not give to words, which, perhaps, may be slightly ambiguous, such a meaning as to alter seriously well known and long recognized principles of law. But there is no necessity to strain the meaning of any words, for the sections in question admit of a simple intelligible construction. The 13 & 14 Vic., c. 29, s. 1, after reciting the provisions of the Sheriffs' Act (5 & 6 Wm. 4, c. 55), and the Abolition of Arrest on Mesne Process Aet (3 & 4 Vic., c. 105) proceeds thus: "be it enacted that the provisions hereinbefore recited of the said Acts of the sixth year of King William the Fourth and the fourth year of her Majesty, shall not in anywise extend, or be applicable to any judgment entered up in any of her Majesty's superior Courts at Dublin, or obtained in any inferior Court of Record after the passing of this Act, nor to any decree, order, or rule made after the passing of this Act; and no writ of elegit, or writ of execution (save as hereinafter mentioned) shall issue or be sued upon any such judgment, decree, order, or rule against any lands, tenements, or hereditaments, or any estate, or interest therein; nor shall any lands, fenements, or hereditaments, or any estate, or interest therein be charged or affected by any such judgment decree, order, or rule, save as provided by this Act." The operation of this section is to sweep away all execution whatsoever against all lauds and hereditaments, or any estate therein, with this qualification, "save as provided by this Act." Now the provisions, referred to in this qualification are to be found in the 10th section of the Act, which is in the following terms: Provided always, and be it enacted, that all such chattel interests in lauds, tenements, or hereditaments as might have been taken in execution under any writ of fieri facias if the said Act of the fourth year of her Majesty had not been passed, may be taken in execution and otherwise dealt with under any writ of fieri facias already issued, or hereafter to be issued, anything in this Act contained nothwithstanding." This plainly places the operation of a writ of fieri facias on the footing it occupied under the old law, and by this, incontestably, an equitable interest in a chattel could not be seized in exccution. The concluding phrase of the 10th section is equivalent to "anything to the contrary in this Act notwithstanding." Judge Dobbs, on the other hand, considered its meaning to be," any mortgage, &c., executed in accordance with the provisions of this Act notwithstanding." That is, if a judgment mortgage be registered against a chattel interest by virtue of this Act, it shall still be lawful to take that chattel interest in execution under a writ of fieri facias. Battersby, Q.C. (with whom was Sir Colman O'Loghlen, Q.C., and Molloy) for the defendants. It is necessary, in order to insure a right interpretation of the 10th section of the 13 & 14 Vic., c. 29, to consider what was the former state of the law with respect to judgments, and what changes have been introduced by modern legislation. Prior to "Pigot's Act" (3 & 4 Vic., c. 105) the judgment creditor had no specific lien upon the lands of his debtor. The Sheriffs' Act enabled him to obtain a receiver over the entire lands, and then Pigot's Act gave the judgment the effect of a specific charge upon the lands of the judgment debtor. Neither of these Acts, how ever, interfered with the rights of the judgment creditor to an execution against the chattel interests of the debtor under a writ of fieri facias. The 13 & 14 Vic., c. 29, was then passed, and one of its principal objects was, that the creditor should, for the benefit of others, specify the lands upon which his judgment was to operate as a charge. By this Act he obtained the legal estate in the lands, against which his affidavit was registered, as completely as if the judgment debtor had executed a deed to him. This estate was a mere creation of the statute, which gave new principles and more immediate remedies. Therefore, although at common law it is clear that an equity of redemption cannot be taken in execution, it is by no means a necessary consequence that this peculiar statutable estate should be in a similar position. A judgment mortgage under this Act, according to the authorities is, in a measure, a conveyance subject to redemption-Eyre v. M Dowell (9 H. of L. Ca. 619; 7 Ir. Jur. N. S. 45); M'Auley v. Clarendon (Drury, temp. Nap. 433; 8 Ir. Ch. Rep. 568). As has been already stated, neither the Sheriffs' Act, nor Pigot's Act affected the operation of a writ of fieri facias, and but for this Act it is unquestionable that the sheriff might have seized and sold a chattel interest under a writ of fieri facias. It is not, then, unreasonable that the Legislature should introduce such a provision into this Act as would prevent judgment creditors from being deprived of this right. Hence, at the end of the Act, after its main provisions, is inserted the 10th section, which enacts that the chattel interests may be taken in execution, thing in this Act contained notwithstanding." The words, "if the said Act of the fourth year of her Majesty had not been passed," are useless and meaningless, for Pigot's Act did not touch the right to take a chattel interest in execution under a writ of fieri facias. 