tion is pointed out-3 Inst., 107. It does not appear HUGHES, B.-I concur with O'Hagan, J. upon the question whether the indictment for larceny could be sustained. I am of opinion it could not. I offer no opinion as to any other indictment. FITZGERALD, B. concurred. FITZGERALD, J.-I concur in the very clear judgment of O'Hagan, J., and would not say anything but that the case was reserved by myself. Some little doubt was thrown on the course pursued. The prisoner was undefended. The judges had to some extent to watch over his interests. We came to the conclusion that the first count was not sustained. I may say as my own opinion that I entertain no doubt as to the course adopted. We had a doubt as to the second count, but it was argued by the counsel for the June 10.-O'HAGAN, J.-The first count of the in Crown that the case was sustainable under the stadictment states that the prisoner embezzled this money tute. My judgment was not much shaken by the arThe second count was for larceny. Witnesses were ex- gument; but in deference to the strenuous arguments amined. [His Lordship stated the evidence of the addressed to us, we allowed the case to go to the jury. first witness.] The evidence of the second witness is I agree with O'Hagan, J. that the conviction is unnot very material. Then there is the evidence of the sustainable. Subsequent misappropriation does not owner of the hay, and of the clerk to O'Connor, the amount to larceny at common law. I am equally factor. It seemed to the judges that the first count clear that the count is not sustainable under the 3rd was not sustained. The counsel for the prosecution section of the statute. The reasons given in refecontended that the count for larceny was sustained. rence to the common law go to show it is not sustainThe case was submitted to the jury on that count.able under the statute. [His Lordship referred to the The question is, if the evidence was sufficient to sus-judgment of Lord Coke in Coggs v. Bernard.] It tain the second count. We are asked only to say if seems to me at the same time possible that a proper the charge of larceny is legally sustained. A good count for embezzlement might have been framed under deal of argument has been addressed to us which the statute, or that a count for money obtained under might be important if applied to the count for embez- false pretences might have resulted in a conviction. zlement, or if the charge was for obtaining money under false pretences. The point reserved is merely whether the prisoner was guilty of larceny, either at common law or as a bailee under the section of the statutc. The prisoner had no authority to receive the price. Noble thought that the practice of the market entitled the prisoner to be paid; and he paid him the price of the hay, save one shilling and four pence, which the prisoner afterwards asked for and received. I will not go through the cases. They are very numerous. Their distinctions are endless, and not very reconcileable. They were, many of them, taken when the judges were astute, and jurors anxious to avoid the consequences of the law. Now the law is humanized. Where the owner of a chattel, having full dominion over it, parts with the possession, the receiver, though he may be guilty of some other offence, is not guilty of larceny. In the case in 1 Leach, 520, the authority was limited; it was an authority to deliver to a particular person. The same observation will apply to the case in R. & R. 163. Reg. v. Stines was in this Court; and it was held that the prisoner was guilty of larceny, but on the ground that the party had only ■ qualified interest in the money, and could not part with the property to the prisoner. In this view all the cases are reconcileable. There was no larceny at common law. Can the count be sustained under the statute? I think not. [His Lordship read the 3rd section.] I am clearly of opinion that the prisoner was not a bailee within the meaning of this section. The reasons why the prisoner was not guilty of larceny at common law are applicable to this. Regina v. Iassell (1 Leigh & Cave, 58) sustains the note in Greene's case, that two things must be proved: first, such a delivery as divests the party of the possession and vests it in the prisoner for some time; and secondly, that at the expiration of that time the same property was to be restored. DEASY, B.concurred in the judgment of O'Hagan, J. O'BRIEN, J. concurred for the reasons given by both the judges. KEOGH, J. Concurred, and adopted the reasons and the reservations. MONAHAN, C.J.-I entertain no doubt for the reasons given by O'Hagan, J. and Fitzgerald, J. As to the prisoner being a bailee, it is equally clear. The bailor must intend to retain some property in the thing. LEFROY, C.J.