time to time constituting the said firm of Quarles Harris & Sons, until the said Quarles Harris and William Norton, or the survivor of them, or the executors and administrators of such survivor, their or his assigns, should be requested by the said Matilda Miller, in writing under her hand, to call in and require payment of the same; and upon receipt of such request in writing, or upon the decease of the said Matilda Miller, which should first happen, upon trust to call in and compel payment of the said £1200, and to lay out and invest the same in their or his names or name as therein mentioned, and to stand possessed of the said sum of £1200 until the same should be called in and invested as aforesaid, and afterwards of the securities in or upon which the same should be invested, upon certain trusts, for the benefit of the said Matilda Miller and her said two children as therein mentioned; and it was thereby provided that it should be lawful for the trustees or trustee for the time being of the said indenture, with the consent in writing of the said Matilda Miller, at any time, after giving to the said Quarles Harris or any of his partners, or by leaving the same at the counting-house for the time being of the said Quarles Harris & Sons, three calendar months' notice in writing of such their intention to call in and demand payment of the said principal sum of £1200 so vested in them as aforesaid; and it was thereby provided that the said trustees or trustee should not, so long as the said principal sum of £1200 or any part thereof should, with the consent of the said Matilda Miller, remain in its present investment, be answerable for the insufficiency thereof.

[47] The marriage was solemnised, and the said Augustus Lewis Steinkopf shortly afterwards died.

The firm of Quarles Harris & Sons carried on business as wine merchants, and at the time of the execution of the settlement it consisted of the said Quarles Harris, and of William Richard Harris and James Dawson Harris.

William Richard Harris had since died, and the firm now consisted of the said Quarles Harris and the said James Dawson Harris, the latter of whom was resident and carrying on business at Oporto, in Portugal.

The debt of £1200 was unsecured. Interest was paid thereon from the date of the said indenture to the 25th of December 1851.

On the 28th of November 1851 the firm of Quarles Harris & Co. suspended their payments.

On the 3d of January 1852 Matilda Steinkopf, for the first time, made to the said William Norton and Quarles Harris a request in writing to call in the said monies.

The Plaintiff, William Norton, accordingly called upon the firm of Quarles Harris & Sons to repay the said sum of £1200. They answered, by a letter dated the 13th of January 1852, informing him that on the 28th of November the firm were compelled to suspend their payments, and that it was consequently out of their power to comply with the said request.

The Plaintiff then requested the said Matilda Steinkopf to take the necessary steps to obtain the direction of the Court as to the course proper to be adopted with respect to the recovery of the said trust fund; but she declined to do so, and the Plaintiff had no fund in hand applicable to the purposes of the said trusts to enable him or the said [48] trustees to take any proceedings to enforce payment of the said debt.

Pursuant to a resolution made at a meeting of a large number of the creditors a letter of license was granted to the said Quarles Harris to liquidate the estate, under the inspection of Messrs. Tanqueray, Complin, Soanes and Gardener; and this arrange

ment was carried into effect by an indenture made the 21st of September 1852 between the said James Dawson Harris and Quarles Harris of the first part; the said Aveling Tanqueray and Edward Thomas Complin, as such inspectors, of the second part; and the several creditors whose names and seals were thereto set and affixed, of the third part.

Part of the estate had since been realised, and a dividend of 3s. in the pound was ready to be paid to the creditors.

Under these circumstances William Norton filed the bill in this suit against the said Matilda Steinkopf, and against the said Frederick Norton Miller and Matilda Clarissa Miller, who were infants, and also against the said Quarles Harris, praying that the trusts of the indenture might be performed and executed under the direction of the Court, and that the Plaintiff might be indemnified and paid his costs, charges and expenses; and for further relief.

The cause now came on to be heard, upon a motion for a decree "according to the prayer of the bill," as it was expressed in the notice of motion.

There was an affidavit by the accountant, who had been investigating the affairs of the firm, that it would be for the advantage of the unsecured creditors of the firm to accept the proposed compromise. It was proved also that part of the stock-in-trade of the firm consisted of wines, which [49] were subject to claims by persons who had liens upon them, and it would, therefore, take time to realise them advantageously.

Mr. De Gex, for the Plaintiff, suggested that he should be allowed to accept the terms of compromise about to be concluded with the other creditors of the firm.

Mr. Rolt, Q.C., and Mr. Eddis, for Matilda Steinkopf and her children, insisted, on behalf of their adult clients, upon their strict rights. [The Vice-Chancellor thought he could not exercise his discretion in the matter as the adult Defendants so insisted.]

