manner claimed by the bill, and were bound to accept a legal assignment of the lease. They cited

Lucas v. Comerford, 3 Bro. C.C. 166;

s. c. 1 Ves. jun. 235. Close v. Wilberforce, 1 Beav. 112; s. c. 8 Law J. Rep. (N.S.) Chanc. 101. Willson v. Leonard, 3 Beav. 373. Robinson v. Rosher, 1 Y. & C. C.C. 7.

KNIGHT BRUCE, V.C.-What I should have thought of the case, if a contract had been stated between the plaintiffs and the demurring defendants, is not necessary to say. As I understand the bill at present such a contract is not stated. What I should have thought of the bill if it was stated that an assignment without the consent of the plaintiffs was or could have been wrongful is also not necessary to say; as I understand that the lease is not stated as containing such a provision. Again, how the matter would have stood if it had been alleged that an untrue representation had been made by the demurring defendants to the plaintiffs, upon the faith of which the plaintiffs had done an act prejudicial to themselves, it is also not necessary to say. Such a case, as I understand the matter, is not stated. The bill, as I at present view it, appears to be simply the case of a lease made by A. to B, which B, afterwards, equitably but not legally, assigned to C; C. taking possession, acting as owner of the lease, paying rent, conducting himself as if he were the owner of the lease, and treated by A, or, as the bill phrases it, "accepted by him as owner of the lease;" and, therefore, a bill filed by the landlord, to compel the equitable owner of the lease-equitable owner, as between the lessee and himself-to take a legal assignment of the lease. I am not aware of the existence of any such equity. I will again read through the bill; and, if necessary, hear a reply. At present I allow the de

murrer.

It was subsequently stated that the demurrer was allowed.

The plaintiffs appealed from His Honour's decision, and the case was argued before the Lord Chancellor, by

Mr. Russell and Mr. R. Palmer, for the defendant; and

Mr. Rolt and Mr. Webster, for the plaintiffs.

Nov. 7.In this case the question is, whether the bill states grounds for the equitable interposition of this Court. The case made by the bill is, that the plaintiffs, being entitled to the property, made a lease of it, and that the party to whom that lease was made afterwards deposited the lease with the present defendants, as a security for a sum of money; that the rent being in arrear, proceedings became necessary on the part of the owners of the estate to obtain payment of those arrears of rent; that the distress was replevied, and that the party who paid the money for the rent so due, together with a subsequent sum which became due after the distress, was not the lessee, but these defendants, who were the depositaries of the lease as security for the debt. The lessee, however, at that time remained in possession; but subsequently possession was found to be in the hands of those who had the deposit of the lease. It appears that when the bill was filed no rent was due; that arrangement and payment had cleared off the rent up to some day in November 1847; and the bill was filed before the expiration of the next half year. Nor is it alleged in the bill that any rent was due; nor does the bill pray the payment of any arrears of rent, or the performance of the covenants in the lease; but it prays a declaration that the defendants, the depositaries of the lease, prospectively were liable to the rent reserved by the deed, which was the lease. And then it prays that they may be decreed to accept, and the lessee to execute, an assignment of the lease.

The LORD CHANCELLOR.

It appears therefore on the face of the bill, that the whole connexion of these defendants with the property or with the plaintiffs was, that they had taken a deposit of the lease by way of security for a sum of money. It is true that possession is alleged. It is not true, however, that the bill is framed for the purpose of calling for an execution or performance of any of the covenants of the lease.

It is not alleged that at this moment there is any breach of any of those covenants. The bill only prays prospectively that the defendants may be declared liable to the covenants, and that they may take and execute the assignment of the lease. No doubt, if that were decreed, they would hereafter become liable at law, for they would

then become assignees of the lease; and they would thus be liable to the covenants contained in the lease. And the question made by a bill, and so stated, I think would raise no great degree of doubt in the mind of anybody acquainted with the proceedings or principles of a court of equity.