-I have the misfortune, and perhaps, the hardihood to differ from those who have preceded me; but it does appear to me that this is a case within the statute. My grounds for thinking so are not so much the authority of the cases as the words of the statute. The criterion is this: did the owner of the money part with it for a special purpose, and that only? did he not entrust it to this person for a special purpose? The prisoner being the bailee and depository for that special purpose, and no other, the property will not pass from the bailor, whose money it remained till the purpose was answered for which it was given. The prisoner violated that purpose by appropriating it to his own use, and therefore is guilty of larceny of that money. t Conviction quashed. House of Lords. [Reported by James Paterson, Esq., of the Middle Temple. CULLEN V. ATTORNEY-GENERAL. Legacy duty-Exemption-Legacy for charitable ▲ revenue statute exempted from legacy duty legacies given for a charitable purpose in Ireland. F. gave a legacy to C. which on the face of the will was absolute, but by reason of certain letters contemporaneously delivered a trust was created which was binding in a court of equity: Held (affirming the judgment of the Irish Court of Exchequer), that such legacy was not exempt from duty, inasmuch as the trust arose by reason of mat ters dehors the will. THIS was an appeal from a decree of the Court of An information was filed by the Attorney-General against the appellant Archbishop Cullen for legacy duty amounting to £743 15s. 8d., being 10 per cent. on the residue of Bridget Fitzgerald's personal estate. Miss Bridget Fitzgerald, the testatrix, made her will in 1829, and after certain legacies gave all the residue of her property, real and personal, to the Rev. Patrick Doyle and the Most Rev. Daniel Murray, and the survivor, requesting that all the intentions expressed in her will might be fulfilled. The testatrix made five several codicils to her said will: the first, dated the 30th April 1831, which it is not necessary further to notice; the second, dated the 7th October 1839, by which she confirmed her said will; the third, also dated the 7th October 1839, by which in order to remove any doubt of her intention as to the devise of her property, she declared that the same should go to the said Rev. Patrick Doyle (therein called the Rev. Patrick James Doyle), and the said Most Rev. Daniel Murray, named in her said will, and the survivor of them, his heirs, executors, administrators, and assigns, according to the directions therein; and that it was not intended that the same or any part thereof should be bequeathed or given to any other person. By the fourth codicil, dated the 19th November 1847, she appointed Anne Carroll executrix in place of Peter Locke, who was then dead; and by the fifth codicil, dated the 24th January 1849, she declared that the Rev. Patrick Joseph Doyle was the person whom she had by her will appointed executor, under the name of Patrick Doyle. The testatrix died on the 15th May 1850, without having revoked the said residuary bequest; and probate of her will and the codicils thereto was granted June 18, 1850, to Patrick Joseph Doyle and Anne Carroll, but only the former acted, and the latter died intestate in the year 1853, never having intefered with the administration. Patrick Joseph Doyle took possession of the assets, as executor, and disposed of part of the residue, but paid no legacy * Copied by permission from the Law Times. duty thereon. The Most Rev. Daniel Murray died in February or March 1852, and Patrick Joseph Doyle survived him, and died in December 1852, having by his will bequeathed the residue of his property to the appellant for such religious and charitable purposes as he should think fit, and made the appellant and the Rev. Philip Dowling his executors. The appellant alone took probate of his will; and letters of administration of the goods of the testatrix left unadministered were also granted on the 20th June 1854 to the appellant. The appellant having entered into possession of the assets, and proceeded to admininister the same, was called upon by the Commissioners of Inland Revenue to pay duty at the rate of 10 per cent. upon the residue-the residuary legatees, Patrick Joseph Doyle and Daniel Murray, who were strangers in blood to the testatrix. But the claim was resisted on the ground that, by certain letters written by the testatrix to P. J. Doyle and Daniel Murray, certain charitable trusts were created, and that therefore the residue was exempt from the payment of any duty by virtue of the statutable enactments in force in Ireland in that behalf. The Commissioners of Inland Revenue were of opinion that, as the alleged letters were not admitted to probate, or alluded to in the will or any of the codicils, or in any way testamentary, they could not, according to the true construction of the law upon the subject, have the effect of creating an exemption from duty; and, accordingly, the present information was filed in the Exchequer in