original compromise; such knowledge, if they had it, would only lead them to suppose that William Manby was a man who sufficiently took care of his own interests, inasmuch as he secured a third part of the annuity to himself.

Thus far I have only been dealing with the question of whether there is fraud or not in the transaction. It appears [365] to me that there is not the slightest reason whatever for imputing fraud. I believe the compromise to have been a bona fide compromise at the time, and I also believe it to have been a fair compromise; and I must say, as far as I can see from any evidence in this case, it was quite as possible that, after this compromise, Bewicke and Craster might have discovered evidence of the claim of Stote Manby being fictitious on account of his illegitimacy, the marriage of Ann Stote with William Manby never having been proved, as that the claimant should now, after a long search, have discovered that which, if produced at the trial, would of itself have had some weight and importance, namely, the certificate of the marriage of two persons named respectively William Manby and Ann Stote, who, however, are not identified with the parties in question of those names. It appears to me that, if in 1781 an inquisition of lunacy had been instituted against Stote Manby, and he had been found to be a lunatic, it is quite possible that the Court would have come to the conclusion that this compromise, which would secure £300 a year to him, was a beneficial arrangement which ought not to be disturbed, looking at the evidence and the position of the parties.

Then, having come to the conclusion that there was no fraud, it is hardly necessary to notice the argument as to what is a concealed fraud, within the meaning of the section of the Statute of Limitations which has been referred to; but I have thought it right to consider that question, because it would have been very important if I had brought my mind to the conclusion that the documents to which I have been referring, and the subsequent dealings, afforded evidence of fraud on the part of Bewicke and Craster. The fraud alleged in the bill is, "That, on the night before, or on the morning of the 17th day of November 1781, before the cause respecting the said estates situate in the county of Northumberland, other than Newcastle-upon-Tyne afore-[366]-said, was called on, the said Calverley Bewicke and Daniel Craster fraudulently and collusively tampered with the said Thomas Harvey, the attorney of the said Stote Manby, and a bargain was actually made between the said Calverley Bewicke and Daniel Craster and the said Thomas Harvey, by which, in consideration of a very considerable sum of money as a bribe, paid by the said Calverley Bewicke and Daniel Craster to the said Thomas Harvey, as hereinafter mentioned, for his own use and benefit, the said Calverley Bewicke and Daniel Craster induced the said Thomas Harvey to betray the interest of the said Stote Manby, and to abandon the said last-mentioned action; and the said Thomas Harvey, on condition of such bribe, entered into an agreement with the said Calverley Bewicke and Daniel Craster that the said Stote Manby should convey the whole of the said Windsor estates to them, the said Calverley Bewicke and Daniel Craster and their heirs; and that it should be represented to the said Court, on the coming on of the said cause respecting the estates in the county of Northumberland, that a compromise had been made between the parties, in the terms of the order hereinafter mentioned." Then the bill states that "such representations were in fact and under the circumstances aforesaid made;" and then that the order was made a rule of Court; and then that "the said Stote Manby was wholly incompetent to give his assent to the said order, being at the time of unsound mind as aforesaid. The said Thomas Harvey was wholly unauthorised to enter into any such arrangement, or to consent to any such order; and the said Calverley Bewicke and Daniel Craster well knew that the said Thomas Harvey had no such authority; and, moreover, that at the time such arrangement was made as aforesaid the said Stote Manby was incompetent to give his assent thereto." And then it is further charged "that it is untruly alleged that the eldest son was present in Court."

[367] Now, in that state of things, it appeared to me, when this case came before me upon a demurrer to the bill, (1) that if the present Plaintiff could make out that a large bribe had been paid to Harvey, the attorney; and that, in consideration of

(1) A demurrer to the original bill had been allowed, and leave to amend given.