The first question to be asked would be, what privity is there between the plaintiff and the defendant? Why does the owner of the estate come into equity to pray that the party who has nothing more to do with the estate than that he has taken a piece of parchment from the lessee, has incurred any liability to the lessor, and thereby put himself in a totally different situation from that which he intended; namely, to clothe himself with the legal liability of the covenants, by means of taking an equitable assignment of the lease. It was no part of the contract to take an assignment of the lease; they merely did that which was enough, namely, to accept a deposit of the title deed of the party with whom they were dealing, to secure a debt due to them from that party. If relief of that character were to be administered in this court, it would actually prevent anybody hereafter ever taking a deposit of a lease as a security for a sum of money; for no man in his senses would take a deposit of a lease if he were to render himself liable to the covenants of it. He has no connexion with the property, but to hold the document deposited for the purpose of securing the debt. With respect to a party holding such a deposit, whether the relief against him, or the relief by him rather against the person who makes the deposit, would be to sell the property deposited, or whether it would be to obtain the assignment of the interest of that party, is a matter which at present I do not feel it necessary to consider. I shall have occasion to consider that for another purpose; but it is not necessary to consider it now, because I cannot understand what right the lessor has to come to a court of equity to put the defendants, the mere depositaries of the lease, in a totally different situation from that which they intended to place themselves in by any contract with any other person.

If, therefore, the case had stood without authority, it would not have raised a doubt in my mind, that such a claim could not NEW SERIES, XVIII.-CHANC.

be enforced in a court of equity. I must observe, here, because it is rather material (not material in my view of the equity to be administered or refused in this case, but material) for the purpose of distinguishing it from other cases- -that this is not a case in which the Court is called on to give effect to an equitable title to the whole lease as against an equitable assignee; but it is to compel the depositaries to make themselves the legal assignees. It is not, therefore, a case in which the Court says, "You, in equity, are beneficially entitled to the lease; and therefore we will deal with you, and give to the plaintiff all the relief which he would be entitled to at law, if you were the legal assignee." It would be difficult. to enforce the equity if that case were to arise. That is not the object of the present bill. There are no covenants broken, no relief prayed on any of the covenants contained in the lease; it is simply for a declaration. It comes to nothing except as leading to the other part of the prayer, namely, that they may accept an assignment of the lease. There is nothing in the bill but a question, whether the party holding a lease by way of deposit is, therefore, to be compelled to make himself the legal assig

nee.

It was hardly argued that that could

be done.

Then it was said, that there was something more in this case. The parties are in possession; they have dealt with the property; that is to say, they paid the rent due from the party from whom they took the deposit. Is that to make them liable to those covenants which the lessee had entered into? A lessee is liable to a distress from his landlord; and the goods being distrained, some other person, from interested motives or motives of friendship, comes in and pays the demand of the landlord-takes no assignmenttakes no security beyond what he had before-but comes in and pays the debt. That would not make him liable: he might pay it for or on behalf of the party who owed the money. That of course could not make a party advancing money liable to any of the provisions of the lease. Well, then, does his being in possession make him liable? If that were so, there would be an end of the distinction which is continually kept alive between dealing with a lease by way of assignment and security for

D

money advanced and dealing with a lease at law. Taking an under-lease does not render you liable to all the covenants in the original lease, but an assignment does; and, therefore, all the world knows that the way to deal with the lessee is not to take an assignment of his interest, but to take an under-lease from him. Then you are liable only for what you have contracted for, and are not liable to the contract contained in the original lease. Possession, therefore, can go for nothing. You can only have reference to the title under which that possession is taken; and if that possession was not taken under a title, the mere possession can go for nothing.

There are three things altogether which are alleged, namely, the being the depositaries, the having paid the rent during the time the lessee was in possession, and having subsequently been found in possession. None of these things taken separately can operate to expose the defendants to the liability of the covenants of the lease; and if none of them separately will, it is very difficult, by reasoning, to establish a ground why they jointly shall have that effect.

Nor do I see any reason whatever why equity should step out of its way; and why instead of following the law, which is the general rule, it should run before the law and create a liability to which the parties are not liable at law. A party having the legal assignment is not liable. Why should equity step in and say, "Although you are not liable at law, you are in equity"? There is an absence of all authority, or principle at least, on which any such doctrine could be maintained. But this, perhaps, would be a more important question if the cases were directly in point; because however difficult it may be to discover the reasoning, if that is the established law of the court, it is not for any person here to set up his judgment against that which has been established by a long course of proceedings.

