effect, it followed that the liabilities being barred, the calls were barred; and further, that a certificate would have been a defence to a suit for contribution. This reasoning does not apply to proceedings under the Act of 1862. In this case the shares continued, and still continue, vested in Mr. Hastie. There are no provisions in the Bankruptcy Act analogous to those which have reference to a bankrupt's liability on leaseholds where the assignees repudiate the lease. It is essential for proof, under the 154th section of the Bankruptcy Act, that the debt to be proved should be a debt capable of valuation at the date of the bankruptcy. The provisions of the Act of 1862 do not make a debt proveable which is incapable of valuation at the date of the bankruptcy; nor can such a construction be in reason put upon them as would have the effect of relieving a bankrupt in consequence of his discharge, though he should have been discharged years before the winding-up, and might have been holding the shares, and even receiving dividends, subsequently to his discharge. There is nothing in this case to shew that the debt or call in respect of which the bankrupt is made a contributory was capable of valuation at the date of his bankruptcy. Primá facie undoubtedly it would not be so; and as the bankrupt is discharged only from debts proveable under his bankruptcy, and those debts only are proveable which were capable of valuation at the date of the bankruptcy, we are of opinion that he must be retained as a contributory. This case is of importance, and we have gone into it at some length; but for its actual decision it is enough to say that a bankrupt must be retained as a contributory where the bankruptcy and the discharge precede the winding-up, where the debt is not shewn to be capable of valuation, where the assignees have repudiated the shares, and they have always remained, and still remain, vested in the bankrupt. The appeal motion will be refused with costs. Solicitors for the Appellant: Messrs. Tatham & Sons. Solicitors for the Liquidator: Messrs. Treherne & Wolferstan. L. JJ. 1869 HASTIE'S CASE. L. JJ. 1369 Jan. 22. Ex parte NORRIS. In re BIDDULPH. Breach of Trust-Improper Investment—Acquiescence-Unknown Cestui que A lady died in 1830, leaving a will by which she gave her personal estate in trust for her sister for life, with remainder to her three trustees and executors, to all appearance beneficially. She also left a codicil, by which she impressed the residue with trusts in favour of other persons after the death of the tenant for life. This codicil was not proved till 1841, but the trustees in the meantime appeared to regard the property as not belonging to themselves, though it was not shewn that they knew of the existence of the codicil. In 1834 the trustees invested part of the estate on an imprope security. Two of the trustees were partners in the bank out of which the money was drawn to place it on this security. In 1840 the firm became bankrupt, and after this the security turned out insufficient. The tenant for life died in 1842: Held (reversing the decision of the Commissioner), that the persons claiming under the codicil were entitled to prove against the separate estate of one of the bankrupt trustees for the loss occasioned by the improper investment. THIS was an appeal from a decision of Mr. Commissioner Holroyd refusing to admit a proof against the separate estate of The Countess de Front, by will dated the 19th of February, 1824, appointed W. V. Fryer, A. G. W. Biddulph (then called A. G. Wright), and John Wright, her executors, and devised to them her real estate in trust for sale, the proceeds to be deemed part of her personal estate. After bequeathing certain legacies, she gave the residue of her personal estate to the same trustees, "to be invested or continued by them in the public funds or at interest; the stocks, funds, and securities to be varied at discretion." She then directed her trustees out of the income to pay a certain life annuity, and subject thereto to pay the income to her sister Sarah Neve for life, and after her death to pay another life annuity and certain legacies, and subject to the above dispositions the testatrix gave "all the residue of my estate to the said W. V. Fryer, A. G. Wright, and J. Wright, absolutely." The testatrit made eight codicils to her will, the last of which, dated the 20th of April, 1824, was as follows:-"To the Rev. V. Fryer, A. G. Wright, and John Wright, executors to the will of Mary Winifred, Countess St. Front. Gentlemen, whereas by my last will and testament I have bequeathed to you the residue of my personal estate, now I do hereby declare that I have bequeathed the same to you in trust only, and not for your own use and benefit. I direct that you pay in the first place any sum of money which I desire to be paid by some private memorandums my handwriting, and in the next place that you pay one moiety of the residue to the Catholic Bishop for the time being of the London district, the Vicar-General of the same district, the President of St. Edmund's College, and to John Gage, Esq., of Lincoln's Inn; and the other moiety to the Catholic Bishop for the time being of the Midland district, and the Vicar-General of the same district, the President of St. Mary's College, Oscott, and the said John Gage, Esq." in The testatrix died on the 7th of January, 1830, and her will and seven of the codicils, not including that of the 20th of April, 1824, were proved by the executors in February, 1830. The executors kept a banking account