that bribe, Harvey had betrayed his client, it would be a case of concealed fraud within the statute. It is true, and I have some faint recollection of hearing it argued on the demurrer, that the statement in the bill is that the bribe was to be paid "as hereinafter mentioned," which seems to carry on the payment by reference to the £1500 mentioned in the agreement of compromise. But I apprehend that, if there had been an entire agreement, as stated in the bill, between the parties before they came into Court, not merely to do that which I have held to be a perfectly fair and bonâ fide transaction, as it appears on the face of the document, namely, to pay the attorney his costs, and a certain sum to Stote Manby, but if, anterior to coming into Court on that occasion, Bewicke and Craster, well knowing the weakness of their case, had arranged with Harvey that this money should be paid as a bribe, I apprehend that if such a secret transaction had been recently, for the first time, discovered (and, of course, I was bound on hearing the demurrer so to assume), that would clearly come within the definition of concealed fraud, and the case would then be governed by the doctrine of Trevelyan v. Charter (11 Cl. & F. 714) and Lewis v. Thomas (3 Hare, 26), and other cases of that description. The case of Trevelyan v. Charter was this: an agent, knowing the value of an estate, which was very large, bought it from the person whose agent he was at a much smaller sum than it was worth, and then sold portions of the estate for much more than he gave for it, and that transaction was after a long series of years set aside on the ground of fraud; and very properly, since the doctrine of this Court is that no agent is allowed to pur-[368]-chase from his principal without subjecting himself to the onus of proving the bona fides of the transaction; for he is bound to be prepared with that proof, at whatever period of time the transaction is questioned; and, however unhappy the consequences may be, those are the consequences of a well-established and sound rule of law.

So again in Lewis v. Thomas (3 Hare, 26) it was decided that, if a man take a conveyance from a lunatic, which he keeps and acts upon as his title-deed, nobody knowing of that conveyance, the donee holding the property under that conveyance until the fraud is discovered, a concealment exists to which this section of the statute is pointed.

I dissent entirely from the argument upon this part of the case, as regards the capacity of the individual who has been defrauded to discover the fraud. There are two very distinct propositions which the Court must bear in mind in construing the Statute of Limitations. The last statute gives the sanction of the Legislature to what I believe will be found to have been the previous doctrine of this Court, namely, that the bar produced by the statute would not arise in the case of a fraud concealed, until a reasonable opportunity had been given of discovering that fraud. The statute, to make that plain, has enacted in express terms that "in every case of a concealed fraud the right of any person to bring a suit in equity for the recovery of any land or rent, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at, and not before, the time at which such fraud shall, or with reasonable diligence might have been, first known. or discovered." (3 & 4 W. 4, c. 27, s. 26.) Now the same statute has the usual provision as to lunacy suspending the operation of its general enactments during the disability; so that the lunacy of a disseised person, at the time of his being disseised, takes the case out of the sta-[369]-tute, and he has the protection of the lunacy during the period that it may subsequently exist. If, therefore, a Plaintiff in this Court relies upon lunacy, or successive lunacies, to prevent the bar of the statute, that is an intelligible ground on which relief may be given, upon a totally different provision of the statute from that which relates to concealed fraud; but if a Plaintiff comes to this Court, not on the ground of lunacy, but alleging that his predecessor in title or himself was or is in such a weak or infirm state of mind that there was no possibility of his discovering a fraud committed upon him, that is a very different foundation for the claim; and I apprehend that it would be extremely difficult to contend, upon that ground, that the fraud could not have been discovered with due diligence. It appears to me difficult to maintain that there is any middle course. The Plaintiff, in such a case, must prove that the unsound state of mind on which he relies was absolute lunacy. If he proves anything short of that, I ask, how is it possible for this Court to determine, not whether there did exist such an unsound

state of mind as to entitle the Plaintiff to have the benefit of those clauses of the statute which relate to lunacy, but whether there existed a state of mind not wholly unsound, but with only such a glimmering of sense in it as to disable the party from availing himself of the protection of the statute as being of unsound mind, and yet to entitle him to say, "I was of too unsound a mind to discover this fraud, and therefore the fraud was a concealed fraud against me?" The case would be one of extreme nicety, and excessively difficult to adjust, and I apprehend the Court would hesitate very much and be long in coming to the conclusion that a man whose mind was not so unsound as that he could avail himself of that portion of the statute that would protect him on the ground of lunacy could be just of that degree of intellect that, being incapable of acting for himself, he should be relieved by this Court against his own act done long ago, [370] because he was in a condition in which it could not be supposed possible that he should exercise such a reasonable diligence as might have discovered a fraud then committed upon him. The Court must arrive, I think, at one of two conclusions, either that the man was absolutely insane, or, if he had his reason, then I think the Court must hold that he is not protected in respect of his condition of mind against the effect of the Statute of Limitations. The capacity or power of mind of every person may be said to differ more or less. But, unless the Court is prepared to weigh, for example, the capacity of a female's mind with respect to any similar arrangement affecting her interests, and the possibility of her forming a correct judgment on the subject; or to estimate in such a case the state of mind of an uneducated clown, and his opportunities of obtaining advice on the subject, and thus to open a field of the most wide and vague inquiry in every case, the only alternative, as it appears to me, is to hold the broad view that, unless a Plaintiff is in such a condition of mind as to be protected by the previous exemption in the statute on the ground of actual lunacy, the condition of his mind will not protect him, and he will not be considered by the Court to be a person incapable of using that diligence, which all persons who can obtain advice can use, namely, such diligence as to enable him to sue for and to recover his rights.

it.

