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every such case such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made, anything herein before contained to the contrary notwithstanding."

Mr. Baggallay and Mr. H. M. Jackson, for the Plaintiff, argued, first, that the Plaintiff was entitled to a re-conveyance, the deed having been executed under a misapprehension and mistake, and also on the express undertaking of the Defendant to re-convey. That there was no illegality in the nature of the transaction to prevent the Plaintiff from obtaining equitable relief, there being no crime in his second marriage after the disappearance for so long a time of the first wife. Secondly, that the 7th section of the Statute of Frauds was inapplicable, there being a part performance and a fraud, and that these were sufficient grounds for taking the case out of the statute, for Courts of Equity never allow the Statute of Frauds to cover a fraud. But that if the case were within the statute, it came within the 8th section, there being a constructive trust in favour of the Plaintiff, who had never received the alleged purchase-money. They cited Childers v. Childers (a); Birch v. Blagrave (b); Platermone v. Staple (c); Roberts v. Roberts (d); Cecil v. Butcher (e); Ward v. Lant (f); Dale v. Hamilton (g); Lincoln v. Wright (h); Statute of Frauds (i); 24 & 25 Vict. c. 100, s. 57.

Mr. Hobhouse and Mr. W. W. Cooper for the Defendant. The evidence and the nature of the transaction shew that an absolute conveyance was contemplated

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and was essential for the object, and the alleged agreement is expressly denied by the Defendant. The case is one intended to be met by the statute, the 7th section of which is express:-that all creations of trusts shall be in writing or else be utterly void. No parol evidence is, therefore, admissible of such a trust. There is no constructive trust or part performance. If the denial of a parol trust is to be considered a fraud, this section of the statute would be inoperative, the object of it being to prevent perjury by excluding parol evidence, and by not allowing a trust of land to be proved by anything but by some writing. They cited Brackenbury v. Brackenbury (a); Curtis v. Perry (b); Lindsay v. Lynch (c); Kendall v. Beckett (d); Wright v. Wilkin (e); Gascoigne v. Thwing (f); Groves v. Groves (g); Statute of Frauds (h); Bartlett v. Pickersgill (i); Lord Irnham v. Child (k); Cawley v. Poole (l).

Mr. Baggallay in reply.

Feb. 15.

The MASTER of the ROLLS.

Upon considering this case, and looking at the various authorities on the subject, and after referring again to the evidence, I am of opinion that the Statute of Frauds can have no application to this case.

Assuming (which I do for the present) that there was nothing whatever illegal in the transaction (the existence

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of which would, of course, alter the case), I consider it is proved, by the evidence, that the Plaintiff, apparently in a difficulty, or afraid of getting into one, transferred this property to the Defendant, who thereupon agreed that he would re-transfer it to the Plaintiff when required; but when the time for the re-transfer arrived, the Defendant refused to re-transfer it. Such being the facts, I am of opinion that it is not a case to which the Statute of Frauds applies. There was no consideration paid by the Defendant, the 207. mentioned in the deed never having been paid; for the Plaintiff's bill of exchange held by the Defendant, and which he states to be the consideration for the deed, appears, by the evidence, to have been afterwards repaid by the Plaintiff by instalments in various sums. This being so, I am of opinion that "it is not honest to keep the land." If so, this is a case in which, in my opinion, the Statute of Frauds does not apply. I think that the subsequent course of dealing confirms this view; for the Plaintiff has ever since been allowed to remain in possession of the property, and he has paid all the instalments to the benefit building society. In my opinion, therefore, this case comes within the 8th section of the Statute of Frauds, and is excepted from the operation of the prior section. Therefore, the case is not such as entitles the Defendant to set up the Statute of Frauds as a ground for allowing him to retain the property.

I am also clearly of opinion there was no illegality in the transaction, and that the Plaintiff was quite justified, morally and legally, in marrying the second wife, although the effect of it may have been, that she did not become his wife. The long absence of his first wife was sufficient to justify the Plaintiff in coming to the conclusion that she was dead, and would have

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induced this Court to have come to the same conclusion, and, possibly, to have acted on it, by paying money out of Court on that footing. That being so, I am of opinion that the Plaintiff is entitled to a decree.

The costs of the conveyance were paid for by the Defendant, and I am of opinion that the Plaintiff ought to repay them; and, upon the Plaintiff's undertaking to repay them, I shall order a re-conveyance at the expense of the Plaintiff. Cancelling the deed would not be sufficient, unless it was originally void, and I do not think it was. The Plaintiff must have his costs of suit.

Another point arose in this case in regard to the evidence. Susannah Davies made an affidavit on behalf of the Plaintiff, which was sworn on the 28th of August, 1864. She died on the 1st of September, 1864, and her affidavit was filed on the 14th of December, 1864. Thus the Defendant had had no opportunity of cross-examining her. It was objected that her affidavit could not be received in evidence. As to this

The MASTER of the ROLLS said,—

I stated that I thought the evidence of Susannah Davies must be admitted. It appears that her evidence was given on the 28th August last year, and that she died two or three days afterwards, which made it impossible to cross-examine her; but there being no impropriety and nothing wrong in examining her, and no keeping her out of the way to prevent a cross-examination, I must receive her evidence and treat it exactly in the same way that I should the evidence of any other witness who, from any cause whatever, either had

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not been cross-examined or whom it was impossible to cross-examine.

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NOTE.-See 19th Order of the 5th of February, 1861; Braithwaite v. Kearns, 34 Beav. 202, and the references; Ridley v. Ridley, ibid. 329.

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BY

In re GRATWICK'S SETTLEMENT.

Nov. 26.

and her son's

or widow. The only consols she was interested in were settled on

Y a settlement, made, in 1811, on the marriage of A testatrix beEdward and Ann Gratwick, a sum of 600l. consols queathed "all moneysbelongwas held in trust for Ann Gratwick for life, with ing to her in remainder to Edward Gratwick for life. "And from the £3 per Cent. Consols" and after the decease of the survivor of them, Edward to two children Gratwick and Ann Gratwick, leaving issue one more child or children then living, then, as to the said sum of 6001. and the stocks, funds or securities on which the same may be invested, upon trust for all and every the child or children of Edward Gratwick and Ann Gratwick, in such parts, shares and proportions as they should jointly by deed or as Ann Gratwick should by her will appoint. "And in default of such direction or appointment, upon trust for all and every execution of the power as such child or children" in equal shares, the shares of regarded the sons to vest at twenty-one, and of daughters at that two-thirds to age or marriage.

her for life, with power to » appoint amongst her children. Held, operated as an

There were four children, all of whom attained twenty-one, viz., Edward (deceased), Thomas, Mary and John (deceased).

that the will

the two children, although it contained no

other reference to the power or to the subject

of it.

On the marAnn riage of A. and B., personalty

was limited to them for their lives, and after the decease of the survivor, "leaving one or more child or children then living," on trust "for all and every the child and children" of A. and B. as B. should by will appoint, and, in default of appointment, "upon trust for all and every such child and children" equally. Held, that, to entitle a child to take in default of appointment, it was not necessary that he should survive his parents.

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