not required to sue as executor. If the If the bank had notice of any equities affecting the defendant in his control over the money the case might have been different, but the mere fact that he is exe cutor does not affect the set-off.

[BLACKBURN, J.-If the legatees had interfered, the bank might have had an equity as against the set-off.]

Yes, but here none of the legatees had interfered or could have interfered, as the defendant had amply provided for their claims. In Forster v. Wilson (7), the defendants, who had overdrawn their account, were held entitled on the bankruptcy of the bank to set off its notes of which they were holders, but not notes which they held only as trustees for others. They cited Storey's Equity Jurisprudence, s. 1436, Bodenham v. Hoskyns (8).

COCKBURN, C.J.-I am of opinion that this rule must be made absolute. The plaintiff, as trustee of Harvey & Hudsons' bank at Norwich, who have become bankrupts, brings this action to recover the balance due from the defendant upon three accounts which he kept with the bank in his private and personal capacity, and there can be no doubt that upon the whole of these accounts there was a balance against him. The question is whether the defendant can set off against this demand a balance which stands to his credit upon an account opened by him as executor of a person named Alexander. We are of opinion that he is entitled to the set-off. There can be no doubt that in point of law the estate, whether in effects or money, of the deceased testatrix passed to the defendant as her executor; and although it may be for his convenience to open an account in his own name as executor inst ad of in his own name as a private customer, the only effect of that is, I apprehend, to affect the bank with the knowledge of the character in which he holds the money. Therefore, if there were persons beneficially interested in that fund the bank might be liable to be restrained,

(7) 12 Mee. & W. 191; s. c. 13 Law J. Rep. (x.s.) Exch. 209.

(8) De Gex, M. & G. 903; s. c. 21 Law J. Rep. (N.S.) Chanc. 864.

by proceedings in equity, from dealing with the fund as if it were one in which their customer was beneficially interested without reference to any trust or beneficial interest to which it was subject. But as between the bank and the defendant, I take it that the position of his counsel is perfectly impregnable, that the customer may recover the money so placed in their hands, although it was in form an executorship account, without any reference to his character as executor. But if there were any partics beneficially interested it may be that the bank would be entitled to say, that inasmuch as they would be restrained by a court of equity from dealing with the fund as though it belonged to their cus tomer absolutely and exclusively, that therefore he would not be entitled to set that balance off against the private debt which he owed to them in their personal capacity. It might very well be that if in the present case there had been any persons so beneficially interested the bank might have ground for denying the right of the defendant to set off the debt due to him from the bank on this executorship account; but it appears perfectly clear, that upon the statement of the executorship accounts there is no one besides the defendant who can have, in any possible view of the case, either at law or in equity, any claim upon this fund. The estate of the testatrix is sufficient to satisfy all the claims on the executor under the will, and to leave a large residuary fund in his hands. Therefore, we must take it as a clear and admitted fact that the defendant was entitled to the fund upon the executorship account as as the re. siduary legatee under the will. He had other means of satisfying, and would have satisfied, all that anybody had a right to claim under the will. This fund, therefore, is in which he,

and he alone, was beneficially interested, and there is no equity whatever against him in respect of it. It stood simply as money of the deceased which passed into the hands of the executor and had become the property of him as an indi. vidual. It seems to me, therefore, that the bank would have had no answer to an action brought by the defendant to

recover this fund, which, as the executor of the deceased, had become his, subject to the equitable rights of the legatees or other persons under the will. It follows that he can set it off against the claim made by them upon the other accounts which he had opened with them; and that as he would have been entitled to recover this sum from the bank if they had not become bankrupt so he is entitled to set it off against the claim made by the trustee in bankruptcy against him.

