an unqualified promise to pay. The cases of A'Court v. Cross (5) and Sidwell v. Mason (6) establish the same principle.

C. Crompton supported the rule.-Lord Tenterden's Act, 9 Geo. 4. c. 14, makes no difference in the law as to what will take a debt out of the operation of the statute; it merely requires that written proof should be required where previously parol evidence would have sufficed. Before that statute a parol acknowledgement without a promise would have been insufficient. This case is not different from Tanner v. Smart (1). It is not enough for the creditor to produce an acknowledgment which is not inconsistent with a promise to pay. In the recent case of Cockrill v. Sparke (7) the letter of a surety for a person named Hilder, "I agree to your receiving the dividend under Hilder's assignment, and do agree that your so doing shall not prejudice your claim against me for the same debt," was held not a sufficient acknowledgment of his own debt as surety to take the case out of the statute, and yet it was not inconsistent with a promise to pay. If in Rackham v. Marriott (4) a mere hope, expressed too before the debt was barred, was not sufficient, still less ought a letter like the present to be held sufficient.

[BRAMWELL, B. Was any objection made to the admission of this letter in evidence, that it was an answer to another letter, which ought to have been produced.]

No. In addition to the cases cited above, reference was made to Hurst v. Parker (8), Fearn v. Lewis (9), Collis v. Stack (10), Phillips v. Phillips (11), and Cawley v. Furnell (12).

CHANNELL, B.-I am of opinion that there was evidence in this case to take the debt out of the operation of the Statute of Limitations, and, therefore, that this rule.

should be discharged. There must be, according to Lord Tenterden's Act, an acknowledgment or promise in writing. I doubt if the statute meant two different things when it said "acknowledgment or promise." If the acknowledgment is explicit, a promise to pay is inferred from it; but, however distinct it may be if accompanied with a refusal to pay, the inference of a promise is rebutted. I think that this letter does contain an acknowledgment, and that there is nothing in it which fairly excludes the implication of a promise.

BRAMWELL, B.-I also think that this rule should be discharged. It is clear that, if there had been some words omitted from the letter, it would be sufficient to take the case out of the statute, and yet, because the debtor goes on to state his intention to do his best to pay, it is said that the letter is insufficient, not because those words qualify what has gone before, but because it is said that they disprove any promise to pay. I think that, on the ground put by my Brother Channell, this is a sufficient acknowledgment. No objection was raised at the trial to the admissibility of the letter to which this was a reply, and which might have thrown light on this, and so none can be taken here.

MARTIN, B.-My opinion is, that this letter is not sufficient. The law is sufficiently laid down in 2 Wms. Saund. 64, h, i, "To take the case out of the Statute of Limitations the document must either contain a promise to pay the debt, or an acknowledgment in writing, from which such promise can be inferred." In my judgment, the proper mode is not to look at what has been done in the case of other writings, but to look at this one only. The letter must have been in reply to an application for money. If it had stopped after the words "we have had hard work to get on," it would have been impossible to imply a promise to pay, and the words which follow do not contain one. I think that this rule should be made absolute.

1866. May 25.

In the matter of the succession of HENRY RICHARD CHARLES, EARL COWLEY.

Succession Duty Act (16 & 17 Vict. c. 51), ss. 21, 22, 44.-Value of the SuccessionDeduction for Expense of Management and Collection of Rents--Necessary OutgoingsPayments by Trustees.

A testator devised real estate to trustees upon trust out of the rents to pay the interest on certain mortgage debts, and also certain annuities, and to pay the surplus to a cestui que trust for life, with remainder over. Power was given by the will to the trustees to pay certain sums to agents or receivers for collecting the rents :-Held, that in estimating the value of the succession of the cestui que trust no allowance was to be made for these payments for collection. In re Elwes (1) extended.

This was an appeal by petition, under the Succession Duty Act, 1853, 16 & 17 Vict. c. 51. s. 50, against an assessment made by the Commissioners of Inland Revenue of the value of the succession of Henry Richard Charles, Earl Cowley, to real estate, under the will of William Richard Arthur, Earl of Mornington.

