Seale ought to repay Mr. Farwell the sum which he had paid; and secondly, that, under the 36 Geo. 3. c. 52. and the 45 Geo. 3. c. 28. the legacy duty was made a charge on the specific fund, out of which it was payable, and that the land, in this case, being the specific fund, the duty ought to be raised out of the land-Noel v. Lord Henley (1).

Mr. Bacon and Mr. Nevinson, for the defendants.-The legacy duty in this case was not charged on the fund by the 11th section of the 36 Geo. 3. c. 52. The case was provided for by the 22nd section of that act. When the money was paid to Mr. Farwell he ought to have procured the legacy duty to be ascertained, and to have paid it at once, and got rid of the question. The assignment of the legacy makes no difference. The burthen remains on the legatee, and is not shifted to the assignee -Hales v. Freeman (2). As to the question of hardship, it is the same for both. It is quite as hard for Sir J. H. Seale's representatives to pay a sum of money unexpectedly as for Mr. Farwell to do so. Mr. Russell replied.

KNIGHT BRUCE, V.C.-I think that it is not necessary to say whether it would have made any difference in this case if I could have considered the defendants as bound, or affected, by this passage contained in the conditions of sale, namely, "subject to every incumbrance that can or may by any possibility affect it either at law or in equity," because, I am of opinion that I cannot treat the defendants as bound, or affected, by these words; inasmuch as the deed of assignment was executed in 1828, the reversion fell into possession in 1835, Sir John Henry Seale died a few years ago, and, subsequently to his death, and not before, this suit was instituted. The question is whether, viewing the contract between the parties as depending upon that deed of assignment, I can, looking at that, and the other facts of the case, say that this legacy duty, or the possible liability to it, was in contemplation of either party at the time when the contract was made or the sale was concluded. All the counsel seem to agree that it was

(1) 7 Price, 241; s. c. 12 Price, 213.
(2) 1 Brod. & Bing. 391.

not, and that, I think, is the correct view of the case. I believe that not any of them thought of it. The consequence is, that Mr. Farwell probably allowed the money to pass through his hands without taking any precaution in respect of it. We must also suppose, upon the same theory, that Sir John Henry Seale regulated his bidding, and made his contract without any notion of this liability. We have it then that, so long ago as 1828, the interest of William Thomas Lear was absolutely sold to Sir John Henry Seale for valuable consideration, the money being treated as received by Mr. Farwell himself. It was a specific part of the contract between them that the matter should be so treated; the money was professed to be paid, as to two thirds, to him alone, and as to the other third to him jointly with Grace Lear and Dolly Lear, who are both dead. Mr. Farwell signed the receipt for the money, and, as between him and the estate of Sir John Henry Seale, he must be considered as having received it. That being the state of the circumstances when the suit was institutedmore than nineteen years after the completion of the contract, more than six years after the reversion fell into possession, and after Sir John Henry Seale's death-can I treat Mr. Farwell as having a better equity in respect of this unlucky transaction than Sir John Henry Seale, or those who represent him? I am of opinion that, if his equity is not inferior, it is not better. Considering it to be a hard case on both sides, I dismiss the bill, but without costs.

NETTLETON v. STE

PHENSON.

K. BRUCE, V.C.
March 12.
Will-Construction — Accumulation of
Rents-Thellusson Act, 39 & 40 Geo. 3.
c. 98.-" Per Stirpes" and "Per Capita."

A testator devised real estate to trustees, upon trust for A. for life; and directed them, after the death of A, to accumulate the rents for twenty-one years from the death of A, and, at the end of that period, to divide the accumulations in the manner mentioned in the will. The will did not contain any residuary devise or bequest. The testator died in 1824, and twenty-one years from his death

expired in 1845. A. died in 1837, and twenty-one years from the death of A. would expire in 1858.-Held, that the heir-atlaw was entitled to the interest of the fund accumulated between 1837 and 1845, and the rents of the property until 1858.

A bequest of a fund to be divided among the children of A, the children of B, the children of C, the children of D, and to E, if he should then be living, and, if not, E.'s share to be divided into four parts, and paid to the children of A, B, C, and D. in manner aforesaid:"-Held, that the fund was divisible among the children per stirpes and not per capita.

