to the Great Western Railway Company for the whole journey, is strong to show that that Company was to be so responsible. It is natural to suppose that if it was intended that the Great Western Railway Company was to be responsible for the carriage along its own line only, and to be agent to make another contract with another Company or Companies, for the rest of the transit, on behalf of the consignor, the reward for that carriage to be kept by the Great Western Company should be distinctly and expressly specified, and not left to form an undefined part of an entire sum paid down by the consignor. That seems to show that the Company was left to make its own bargains with all the forwarding Companies, receiving a certain sum from the consignor for the whole journey. That the Great Western Company would afterwards share that sum with those other Companies, makes no difference as to its own liability. It may, indeed, have been the intention of the Great Western Railway Company to contract to carry along its line only, but if that was so, it has not been expressed with sufficient clearness, and if it is important for that Company in future cases to limit its liability to its own line, the terms of the present receipt note should be altered.

On the whole, though I have felt considerable doubt in the course of this proceeding, I think the Judges forming the minority who have given their opinions to your Lordships are right, and that the judgment of the COURT below ought to be reversed.

LORD KINGSDOWN:

My Lords, I am not prepared to dissent from the opinions which have been expressed by my noble and learned friends, although I own I look upon the case as one of great doubt. If the question was, as one or two of the Judges in their opinions seem to consider, whether the case having been properly left to the jury, there was evidence upon which the jurors might find the verdict complained of, I should have had great difficulty in *saying that there was not. But the case seems to depend entirely on the construction to be put by the Court on a written contract; and as to that, although not without some hesitation, I acquiesce in the view which has been taken by my noble and learned friends.

Judgment of the Court of Exchequer Chamber
reversed.

1858.

July 19, 20, 22, 23, 30.

Lord CHELMSFORD,

L.C. Lord CRANWORTH.

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MONTEFIORE v. BROWNE (1).

(7 H. L. C. 241–272; S. C. 4 Jur. N. S. 1201.)

A. and B., father and son, executed deeds for the settlement of some of their family estates, and for payment of the debts of A. Certain estates were conveyed to trustees, with a power to sell, on the consent in writing of A. and B., or the survivor, and to apply the produce of the sale in payment of debts therein specified. A. was indebted to D., as trustee for an infirmary, and A. and B. had given joint and separate warrants of attorney to secure the debt. Separate judgments had been entered up against A. and against B. The amount of the sums thus due was stated in the deed. D. had some legal interest in the estates themselves. He was a party to the deed, and executed it:

Held, that this deed created a trust in favour of the infirmary of which he was a trustee.

In this deed there was a power of revocation to be exercised by A. and B.; A. died without exercising it:

Held, that the power of revocation was then at an end.

In the deed executed by A. and B., there was a conveyance to certain persons, with a power of sale, to be exercised with the consent, in writing, of A. and B., or the survivor of them. A. died without having concurred in any consent to a sale. B. afterwards borrowed money from an Insurance Company, the repayment of which was secured by mortgage of his estates, of which those which were the subject of the first deed formed part. In the mortgage, to which the creditor under the first deed was a party, and which fully recited that deed, there was a power of sale given to the mortgagee: Held, that this was a consent, in writing, sufficient to satisfy the words of the first deed.

A mortgage given by B. in 1832 to an Insurance Company, from which he had obtained a loan of money, recited a previous deed, dated in 1823, executed by A. and B., for the settlement of certain family estates, and for the payment of some of A.'s debts, and recited that in that deed a sum of 3,2007. was due to D., as trustee for an infirmary, on a judgment against A. and B., that that money, with interest, had been paid off, and that it was intended to enter satisfaction on that and all other judgments affecting the mortgaged lands. There were separate judgments, at the suit of D., against A. and against B., dated in 1810 and 1812, but a warrant of attorney given by D. in 1819, authorised satisfaction to be entered on the roll as to them. There was no judgment against them jointly for the sum stated in the mortgage. The mortgagee caused satisfaction to be entered on the roll as to the separate judgments of 1810 and 1812, but made no farther inquiries: Hold, that as the mortgage itself had recited a joint judgment for a specific sum, the mortgagee had been guilty of negligence in not looking farther into the matter, and must therefore be taken to have had a proper notice of the unsatisfied claim under the deed of 1823 (2).