Mr. Russell, Q.C., for the Defendant Quarles Harris. My client is a trustee ; there can be no personal claim against him. [THE VICE-CHANCELLOR. He is also one of the firm who are indebted to the trustees. It may be a question, too, whether, as trustee, every moment of default on his part, after the notice to call in the fund was given to him, was not a breach of trust.] There can be no decree against him as a debtor, unless the other partners are before the Court; nor is this the relief sought by the motion for the decree, which is altogether too indefinite. The notice of motion ought to specify the decree which the Plaintiff thinks himself entitled to. (See 15 & 16 Vict. c. 86, s. 15.)

THE VICE-CHANCELLOR Sir W. PAGE WOOD. A request has been made to the trustees to call in the trust fund, according to the terms of the settlement. The Defendant, Harris, has not called it in, and says that he cannot pay it. The Plaintiff has done his best to realise [50] the fund, by demanding payment from the firm; and, upon the expiration of three months from the receipt of the notice given by him to Mr. Harris, it became the duty of that gentleman to pay over this money; and I must consider that the fund was from that time in his hands as a trustee.

The difficulty in point of form is of no real substance. Mr. Russell's client has got the trust fund in his hands, and I must consider him in default for not realising it upon receiving notice from the cestui que trust. Within a certain time after the notice was given the money ought to have been got in, that is to say paid. It was the duty of this trustee to call upon himself and his co-partners to pay this debt. They were each liable, for, though an action must have been brought against them jointly, the remedy would have been joint and several. Each was distinctly liable for the debt. Therefore the case is not improved by the money having got into his hands originally as one of the partners in this firm.

Now, as I have here this gentleman, who, not having become bankrupt or insolvent, must be treated as a solvent partner in the firm which owed this money, I must assume that he had this money in his hands at the proper time after the notice, and having it, the fund being at home, he is liable to pay it over; for I must consider either that he had not done his duty in getting in the fund, and is thus liable, or that he has got in the money, which is probably the more correct view. In either case he would be answerable.

I should be extremely sorry to hold that a motion for a decree differs in any way

from the hearing of the cause, or that under that form of proceeding the parties should not be entitled to all the relief which they could have at [51] the hearing. If I were so to decide, a motion for decree would be an extremely perilous proceeding, because, in the event of the Defendant not appearing, the parties would run the risk of losing a portion of their remedy, and the consequence would be that the whole beneficial object of the Act of Parliament would be lost.

There is, however, in this bill an express prayer that the trusts may be performed. That is enough to put Mr. Harris on his guard, and, coupled with the statements in the bill, to inform him that the relief sought would be that the trusts which ought to have been performed before the bill was filed might now be carried into execution under the direction of the Court.

Direct payment of the capital fund into Court on or before the first day of Hilary term. Take an account of whatever may be due in respect of interest on the capital fund. Adjourn the further consideration, and reserve all the costs.

[52] LACHLAN v. REYNOLDS. Nov. 17, 1853.

[S. C. 23 L. J. Ch. 8; 2 W. R. 49.]

Sale by the Court. Misrepresentation in Particulars. Discharge.

In a sale by the direction of the Court the particulars of sale stated that Lot 12 comprised a house "at present in the occupation of C., at a rental of per annum £42." The purchaser of this lot paid the deposit, and his purchase was confirmed by order absolute, and he then obtained an order for payment of the remainder of the purchase-money into Court. The purchaser afterwards discovered that C. was not tenant to the vendors, but to some person who claimed by an adverse title. Held, that the description in the particulars of sale must mean that C. was tenant to the vendors for a limited period at a given rent, and that this was a representation so different from the fact that it amounted to such bad faith on the vendor's part as would induce the Court to discharge the purchaser from his contract.

This was a motion on behalf of J. Biffin, the purchaser of Lot 12, under a sale by the Court of Chancery, that he might be discharged from his purchase; and that the sum of £95, paid by him as a deposit, pursuant to the conditions of sale, might be repaid to him, with interest from the time of such payment; and that the costs, charges and expenses of the said J. Biffin, incurred by him in and about his said purchase and investigating the title thereto, and of and incident to this application, might be taxed and paid by the Plaintiff to the said J. Biffin; or that such other order might be made as to the Court might seem proper.

