those cases may be considered to establish that a bill can be taxed under the 38th section against trustees, without the solicitor having any interest in such taxation, I am of opinion that they give a wider extension to the scope of the 38th section than the words of the section seem to warrant, when examined in conjunction with the cases I have referred to; at the same time, it cannot but be evident that the effect of the decisions is to reduce the 38th section to a narrow operation, for all the cases concur in this, that the cestui que trust can only tax the solicitor's bill as his clients the trustees could, and if they knowingly, and after having due time to consider the bill, have thought proper to pay it, unless some of the items in it are fraudulent in the strict criminal sense of the term, the trustees are precluded from taxing the bill, however improper it may be, short of containing such fraudulent items, and in that case the cestui que trust is necessarily driven to his bill in equity to obtain relief. I consider, however, that I am bound by the decisions to which I have referred, and accordingly I dismiss the summons; but as this is a case in which the amount to be paid is the only matter in dispute, and it ought to be settled without the tedious and expensive course of a bill in equity, I shall dismiss the summons without costs, except as against Mr. Massey.

Lands Clauses Consolidation Act, 1845, s. 69.-Investment-Building.

Under special circumstances an order was made by the Lords Justices for the application of money in court which had been paid by a railway company, under 8 Vict. c. 18. (the Lands Clauses Consolidation Act, 1845,) s. 69, as the purchase-money of one part of certain trust freehold premises, in the erection of cottages on waste land forming another part of the trust estate.

This was a petition under the Lands Clauses Consolidation Act, 1845, for the application of money paid by a railway for the purchase of certain trust premises to the building of houses.

Freehold hereditaments, called the Grove Estate, were devised by the late John Dummer's will and codicil, dated respectively the 13th of March 1839, and the 8th of April in the same year, to trustees on trust to pay the rents to Jane Ann Lester, the wife of Charles Lester, for life, and, on her decease to be divided equally amongst her children, and, if she should die without leaving lawful issue, then over.

The East Kent Railway Company purchased part of the Grove Estate in the year 1856, consisting of an acre and a half of land without any buildings upon it, and the purchase-money was invested in the purchase of a sum of 1,562l. 88. 4d. 31. per cent. annuities, which was standing in the Accountant General's name to the account of the persons entitled under the will of John Dummer, deceased, the dividends being payable to Charles Lester during the joint lives of himself and Jane Ann Lester.

There were two children of Charles and Jane Ann Lester, both infants.

It appeared that part of the Grove Estate, which was waste land, and entirely unproductive, was from its neighbourhood to Chatham Dockyard, a good site for cottages, and that nine cottages, which it was estimated would bring in a clear rental in all of 901. a year, could be erected on it for 1,300. The object of this petition, which was presented by Charles Lester and Jane Ann his wife, and their two children by their father as next friend, was that it might be declared to be fit and proper that the nine cottages should be built on the land referred to; that the sum of 1,562l. 8s. 4d. Stock should be applied accordingly; and that, during the progress of the works, such sum as should from time to time be certified by the chief clerk of the Judge to whom this matter was attached to be payable in respect of work actually done and materials supplied in the erection of such cottages, not exceeding in the whole the produce of the stock, should be paid to such person as should be named in the certificate of the chief clerk as entitled to receive the same.

The petition was presented at the Rolls, and the Master of the Rolls being reluctant to make the order asked, but having regard to the authority of Re Partington's Trusts (1), which was cited before him, desired that (1) 7 Law Times, N.S. 522.

it might be mentioned to the Lords Justices.

Mr. Cory, in support of the petition, cited

Ex parte Shaw, 4 You. & C. Exch. Eq. 506.

Re Partington's Trusts, ubi suprà. Kindersley, V.C., in the latter case, had made the order asked for; and the only difference between that and the present case was, that there the houses had already been almost completed, and here only proposed. In In re the Corporation of Rochester, ex parte the East Kent Railway Company, March 1865(2), the Master of the Rolls Imade a like order. The land on which it was proposed to build was now utterly useless. Such an use of the money was manifestly for the benefit of the trust estate.

