horse. I never saw him coughing since; I am riding

Sweeting (9 C.B., N.S., 843); Valpy v. Gibson (4 C.B. 837); Bushel v. Wheeler (15 Q.B., 442, n.); Wright v. Percival (8 Law J., N.S. Q.B., 258.) Walshe, Q.C., (with him Serjeant Armstrong) contra for defendant in support of the conditional order. Unless the vendor's lien is parted with there is no delivery under the Statute; and here it cannot be said that the vendor's right was gone.-Kealy v. Tenant (13 Ir. C. L. 394); Tempest v. Fitzgerald (3 B. & Al. 680); Carter v. Toussaint (5 B. & Al. 855); Bill v. Bament (9 M. & W. 36); Holmes v. Hoskins (9 Exch. 753); Astey v. Emery (4 M. & S. 262); Cawthra v. Billiat (3 F. & F. 850); Barnett v. Farley (11 Law T., N.S., 107); Smith v. Hudson (34 Law J. Q.B., 145).

Ryan in reply.-The direction by defendant to plaintiff to have the horse shod, shows that defendant exercised his power of ownership over the animal. The transaction was complete previous to the repudiation subsequently, and could not be affected by it.

Cur. adv. vult.

Jan. 31st.-The unanimous decision of the Court was given by

PIGOT, C.B. The law is quite clear in cases such as the present, the application somewhat difficult. [His lordship referred to the facts and decisions in the several cases cited in the argument, and proceeded as follows.] I have referred to these cases in some of which on very similar facts the decision was one way, and in others the contrary, to shew how difficult it is to decide a case like the present by the authorities. It was urged by defendant's counsel that where the right of lien continues there can have been no change in the possession. A better criterion is given in Parker v. Wallis, viz., that the purchaser (in order to accept under the Statute) must do something to indicate that he has taken possession of the article: he must do something which would be justifiable only on the ground that he was the possessor of the article and not otherwise. As to the transaction at the railway station, it is impossible to treat defendant as then accepting the horse. Lett, as plaintiff's agent, took the animal to the station, intending to keep possession of him until paid the purchase money, he then took him away as he was not paid, defendant being unable to take the horse as there was no room in the train. The next matter to be considered is the correspondence. The letter most relied on by plaintiff's counsel is that of April 26th. But I think there was no evidence that plaintiff ever acceded to the contents of that letter; there was even no evidence that the horse was shod. The plaintiff's whole conduct was consistent with his being an unpaid vendor. The subsequent letters amount to nothing more than a desire on plaintiff's part that defendant should take the horse, and excuses made by the defendant. Plaintiff speaks of his wishing to know what day defendant would send for the horse, lest he might be riding him and absent from home. That letter is equivocal, for plaintiff may have meant either that he was giving the horse moderate and beneficial exercise, or else that he was using him as his own property. But it is not necessary to refer to that letter.

Now

81

comes the interview of June 10th; defendant came to
plaintiff's house, and I asked to see the horse with an
saying that he would not take him unless he was
unjustifiable statement as to his being unsound, and
sound. Plaintiff answers him, "I will not let you
unsound.”
see the horse unless you tell me who told you he was
ship exercised by plaintiff. We think there was no
That was an unequivocal act of owner-
evidence of acceptance to go to the jury, and that
therefore the verdict must be entered for defendant
with costs.

Court of Chancery.

Reported by Oliver J. Burke, Esq., Barrister-at-Law. JOHNSON v. GRAY.-June 9, 12, 13, 1865; Jan. 23, 1866.

Bankers-Trust moneys-Breach of trust.

Where moneys clothed with trusts were lodged by a trustee in his banker's hands, and where such banker was fully aware that said moneys were trust moneys, and where trustee afterwards withdrew said moneys from said banker's hands for the purpose of applying same to purposes foreign from the trusts, and in breach thereof-Held, that the bankers, by paying out same, (they having knowledge of the breach), became participators in the breach of the trust, and were decreed in a suit against them by the cestui que trusts to replace the funds so paid away by them.

