The company appealed.

Bacon and Hardy, for the plaintiff, argued that the company were bound to perform the award, and that the time limited for making it was not of the essence of the contract. Independently of which, the agreement virtually bound the company to construct all necessary and proper works for the accommodation of the plaintiff, and these were such. The money agreed to be paid was merely the price of the land, and the plaintiff was entitled besides to have these works, otherwise his property would be seriously damaged without any compensation. The defendants have got all they want, and the Court will see that justice is done to the plaintiff. [They cited Gourlay v. Somerset (19 Ves. 429); Scott v. Avery (5 H. L. Č. 811); and Gregory v. Mighell (18 Ves. 328).]

Malins and Cotton, for the defendants.
Bacon, in reply.

June 8.-Sir G. J. TURNER, L. J., after stating the facts of the case as above stated, proceeded to sayThe case which we have now to consider is different from that which we had to consider upon the former appeal; the question we had then to determine was as to the plaintiff's right to crossings under the award. The questions we have now to determine are, what, if any, rights the plaintiff has to crossings, under the award, or under the agreement independently of the award; and these questions are further limited by the present decree, and by the appeal, to the plaintiff's claim to have the cattle arch in question made by the defendants. As to the plaintiff's case under the award, there is not, in my opinion, anything upon the amended record, or the further evidence which has been adduced, which ought to alter the conclusion at which we arrived upon the hearing of the former appeal.

The first and most material point on which the plaintiff relied in support of his claim under the agreement, independently of the award, to have this cattle arch made, is, that it is a proper and necessary crossing; that the agreement of the 22nd June, 1858, is in substance and effect an agreement that all proper and necessary crossings should be made by the defendants; that the provisions contained in the agreement for Mr. Clutton's notifying the crossings were no more than a mode provided for ascertaining what were the proper and necessary crossings; and that this Court, having jurisdiction over the case, would determine upon the crossings according to its own judgment, without reference to that provision.

The case of Gourlay v. Somerset (19 Ves. 429), and several other cases of that class, were referred to in support of this view. Upon the question whether, having regard to the other crossings made by the defendants, this cattle arch ought to be held to be a proper and necessary crossing, I do not think it necessary to give any opinion; for, assuming that it ought to be so considered, still I think that the plaintiff's argument on this part of the case cannot be maintained. This agreement says nothing as to the proper

and necessary crossings; it points to nothing beyond the absolute and uncontrolled discretion of Mr. Clutton, or some other engineer or surveyor of the plaintiff, to be exercised within a limited time for determining what the crossings are to be. The whole purpose of the agreement was to vest this discretion in the plaintiff's engineer or surveyor, with a limit in point of time to the exercise of it; and to substitute for this discretion, the opinion of this Court, to be pronounced, as it would necessarily be, after the expiration of the limited time, would be to carry into effect, not the agreement entered into by the parties, but a wholly different arrangement, into which the parties have neither entered, nor ever intended to enter. The cases referred to do not seem to me in any way to warrant such a course of proceeding. In those cases the Court carried into effect the substance of the agreements, disregarding the forms which had been provided for effectuating them, and which the Court could not give effect to; just as the Court has done in the more common cases of sales of estates and breweries, with provision for the timber in the one case, and the plant in the other, being taken at prices to be fixed by arbitration-the Court not permitting agreements to be defeated by the means provided for giving effect to them; but if we were to hold those cases to govern the case before us, we should be disregarding not merely the form, but the substance of the agreement. It was strongly urged on the part of the plaintiff, that if upon the award failing he was not entitled to crossings under the agreement, he might have been left without any crossings; but if this be so, it could only be by his own default, or by the default of his agents. I am not, however, satisfied that, upon the award failing, the statutory provisions as to crossings may not have come into operation, although I give no opinion upon that point; for, even assuming that upon the award failing the plaintiff was without remedy as to crossings, it does not seem to me that this could warrant the Court in adding a new term to the agreement between the parties, whatever right, if any, it might give the plaintiff, to have the agreement wholly set aside.