Mr. Humphry, as amicus Curiæ, referred to two cases in which the Court had ordered the investment of purchase-money in building

Re Incumbent of Whitfield, 1 Jo. & H. 610; s. c. 30 Law J. Rep. (N.S.) Chanc. 816.

Re the Buckinghamshire Railway Company, 14 Jur. 1065.

LORD JUSTICE TURNER was of opinion that, under the circumstances, the order might be made; but that the money must not be paid before the completion of the buildings, nor without the production of a satisfactory certificate by the architect employed in the matter.

LORD JUSTICE KNIGHT BRUCE, looking to the authorities on the subject, observed, that such an application of a fund in court seemed sometimes to have been allowed, and sometimes not. He would have preferred that his learned Brother and himself should not be taken to have expressed any opinion on the point, and that it should be mentioned before the Lord Chancellor. However, as the Lord Justice inclined to think the order might be made, he would, considering the circumstances of the property, agree.

(2) Not reported. NEW SERIES, 34.-CHANC.

By a voluntary settlement, dated the 14th of August 1827, a sum of 1,666. 138. 4d. stock was assigned by Mary Bill now Mary Peile, to the plaintiff Robert Barker and another trustee, upon certain trusts therein mentioned, for the benefit of herself and any future husband or children she might have. In 1834 Mary Bill gave notice to the trustees of the settlement that she had mortgaged the fund to a person named Aldborough Henniker, and had revoked the voluntary settlement. She therefore required the trustees to transfer the fund, but this they refused to do, and a bill was thereupon filed to set aside the settlement, which bill was dismissed in the year 1835. After this Mary Bill became insolvent, and her assignees filed a bill against the trustees for the purpose of getting a transfer of the fund to themselves. That bill also was dismissed, with costs. Subsequently it was notified to the trustees that Aldborough Henniker had been appointed a trustee of the settlement, and the old trustees were required to transfer the fund to the new trustee jointly with themselves. This also they declined to do, and another suit was commenced, but was not proceeded with. Mary Bill married in 1853, and her husband died in 1862. The plaintiff having at this time become sole trustee of the settlement by the death of his co-trustee, he was again applied to to transfer the fund, and in 1862 he filed this bill, alleging that in consequence of the annoyance he had been subjected to by the repeated litigation and the complication of the trusts, and the conflicting claims,

3 T

and by reason of his advanced period of life, he was desirous of being discharged from the trusts; and the bill prayed that upon bringing the fund into court and passing his accounts, he might be discharged from the trusts of the settlement, and that the same might be administered by the Court, and that some fit persons might be appointed trustees in his stead, and the plaintiff asked to be allowed to retain his reasonable costs, charges and expenses out of the fund.

Mr. Glasse and Mr. Swanston, for the plaintiff, submitted that he was fully justified in filing this bill. He had been subjected to repeated annoyance for many years from the litigation in this matter. He had been trustee ever since 1827, and was getting an old man; he was therefore desirous of being released from further anxiety. Such a bill as this would have been the only means by which he could have got rid of the responsibility prior to the Trustee Relief Act in 1847; and if he had paid the money into court under that act, he would still have remained trustee, therefore it was now necessary for him to file a bill. It never could have been intended that trustees should have less relief since the act expressly passed for their benefit than before it. They cited—

Coventry v. Coventry, 1 Keen, 758; s. c. 6 Law J. Rep. (N.s.) Chanc. 275. Gardiner v. Downes, 22 Beav. 395; s. c. 25 Law J. Rep. (N.S.) Chanc. 881. Forshaw v. Higginson, 20 Beav. 485;

s. c. 26 Law J. Rep. (N.S.) Chanc. 170.

Mr. Baily and Mr. Archibald Smith, for Aldborough Henniker and his brother Robert Henniker, who claimed to be assignees of the fund, contended that the plaintiff had no right to incur the expense of filing a bill. The fund was an ascertained amount which might have been paid into Court under the act, and he would then have had all the relief that was requisite. He ought not, therefore, to be allowed a larger amount of costs than such a course would have involved

Wells v. Malbon, 31 Beav. 48; s. c. 31 Law J. Rep. (N.s.) Chanc. 344. They also cited

Lewin on Trusts, p. 435 (4th edit.)