By his will, dated the 27th of June, 1863, the Earl of Mornington, after bequeathing certain legacies and annuities, and among others an annuity of 4,000l., directed to be paid out of the income of the general residuary estate, devised his real estate to William Bulkeley Glasse and Andrew Alfred Collyer-Bristowe upon trust, out of the rents and profits to pay the interest of the mortgage debts charged thereon, to keep up the mansion-house at Draycot, and such farm-buildings as the lessees were not bound to keep in repair, to pay such portions of the annuities as the annual income of the residuary personal estate should be insufficient to satisfy, and subject and charged as above upon trust for Earl Cowley for life, with remainders over.

The petition set out the following proviso in the will: "Provided always, and I hereby authorize my trustees or trustee for the time being, during such time as my (1) 2 Hurl. & N. 719; s. c. 28 Law J. Rep. (N.B.) Exch. 46.

NEW SERIES, 35.—EXCHEQ.

said manors, messuages, lands, tenements and hereditaments, or such of them as for the time being shall be unsold, shall remain subject to the payment of any mortgage debt charged thereon, at the time of my decease, and during such time as the said annuities hereinbefore bequeathed, or any of them, shall continue payable, to permit and authorize any person who, but for the charges and provisions as to management created and contained by and in this my will, would, under and by virtue of this my will, be, for the time being, entitled to the possession of my said freehold manors, messuages, lands, tenements and hereditaments, personally to occupy my said mansion-house at Draycot, and the offices, outbuildings, orchards, gardens, pleasure-grounds, parks, lands, woods, and plantations thereto belonging. And I expressly direct that, during such time as my said manors, messuages, lands, tenements and hereditaments, or such of them as for the time being shall be unsold, shall remain subject to the payment of any mortgage debt charged thereon at the time of my decease, and during such time as the said annuity of 4,000l. to the said Lucile Bruchet shall continue payable, the said William Bulkeley Glasse and Andrew Alfred Collyer-Bristowe, and the survivor of them, and the heirs of such survivor, their or his assigns shall continue in the possession or receipt of the rents and profits of the said hereditaments and premises (but without prejudice always to the trust last aforesaid, as to the occupation of the said mansion-house and premises as last aforesaid), and manage and superintend the management of the same premises, and may cut timber and underwood from time to time in the usual course for sale or repairs, or otherwise, and may erect, pull down and repair houses and other buildings and erections, and drain or otherwise improve all or any of the said premises, and insure houses, buildings and other property against loss or damage by fire, and make allowances to and arrangements with tenants and others, and accept surrenders of leases and tenancies, and generally may deal with the premises as if they or he were the absolute owners or owner thereof, without being answerable for any loss or damage which may happen thereby. And I autho

2 A

rize the said William Bulkeley Glasse and Andrew Alfred Collyer-Bristowe, and the survivor of them, and the heirs of such survivor, their or his assigns, during such times as last aforesaid, to appoint stewards or a steward of any manors or manor for the time being, subject to the trusts aforesaid, and to appoint agents, receivers, surveyors, bailiffs and others for the general letting and management of the manors, messuages, lands, tenements and hereditaments for the time being, subject to the trusts of this my will, and the collecting the rents and profits thereof, and out of the rents and profits of the said premises to pay or allow to the person or persons so employed such reasonable salaries, wages or other allowances as the said William Bulkeley Glasse and Andrew Alfred Collyer-Bristowe, or the survivor of them, or the heirs of such survivor, or their or his assigns, may think fit : Provided always, and I hereby declare my will to be, that the aforesaid provision as to management shall, as well after as before the discharge of the mortgage debts which shall be at my decease charged on the said premises, or any of them, and as well after the cesser as during the continuance of the said annuity of 4,000l. herein before bequeathed, extend and be applicable to the period of the minority of any male person, or minority and discoverture of any female person who, if of full age, would for the time being be entitled under the trust of this my will to the possession or the receipt of the rents and profits, or surplus rents and profits of the said premises as tenant for life, or tenant in tail male, or in tail by purchase.

The testator died on the 25th of June, 1865, without having altered his will, except that by a codicil he charged his real estates with payment of his debts, funeral and testamentary expenses, and certain legacies and annuities. At the time of his death the real estate was subject to mortgage-debts to the amount of 336,000, which subsisted at the time of the presentation of the petition, and the recipient of the annuity of 4,000l. was then alive. The trustees accepted the trust, and necessarily employed resident agents and superintendents of repairs upon the said estates, and paid them out of the respective rents certain annual salaries, being a reasonable

remuneration for the services rendered. They also necessarily employed receivers to receive the rents of the estates, and allowed them a per-centage of 47. on the gross annual receipts, the same being a reasonable remuneration for the services rendered by such receivers.

