298 1858. CH. 27 BEAV. 5-7. BRUMRIDGE. BRUMRIDGE their respective hands by virtue of these respective presents (the joining in receipts for form sake notwithstanding); and that no trustee of these presents paying or consenting to the payment of money to a co-trustee thereof, with a bona fide intent to accelerate the performance of the trusts thereof, shall be responsible for the conduct or misconduct of the trustee receiving the same, nor answerable for his application or misapplication of such money, or any part thereof; nor shall any of the trustees, for the time being, of these presents, be charged or chargeable with, or for any loss or damage which shall or may happen in placing out all or any of the trust moneys on real securities, or in Government or other public funds as aforesaid, or by depositing the same, or any part thereof, in [6] [7] in any Bank or banker's hands for safe custody, or This suit was instituted by the children against Thomas Brumridge (the trustee) and their parents, seeking to charge the trustee with breaches of trust, whereby the trust funds had been lost. Thomas Brumridge said he took no more than a formal or nominal part in the trust, but he admitted that he had signed some receipts, which enabled the receipt of part of the trust money, but he did not sign them until his co-trustee had signed them. He relied on the trustee indemnity clause. Mr. Follett and Mr. Piggott for the plaintiff. Mr. J. H. Palmer, for Thomas Brumridge, the trustee, argued that the terms of the trustee indemnity clause exonerated him from all liability in respect of moneys which had not actually come to his hands. Mr. Surrage for the tenant for life. THE MASTER OF THE ROLLS: I am of opinion that this clause does not exonerate a trustee from the consequences of any acts by which the money has been misapplied. This clause is constantly brought forward to sanction the misapplication of trust moneys; but until it is provided, by the instrument creating the trust, that the trustee shall be liable for no breach of trust, provided he does not obtain a personal BRUMRIdge advantage, I shall not consider the clause as giving a trustee the right or liberty of conniving at a breach of trust. Even if an instrument containing such an inconsistent clause were brought before me, I express no opinion on the result; but until it is, I cannot allow a trustee to say, that it is not his business to act properly in the performance of his duty as trustee. The defendant is liable, because, by signing the receipt, he has enabled his co-trustee to obtain and misapply the trust money. DECREE.-Accounts and enquiries were directed, and the decree proceeded as follows: "In taking the accounts hereby directed, the defendant Thomas Brumridge is to be charged with all money paid upon any receipt and authority which he has joined in giving or signing, notwithstanding the money so paid may not have actually come to his hands."-Reg. Lib. 1858, A. fol. 407. WRIGHT . STANFIELD (1). (27 Beav. 8-10; S. C. 28 L. J. Ch. 183; 5 Jur. N. §. 5; 32 L. T. O. S. 171.) An agreement to mortgage a Middlesex property does not come within the Registry Act; therefore, where the owner of property in that county had first mortgaged to A., and then agreed to mortgage to B., and had subsequently mortgaged to C., and G. had registered, and B. had not: Held, that C. had not obtained priority over B. IN February, 1857, Ann Hughes, being possessed of a leasehold in Middlesex for the residue of a term of ninety-one years, assigned it to Messrs. Whitehead by way of mortgage to secure 1,900. This was duly registered. In May, 1857, Ann Hughes agreed to assign the same leasehold premises to the plaintiff Mr. Wright for securing 125l., and she, at the same time, signed and delivered to him the following memorandum: "Memorandum. In consideration of your having this day advanced and lent to me the sum of 125l., for which I have given you my warrant of attorney, I hereby agree to charge my leasehold houses, situate in Grosvenor Street, Pimlico, with the payment of the same. And I hereby undertake, at your request and at my own cost, to execute a proper assignment of the said premises, as you may direct," &c. (1) A vendor's lien for unpaid purchase-money: Kettlewell V. Watson (1884) 26 Ch. Div. 501, 53 L. J. Ch. 717, 51 L. T. 135; or a charge created by deposit of deeds without any memorandum or document showing the purpose of the deposit: Sumpton v. Cooper, 36 R. R. 552 (2 B. & Ad. 223); are not within the Middlesex Registry Act, but any written document which BRUMRIDGE. 1858. Dec. 10. Rolls Court. [8] WRIGHT v. STANFIELD. [9] 1859. Feb. 11, 14. 1859. Feb. 19, 11, 24. Rolls Court. [ 16 ] This memorandum was never registered. Afterwards, in November, 1857, Ann Hughes assigned the leaseholds to the defendant Mary White, by way of mortgage, for securing 600l. A memorial of this assignment was duly registered in pursuance of the 7 Anne, c. 20. Mrs. White had no notice of the second mortgage. Under these circumstances, the question was, whether Mrs. Wright had or had not priority over Mrs. White. Mr. R. Palmer and Mr. Southgate, for the plaintiff, [cited Sumpton v. Cooper (1).] Mr. Bardswell, for the assignees of the mortgagor, asked for their costs. Mr. Bernard, for Mrs. White. * THE MASTER OF THE ROLLS: I think it clear that the Registry Act does not require the registration of a memorandum like that given to the plaintiff. I must make the usual decree. ST. ALBYN v. HARDING. (27 Beav. 11-15.) Purchase of a reversionary estate tail of a person without issue set aside merely for inadequacy of consideration, there being no fraud or undue pressure. The purchaser having resisted the relief was ordered to pay the general costs of the suit, but the plaintiff was ordered to pay the costs so far as they related to his unfounded allegations of fraud or undue pressure. When sales of reversionary interests were formerly set aside from mere inadequacy of consideration, it was upon the repayment of the consideration with interest at the rate of 51. per cent. [The purchase in this case was set aside for under-value only, and the case is therefore obsolete under 31 Vict. c. 4. See the notes to Edwards v. Burt in 95 R. R. p. 10 and to Gowland v. De Faria, 11 R. R. p. 9.