Lot 12 was described in the particulars of sale as follows:-"Lot 12 comprises No. 13 York Place, adjoining Lot 11, of a similar description, at present in the occupation of Mistress Clarke, at a rental of per annum £42;" and the particulars stated that the premises might be viewed by permission of the tenant; and that particulars, with conditions of sale, might be obtained on the premises. Certain conditions of sale were annexed to the particulars, and the second and third of such conditions were as follows:-"2. Each purchaser, at the time of sale, shall pay into the hands of Mr. Marsh, the auctioneer, a deposit of £10 per cent. on the amount of the purchase-money." "3. The purchaser of each lot shall, at his or her own expense, obtain and confirm the Master's report of purchase, and shall, on or before the 2d of November next, pay the balance of the purchase-money into the Bank of England, in the name and with the privity of the Account-[53]-ant-General of the Court of Chancery, to the credit of the cause 'Lachlan v. Reynolds,' to an account to be intitled "The Produce of Sales of Real Estates; and on such payment being made, each purchaser shall be entitled to the rents and profits from the next quarter day, with a proportionate part of the rents and profits of the current quarter.'

On the 3d of September 1853 the Plaintiff's solicitor delivered to the purchaser's solicitor abstracts of the title to the said lot.

On the 20th of October 1853 certain requisitions on the title were delivered to the Plaintiff's solicitor, amongst which was one in the following words :-"15. Produce and furnish abstract or copy of any agreement with the tenant; or how do the vendors evidence the tenancy according to the particulars?"

On the 26th of October 1853 the Plaintiff's solicitor sent the following answer to such requisition :-"The vendors have no agreement in their possession with the tenant, nor is the present rent paid to the vendors; but they will procure an attornment from the present tenant to the purchaser, or else deliver possession to him."

On the 29th of October 1853 a renewal of the original requisition was delivered to the Plaintiff's solicitor as follows:-"15. The answer to this requisition is not, we submit, sufficient. Is there any agreement? Who receives the rent? When did the tenancy commence ?"

On the 4th of November instant the Plaintiff's solicitor delivered a further answer (dated the 3d of November) to the said requisition as follows:-"15. I cannot furnish a more satisfactory reply than that given. The tenant in [54] the house holds under some person who has illegally obtained possession of the premises, and whom it will be necessary to eject, should the tenant not consent to attorn to the purchaser."

J. Biffin purchased Lot 12 as an investment, and not with the intention of residing in the house. The Master's report of the purchase, dated the 30th of June 1853, was confirmed by orders nisi and absolute, dated respectively the 1st and 18th of July 1853. On the 4th of November 1853 the purchaser moved for leave to pay the balance of his purchase-money into Court, which was accordingly given.

Mr. Bacon, Q.C., and Mr. Horsey, for the motion, said that the purchaser had, in fact, bought a lawsuit, for the vendors had merely a right of entry when the property was put up for sale. The delay which bringing an ejectment against the occupant would cause was a sufficient reason for discharging the purchaser from his contract: Lechmere v. Brasier (2 J. & W. 287), Calvert v. Godfrey (6 Beav. 97).

Mr. Bailey, Q.C., contrà, said that the purchaser merely bought the property as an investment; that it would not take long to eject the occupant; and that if there were any diminution of the value on that account it would be a matter for compensation. THE VICE-CHANCELLOR Sir W. PAGE WOOD. I have a very clear opinion in this If there be one thing which the Court insists upon more than another in dealings between vendor and purchaser it is that there [55] should be perfectly good faith on the part of the vendor in the representations which he makes to the purchaser. It would be strange indeed if, in sales made by the direction of the Court, this rule should be less stringent.

case.

In this case the vendors put up for sale property which was thus described in the particulars of sale: "At present in the occupation of Mrs. Clarke, at a rental of per annum £42." That must mean that Mrs. Clarke was tenant for a limited period to the vendors at the given rent. The vendors knew perfectly well, at the time when they so described the property, that Mrs. Clarke was in occupation adversely to the vendors, and that she had got the possession, which could only be recovered from her by ejectment, and all that the vendors had was a right of entry. Whether that was a proper subject of sale at all may be a question. I do not, however, proceed upon that ground, but upon this, that the vendors knew that the possession was hostile, and they represented it as the possession of their own tenant; and that is quite enough to justify me in saying that I will not hold the purchaser bound by a contract to purchase, which he made upon the faith of that representation.

I do not think that there has been any waiver of the objection; the correspondence which passed concerning the requisitions upon the abstract shews that, when the purchaser asked under what agreement Mrs. Clarke held, the answer was that she did not pay rent to the vendors, but that she would attorn. I do not think that that was sufficient to inform the purchaser that she held adversely. When the purchaser moved to pay the balance of his purchase-money into Court he had no notice that Mrs. Clarke was a hostile occupant.

It is said that this property was only purchased as an [56] investment, and that the vendors can secure that object to the purchaser by bringing an ejectment against the occupier, or giving the purchaser meanwhile interest on his money, or a compensation for the objects he had in view; but I think that the purchaser is entitled to say