cate was described as "of Weymouth." And on the 15th of March 1864 the plaintiff discovered that the defendant was practising as an attorney and solicitor at Weymouth, and had taken a house in Weymouth, on the door of which were placed the words, “Mr. Woodward, solicitor." The plaintiff filed his bill on the 4th of May 1864. Mr. Giffard and Mr. Bedwell, for the plaintiff, submitted that the jurisdiction of the Court of equity was not excluded by the provision in the bond that a specified sum should be paid as liquidated damages Coles v. Sims, 5 De Gex, M. & G. 1; s. c. 23 Law J. Rep. (N.S.) Chanc. 258. French v. Macale, 2 Dru. & W. 269. There was no agreement nor any intention on the part of the plaintiff to dispose of his business to the defendant; the whole scope and object of the bond was to prevent the defendant practising so near Weymouth as to interfere with the plaintiff's business, and it was a case for the interference of a Court of equity. Mr. Rolt and Mr. Dickinson, for the defendant, contended that the plaintiff was not entitled to any relief in this Court; he must stand or fall by his bond. There was no case in which this Court had interfered by way of injunction under a mere bond to pay liquidated damages, where there was not also the protection of a covenant Shackle v. Baker, 14 Ves. 468. The plaintiff was restricted to his remedy at law. If this Court did interfere, it would only give the exact amount of relief neces sary Woodward v. Gyles, 2 Vern. 119. Besides, the plaintiff had been guilty of laches; after he knew that the defendant was practising as a solicitor for five weeks at least he delayed filing his bill; he probably was aware of the defendant's intentions for a longer period from seeing the name on the defendant's door. In such a case as the present this delay would disentitle the plaintiff to an injunction. WOOD, V.C., said, that this was entirely a question of agreement between the parties. Was this bond an agreement that the defendant should not practise within the specified distance, or was it an agreement that he might practise there on payment of 1,000l. as liquidated damages? Solicitors were obliged to repose very great confidence in their managing clerks; and no doubt the clerks had in many instances the power of causing very serious injury to the solicitor's business, and it was unreasonable to expect that such a managing clerk should be permitted, upon payment of a given sum, to carry off his master's business, by starting as a solicitor himself in the immediate neighbourhood. The words of the bond were quite sufficient to shew that in the present case such was not the intention of the parties. The bond was in a penal sum with a condition, but the recited agreement was to give a bond not to practise; there was nothing to shew that the plaintiff intended to sell any part of his business. The whole object of the agreement appeared to be, that the defendant should not interfere with the plaintiff's business by practising as a solicitor in the same neighbourhood; it would be a strange construction of the bond to hold that because it contained no express covenant not to practise, therefore it did not prevent the defendant from practising, but only prescribed the price to be paid for the privilege. The substance of the arrangement between the parties was, that the defendant should not practise, and the plaintiff preferred that the arrangement should be carried out by means of a bond. As to the alleged delay on the plaintiff's part, he had filed the bill within five weeks from the time when he first found out what the defendant was doing; it could not be said that that was sufficient to deprive the plaintiff of his right to relief; and as to the defendant's name being on his door-plate, it was no part of the plaintiff's duty to watch the defendant's door. Why was the plaintiff to assume that the defendant intended to act dishonourably? His Honour therefore granted an injunction in the terms of the prayer, the plaintiff undertaking not to sue the defendant on the bond. LORDS JUSTICES. Re WAY'S TRUSTS. Nov. 18. Voluntary Assignment of Equitable Reversion-Notice. A feme sole made a voluntary assignment, by deed, of her reversionary interest in stock held under a settlement. The deed was irrevocable. It was duly executed by herself, and attested, but was not communicated either to the trustees of the paramount settlement, or to the trustees of the deed itself, or to any of the parties who were to take under it. The lady subsequently destroyed the deed, and made a different disposition of the stock by a codicil to her will: -Held, by the Master of the Rolls, that, the trust fund not having been legally transferred, nor the trust communicated to and recognized by the trustees of the original settlement, the assignment was incomplete and ineffectual. But, on appeal, held, by the Lords Justices, reversing the decision of the Master of the Rolls, that, the assignor having done all that she could for transferring her interest, the assignment was complete and effectual, notwithstanding the absence of notice. Held also, there being no evidence before the Court distinctly impeaching