BLACKBURN, J.-I am of the same opinion. As the question is between the trustee in bankruptcy and another person, it must depend upon what the facts were at the time of the bankruptcy. It appears that at that time Mr. Finch, the defendant, had an account with the bank, or rather several accounts, which, for convenience, he had called by different names, and a debt was owing by him to the bank upon those three accounts, being the balance of the whole three taken together, independently of any question of set-off and mutual credit between them. Now, that being the case, several months before the bankruptcy took place the defendant became executor of a Mrs. Alexander. At her death Mrs. Alexander had in the bank a balance of 6541. 2s. 9d. owing to her. Finch then called on the bank to open an account with him, which is headed, "Executor of the late Mrs. Alexander in account with Messrs. Harvey & Hudsons-Mr. Jacob Finch." The first item of the account was that this balance was transferred to the credit of Finch from the testator's account, which was now closed. That was to all intents and purposes a payment of the debt which they owed to the testatrix, and a fresh loan of 6541. by Finch to the bank. That account was opened in his own name, that of Jacob Finch, and if that account had been overdrawn an action would have lain against Finch, not as executor, but against him personally. It was a personal contract between him and the bank. This account was operated upon during the seven months from the date of the transfer till the bankruptcy by the defendant paying in sums amounting to 1051. on one side, and drawing

out on the other more than 2001., so that the balance on that account at the time the bankruptcy took place was 5471. 4s. 4d. Now the fact that the defendant had opened it in the books as an executor's account did not at all prevent it being his private account, and the amount of it a debt, as money lent by him to them. But it did operate as notice to them, that the account was not his unlimited property, but money which belonged to the estate which he was administering as executor, so that there might be equitable claims upon it. The bank would have been bound by an equity which did exist, of which they had notice at the time the bank became bankrupt. Supposing the bankruptcy had not intervened, and the bank had continued sui juris, if they had sucd the defendant for the balance on the three private accounts, there would have been at law a complete answer on his part. I do not know that it would have been necessary to have recourse to the statutory set-off, because, as there were four different accounts opened by one and the same person, with one and the same bank, the facts would shew that, striking the balance upon the whole of them, there was at law no debt due from Finch to the bank. But I think it is clear that if the bank had sued Finch, and he had pleaded that the 5471. ought to be applied for his benefit, and that the bank ought to pay themselves out of it, or if the bank had endeavoured to pay themselves out of it, which would be the more likely case in the possible event of Mr. Finch being insolvent, then I take it, in either case, any person who had a beneficial interest in the testatrix's estate might have intervened and said, "The bank had notice that this was a trust fund, I have a right to call upon a court of equity to interfere to prevent my money being taken to pay Mr. Finch's private debt;" and, as far as his interest went, but no further, I think he would have had a right to say this. In the case of Ex parte Kingston (3), a separate account was opened by a county treasurer under the head of "Police Account," and the balance upon that stood at about 2,6097.

in his favour at the time he became bankrupt. It was proved that he was indebted to the county on this police account to an amount somewhat less than the balance standing to his credit on the police account. The order of the Lords Justices was, that there being notice that this account was a police account, there was notice that the county had a beneficial interest; and it was against equity to let the bank pay off the private debt of the treasurer with county money. The decision, therefore, was, though this is not quite clear from the report, that as far as the beneficial interest was not in the bankrupt, the people in whom the beneficial interest really was, viz., the county, had an equity to interpose and prevent a set-off; but as regards the surplus there was no such equity, and the bank had a right to take the surplus. The same would be the case here. Here, at the time of the bankruptcy, the personal estate of the testator amounted to about like 6,0007., and the whole of the outstanding matters not yet settled were a legacy of 8001. and an annuity of 1001. a year; and the funds in the hands of the defendant were sufficient to meet these charges and leave 1,9001. Consequently the defendant, who was residuary legatee, really had a surplus beneficial interest, a very considerable one, after he had provided for both these bequests. It is quite true that the legatee and the annuitant both had an equitable lien over this money in the bank as well as over the other assets which were not in the bank. I am inclined to think that there would be an equity on the part of the defendant to compel the legatees who had a lien over both of those funds to pay themselves out of the assets as to which there were no proceedings-and to leave the rest untouched. Whether there was such an equity or not to compel them to do it, it is perfectly plain it would be greatly for their benefit to be paid in full, instead of having a mere claim to so many shillings in the pound as dividend. Then, if this be so, the amount that remained in the bank was the property, in equity, of the defendant, Mr. Finch; and if each party had remained sui juris,

