The cause came on to be heard on the 15th of March 1847, when the Court was of opinion that, upon the construction of the deed of August 1819, Mrs. Ashurst was clearly entitled to a moiety of the Navy 5 per cents., and that the effect of the deed could not be avoided on the ground of mistake, unless upon a bill filed to impeach the deed; and the cause stood over in order that the parties insisting upon the mistake might have an opportunity of filing such bill.

On the 24th of April 1847, a bill was accordingly filed by the representatives of Sir Charles Mill, in the cause of Mill v. Ashurst, claiming a moiety of the stock as part of his estate. Mrs. Ashurst, by her answer, did not suggest that Sir C. Mill ever communicated to her any intention to alter the title to the moiety of the Navy 5 per cent. annuities, which he acquired under the deed of settlement of the 1st of January 1800, or to give her any beneficial interest in it.

The Solicitor General and Mr. Lloyd, for Mr. and Mrs. Ashurst.

Mr. Rolt and Mr. Giffard, for the representatives of Sir C. Mill.

Mr. J. V. Prior, for the trustees.

April 27, 1848.-WIGRAM, V.C. [after stating the facts as above].-The first observation that occurs is, that the recitals in the deed of August 1819 do not mention the deed of settlement of the 1st of January 1800, by which Sir C. Mill became absolutely entitled to the moiety of the 10,000l. It contains all the recitals material to shew the true state of the title, except that it contains a recital of the agreement between Lady Morshead and Sir F. Morshead, that at the death of Lady Morshead the 10,000l. should go to the persons entitled thereto; and then follows the declaration of trust, which is in accordance with the title shewn by the recitals, but is not in accordance with the true state of the title, as affected by the deed of settlement of the 1st of January 1800. Now, if there was no intention on the part of Sir C. Mill to alter the state of the title to the moiety of the 10,000l. by the deed of August 1819, by which a trust in favour of Lady Mill was declared, upon the supposition that it was hers, that is, if

the deed of settlement of the 1st of January 1800 was merely overlooked by mistake, it can scarcely, I think, be argued that Sir C. Mill, if living, would not have been entitled to be relieved against so plain a mistake. Even in the cases of compromises of disputed rights, arrangements will be set aside where it can be satisfactorily proved that the parties acted under a mistake. The declaration of Lord Eldon, in Stockley v. Stockley (1), on that subject, and the decision in the case of Harvey v. Cooke (2), are sufficient authorities for that purpose. If in this case the real purpose of the deed of August 1819 was merely to change the security and nothing more, an erroneous declaration of right, proceeding under a mistake such as I now suppose, could not be permitted to affect the actual rights of the parties. There was no delay in this case. Lady Morshead died in 1845, and nothing occurred after August 1819 to call attention to the subject till her death.

Then, is the alleged mistake made out? The arrangement of 1819, as I have already observed, arose solely out of the arrangement for the sale between Lady Morshead and her eldest son; and Mr. Hayes's letter to Sir C. Mill, on the 5th of April 1819, opening the correspondence, is in accordance with that; and it is deserving of notice that Mr. Hayes, in that letter, writes about the 10,000l. as if it was unaffected by any dealing with it since 1782.

By Mr. Daman's letter of the 9th of April 1819, in answer to the preceding,

it appears that Sir C. Mill had handed the business over to him; and Mr. Daman treats the transaction as one in which he is simply to see that the deeds prepared by Mr. Hayes, on the part of the Morshead family, are in accordance with the rights of Sir C. Mill. The next letter is one dated the 9th of May 1819, from Mr. Hayes to Mr. Daman, wherein he says