The

THIS was a cause petition filed by George Joseph Johnson, the petitioner, against Robert Gray, John T. Gray, of College-green, in the city of Dublin, bankers, and Ellen Johnson, respondents. petition prayed that a certain sum of £1196 14s. 6d. might be declared to be the assets of Thomas Johnson, deceased, and that the respondents, Robert Gray and John T. Gray, be ordered to replace and make good said sum to the estate of the said testator; and also that the trusts of the testator's will be carried into effect; and that said sum of £1196 14s. 6d. might be applied under said will in due course of administration.-The material facts of this case, as disclosed on the face of the petition, are as follows:— Thomas Johnson, of Upper Sackville-street, in the city of Dublin, was at the time of his death, which happened on the 29th of June, 1859, possessed of four policies of insurance effected by him upon his own life for a sum of £4000, subject to certain claims of the insurance company. That for several years previous to his death said Thomas Johnson carried on the business of a silk mercer in partnership with his son-in-law, Samuel Mayston, under the style of Johnson and Mayston. That from the commence

pany. The petition then proceeded to state the breach of trust, for which the present petition was filed, was as follows:-On the 21st of October, the day upon which the Grays received the said monies from the insurance company, they made out their accounts with the new firm of Johnson and Mayston; and the sum of the debts of the old firm and the new equalled £229 9s. 3d. (which sum exceeded the amount due by Thomas Johnson and Co. to Gray and Co. at the date of Thomas Johnson's death), leaving a balance in Gray and Co's hands of £853 17s. 5d. On the 9th of November following a cheque was made out by the said Grays, the respondents, but in whose favor the petitioners were unable to state; but on the same day the said cheque was placed by said Grays to the credit of the new firm of Johnson and Mayston in their accounts as bankers of the said new firm. And petitioners charged that the said £853 17s. 5d. was afterwards applied in liquidation of debts contracted by the new firm with the said Robert and John Gray, and that such application was a breach of trust on the part of the respondent, Ellen Johnson; and that Robert Gray and John Gray had full notice of the breach of trust, and participated therein. That petitioner never received any assets of his said father; and that ever since his death until immediately before filing the cause petition, he had been absent from Ireland, being a sea-faring man; and that on the 6th of September, 1864, he applied to Messrs. Robert Gray and John Gray to reinstate and make good the sum of £1196 14s. 6d. This application was left unanswered by said Grays, and they had not reinstated the said monies. The case made by the respondent was first an absence of notice; secondly, even supposing they had

ment of said partnership, and up to Thomas John-vious to receiving said sum from the insurance comson's death, the said firm of Johnson and Mayston dealt exclusively with the respondents as their bankers. That in the course of their dealings with Robert Gray and Co. the said firm became indebted to said bankers, the respondents, in considerable sums of money, to secure which sums so due, and also any further sums of money that might, thereafter should or might, accrue due, Thomas Johnson deposited with the said Grays the said four policies of insurance. The petition then stated that Thomas Johnson made his will on the 30th of April, 1859; that will is as follows:-"I give and bequeath to my dear wife, Ellen Johnson, otherwise Rees, all my right, title, and interest in and to my premises known as No. 14 Upper Sackvillestreet, in the city of Dublin, in which I now carry on business, in partnership with Mr. Samuel Mayston, with all my other property, of every nature and kind wheresoever which I now am, or may, or may hereafter become possessed of or entitled to, to be divided amongst my children or grandchildren at her death, or sooner if she think fit, as to her may seem most for their advantage; and I appoint my dear wife sole executor of this my will, in witness," &c. Said Thomas Johnson died on the 29th of June, 1859, and probate was granted on the 6th of August following to said Ellen Johnson. At his death Thomas Johnson left four children, namely-George Joseph (petitioner), Henry, Anne Mayston, otherwise Johnston, since deceased, wife of said Samuel Mayston, and Alice, wife of Richard Wilson. The petition then stated that immediately after the death of Thomas Johnson, Ellen, his widow, entered into partnership with said Samuel Mayston, and jointly with him continued to carry on said business of silk mercers under the former name, style, and firm of Johnson and May-notice that trusts were fastened on the said sum of ston; and said new firm continued from the time of its formation to deal with said respondents as their bankers. After proving said will, respondent, Ellen Johnson, at the request of the Grays, to enable them to obtain payment from the insurance company of the amount due on the policies, handed over the probate of the will, together with a receipt signed by her for the sum of £3683 6s. 8d., the amount so due upon foot of said four policies; and the said Ellen Johnson thereupon received from the said Grays the following letter:-"3, College-green, Sept. 9, 1859. Madam,-To enable me to receive the amount you have this day at my request signed as his executrix for the sum of £3683 6s. 8d. payable to you on the policies with the United Kingdom Assurance Co. on the life of your late husband, Mr. T. Johnson, out of which sum I am to retain the amount due to me at foot of my account with Johnson and Mayston on the 23rd October next, and I undertake to pay over to you the balance of said insurance money. Yours, &c., ROBERT GRAY & Co." That said insurance company in due time paid said sum to Robert Gray & Co. who then retained thereout the sum due to them, viz. £2486 128, 2d., leaving a balance of £1196 148. 6d, which last mentioned sum petitioners now submitted was a part of the assets of Thomas John, son, and as such were subject to the provisions and trusts of his will, and of all of which, petitioners charged that said Gray and Co. had full notice pre