Ireland on the 14th of April 1862, for the recovery of the duty. The Irish Court of Exchequer held, that a legacy given on secret trust was not exempt from legacy duty, whereupon the present appeal was brought. The 56 Geo. 3, cap. 56, sched. part 3, includes, among other exemptions from legacy duty, "all legacies given for the education or maintenance of poor children in Ireland, or to be applied in support of any public charitable institution in Ireland, or for any purpose merely charitable." The same exemption is continued in the statute 5 & 6 Vic. c. 82, s. 38, in the same words. Rolt, Q.C. and Bagshawe, for the appellant, contended that if the trust which the letters of the testatrix had declared had been declared on the face of the will, there could have been no doubt that the legacy would have been exempt, and it made no difference if the trusts were in any other manner held binding by a court of equity. The Attorney-General for Ireland and C. R. Barry for the respondent. The following authorities were referred to: Lomax v. Ripley (3 Sm. & G. 48); Walgrove v. Tebbs (2 K. & J. 313; Attorney-General v. Dillon (13 Ir. Ch. Rep. 127); Sweeting v. Sweeting (1 Drew. 331); Re Wilkinson (1 Cr. M. & R. 142); AttorneyGeneral v. Nash (1 M. & W. 237). THE LORD CHANCELLOR.-My Lords, this is a question which lies within the narrowest compass. This lady, Bridget Fitzgerald, by her will and several codicils, gave the residue of her property to two gentlemen, both of whom have died, and who are now represented by the appellant, the Most Rev. Archbishop as the property was given on the face of the will to a child or wife. No doubt there is considerable difficulty in that view of the question. Perhaps the only answer to it is that the statute has not contemplated such a case, and that is the real answer to the question which was put two or three times at the bar in course of the argument. What is the meaning of the words "legacy given" in the proviso? Do they mean given by will, or do they mean so given that, coupling the gift to the legatee with the obligation which the law imposes upon it, the two together are to be taken as the legacy? I own that I have had considerable doubts upon the subject, but the rule laid down by the court below is certainly the more convenient of the two, and as I know that both my noble and learned friends who have heard this case consider the decision to be perfectly right, I do not feel it necessary to state any further the doubts which have arisen in my own mind. Under these circumstances I think the decision which has been come to by the court below in the case of this will is right. I have, therefore, to move your Lordships that the judgment of the court below be affirmed. Cullen. By her will she gave the property to these two persons simpliciter, but then it must be taken as an admitted fact that she gave it to them upon their having in her lifetime validly undertaken that they would hold it upon certain charitable trusts. Now, in that part of the Stamp Act relating to Ireland which refers to testamentary instruments and the duty payable upon wills or administrations, there is an exemption which does not exist in England, namely, in favour of any legacy given for the education or maintenance of poor children in Ireland, or to be applied in support of any charitable institution in Ireland, or for any purposes merely charitable. There is no doubt that, if you are to couple that which was undertaken by these gentlemen, with the legacy, this gift comes within the exemption, for it is admitted on all hands that it was a gift which, coupling the will with the undertaking of the legatees, amounted to a gift for purposes merely charitable. The question is whether, inasmuch as the gift did not on the face of it purport to be a gift merely charitable, but was apparently a gift to the legatees themselves for their own benefit, you can, for the purposes of legacy duty, couple that legacy with the fact that the legatees had undertaken LORD CHELMSFORD.-My Lords, the question to be to hold it for merely charitable purposes. My Lords, decided is, whether the gift of the residue by the will I think it extremely important that a rule should be of Bridget Fitzgerald to the Rev. Mr. Doyle and laid down on this subject; and undoubtedly the more Archbishop Murray is exempt from legacy duty by convenient rule is that which has been adopted by the reason of its being made applicable to trusts for court below; because it is a rule which imposes no diffi- charitable purposes by certain letters contemporaneous culty upon executors (administrators are not within with the will, and which trusts were accepted by the question in this case), when they come to pay the the legatee; confining myself entirely to the words duty, in knowing what the amount of duty is to be. of the Acts of Parliament, I have little difficulty in I cannot disguise from