there would be no equity to prevent his relying upon the legal right he had to consider the different accounts as part of one debt, and, so to say, he was not indebted at all. Or possibly the way in which it would shape itself would be to rely upon the Statutes of Set-off, and to say these are cross debts to be set one against the other, with no equity to interfere with the defendant's legal interest. Then comes the question whether the fact of the bankruptcy having intervened makes a difference. The rule of mutual credit, in my opinion, is not at all dependent upon the Statute of Set-off. There is a learned account of it in Mr. Christian's Book on Bankruptcy (vol. 1, pp. 499, 500, 2nd edit.), in which he makes out that as early as the time of Elizabeth this rule. was adopted, and where an order was made under the statute of James I., assigning a debt to assignees, an account would be previously stated. Mr. Christian cites two cases before the Revolution, and before there had ever been a Statute of Set-off, to shew that at that time that most equitable principle was adopted that the cross accounts should be set off one against the other, and that the balance only should be proved. This was enacted in the statute of 4 Anne, c. 17, s. 11, was continued afterwards in other statutes, and is continued now. It existed long before there was a Statute of Set-off at all. The principle was stated in Forster v. Wilson (7), that the Court in settling the debts of a bankrupt would take into account equitable claims, equity as well as law. It would be positively most unjust and quite contrary to law to say that the cross debts which, though legally due between the same parties, in truth belonged to different persons, might be set off one against the other. And though it is true that a person who has got a beneficial interest and has not yet given it over before bankruptcy, could not afterwards. give it over, yet I cannot think that the doctrine of equitable lien could be carried to such a monstrous conclusion as that where a person has an equitable lien over a particular fund and does not in the slightest degree benefit or lose by the fund being paid over to another, and that other who has got the legal right will

have the whole benefit or the whole loss according as his right is made available or not, so that he is really the person beneficially interested in the fund, that then the existence of the equitable lien should interfere to prevent his being able to set off the fund against a debt of his own. The cases which have been referred to do not seem to me authorities to this extent, and it seems to me that it would be clearly against principle. Therefore I come to the conclusion that the defendant was fully entitled to bring this money into the account with the bank, when the balance would have been found in his favour. The defendant, therefore, ought to have the verdict, and the rule must be made absolute.

MELLOR, J.-I am entirely of the same opinion. I think I am entitled, upon the evidence, to find as a fact that that state of things which it is said would now exist and would now appear if the accounts were taken, did in fact exist at the time of the bankruptcy, and that the defendant had a beneficial interest in the assets to the extent of 1,9001. at that time. The estate being of the value of 6,000l., I think that he was entitled beneficially to the money in the bank. That he was so in law there can be no doubt, because he was entitled in law to sue for it in his own name, the legal title being in him. Therefore, as he was both legally and beneficially interested. he was entitled to say, "I have a claim against you, although it is described as money due to me as executor; I have a set-off against the balance on the three separate accounts which you have against me." On these grounds I am of opinion that the verdict ought to have been for the defendant, and that the rule to enter the verdict for the defendant must be made absolute.

Rule absolute.

Attorneys-G. T. Hudson, Matthews & Co., agents for Coaks & Rackham, Norwich, for plaintiff; Whites, Renard, & Floyd, agents for Emerson & Sparrow, Norwich, for defendant.

1871. WEBLEY (appellant) v. WOOLLEY Nov. 8. f (respondent).

Gunpowder Act, 23 & 24 Vict. c. 139. s. 6-Keeping Cartridges without LicenseDealer but not Manufacturer.

By 23 & 24 Vict. c. 139. s. 6, "The following regulations shall be observed with regard to the manufacture of loaded percussion caps, and the manufacture and keeping of ammunition, fireworks, fulminating mercury, or any other preparation or composition of an explosive nature-no such articles aforesaid, except percussion caps, exceeding the respective quantities hereinafter mentioned, and set opposite to the descriptions of the respective articles (that is to say), ammunition containing five pounds of gunpowder-shall be kept in any place not licensed for that purpose.'

