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before the Vice-Chancellor in June 1870. What the court is now doing is the natural sequence of the order of July 1870.

JAMES, L.J.-The costs of all parties must come out of the general assets. There will be no costs of the appeal.

Solicitor for the appellants, P. Roberts. Solicitors for the Prudential Company, Barnard and Co.

Solicitor for the official liquidator, J. Tucker.

Thursday, April 6.

(Before JAMES and MELLISH, L.JJ., and BAGGALLAY, J.A.)

Ex parte BESTWICK; Re BESTWICK. Composition-Debtor's statement-Creditor entered as fully secured-Effect of debtor's valuation of security-Right of creditor to receive composition on balance due after realising security-Bankruptcy Act 1869 (32 & 33 Vict. c. 71) ss. 47, 126 -Bankruptcy Rules 1870, rule 272.

A debtor, in his statement of affairs, entered A. as a creditor fully secured. The creditors duly passed and confirmed a resolution to accept a composition of 10s. in the pound. A. did not attend at either of the meetings of creditors. The debtor paid the composition to all the creditors except A. Two years afterwards the debtor filed a second petition, whereupon A. realised his security and claimed to prove under the first petition for a balance which remained due after realisation of the security:

Held (affirming the decision of Bacon, C.J.), that A.
was not in any way bound by the debtor's esti-
mate of the value of his security, and that he was
entitled to prove for the balance, and to receive
the composition thereon.

THIS was an appeal from a decision of the Chief
Judge in Bankruptcy.

The hearing in the court below is reported sub nomine Ex parte Hodgkinson, re Bestwick, in 34 L. T. Rep. N. S. 73, where the facts of the case are fully stated.

The debtor appealed from the decision of the Chief Judge.

Little, QC. and S. Taylor, for the appellant.The resolution to accept a composition, as the debtor did not make default in paying it, had the effect of depriving the secured creditor of his right of action for his debt. He must be taken to have assented to the debtor's estimate of the value of his security, and to be bound by it, as he did not insist on having it valued, which it was open to him to do. [MELLISH, L.J., in Edwards v. Hancher, 33 L. T. Rep. N. S. 575; L. Rep. 1 C. P. D. 111, it was held that a resolution to accept a composition does not discharge the debts till payment has been made.] The 272nd rule of the Bankruptcy Rules 1870, shows that a secured creditor cannot prove without first assessing the value of his security, and that he is bound by the assessment, for it provides that his proof shall not be increased in the event of his security realising a less sum than the value at which he has assessed it. It is well settled that a resolution to accept a composition discharges the debtor:

Edwards v. Coombe, 27 L. T. Rep. N. S. 315; L. Rep. 7 C. P. 519;

[CT. OF APP.

Slater v. Jones, 29 L. T. Rep. N. S. 59; L. Rep. 8
Ex. 186.

The 126th section of the Bankruptcy Act 1869,
provides that the terms of the composition shall
be binding on all the creditors whose names and
addresses, and the amount of whose debts are
shown in the debtor's statement.—[MELLISH, L.J.
-That is, if the debts are correctly stated.] It
is for the creditor to intervene if his debt is not
correctly stated. He is not entitled to come in
now, years after the composition was agreed
upon, and because possibly his security has de-
clined in value in the interval, and claim to prove
for the balance of his debt. Form 39 in the
schedule to the Bankruptcy Rules 1870, is in
favour of our contention.

De Gex, Q.C. and Bagley, for the respondents, were not called upon.

JAMES, L.J.-This case seems to me to be a very plain case, though the argument has occupied a long time. The Act says that a certain majority of the creditors shall have power to bind the absent or dissentient minority to accept a composition in satisfaction of their debts; but it nowhere says that the majority shall have power to bind the minority with regard to the amount of their debts, or to bind a secured creditor with regard to the value of his security. The 126th section of the Act does indeed say that the composition is to be accepted in satisfaction of the debts; it says nothing about the debts of those creditors who may hold security, and the words, if taken literally, would compel a secured creditor to accept the compo

sition in satisfaction of the whole amount of his debt, but they have always been construed as meaning that he is to take the composition only on the ultimate balance of his debt, which may remain due after realising his security. When he has realised his security, he has a right to say to the debtor, "So much remains due to me, pay me the composition upon that." That is the whole of this case, and I am of opinion that the order of the Chief Judge was quite right.

