life interest, adding, "whether it is legal or not, I do not profess to say;" therefore, it is plain, he considers that transaction as part of the matters of which he had a right to complain. He had a legal adviser at hand, but had not consulted him on the subject until after his wife's family had given it as their opinion that the transaction had better not be disturbed. It is plain that the husband at this time thought so. His father-in-law had given countenance to the marriage without any idea that his life interest was to be dis-[15]-puted. Afterwards the husband wrote this letter, saying only, "What, will you dispute this charge for your daughter's outfit under all these circumstances?" and the father then paid for the daughter's marriage outfit. He was under no legal obligation to pay this debt. It is said he might be liable to account for the money he received during his daughter's minority, but it is doubtful whether there might be anything due from him on that account. The husband in his letter mentioned all these circumstances, including the life interest given to the father; and it is too much to say, when he has obtained the money, and shamed the father into paying it by all these statements, that he can maintain a suit to set aside the transaction.

After all this a deed of settlement was executed by the husband and wife of the property to which she was entitled, subject to the father's life-estate. That was no confirmation of the gift to the father, but it was very strong evidence of acquiescence in it; for, if the parties had intended to question it, the simple way would have been to settle the property subject to the life-estate of the father, "if any." The solicitor who prepared this deed says he did not know that the gift to the father could be set aside; but after all the discussion which took place before the marriage and the letter written by the husband, when he had a solicitor at hand to advise him, I cannot permit him to assume, in his own favour, that it was solely through the influence of his solicitor that the Defendant's life interest was reserved in this deed. The plain inference is that the parties considered the transaction disposed of. The wife never intended to pass by this settlement to her husband a right to sue her father, but both believed that the whole matter was entirely settled. That is confirmed by the evidence of Howes, the solicitor, who prepared and attested the settlement of 1845. He says that on the occasion of the execution of that settlement Mrs. Wright said that, in con-[16]-sequence of the life-estate being given up to her father, it made her income very small at that time. He adds: "She said that she had given up that life-estate to her father." It is plain that both then considered the matter to be settled. After this, during the whole of the wife's life, the husband never filed any bill.

In Hoghton v. Hoghton (15 Beav. 278, 314) the delay was only five years. The Master of the Rolls observes upon it, but says that it is explained by the fact that proposals for a compromise were pending. There is nothing of that kind here. On the contrary, the husband and wife afterwards received some favours from the father, which were of small value no doubt a little plate and similar presents-but they shew that the father could have no reason to suppose that there was any intention to recall the life interest which was given him. It is true that it would not be for the peace of families to allow fathers to take benefits from their children as this father did from his child; but neither would it be for the peace of families, in a case like this, where a wife had the protection of her husband and friends, after an interval of nearly ten years, to allow the husband to call back from the father a life-estate which he had improperly taken by her gift.

I should have noticed, as furnishing further evidence of acquiescence, a letter written by the Plaintiff to the Defendant in September 1851. It is written in reference to a proposal then in contemplation for a partition and sale of part of the disentailed property. He says, "Let me hear from you directly, with your opinion upon the subject. My opinion is that it would be decidedly better to sell the whole. of the undivided property." And then he speaks of the Defendant's life interest in that property, and proposes that, in the event of their concurring in a sale, the proceeds should be invested in the purchase of land in another loca-[17]-lity; he speaks distinctly of the Defendant's life interest in the property and treats it as a recognised and subsisting interest.

Under these circumstances it seems to me that it is far too late now to set this

transaction aside. It is plain that on the second marriage of the husband some of the wife's relatives have suggested the expediency of filing the bill, but for the reasons I have given I think it cannot be sustained.

The only remaining question is as to the income of the daughter's property. I never recollect an instance in which, parties who have known their rights having allowed a father to receive the income of his daughter's property, a bill has been filed after the daughter attained her majority to have an account taken in respect of the income received by the father during her minority. If it were a case in which there was any doubt, or obscurity in the transaction, as to the amount of the rents so received, or the like-if there were any complication of the account, or anything to lead to the supposition that the matter had not been settled during the daughter's life, it would be a different case; but there nothing can be more simple. There is some little dispute whether the father received £300 a year or less. It appears he sent his daughter to school for some years at £60 a year, and had a governess, and kept up an establishment for her, with a carriage and horses and a groom, and she had the benefit of that establishment. He also embarked in a Chancery suit for her of a doubtful kind, which cost about £600, and that would have to come out of the rents which he received. The most I could see my way to, under such circumstances, would be, that, having received £300 a year during the daughter's minority, he should be charged with that; but as he seems to have had very little other pro-[18]perty, I do not think such an order is called for. Looking to the income he had, I have no doubt the Court would have allowed him a considerable part of the daughter's income. After a lapse of ten years it is too much to say that the account should be taken. It would only create disturbance in a manner which this Court never encourages.