myself that the rule so laid coming to a conclusion in favour of the Crown. The down is one which may enable parties (unless the definition of a legacy given by the 38th section of 5 & Succesion Duty Act alters it, and I am not assured 6 Vict. c. 82, and the 4th section of the 8 & 9 Vict. how that may be) always to evade, or rather to avoid, c. 76, is a gift by any will or testamentary instru the payment of any legacy duty. Because, if the testator ment of any deceased person which by virtue of any is a married man, he may leave the whole of his pro- such will or testamentary instrument shall have effect perty to his wife taking an undertaking from her, which or be satisfied out of the personal estate. It is clear does not form part of his will that she at his death will upon the definition that the gift can be a legacy only dispose of the property in such and such a way. He to the person named in the will, because he alone can probably trust her, and whether he can trust her or takes by virtue of the will. Bearing this in my mind, not, if he takes measures to secure that it shall be in turning to the exemption in the 38th section of the forthcoming at his death, she will be bound to execute 5 & 6 Vict. c. 82, on which the question turns, the the trusts, and therefore no duty will be payable, be- proper construction appears to be obvious. That cause ex facie of the will it is all given to her. I exemption is, "That nothing herein contained shall observe that one of the learned judges, Baron Fitzge-extend, or be construed to extend, to charge with rald I think, rather alludes to a case of that sort, and says he doubts whether in such a case the court might not find the means of compelling the party beneficially interested to pay the full duty. I own I cannot follow that; and the Attorney-General for Ireland, to whom I put the question, did not contend for it. The rule, therefore, as laid down, is open to the objection that it may, according to the present state of the law, lead to parties escaping from the payment of legacy duty altogether, or very nearly so, by a testator giving the property to his wife, in which case there is no duty payable, or to a child in which case the duty is only 1 per cent., although it may really be intended to be given to strangers, the duty upon a bequest being 10 per cent. in England and 5 or 6 per cent. in Ireland. That duty of 10 per cent. or 5 per cent., as the case may be, would therefore be avoided, and a duty of 1 per cent. only or nothing at all would be paid according duty in Ireland, any legacy given for the education or maintenance of poor children in Ireland, or to be applied in support of any charitable institution in Ireland, or for any purpose merely charitable.". What is the meaning of the words "any legacy?" It is a gift which, by virtue of the will is to have effect out of the personal estate. Now, the residue in this case is not by virtue of the will given for charitable purposes, but by virtue of the trust imposed by the letters contemporaneous with the will. The duty is chargeable upon a legacy given by will. The exemption applies to a legacy given or to be applied for charitable purposes. From the comparison of the definition of a legacy with the terms of the exemption which I have made, I can come to no other conclusion than that the legacy for the charitable purpose must be expressly so given by the will itself to exempt it from duty. Upon these grounds, therefore, I think the judgment of the court below is perfectly right, and that it ought to be affirmed. LORD WESTBURY.-My Lords, having regard to the argument upon this case, I think it very material to point out that where there is a secret trust, or where there is a right created by a personal confidence reposed by a testator in any individual, the breach of which confidence would amount to a fraud, the title of a party claiming under the secret trust, or claiming by virtue of that personal confidence, is a title dehors the will, and which cannot be correctly termed testamentary. The question then arises, what is the meaning of the words in the statute that has been referred to? The object of that portion of the statute is to charge testamentary gifts with certain rates of duty according to the relation, or the absence of relation, between the testator and the donee. Now, a gift by will or a legacy by will involves, of necessity, certain things, not only a description of the subject given, but also a nomination or description of the individual to take, or the purpose which is to be answered by the legacy. If there be, therefore, a gift to A., and if there be a collateral matter which renders A. bound to apply the subject of the gift to some purpose not to be found within the expression of the gift, and the obligation arises not on the face of the will, or by virtue of the will, but arises from something aliunde, it follows of