the deed, that it must be treated as valid; but the solicitor who prepared it having made an affidavit and omitted to state whether he explained to the settlor the irrevocable nature of the assignment, leave was given to file a bill (within a fortnight) to set aside the deed (1). This was an appeal petition in the matter of the trusts of a settlement, dated the 18th of November 1820, and of the Trustee Relief Act (10 & 11 Vict. c. 96), presented to obtain the payment out of Court of a sum of 2,5671. Os. 6d., 31. per cent. reduced annuities. Dame Catherine Cholmeley, widow of Sir Montague Cholmeley, by an indenture dated the 11th of May 1852, and expressed to be made between Lady Cholmeley of the first part, Henry Daniel Cholmeley and Georgiana his wife (since dead), and Holroyd Fitzwilliam Way and Charlotte Way of the second part, and whereby it was recited that Lady Cholmeley was absolutely entitled to a sum of 2,500l. Old South Sea Annuities, then (1) No bill was filed. NEW SERIES, 34.-CHANC. standing in the names of Thomas Smith and John Way, the trustees of an indenture of settlement, dated the 18th of November 1820, (but subject, as to the income of the whole sum, to the life interest of Susannah Mary Way, and as to two equal undivided fourth parts of the income, to the life interests of Anne Frances Way and Charlotte Way respectively, determinable upon their respective marriages) assigned the 2,500l. Old South Sea Annuities so standing in trust to Henry Daniel Cholmeley, Georgiana Cholmeley, Holroyd Fitzwilliam Way and Charlotte Way, their executors, administrators and assigns, to hold, subject to the life interests therein of Susannah Mary Way, Ann Frances Way, and Charlotte Way, upon trust to pay to and divide the income among the daughters of Lady Cholmeley's brother, the late George Way, by Susannah Mary Way, and the survivors or survivor of them as therein provided. And upon trust from and after the decease of the survivor of such daughters of George Way, absolutely to assign and transfer the principal trust monies, stocks and securities unto the owner for the time being of Denham Place, and to the rector for the time being of Denham, upon trust to apply the income for apprenticing children belonging to Denham parish, and in purchasing clothing to be given to poor men and women. This indenture was voluntary. It contained no power of revocation, but there was no evidence whether or not this fact was called to Lady Cholmeley's attention by the solicitor, Mr. Thomas Sismey, who prepared it, and who made an affidavit in this matter. It was sealed and delivered by Lady Cholmeley in the presence only of Mr. Thomas Sismey, who was also the solicitor to the trustees of the settlement of the 18th of November 1820. Mr. Sismey attested her execution of it; but Lady Cholmeley retained it in her own possession, and it was never executed by any party named in it, excepting herself; nor was any notice of it given by her to the trustees of the settlement of the 18th of November 1820, nor to any of the persons nominated by her as trustees of the indenture, or of the charity created by it, nor to the daughters of George and Susannah Mary Way. It appeared from an affidavit made in this matter by Mr. Sismey, that Lady Cholmeley in H formed him shortly before her death that she had destroyed the indenture, under the impression that she would thus be left at liberty to dispose by will of the 2,500l., and that Mr. Sismey thereupon stated to her that the instrument, though so destroyed by her, remained in force. Lady Cholmeley did in effect, by a codicil to her will, affect to dispose, without making any reference to the indenture of the 11th of May 1852, of the 2,500l., which was then represented by a sum of 2,7167. 168. 6d., reduced 31. per cent. annuities, standing in the names of the same Thomas Smith and John Way. The will, which was made subsequently to the death of Charlotte Way, was dated the 2nd of March 1857; and by it Henry Daniel Cholmeley, who was one of the trustees named in the indenture of the 11th of May 1852, and Albert Way, were appointed executors. No mention was made in the will of the indenture, or of the sum thereby settled, but by a codicil of even date with the will, and which was entirely silent respecting the indenture, Lady Cholmeley, after reciting that she was entitled to the sum of 2,7167. 168. 6d., 3l. per cent. reduced annuities (formerly 2,500l. Old South Sea Annuities), standing in the names of Thomas Smith and John Way, gave and bequeathed the same, and all the stocks, funds and securities, in which it might for the time. being be invested (subject to the life interest therein of the said Susannah Mary Way, and of such life interest as Anne Frances Way had therein), to all the children of her late brother George Way who should be living at her decease, to be divided between them in equal shares. Anne Frances Way died in July 1860, and Susannah Mary Way in April 1863. Upon the death of Susannah Mary Way, who was the surviving tenant for life of the 2,7167. 168. 