filed, the company was not in default, and the bill could not be sustained. If the case had stopped with the notice, there was no doubt the onus would have been thrown upon the company. The latter, however, took possession under the 85th and other compulsory clauses without having paid the price. The 68th section said, that where the company having taken possession of land or otherwise have injuriously affected lands belonging to other persons, such persons might have the compensation settled by an arbitration or by a jury. The question was raised, whether the present case came within that section. It could not be decided, without the utmost reluctance, that this case was not within that section, which seemed to have been intended to cover every case in which the company, whether by right, or wrong, or any other means, obtained possession of property for which they had not paid; or where, in the exercise of the powers of their special act, they had injuriously affected the property of others, for which they were bound to make compensation. Prima facie that was probably the meaning of the section, but that is not decisive of the case. It is a privilege, and one of some importance in several cases, which the owner of the land has, to throw upon a company the onus of taking the initiative of making the offer of a price and of summoning a jury. The question was not whether the plaintiffs might have succeeded under the 68th section if they had taken the onus upon themselves; but, taking it for granted that the onus was upon the company to issue their warrant to the sheriff after the notice from the plaintiffs, whether that onus was removed from the company by their having claimed the benefit of that provision of the act which enabled them to deposit a sum as security only, and to take possession without having paid the price. The two cases are perfectly consist

ent.

The Court might give the plaintiffs the right to throw that onus upon the company, but that right might vary with circumstances, and it may deserve consideration how the Court will deal with the question of costs where parties unnecessarily come here to obtain that which they would be entitled to by means of a mandamus.

Upon the question as to the jurisdiction of the Court, the same act which gave a right NEW SERIES, XVIII.-CHANC.

gave a remedy; and in this case there is great authority for saying that the plaintiff's are entitled to a remedy; but where the act does not prescribe a specific remedy, it has always been held that the party is entitled to any remedy at law or in equity which is given in cases of a similar kind, when a question arises otherwise than under an act of parliament. If after notice given by the company to take land, and after tendering the price, the owner should attempt to deal with the property in a manner injurious to the company, and refuse to execute the conveyances which the act required, it would appear impossible to deny the jurisdiction of the Court. This Court has always said (whether the reasoning was satisfactory or not) that, the vendor may come to the Court simply to recover the purchase-money and interest, whether he shews a case of special damage for which a court of law would make him compensation or not. Where the act of parliament simply gives a right, but does not give a remedy for enforcing the execution of the conveyance or payment of the purchasemoney, the party may either go to a court of law for a mandamus or come into a court of equity for a decree. In the case of a purchaser filing a bill, the conveyance being refused, and no injury done to the property, the party may come here and ask for a conveyance. In either case he has a very simple course open to him. Accordingly, the jurisdiction of the Court attaches in the present case, and cannot be denied in the case of a breach of contract arising between such parties.

Demurrer overruled, with costs.

This was an administration suit. The testator, by his will, dated on the 1st of June 1844, directed that the property he should die worth should be divided into twenty shares, and gave six of those shares to his son William Morgan Orr, of Hobart Town, Van Diemen's Land, whom he also appointed one of his executors. W. M. Orr was dead at the time the bequest to him was made, but had died after the Will Act (1) had come into operation, leaving issue living at the death of the

testator.

At the hearing, on further directions, one of the questions submitted to the Court was, whether the bequest to W. M. Orr survived, and became payable to his administrator, Robert Orr, under the 33rd section of the Will Act.

Mr. Torriano, for Robert Orr, submitted that the legacy to W. M. Orr did not lapse by reason of his death before the date of the bequest, but that it passed to his personal representative-Johnson v. Johnson (2), Skinner v. Ogle (3), Winter v. Winter (4). The last case was precisely in point.

Mr. William Morris, for two of the testator's sons, suggested that there was a difference between the present case and that of Winter v. Winter. In the latter case the legatee was alive when the will was made, which was before the act had passed, but died in the lifetime of the testator, after the passing of the act, and before the republication of the will. In this case the legatee was dead at the date of the will, and therefore the bequest was void-Wild v. Reynolds (5).

Mr. Roundell Palmer and Mr. Mott appeared for the plaintiff, and

Mr. Frith, for other parties.

Joint

Trustees, their Responsibility Receipt-Trust Funds-Payment on Receipt of one.

Stock standing in the names of trustees was mortgaged to secure 1,200l. and interest, and notice of the mortgage was given to the trustees by both mortgagor and mortgagee. Upon his marriage the mortgagee assigned the 1,200l. to H. and H, and it was declared that the receipt or receipts of them, or the survivor of them, should be a sufficient discharge; and one of them, being the solicitor of the mortgagee, was allowed to retain all the deeds in both transactions. The trustees, at the request of the mortgagors, sold a portion of the 3,000l., and paid off the 1,2001. and interest, which was received by the mortgagor's solicitor, and trustee of the settlement, without the authority of his co-trustee. He gave up the deeds relating to the mortgage, and signed a receipt "for self and co-trustee," but he never invested the money upon the trusts of the settlement; but he survived his co-trustee, and died insolvent. Upon a bill filed by the new trustees of the mortgagee's marriage settlement against the trustees of the 3,000l.— Held, that the receipt of one trustee was no discharge; that the being intrusted with the deeds for safe custody did not authorize one trustee to receive the trust money; and that the trustees of the 3,000l. must repay the 1,2001., with interest and costs.