66 any. Sir Colman O'Loghlen, Q.C., on the same side. Flanagan, Q.C., in reply. THE LORD CHANCELLOR. I have no doubt that this order of the Court below cannot be sustained. The 13 & 14 Vic. c. 29, gives to a judgment, when registered in accordance with its provisions, all the characteristics of a mortgage under seal. There may be language in this Act which is far from being clear and unambiguous; and there are certainly some expressions, the object and force of which, I confess, I cannot understand. However, I must take them as I find them; and there is no doubt but that this Act, by the seventh section, enacts that the registration of the affidavits required shall operate to transfer to and vest in the creditor all the estate of the debtor in the lands, and that the creditor "shall have all such rights, powers, and remedies whatsoever as if an effectual conveyance, assignment, appointment, or other assurance to such creditor of all such estate and interest," had been executed and registered at the time of registering the affidavit, or, in other words, as if the debtor had executed to him a legal mortgage. Now, I am called on to say that under the 10th section of the Act the sheriff can, under a writ of fieri facias, seize and sell a chattel interest against which a judgment mortgage has been registered under the provisions of this Act, and that the words "anything in this Act notwith 4 66 standing" at the close of the section are in fact tanta- | default of appointment by the survivor, to and among mount to "6 any judgment mortgage registered by vir- the children equally. The petitioner was the only ture of this Act notwithstanding." Now, although child of the marriage, and he attained his majority there is, as I have already observed, some obscurity in in 1857. Robert Burrowes died 13th September, the wording of the statute, which appears to have been 1841, and, as the trustees had declined to act, and framed in a hasty way without sufficient consideration, one had actually disclaimed, the Insurance Company I think a very intelligible meaning can be put upon refused to pay the amount of the policy until new the concluding clause of the tenth section by taking it trustees were appointed. The matter was accordingly as an exposition of the saving of the first section. referred to the Master, and new trustees were apThat section enacts that no writ of execution, save pointed, and the property vested in them by deed as hereinafter mentioned," should be sued upon any bearing date, March, 1843. These were, Henry judgment against any lands but what is hereinafter James O'Brien, one of the respondents, and Thomas mentioned?" The tenth section re-establishes the Gibbings, of whom the second respondent was the right to take a chattel interest under a writ of fieri widow and personal representative. Immediately on facias, which would have been otherwise abolished by their appointment the £1,200, being the amount of the comprehensive language of the first section. If the policy, was paid over on their joint receipt, absothis equity of redemption were excluded from the ge- lutely to George Burrowes, the father, instead of neral rule of law, this new code of laws would turn a being invested pursuant to the limitations in the sheriff's sale into an equity suit. I do not think that marriage settlement. This was the breach of trust if it were intended to make this exception it would complained of, and this sum it was now sought to have been done in this inferential manner. I think it make the trustees restore. George Burrowes died on would have been stated in express terms that the the 20th September, 1861, having previously made judgment mortgage given by the Act, although it con- his will bearing date, 17th March, 1858, wherein veyed the legal estate, should not prevent the taking was contained the following clause:-"I have paid in execution of a chattel interest under a writ of fieri debts which my son Robert Francis Burrowes (the facias. petitioner) contracted, amounting up to this present time to £750. This £750 is to be deducted from £1,200 which was left him in settlement, and I give him my property in Charleville in place of the remainder." He also bequeathed to him a reversionary THE LORD JUSTICE OF APPEAL.-I am of entirely the same opinion. I cannot draw a distinction between the operation of a mortgage and a judgment mortgage under the Act. The execution of a mortgage rendered it impossible to reach an equity of re-interest in certain Dutch funds, after the death of the demption; and the registration of a judgment mortgage must be considered to have in every respect the same effect. Order below reversed. Rolls Court. [Reported by John Munroe, Esq., Barrister-at-Law.] It second wife, to whom he gave a life interest in them. BURROWES v. O'Brien and Gibbings,-Nov. 25, 1863; suit was defective for want of parties. Jan. 22, 1864. Parties. Breach of Trust-Suit for recovery of trust fund-the wife and personal representative of George Burrowes, the tenant for life, should have been made a It was party, since his assets were primarily liab'e. object of the suit, which was merely to have the trust urged on the other hand that, having regard to the money brought into Court, and to the further important fact that a suit was pending at the instance of the respondent O'Brien for administering the assets of the tenant for life, there were sufficient parties before the Court. The trustees of a settled fund committed a breach of THE petition was filed to compel the respondents to Chatterton, Q.C., (with him William M. Johnson) bring in certain trust monies, and to lodge them in for petitioner.