I have considered this point a good deal before coming to this conclusion. Possibly a case may occur in which there may be such a degree of imbecility of mind, not amounting to lunacy, as to make it a question of considerable importance and difficulty for the Court to determine. Without now saying what the result of such a case might be, I only state this to be my view of the general principle applicable to Even if William Manby's case were different from what it is, I am bound to say, with regard to it, I do not think it possible for the Plaintiff to make out anything con-[371]-cerning his mental condition differing from what is stated in the Plaintiff's own bill; and according to that he was a man of dull mind; but to say he was in such a state of mind that he could not employ an attorney, or had not that degree of mental capacity which with any reasonable diligence, during the twenty-nine years for which he lived after this transaction, would have led him to set aside this transaction if fraudulent, I think, is a proposition that it is impossible to maintain. My opinion is that the Plaintiff has not proved that any fraud was committed; and further, that, if he had proved such a fraud as was alleged to be concealed, there was no concealment, for it is not shewn that William Manby was in such a state of mind that he could not have discovered the fraud. The hopeless part of the case, from the first, was the allegation of there being a concealed fraud in obtaining an agreement of compromise which was made a rule of Court, was entered into after the jury were sworn, and was made in open Court, and which, on the face of it, stated all that was to be done, namely, that £1500 was to be paid to the attorney for his costs, which was done; that £300 a year was to be paid to the claimant, which was done; which certainly did not state that the attorney was to have £100 a year out of the annuity of £300 (but that circumstance is not brought home to the knowledge of Bewicke and Craster); this document having been afterwards dealt with in many different ways, deeds having been executed in pursuance of the arrangement, bargains and sales enrolled in this Court; the subject-matter of the agreement having been disposed of over and over again, wills having been made by the supposed defrauded parties on the footing of the agreement, under which their families have had benefits, and those wills having been acted upon ever since-to say now that all these proceedings were

frauds, which were concealed from one of the parties to the agreement, because he and his descendant, though not insane, had not capacity of mind to discover the frauds, [372] seems to me one of the strongest, and, I may venture to add, one of the strangest propositions that I have ever heard asserted in a Court of Justice.

There is another observation, which was made in the argument for the Plaintiff, which I ought to notice in justice to the Defendants, as I have not heard their counsel. The counsel for the Plaintiff have said that, whatever may be the result of the principles of law in this case with reference to the staleness of the demand, at least the persons in possession of the property have now learnt that they are not the rightful owners, but that one who is languishing in poverty has been deprived of his inheritance by those who have preceded them; and that, at all events, if they still enjoy the property, it must be with the consciousness that they are in the enjoyment of what does not belong to them. I beg to say that I do not take at all that view of the case. I will even assume, for this purpose, that the document now discovered, the certificate of the marriage of a William Manby with an Ann Stote, would have persuaded a jury, or ought to persuade me, that the pedigree of the Plaintiff, as heir of Dorothy Windsor, has been established; and I think I may go so far as to say that it considerably assists the present Plaintiff in making out his alleged pedigree. It would not be right to say that it establishes that pedigree without having heard the counsel on the other side. I cannot say that I have come to any conclusion upon it, and it is not necessary for me to do so, because that document, which would be the only document that ought to have had weight with Bewicke and Craster, in considering the case with reference to a compromise, was not before them when the compromise was made. What then is the result? It is simply this, that those who in the year 1780 had possession of the property, who had been in such possession for twentythree years, find an obscure claimant rising up, who was incapable in their judgment of [373] establishing his case, and who, to the best of their judgment, was not a legitimate descendant of the lady from whom the property was derived; they at that time entered into a compromise with him and his attorney who represented him; they gave him a considerable sum of money, and liberated him from the payment of all costs; and they agreed to pay him £300 a year in respect of his claim, which, as it seems to me, was then a claim of an extremely doubtful character. What would anyone have said of them if, after having entered into that contract, they had discovered by some accident clear and convincing proof of the bastardy of the claimant, and had thereupon taken proceedings to recover back that which had been paid as the consideration for the relinquishment of the claim? If they had discovered conclusive proof of the claim having been fabricated, no doubt a moral right would have arisen in them to rescind the contract. But, to take the case simply of discovering additional evidence, each party believing at the time that the claimant had produced the best evidence that could be produced of his right, one party being of opinion that such evidence, though it had satisfied one jury, might fail to satisfy another, the other party being of opinion that there was no case at all, that in fact ought to have satisfied any jury; that they then came to a deliberate and solemn engagement, and the Defendants in that litigation purchased the right of the Plaintiff for a considerable sum of money-what, I say, would have been said of those Defendants if afterwards, on a discovery that the evidence was different from that which they expected, and that they in truth had spent some £6000 or £7000 for the purchase of that which was not worth one farthing, inasmuch as the Plaintiff had no right at all, they had sought to set aside the contract? Nobody can say that such a proceeding would not have been extremely immoral in every sense. It appears to me that the ancestors of the present Plaintiff, by that compromise, acquired a large [374] benefit on very slender evidence; and that they held and enjoyed it for a long period of years, without any question being raised in respect of it, and, so far as I can see, without their having any possible means of establishing their case to the satisfaction of any jury, beyond what I have described, which was of an extremely doubtful character. therefore of opinion that no principle of morality or of justice now requires that a contract of that kind should be rescinded at this interval, of some seventy-five years since the period when it was fairly, and as I believe honourably, entered into on both sides. I cannot come to any other conclusion; and I conceive that the present V.-C. XIV.-37