But then I am told, that in the case of Lucas v. Comerford, there is a distinct authority, in which Lord Thurlow did administer that relief; and notwithstanding that case has been open to a great deal of investigation and a great deal of observation, I cannot but say that it is applicable to the question; and unless there is something still behind in that case, which has not yet been

The

discovered, it is a decision by Lord Thurlow, that a party having an equitable interest in a lease is liable to a decree of a court of equity, not on behalf of the party with whom he is dealing, but on behalf of the owner of the estate, the original landlord, to compel him to take a legal assignment of the term. No doubt an authority of that sort from such a Judge as Lord Thurlow was, if it had been sanctioned by practice following upon it, would have been an authority which I should not have been at liberty to meet by any contrary decision. It is singular, however, as I have observed before, but it is quite clear on looking into the report of that case, that, singular as it may appear, the point does not seem to have been very directly raised before Lord Thurlow. There the covenant in the original lease was, at a certain period of the lease, to rebuild the house. The lessee, before this covenant was performed, indeed before the time at which it ought to have been performed, deposited the lease or agreed to assign the lease to another person. question was, whether the person so holding the lease was bound by that covenant. The bill was filed to enforce that covenant for a decree to compel the defendant, the depositary of the lease, to rebuild the house, not, as here, asking to execute a legal assignment of the lease, but directly for the purpose of having the covenant executed and enforced, as against the defendant. Now it appears the defendant rested his case upon the rule that this Court will not specifically execute a covenant to build, and the argument turned upon that. Certainly it was pressed for, the other objection being raised, but the defendant seems to have rested his case on the rule that equity will not enforce a covenant of that description; that is, will not specifically perform it. And so Lord Thurlow thought, and said he could not by decree direct a party to perform a covenant of that description. Then the report goes on to say that Lord Thurlow said he could not enforce it in equity; all that he could do he would do, and that was to decree the party to execute a legal assignment, in which case he would become liable at law. It was not the point undoubtedly raised in defence of the suit: it was doing what Lord Thurlow thought it was right to do; it was abstract justice between the parties. The

question whether a court of equity was or was not justified in giving such relief, or making such a decree against such a defendant, does not seem to have been much considered in that case.

Now no case has been referred to, except one, which I shall presently refer to, in which anything of that sort has been done.

The case has been occasionally mentioned, but I do not find any appearance of any case referred to in the argument, in which the Court has adopted that rule in giving such relief against the depositaries of the lease. In Flight v. Bentley, however, the present Vice Chancellor of England made a decree, not exactly like what Lord Thurlow did, and not what I am asked to do here; because there the decree was in fact a specific performance of the covenant. There was a decree for payment of rent due: it was not to execute a legal assignment, to give a legal remedy, to recover the rent; but it was a positive decree giving effect to the covenant, as if it had been a covenant binding on the party, and as if the owner was entitled against the party having an equitable interest in the lease, to have a decree for the specific performance of the covenants of that lease. Now, no doubt if that had been a case standing undisputed, I should have paid great deference and respect to the authority by which it has been pronounced. But in the very next volume of Mr. Simons' Reports there is a case of Moores v. Choat, in which the bill prayed precisely the same relief, except this: it prayed, first, the performance of the covenants, and, if necessary, an execution of the assignment. I find the Vice Chancellor of England, (and most properly, I think, because it certainly is always a proof that an individual is well satisfied of the grounds on which he is proceeding, if he entirely disclaims an opinion, and an act which he had before entertained) having made the decree in Flight v. Bentley, when it was brought to his attention, not only entirely disclaimed the doctrine laid down in that decree, but expressed his surprise that any such decree should have been made. The only observation I make on what fell from the Vice Chancellor in that case is, that he seems to have inferred, and no doubt thought, he could deal with the case of Moores v. Choat as he did, consistently with the case of Lucas v. Comerford. I confess I cannot see any ground of distinction between those