His Lordship then mentioned some other points, and said-But after considering these facts, and the argument upon them, I can find nothing which, in my opinion, is sufficient, either to shake the conclusion as to the award at which we arrived on the former appeal, or to entitle the plaintiff to a decree for making the cattle arch in question, or for the specific performance of the agreement of the 22nd June, 1858, which in truth, so far as it is capable of performance, has been already performed on the part of the defendants. With all deference, therefore, to the opinion of the Vice-Chancellor, my opinion is that this ought to have been dismissed; and my learned brother, as I understand, concurring in that opinion, our order must be accordingly; but the case is not one in which any costs can be given against the plaintiff. The order will be to reverse the decree appealed from, and dismiss the bill, without costs.

the same, and substantially for the same reasons. I Sir J. L. KNIGHT BRUCE, L. J.-My conclusion is think the case, however, one of considerable difficulty; and if I may, without impropriety, express an opinion as to the fitness or unfitness of submitting it to the House of Lords, I have no hesitation in saying that my impression is in favour of the fitness of such a

course.

Notes for reference S. C., 9 Jur., N. S., 148, 452; Fry's Spec. Perf. 97.

Sir R. T. KINDERSLEY, V. C.-I am glad to know that the practice is settled, that not only on ex parte applications, but on injunctions granted upon motion by notice, the plaintiff should give an undertaking as to damages. The rule is the more satisfactory, as it aids the Court in that which is its great object, namely, to abstain from expressing any opinion upon the merits of the case until the hearing. An injunction will be granted until the hearing, the plaintiff giving the usual undertaking as to damages.

Note for reference-2 Set. Dec. 870.

VICE-CHANCELLOR STUART'S COURT. WILLOUGHBY v. BRIDEOAKE.-March 7 and 8. Reversionary interest in Consols-Lapse of time before bill filed-Family arrangement.

In 1857 the plaintiff, then in gaol for debt, assigned his reversionary interest in 4000l. Consols to his father, in consideration of his retaining a sum due to him, and paying a sum of 2701. for the purpose of satisfying other debts due by the plaintiff. The indenture was not indorsed with any receipt. The father assigned the reversionary interest to Mrs. B. for 450l. (whose trustees the defendants were), and died in 1854, and his wife, on whose death the interest fell into possession, died before the bill was filed. The indenture contained a proviso, that the plaintiff might repurchase the interest for 5001. within four years from the date, if his mother should be living:-Held, that the transaction must be received as a family arrangement, of which the plaintiff had had the benefit, and that he was not, after the lapse of seventeen years, and after the deaths of his father and mother, entitled to have the deed set aside on the ground of inadequacy of consideration, or to a declaration that it should stand only as a security for the sum which should be certified to have been actually advanced, with

interest.

The plaintiff Thomas Willoughby (who instituted this suit to set aside an indenture of assignment made by him to his late father Joseph Willoughby, of a reversionary interest in one-fourth part of a sum of 40007. Consols) became, under the will of his maternal grandfather, dated the 29th November, 1831, entitled, as one of the four grandchildren, to a fourth part in a sum of 40007., expectant on the death of his mother. On the 25th May, 1847, by an indenture of assignment made between Thomas Willoughby, at that time a prisoner for debt in Lancaster gaol, of the one part, and Joseph Willoughby of the other part, after reciting that Thomas Willoughby's mother, then living, was sixty-seven years of age, and that he was confined in gaol for a debt amounting to 1477. 18., and that he was indebted to divers persons, and that amongst them was Joseph Willoughby, to whom he owed more than 2301. for money advanced and expended by him to and for the use, and at the request, of Thomas Willoughby, and for board and lodging provided during several years after he had attained the age of twentyone years, as Thomas Willoughby acknowledged, but which indebtedness Joseph Willoughby and Thomas Willoughby had agreed should be reduced to the sum of 2304; and also reciting that Thomas Willoughby, being desirous of obtaining his discharge from prison,

and of satisfying the debts contracted by him, and o raising a fund for these and other purposes, had re quested Joseph Willoughby to purchase his reversion ary interest in the 40001. for 500l.; and also recitin that it had been agreed that Joseph Willoughby shou be allowed to deduct the sum of 2301., owing to hi thus leaving the sum of 2701. to be paid by him. was witnessed that, in consideration of the releas of the debt of 2301., and of the 2701. expressed to paid by Joseph Willoughby, Thomas Willoughby a signed unto him, his executors, &c., his reversional interest in the one-fourth part of the 40001. The in denture contained a proviso, that it should be lawf for Thomas Willoughby at any time before the e piration of four years from the date, in case h mother should be living, but not otherwise, to rep chase his reversionary interest for the sum of 5 with compound interest at 51. per cent. from the da of the indenture.

