writing under the party's hand in the correspondence, that took place, coupled with the subsequent fact of the surrender of the old lease; and it is directly contrary to the argument, that there must be a plain declaration of trust. There are many cases in opposition to that doctrine. In Bellamy v. Burrow, For. 97, there was not a declaration of trust, but a promise to make such declaration; and it was to be upon such covenants as are proper and reasonable. In Smith v. Wilkinson, before the Lord Chancellor last Term, the Defendant had taken a conveyance of a lease of the tithes of Bray: a trust was alleged by the representatives of Mr. Wear; and it was made out by a letter; in which Wilkinson stated, that he had made an estimate of Wear's effects; and he stated the tithes of Bray among them; and valued them; the Lord Chancellor said, it was impossible to hear the Defendant after that letter. It is singular, that the style of these letters should be uniform; and that he should never have discovered any thing of that intention imputed to him, and treated it as a favor, he meant in future to do. The Defendant's construction is inconsistent with the whole turn of the correspondence. He certainly meant some present interest. It is not necessary, that the trust should arise, when the lease was taken. A declaration of trust evidenced by these letters will do. They furnish evidence in writing, that there must have been some agreement. In Smith v. Wilkinson it was impossible to prove, that it was taken as a trust; for the conveyance was absolute but the letter at a subsequent period was sufficient. They ought to give evidence that it

*

did not commence at such period. I admit, Kent's in[706] terest as fitter does create an ambiguity upon the first letter; if that stood alone. Burdon had an idea, that the persons, with whom he was connected, were to have a benefit from it, after he should be dead. He was a perfect stranger to the other partners in the colliery; so much so that he did not himself apply to get Kent appointed fitter. If this is not a declaration of trust, it is a recognition of a trust; which is sufficient; and it is of a present existing trust; which is stronger than Bellamy v. Burrow; in which something more was to be done. His refusal to execute the deed in Rowntree's presence was only in ill humor, not from his considering himself not bound. His conduct with respect to the deed is to be taken coupled with the letters.

As to the trust by operation of law, the advance of money is evidence of the partnership; though the lease of the colliery may be taken in the name of one. Advances of money in equal shares and proportions upon a lease of land, where the lease is taken in the names of all, will turn the survivor into a trustee, and prevent survivorship: Lyster v. Dolland, ante, Vol. I. 434, 435 (1). This is stronger than the case of a farm put by Lord Thurlow there; for a

(1) See 2 Ves. 258; ante, Morley v. Bird, 628; post, Jackson v. Jackson, vol. vii. 535; ix. 591, and the note, 597; Aveling v. Knife, xix. 441.

colliery is not taken as land; but has been considered both by Lord Hardwicke and the present Lord Chancellor as a mere trade.

March 15th. MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. This cause was argued with great ability. I have taken a short time to consider it: but as this is a concern of great magnitude, it became necessary, I suppose, that it should be known who are entitled to it. After all the consideration I think it deserved, and after having endeavored to satisfy myself as to the real meaning of the entries in the books of this Company, which are not quite clear to a man not conversant in accounts of merchants, or of a banking-house, as this is, I have satisfied myself as to the result; which is sufficient to determine the cause, so far as the accounts are necessary to the decision of it.

The circumstance, that no notice was taken of any persons concerned with Burdon in that share of the colliery demised to him, nor any notice or intimation given in his life to the partners in the colliery by those of the Bank, that they were as to his share partners with him, is certainly in favor of the Defendants: but it is insisted, that though their names do not appear upon the lease, nor that they publicly even by inquiry ever busied * themselves [*707] about the colliery; yet in fact an agreement took place,