MELLISH, L.J.-I am of the same opinion. In a bankruptcy or a liquidation by arrangement, a secured creditor is not entitled to receive any dividend until he has come in and proved his debt, and if he does this before realising his security, he must put a value on it. The question is, whether in a composition a secured creditor is bound by the value which the debtor sets upon the security. There is not a word in the Act to say that he is. Why should he not be entitled to do that which he would have a right to do in a bankruptcy or a liquidation, that is to say, to wait until he has realised his security, and then come in and prove the debt then due to him and receive dividends on it, though of course he could not disturb any dividends already paid? But he would be entitled to share with the other creditors in the assets which might then remain for distribution. I can see no reason why he should not do the same thing in a composition; though there is this difference, that in the case of a bankruptcy or a liquidation, if he waited too long he might get no dividend at all, because the assets might have been all got in and distributed, whereas in a composition the debtor would remain liable to pay the composition. Why should we by construction import into the Act what is not to be found there, I namely, a provision that the creditor is to be

CT. OF APP.]

Ex parte SHUBROOK; Re WITT AND Co.

bound by the debtor's valuation of his security? If an action were brought by the creditor against the debtor for his debt, the debtor would plead the composition, and it might possibly be a sufficient excuse for not tendering the composition that the debtor did not know the amount upon which it was to be paid, but in any event the debt would not be discharged until the amount of the composition had been paid. The debtor would have to bring the amount into court. It would be absurd to say that a creditor is bound by the composition, and yet that it is not to be paid to him. I am of opinion that a secured creditor is entitled to prove his debt when he has realised his security, and then to receive the composition upon the balance which remains due to him.

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BAGGALLAY, J.A.-I am of the same opinion. Mr. Taylor relied very much on the language of Form 39. That form, however, is headed: “Debtor's Statement of Affairs for First Meeting,' and it is intended for the double purpose of enabling the creditors to inform themselves of the state of the debtor's affairs, and of ascertaining the proper majority required for passing the resolutions, and for that purpose it is very important to know the value of the securities held by the secured creditors. But it was certainly not intended to bind the secured creditors by this valuation of their securities.

Appeal accordingly dismissed with costs. Solicitors for the appellants, Pritchard, Englefield, and Co., agents for Grundy and Kershaw, Manchester.

Solicitor for the respondents, H. A. Maude, agent for J. G. E. Webster, Sheffield.

Thursday, April 6.

(Before JAMES and MELLISH, L.JJ., and
BAGGALLAY, J.A.)

Ex parte SHUBROOK; Re WITT AND Co. Custom of trade-Packer-General lien. A packer has a general lien for the amount of his charges upon the goods of a customer in his hands, not only in respect of the particular goods, but also in respect of any other goods of the same customer.

THIS was an appeal from a decision of Mr. Registrar Pepys, sitting as Chief Judge in Bankruptcy.

The facts of the case were as follows:

The liquidating debtors, Gustavus Andreas Witt and Edward Bohlen, carried on business as merchants, under the style of G. A. Witt and Co., at London and Liverpool, and Messrs. Perrott and Perrott are packers carrying on business in Tenter-street, London.

Witt and Co. were in the habit of employing Perrott and Perrott to pack goods for them for shipment abroad. The goods when purchased by Witt and Co. were sent to Perrott and Perrott's warehouse, where they were warehoused, packed, and sent off as directed. In the course of business, goods were constantly going out and coming in.

At the time when Witt and Co. filed their petition for liquidation, Perrott and Perrott had in their hands for packing a quantity of goods belonging to Witt and Co., which they had received at different times between June and Nov. 1875.

At the time of filing their petition for liquidation, Witt and Co. were indebted to Perrott and

[CT. OF APP.

Perrott in the sum of 281. 19s. 7d., being the amount of their charges for packing other goods on behalf of Witt and Co.

In Jan. 1876, the trustee in the liquidation requested Perrott and Perrott to pack in one case the goods of the liquidating debtors which were in their hands for packing as aforesaid. The charge for so doing and forwarding to the docks was 21. 1s.

Perrott and Perrott refused to deliver up the goods to the trustee, unless he paid them the sum of 281. 198. 7d. in addition to the 27. 18.

The trustee tendered 27. 18. to Perrott and Perrott, and demanded delivery of the case, but they refused to do so, claiming a general lien on the goods in their hands for payment of the two sums of 281. 198. 7d. and 2l. 1s.

The trustee thereupon applied to the court for an order that Perrott and Perrott should deliver up the goods to him.

In support of the alleged custom of trade, by which packers have a general lien upon the goods of their customers, Perrott and Perrott filed an affidavit by Edmund Hornsby, who had during the last twenty-five years and upwards been engaged in the business of a packer, and had acquired full knowledge of the custom of the trade, and who said: "A packer has by the custom of trade a general retaining lien upon goods of his customers come to his possession in the way of his trade, as well for the amount of his charges in respect of the particular goods as for the amount of his charges in respect of any other goods of the customers;" and another affidavit describing the custom in the same words by Joseph Durrant, who had during the last seventeen years and upwards been employed to manage the business of a packer carried on by Perrott and Perrott.