By s. 7, "all loaded percussion caps made, and all ammunition, fireworks, fulminating mercury, &c., made or kept in any place, where, under the Act, it is not lawful to make percussion caps, or to make or (as the case may be) keep ammunition, &c., and any quantities of ammunition kept in any place where under the Act it may be lawful to keep such ammunition, &c., exceeding the quantity which may be lawfully kept there, shall be forfeited."

The appellant, a gun and pistol manufucturer and a dealer in cartridges, which he retailed to customers, but not otherwise a manufacturer of the articles specified in 8. 6, kept on his premises without a license 50,400 loaded cartridges, which he had purchased from a manufacturer, and which severally contained small quantities of gunpowder, varying from six to nineteen grains each, and in the whole containing upwards of fifty pounds :-Held, that he was not liable to be convicted under s. 6, which applied only to the keeping in connection with the manufacture of ammunition, and not to the case of a mere dealer purchasing ammunition from the manufacturer.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 38.]

By 13 Geo. 2. c. xxix. lands held by the Foundling Hospital are not to be rated at any higher value than they were rated in 1739. By 34 Geo. 3. c. xcvi., the hospital is to be rated to paving and other rates under the Act according to a particular valuation. By the Valuation (Metropolis) Act, 1869, s. 45, the valuation list for the time being in force shall be deemed to have been duly made in accordance with this Act and the Acts incorporated herewith, and shall for all or any of the purposes in this section mentioned be conclusive evidence of the gross value and of the rateable value of the several hereditaments included therein for the purpose of rates, which are afterwards specified (including the poor's rate, county rate, consolidated rate, &c.). By s. 51, the valuation list is to be according to a scheduled form which contains a statement of the gross and of the rateable value of the property; and by s. 54, nothing contained in the Act or Acts incorporated therewith shall effect any exemption or deduction from, or allowance out of any rate or tax whatever, or any privilege of or provision for being rated or taxed on any exceptional principle of valuation.

The assessment committee in preparing a valuation list for the parish within which land belonging to the hospital was situate assessed this land according to its true gross and rateable value:-Held, that the assessment was right, though when a rate was made the hospital would be entitled to the exceptional principles of valuation preserved to it by s. 54 of the Valuation (Metropolis) Act.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. p. 41.]

NEW SERIES, 41.-Q.B.

He at

The respondent was owner and occupier of premises consisting of a yard, building, and railway arches, in a metropolitan parish. These premises abutted upon a highway consisting of a foot pavement and roadway, and had a gateway opening on to the pavement. For sixty years and upwards, whenever the occupier of premises abutting on the footway wished to have access to them across the footway for carts, &c., it was the practice for him to apply to the highway board, or vestry, for permission to construct the necessary way, which was usually granted. The respondent after taking possession of his premises began to use them for the deposit of heavy machinery, the only use, owing to the character of the neighbourhood, to which they could be put. first conveyed the machinery across the causeway by means of rollers and levers, but this being objected to as an obstruction of the thoroughfare, he applied to the vestry for leave to take up the pavement and make a carriage way. This leave was refused, and he then conveyed it to and from his premises in waggons across the flagged footway. The weight of the machinery in the waggons crushed the paving stones and obstructed the way, and the appellants took out a summons against him under 5 & 6 Will. 4. c. 50. s. 72, for a nuisance. The magistrate dismissed the summons, finding as a fact that "the premises could not be reasonably enjoyed without access over the existing footway, and that the rights of ownership and those of the public might be jointly exercised consistently with the general welfare" Held, upon a case raising the question whether the magistrate was bound to convict, that the respondent was entitled to judgment, as the owner of land, who dedicates part of it as a public way, may enjoy all rights not inconsistent with the dedication, and that the respondent did not appear to have exceeded these rights.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 72.]

N