-The weight of authorities seems to Court to the credit of the cause. The facts were be in favour of petitioner's right to have the money these:-Prior to the marriage of George Burrowes brought into Court. The respondent O'Brien has with Elizabeth Roberts, his then intended wife, a already brought a nit for the administration of the marriage settlement, bearing date 21st October, 1834, assets of the tenant for life, when he will be recouped' was executed, whereby certain house-property as should those assets prove sufficient. The trustees are well as a policy of insurance effected on the life of the all jointly liable, and therefore, the persou suffering Very Rev. Robert Burrowes,-George Burrowes's by a breach of trust is at liberty to proceed against father-were conveyed to trustees to secure an anany he may think proper. No doubt, the case of nuity of £150, which was settled on the husband Williams sv. Allen (29 Beav. 292) is an authority for life, mainder to the wife for life, remainder, in against the proposition contended for: but it is sub mitted there must have been some peculiar circumstances in that case which do not appear in the report. When the case came on, upon appeal, on another point, (31 L. J. Ch. 551) both the Lords Justices expressly guarded themselves against intimating any opinion as to the necessity of making the representatives of the tenant for life parties to the suit. In Perry v. Knott (5 Beav. 293) where a breach of trust was committed by several executors, it was held that the cestui que trust might proceed against one in the absence of the others. Johnson in reply.-The case of Williams v. Allen was one in which the trustee of a marriage settlement was sought to be made personally liable for a portion of the trust-fund which was not forthcoming. It would seem, though this does not appear in the report, that a part of the trust-fund could only be reached by making the representatives of the tenant for life parties. At all events the Lords Justices expressly guarded themselves against confirming the decision of the Master of the Rolls in this respect. However, they expressly negative the doctrine contended for on the other side, viz., the primary liability of the tenant for life. peal 10 Ir. Ch. 287). The very recent case, how ever, of Williams v. Allen (ubi. sup.) is decisive of the matter. "I am of opinion," says the Master of the Rolls, "in this case that if the money has been so paid over to them, (the tenants for life) the defendant would have a right to make any interest in the trust fund belonging to them available, and, therefore, that their legal personal representatives ought to be parties." That is exactly the case now before the Court. Jones, on the same side, cited Mitford, p. 190. W. R. C. Smith, for respondent, Gibbings.-He Exham, QC, (with him Jones) for the respondent submitted that however his co-respondent might be O'Brien.—The rule is now well settled by recent cases affected by the filing of a petition for the administrathat this suit is defective for want of parties. A tion of the assets of the tenant for life, his client stronger case against a petitioner never came before was not thereby prohibited from insisting on the oba Court. It is sworn that the trust money misap-jection of want of parties, as she was no party to propriated was invested in Dutch funds, which were the administration suit. He also cited Raby v. settled by the tenant for life on his second wife for Ridehalgh (7 De G. M. & G. 104); and Robinson life, with remainder to the petitioner himself. This v. Bransby (6 Madd. 348). then is the case of a person who has already profited by a breach of trust, who has already enjoyed part of it, to whom his father has bequeathed certain properties in satisfaction of his claim, and who has a vested remainder in the property purchased with part of the trust money, coming into Court to compel the trustees to restore that trust fund. Reason and authority are against such a doctrine. Why should the trustees be compelled to bring a fund into Court when it appears by the will of the Rev. George Burrowes that his assets are ample to satisfy all his liabilities? The case of Perry v. Knott relied on at the other side completely upsets the doctrine which they contend for. That was a case in which one George Aldrige bequeathed to his son Joseph Aldrige, his executors, and administrators £1,000 stock in trust for the separate use of Elizabeth, the wife of William Howell, for life, and after her decease, equally amongst her children living at her decease. He appointed several executors. After his death the executors transferred the stock into the joint names of Joseph Aldrige and Elizabeth Howell. Subsequently, Aldrige transferred it to the name of Elizabeth Howell, and she applied it to her own use. A bill was filed by the children of Mrs. Howell against the representative of Joseph Aldrige, who objected that the other executors, as well as the representatives of Mr. Howell, should be made parties. It was held under the 32nd General Order of August, 1841, that the other executors were not necessary parties; but it was also decided that the representatives of the tenant for life were necessary parties, "since she had reaped the benefit of the second breach of trust." If a cestui que trust concur in a breach of trust or benefit by it, January 22.