Thomas Mawdesley and William Turner were trustees and accounting parties in this suit. As such trustees, and for the purposes of the trust, they kept a joint account with Smith, Daintry, & Pyle, bankers at Macclesfield. By the answer and examination of Mawdesley and Turner, taken in this suit in 1827, they stated that there was a balance of 27197. in their names in that bank. This balance was afterwards reduced, on the 1st January, 1833, to 9187. Mawdesley afterwards died. In 1841 the bankers failed, the same balance still standing in the same names. Turner, at the time, was indebted in a larger sum than 9187. to the bankers, and he paid the excess to the assignees, claiming a right to retain the 9187. In 1842 Turner died, and the assignees brought an action against his representatives for the 9187. That action appeared to be still pending. The money whilst in the bank had not been used in any way by Turner. The Master had made a report of the 17th July, 1847, finding, generally, that there was due from the late defendants, Mawdesley and Turner, the sum of 18007. Turner's representatives now presented a petition, stating as above stated, and that the money had remained in the bank with the knowledge of the parties to the suit; that the 918. was part of the 18007. due as above mentioned; and praying to be allowed the sum of 9187. in reduction of the said sum of 18007.; and, in the meantime, that no order might be made upon them in relation thereto.

Stuart and C. Hall, for the petitioner. The parties beneficially interested were aware that this balance had been lying in the bankers' hands, and could at any time have moved to have it paid it into court. This suit was instituted many years ago, and a receiver has been appointed in it. It was his duty to get the money in. There have been laches on the part of our cestui que trusts. (Ex parte Powell, Mont. & M'A. 283). We have adopted the only course that was open to us: we were obliged to present this petition, as the circumstances of the case do not appear upon the Master's report. The Master ought not to have found that this sum is due from us: some of it may be recovered from the estate of the bankrupts. We were obliged, by the nature of the trust, to keep a large balance; (Massey v. Banner, 1 J. & W. 241); and our deed of trust renders us not responsible for the failure of the bankers. The utmost loss to the estate is the difference between what was in the bank and what will be paid as dividend, and we ought not to be charged with more.

Bethell and Renshaw, in opposition, not heard. J. Parker and E. J. Lloyd, for other parties. VICE-CHANCELLOR. This petition is the plainest matter possible. I am trying a defence before the hearing. It is supposed that some application may be made, as I conceive, upon what appears by the Master's report; and the question is, first of all, whether this is a mode of defence to be adopted by a party in the cause, which is to be justified. I have never understood, that where a person is a party to a cause, and the cause is to be called on upon further directions, he can make a defence by petition. When the cause comes on upon further directions, it must depend upon what appears upon the Master's report and the proceedings in the cause. It is quite a new thing for a party to present a petition for such a purpose. The matter stands in this way:Turner was in some way or other appointed trustee. It is stated to me by Mr. Hall, that upon the report made by the Master it appears that Turner was not properly appointed a trustee; yet he was acting as a trustee, and in that character made a party to the cause. It appears, in the year 1827, there was a very considerable balance standing to the credit of himself and Mawdesley: there is nothing whatever to shew how it happened that that portion of trust estate should have been sequestered, so as with anything like propriety to stand

in the names of Turner and Mawdesley. Mr. Hall says, that it was, by the decree, referred to the Master to appoint a receiver-that is, of the rents and of interest-but not to get in money from a person who had already received it in his character of trustee-that was not the situation in which he was to stand. Then it appears, that, in October, 1827, there was a balance of 27197., and the trustee operated upon it, so that it became diminished to 9187. Then Mawdesley died, and then the bankruptcy took place in 1841. Turner died in 1842, and his personal representatives were brought before the Court in the usual way. It seems there is some question, as between Clegg, his administrator, and the bankers' assignees, as to the particular debt and as to set-off. Now, for aught I know, the fact of there being such a question might have operated upon the parties as a reason why they would not call upon Clegg to pay in his balance. But the bill was not filed by any cestui que trust, but by one of the trustees; and the parties to whom, in effect, Turner would be ultimately indebted stood in this situation-that one was not born till 1820; and, therefore, of course he could not be bound till 1841: and his child has but very recently been born; and one will be entitled to a life estate, the other to the reversion. Now, it seems to me, then, that perhaps, in a case where a sole adult cestui que trustlooking on upon what was taking place, and seeing that, in the year 1827, these particular trustees were liable to be called upon-abstains for twenty years from calling in the balance, a case might be made against him; but it does not appear that any right which the infant had can be prejudiced by the circumstance, that no order was made for payment into court, when all along, the money being in the trustee's hands, it was his duty to pay it into court, unless he had reasons for not doing so, and no such have been given. There is accordingly the trustees' liability to answer the money, and no adult cestui que trust to call for the money; and those who were, in effect, infant owners ought not to be prejudiced because the trustee had not performed his duty. It appears to me, that this petition must be dismissed, with costs.