necessity that the person to be benefited cannot, with any correctness of language, be denominated a legatee, or the purpose to be effected a testamentary purpose. When therefore we are adverting, as we have to advert here, to the effect of the exemption out of legacies charged with duties, we find the words of the exemption to be a legacy "for a purpose merely charitable." If that be so, does it not of necessity follow that the purpose merely charitable being in reality the real legacy must by every rule to be derived from the nature of the subject, and from the language of the statute, be a purpose expressed on the face of the will? The exemption is intended to be applied only to testamentary bounty, and testamentary bounty to a charity, but you cannot say that this is bounty to a charity when the charity has no place, and is not to be found either in anything that is expressed in the will, or in anything that is so referred to in the will as by that reference to be made part of the will. The words unquestionably would not include a person taking by anything other than a testamentary title, otherwise there would be no limit. A legatee taking a sum of money by virtue of a will might declare a trust a day or a month after the death of the testator, and the whole of the reasoning that we have heard to-day would be equally applicable to a charitable purpose expressed in that trust, and it might be held equally to exempt the property so first given by will and afterwards dedicated to charitable purposes from being amenable to the duty. I think the conclusion arrived at by the court below is quite a correct conclusion. In matters of this kind, relating to the interpretation of fiscal Acts we are not at all to have regard to what the effect of the decision may be with reference to the fiscal duties. Our duty is limited to this, to inquire whether the tax imposed does attach, or whether, when the tax is imposed with an exemption, the particular case comes within the fair, proper, and legal meaning of that exemption. Whatever, may be the result upon other fiscal duties is not properly a subject of judicial reference upon the occasion of determining a question of this kind. I therefore undoubtedly concur in the opinion of my noble and learned friend on the woolsack, that the judgment of the court below ought to be affirmed. LORD CHELMSFORD.-The costs follow as a matter of course. Bagshawe.-Perhaps your Lordships would allow me to mention that the Lord Chief Baron thought it was a proper case to take before your Lordships; in fact he said he should desire that the decision should be reviewed. LORD CHELMSFORD.-I do not think that ought to have any effect in this case. The costs must follow the result of the appeal. Decrees affirmed and appeal dismissed with costs. Solicitors for the appellant.-Eyre and Lawson. Court of Chancery. Reported by Oliver J. Burke, Esq., Barrister-at-Law. IRWIN v. ROBERTSON.-June 15. Guardian-Purchase by, of minor's estate in the Incumbered Estates Court. On the marriage of M. I. in 1826 with her husband C. R. a sum of £1500 charged on the several lands of C. and F. the property of said M. I's father, was vested in trustees for the benefit of the children of said marriage; afterwards on the 8th March, 1837, said lands of F. and C., charged as aforesaid, and also the lands of T. were upon the marriage of J. I. who was M. I.'s brother, conveyed to trustees upon trust, among others, for the children of the marriage. Said J. 1. made his will and died in 1842, having expressly desired that his children were not to be made wards of Court, and having also appointed as his executor and also as the guardian of the fortune and property of his minor children his said brother-in-law C. R. who thereupon as such guardian entered into the receipt of the rents and profits of these denominations of lands which were in 1852 set up for sale in the Incumbered Estates Court. denomination T., C. R. then acting as such guardian and receiver was declared the purchaser for the said sum so charged for the benefit of his children, as aforesaid, on said lands of C. and F.; and in consideration thereof said Incumbered Estates Commissioners conveyed the land of T. to the then trustees of said settlement of 1826 upon the trusts thereof. The said lands of T. were in 1865 mortgaged to certain mortgagees. Held,that inasmuch as C. R. was guardian of the property of the minor children, the sale, though not to him absolutely but as mere trustee of his wife and children, of said lands could not be sustained, and that therefore he should be held to be a trustee for the said minors, subject however to said mortgage. Of one THIS was a cause petition presented by the petitioners, That 1842, and he thereby constituted and appointed his said wife Emily to be sole guardian of his said children, and he nominated his two brothers-in-law, John Duke and Caleb Robertson