66

out of the purchase-money, 10,000l. is to be invested to answer the portions of Lady Mill and Mr. Morshead at Lady Morshead's death. You will get Sir C. and Lady Mill to name a person in whose name the fund should be invested." In

this letter again as in the former Mr. Hayes treats the money as belonging to Lady Mill. The next letter is dated the 30th of June 1819, from Mr. Hayes to Mr. Daman, and the same mistake appears to be continued. Mr. Hayes says "I think the best names for the investment will be Sir C. Mill and Lady Mill, Mr. J. Morshead and myself. I beg you will submit this to Sir C. and Lady Mill with my respects, and acquaint them that Lady Morshead and Mr. J. Morshead will approve of the plan, if they do." Then in a postscript he says, "A declaration after the investment is completed must be signed by the parties in whose name it is made." Now those parties include Lady Mill, who, according to the true state of the title, had no interest whatever in the fund in question. Nothing can be more plain than that up to this time the correspondence had proceeded upon a mistake as to Lady Mill having an interest in the trust monies. Mr. Hayes's next letter of the 1st of July 1819 to Mr. Daman puts this beyond all dispute. He says, that " one of the purchasers at the foot of the assignment of the term for raising portions, writes thus, 'If the 5,000l. appointed to Lady Mill was settled, the settlement should be recited, and the trustees made parties.' Be so good as to answer this as soon as you can." The next letter is from Mr. Daman to Mr. Hayes, dated the 7th of July 1819: "I waited on Sir C. and Lady Mill myself this day, and they approve of your proposed arrangement for investing the money in the funds, and they are both quite satisfied that the 5,000l. in question has never been the subject of any settlement whatever. Sir C. Mill settled a jointure on his wife previously to their marriage, which he afterwards increased, and Lady Mill in particular is quite sure that it was understood that her portion was not to be and that it never was settled in any way. As I did not act for Sir C. Mill at the time of his marriage, I was not before aware of the above circumstance." Now, from the expressions in that letter, it is plain that the parties spoke from recollection, which in fact was perfectly accurate, that the 5,000l. was not to be the subject of the marriage settlement; but there is nothing

down to this point favourable to the supposition that the attention of Sir C. Mill or Mr. Daman was called to the real state of the case. In this state of things the declaration of trust prepared by Mr. Hayes was sent to Mr. Daman and finally approved of by him on the part of Sir C. Mill before the 18th of December 1819, for on that day Mr. Hayes sends the engrossment, and says "You have a draft of the deed in case you like to examine the engrossment with it." Nothing in the correspondence afterwards occurred, except that Mr. Daman notices having required Lady Mill's signature. From this it is impossible to infer that anything was contemplated beyond the transfer of the security.

It

The next question is as to the deed declaring the trust. It was prepared by Mr. Hayes, and follows exactly the course which Mr. Hayes's original mistake would have led one to expect. recites documents which proved a title in Lady Mill; it recites an intention that on the death of Lady Morshead the money should be paid to the parties entitled thereto according to the preceding recitals and the subsequent documents; which in effect as matter of construction only, is a declaration that such are the rights of the parties. Upon this alone I think the same conclusion follows. Then what is the theory which is advanced to explain this? The suggestion made is, that Sir C. Mill privately instructed Mr. Daman that Lady Mill was to have the 5,000l. which belonged to him. I cannot admit that suggestion. The theory supposes that the real state of the title was present to the mind of Sir C. Mill: if so, why did he conceal the real state of the title when the result of his supposed intention to benefit Lady Mill is stated upon the face of the deed? The hypothesis is too absurd to be admitted; and when to this is added Cox's evidence, the theory appears to me still more inadmissible. Cox's evidence is that Sir C. Mill was a man of business, and not likely to execute a deed which he did not thoroughly understand without knowing in point of fact what his rights were. Nothing can be more opposed to that fact than that Sir C. Mill should have executed a deed, intending a benefit to his

wife, and not stating the state of the title, so that he was in point of fact giving and not merely transferring the property for the purpose of security. It was then said that the deed was actually delivered by Sir C. Mill to Lady Mill. That cannot affect the question of the intention of Sir C. Mill in executing the deed.

With regard to the decree, the view I take of it is this: one bill will be dismissed, and a decree made in the other suit for a transfer of the stock. I shall not in any view of the case give the costs, as the defendant Mill represents Sir C. Mill.

The decree declared that the moiety of the stock representing the 10,000l. formed part of the personal estate of Sir C. Mill.

Dec. 12.-The case now came on, by way of appeal, before the Lord Chancellor.

The Solicitor General and Mr. Lloyd, for Mr. and Mrs. Ashurst, contended, that the deed of trust, duly and deliberately executed, must be presumed to express the real intentions of the parties; that the judgment of the Court below had failed in throwing upon Mrs. Ashurst to prove affirmatively what Sir C. Mill intended, and that the onus of that proof ought to have been cast upon the opposite party.