Mr. Osborne and Mr. W. H. Terrell appeared for Mary Peile, and Mr. Owen and Mr. Macnaghten, for incumbrancers upon the fund.

KINDERSLEY, V.C.-In this case several suits have from time to time been instituted to which, as they had reference to the trust, the plaintiff was of course a necessary party. As to the ascertainment of the trust fund no question has arisen, that has been known from the beginning; the disputes have arisen respecting the rights of the parties, which are evidently different from what they were originally. There is no doubt that the plaintiff, who is getting into years, has been subjected to a great deal of litigation and trouble, an amply sufficient reason for wishing to be discharged from the trust.

Previously to the year 1847, when the Trustee Relief Act was passed, it would have been a clear case for a trustee to ask this Court to discharge him, and that is what the plaintiff now asks, offering to bring the fund into court. That being so, how does that statute deprive him of the right? It has been contended that the plaintiff ought to have paid the money into court, and he would then have relieved himself from liability; but such a course would not have discharged him from the trust, and he would still have remained liable to be made a party to every proceeding, whether by petition or otherwise. The case of Wells v. Malbon has been cited, but in that case the executor did not ask to be discharged from the trust, he only required the Court to determine the respective rights of the parties. There were two claimants, and one of them informed the executor that he should dispute his right to the costs of the suit, on the ground that the fund ought to have been paid in under the Trustee Relief Act. That case does not, in my opinion, touch this question. I cannot conceive that the legislature intended by the Trustee Act to deprive a trustee of his right to come to this Court and ask to be relieved from the trusts. In this case the circumstances are such that the plaintiff has a right to be completely discharged, and to have his costs of the suit as between solicitor and client.

The Court will not take a child of tender years from the custody of its mother on the ground that the mother's religion differs from that of the deceased father, and that such change of custody is requisite to the training of the child in the father's religion.

A Roman Catholic died intestate, leaving a Protestant widow and an infant daughter less than three years old, who had been baptized a Roman Catholic, but with one Protestant sponsor. A year before his death he prepared the draft of a will which he never executed, containing a direction that his children should be brought up as Roman Catholics, but he did not otherwise express any wish on the subject. His widow married a Protestant. The Master of the Rolls made an order appointing the mother and a maternal uncle-in-law, a Protestant, guardians, and declined to give any immediate directions as to the religious training of the child, but directed the guardians to inform the Court after a few years of the course of education they proposed to adopt. The Lord Chancellor, upon appeal, varied the order by declaring that, having regard to the circumstances, the child ought to be brought up and educated, when capable of receiving religious education, as a member of the Roman Catholic Church, and by appointing the mother, her husband and the maternal uncle to act as guardians until the child should attain the age of seven years, and directing that when she should attain that age application should be made to the Court respecting the guardianship and the religious instruction of the child, with liberty to apply in the mean time.

The proceedings in this case before the Master of the Rolls, in which his Honour appointed the mother and maternal uncle (both Protestants) to be guardians of the infant child of a deceased Roman Catholic father, and declined to give any directions as to religious training, will be found reported ante, p. 192.

Mr. John Austin, the paternal uncle of the child, appealed from his Honour's order.

The Attorney General (Sir R. Palmer), Mr. Baggallay and Mr. Bagshawe, for the appellant, contended that the paternal uncle was the proper person to be appointed guardian, and the order ought to contain directions for bringing up the child in the religion of her father. They cited

Talbot v. the Earl of Shrewsbury, 4

Myl. & Cr. 672; s. c. 9 Law J. Rep. (N.S.) Chanc. 125.

Re North, 11 Jur. 7.

Re Hunt, 2 Con. & Law. 373.
Witty v. Marshall, 1 You. & C. C.C.
68.

Stourton v. Stourton, 8 De Gex, M. & G.

760; s. c. 26 Law J. Rep. (N.S.)
Chanc. 354.