£1196 14s. 6d., yet, even so, that according to the law and the recognized and established customs of bankers, the respondents (the Grays) were not under any obligation of taking any notice of trusts (if any) affecting sums of money lodged with them as bankers in the usual course of business.

The Solicitor-General (Sullivan), with Purcell, Q.C., appeared for the petitioner. The respondents, the bankers are liable because they acquiesced in the breach of trust by Mrs. Johnson-M'Leod v. Drummond (17 Ves. 170). There is no primary liability in respect of breaches of trusts; all parties to a breach of trust are equally liable― Wilson v. Moore (1 Mylne & Keene, 127); Keane v. Roberts (4 Mad. 351). The next case bears especially on bankers-Bodenham v, Hoskens (21 L. J. N. s. 864; s. c. 2 De Gex, M3N. & G. 903); In re Johnston's estate (15 Ir. Ch. Rep. 261); Pannell v. Hurley (2 Coll. 241); Walker v, Taylor (8 Jur. N. S. 681).

-

The Attorney-General (Lawson), Warren, Q.C., and Byrne, appeared for the respondents, the Grays. This is a highly important case to the public, affecting, as it does, the liability of bankers. The Messrs. Gray had no power on earth to do anything else in this matter than to pay across the counter the cheque that was presented to them. It would be unwarrantable for them to do anything else than to honour the cheque, the sum being lodged to the credit of the firm who presented the cheque. The

Ease of Wilson v. Moore relied so strongly upon the other side did not bear upon bankers, but was entirely Conversant with agents. The Bank of England would take no notice whatever of trusts; they never look beyond the legal title, and they cannot prevent an

or selling out, or transferring stock into estate for the amount of the produce of stock, part of

700

their own answering affidavit they were cognizant of the trusts being in existence. Wilson v. Moore (1 Mylne & Keene, 126) was where the commercial correspondents of executors acting under a power of attorney were held to be responsible to the testator's his own name. Bank of England v. Parsons (5 such estate, sold by them, and applied by the direction Ves. 665). They are not chargeable if he transfers of the executors in payment of a balance due from the the stock to persons not entitled under the will.- latter, as partners in a commercial concern, to their Lady Mayo's case (Lofft. 65); Hartga v. Bank of correspondents, with faff knowledge on part of the England (8 Ves. 55). If the banks were to look to correspondents that the stock was part of the testatrusts, they might be saddled with resulting trusts, tor's assets. Well, in the case before us, no doubt and would be charged with all the trusts in the king- Mrs. Johnson, that is, the firm of Johnson and dom. Clearly an action would lie against us if we Mayston, was the party, or rather the parties, who did not honour this cheque for this £800 odd shillings. were to be benefited by this breach of trust in handling Marzetti v. Williams (1 .Barn & Ad. 415) decides the sum which was so clothed with a trust; but there is this last proposition.Grant on Bankers, 377. We no primary liability in respect of breaches of trust-all, were bound then to pay this cheque, and by the cus-whoever they may be, to a breach of trust, are equally tom of bankers we could not decline to do so.- Foley liable. Well, that case was afterwards confirmed on 7. Hill (2 Cl. & Fin. H. L. Cas. 28) is cited to shew that "the relation of banker and customer does not partake of a fiduciary character, nor bear analogy to the case of principal and factor or agent, who is quasi trustee for the principal in respect of the principal matter fot for which he is appointed factor or agent." Jan. 23, 1866-THE LORD CHANCELLOR. This case was argued before me in the month of June last, and I regret having been unable to give judgment unil now. The petitioner here is George Johnson, who is á son and one of the children of Thomas Johnson, deceased, and he seeks to restore to the assets of said Thomas Johnson, deceased, certain sums of money which were in the hands of the respondents, the bankers. Well, the facts of this case are few and not very complicated. [His Lordship read the facts as given in the petition.] The question I am now considering has reference to the respondents the Grays, and not to the breach of trust committed by Mrs. Johnson, the widow of Thomas Johnson. It is not denied that Mrs. Johnson was guilty of a breach of trust. The question then is, what is the law with regard to bankers? Mrs. Johnson drew this cheque for £853 17s. 5d. in favour of the new firm of Johnson and Mayston, and that sum was afterwards applied in liquidation of debts contracted by the new firm. Now, this law is certain, that if an agent or banker transfer money from one account to another, one being that of a trustee of the fund, and the banker that so transfers this trust money, if he have know. ledge of the trust, this Court will hold that that transfer is concurred in by the banker. The case of Keane y. Roberts (4 Mad. 333) is very applicable. There it was held that is Bankers, the agents of exe