Mr. Rolt and Mr. J. V. Prior, in support of the judgment below.

Mr. Giffard, for the trustees.

Dec. 14, 1848.-The LORD CHANCELLOR. -As I understand it, the deed of January 1800 was a direct appointment in favour of the daughter, and, by the marriage settlement, that 5,000l. was assigned to the husband. It no doubt at first sight appears very extraordinary and very difficult to understand how this transaction took place, but upon minutely examining the instrument itself and coupling it with the correspondence, I think the whole mystery is unravelled, and the transaction is explained so as to relieve it from any possibility of doubt.

The question is as to the sum of 5,000l. charged upon certain property over which the father and mother of the intended wife had a power of appointment; and they being minded to appoint 5,000l. in favour

of the daughter in consequence of her intended marriage, a regular appointment of 5,000l. was made to her. In her marriage settlement, which was a part of the samé transaction, though separate in point of instrument, in consideration of certain provisions made for her by the intended husband, that 5,000l. is assigned to the husband absolutely. Now, that interest in the 5,000l. was reversionary expectant on the death of the father and mother: it was a sum therefore in which the husband, if nothing had been done to give him the property, would have had certainly a contingent right and interest; because, if it fell into possession during the coverture, the husband would have been entitled to it jure mariti, if nothing had been done to bar his marital rights. Upon the other hand, if the wife had survived him she would have been entitled to this chose in action if not reduced into possession during the coverture. The effect of the settlement, therefore, was to deprive her of that chance of survivorship. If she died first, the settlement would have given him no benefit, for he would have taken it jure mariti; but in the event of the wife surviving, it protected him against that chance, and gave him at all events a direct and immediate benefit in the reversionary interest. Then, in the year 1819, there being an arrangement in progress, not touching at all the interest in the 5,000l., but touching the property on which it was charged, the instrument of 1819 recites the transaction up to the execution of the power in favour of the daughter, the intended wife, and there it leaves it. Then it goes on, as a necessary consequence of a title so recited, to shew the title to be in her, and being in her, if it had not been affected by any transaction on her marriage, it would be her expectant reversionary interest to be disposed of according to the event of her surviving or not surviving. In the one case, it would have become the property of the wife, and in the other the property of the husband jure mariti; and therefore most consistently with that view of the state of the title, the conveyancer proposes to make it payable to her, because in that view of the state of the title it was hers, and there was nothing upon the face of the deed shewing the property, so vested in

her by this appointment to have been affected by any subsequent transaction. The effect of that deed would be, to do what the law would have done without it.

The property belonged to her contingently during the life of the father and mother: and it was therefore uncertain and depending upon the survivorship, whether the husband would have been entitled to it or the wife; therefore it was made payable to the wife. There is nothing inconsistent upon the face of that instrument, looking at the mode in which the title is recited. Then it is said, that that of itself is rather extraordinary upon the face of the instrument, because the husband and wife being parties to the instrument of 1819, and they being also parties to the marriage settlement, it was a very extraordinary thing, that in dealing with this property they should omit to take notice of the operation of this settlement as affecting the 5,000l. The attention of the parties is drawn to the settlement; but no notice is taken of the instrument as operating on the interest of the 5,000l.; but when you look at the letters, the whole mystery is unravelled; and it is perfectly plain how that took place. The conveyancer in preparing the deed, seeing that 5,000l. had been appointed in favour of the daughter, very naturally asks the question, "whether the 5,000l. is settled? for if it is settled, then the trustees of the settlement ought to be parties." That is the inquiry he makes. It all turns on the meaning which the parties attached to the word "settled." The conveyancer's object was to know whether any of the parties to the settlement became necessary parties to the instrument he was preparing. The answer is, they have inquired of the husband and wife, and they both agree that it never was settled, or as the expression is, "the subject of settlement." That is a total misapprehension. In one sense it is true; it was never vested in trustees and made the subject of a provision for the wife and children; but it was acted on by the marriage settlement, and it became one of the subjects of the marriage settlement; and the effect of the marriage settlement was to give it to the husband, and to deprive the wife of her chance of the survivorship, which she would otherwise have had. And then, with that