YATES v. HADDAN.—April 24
Will-Construction-Domicile-Annuity.

A Testator, domiciled in Jamaica, gave to his Son One clear Annuity of 1001. per Annum for Life; and should he die, a Child him surviving, the Testator continued the same Annuity for such Child's Use and Benefit, to be paid to his or her Mother. The Testator then gave other Annuities of 1007. sterling, and gave the Residue of his Estate, real and personal, to Trustees, on trust to pay the several Legacies and Annuities thereinbefore given. He made Codicils to his Will in England, and died domiciled in England: -Held, that the Annuity was a perpetual Annuity to the Child of the Son of 1001. Jamaica Currency.

The will of Thomas Legal Yates, made in Jamaica, and dated the 18th July, 1832, contained the following words:-"I give, devise, and bequeath unto my son, Edward Cookson Yates, one clear annuity of 1007. per annum, for and during his natural life; and should he die, a child him surviving, I continue the same annuity for such child's use and benefit, to be paid to his or her mother. I continue the charity which I have been allowing Mrs. Catherine Griffiths, widow of the late William Griffiths, since the death of her brother, William Augustus Morse, of 100%. sterling, payable quarterly, in London, which annuity I direct to be paid and continued quarterly, during her natural life. I give and bequeath unto my sister, Eliza Pillew Mowbray, 1007. sterling per annum, for and during her natural life. I give and bequeath unto each of my sisters, named Mary Ann Yates and Francis Beckford Yates,

the sum of 50%. sterling per annum, during their respective natural lives. All the rest, residue, and remainder of my estate, real, personal, or mixed, whatsoever and wheresoever, I give, devise, and bequeath the same to my wife, Dorothy Diana Yates; to my daughter, Mary Ann Morier Yates; to my co-partner and friend, James Cockburn; to my friends, James Minot and Barnaby Maddan, both of the city and parish of Kingston, esquires, or such of them as shall qualify and act under this my will, and the survivors and the survivor of them, and the executors or administrators of the survivor, upon trust to uphold and keep up my plantations, and the complement of negroes now employed at his Majesty's naval yard, by purchase of other negroes in the room of such as may happen to die, or be discharged from his Majesty's naval yard; in the next place, to pay, satisfy, and discharge the several legacies and annuities herein before given, devised, and bequeathed; and then to pay and apply the residue of such personal estate, and all the real estate, and the rents, issues, and profits thereof, unto and amongst my said wife, Dorothy Diana Yates, and my several children, in manner therein mentioned." The testator, in the year 1833, returned to England, and there made a codicil, dated the 25th January, 1835, revoking the annuity to Catherine Griffiths, and the bequests of his books and plate; and by a codicil, also made in England, and dated the 11th March, 1835, he reduced the life annuities by his will given to his sisters one-third in amount. He died in England on the 17th July, 1835. The executors proved his will in the Court of Canterbury. Edward Cookson Yates was the testator's eldest son, but it was alleged by the defendants that he was born before marriage. He died on the 21st August, 1840, intestate, leaving his widow and one infant child. The widow and child now filed their bill (amended on the 11th January, 1848) against the executors, claiming an annuity of 1007. sterling in perpetuity. Both parties had entered into evidence; but it was admitted, for the argument, that the testator was domiciled in Jamaica when he made his will, but that he was domiciled in England when he made the codicils and when he died.

Rolt and E. F. Smith, for the plaintiffs.-The first question is, whether this annuity of 1007. was intended to be in pounds sterling or in Jamaica currency. Assuming that the testator, at the time of making the codicils and of his death, was domiciled in England, we contend that the execution of the codicils makes the will an English will. Besides, a will is ambulatory, and is to be considered as made where the testator died; and therefore this will must be construed according to the law of England. (Story's Conflict of Laws, p. 676, ed. 1841). If you go to the ecclesiastical courts, they will say that it is or is not a will, according to the domicile at the time of death. (Price v. Dewhurst, 8 Sim. 279; 4 My. & Cr. 82). In Anstruther v. Chalmer, (2 Sim. 1), a will executed in Scotland, according to a Scotch form, by a person domiciled in England, was construed according to English rules. If a testator, domiciled in France, made a will, giving more away from his children than the French law allows, and then died domiciled in England, would not that will be good? [Vice-Chancellor.-That is not a question of construction: suppose a will made in Latin?] Then, again, from the terms of the will itself, all the other annuities are given in sterling money, and it is absurd to suppose that the testator meant to give this one alone in another currency. (Daniell v. Daniell, 6 Ves. 297; Wordsworth v. Wood, 4 My. & Cr. 646). The second question is, how long the annuity is to continue. This is not a mere naked gift of an annuity, which might, perhaps, merely be for the life of the donee. In Tweedale v. Tweedale, (10 Sim. 453), the gift of an annuity to A. was held to be the absolute gift of such a