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In an affidavit filed in answer to these affidavits, Edward Bohlen, one of the liquidating debtors, deposed, that when the goods in question were delivered to Messrs. Perrott and Perrott, neither my co-debtor nor myself knew of any such alleged custom, and I do not even now know (save and except from what appears in the said affidavits) that there is any such custom."

In delivering his judgment the registrar said: The case which has been quoted by Mr. Brough (an unreported case) as having been decided by Mr. Registrar Murray, seems to me, as Mr. Brough has pointed out, to be precisely on all fours with the present case. Therefore whatever opinion I might have had upon the matter, I should have felt myself bound to concur with my colleague until his decision had been overruled, for it is most important that one course should be adopted and that there should be unanimity of decision. I should therefore, under any circumstances, have followed his ruling, and have left it to the parties who might have considered I was wrong to carry the case elsewhere. Upon that ground, therefore, I should decide in favour of the packers; but I am bound to say, that looking at the case of Ex parte Deeze (1 Atk. 228), which is the only authority cited in point, I have no hesitation in saying that my opinion concurs with that which has been expressed by Mr. Murray. And, independently of his judgment, I should have come to the same conclusion as he did. Until that case is overruled it must prevail, and packers must be considered to have a general lien on the goods of their customers coming into their hands

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Therefore this motion must be dismissed with costs.

From this decision the trustee appealed.

Davey, QC. and F. O. Crump, for the appellant. -In Ex parte Deeze, on which the registrar founded his judgment, the marginal note does indeed lay down that packers have a general lien, but the marginal note is wrong, and is not borne out by the judgment. The decision in that case was really based upon the mutual credit clause. [BAGGALLAY, J.A.-In Ex parte Ockenden (1 Atk. 237) Lord Hardwicke says that in Ex parte Deeze "there was evidence that it is usual for packers to lend money to clothiers, and the cloths to be a pledge not only for the work done in packing, but for the loan of money likewise."] Rose v. Hart (8 Taunt. 499) also shows that this is so. Holderness v. Collinson (7 B. & C. 212) shows that to establish a general lien by implication, it must be proved either that its existence was actually known to the person against whom it is claimed, or that it exists by virtue of a custom of trade so widely known that he must be taken to know it. Bock v. Gorrissen (30 L. J. Ch. 39) shows that the law does not favour general lien. In Smith's Mercantile Law, in Russell's Mercantile Agency, and other text books, packers are not mentioned among the persons who have a general lien. [De Gea, Q.C.-In Green v. Farmer (4 Burr. 2214) Lord Mansfield says that it was settled in 1755 that a packer, being in the nature of a factor is entitled to a lien. And in Savill v. Barchard (4 Esp. 53) Lord Kenyon said that packers have a general lien.] The ground for so holding was because at that time packers often acted as factors and made advances to their customers, which they do not do now. Achard v. Ring (31 L. T. Rep. N. S. 647) shows that the fact of there being judicial decisions in favour of an alleged custom, will not prevent it being established by evidence that the alleged custom does not exist. We prove that we had no knowledge of the custom by which packers are alleged to have a general lien.

De Gex, Q.C. and Brough, for the respondent, were not called upon.

JAMES, L.J.-I think it is now too late to attempt to set aside that which has been considered law for so many years, and of which I must say that I do not see the injustice. I agree with what Lord Hardwicke said in Ex parte Deeze (1 Atk. 228); it seems to me to be very good sense and justice. A man has goods in his possession which he has received in the ordinary course of trading, and he is asked to deliver them up, and at the same time he has a claim against the person who asks him to deliver them up. I think he has a perfect right to keep them to the extent of his claim. Under the Judicature Acts, I think, if an action were brought for the goods in trover or detinue, the whole matter might be settled in one action by means of a counter-claim. I certainly think this law with regard to lien is a very proper one; it has been settled for a great many years, and I do not see why we should endeavour to limit the effect of the decisions. The registrar's order must therefore be affirmed.

MELLISH, L.J.-I am of the same opinion. From what Lord Mansfield said in Green v. Farmer (4 Burr. 2214), and from what was said by Lord Hardwicke in Ex parte Deeze, it seems to me clear that in the middle of the last century it was ettled that a packer had a general lien. At that

[CT. OF APP.

time packers were to a certain extent considered as factors; they used to make advances to their customers. But, it having been established at that time that packers had a general lien, I cannot think that the circumstance that they do not now so frequently as they did then make advances should be sufficient to take away their right of general lien. It having been established that they had such a lien then, there can be little doubt that it would continue. Therefore, in the present case, if a single affidavit of the custom had been produced, that would have been sufficient evidence, if any evidence is required at all. If the existence of this lien is ever seriously to be contested, and it is sought to prove that by the present usage of trade packers have not a general lien, it must be done in quite a different way from merely bringing the customer himself to say that he never heard of the general lien. I think the decision of the registrar was right.