information which was understood to mean that the settlement did not touch it, but left it where it was, the conveyancer most properly assumed those facts to be the case, and left the property as it would have been if not touched by the settlement, the property of the wife, and therefore uncertain to whom it would ultimately belong. Now, then, if this property, which was clearly the property of the wife in the first instance, has clearly become the property of the husband, what has happened to change the interest in that property? Not this mistaken recital of the state of the title. If you can find anywhere an intention on the part of the husband to give it to the wife, no doubt, whether it is in one sort of instrument or another, it will operate for that purpose. The husband now

claims it, and the wife must shew some intention on his part to bestow that 5,000l., which was his by the settlement, on the wife. But not only is there no evidence of that, but the deed proves to demonstration, in my opinion, that no such intention existed.

What must you suppose to be the case? This property being the property of the husband under the marriage settlement, he being minded to bestow it upon his wife, adopts this extraordinary course; he not only conceals that he is the party to take, which it is obvious he did from the instrument itself, but by the instrument he conceals the fact of its ever having been his : he is a party who, without speaking of his liberality or the benefit he intended to give, suppresses the fact that he ever had any interest, and represents it as belonging to the party on whom he intended to bestow it. That is so entirely out of all reason that it cannot be supposed to have entered into the mind of the party. The deed recites that it is hers. How can it be supposed that property belonging to another party was intended to be given by this instrument? It is quite clear that there was a misapprehension, and that the inquiry was answered in the way I have explained, the husband and wife not having their attention directed to the fact, and the professional men who were employed acting upon the answer to their question, as I have stated, considered it never had ceased to be the property of the wife, and

it remained in point of interest precisely as it did on the execution of the appoint

ment.

Well, if there is no evidence of an intention to give, you cannot take it from the party who is proved to be entitled to it, without shewing an intention to part with it, and it is not by a recital or a statement, or acting upon a state of title which did not exist, that the interest of a party can be changed. In point of fact the deed is perfectly innocent for that purpose. The property was a chose in action belonging to the wife. She, by the marriage settlement, being equitably benefited by that settlement, and having that chose in action, parts with her property and gives it to her intended husband. She remains ostensibly under the appointment the party to receive, and the deed treats her as the party to receive. Does that take away all effect of the marriage settlement by which her beneficial interest is taken from her, and given to another? If she takes under this instrument, and if there had been no such instrument, and she survived and actually received the money, (which undoubtedly she would have been entitled to receive, if it had not been for the marriage settlement), can it be doubted that the fund would have been subject to the trusts of the marriage settlement? She had previously parted with the interest in that fund, which ultimately comes to herself. The instrument itself is operative for the purposes for which it was intended; but it is an inaccurate dealing with the fund in this state of the title, and it cannot affect the interest of the parties according to the uses as they were created under the marriage settlement; and the result is, that the instrument stands for all the purposes for which it was intended; and notwithstanding that instrument, the property was the property of the husband, as it had been bestowed upon him by the marriage settle

ment.

Now, agreeing in the result with the Vice Chancellor, I have looked at the decree for the purpose of seeing whether the decree carries into effect the settlement in the way in which it strikes me it ought to be carried into effect. I find it does exactly. It does not profess to alter the deed, but merely declares the 5,000l. to

The bill stated the operative part of an original lease, and set forth a covenant therein contained, on behalf of the lessee, to the effect that he, his executors and administrators, would not assign or underlet the demised premises without the licence of the two lessors, such licence if obtained not to extend to any future assignment or demise, nor to be construed as a waiver of the said covenant, but to be confined from time to time to the person or persons to be named in such licence. After deducing the plaintiff's title as assignee with licence of the surviving lessor, to the said premises, and detailing the particulars of a treaty between the plaintiff and the defendant relative to the assignment and sale of the same, the bill stated that the defendant inspected and considered the said lease, and the assignment thereof to the plaintiff, and that at an interview between the surviving lessor's solicitor and the defendant, the latter was informed by the said solicitor that the lessor's consent to an assignment to a responsible person was a matter of course, and would be given to an assignment to the defendant. It then set forth a