The husband, being entitled to raise these questions in 1844, has filed this bill raising them for the first time in 1853, after writing, in 1845, the letter I have read, in which he complained of all the matters in controversy-after payment by the father of the £200, of which it was the object of that letter to obtain payment. Since 1848 the husband has been in possession, in right of his wife, of property amply sufficient to enable him to assert his rights; but up to the month of April 1853 he did not think fit to do so. Upon the whole, therefore, I am of opinion that his conduct constitutes a degree of laches which disentitles him to relief in this Court, and the bill must be dismissed, but without costs.

[18] NICHOLSON v. TUTIN. 1855.

Creditors' Deed. Assent. Execution after Time Stipulated.

A creditor assigned property by deed to trustees upon trust to sell, and apply the clear proceeds in payment of the debts owing by him to such of his creditors as should, before a certain day, execute the deed, and the surplus, if any, to the assignor; and the deed contained a release by the creditors. The assignor and the trustees, who were also creditors, executed the deed at once. No other creditor executed before the stipulated day, but notice of the deed was given to them all, and they forbore to sue, and fifteen years afterwards some were permitted to execute the trustees meanwhile having taken possession of and sold part of the property. Held, that the deed was binding on the assignor, and that the creditors were entitled to have the trusts of it carried into effect.

William Welbank, of York, now deceased, by indentures, dated respectively the 13th and 14th days of January 1840, granted, assigned and demised to Dighton, [19] since deceased, and the Defendants, Tutin and Watson, certain hereditaments therein particularly described, to hold the same to them, their heirs, executors, administrators and assigns, upon trust to sell, and after payment of the expenses attending such sale to stand possessed of the remaining proceeds, upon trust to pay the same to the said William Welbank, his executors, administrators or assigns.

William Welbank, by another indenture of assignment, dated the 15th day of

January 1840, assigned all other his estate and effects (including therein the amount to be realised by a sale of the aforesaid hereditaments) to the said Dighton, since deceased, Tutin and Watson, upon trust to sell, collect and get in the same; and after providing for the costs of the execution of the trusts thereof, and of the said indenture of the 14th day of January 1840, to apply the residue in payment of all the debts owing by the said William Welbank, to such of his creditors as should have, on or before the 6th day of April next ensuing the day of the date of the now-stating indenture, executed the same, rateably, and to pay the surplus to the said William Welbank, his executors, administrators and assigns; and by such indenture the creditors executing the same released the said William Welbank from their respective debts. None of the creditors executed such indenture on or before the 6th day of April 1840; but the said William Welbank, and the trustees thereof, who were also creditors of Welbank, did execute the indenture within that time, and the Plaintiffs and several other creditors of the said William Welbank executed it after that date. Dighton, since deceased, Tutin and Watson, shortly after the respective dates of the said indentures, gave notice of the assignment to the several creditors of the said William Welbank, and published notice thereof in the local newspapers, and also, in pursuance thereof, took possession of all the effects of the said William Welbank, and caused the same to be sold by auction, and [20] retained the balance of the purchase-money in their hands; and they also, immediately after the respective dates and execution of the said indentures, entered into the possession and receipt of the rents and profits of the said hereditaments, and afterwards sold a portion thereof; and Tutin and Watson had continued in the possession and in the receipt of the rents and profits of the remaining parts thereof up to the present time. Welbank died in 1854, intestate and insolvent; and no representation was taken out to him.

The bill was filed by some of the creditors of Welbank, on behalf of themselves and all other creditors entitled to the benefit of the trust deed, against the trustees, to have the trusts of the deed carried into effect by the Court, and for an inquiry as to their debts, and as to the property received by the trustees.

The Defendants, the trustees, were also representatives of a mortgage of the real estate comprised in the deeds.