-O. A. S.] IN RE COLSTON'S HOSPITAL. (27 Beav. 16--21.) A charitable foundation, established in 1701, for the support and education of boys, was fixed by the founder in the middle of the city of Bristol. The COURT, on its appearing beneficial, sanctioned its removal to the vicinity outside the city, and authorized the purchase of a site for that purpose, notwithstanding a great opposition. THIS was an application made by a majority of the trustees. of Colston's Charity, with the sanction of the Charity Commissioners, for leave to remove Colston's School from its present site, in the city of Bristol, to a situation at Stapleton, in the vicinity, and for leave to purchase an estate for that purpose. The minority of the trustees opposed this application, and applied by summons for leave to be heard. (1) 36 R. R. 552 (2 B. & Ad. 226). To determine the question, the summons of the opposing minority was adjourned into Court in the first instance. The facts were these: In 1701, E. Colston established a hospital or charity in the city of Bristol, for the maintenance, clothing and education of 100 poor boys, and for placing them out apprentice, and he conveyed to the Merchant Venturers' Company a mansion-house in St. Augustine's Back, in the city of Bristol, for that purpose, which had been ever since used and was called Colston's Hospital. At the hearing of The Attorney-General v. The Merchant Venturers' Company (1), there being a large surplus income, a scheme was directed. The Master made his report in 1853, whereby he proposed that the buildings should be enlarged, and that the surplus income should be applied in bringing up forty additional boys. Before any proceeding had been taken in that respect, a mansion and estate, called Stapleton Court, in the neighbourhood of Bristol, formerly the palace of the Bishop of Bristol, was offered for sale by the Ecclesiastical Commissioners, and the mansion and about nine and a half acres of land, and a bathing place near the river, could be purchased for 6,000l. It was proposed by the Merchant Venturers' Company that the purchase should be effected, and that the mansion-house should be altered so as to adapt it to the uses intended, at an expense of about 3,000l. They proposed that this sum of 9,000l. should be paid out of the existing surplus funds of the charity and the produce of the sale of the site of the present hospital, and that the residue should be raised by a mortgage, to be paid off in twenty years. by means of a sinking fund. The house at Stapleton was distant about two miles and threequarters from the centre of the city of Bristol, and three miles from the present school premises, but it was only one mile distant. from the present boundary of the city. As a reason for the proposed removal, it was stated, that the present premises were inconvenient and confined, and insufficient for the due recreation of the boys, and that the latter objection. would not be removed even by the total re-erection of the present buildings, and by the purchase of adjoining premises known as Salem Court, at a cost of from 10,000l. to 11,000l. It was also alleged, that many parts of the immediate neighbourhood of the school were of the worst character, and that the noise, in its present situation, was very objectionable. The proposal was objected to by fourteen dissentient members of the corporation, four of whom were feoffees of the charity (1) 5 Beav. 338. In re COLSTON S HOSPITAL. [17] L181 In re COLSTON'S HOSPITAL. [19] | 20] estate. Memorials had been presented against the removal, one to the Charity Commissioners by some of the inhabitants of Bristol, and others to the Attorney-General by eighteen beneficed clergymen of the city, and by the representatives of the Colston family. They insisted that an old school, founded and permanently fixed by Colston in Bristol, with which city he wished his name to be associated, ought to remain on its original site. That it was contrary to the founder's intention, and would be injurious to the city of Bristol, for the benefit of whose inhabitants it was founded, to remove it to a distance, and that it would also be prejudicial to the objects of the charity, for the school would be removed from the observation of the beneficed clergy of the city, the approval of a majority of whom was required by the foundation deed on the appointment of the master of the school, and that its management and supervision would become neglected, in consequence of its distance from the residences of the active trustees. The opponents denied the costs of altering the present buildings, the insufficiency of the playground, its confined situation and the alleged bad character of the neighbourhood, and they insisted that no case had been made out showing the necessity of a removal, and, therefore, that such removal would be a breach of trust. They said, that even without the purchase of Salem Court a good and sufficient site would be obtained. Mr. Follett and Mr. Osborne in support of the proposed removal. Mr. Barber for the nominees. Mr. R. Palmer, for the dissentient trustees and others, in opposition to the scheme, [contended that the removal of the school would violate the intention of the testator and change the character of the charity]. Mr. Terrell for the Attorney-General. Mr. Follett, in reply. The MASTER OF THE ROLLS, in substance, observed, that the paramount consideration with the Court, in all cases of this description, was, what was most for the benefit of the charity. That though the present situation was shown to be by no means an unhealthy one, still there could be no doubt, that it would be more beneficial to the boys to be in a perfectly airy situation, with greater space and accommodation. In addition to this, there appeared to be great difficulties in increasing, on |