Joseph Willoughby sold the property in Novemb 1849, to a Mrs. Brideoake for the sum of 450, a she by her will, dated in March, 1855, bequeathe the property to the defendants Robert Brideoake a Samuel Taylor, whom she appointed trustees and ex cutors, and directed them to dispose of it in the ma ner set forth in her will.

Mrs. Brideoake died on the 5th October, 1859. J seph Willoughby died on the 14th June, 1854, the plaintiff's mother died before this bill was fil Thomas Willoughby alleged that no such agreeme as recited in the indenture of 1847, was ever made him for the sale of his reversionary interest, and al that at the time of its execution, a very small sum money was, in fact, due from him to his father; ai that neither of the sums above mentioned was paid t Joseph Willoughby. The plaintiff further alleged, th he was at the date of the indenture greatly under th influence of his father, and had executed it at request, and on the representation that the executi was a matter of form only, and necessary for the p pose of obtaining his discharge from gaol.

dr

There was no receipt for the money indorsed on ndenture. The plaintiff also alleged, that he had advice whatever at the time, and had no copy or of the deed, and that he had executed the indent in ignorance of its contents; that he had never plied to his father to pay for his board and lodgi but that he and his father's other children w boarded and lodged by him without any charge: that although it was a fact, that at about the date the execution of the deed several sums of money w paid on account of his debts, in order to obtain discharge, yet the whole or the greater part of th sums was paid by his mother out of her sepa estate; and he insisted, that even if the whole of 5007. had been applied for his benefit, still it have been an inadequate consideration for the part of his reversionary interest in the 40007. It was alleged, that the plaintiff did not, until some time a the death of Joseph Willoughby, discover the na and effect of the indenture of 1847, or that the perty had been assigned to Mrs. Brideoake; and was charged, that the contents of the indenture, pled with the fact of there being no receipt for purchase money indorsed, constituted a sufficient tice to Mrs. Brideoake of the invalidity of the denture.

The plaintiff alleged, that he ought not to be chan with anything as being due for board and lodging, with any moneys paid on his account by his mo out of her separate estate. The suit was institu against the trustees of Mrs. Brideoake, and the prayed that the plaintiff might be relieved from indentures of March, 1847, and November, 1849,

for a declaration that the deed of 1847 ought to stand as a security only for the amount, if any, which at the date thereof was due to Joseph Willoughby, or which was paid by him for the benefit of the plaintiff, with interest, as the Court should direct, and that Mrs. Brideoake ought not to stand in a better position than the plaintiff. The bill also prayed for an account on that footing; and on payment of the sum found to be due to the defendants, that they be ordered to reassign the reversionary interest.

The defendants, by their answer, admitted that no receipt had been indorsed on the indenture of 1847; but they contended that, from the recitals contained in it, Mrs. Brideoake would necessarily be led to believe that the 270l. was paid by Joseph Willoughby to the creditors of the plaintiff, and not into his hands; and also, that under such circumstances no receipt could be expected to be found indorsed on the indenture. They also insisted that, at the date of the indenture, 500%. was the full, if not more than the value of the reversionary interest; and that as the purchase by Mrs. Brideoake was one for valuable and full consideration, and without notice of any of the alleged arrangements between Joseph Willoughby and the plaintiff, it ought not to be set aside. The evidence of actuaries and others shewed that the value of the interest in 1847 was greater than 5007.

Bacon, Q. C., and Rowcliffe, for the plaintiff, contended that the consideration would have been inadequate even if the whole 5007. had been paid to the plaintiff. It was for the purchaser to prove that the fall value was given for the reversionary interest in the sum of money. They cited Peacock v. Evans (16 Ves. 512); Cockell v. Taylor (15 Beav. 153); St. Albyn 7. Harding (27 Beav. 11); Foster v. Roberts (29 Beav. 467); Jones v. Ricketts (31 Beav. 130); and Salter v. Bradshaw (29 Beav. 161), where it was stated by the Master of the Rolls that it was impossible to purchase safely a reversionary interest by private contract unless more than the market price was given. They also referred to Gowland v. De Farie (17 Ves. 21); Walker v. Symmonds (3 Swanst. 1); Bradwell v. Catchpole (Id. 78); and Edwards v. Burt (2 De G., Mac., & G. 56), and contended, that the onus of proving that the recitals were sufficient, and that there was necessity for an indorsement, devolved on the defendants, and that there ought to be an inquiry.