By a settlement, dated the 8th of February 1837, made upon the marriage of John Crawley with Frances Draper, it was declared that James Franck and John Hughes should stand possessed of a sum of 3,000l., which was standing in their names in the books of the Bank of England,

upon trust, to permit her to receive the dividends for her sole and separate use for life, as if she were sole; and after her decease to pay such dividends to John Crawley for life; and after the decease of the survivor, for such persons as Frances Draper should, by any deed, appoint. On the 12th of January 1841 Mr. and Mrs. Crawley appointed and assigned the sum of 3,000l. consols to Mary May, by way of mortgage, to secure the repayment of the sum of 776l. 9s. 9d. On the 11th of December 1841 M. May, with the privity of Mr. and Mrs. Crawley, transferred the mortgage to Thomas Francis Charles Mainwaring (who advanced a further sum), to secure the sum of 1,2007.; and notices of this transfer and further charge were duly served upon Messrs. Franck and Hughes by the mortgagors and mortgagee.

On the 14th of December 1841, upon the marriage of Mr. Mainwaring with Cecilia Charlotte Hall, he assigned the 1,2001. secured by the mortgage to John Cecil Hall and John Wroughton Harrison, their executors, administrators and assigns, upon the trusts of his marriage settlement, and it was declared "that the receipt or receipts, in writing, of the said J. C. Hall, and J. W. Harrison (who were also trustees of the marriage settlement), or of the survivor of them, or the executors, administrators, or assigns of such survivor, or other the trustees or trustee for the time being, of, or acting under the indenture of settlement, of even date therewith, should from time to time be a good and sufficient discharge, or good and sufficient discharges for the principal sum of 1,2007., and the interest thereof, or for so much thereof respectively as should be thereby expressed to have been received."

Immediately after the marriage Mr. and Mrs. Mainwaring went abroad, and remained there until October 1843. J. W. Harrison was a solicitor, and he acted on behalf of all parties upon the transfer of the mortgage to Mr. Mainwaring, and he also acted under the instructions of Mr. Mainwaring upon the preparation of the assignment and settlement made upon the marriage of Mr. and Mrs. Mainwaring, and he retained all the deeds in both transactions. It did not appear that J. W. Harrison was authorized to act, or that he

ever acted as the solicitor of the said J. C. Hall.

In January 1843, Mr. and Mrs. Crawley requested Messrs. Franck and Hughes to sell a part of the 3,000l. consols, then standing in their names as trustees, and pay off the 1,200l., and the interest due thereon. Mr. Groves acted as the solicitor of Messrs. Franck and Hughes, and from January 1843 to May following several communications took place between J. W. Harrison and Mr. Groves: in the course of which Mr. Harrison, who was importunate for payment of the money, informed Mr. Groves of the transfer of the 1,2001. which had been made to himself and J. C. Hall, as the trustees of Mr. Mainwaring's marriage settlement.

On the 8th of May 1843 Mr. Groves wrote to Mr. Harrison, appointing a meeting at the Bank, and saying, "You had better be there some time earlier to remove the order, as I shall wish to be detained as short a time as possible. I have some recollection of your stating that this mortgage was now vested in some other persons: who are they? Their title should be shewn, and I should have their receipt, or authority for payment to you. I presume you are prepared with one or the other: if not, the matter must again stand over."

On the 9th of May 1843 Messrs. Franck and Hughes sold out so much of the 3,000l. consols as raised 1,270l. 16s. 9d., which was paid to Mr. Groves, who on the following day paid 1,2617. 19s. 11d. to J. W. Harrison for principal, interest and costs, and received from him the deeds of the 12th of January 1841, the 11th of December 1841, and the indenture of assignment of the 14th of December 1841, and also the duplicates of the notices, and at the same time J. W. Harrison wrote the following receipt upon the indenture of the 11th of December 1841" Memorandum,-I acknowledge to have this day received the within-mentioned principal sum of 1,2007., due upon the within security. J. W. Harrison, for self and co-trustee, the 10th of May 1843."

Mr. Harrison omitted to invest the money, neither did it appear that he communicated to his co-trustee, or the cestui que trust, that the money was paid, and it did not appear that he was authorized by any party to receive the money.

In February 1844 J. C. Hall died, leaving J. W. Harrison surviving.

On the 1st of July 1844 J. W. Harrison died intestate and insolvent, having paid the interest upon the 1,2007. up to the 11th of June previous.