IN 1810 the Right Honourable Denis Browne was a governor and trustee of the County of Mayo Infirmary, and in that capacity he advanced a sum of 2,2001. (of the then Irish currency) being the money of the infirmary, to Dominick Geoffrey Browne. To secure the repayment of this sum, with interest, a bond, in the penal sum of 4,400l. was given by Dominick Geoffrey Browne and Dominick Browne, his son, the latter of whom subsequently became Lord Oranmore. Separate judgments were, as of Trinity Term, 1810, entered up against these two obligors, in favour of Denis Browne, as trustee of the Mayo Infirmary. In 1811, Denis Browne advanced a farther sum of 1,000l.

(1) Priestley v. Ellis [1897] 1 Ch. 489, 66 L. J. Ch. 240, 76 L. T. 187.

(2) The English and Scottish Mercan

of the infirmary money to tile Investment Company, Limited v. Brunton [1892] 2 Q. B. 1, affirmed p. 700, 62 L. J. Q. B. 136, 67 L. T. 406.

".

BROWNE.

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Dominick G. Browne, and took his bond to secure the same MONTEFIORE in the penal sum of 2,000l., and a similar judgment, as of Easter Term, 1812, *was entered up on this bond. In 1815, Denis Browne advanced two sums of 1,600l. and 500l., also the money of the Mayo Infirmary, to Dominick G. Browne and Dominick Browne, on their joint and several bonds and warrants of attorney in the penal sums of 3,200l. and 1,000l. ; and in Trinity Term, 1815, separate judgments against Dominick Browne alone were entered up thereon. Shortly before 1819, Dominick G. Browne and his son, Dominick, were desirous of resettling the family estates, to effect which it was arranged that Denis Browne should execute warrants to declare the judgments of 1810 and 1812, satisfied, on Dominick Geoffrey Browne and his son, Dominick, executing to him, as trustee for the infirmary, a new bond (with a warrant of attorney to enter up judgment) in the penal sum of 6,400l. to secure 3,2001. Dominick G. Browne and his son, Dominick, accordingly, executed in favour of Denis Browne, for the sum of 6,400l., their joint and several bond, dated 5th February, 1819, together with a warrant of attorney to enter up judgment thereon, and Denis Browne, on the 20th April, 1819, executed warrants of attorney in their favour to declare satisfied the judgment of 1810 against both these persons, and the judgment of 1812, which had been obtained against Dominick G. Browne alone. The arrangements for the resettlement of the estates were not completed till 1823, when certain deeds were executed for that purpose. Two of these were indentures dated 24th of June of that year. The first was made between Denis Browne, of the first part, George Clendinning of the second part, Dominick Geoffrey Browne of the third part, Dominick Browne of the fourth part, various other persons and parties not necessary to be named, and George and Alexander Clendinning of the tenth part. By this indenture, Dominick G. and Dominick Browne, appointed certain lands called Coolaran, Lacka, Cahiralee, and Cahirtemore, in the county of Galway, to G. and A. Clendinning, and their heirs, upon trust that they should, as soon as conveniently might be, "with the consent in writing of Dominick G. Browne and Dominick Browne, or the survivor of them, sell the same," and hold the money on the trusts to be declared by the following indenture.

The other indenture, which was dated on the same day, after reciting the former deed, and likewise a limitation to Dominick Browne of a rent-charge of 900l. a year during the life of himself and his father, it was declared that G. and A. Clendinning should stand seised of the money raised by the sale of the

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BROWNE.

