parts were: "In the application you forwarded on the 4th, I find the words 'having paid to your bankers 107.' Please state to what bankers; or did you forget to omit these words, as with agents and secretaries, if they so prefer, we are satisfied to let their shares be paid out of commission. But if you have paid it, say to what bank, and we shall when advised make out your allotment." Subsequently, Thomson asked for the scrip to be sent; but the secretary wrote on the 19th of September to say that it could not be sent till the commissions were enough to cover the deposit and allotment. A memorandum of agreement was drawn up, dated the 18th of September 1863, between the company and Thomson, by which Thomson was appointed the company's resident secretary at Berwick and district agent for North Northumberland and Roxburghshire. This agreement stipulated, that he should be paid a per-centage on the premiums received by the company on policies effected through him or in his district, and on the shares he might place; but that, if the per-centage on the premiums in any one year should fail to amount to 75., the company would pay him the balance. He, on his part, undertook to take twenty shares, and, within twelve months from the date of the agreement, to place eighty shares more among his friends. The company soon became dissatisfied with Thomson; and, on the 7th of November 1863, the secretary gave him notice, that, unless there should be in the mean time a marked change in the utility of his services to the company, "the minimum guaranteed commission or salary allowed to him by virtue of the existing agreement would be discontinued at the end of the then current month." Accordingly, on the 30th of November, notice was given to him by the directors that his engagement was at an end. Thomson, however, refused to allow that the agreement of the 18th of September could be terminated thus abruptly; but while insisting upon it as still in force, he made a proposal (which, however, was not accepted by the company) in a letter dated the 21st of December, as well as in subsequent letters, to accept a certain number of shares (100 or 80, as variously stated) "in full of the yearly minimum guaranteed salary under the agreement." In February 1864, Thomson received a letter from the company, dated the 9th of that month, asking for a nominal payment on account of each of the twenty shares, and stating that, on such pro forma payment being made, the certificate for the shares should be forwarded. No payment was, however, ever made by Thomson, or scrip sent to him, in respect of the twenty shares, although his name appeared on the register as the holder of that number; nor was any definite arrangement ever agreed to between him and the company on the subject of the shares or his salary. On the 23rd of May 1864, a resolution was come to for the voluntary winding up of the company, and the liquidators placed Mr. Thomson on the list of contributories in respect of the twenty shares, and by notice, dated the 21st of March 1865, required payment of the full amount of the call on those shares. On the 10th of April 1865, Mr. Thomson applied by summons that his name might be removed from the list of contributories, and the Master of the Rolls, on the hearing, on the 15th of June, of the summons adjourned from chambers, held that the name ought to be removed on the ground that the company had cancelled the arrangement, and that there remained no contract to take shares; and his Honour ordered Mr. Thomson's name to be excluded from the list of contributories. The official liquidators now moved to discharge this order. Mr. Selwyn and Mr. Ellis, for the official liquidators, referred to— Cookney's case, 26 Beav. 6; s. c. 3 De Best's case, ante, p. 523. 25 & 26 Vict. c. 89. ss. 25, 37. Mr. Dickinson, for Thomson, relied upon Best's case. Mr. Ellis, in reply. LORD JUSTICE KNIGHT BRUCE. - This case plainly differs from Best's case. Here, the applicant's name was entered on the register for twenty shares; and, consequently, the transaction appears to be as complete on both sides as it was in Cookney's case, which was cited in the argument. We are not now to settle, as Mr. Ellis has properly said, the question of account; what, for instance, should be the price of the twenty shares, or whether Mr. Thomson was duly discharged from his office. What we have to decide is, whether he applied for the shares, and whether he was properly put upon the register in respect of them. The question must, I am of opinion, with all deference to his Honour the Master of the Rolls, be decided against Mr. Thomson, and his name must be restored to the list of shareholders. The cancellation of the agreement for his employment, on which his Honour laid stress, cannot be held to have done away with the consequences of his application for the shares, or the appropriation of them to him. Accordingly, although my mind has fluctuated, on the whole I have come to the conclusion (though without prejudice to any claims, on questions of account, which he may have against the company, or the company against him) that he must be restored