-THE MASTER OF THE ROLLS, now he becomes a trustee de son tort and is primarily delivered judgment. The simple question, he said, liable. Jesse v. Bennett (6 De G. M. G. 609). In was whether, where trustees commit a breach of Orrett v. Corser (21 Beav. 52) where a plaintiff sued trust by handing over a fund to the tenant for life, his trustee to make him responsible for a trust fund the cestuis que trust in remainder can file a bill against which had been wrongfully paid to the plaintiff's them to compel the restoration of the trust-fund, father, and the plaintiff had as one of the next of without making the representatives of the tenant for kin of his father, received two-thirds of his estate, life parties to the suit. It was contended for the it was held that the father's assets, in the hands of petitioners, that the case was governed by the 28th the plaintiff, were primarily liable to make good two general order of 1843, which provided: "That in all thirds of the trust fund in exoneration of the trustee. cases in which the plaintiff has a joint and several The point was also before the tribunals of this coun-demand against several persons, either as principals or try in Bentley v. Robinson (9 Ir. Ch. 479; on ap- sureties, it shall not be necessary to bring before the Lord Justice Turner said he never recollected a decree, in a suit of this nature, being made primarily against a tenant for life; and failing that, secondarily against the trustee. The ease of Jesse v. Bennett was different from the present, as that was a case where the representatives of a deceased trustee were seeking a contribution for a breach of trust from the surviving co-trustee. Putting the case in the strongest light against the petitioner, he can be only what is called on the other side a trustee de son tort. He is not primarily liable. When trustees are jointly liable, a cestui que trust may proceed against any one (Killaway v. Johnson, 5 Beav. 319). [The Master of the Rolls. Suppose one receives the entire amount and mis-appropriates it, must he not be made a party?] All are jointly liable, and therefore each is liable for the whole. Strong v. Strong (18 Beav. 408), relief was granted for a breach of trust committed by two trustees against one, in the absence of the representatives of the other. See also Ling v. Coleman (10 Beav. 371). In in the absence of an affidavit showing that the existence of this legacy was known to the Judge of the Divorce Court, when considering the amount of the wife's alimony, the husband had no claim thereto. Held also that the principal should not be paid out to the wife, but should be settled on the wife and the children of the marriage. THE petition prayed that a sum of £289 13s. 8d., lodged in Court, should be paid to the petitioner Jane Anne Tuthill, under these circumstances. The petitioner was married to William Tuthill, Esq., in 1837, and lived with him up to 1860. They then separated; and finally a divorce was obtained, on the ground of the husband's adultery in 1862; and a sum of £150 per annum was granted to the wife as alimony. This sum, the petitioner's affidavit stated, was paid out of her own estates. In December, 1860, a legacy of £300 had been bequeathed by Mrs. Wetherall to the petitioner, and this, after deducting probate and legacy dury, was by an order of the Court, of the 8th February, 1862, paid into Court to the credit of this matter. This sum the petitioner now sought to have paid out to her. The Solicitor General (with him R. Carson) for petitioner. This is one of those cases in which the Court will pay out the entire amount to the wife. Her fortune, on her marriage, was large; and there does not appear to have been any settlement. A divorce has been obtained on account of the husband's misconduct, and a very small sum has been granted to the wife as alimony. Court, as parties to a suit concerning such demand, all the persons liable thereto, but the plaintiff may proceed against one or more of the persons severally liable. But the Court may, on the motion of the defendants, or on the hearing of the cause, if it shall think the justice of the case requires the presence of other parties, direct that they shall be made parties accordingly." The justice of the case did require that the representatives of the tenant for life should be made parties. But, even, disregarding this latter clause of the General Order, there were sufficient authorities under the 32nd English General Order, which contained