Malins, Q. C., Sargant, and Lonsdale, for the defendants, were not called upon.

Sir J. STUART, V. C., said, that the bill in this case bad been filed more than seventeen years after the transaction had taken place which it sought to set side. The consideration which was expressed on the face of the deed of May, 1847, consisted of 2301. in repect of money due from the plaintiff to his father for advances, board, and lodging, and also for 2701., money which was advanced at the date of the execution of the deed. On the part of the plaintiff it had been urged that the 2701., so far as paid at all, was paid out of moneys belonging to the plaintiff's mother, and to which she was entitled for her separate use. But the evidence in support of that proposition was by no means clear; and even if it had been the case, the fact would avail but little, for the plaintiff at the date of the deed was verging upon insolvency; in which event his assignees would have taken possession of his property, and his father came forward, and, with his wife's money, saved the plaintiff from the pending danger. It had also been contended that he consideration was inadequate; and in proof of hat proposition, the estimates of certain actuaries and ther persons as to the value of the reversionary inteest, had been brought forward as evidence; but such vidence was of little value, for it appeared from the

table produced in court, that at the time of the purchase the price of Consols was 887., and that that circumstance was not taken into consideration by those gentlemen, whose calculations were based on the supposition of stock being at the rate of 1007. sterling. In the case of Edwards v. Burt, the Master of the Rolls, relying on his own legal knowledge, decided against a person seeking to impeach a purchase of a reversionary interest by private contract; but that case was, unfortunately, reversed on appeal. The Master of the Rolls, erroneously as he (Sir J. Stuart) considered, thought himself bound by that case, and acted afterwards on that decision; and the result was, that there were certain cases tainted by the decision in Edwards v. Burt, and the rule had been reduced to an absurdity; for it had been said, that it was impossible to purchase a reversionary interest with safety, except under a sale by auction. That was, in short, the result of the decision in Edwards v. Burt-a result opposed to the understanding of every lawyer and man of common sense; and it was not to be wondered at that Lord St. Leonards, in his 14th edition of Vendors and Purchasers, at p. 279, should say, after expressing his dissatisfaction with the rule, that that decision was much to be regretted. This case was, however, not to be considered merely in the light of a purchase of a reversionary interest; it was a transaction between a father and son, and it was, therefore, to be treated as a family arrangement, which was, no doubt, entered into for the benefit of the son, who had reaped the full advantage of it, and he could not, after the lapse of seventeen years-his father and mother being dead-be allowed to turn round and repudiate his bargain. The bill must, therefore, be dismissed, with costs.

VICE-CHANCELLOR WOOD'S COURT. TUCKER v. BURROW.-April 21 and May 9. Advancement-Purchase by person in loco parentis—Illegitimate grandchild.

The owner of a copyhold estate held on lives, renewed his interest by inserting the name of his illegitimate grandchild, to whom he had placed himself in loco parentis: -Held, not an advancement, no intention appearing to that effect.

Cause. The bill was filed for a declaration, that as to any interest which the defendant James Burrow had in a close of land and hereditaments situate in Blackford Moor, in the parish of Wedmore, in the county of Somerset, he was a trustee thereof for the plaintiffs, as trustees and executors of the will of William Burrow the son, and that he was bound to dispose of and deal with the same as the plaintiffs might direct for the purposes of the will. The case was as follows:

William Burrow the elder was in 1815 the owner of the close of land and premises held of the manor of Blackford, by copy of court-roll, for the lives of Hannah Giles, his daughter Maria Burrow, and his son Daniel Burrow; and in April, 1815, Hannah Giles being then dead, he procured a renewal of his interest, by adding to the surviving lives of the defendant James Burrow, described in the court-roll as "the child of Maria Burrow, single woman," and who was in fact the natural son of Maria, the daughter of William Burrow the elder, by Luke Watts, with whom she afterwards intermarried in the year 1815. William Burrow the elder, by his will, dated the 13th March, 1820, among other legacies, gave to the defendant James Burrow, describing him as the son of his daughter Maria (then the wife of Luke