sum as would produce that annuity; though on the appeal, in Blewitt v. Roberts, (10 Sim. 491; Cr. & Ph. 274), it was decided that it was an absolute gift only, where, as in the present case, the annuity was given out of a particular fund: here, in the latter part of the will, the annuity is given out of the residue. Stokes v. Heron (2 Dru. & W. 89; 12 Cl. & Fin. 161) is to the same effect. (Sugd. Law of Prop. 236). Rebinson v. Wood (4 Beav. 450) shews that there is no exception where the bequest is to children. (See Wilson v. Maddison, 2 You. & C. C. C. 372). You must hold this to be an absolute gift of the annuity, as no limit can be put to it; it cannot be contended that the annuity is for the life of the eldest son only; and that if he had died leaving a child, the child would have taken nothing; and if there had been several children, why should it be limited to the life of any one of them?

VICE-CHANCELLOR.-With respect to the first question, you will observe that he makes his will in this manner-he gives one clear annuity of 100%. per annum, and then he gives several. In the first he speaks of a charity of 1007. sterling, which is given to Catherine Griffiths; and in an instrument which revokes it, though in the will he called it a charity-in the codicil he calls it an annuity, and, therefore, he shews that he was speaking of what he calls an annuity. Then he gives another annuity of 1007. sterling. It does appear to me, that, in the face of the language of the will, where the party making it speaks of 1007., and then, speaking of precisely the same sort of thing, annexes the word "sterling," you must intend, that, by a difference in the language, he did intend a difference in substance. [Sanders v. Drake (2 Atk. 465) was cited.] Stuart and Hardy, for some of the defendants, on the question as to the duration of the annuity.-There is no gift of so much property as will produce an annuity in this case. Robinson v. Wood was decided before Blewitt v. Roberts and Stokes v. Heron; and, besides, in that case the word is "issue." In Stokes v. Heron, the testator gives all his property to produce an annuity. There is only a direction to pay to the mother. A more sensible construction would be, that the annuity is only for the minority of the child.

Speed, (Bethell, absent, with him), for parties in the same interest.

E. F. Smith, in reply.-The direction as to the mother is an informal mode of giving maintenance, and merely empowers the mother to give a release for the annuity during the minority of the child. From the amount of the testator's estate, it appears that the annuity of 1007. is of nearly the same value as the shares given to his other children. There is no reason to suppose that he meant this son's family to have less than the others.

The VICE-CHANCELLOR, after reading over the words of the will, said, that it had struck him during the argument, that the question was, whether those words did not necessarily shew that it was only a provision for the child during infancy; but he rather thought that the Court should put a more liberal construction. In this case there was a fund pointed out, and he thought the child became absolutely entitled to the fund at the death of the father, and the child would take it absolutely.

Declare that, according to the true construction of the will and codicils of the testator, the testator bequeathed an annuity of 1001. Jamaica currency to Edward Cookson Yates for his life, and, after his decease, a perpetual annuity of 1001. like currency to the infant plaintiff, the only child of the said Edward Cookson Yates; and that the infant plaintiff is entitled, out of the assets of the testator, to such a sum of 31. per Cent. Consols as will produce the said annuity. Refer it to the Master to take an account of the arrears of the annuity due to the infant

make a Decree against the others, but ordered the Cause to stand over, that the Assignees of the Bankrupt might be made Parties by supplemental Bill.

The bill was filed by the parties beneficially interested in the residuary estate of a deceased testator against the surviving executors and the administrator of a deceased executor, charging that a portion of the ascertained residue of the testator's estate had been misapplied by the executors, and praying that the defendants, or such of them as the Court should think fit, might be held responsible for the residuary estate; and that the same, when paid in, might be applied upon the trusts of the will. The bill also prayed the appointment of new trustees in the place of the defendants. From the answer of the surviving executors, it appeared that the sum of 9001., part of the residuary estate, had been left under the sole control of the deceased executor; and that, in consequence of his death insolvent, the same was not forthcoming. The remainder of the residuary estate appeared to be accounted for.

Sir John Romilly, S. G., (with whom was Batten), for the plaintiff, stated, that, after the cause was at issue, one of the defendants, the surviving executors, had become bankrupt, and asked for a decree against the other defendants. It was submitted, that, the breach of trust being clear, and the suit being, not for an administration of the estate, but merely to make the executors responsible for the loss of the 9007., the case was one to which the 32nd Order of August, 1841, applied. (Perry v. Knott, 5 Beav. 293; Kellaway v. Johnson, Id. 319; Ling v. Colman, 10 Beav. 370). By that Order an option was given to the plaintiff to sue either all, or some, or one only of the executors; and it was competent, therefore, for the plaintiff to waive the relief asked against the bankrupt defendant, and to take the same decree as he would be entitled to had he, in the first instance, elected to proceed against the defendants other than the bankrupt.