6d., Thomas Smith and John Way, the trustees of the settlement of the 18th of November 1820, having been informed, but by whom did not appear, respecting the indenture of the 11th of May 1852, requested Henry Daniel Cholmeley and Holroyd Fitzwilliam Way, as the surviving trustees of the indenture of the 11th of May 1852, to accept a transfer into their names of the trust fund; but the latter declined to accept the trusts of that deed. Lady Cholmeley herself died on the 2nd of February 1864; and her will and codicil were duly proved by Henry Daniel Cholmeley alone. On the 22nd of April 1864 Thomas Smith and John Way transferred into court 2,5671. Os. 6d., 31. per cent. reduced annuities, the sum which remained, after defraying certain expenses, out of the 2,7167. 16s. 6d. Seven children of George Way, by Susannah Mary his wife, survived Lady Cholmeley, and they, with the husband of one of them, presented a petition praying a declaration that an effectual disposition was made, as to the fund in court, by the codicil; or, if the Court should be of opinion that Lady Cholmeley intended the indenture of the 11th of May 1852 to take effect as a deed immediately on its execution, and that she did not by subsequently destroying it revoke the trusts thereof, then that the income of the funds might be directed to be paid in accordance with the trusts of that indenture. The petition was heard, and a declaration made on it by the Master of the Rolls, on the 7th of July 1864, to the effect that the indenture of the 11th of May 1852 was ineffectual to pass any interest without some act further on the part of Lady Cholmeley. The present appeal was brought by the Attorney General, who had been. made a respondent to the said petition as representing the charity. The Attorney General and Mr. T. H. Terrell, for the appellant.-A voluntary deed, though retained by the donor, is not therefore the less operative. The assignment is complete as soon as the donor has done all acts within his own immediate power. In the judgment in the Court below it was erroneously assumed that a deed of this description is incomplete till the settlor has given notice, or, at any rate, made some communication to the original trustees. It is the business of the assignee, not of the assignor, to inform the trustees respecting the settlement; and it is enough if this is done at any time before the fund has been dealt with: Loveridge v. Cooper, 3 Russ. 30, 58; s. c. 2 Law J. Rep. Chanc. 75. Fortescue v. Barnett, 3 Myl. & K. 36; s. c. 2 Law J. Rep. (N.S.) Chanc. 106. Fletcher v. Fletcher, 4 Hare, 67; s. c. 14 Law J. Rep. (N.s.) Chanc. 66. Kekewich v. Manning, 1 De Gex, M. & G. 176; s. c. 21 Law J. Rep. (N.S.) Chanc. 577. Meek v. Kettlewell (1) is not in point. That was a case of an assignment, not of an actual equitable interest, which passes at once, but of a mere possibility, and till the interest had come into existence it could have made no difference in that case whether or no notice had been given. As then the fact of notice or no notice makes no difference as to the completeness of a settlement like that now in question, and is of importance merely as to questions of priority of charge, the present case must be governed by the authority of Kekewich v. Manning, with the principle of which the decision of the Master of the Rolls in the present case is entirely at variance, as also were his decisions in two other cases subsequent to Kekewich v. Manning, viz. Bridge v. Bridge, 16 Beav. 315; s. c. 22 Law J. Rep. (N.S.) Chanc. 189. Beech v. Keep, 18 Beav. 285; s. c. 23 Law J. Rep. (N.s.) Chanc. 539. Mr. Hobhouse and Mr. W. W. Karslake, for the respondents.-The intention governs in all cases of voluntary settlements; and the question always is, whether the facts shew an intention on the donor's part to regard the transaction as incomplete, as then the Court will hold it null Naldred v. Gilham, 1 P. Wms. 577. Cotton v. King, 2 P. Wms. 358. Phillipson v. Kerry, 32 Beav. 628. That a donor has never parted with the deed, and that he has destroyed it, are circumstances strongly evidencing such an intention Uniacke v. Giles, 2 Moll. 257. Cecil v. Butcher, 2 J. & W. 565. The non-communication of the deed is also in favour of such an intention. All questions whether notice must be given of such (1) 1 Hare, 464; s. c. 11 Law J. Rep. (N.S.) Chanc. 293: on appeal, 1 Ph. 342; s. c. 13 Law J. Rep. (N.S.) Chanc. 28. an instrument were carefully left open in Kekewich v. Manning; and so also in- Edwards v. Jones, 1 Myl. & Cr. 226; s. c. 5 Law J. Rep. (N.S.) Chanc. 