to his position as a shareholder. LORD JUSTICE TURNER. My opinion agrees with that of the Lord Justice. My investigation into the affidavits and correspondence has confirmed what was my impression at the close of Mr. Dickinson's argument. There are two questions in the case. The first is, whether there was a binding agreement on the part of Mr. Thomson to become a shareholder. It has been objected on his behalf, that, although he had offered to take twenty shares, there was nothing to bind the company to grant them to him; and Best's case was relied on upon this point. But, in that case, there was only an offer to take the shares, and a deposit paid upon them, but without any answer being returned by the company, or any allotment being made, or anything done on its part to signify acceptance of the offer. The payment of the deposit merely put the applicant there into this position, that he might have been made an allottee of the shares, if the company had in fact allotted them, which it never did. But, in the present case, there is strong evidence, independent of the entry in the register, that the company was bound to allot. For instance, there is the letter from the secretary, explaining that the amount to be paid on the shares might be deducted from the salary, or from the premiums payable by way of salary. After this it is impossible to contend that Mr. Thomson did not become the owner of the twenty shares. The first question is thus disposed of. But secondly, has there been any cancellation of the agreement? The agreement was made up, in fact, of two parts: the first, the stipulation that Mr. Thomson should have a certain salary; the second, that he should take so many shares. If the two parts had been dependent on each other, it might have been said that, in case the company did not pay the salary, then the rest of the agreement dropped. But the one part was not made dependent upon the other. It appears too that in effect there has been part performance, and, consequently, the agreement cannot be considered to have been wholly put an end to. Therefore, as it is clear that there is no such mutual dependence of the covenants in it as can be a ground for cancelling it, there is nothing to cancel it. Entry on the registry makes a prima facie case against Mr. Thomson. But, even if we go behind the register, there is sufficient evidence that he agreed to take the shares. On these grounds, I am of opinion, with all respect to his Honour, that Mr. Thomson must be placed on the list of shareholders, though without prejudice to any question as to whether the company was entitled to cancel the agreement respecting his appointment. This is not a case for costs. O. contracted to sell to H. an estate of which he believed himself to be absolutely seised in fee simple. H. upon examining the title contended that O. was bound, under the trusts of a will, to re-invest the purchasemoney in land, and required O. to give him an assurance that he would make such reinvestment. O. having refused to give such assurance, H. filed a bill for specific performance of the contract. O. by his answer stated that he would not have sold unless upon the footing of his being able to deal with the purchase-money as he might think fit:-Held, that assuming H. to be right in his contention as to re-investment, O. had entered into the contract under a mistake, and could not be compelled to perform it. Held, also, that as the question, though one of title, affected the validity of the contract, it must be decided at the hearing of the cause. or W. O. devised an estate to his son H. O. in fee simple, and declared that it was his “earnest hope," and he "particularly requested" his son to keep the devised estate, and all such real estate as he was or might become entitled to under certain settlements, 66 otherwise howsoever," and not to sell, alien or dispose of the same, except by way of exchange, or for re-investing the value in the purchase of other estates; and in case H. O. should die without leaving issue male of his body him surviving, the testator expressed his anxious desire that he should so settle and devise the estates so devised to him, and also the estates to which he was or might become so entitled as aforesaid, in such manner and to such persons that the same might continue in the name of 0-Held, that H. O. took an estate in fee simple in the devised estate unfettered by any condition. In July 1863 the plaintiff, Sir Alexander Hood, on behalf of the other plaintiffs, the trustees of his marriage settlement, offered to purchase an estate belonging to the defendant, Sir Henry Oglander, for 12,000l., and the defendant by letter accepted the offer, on condition that the plaintiffs should pay all the expenses connected with the sale and transfer of the property. By the abstract of title it appeared that the defendant was entitled to part of the property under a settlement, and to the remaining part under a devise in the will of his father, Sir William Oglander, which was in the following terms: "I give and devise all and singular my manors, messuages, lands, tenements, and hereditaments and real estate