On the 29th of June 1846 Mr. and Mrs. Mainwaring appointed Percy Francis Hall and George Hall trustees of their marriage settlement, in the place of J. W. Harrison and J. C. Hall; and they applied to Messrs. Franck and Hughes for payment of the 1,2001. and interest due upon the mortgage, which they refused, upon which this bill was filed by P. F. Hall and G. Hall, praying for a declaration that Messrs. Franck and Hughes were liable to make good the sum of 1,2007., with interest from the 11th of June 1844; and that they might be ordered to pay the principal sum and interest to the plaintiffs, as trustees of the settlement of the 14th of December 1841, and the costs of the suit.

Mr. Turner and Mr. Shebbeare, for the plaintiffs.-Messrs. Franck and Hughes had distinct notice of the mortgage, and Mr. Groves, their agent, was informed that the money was assigned to Messrs. Harrison & Hall, as trustees of the marriage settlement. The money, therefore, ought not to have been paid to Mr. Harrison upon his sole receipt. Mr. Hall never knew it was paid, neither had he given him any authority to receive it, or signed any receipt or release on his behalf.

Mr. Roupell and Mr. E. G. White, for Messrs. Franck and Hughes.-Mr. Harrison was the solicitor of Mr. Mainwaring, and must be considered the solicitor of all parties. He applied for payment of the money, and, as appeared from Mr. Groves's letter, he had power to remove some stop order at the Bank; he had also the custody of the deeds. His co-trustee must

have known these facts, and he must be considered as acquiescing. His signing

a receipt, therefore, and re-delivering the deeds was a sufficient discharge to Messrs. Franck and Hughes for the money. The plaintiffs did not complain of the re-delivery of the deeds; in effect, therefore, they admitted that Mr. Harrison had authority to give them up. But in any event, the plaintiffs were not entitled to the costs.

Mr. Keene appeared for Mr. and Mrs. Mainwaring.

The MASTER OF THE ROLLS. The trustees unfortunately placed the money in hands they should not, and they must be answerable for the consequences. Mr. Groves on the 8th of May 1843 said he must know the title of the persons to receive the money, and yet he was induced to pay it to one trustee in the absence of the other, though both were entitled to receive it. Mr. Harrison's representations induced Mr. Groves to place confidence in him; but who is now to bear the loss; those who, relying upon Mr. Harrison, placed the money in his hands, or those who gave him no authority to receive it? It was argued that possession of the deeds was evidence that authority was given to receive; but the assignment shews that payment was to be made to the two trustees or the survivor of them. The deeds were not intrusted to Mr. Harrison as an authority to receive the money, but that they might be safely kept for the cestui que trust. Even payment to Mr. and Mrs. Mainwaring would not have been valid, and the very importunity of Mr. Harrison ought to have occasioned suspicion. I think, therefore, that the defendants, Messrs. Franck & Hughes, must repay the money with interest from the last payment, and they must pay the costs of the suit.

M.R.

THE GRAND JUNCTION CANAL

May 1,23.J COMPANY v. DIMES.
Practice.-Judge-Interest in Suit.

The defendant in a suit, instituted by an incorporated company, appealed from a decree of the Vice Chancellor of England to the Lord Chancellor, who heard the appeal on the merits, and affirmed the decree of the Vice Chancellor of England, with costs. The defendant subsequently ascertained that the Lord Chancellor was a shareholder in the company: and on the ground that he had an interest in the matter in dispute, and that he could not be a Judge in his own cause, the defendant moved the Lord Chancellor that the decree made on the appeal might be discharged; that the petition of appeal might be restored to the paper of the Lord Chancellor; and that directions might be given, by issuing a commission, or otherwise, to hear the appeal before the Master of the Rolls, assisted by two of the Judges of the courts of common law at Westminster. The Master of the Rolls, at the request of the Lord Chancellor, heard the motion, and considered that the rule of law "that no one ought to be a Judge in his own cause" ought not to be departed from without necessity; that there might be a necessity to depart from the rule to avoid a denial or failure of justice; that where the jurisdiction is vested in a sole Judge, or in deputies, whose conclusions are not final till adopted by the sole Judge, it may be difficult to con

form to the rule; that the signing a decree by a superior Judge to allow of an appeal to a still higher tribunal was a judicial and not a ministerial act; that the Lord Chancellor had no authority to issue a commission to hear appeals made to him; that the Lord Chancellor had authority to require the assistance of the Master of the Rolls in judicial matters; that it did not authorize the Lord Chancellor to depute the authority vested in him by law to reverse the decree of the Vice Chancellor of England; that if the Lord Chancellor requested the Master of the Rolls with or without assistance to hear an appeal, still the Lord Chancellor alone could make the order; that whatever his interest may be, a sole Judge in matters within his jurisdiction is not incapacitated from making a decree or order, if a refusal would be a denial or cause a failure of justice; that, with the consent of the parties interested, the hearing might be before other Judges for and instead of the Lord Chancellor, but the decree or order, as it must be inrolled upon the Lord Chancellor's signature, would not be entirely free from objection; that if no court of appeal existed, it would be the duty of the Lord Chancellor, or other sole Judge, though interested, to hear a cause on the merits, if there was no other way of preventing a failure of justice; that the decree or order which the Lord Chancellor or other sole Judge, though interested, might make in his discretion, would not be void for incapacity, and ought not to be treated as a nullity;