It appeared in evidence that the Plaintiffs' solicitor, before they had executed the deed, applied for and obtained a statement of the proceeds of the property sold, and liberty to inspect the trustees' accounts; and that the Plaintiffs shortly afterwards executed the deed by attorney. The Plaintiff swore that they assented to the deed at the time, and the Plaintiff, Nicholson, stated that Fowle, brother of one of the solicitors to the trust, called on him shortly after the advertisement of the deed appeared in the newspapers, and urged him to come in under the deed, and to assent thereto; and that he did assent to it accordingly, and afterwards urged the solicitors to wind up the business. The Defendants denied that the Plaintiffs had assented to the deed, and stated that at the time of the execution of the deed by one Plews, as attorney for the Plain-[21]-tiffs, the Defendants' solicitor pointed out to him that, the time fixed for the assignment having elapsed, it was doubtful whether his execution for the Plaintiffs would be valid. The trustees' solicitor stated that Nicholson shortly after the execution of the deed, called upon him, and that he mentioned to Nicholson the deed of assignment, and Nicholson refused to have anything to do with it; and the Defendants, in their character of mortgagees, relied upon the Statute of Limitations as having barred the debts. The Plaintiff's proved their debts.

Mr. Rolt, Q.C., and Mr. Southgate, for the Plaintiffs.

The creditors were informed of the deed, and some of them at least have assented to and acted upon it, and even executed it; and though such execution was not until after the time limited for that purpose in the deed, they are entitled to the benefit of it for the future: Broadbent v. Thornton (4 De G. & S. 65). In Harland v. Binks (15 Q. B. 713) a deed of assignment was made for the benefit of all such creditors as should come in under and execute it. None of the creditors executed, but the trustee took possession of the property, and then one of the creditors asked and received an explanation of his so taking possession; and this was held sufficient to constitute the relation of trustee and cestui que trust, so as to support the deed. In Siggers v. Evans (19 Jur. 851) the Court of Queen's Bench decided that the mere communication of

the deed to the trustee, who was also a creditor, and his assent to it were sufficient to render it irrevocable: Kirwan v. Daniel (5 Hare, 493).

Mr. Daniel, Q.C., and Mr. W. R. Ellis, for the Defend-[22]-ants, relied on the nonexecution of the deed within the time limited, denied that there was any assent, and cited Forbes v. Limond (4 De G. Mac. & G. 315), in which the Lord Chancellor says, "that no person can be considered to have impliedly acceded to a deed of this sort, within the true meaning of that expression, who has not put himself in precisely the same situation with regard to the debtors, as if he had executed it."

They argued also that, before the Plaintiffs executed the deed, their debts were barred by the Statute of Limitations.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I am of opinion that the Plaintiffs have made out their right to an inquiry. A deed was executed by Welbank, in 1840, by which he assigned all his estate to trustees, in trust for all such of his creditors as should come in and execute the deed within six months. None of his creditors did execute it within that time. The trustees acting under the deed gave notice of the assignment to the creditors of Welbank, and made sale of the property; and it is quite clear that they and Welbank recognised the deed. It is said that no creditor could take advantage of the deed unless he executed it within six months; but, after that time, the parties assumed to act under it; and, therefore, the case is brought within the decision in Broadbent v. Thornton (4 De G. & S. 65) that any person taking under a deed having notice of it, and acting under it, although he does not execute it, is entitled to have the benefit of it. Gould v. Robertson (Id. 509) was a case of a different character. There a mortgagee, having another security of a different nature, insisted upon it, and was not permitted also to take advantage of a [23] creditors' deed made by the mortgagor in favour of creditors who should execute within a certain time, and containing a provision that all such persons coming in afterwards would be excluded, the mortgagee never having executed this deed.

The Court requires it to be shewn, first, that the person claiming is a creditor, and then that he has acted under the deed.

The case before me is a very strong one. The Plaintiff, Nicholson, it appears, made a claim for his debt immediately after the deed. He swears that in January he saw the advertisement, and that, after it had appeared, one Fowle, a brother of the solicitor to the trustees, called upon him, and urged him to come in under the assignment, and to assent thereto; and that he assented, and considered that he became entitled to the benefit of the deed. Fowle, the trustees' solicitor, on the other hand, says that on one occasion he had an interview with Nicholson, and that he neither admitted nor denied the debt claimed by Nicholson; that he mentioned the assignment, and that Nicholson refused to come in thereunder, or have anything to do with it. However, after being so informed, Nicholson took no step to recover his debt. It is a strong circumstance to shew acquiescence in the arrangement on his part that Nicholson was told of the deed and forbore to assert his rights as a creditor: the fact of allowing six years to elapse is in favour of the creditors; they did not interfere, because they were content to abide by the deed. The Plaintiffs did afterwards execute it, while Welbank was still alive. They were admitted to execute the deed, being told it is open to all questions which may arise; but the circumstance of their being admitted to execute, and Welbank never objecting, is strong primà facie evidence of their being creditors. [24] Whatever might be the effect of the Statute of Limitations upon the debts, if the original cestui que trust entitled to the surplus after payment of the debts stands by and allows them to execute the deed, how can I say that he got no advantage thereby? How can I tell that the release in the deed was inoperative, on the ground that the debts were barred by the Statute of Limitations? There may have been payments or acknowledgments to take the debts out of the statute. Welbank was content to have a deed executed, for which he got the benefit of a release before this bill was filed. I think that, in this respect, this is stronger than the cases which have been cited.