66

Thomas Nettleton, by his will dated the 4th of May 1824, devised all his real estates in the county of York to trustees upon trust for Hannah Hallas for her life, and then declared that his trustees should, immediately upon the death of H. Hallas, let the said estates to any respectable tenant or tenants for the term of twentyone years; and, upon receipt of the rents and profits, to place the same out yearly upon Government or real security, and the interest thereof to receive yearly, and again place the same out at interest as aforesaid during the whole of the said term of twenty-one years; and, upon the expiration of the said term of twenty-one years, or as soon thereafter as could be, call in the whole of the said twenty-one years' rent, and the interest and accumulations of interest thereon, and of every part thereof, and, in the next place, to reimburse themselves all reasonable and necessary expenses attending the execution of his will, or of the trusts thereby in them reposed. The will then proceeded as follows-" And, after such payment, then to divide the same between and equally amongst all and every the children of my nephew John Nettleton, (except his two sons Thomas and William who have been already otherwise provided for), the sons and daughters of my nephew Joseph Nettleton, and the sons and daughters of my nephew Francis Nettleton, and the sons and daughters of my niece Mary, the wife of Percival Terry, and John Nettleton the son of my late nephew Thomas Nettleton, if he shall then be living, and, if not, then I give his part or share, and order and direct that it shall

be divided into four equal parts, and paid to the children of my said nephews and niece in manner aforesaid, or to such of them as shall be living at that time." The testator then devised his estates after the expiration of his term of twenty-one years, as in his will mentioned. The will did not contain any residuary devise or bequest.

The testator died in July 1824. Hannah Hallas, the tenant for life, died in February 1837. The term of twenty-one years, reckoned from the testator's death, expired in July 1845. The term of twenty-one years reckoned from the death of Hannah Hallas would expire in February 1858. The trustees accumulated the rents from February 1837, the time of the death of Hannah Hallas.

The bill was filed by the heir-at-law of the testator for the purpose of obtaining the opinion of the Court as to his rights.

Mr. Russell and Mr. C. C. Barber, for the plaintiff, contended that, under the Thellusson Act, (39 & 40 Geo. 3. c. 98), he, as heir-at-law, was entitled-first, to the income of the fund accumulated between 1837 and 1845, until 1858; secondly, to the fund already accumulated from 1845, the expiration of the first period of twentyone years, to the present time; and thirdly, to the rents of the property until 1858. They cited

Eyre v. Marsden, 2 Keen, 564; s. c. 7 Law J. Rep. (N.s.) Chanc. 220. Attorney General v. Poulden, 3 Hare, 555, and

Elborne v. Goode, 14 Sim. 165; s. c.

13 Law J. Rep. (N.s.) Chanc. 394.

Mr. Malins and Mr. T. C. Wright, for some of the children of the testator's nephews contended: :- first, that, under the act, the period for distribution among the children had been accelerated; and that they were entitled, at once, to the fund accumulated between 1837 and 1845, the expiration of the first period of twenty-one years; and secondly, that the children of the nephews and nieces were entitled to the benefits given by the will per capita and not per stirpes.

Mr. Nalder, for the other children, also contended that the period for distribution had been accelerated.

Mr. C. P. Cooper, Mr. Glasse, Mr. Bacon and Mr. Elmsley, for the other parties.

KNIGHT BRUCE, V.C. said that he thought that the trust for accumulation was void, so far as it exceeded twenty-one years from the death of the testator, and that the period for the division of the accumulations among the legatees had not been thereby accelerated. The heir-at-law was therefore entitled to the interest of the fund accumulated between 1837 and 1845, until 1858, to the capital of the fund accumulated between 1845 and the present time, and to the rents of the property until 1858. He also thought that the fund, which was divisible among the legatees, should be divided between them per stirpes and not per capita; the terms in which the testator had given the share of John Nettleton in the event of his death strongly leading to that conclusion.

The question of costs was then discussed; and it was stated that, probably, they would exceed all the fund already accumulated.

KNIGHT BRUCE, V.C. said that he thought that the costs of all parties should be paid, in the first instance, out of the fund already accumulated from 1837 until 1845; and, that, if that fund was not sufficient, the deficiency should be raised out of the fund accumulated since 1845, and the rents and profits of the estate until 1858.

By arrangement, it was agreed that the plaintiff should be let into possession of the estates, he undertaking to account for the rents and profits.

directors from applying to general purposes funds authorized to be raised for specific purposes. Demurrers on the grounds of want of equity, no right of suit, inconsistent kinds of relief, and want of parties, were overruled.

The bill alleged the intended misapplication of two specific funds :-Held, that the misapplication of one only of the two funds gave the plaintiff a right in equity to restrain such misapplication.