194. On the other hand, where everything has been done by the donor that could be done by him, the Court cannot but regard the intention to keep to the proposed arrangement as proved, and will not pay attention to facts shewing a subsequent change of mind. In the cases cited for the appellant, and in Doe d. Garnons v. Knight (2) and Donaldson v. Donaldson (3), the circumstances did evidence an intention on the part of the donor to regard the gift as completed. But in the present case, on the contrary, the retention and the subsequent destruction of the deed by the donor, and her silence on the subject to the original trustees proved, not indeed that she had changed her intention, but that she had never had an intention to hold the settlement complete. She wished to have the formal documents ready for possible use, but with respect to using them she had kept her mind still in suspense. It would have been impossible for the donees to prove their title against the donor; for a Court of equity would never force the donor to produce such a deed. Nor would it, when the legal conveyance was not effectually made, enforce the equitable interest in favour of a volunteer Ellison v. Ellison, 6 Ves. 656. A fortiori would it refuse to interfere in favour of a volunteer in the present case, when, as appeared from Mr. Sismey's affidavit, the donor's attention had not been called, as it ought to have been, to the absence from the deed of any power of revocation. This circumstance itself would have been enough to support a bill for setting aside the deed Nanney v. Williams, 22 Beav. 452, 461. Forshaw v. Welsby, 30 Beav. 243; s. c. 30 Law J. Rep. (N.S.) Chanc. 331. [Lord Justice Turner referred to Hope v. Harman, a case reported, but at law only, in 11 Jur. 1097. It appeared from the Registrar's book, which was referred to in Court, that a decree was made in a suit at equity in the same matter, in favour of a deed of gift which had been destroyed by the donor.] Mr. Bristowe, Mr. F. O. Haynes, Mr. S. Thompson, Mr. L. Bird and Mr. Nugent appeared for other parties. The Attorney General, in reply, urged that the cases cited in favour of the respondent's contention depended on their special circumstances. In each of them there had been undue influence, or a violation of confidence, or some particular relation between the parties, or the deed had disagreed with the donor's instructions. LORD JUSTICE KNIGHT BRUCE.-On the materials before us, I am of opinion that the deed was duly executed by Lady Cholmeley. The circumstance of its being irrevocable not having been called, if in fact it were not called, to her attention, might be a reason for holding it inoperative. But there is no evidence now before us to shew that the instrument was improperly obtained; and therefore I think that it must stand, and this notwithstanding the omis sion to give notice of its execution to the trustees. We are now concerned with a matter under the Trustee Relief Act; consequently, this is not the occasion to shew that Lady Cholmeley was induced to execute the deed through bad advice, misapprehension, or deception. But I am not at present prepared to say there should not be an opportunity given for filing a bill to set the deed aside. Considering, however, the case in the present stage of the procedure, I must respectfully dissent from the Master of the Rolls. LORD JUSTICE TURNER.-I am not sorry that the question has at last been brought on as to whether notice to the trustees is necessary in cases of this nature. I think that the whole effect of modern cases has been to determine that, if a deed has been properly executed by the parties, it is good and effectual. The decisions in Cotton v. King, Cecil v. Butcher and other suits, proceeded on different grounds. As to the omission to give notice of the deed, I am of opinion that this is not a circumstance which affects the validity of a transfer, if the assignor did all that she could do for transferring her interest; and Sir William For Page Wood, V.C. has, I am glad to find, taken the same view in Donaldson v. Donaldson. However, I think that this Court should, as it has power to do under the Trustee Relief Act, give leave to file a bill to set aside the voluntary deed. this purpose the interval of a fortnight will be allowed to the parties with interests adverse to that deed. But if within that time such bill shall not be filed, then the fund in court must be transferred to the trustees of the voluntary deed. The costs of all parties may be paid out of the fund. LORD JUSTICE KNIGHT BRUCE.-I would have preferred that there had been some clear evidence on the point whether it was explained to Lady Cholmeley that the deed was not revocable. } LORDS JUSTICES. Re MACKINLAY. By an order made, with the consent of the mortgagee, for the sale of mortgaged property, the money to arise from the sale was directed to be applied, in the first place, in payment of the mortgagee :-Held, that it was not competent for the Court, by an order made on subsequent further consideration, to direct the payment of the costs of the sale in priority to the mortgage debt. Semble The payment of the costs of sale of a mortgaged estate ought not to be ordered out of the proceeds in priority to the debt of a consenting mortgagee, whether or not a party to the cause. This was a petition, by way of appeal from part of an order made by the Master of the Rolls, on the 30th of June 1864, in the cause of Ward v. Mackinlay, which was a suit for the administration of the estate of George Henry Mackinlay. The suit was instituted on the 1st of December 1854. An inquiry was directed what parts of the personal estate of the testator, George Henry Mackinlay, were outoutstanding; and the certificate of the chief clerk found, inter alia, that there was outstanding a reversionary interest in onefourth of a sum of 3,4447. 13s. 4d., 31. per |