the younger, to be executors of his said will, and that by his said last will, which was witnessed by two witnesses only, he empowered his wife to exercise the power of appointment given to him by said settlement of the said sum of £4,000 among petitioners, Lynden Irwin and William Irwin, but which power his said wife never acted That by codicil to said last-mentioned will, dated 6th July, 1842, the said John Irwin the younger further appointed John Duke and Caleb Robertson the elder to be guardians of the fortune and property of his said children, who he desired should not be made wards of Chancery. The petition then stated that petitioner, John Irwin, junior, was resident in India since 1859, and that he reached 21 on the 21st of February, 1859, and petitioners, said Lynden Irwin and William Irwin, attained their respective ages of 21 on the 20th of November, 1860, and 21st July, 1863. That after the death of said John Irwin, junior, said Caleb Robertson, senior, as such guardian of petitioners, entered into the receipt of the rents and management of the estates down to the sale therein-after mentioned, for which he received £75 a year. said John Duke acted during said time as executor of said will and as guardian of the fortunes of the petitioners. That when J. Irwin, junior, died in 1842, his property was deeply incumbered, and in 1851 a Colonel St. John Augustus Clarke to whom was due a debt of £1,000 with one year's interest, presented, at The petition then stated that John Irwin, junior, the suggestion of said John Duke and Caleb Robertson of said John Irwin (petitioner's said grandfather) son, a petition for the sale of the lands comprised in and brother of said Mary Irwin, intermarried some the said indenture of settlement, and an order for sale time in the year 1837 with one Emily Bolton; that having been made, the said lands of Curnaveagh and upon that marriage a settlement was executed bear- Finesklin, and the said lands of Tullaghan were among ing date the 8th day of March, 1837, whereby John others put up for sale by the Incumbered Estates ComIrwin, senior, conveyed to trustees said two townlands missioners on the 30th March, 1852. That the of Curnaveagh and Finesklin, subject to said charge of yearly rental of said lands was £175. That the said £1500, and also the townland of Tullaghan to the use Caleb Robertson, senior, while acting as agent and of himself, the said John Irwin, senior, for his life, with receiver over the said lands, and as the guardian of remainder to the first and other sons of said John Irwin, the fortunes of the petitioners, bid for and was dejunior, and Emily Bolton successively in tail male, and clared the purchaser of said lands of Tullaghan for it was thereby provided that if there were two younger the sum of £1,850, which was about 10 years' children of that marriage, the trustees of a long term purchase. That by the direction of the said Caleb in settlement mentioned should raise out of said lands Robertson, senior, two of the commissioners for the sale by sale or mortgage a sum of £4,000 for such two of Incumbered Estates in Ireland, by deed poll dated younger children, the same to be payable to them in 19th May, 1852, in consideration of a sum of £1,850 such shares and proportions as John Irwin the younger stated therein to have been ascertained by the said should by any deed or writing, to be attested by two commissioners to be due to the said John Duke and credible witnesses, or by his will, to be attested by three Frederick Robertson, the then trustees of said maror more credible witnesses, appoint, and in default of riage settlement first herein-before mentioned-namesuch appointment, to such two younger children in equally, the settlement executed on the marriage of the shares and proportions, on their attaining the age of 21. said Caleb Robertson, senior, with said Mary That the marriage between said John Irwin, junior, Irwin, bearing the aforesaid date of 18th December, and said Emily Bolton, was immediately after the ex- 1826, foot of an incumbrance affecting the ecution of said deed duly had and solemnized, and there estate of petitioner John Irwin, an infant under the was issue of said marriage, viz., petitioners, John Irwin age of 21, owner, and by the commissioners autho and said two younger sons Linden and Wm. That said rized to be retained by the said John Duke and John Irwin the elder departed this life on the 23rd of Frederick Robertson in discharge of the purchaseMay, 1842, and said John Irwin the younger died on money of £1,850, they, the said commissioners did the 18th of July in the same year; that previous to grant unto the said John Duke and Frederick Robertson his death the said John Irwin the younger executed (trustees) the said town and lands of Tullaghan, with his last will and testament dated the 18th of June, the appurtenances to hold unto them, their heirs and |