,

cutors, and authorised by them to receive certain assets remitting the amount to executors in the course of their duty as agents, and afterwards applying the assets, when received, in payment of the amount of such remittances, are not responsible in respect to a misapplication by the executors; they not being privy to any intention of such misapplication." I would have no hesitation in saying that Messrs. Gray could not be made to replace this money if they knew nothing of the prior transaction, if they were quite ignorant of the moneys being subject to trusts; but were they ignorant-decidedly, looking at

appeal reported page 337 in the same volume of
Mylne and Keene. This case, however, it is said, is
not a case as regards bankers, but it makes, in the
eye of a Court of Equity, no difference whether he be
banker or agent, if a breach of trust be committed,
and if he be a party thereto with knowledge of the
breach of trust; and after all the arguments in this
case it comes round to this was there or was there
not knowledge by Gray of the breach of trust by Mrs.
Johnson, and was he aware that the money he so
transferred was unaware
trust money. There is however a
case directly to show that there is no exception to the
case of bankers.-Parnell v. Hurley (2 Coll. 241).
Bankers, under the circumstances of the case were de-
creed to refund moneys which had been drawn by a
trustee from a trust account standing in their books,
and placed to the credit of a trustée's private account
at the bank, upon the balance of which latter account
the bankers were creditors. The Vice-Chancellor, in
this last-cited case, says, "Money is due from A. to
B. is indebted to A. on his ac-
B. in trust for C.
count. A. with full knowledge of the trust concurs
with B. in setting one debt against the other which
is done without C.'s consent. Can it be a question in
equity whether such a trailsaction can stand?" Now
I can conceive nothing more like the case before us
than that put by the Vice-Chancellor. There is also
a case decided by Lord Justice Knight Bruce-Bo-
denham v. Hoskens (2 De Gex MN. & Gord. 903),
which is a case entitled to very great respect. It was
an appeal from the decision of Vice-Chancellor Kin-
dersley. There an agent of an estate who had his
own private account at his bankers, opened another
account with his said bankers under the name of the
estates over which he was appointed agent, and for
the purpose of placing to the credit thereof such
sums as he might receive in respect of the rents
and profits of the estate, and the banker was
informed that those rents would be paid in to that
account, and that in fact they belonged to the owner
of the estate. Well, the receiver then drew a cheque
on that account, and he paid the money into his own
private account; the agent was in insolvent circum-
stances, and upon the discovery of the transaction a
bill was filed against the bank praying that the trans-
fer might be declared fraudulent and void, and that