The petitioner, in making a return to the Commissioners of Inland Revenue of the succession, claimed to have an allowance made to him under the provisions of the Succession Duty Act, 1853, in respect of necessary outgoings, including the salaries of the said resident agents and superintendents of repairs of the estates, and also in respect of the receivers' per-centage on the gross amount of rents and receipts. The Commissioners in their assessment refused to make allowance for the salaries and percentage.

The sum in dispute in respect of duty on the assessment amounted to 1,116l. 8s. 9d., or thereabouts.

The petitioner appealed against the assess

ment.

Bovill and Hannen, for the petitioner.The question to be decided depends on the construction of sections 21. and 22. of the Succession Duty Act (16 & 17 Vict. c. 51), which state the manner in which the interest of a successor to real estate is to be valued, and what necessary outgoings are to be deducted. Lord Cowley is only beneficially interested in the surplus remaining after payment of the interest on mortgage debts, annuities and expense of collecting the rents. He has no power to receive the rents himself, the trustees being expressly authorized to employ receivers. In the case of In re Elwes (1) this Court refused to make allowance for salaries for receivers of rents, because they considered it optional with the successor whether he would receive his rents himself, or employ salaried persons to receive them for him.

[POLLOCK, C.B.-But there it was strongly urged that it was impossible for the successor to receive the rents himself because he was an infant and resident in India.}

But still they were voluntary outgoings, not necessary outgoings. Here, if a certain sum had been fixed for the remuneration of the trustees, it would clearly have had to be deducted in estimating the value of the succession. Besides, these payments for

collection are not made for the benefit of Lord Cowley only, but for the benefit of the annuitants and all persons who receive payments out of the rents. The trustees have power to erect buildings, and there might be no surplus at all coming to him.

The Attorney General (Sir Roundell Palmer), for the Crown.-If the gift had been to Lord Cowley without the interposition of trustees, it is clear that the deduction for the expenses of collection of rents could not be made. Then the question simply comes to this, whether things which are not necessary outgoings can be made so by the separation of the legal and equitable estates. The argument for Lord Cowley goes too far, for if the discretion given to the trustees in expending money is so large he might object to be assessed at all. Nothing more is done here than to give the trus tees powers of management in a wide form. We protest against this being called an assessment of the value to Lord Cowley. It is an assessment of the value of the property, not of the value to the owner; as is pointed out by Mr. Baron Bramwell in In re Elwes (1). If this claim were allowed, a wide door would be opened for obtaining an allowance of outgoings not authorized by the statute. It would only be necessary to interpose trustees and direct them to make the payments. The rule applied to wills would have to be applied to deeds, and it would become simply a matter of conveyancing machinery.

Bovill, in reply.

POLLOCK, C.B.-I believe we are all of opinion that our judgment should be for the Crown. The case of In re Elwes (1) is a direct authority on the point, assuming that there is no distinction between cases where expenses such as are here claimed to be deducted are incurred individually by the successor, or by trustees who are acting for him. It is said that the trustees in this case are not trustees for him only. Properly speaking, they are trustees for the whole estate; but at present they are trustees for him, and it appears to me that the distinction, which, no doubt, is a distinction in point of fact, and may be so speciously stated as for a moment to create a doubt,