The plaintiff had purchased two scrip certificates, upon which he had paid calls, and in respect of one of which he had since become registered holder of the shares represented by it in certain new stock created by the company:-Held, that the interest which both scripholders and registered shareholders had in the stock entitled them to sue in equity in respect of it; that the company was properly made a party; that the rights and liabilities of a scripholder were not so conflicting with those of a shareholder of stock as to render the relief prayed by the plaintiff in one character inconsistent with that sought by him in the other; and that the original subscriber for the scrip or the vendor of it to the plaintiff was not a necessary party.

The bill was filed on the 29th of December 1848 (amended on the 31st of January 1849), by the plaintiff as a proprietor both of scrip certificates for perpetual 61. per cent. stock, 1849, in the Eastern Union Railway Company, and also of some of the same stock, on behalf of himself and all other the proprietors of like scrip certificates for the said stock in the said company, or of like stock in the said company, who should come in, &c., other than and except the defendants thereinafter named, against the Eastern Union Railway Company and all the then directors.

By the Eastern Union Railway Act, 1844, incorporating the company (1), the directors were empowered to manage and superintend the affairs of the company, make and enforce calls, enter into contracts for the execution of the works, pur

(1) The 7 & 8 Vict. c. lxxxv., " An Act for making a Railway from Colchester to Ipswich"; amended in 1845 by the 8 & 9 Vict. c. xciv., "An Act to amend the Act relating to the Eastern Union Railway Company, and to raise a further Sum of Money for the Purposes of the said Undertaking."

2 C

chase land, and give effect to the resolutions of the company, but subject, as to the exercise of all such powers, to the controul and regulation of any general meeting, specially convened for the purpose.

By another act in 1847 (2) the company was amalgamated with the Ipswich and Bury St. Edmunds Railway Company (3).

All the works authorized by the acts of 1844 and 1845 had been for some time completed and in a state fit for traffic.

By the Eastern Union and Harwich Railway and Pier Act, 1847 (4), the Eastern Union Railway Company was empowered to raise, for the purposes of that act, in addition to the capital authorized to be raised by other acts, any further sum not exceeding 200,000l., such sum to be considered as part of the general capital of the company, and to be subject to the same provisions in all respects, whether with reference to the payment or non-payment of calls, forfeiture of shares, or otherwise, as if it had been part of the original capital. The company was also thereby empowered to construct, amongst other works, a line of railway diverging from the line of the Eastern Union railway at two separate points in the parish of Lawford, in Essex, and terminating at Harwich, and also two small branches in Mistley. These works were to be completed within three years from the passing of the act (22nd of July 1847).

By the Eastern Union and Hadleigh

(2) The 10 & 11 Vict. c. clxxiv., "An Act to amalgamate the Eastern Union and Ipswich and Bury St. Edmunds Railway Companies."

(3) Incorporated by the 8 & 9 Vict. c. xcvii., "An Act for making a Railway from the Eastern Union Railway at Ipswich to Bury St. Edmunds" (the Ipswich and Bury St. Edmunds Railway Act, 1845); amended in 1846 by 9 & 10 Vict. c. cclxxx., "An Act to amend the Ipswich and Bury St. Edmunds Railway Act, 1845'; and for making a Railway from the said Ipswich and Bury St. Edmunds Railway to Norwich with a Branch therefrom"; and amended in 1847 by 10 & 11 Vict. c. cxxxvii., "An Act to amend the Acts relating to the Ipswich and Bury St. Edmunds Railway Company; and to enable the Company to construct a Railway from the Ipswich and Bury St. Edmunds Railway near Ipswich to Woodbridge."

(4) The 10 & 11 Vict. c. ccxxv., "An Act to empower the Eastern Union Railway Company to make a Railway from the Eastern Union Railway at Manningtree to Harwich, with Branches thereout, and for other Purposes."

Junction Railway Sale Act (5) the Eastern Union Railway Company was empowered to create an additional numberof s hares, and to borrow a sum of money not exceeding 100,000l., for the purchase and completion of the Hadleigh Junction Railway (6).

At the half-yearly meeting of the company, on the 21st of August 1847, the directors, in their general report, commented in strong terms on the importance of the last two acts and the advantages to be derived from them. They recommended that the sum of 300,000l. should be at once raised, and stated they had every hope that they would have sufficient funds to construct the very important branch to Harwich (having previously remarked that this railway might be treated as a national work) in a very short space of time; and that a new source of revenue arising from it, over all parts of the line, would counterbalance entirely every guaranteed preference in the stock, by which they proposed to increase the capital for the purposes of

those acts.