the bankers might be ordered to make good that | maintain, and keep the premises thereby demised and amount, and it was held by the Vice-Chancellor, and every part thereof, and all houses, buildings, orchards, afterwards affirmed on appeal by Lord Cranworth and gardens, inclosures, hedges, ditches, fences, and other Lord Justice Knight Bruce that the bankers were lia-improvements which then were or thereafter might be ble to repay the amount to the owner of the estate. in or upon the said lands, &c. in good and sufficient Well, I then am of opinion that bankers stand in no tenantable order, repair, and condition." The defenhigher position than any other person, and if they pay dant pleaded performance in the language of the comoney with the knowledge that what they pay is venant, and the issue to be tried by the jury wastrust money, they are responsible, and that being so, "Did the defendant at all times during the said term, I shall decree that the respondents, the Grays, do re-well and sufficiently repair, uphold, maintain, and keep place those moneys which they have paid out with the the premises in plaint mentioned, and all houses, full knowledge of the breach of trust by Mrs. John-buildings, orchards, gardens, inclosures, hedges, son. I shall, however, direct the interest of those moneys to be paid to the Messrs. Gray during the life of Mrs. Johnson, and I shall secure the moneys for the benefit of the children of the late Mr. Johnson, to be paid upon the death of Mrs. Johnson in the manner provided by Mr. Johnson's will. The respondents, the Grays, must pay the costs of this suit.

Court of Queen's Bench.

Reported by William Woodlock, Esq. Barrister-at-Law.
[BEFORE LEFROY, C. J., AND O'BRIEN, J.]

CHALONER v. BROUGHTON.-Jan. 20, 22, 26.

ditches, fences, drains, and other improvements thereon, in good and sufficient tenantable order, repair, and condition, according to the form and tenor of the covenant in said plaint mentioned, as in said defence alleged?" At the trial the following facts appeared, as stated in the report of the learned Chief Justice. The lease which contained the covenant was still subsisting. The demised premises consisted of a dwelling-house, extensive out-offices, and a farm of considerable extent. The plaintiff originally complained of several breaches of the covenant in question, but at the trial relied altogether on some of the offices being out of repair. It appeared that the house and offices, when demised, were very old, the offices thatched: and what the plaintiff principally relied on was one large out-house called "the Bullockhouse," being in a state of ruin, the roof fallen in. The defendant's case was, that the state of the premises at the time of the execution of the lease was such that it was impossible to keep them in repair without rebuild

Covenant to keep premises in repair-Obligation to ing them; that he had repaired them as far as prac

rebuild.

dant being liable to a further action at the termination of the lease. The Chief Justice was of opinion that the proper estimate of damages was not what it would take to put the offices in repair, but the depreciation in the value of the landlord's reversionary interest if now to be sold. Both parties acquiesced in this, and with their assent the Chief Justice left the following three questions to the jury:

ticable, and that ultimately they fell from decay which no repairing would have obviated. At the close of To an action for breach of a covenant to repair and the case on both sides, two questions were discussed keep in repair certain premises, the defendant by the counsel; first, whether the impossibility to pleaded performance of the covenant. The jury repair without rebuilding, was at all a defence, and, if on the trial found, first, that the premises were not it were, whether it should not have been specially in repair at the commencement of the action, and, pleaded: second, what was the proper criterion of secondly, that having regard to the state of the pre-damages, the lease not having expired, and the defenmises when demised to the defendant, they could not have been repaired and kept in repair without having been rebuilt. Held, that the covenant could not be held to impose an obligation to rebuild upon the defendant, and therefore, that on these findings he was entitled to have a verdict entered for him. THIS was a motion to show cause against a conditional order of the 4th November, 1865, whereby it was ordered that the verdict had for the plaintiff at the then last assizes for the County of Meath before the Right Honourable the Lord Chief Justice of the Common Pleas, should be turned into a verdict for the defendant pursuant to leave reserved. The action was brought by the plaintiff against the defendant for an alleged breach of a covenant contained in a demise of the lands of Lower Rathenree, bearing date the 9th December, 1853. The summons and plaint contained a count setting out the said indenture of lease, and the covenant, which was in the words following, that is to say, "that defendant, his executors, administrators, and licensed assigns, should from time to time, and at all times during the continuance of the said demise, well and sufficiently repair, uphold, preserve,

1. Were the premises in repair according to the terms of the covenant at the commencement of the action?

The jury, under the Chief Justice's direction, found they were not.

2. Whether, having regard to the state of the premises when demised to the defendant, they could have been repaired, and kept in repair without having been rebuilt?

The jury found they could not.

3. To what amount was the value of the plaintiff's reversionary interest in the premises diminished by reason of the premises being out of repair?

The jury found that the value of the plaintiff's reversionary interest was not diminished, being of opinion that the offices were useless.