vanishes altogether when we look at the entire question, and all the elements to be considered in coming to a determination upon it. It is said that if a man is under the absolute necessity of incurring certain expenses before he can get that which is bequeathed to him, he ought to be allowed to deduct them. If that proposition were nakedly stated, it would appear to be not at all unreasonable; but when we come to consider the object of the tax, and the principle upon which the act of parliament is to be administered, it vanishes, I think, in a moment. Certainly the Crown ought not to receive less because a particular individual receives a great deal more. If one man has nothing left to him but 100l. a year, the rent of a house in the next street, which he can collect for himself, he pays upon that 100l. a year. If instead of the rent being to be collected in the next street it is to be collected 100 miles off, it is quite clear that the act makes no distinction, and that he can make no deduction on the ground that the succession is less valuable to him, because the property is at a greater distance from his residence. He may live there if he pleases, or he may employ an agent; and I think it may be laid down as a clear deduction from the different clauses of the act, that the duty depends on the value of the property, not with respect to the expenses that the individual may have occasion to incur in the collection, but with respect to the property itself. If he has so much that he cannot possibly collect it himself, so much the better for him; but that is no reason why the Crown should get less than it would get if the property were divided among a hundred or two hundred people; and that appears to me to be the real substantial justice of the claim of the Crown. According to the argument on behalf of the petitioner, the more wealthy a man becomes by a large bequest, the more the Crown is to lose in consequence of his inability to collect and deal with the whole. Therefore, it appears to me to be quite clear that what may be called the charges of collection, and the expenses which must be incurred for stewards and collectors of rents, are not deductions to be made from the claim of the Crown in respect of duty.

Then, looking at the facts of this case, it is very true that Lord Cowley pays—that is, the trustees pay for him-a certain allowance which they pay at their pleasure; but the case finds that they pay no more than is necessary. It may be taken, therefore, that they pay no more than Lord Cowley would have to pay, if the property had been left directly to him, subject to all these charges. I think, therefore, that this creates no difference in point of fact, though there is an apparent difference in point of name; and for these reasons I think that our judgment should be for the Crown.

MARTIN, B.-I am of the same opinion. There are two questions in this case: one substantial, and the other formal. The substantial question is, whether, when the property comes to a successor encumbered with debts, in ascertaining the amount on which the calculation is to be made for succession duty, the expense of management is to be deducted. It seems to me that the case of In re Elwes (1) has substantially decided that question, and is an authority for our judgment in this case. But when one looks at the 44th section of the act of parliament, I apprehend there can be no doubt about it; for that act enacts that "the following persons, besides the successor, shall be personally accountable to Her Majesty for the duty payable in respect of any succession, but to the extent only of the property or funds actually received or disposed of by them;" and it specifies trustees, guardians, &c. "in whom the property, or management of any property subject to duty, shall be vested," and enacts that persons so made accountable should be debtors to Her Majesty in case of non-payment. If these trustees had been called upon to make a return, instead of Lord Cowley (and in all probability they did, in fact, do it for him), they would not, upon the authority of the case of In re Elwes (1), have been entitled to deduct the 1,1007. But I also think that section 21, coupled with section 34, establishes the same thing. By section 21. the interest of every successor is to be considered to be of the value of an annuity equal to the annual value of the property, after making such allowances as thereinafter directed. The 22nd section then directs certain allowances; and it is admitted that

this allowance claimed is not one of them. But the 34th section goes on to enact what shall be the value of the property and what allowance shall be made in respect of incumbrances, but the allowance is to be made in respect only of the yearly sums payable by way of interest, "as reducing the annual value pro tanto." It seems to me, therefore, that there is an express enactment that, in estimating the value of the property in respect of which duty is to be paid, a deduction ought not to be permitted for the expenses of the agent and receiver in the management of the property. I own I think that it is a clear point, and that it cannot be that the mode of estimating this succession duty can depend on the skill with which the conveyance is prepared by the conveyancer who has it in hand; and that we must look (according to what is laid down in the House of Lords in the case of Lord Saltoun v. the Advocate General of Scotland (2) as the proper mode of looking at the act of parliament) at the substantial and general intention of the legislature as expressed. As to the hardship of calling on Lord Cowley to pay duty in respect of this sum, it is enough to say that he takes the property subject to its burdens. In my opinion, the Crown is entitled to our judgment.

BRAMWELL, B.--I am of the same opinion. The question turns on the 21st section, which says, "The interest of every successor, except as herein provided, in real property, shall be considered to be of the value of an annuity equal to the annual value of such property," &c. Now, supposing it stopped there, there can be no doubt that the interest of Lord Cowley would be the value of this property, without this deduction. That is clear. But it goes on to say, "after making such allowances as are hereinafter directed." That was a necessary clause, not, perhaps, with reference to section 22,-as to which I shall have a word to say, but with reference to the following sections. However, the only section thereby referred to is section 22, and I am strongly inclined to think (though it is not necessary perhaps to say it) that section 22. is of no operation, and that if it had not

(2) 3 Macq. 659,