MONTEFIORE said lands on trust, in the first place, to pay the expenses of the sale, &c.; in the next place, raise a sum of 8,275l. Irish currency, and apply the same on such trusts as Dominick G. Browne and Dominick Browne should, by any deed, &c., in writing, with or without the power of revocation, appoint, and in default of such appointment, out of the said sum of 8,2754. pay and discharge the debts and legacies thereinafter mentioned, that is to say, "the sum of 3,2001. Irish currency, due to the Right Honourable Denis Browne, as trustee for the Mayo Infirmary, on a judgment against the said Dominick Geoffrey Browne and Dominick Browne," certain legacies bequeathed in the part recited will of Peter Lynch, certain other sums of money, some of which (their amounts were not specified) were described as borrowed by Dominick Geoffrey Browne and Dominick Browne for the sole benefit of the latter, and pay the surplus, if any, of the 8,275l. unto Dominick Browne, his heirs, &c. Till the sale the trustees were to apply the rents on such trusts as Dominick Geoffrey and Dominick Browne, should by deed appoint, and in default of such appointment keep down the interest due for the principal sum of 3,2001., and for the legacies of Mr. Lynch, and pay the remainder to Dominick Geoffrey Browne for his use for life, and after his death to Dominick Browne for his use. If the sale should be made during their joint lives, and should produce more than the principal of the 3,2001., and the legacies under Mr. Lynch's will, then a deduction was to be made from the amount of Dominick Browne's rent-charge of 9001. a year in proportions therein specified. And it was declared, that Dominick Geoffrey Browne, as between himself and his son, should keep down the interest on the unspecified debts. There was a general power of revocation and new appointment reserved to Dominick Geoffrey and Dominick Browne, "during their joint lives, by any writing sealed and delivered by them and attested by two witnesses."

[*245]

Both these deeds were executed by Denis Browne.

Dominick Geoffrey Browne died in May, 1826, without having exercised his power of revocation and new appointment. Denis Browne died in the year 1827, without having entered up judgment on the bond of February, 1819. He had previously made a will, by which the respondent was appointed his executor, and the will was proved by the respondent.

In 1832, Dominick Browne applied to the directors of the Alliance Insurance Company to lend him 56,000l., on the security of a mortgage (amongst other lands) of those comprised in the indenture of 1823, and the application having been

v. BROWNE.

[*246]

granted, these lands (with the others) were, by a deed of mort- MONTEFIORE gage, dated 26th March, 1832, conveyed to the appellant and other persons representing the Alliance Company. The mortgage deed (to which, among other persons, the two Clendinnings were parties) recited the deeds of 1823, and described the trust to be to sell *and then "to pay and discharge, with or out of the said sum of 8,275l., the several sums of money therein and hereinafter mentioned; (that is to say), the sum of 3,200l. to the said Denis Browne, as the trustee of the Mayo Infirmary, on a judgment against the said Dominick Geoffrey Browne and Dominick Browne," the legacies bequeathed by Lynch, &c. It then recited that no sale had been made, that Dominick Geoffrey Browne had died without having concurred with Dominick Browne in executing their joint power of appointment over the 8,2751., that the said sum of 3,2001. (but this recital was untrue), and all interest thereon had been paid by Dominick Browne, and that "satisfaction is intended to be forthwith entered up on the record of the said judgments for securing the same, and all other judgments affecting the said lands, &c." The mortgage contained a power to the mortgagees to sell if, within six months after calling in the debt, it should not be satisfied with all interest. The representatives of the Alliance Company, on the 31st May, 1832, searched the roll of judgments, and procured satisfaction to be entered upon the roll of the judgments of 1810 and 1812, under the warrants of attorney granted for that purpose by Denis Browne, on the 20th April, 1819. About the time of the execution of the mortgage to the Alliance Company, Dominick Browne paid to the respondent, who was then resident abroad, the amount due on the judgments of 1815, and the respondent thereon executed warrants of attorney to enter satisfaction on those judgments.

In Michaelmas Term, 1838, the governors of the Mayo Infirmary entered up judgments on the bond of the 5th February, 1819, against Dominick Browne (who had, in 1836, become Lord Oranmore), the surviving obligor in the bond, and against the executors of the other obligor. On the 26th of March, 1846, the respondent, Peter Browne (who was still abroad) assigned this judgment to Thomas V. Clendinning, the then treasurer of the infirmary, in trust for that institution.

On the 1st August, 1839, Lord Oranmore, to cover the interest then due to the infirmary, which amounted to the sum of 1,2177. 2s. 11d., executed to T. V. Clendinning, who had then become trustee for the infirmary, a bond with a warrant of attorney, to enter up judgment thereon, in the sum of 2,434l. 5s. 10d., and, as of Trinity Term, 1839, judgment was

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