that he should be trustee as to his fourth for them and himself in equal shares; and they say, they can make it out satisfactorily to the Court, and within the Statute of Frauds; and that, not by any formal declaration of trust, but by letters under his hand signed by him; in which, as they allege, he admitted himself such trustee; and that under the true meaning of the Statute it is sufficient, if it appears in writing under the hand of a person having a right to declare himself a trustee; and that is equivalent to a formal declaration of trust. I am of that opinion certainly; as far as the question arises upon the Statute. It was contended for the Defendants, that there is great danger in taking a declaration of trust arising from letters loosely speaking of trusts, which might or might not be actually and definitively settled between the parties, with such expressions as "our," "your," &c. intimating some intention of a trust; that upon such grounds the Court may be called upon to execute the trust in a manner very different from that intended, and that it is absolutely necessary, that it should be clear from the declaration, what the nature of the trust is; or it cannot be executed. That I certainly admit. The question therefore is, whether sufficient appears to prove, that Burdon did admit and acknowledge himself a trustee; and whether the terms and conditions, upon which he was a trustee, sufficiently appear. I do not admit with the Defendants, that it is absolutely necessary, that he should have been a trustee from the first. It is not required by the Statute, that a trust should be created by a writing; and the words of the Statute are very particular in the clause (1) respecting declarations of trust. It does

(1) Sect. 7.

not by any means require, that all trusts shall be created only by writing; but that they shall be manifested and proved by writing; plainly meaning, that there should be evidence in writing, proving, there was such a trust. Therefore unquestionably it is not necessarily to be created by writing: but it must be evidenced by writing ; and then the statute is complied with; and indeed the great danger of parol declarations, against which the Statute was intended to guard, is entirely taken away. I admit, it must be proved in toto; not only that there was a trust, but what it was.

The transaction depends upon these letters of Burdon, declaring, as the Plaintiffs say, that he was a trustee; together with another

transaction, which is very material; that is, the preparation [708] of a deed by his direction, in order to have under his hand and in a more formal way a declaration of this trust. For the Plaintiffs and the Defendant Kent it is proved, that the directions for that purpose were given in August 1792; and the deed was fully prepared; and is given in evidence. Burdon is by that made to declare, not that in consideration of any new agreement then entered into and stipulations at that time made and to be performed, &c.; but the manner, in which this intention was carried into execution, was by the preparation of a deed, which reciting the lease declares, it was so granted, and an agreement for a farther lease made, to Burdon, Peareth, Wade, and Wren, as to Burdon's fourth share upon the following trusts; that he should pay to himself all such sums of money, as he had already expended, or might hereafter expend ; and also all such sums, as the Bank should owe him at his death; and subject thereto in trust for himself and his partners in the Bank. If this was a deed prepared in consideration of an agreement by that deed only to be carried into execution, the words are very extraordinary. "Whereas it is agreed," &c. "upon the following stipulations and covenants," would have been the natural way: but it is drawn otherwise; and I cannot see any item, that purports, that it was a new agreement then entered into, except a stipulation, that all sums, which had been paid, or should hereafter be paid by Burdon, should be repaid. Stress was laid upon this; that Burdon had advanced sums of money out of his own pocket; which, it is said, could not be, if they were partners with him; for then they would have been called upon.

Great stress was laid upon the word "our" in the first of these letters. It was insisted, that it must necessarily mean some subject in which both the writer, and the person to whom the letter was addressed, were concerned: but I shall not presume that. It might be consistent, if he was partner with any one else. The latter part of that letter does give countenance to the argument of the Plaintiffs: but to that there is this answer; that Kent was the fitter employed by them; and consequently might be considered as having a considerable interest in the colliery; and whenever letters are to raise a trust, I shall expect demonstration, that they relate to the subject. Therefore, if it rested upon this letter alone, though the

construction is strong from those phrases, yet, being desirous not to stir one step out of the Statute, I could not have so construed it.

**

As to the next letter, dated the 18th of February, how

[*709]

to interpret it to be any thing but a declaration, that he, and the person, to whom he writes, and some persons connected with him, have some interest in the colliery, I do not know. "We" would not apply to Kent as fitter. It was said, that by the words "we " and "your sakes Burdon might mean Kent only as fitter, and the other three partners and his own executors as partners in the colliery. That would be very strained: and it is barely possible to give it such a meaning. But it is not necessary to decide upon those two letters. So rigidly should I adhere to the Statute, that I should expect something more.