Wood and A. Gordon, for the defendants other than the bankrupt, insisted, that a decree could not be made till the assignees of the bankrupt had been made parties by supplemental bill. It had nowhere been laid down as a universal proposition, that, wherever a state of circumstances existed which constituted a breach of trust, if a loss were incurred, the cestui que trust could arbitrarily select one trustee, and charge him as for a breach of trust, whatever the nature of the complaint might be. (Shipton v. Rawlins, 4 Hare, 623). Had the plaintiff originally elected to proceed against the solvent defendants alone, they might possibly have established a case, shewing a reason why such a form of suit should not have been adopted. If there was a possibility of such defence being made, it would be unjust, at the hearing, after the plaintiff's case had been made and the defence put in, to say that the plaintiff might claim the benefit of the Order. was submitted, therefore, that, when once the plaintiff had elected to proceed in a particular way, he could not arbitrarily change the form of proceeding at the hearing.

The Solicitor-General, in reply.

It

Sir JAMES WIGRAM, V. C., after stating that he assumed, for the purposes of the observations he was about to make, that the case was one in which the plaintiff was not bound to proceed by an administration suit, said, that the executors appeared to have committed a breach of trust, for which they were jointly and severally liable; and that the 32nd Order of August, 1841, had, in such a state of circumstances, given the cestuis que trust, who had been injured by the breach of trust, an option to proceed either against all the executors, or against some or one of them. In the present case the plaintiff had exercised that option by filing a bill against all. If, at the hearing, the

plaintiff had desired arbitrarily to have the bill dismissed as against some or one of the defendants, and to take a decree against the others, such an application would have been refused. The Court, in such a case, would have said, "You have filed your bill against all; but, if you had originally elected to file your bill against some or one only, those against whom the bill was filed might have proved a case, to shew why they should not be so dealt with." Many cases admitting of such a defence might be suggested. In the principal case the suit had come before the Court for hearing; and, for anything that appeared upon the proceedings, there was no reason why a decree against all the defendants should not be made. It was said, however, by counsel, and admitted on all sides, that one of the parties had become bankrupt. That being the case, the common course was, not to require evidence of the fact, but to let the case stand over, to bring the assignees before the Court by supplemental bill. The plaintiff, however, resisted the adoption of this course, and insisted, that, as the bill might have been filed originally against some only of the defendants, he was certainly entitled to take a decree against the persons named as defendants other than the bankrupt. The Vice-Chancellor then observed, that he was not of that opinion, but that the cause must be dealt with in the usual way, by directing it to stand over, for the purpose of making the assignees of the bankrupt parties by supplemental bill.

COURT OF QUEEN'S BENCH.

TRIN. TERM, June 15; MICH. TERM, Nov. 27, 1848.
EXCHEQUER CHAMBER.

TRINITY VACATION, June 17, 1848.
BOWERS v. NIXON.

Declaration in Covenant upon an Indenture of Lease stated, that Plaintiff demised to Defendant a Farm for Ninety-nine Years, at a yearly Rent of 100l.; and also yielding and paying unto Plaintiff, upon the Days of Payment of the said yearly Rent first reserved, over and above the same Rent, a further yearly Rent or Sum, according to the Rate of 201. the Acre, of any grazing or mowing Land which Defendant should cause to be ploughed or used in Tillage without the Consent of Plaintiff; and also yielding and paying unto Plaintiff, upon the Days of Payment of the said yearly Rent first named, over and above the said Rent so reserved, according to the Rate of 201. the Acre of any of the Land which Defendant should underlet, or upon which he should sow Potatoes, or from which he should take more than Three Crops of Corn or Grain in any One Course of Tillage, or from which should be taken a second or other Crop of Wheat without making a clean Summer Fallow, &c., or from which should be taken a third Crop in any One Course of Tillage, without seeding down the same, &c. " The said several eventual or contingent Rents, if any such should become due, to be additional to the first-mentioned Rent, and to be paid and payable half-yearly, by equal Portions, and the first Payment thereof to become due and be made at that Day of Payment of the said first-mentioned Rent which should first or next happen after such eventual or contingent Rent should be incurred, and to continue payable from thenceforth during all the Residue of the Term thereby created." Sixth Breach, that Defendant, in Three successive Years and in One Course of Tillage, to wit, 1843, 1844, and 1845, took Three successive Crops of Corn, to wit, of Oats, and did not seed down, whereby he became liable to pay a certain other yearly Rent of 1251.; and although One halfyearly Payment of the said Rent had become due, viz. on the 25th March, 1845, yet Defendant had not paid the same. Seventh Breach, that, although Two other