unto and to the use of my said son Henry Oglander, his heirs and assigns. . . And it is my earnest hope and I particularly request my said son to keep all and singular the said manors, &c. herein before devised to him, and also all such manors, messuages, lands and hereditaments, to which he is or may become entitled under or by virtue of the said settlements" (including the settlement abovementioned), "or otherwise howsoever, and not to sell, alien or dispose of the same, or any part thereof, except by way of exchange or for re-investing the value in the purchase of other estates. And in case my said son shall die without leaving issue male of his body him surviving, it is my anxious desire that he will so settle and devise the same manors, &c. so devised to him as aforesaid, and also the manors, &c. to which he is or may become entitled as aforesaid, in such manner and to such persons that the same manors, &c. and every part thereof, may continue in the name of Oglander." On the 12th of February 1864 the plaintiffs' solicitors sent to the defendant's solicitors their requisitions on the title, one of which was as follows: "The clause contained in the will urging the present vendor not to alienate the estates settled or devised is important and requires consideration, and it will be satisfactory to obtain from the vendor an assurance that it is his intention to re-invest the purchase-money in the purchase of other estates. If this assurance be given, the purchasers may, we think, be satisfied; otherwise, it will be necessary to ascertain whether, by electing to take the benefits conferred on him by the will, the vendor may not have fixed a trust even on the settled estates, in which case the clause might operate on them.” The defendant having refused to give the required assurance, or to answer the other requisitions until this objection should be disposed of, the plaintiffs instituted this suit for the specific performance of the contract. The defendant by his answer stated that he entered into the contract on a calculation that he would be absolutely entitled to the purchase-money, and would be able to invest it in the funds, and thereby increase his income, and that he would not have agreed to sell the estate except on that understanding, and that if he was not absolutely entitled to sell the estate and to receive and deal at pleasure with the purchase-money, his assent to the sale was given under a mistake. The cause now (April 25) came on upon motion for decree. Mr. Selwyn and Mr. Peck, for the plaintiffs. The contract is admitted, and the plaintiffs are entitled to a decree for specific performance with the usual reference as to title. Sir Hugh Cairns, Mr. Baggallay and Mr. Bagshawe, for the defendant.—If the objection to the defendant's title to the purchasemoney is valid, the defendant will not be compelled to perform a contract which he entered into under a mistake Howell v. George, 1 Madd. 1. The question of title therefore affects the validity of the contract, and must be decided at the hearing. The alleged precatory trust is void as a condition against alienation attached to a devise in fee simple, and also on the ground of uncertainty Macnab v. Whitbread, 17 Beav. 299. 23 Law J. Rep. (N.s.) Chanc. 599. Williams v. Williams, 1 Sim. N.S. 358; s. c. 20 Law J. Rep. (N.s.) Chanc. 280. Sale v. Moore, 1 Sim. 534. The object of the suit is to clear the title: if the defendant's title is good, the suit is unnecessary; if bad, the contract cannot be enforced, and the bill must be dismissed; in either case the plaintiffs must pay the costs. Mr. Selwyn, in reply.-The defendant's misunderstanding of the effect of the preNEW SERIES, 34.-CHANC. catory trust in his father's will is not such a mistake as will entitle him to repudiate the contract. The MASTER OF THE ROLLS.-It is very important to point out exactly what can, and what cannot be done upon the hearing of a suit for specific performance. All questions, properly speaking, of title, are not then to be discussed, but are then to be sent for a reference, to the Master formerly, and now to chambers. But all questions which affect the validity of the contract, and the question whether it is a contract to be carried into execution, and one which can be enforced against the defendant, are properly raised at the hearing, and can only be raised at that time. If they are not raised at the hearing, and a reference is taken for title, the Court will not allow them to be raised at a subsequent period. If I were to direct, in the present case, a simple reference as to title, and no objection to title was allowed, and the defendant, afterwards, on a future occasion, was to come back and say, "This is a case in which there ought to have been no decree at all, for the contract ought not to have been enforced against me," the Court would say, speaking strictly, "You are too late to take that objection, and you must now perform the contract." Therefore, where an objection to title is one which affects the validity of the contract, that, and that only, is the proper thing to be discussed at the hearing. If the contract is in dispute, if