Davis v. Davis, 10 W. Rep. 245.
Re Byng, M.R. 1859 (unreported).

Mr. Selwyn, Sir Hugh Cairns and Mr. Kay, for the respondents, were not called upon to support the order as to the guardianship. They contended that it was unnecessary at present to insert any directions for the religious education of the child. When the proper time arrived application could be made to the Master of the Rolls.

The LORD CHANCELLOR. The law of this country enables the father to appoint the guardians of his infant child, and thereby gives him the power, both directly and through the selection of guardians, to determine the character of the religious education of the child. This Court assumes the parental duty. It is bound therefore to fulfil it in the manner in which it has a right to assume that the father himself would have discharged it. Hence it follows, that where there is a clear proof with regard to the particular religious persuasion of the father, that, being Christian, it is the duty of the Court to take care that the child is brought up in the religious faith in which it assumes that the father himself would have educated it.

It is, of course, with regard to an infant of very tender years an idle thing to lay down now a scheme of religious instruction. The

natural, the physical well-being of the child is the thing most to be cared for in the tender years of infancy. The physical wellbeing of the child is by every law of nature that which is best cared for and best secured by the superintendence and natural affection of the mother. Therefore, on the present occasion, I do not for one moment entertain the thought of giving any directions touching religious education. I find the physical well-being of the child demands from me that the child should be left under the care of a Protestant mother, and under the care of other persons to be associated with her, in order that the Court may have complete security over the child; and therefore I associate with the mother persons of the same feelings with herself in order to prevent that interference during the tender infancy of the child which undoubtedly would not tend to the benefit of the child, and might produce an amount of discord and contention which would interfere very greatly with the comfort of the child itself.

But inasmuch as I depart from the general principle in order to secure during these tender years what I deem to be essential for the child, I am most desirous to insert in the order a declaration of the reasons why I depart from the general rule, and that the order shall vindicate the principle and lay that down as the rule which is to be resorted to hereafter, when the child is capable of receiving religious education. I do not make an order applicable to a future state of things or without necessity. I make an order which is applicable to a present state of things; and inasmuch as I am handing the child over to Protestant guardians, I feel it right to state the reason for my so doing and to prevent my having done so being perverted hereafter into an argument that the Court intended to decide the question of what ought to be the rule for the religious education of the child. Therefore the declaration is dictated by the very form of the order. It is not a future declaration, or one that can be affected by future circumstances; but it is a declaration which the Court requires the order should have in order that its own ratio decidendi may be manifested by the order itself, and that the order may not be perverted hereafter into a ground of unfounded contention,

It is upon these principles that I propose to declare that it appears to this Court that the father of the infant was a member of the Roman Catholic Church at the time of his marriage with Ellen Austin, now Ellen Seager; that he was also a member of the Roman Catholic Church at the time of the birth and of the baptism of the child; that the child was baptized into the Roman Catholic Church, and that the father continued a member of the same church down to and at the time of his death. And having regard to these circumstances, I propose to declare that the child ought to be brought up in and educated, when capable of receiving religious education, as a member of the Roman Catholic Church; but having regard to the tender age of the child and to the condition of its health, the Court deems it requisite that the child should continue under the care of the mother, and of persons to be associated with the mother, in order to secure the welfare of the child and the control of this Court over the condition of the child. The Court therefore doth, until the child shall attain the age of seven years, appoint the mother and the husband of the mother, and the gentleman who has been already appointed, Mr. Wood, I will not remove him, that it may not be supposed for a moment that there is any imputation upon him,-to act as guardians of the child. The Court doth direct that when the child shall attain the age of seven years application shall be made to the Court respecting the guardianship and the education and the religious instruction of the child, with liberty, however, to any party interested to apply in the mean time, and any further usual directions in the order to be made.

The Master of the Rolls' order is to be varied so far as it may become necessary by the introduction of the form of words in which I have expressed my present order (1).

(1) In consideration of the smallness of the infant's estate and the relationship existing between the parties, the appellant consented to pay the costs of the appeal.