I am

Plaintiff has been very unfortunate in attempting to set up claims of this very stale character after a contract had been thus concluded, and without any shadow of pretence that I can see for casting imputations on persons long since in their graves, which can hardly rest with them, but which must affect the character of everyone who has been concerned from that time to the present in the preparation of deeds, assurances, wills and other documents under which this property has been dealt with. So far from feeling that this is a case in which the statute has operated as any hardship to the claimant who fails in his litigation, I think it is just one of the cases which shews how beneficial this statute is, and how undesirable it is, even for claimants themselves, that they should nurture these strange and vague expectations eighty or ninety years after the supposed right which they claim first accrued, and when they find themselves, by the prodigality of those who have preceded them, deprived of the fruits reaped by their ancestors from the compromise of a litigation concerning such supposed rights; and that they should set up these stale and antiquated demands, and attempt to establish them in a manner so utterly reckless as in this case, by charging wholesale fraud of the grossest and most revolting character; whereas, when the matter is sifted, and the Court can fairly place itself in the position [375] in which these parties were placed in the year 1781, which it seldom has the advantage of doing so completely as in this case, the transaction, instead of being such as is described, is shewn to be one of the most ordinary description in cases of litigation depending on a disputed pedigree. I believe thoroughly that the parties have had the full and complete enjoyment of all that was ever contemplated by any of them, or by those who acted either on their behalf or in the ratification of their acts. The bill must, therefore, be dismissed with costs.

[375] In the Matter of THEED'S SETTLEMENT. In the Matter of THE TRUSTEE RELIEF ACT. Feb. 28, March 9, 1857.

[S. C. 26 L. J. Ch. 514. See Domville v. Winnington, 1884, 26 Ch. D. 389.]

Settlement. Construction. Vesting. Younger Children.

A limitation by settlement of a fund vested in trustees, upon trust, to pay the income to M. for life, and at her death "to pay or transfer the capital to all her children (except her eldest or only son) in equal shares at their respective ages of twenty-one years," confers a vested interest on all the children of M. who attain tweny-one, although they may die before the period of division.

A younger son attained twenty-one, and then became the eldest by the death of his elder brother before the period of division. Held, that, as there was no reason shewn by the settlement for excluding the eldest son, such as his accession to another estate, the share that was vested in the younger son was not devested by his becoming the eldest.

This was a petition under the Trustee Relief Act for payment out of Court of a sum of £1251, 4s. 11d., being the balance of the proceeds of the sale of land directed to be sold, and the trusts of which were declared by an indenture dated 1797, as follows: viz., the proceeds were to be invested in stock and held upon trust for Henry Theed during his life, and upon further trust after his decease to pay or transfer all the said stock then remaining unapplied and undisposed of under certain previous trusts unto all and every the children and child of the body of the said Henry Theed, in equal shares and parts, at their respective ages of twenty-[376]-one years. And if no such child should live to attain that age, then upon trust to pay the clear yearly dividends of the said stock unto Mary Ann Macaulay, sister of the said Henry Theed, during her life, for her own use, benefit and disposal; "And at her decease to pay or transfer all the said then remaining stock unto all the children of the said Mary Ann Macaulay (except her eldest or only son) in equal shares and parts, at their respective ages of twenty-one years; and if there should happen to be only one such child, and that child to be a son living at the death of the said Mary Ann Macaulay, then and