66

The engineer, in his report to the directors, at the same meeting, thus expressed himself on the Harwich line :-" It being of great importance to the company to complete the branch line to Harwich at an early period, it is desirable that advantage should be taken of as much of the present season as possible for opening out the works and otherwise forwarding arrangements for making vigorous progress in the ensuing spring. The Harwich traffic will then be obtained at the earliest period; and when it is considered that the working expense over the Eastern Union line will not be appreciably increased thereby, it appears important that no time should be lost; and by taking advantage of the present autumn, it may happen that nearly a year may be saved in getting the line into beneficial operation. In pursuance of your directions, arrangements have been made for

(5) The 10 & 11 Vict. c. xix., "An Act for authorizing the Sale of the Eastern Union and Hadleigh Junction Railway to the Eastern Union Railway Company."

(6) Authorized to be constructed by 9 & 10 Vict. c. liii. (1846), "An Act for making a Railway from the Eastern Union Railway in the Parish of Bentley to the Town of Hadleigh, all in the County of Suffolk, to be called the Eastern Union and Hadleigh Junction Railway."

setting out the line for work immediately that the ground is cleared of the harvest." A resolution, from which the following is an extract, was submitted by the directors to the meeting, and unanimously carried:-"That for the purpose of constructing the branch line from Manningtree to Harwich and for purchasing the Hadleigh railway under two acts passed in the late session of parliament, the directors be authorized to raise, between the date hereof and the 1st of January 1849, the sums of 200,000l. and 100,000l.; to grant scrip receipts for such amounts as may from time to time be paid up in respect of such sums until each subscriber of 201. and upwards shall have paid the amount he may subscribe for in full, and such scrip receipts shall entitle the holder thereof, on the 1st of January 1849, to become a registered shareholder in a new Eastern Union stock for the amount he has subscribed and paid up in full; upon which he shall receive a guaranteed dividend of 6l. per cent. per annum in perpetuity, and have the option at the end of every six months within five years, of converting his guaranteed stock into the general stock of the company."

The remainder of the resolution related to the fourth article of the terms of amalgamation between the Eastern Union and Ipswich and Bury companies, whereby the directors were bound, in the first instance, to offer to receive the sums proposed to be raised, exclusively from the holders of the guaranteed 51. per cent. and general extension scrip of the Ipswich and Bury company.

The whole of the 300,000l. was shortly afterwards subscribed for, and all the calls thereon were paid previously to the 2nd of June 1848, except the sum of 85,500l., which would fall due and become payable on the 30th of December 1848. Before the month of January 1848 the plaintiff purchased two scrip certificates, numbered 982 and 983. They were signed by the secretary of the company, and were in the following form:"Scrip for Eastern Union perpetual 6l. per cent. stock, 1849, with the instalments in course of payment. Eastern Union Acts, Eastern Union and Harwich Railway and Pier Act, Eastern Union and Hadleigh Junction Railway (Sale) Act, 1844, 1845, 1846, and 1847. Stock 5001. The holder of this certificate

having paid 250l. to the Eastern Union Railway Company, and having engaged to make a further payment of 250%. on the 31st of December 1848, under an allowance of discount from the day of payment to the 1st of January 1849, at the rate of 61. per cent. per annum, to any of the bankers hereinafter mentioned, viz., Messrs. Glyn & Co. and others, will be entitled to 5007. stock of the said company, and to be registered as proprietor thereof on fulfilment of such obligations; such stock to bear interest at the rate of 6l. per cent. per annum in perpetuity from the 1st of January 1849, with an option to the proprietor at any time during five years from that day, to surrender such guaranteed stock for general stock of the amalgamated Eastern Union and Ipswich and Bury company, and such dividends as such general stock may be entitled to thereafter. As the above payments are equally binding upon the present owner and his assignee, if parted with, a condition hereof is, that in case of failure of any of the above payments for thirty days after the same is payable, the holder shall forfeit his right to a guaranteed interest and be entitled to participate only in dividends upon such money as he shall have paid up, at such rate as shall be declared subsequently to the 1st of January 1849, upon the general stock of the company."

The secretary, by letter of the 13th of January 1848, recognized the plaintiff as a proprietor of scrip in the Harwich branch line. On the 27th of December 1848 the plaintiff delivered to the secretary one of the certificates, upon which he had previously paid in advance the last call, and requested that the shares represented by it might be immediately registered in his name. To this application the secretary sent the following reply:

"Eastern Union Railway, London Office, Dec. 27, 1848.