no such clause, to render them necessary parties. The case of Jesse v. Bennett (6 De G. M. & G. 609), was a distinct authority for this. In that case a bill was filed by one trustee against his co-trustee to compel him to replace the trust-fund which had been mis-appropriated by him. It was contended that as the cestui que trust had concurred in the breach of trust, his estate was primarily liable, and, therefore, he should have been made a party to the suit. The Lord Chancellor in giving judgment said—“There is no doubt as to the general rule, that it is not necessary to make the cestuis que trust, quâ cestuis que trust, parties to a suit for the administration of the trust property. But anybody, whether he is a cestui que trust or a stranger, who has received the trust property, and been guilty of a breach of trust, must, of necessity, be made a party to the suit," and accordingly he allowed the objection. The case of Perry v. Knott (5 Beav. 293) was quite conclusive on the point; and petitioner's counsel, in citing it, must have been misled by the marginal note which Warren, Q.C. (with him Todd) for the husband. omitted one of the principal points decided. It was This is not a case where the Court will interfere to there held that a cestui que trust might proceed against have the amount of a legacy paid to the wife. The one of several executors who had been guilty of a whole matter has already come before a Court of combreach of trust; but it was also held that the per-petent jurisdiction. There the Judge of the Divorce sonal representatives of the tenant for life, who had reaped the benefit of the breach of trust, were necessary parties. The distinction must be carefully observed between those cases in which there was a mere improper investment on the part of the trustees, and these where the benefit of the breach of trust was derived by one of the cestuis que trust. In the former case the cestui que trust might proceed against any one or more of the trustees; but, in the lattter, the estate of the cestui que trust who reaped the benefit was primarily liable; and his representatives (if he had died) were necessary parties to a suit for the restoration of the trust funds (Lewin on Trusts, 646; Browne v. Maunsell, 5 Ir. Ch. 351; Raby v. Ridehalgh, 7 De G. M. G. 104). The very recent case of Williams v. Allen (29 Beav. 292) had, however, decided the exact point, and behind that it was impossible to go. The representatives of George Burrowes the father should, therefore, be considered necessary parties, and fourteen days should be given to the petitioner, if so advised, to amend the petition. RE WETHERALl's trusts—Jan. 23, 1864. Court, having all the circumstances before him, granted the wife whatever alimony he thought her entitled to. The matter might be different if this legacy had been granted to the wife snsequent to the judicial separation. But here the legacy had been granted no less than two years before. Carson in reply.-There is no affidavit filed, on the part of the husband, showing that the existence of this legacy was brought under the notice of the Judge of the Divorce Court at all. Had it been brought to his notice, doubtless, the husband would have so stated by affidavit. If the judge, therefore, knew nothing of it, the same principle would apply as if the legacy had been given subsequent to the judicial separation. THE MASTER OF THE ROLLS.-This is not a case in which the husband should have appeared at all. A case of greater misconduct than appears in these affidavits has rarely come under my judicial notice. I might have felt more difficulty here, if the existence of this legacy had been brought under the notice of the judge who decreed the judicial separation, but nothing of the kiud appears. I have not been referred by the counsel for Mrs. Tuthill to any case, in which the entire amount has been paid out at once to the wife. That is not the usual course. The course, which I always adopt is to make a settlement. I shall, therefore, follow the order made in the case of Marshall v. Gibbons (4 Ir. Ch. 276) and direct the legacy to be set apart for the separate use of Jane Anne Tuthill, for life, and from and after her decease, for her children, as the court may direct. Exchequer Ehamber. [Reported by William Woodlock, Esq., Barrister.at-law.] [CORAM MONAHAN, C. J., AND BALL, KEOGH, CHRISTIAN, HAYES, AND FITZGERALD, JJ.] DOYLE AND LAWLER v KINSLEY.