two cases. The principle on which they both proceeded was quite the same: whether an owner of an estate can or cannot deal with a party having an equitable title to the lease in the same way as if he had a legal title. However, in that case, the Vice Chancellor expressed a very clear opinion that Flight v. Bentley was not right; that there had been an error in that decree; and he established the doctrine that no such equity exists between parties in those respective situations. Another case was referred to, before the Master of the Rolls, of Close v. Wilberforce. That was a case between the lessor and the assignee of the lease, and not between the lessor and the equitable assignee; and the object was to obtain an indemnity against the lessor's demand on the covenant. That was a question raised between parties who were privy, namely, between the owner of the lease and the party entitled to the assignment of the lease and the case was this, which will depend on its own circumstances-you are, as between ourselves, the owner of this lease; but I, who have parted with all my interest to you, am called on by my covenants to make good some demand of the lessor. You are, therefore, bound to indemnify me against that demand. That is a totally different case; for whatever the merits of that case may be, it could not raise the present question, which is, how far the lessor has an equitable interest against the lessee, there being no legal assignment of the term.

:

Under these circumstances, and that being the state of the authorities, there being, undoubtedly, a decree of Lord Thurlow, which has never been followed, and which, although for a time adopted comparatively by the Vice Chancellor of England, in Flight v. Bentley, was entirely repudiated by him in Moores v. Choat, the question is, whether I am bound, at this period of the world, to act on a decree of Lord Thurlow's, so objectionable as it appears to me in principle, and so inconsistent with all the rules by which the rights of parties are administered in this court, as an established rule. I am of opinion that I cannot do so. The state of the authorities does not compel me to take that course; and not being compelled to do so, I shall not for the first time make a decree which would have the effect of establishing that as the

The bill stated, that John Moore, by his will, dated the 23rd of January 1834, gave to his executrix, Harriet his wife, and to his executor, Henry Hancock, to hold the same unto their heirs, executors, administrators, and assigns, all his property, real and personal, upon trust, as to his funded property, in manner therein mentioned, for the payment of certain specific legacies; and as to his freehold and copyhold property, upon trust, to receive and apply the rents and profits thereof to the support and maintenance of his wife Harriet, and his present and future grandchildren during the life of his said wife, and immediately on her decease upon trust to convey and surrender such freehold and copyhold property unto and to the use of all his present and future grandchildren, as they should respectively attain the age of twenty-five years, to hold the same according to the nature thereof respectively unto his said grandchildren, their heirs and assigns for ever, as tenants in common, and not as joint tenants; and in case of the death of any such grandchildren under the age of twenty-five years, the said testator directed that the share and interest of such deceased grandchild should go and belong to such grandchildren or grandchild as should attain the said age, and that the interest and dividends, rents, and profits of any property to which any

grandchild might be entitled, or presumptively entitled, might be applied towards such grandchild's education, support, and advancement. And all the residue of his property the said testator gave and bequeathed unto his wife Harriet.

The testator died leaving his wife surviving him, and one only child Agnes Blagrove who had five children. Harriet, the wife of the testator, died intestate in July 1848.

The bill was filed by the five grandchildren of the testator, who claimed to be entitled to onee-fifth part each of the freehold and copyhold property so devised in trust for them by the said will; and it prayed that accounts of the estate might be taken, and that the rights and interests of the plaintiffs might be ascertained and declared by the Court.

A demurrer was put in to the bill; and the question was argued, whether the gift to the children was valid, or whether it was void for remoteness.

Mr. Bethell and Mr. Murray appeared in support of the bill, and contended that the devise in the will was good. The cases in which devises were held to be too remote were of two descriptions: first, where a testator postponed the vesting of the devise beyond the limits of the rule against perpetuities, i. e. beyond a life or lives in being and twenty-one years afterwards; and secondly, where, although he had given immediate vested interests, the devise was to a class comprising objects, some of whom might possibly come into existence beyond the limits of the rule. The first question was, whether the testator had postponed the vesting till twenty-five: the plaintiffs contended that he had not. If the devise had been to grandchildren" who" should attain twenty-five, or to such of the testator's grandchildren as attained twenty-five, that would have been too remote, the attaining twenty-five being made a condition precedent to the vesting. But the adverbs, "when," " 'as," and even "if," and the ex

pressions "when and as,' "when and so

soon as," and the like, in devises of real estate had always been held not to postpone the vesting, but merely to point at the time when the devisee was to have the

management of the estate. It was no objection to the validity of a devise that it postponed possession beyond the limits