with the bankrupts, who carried on business under the firm of Wright & Co., Biddulph and Wright, two of the executors, being two of the partners, and E. W. Jerningham another. In 1834, Wright & Co. advanced £15,000 to Sir G. Duckett to enable him to purchase the equity of redemption of the navigation of the river Stort, and on the 8th of May, 1834, Sir G. Duckett conveyed the equity of redemption to John Wright, E. W. Jerningham, Sir G. Duckett, and F. Giles, for securing the repayment of the £15,000 to Wright and Jerningham, the prior mortgages being for £40,000 and £5000. £3000, part of this £15,000, was advanced by the Countess de Front's trustees out of the moneys standing to their account with Wright & Co., and by a deed-poll dated the 31st of May, 1836, under the hands and seals of Wright and Jerningham, after reciting that the £15,000 was not their own proper moneys, but belonged to the persons thereinafter named in the proportions thereinafter mentioned, that was to say, "the sum of £3000, part VOL. IV. 2 A 1 L. JJ. 1869 Ex parte NORRIS. In re BIDDULPH. L. JJ. 1869 Ex parte In re thereof, belongs to and is the proper money of A. G. W. Biddulph, the said J. Wright, and the Rev. Dr. Fryer, as trustees under the will of the late Countess de Front deceased," and that £5000, other part thereof, belonged to P. Campbell, and £7000, the residue BIDDULPH. thereof, to the executor of A. Wright deceased, Wright and Jerningham declared that they would stand possessed of the £15,000 "as to the sum of £3000, part of the said sum of £15,000, and the interest thereof, in trust for the said A. G. W. Biddulph, J. Wright, and the Rev. Dr. Fryer, as trustees of the said will of the said Countess de Front, and in priority to the £5000 next mentioned." On the 17th of December, 1840, Wright & Co. became bankrupt. Shortly before this, on the 13th of December, 1840, Biddulph wrote to Mr. Norris his solicitor: "This letter must be considered most private, with permission to shew it to the Bishop if advisable to do so, and likewise to Dr. Fryer as an interested party as executor and trustee and legatee jointly with my brother and myself to the Countess de Front. My brother and Dr. Fryer have always acted in the trust, in which I have never interfered, and know not how the trust stands as to deposits or moneys owing to it in Henrietta Street, further than that I owe it £2500, which I borrowed when this house was building, by my brother and, I believe, Dr. Fryer's consent, and deeply do I regret not having paid it off, which I might have done long ago. Having been with my brother (and I think Dr. Fryer) left residuary legatees with £100 each beyond it, the latter named sum I took, but of the residue I never touched a stiver. Now, in declaring my debts, it would probably raise a question what debts, as joint executor and trustee and residuary legatee, have been cancelled, and what remains for you still to fulfil, and what residue comes to your share? This is a very ticklish question to answer, and before you insert it in my schedule you had better see the Bishop, it having at the time the will was made been a trust Catholic under the rose. Ask Mr. Tierney about it, and he will very probably accompany you to the Bishop's and Dr. Fryer's." Dr. Fryer proved against the joint estate of Wright & Co. for the moneys in their hands belonging to the estate of the Countess; the £3000 invested on the security of May, 1834, not being included in the amount of proof. L. JJ. 1869 Ex parte In re The codicil of the 20th of April, 1824, was proved on the 1st of October, 1841. Dr. Fryer and John Wright on that occasion made a joint affidavit stating that they did not know of the exist- BIDDULPH. ence of the codicil till about three months before that time, and that, as they believed, it had all along been in Gage's custody. Biddulph made a separate affidavit, in which he went no further than to say that the codicil had come to his knowledge since the will was proved. The tenant for life, Sarah Neve, died on the 22nd of September, 1842. The security of the 8th of May, 1834, was ultimately realized by suit in 1854, and proved insufficient to satisfy the £3000 by £1819 16s. 3d., the amount now sought to be proved. John Wright survived his co-executors, and in 1855 his executor, as the personal representative of the Countess de Front, applied to prove against the separate estate of Jerningham for the £1819 16s. 3d., on the ground that the loss had been occasioned by a breach of trust, in which Jerningham had concurred. The proof was allowed by the Commissioner, but was expunged by the Lords Justices (1) on the ground that Jerningham, having no notice of the codicil, could not be held to have received the trust money in such circumstances as to be liable for breach of trust, the transaction having the sanction of the persons appearing entitled under the will and earlier codicils. The present legal personal representative and trustees of the Countess now applied to prove against the separate estate of Biddulph, which proof was rejected by Mr. Commissioner Holroyd, who considered that the judgment of the Lords Justices in the former case governed the present. Mr. De Gex, Q.C., and Mr. Ramadge, for the Appellants :The Commissioner was in error in treating this case as governed by the decision of this Court in the case of Jerningham, who was neither executor nor legatee. Our right to have some refunding is clear: Anon. (2); Edwards v. Freeman (3); Todd v. Studholme (4); (1) 6 D. M. & G. 801. (3) 2 P. Wms. 447. (4) 3 K. & J. 324. |