Take an account of what is due to the Plaintiffs and all other persons entitled to the benefit of the trusts of that indenture.

2 K. & J. 25. MANCHESTER, ETC., RY. CO. v. WORKSOP BOARD OF HEALTH 679

Take an account of the receipts and payments of the trustees, making all just allowances.

Let the trustees pay the fund into Court upon their own affidavit.
Reserve further consideration.

[25] THE MANCHESTER, SHEFFIELD AND LINCOLNSHIRE RAILWAY COMPANY v. THE WORKSOP BOARD OF HEALTH. Nov. 5, 1855.

Old Exceptions. Setting down again. Further Time to answer. New Practice. When the original exceptions for insufficiency are again set down, after a further answer has been put in, which may be done at once, under the 16th and 17th Orders of Nov. 2d, 1850, Defendants submitting to such exceptions should not apply at Chambers for further time, as the Plaintiff, by agreeing to an order so made, might possibly waive his exceptions altogether.

The proper course in such a case is to notify the Defendants' submission to the Plaintiff, and to agree upon some further time being allowed, and to submit this point only to the Court when the exceptions are called on.

On the 28th of May 1855 two of the Defendants filed their answer to the amended bill in this suit.

On the 23d of June 1855 exceptions to such answer for insufficiency were filed. On the 12th of July 1855 these exceptions were allowed with costs.

On the 30th of July 1855 the Defendants filed their further answer.

On the 19th of October 1855 the further answer being deemed insufficient, the exceptions of the 23d of June last were again set down, and notice was given to the Defendants on the same day.

On the 27th of October following the Defendants served the Plaintiffs with notice that they submitted to answer within such time as a Judge at Chambers should allow, and thereby undertook to pay such costs, if any, as the Plaintiffs might be entitled to in consequence of having again set down the exceptions.

On the 1st of November 1855 the same Defendants took out a summons for fourteen days' time to further answer the Plaintiffs' amended bill. This was heard before the Chief Clerk in Chambers, and refused. The chief argu-[26]-ment used by the Defendants was the unsettled state of the practice, and that the Plaintiffs could get on that summons the same order they would have by going to the Court, but the Defendants admitted that the Plaintiffs had no other course open to them than to set down the cause on the old exceptions as they had done.

Mr. Rolt, Q.C., and Mr. Collins, for the Plaintiffs.

No further time could be given in Chambers until the exceptions were allowed in point of form. Exceptions now come in the first instance before the Court: 13 & 14 Vict. c. 35, s. 27; and eight days are allowed when any new exceptions are taken to set them down. Old exceptions may be set down again directly: 16th and 17th Orders, 2d Nov. 1850; and if not set down within fourteen days after the further answer is put in such answer is to be deemed sufficient.

The Plaintiffs feared that submitting to the order for further time would be a waiver of the exceptions. [THE VICE-CHANCELLOR. The 26th sect. of the 15th & 16th Vict. c. 80 provides that "applications for time to plead, answer or demur," which seems to refer to the original answer, are to be made at Chambers.]

Mr. Foster, for the Defendants.

By the 16th Order of Nov. 1850, after the filing of exceptions to the Defendants' answer for insufficiency, and any further answer put in, the Plaintiff has fourteen days from the filing of such further answer within which he may set down the old exceptions. [THE VICE-CHANCELLOR. And if not set down within fourteen days they are to be considered as abandoned. The Plaintiffs therefore must set them down.] [27] By submitting, the Defendants gave the Plaintiffs an opportunity of avoiding the setting down. [THE VICE-CHANCELLOR. There is no provision that submission shall have that effect. It is necessary to set down the old exceptions again without