-Nov. 10, 18. A. was, under his marriage settlement, tenant for life of certain leasehold property held for a term of fifty-two years, with remainder to his wife for life, remainder to the children of the marriage absolutely By deed reciting the settlement, that there were two children of the marriage, both infants, that there was a contract for purchase of the property, and that inasmuch as the children were incompetent to convey, A. had agreed to covenant for their execution of the deed on their reaching 21, the trustees of the settlement, A. and his wife, joined in conveying the leaseholds for the residue of the term to a purchaser according to their several interests, then all the conveying parties covenanted that notwithstanding any act done by them or any of them, they or some of them had good title to convey for the residue of the term in manner aforesaid, accord ing to the true intent of these presents." They also covenanted against incumbrances, and for further assurance; and finally, A. covenanted for the execution by the children of the marriage as they should attain 21. Held, that on the true construction of the entire deed the covenant for title was not abso lute but qualified, and that there was not any breach of it in consequence of A. and his wife having only life estates. THIS was an appeal from an order of the Court of Exchequer discharging a conditional order obtained under the following circumstances:-The summons and plaint complained that the plaintiffs were administrators of Francis Doyle, deceased, of Sandymount in the county of Dublin; and that by a certain indenture bearing date the 29th day of November. 1859, and made between Arthur Torkington and Frederick Sherry of the 1st part, the defendant and Martha Kinsley, his wife, of the 2nd part, Eliza Anne Kinsley, and Charles Kinsley, infants under the age of twenty-one years, of the 3rd part, and the said Fraucis Doyle of the 4th part, the said Arthur Torkington, and Frederick Sherry, and the defendant, for the considerations therein mentioned did grant, bargain, sell, assign, transfer, and make over, and the said Martha Kinsley did assign, dispose of, and make over to the said Francis Doyle, his executors, administrators, and assigns all that and those the house and cottage together with the garden adjoining thereto, once in the tenancy and possession of Julia O'Connor, and situate in the Strand Road at Sandymount, in the county of Dublin, together with the fixtures therein and all the improvements erected and made therein by the said Henry Kinsley, and all and singular the rights. members, and appurtenances to the said premises, or any part thereof, belonging or appertaining, and therewith usually held and enjoyed, to hold to the said Francis Doyle, his executors, administrators, and assigns for the rest, residue, aud remainder then to come and onexpired of a certain term of fifty-two years from the 29th day of September, 1855, for which said term of years the said premises were by a certain indenture of lease thereof, bearing date the 22nd day of November, 1855, demised by one Francis Salmon to the said Julia O'Connor, and as demised by the said indenture of lease. And the defendant, by the said first-mentioned indenture, covenanted with the said Francis at the time of the execution by the defendant of the Doyle, his executors, administrators, and assigns that said first-mentioned indenture the defendant and the said Ma tha Kinsley, Arthur Torkington, Frederick Sherry, Eliza Anne Kinsley, and Charles Kinsley, had in themselves, or that one of them had in himself or herself good right and absolute authority by the said first mentioned indenture to assign or otherwise assure the said dwelling-house and other the premises thereby assigned or made over, or intended so to be, with their appurtenances, unto the said Francis Doyle, his executors, administrators, and assigns, for all the residue which was then unexpired of the said term of fiftytwo years in manner aforesaid; and all conditions were performed and fulfilled, and all things happened and were done and all times elapsed necessary to entitle the plaintiffs as such administrators as aforesaid to a performance of the said covenant of the defenant, hereinafter alleged; and nothing happened or was and to maintain this action for the breach thereof done which justified the defendant in committing the said breach, or to prevent the plaintiffs as such administrators as aforesaid from maintaining this action for the same; yet the plaintiff's averred that at the time of the execution by the defendant of the said first mentioned indenture, the defendant and the said Martha Kinsley, Arthur Torkington, Frederick Sherry, Eliza Anne Kinsley, and Charles Kinsley, had not in themselves, nor had any one of them in himself or herself, good right and absolute authority by the said first mentioned indenture to assign or otherwise assure the said dwelling-house and other the premises thereby assigned and made over, or intended so to be, with their appurtenances, unto the said Francis Doyle, his executors, administrators, and assigns, for all the residue which was then unexpired of the said term of fiftytwo years in manner aforesaid, or for more than for so much of the said residue of the said term of fifty-two years as should expire during the lifetime of the defendant and of the said Martha Kinsley, and of the survivor of them, whereby after the death of the said Francis Doyle one Richard Frederick Waters, who had agreed with the plaintiffs, as such administrators as aforesaid, to purchase from them, and who but for the said breach of the said covenant by the defendant, would have purchased from them the said dwellinghouse and other the premises by the said first mentioned indenture assigned and made over, or intended so to be, with their appurtenances, for the residue then unexpired of the said term of fifty-two years, refused to carry out the said agreement or to purchase the |