it is denied that such a contract was entered into, or if the defendant says, "I entered into the contract by mistake, and although I agree there was such a contract, yet I did not know what I was entering into," the Court considers and decides that question at the hearing of the cause. The only question which the Court has to consider at the hearing upon an objection to title is this: Is it such an objection as would make it inequitable for the Court to bind the person who has entered into the contract to the performance of his contract? As I understand the case of Howell v. George, which was a case of considerable importance, and has been commented upon and cited over and over again on subsequent occasions, that was exactly the question which arose there. I speak merely from recollection; I believe there was 3 Z nothing in that case to shew that the plaintiff had either accepted the title or that he waived any further requisition as to title. [Sir Hugh Cairns.-No, it came on simply upon argument.] It came on upon argument at the hearing of the cause, and the defendant said "I have entered into the contract, but in such a way that if I sell this estate I shall be obliged to buy another with the purchase-money, and, in point of fact, I shall be obliged to re-invest it, although I believed I held the land in fee simple, in other land in another part of the country, of the same value;" and the Court held that it would be inequitable to compel him to specifically perform a contract which he had entered into under such a mistake. In the present case the essence of the plaintiffs' requisition is this: that if the defendant sells the estate, he must invest the purchase-money in another estate; and it is exactly the same as in Howell v. George in this respect, that if the objection is a good one, he can only sell the estate for the purpose of investing the money in another property. It is, in point of fact, not that the defendant is to sell the property, receiving the purchase-money, but that he is to exchange it for some other property which will be exactly in the same situation, and which he cannot afterwards sell, except for the purpose of investing in some other estate. It will, in fact, be simply an exchange of one estate for another. If a person enters into a contract, not being aware of the effect of what he is doing, I am of opinion that, upon the principle laid down in Howell v. George, this Court will relieve him from it, and that that case is well decided. If a person thinks he has an estate in fee simple, and that he can receive the purchase-money, the Court will not compel him to perform a contract which he has entered into in error, when it turns out that he can only exchange one estate for another. It is true that in Howell v. George the vendor had only an estate for life, and that this defendant has an estate in fee simple; but in fact the distinction is merely technical and nominal, because, though he has an estate in fee simple, he cannot, if the plaintiffs' objection is valid, part with it except to get another estate in the same situation; so that, so far as the beneficial enjoyment is concerned, it is reduced to an estate for life without impeachment of waste to be transferred from one property to another. I will, however, consider the case, and if I adhere to my present opinion, I should wish to hear the question upon the construction of the will, which has practically been argued on one side only, re-argued. The MASTER OF THE ROLLS (April 28) said, that he was still of opinion that, if the defendant had not the control over his own property, and could, in substance, only exchange one property for another, he entered into the contract by mistake, and the Court could not compel him specifically to perform it; and it was then arranged that the question under the will should be re-argued. Mr. Selwyn and Mr. Peck (May 1), for the plaintiffs, contended that the will imposed either a precatory trust or a condition upon the devisee. They citedKnight v. Knight, 3 Beav. 148; s. c. 9 Law J. Rep. (N.S.) Chanc. 354; see s. c. on appeal, nom. Knight v. Boughton, 11 Cl. & F. 513. Pyot v. Pyot, 1 Ves. sen. 335. Griffiths v. Evan, 5 Beav. 241 ; s. c. 11 Law J. Rep. (N.S.) Chanc. 219. Jarman on Wills (3rd edit.), vol. 1, 358. Sir Hugh Cairns, Mr. Baggallay and Mr. Bagshawe, for the defendant, were not called upon. The MASTER OF THE ROLLS.-I am of opinion that the defendant has an estate in fee simple, unfettered by any conditions. The clause of the will in question may be divided into two branches. The one is, as to what is to be done during the defendant's life, and the other is, as to what is to be done upon his decease. First, as to what is to be done during his life. There is a devise to him, his heirs and assigns for ever. That is quite plain. Now, if instead of expressing "his earnest hope" and "particular request," the testator had expressly directed that his son should keep the manors, messuages, lands, tenements, hereditaments and real estate devised to him, and also all such manors and hereditaments to which he might become entitled under or by virtue of the |