The next letter was written in March 1792. It is not insinuated that H. Cy. means any thing else than the colliery. It could mean nothing else. It is impossible to strain the words in this letter to mean the persons, with whom Burdon was concerned in the colliery, only. It might possibly mean, that the interest, he took in the success of this, was in Kent's interest, as the fitter: but in suggesting that one is straining against one's better judgment; for his interest, as fitter, was precarious; depending upon the other three partners.

The letter dated Sunday, two o'clock, is very material; as it relates to another transaction; which coupled with the other letters prove, not only that by the words “ "we," &c. he meant the Bank, but also, if necessary, that they were to take in equal shares. That letter introduces a transaction, proved by parol, that Burdon and Kent were engaged as joint owners of a ship, called the Tynemouth Castle, and that Burdon was very desirous to sell his share. He proposed, that the Bank should purchase it; and what he states as the consequence of their refusal is very strong. He does not say in this letter nor in the proposal, that if they do not take his share in the ship, they shall have no share in the Hebburn colliery. If it was all in his power at that time, it would have been a natural thing to say, if they did not take his share in the ship, they should have no share in the colliery.

The letter of the 10th of May was also relied on, as showing, that they were partners in the colliery. There is no insinuation in that letter, that their refusal to accede to his proposal should have any effect upon their situation as to the Hebburn colliery.

*Then comes a most important piece of evidence; [710] though it is not signed by the party: but it is evidenced under the authority of Tawney v. Crowther. If a man by irrefragible evidence proves himself a trustee, no doubt, a paper written in his own hand is evidence of the terms, if it is necessary to prove the terms. Observations were made upon this paper; that it had a very suspicious appearance; that it had no date, beginning, or ending; that there was no margin; and the paper appeared cut close to the writing: but luckily there are circumstances to prove, it is not mutilated. It is entitled "The Ship Tynemouth

Castle Debtor"; and at the bottom are the words "turn over"; all in his own hand; or I would not admit it. This shows, it is perfect. It is a computation of what he had expended upon the Tynemouth Castle; and he calculates, what he ought to receive from them. This is a most important paper; for it leaves no doubt as to his interest in the colliery and that of his partners in the Bank. It is said to amount to demonstration, that the real fact, he was pointing at, was that they were already partners in the colliery. He gives as a reason for wishing to sell it to them that this part of the ship and the colliery should go together. I profess, after considering this paper very fully, I cannot give any other interpretation to it than that contended for by the Plaintiffs; and if so, it is conclusive, that all the other expressions, he made use of, were applicable to the Bank; and that he was willing to sell his interest in the ship to them, because it ought to go to the owners of the colliery; and in this letter, though complaining of their refusal, and pressing them to take it, he does not threaten, that, if they do not, they shall have no share in the colliery: therefore it is a complete corroboration of the meaning imputed to the other letters; and clearly proves, that he did not then consider himself as having a right to refuse; which is one part of the case made by the Defendants, and attempted to be proved by the evidence of Rowntree.

By the letter dated the 28th of June, he means to say, the conduct of the Bank with respect to the ship would make some difference as to the money due from them to him. The threat is "or my money to be paid in at twelve months after my death." It appears upon the accounts, that calling it in would have been a very considerable distress to them. He was the great support of the house. The money due to him amounted to 30,000l.

[* 711]

*Thus closes the evidence under Burdon's hand. No more letters from him appear. Then comes the transaction of the orders given for preparing the declaration of trust. He was willing in consequence of the agreement, that the declaration should appear in a more formal way than by implication from letters. The deed does not state any agreement whatever, but the lease and the agreement for a farther lease; and proceeds to declare the trusts in the words, I have stated; which are very strong; for it was prepared by one of his executors. It is said very justly, what right had he to impose those terms? But it seems, that very thing did give rise to a remonstrance upon the part of the partners in the Bank against it, as going beyond what Burdon had a right to do; and a great deal arises upon the language of the letters exhibited by the Defendants, and proved by Rowntree to have been received by him from Kent. The end of Rowntree's letter of the 24th of September is very material; if any stress can be laid upon his evidence: not that I doubt it. He desires to be informed of Mr. Burdon's situation; "lest an accident should happen, and the parchment should be useless;" not lest they should lose the colliery. reasons with them to show, that they would run no risk in executing

He