BAGGALLAY, J.A.-I am of the same opinion.

Appeal accordingly dismissed with costs. Solicitors for the appellant, W. A. Crump and Son. Solicitor for the respondents, G. H. Cole.

Saturday, June 24.

(Before JAMES, L.J., BAGGALLAY, J.A., and LUSH, J.) DYMOND v. CROFT.

Practice-Judgment by default-Substituted service -Indorsement of date of service of writ-Rules of Court 1875, Order IX., r. 13.

When an order has been made for substituted service of a writ of summons, it is not necessary that the date of service should be indorsed on the writ under Rules of Court 1875, Order IX., rule 13, to enable the plaintiff to proceed by default in case of the non-appearance of the defendant. Decision of Jessel, M.R. reversed.

THIS was an appeal from a decision of the Master of the Rolls.

It being impracticable to effect personal service on the defendant in this case, an order had been obtained under Order IX., rule 2 of the Rules of Court 1875 for substituted service on one of the members of a firm of solicitors who had formerly acted for the defendant in other matters, notice of the writ being at the same time ordered to be posted to the defendant's last known address in this country.

The defendant did not appear, and the plaintiff obtained judgment for foreclosure by default, but the registrar refused to draw up the order on the ground that the date of service of the writ of summons had not been indorsed on the writ, and consequently that in accordance with the express terms of Order IX., rule 13, the plaintiff was not at liberty to proceed by default.

The matter was then brought before the Master of the Rolls, who said that the registrar was quite right to stop the order; rule 13 was express that unless the date of service was indorsed, the plaintiff should not be at liberty to proceed by default; and that the plaintiff must begin de novo by again serving the writ of summons.

From this decision the plaintiff anpealed.

Cozens Hardy, in support of the appeal.-In a case of Cruse v. Kuttingell (60 LAW TIMES Journal, 124), it was held by Huddleston, B. that Order IX.,

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rule 13 applied only to cases of personal service, and this decision has ever since been acted upon in Judges' Chambers. The Master of the Rolls refused to follow that decision, considering himself bound by the words of rule 13 to hold that the date of service must be indorsed in all cases of service, substituted as well as personal. Rule 13 is taken word for word from the 15th section of the Common Law Procedure Act 1852, the operation of which was necessarily confined to cases of personal service, there being at that time no provision for substituted service at common law.

JAMES, L.J.—I will not say what our decision might have been if this had been the first case in which this question had arisen. But it is very important that the practice should be uniform in this matter. Baron Huddleston decided the point in the first instance in accordance with the common understanding on the subject, and as it is not a matter in which any substantial injustice can arise from our following his decision, and as it is better that in these case the first decision should be followed, I think we should adopt Baron Huddleston's view.

BAGGALLAY, J.A. concurred.

LUSH, J.-I am of the same opinion. The rule in question is a relic of the old practice when the plaintiff had the power of entering an appearance for a defendant who had failed to appear, and it does not seem to be applicable to a state of things in which substituted service may be made in such ways as by post or by advertisement in a newspaper.

Solicitors: Munton and Morris, agents for Samuel Johnson, Sheffield.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION. (Before the MASTER of the ROLLS.) Reported by G. WELBY KING and J. E. THOMPSON, Esqrs., Barristers-at-Law.

March 17 and March 20.

LYSAGHT v. EDWARDS.

Conveyance-Title-Devise of trust estates-Heir

at-law.

S. B. E., by an agreement dated 23rd Dec. 1874, agreed to sell to the plaintiff certain freehold and copyhold land. The deposit was paid, and the title accepted. The vendor had previously made his will, dated July 1873, by which he charged the real estate subsequently sold with his debts in exoneration of his personal estate. He devised all his real and copyhold estate to H. and M., whom he appointed trustees of his will, upon trust for sale; and to H. he devised all the real estate of which he was trustee upon the trust affecting the same. There was a difficulty in finding the heirat-law and the customary heir.

Held, that the trustees could make a good title with out the concurrence of the heir-at-law or tomary heir.

Decree for specific performance.

cus

Remarks upon Wall v. Bright (1 Jac. & Walker).

SPECIAL CASE.

By an agreement in writing, dated the 23rd Dec. 1874, and made between Samuel Bedford Edwards

[CHAN. DIV.

(thereinafter called the vendor), of the one part, and John Lysaght and James Inskip, the plaintiffs (thereinafter called the purchasers), of the other part, the vendor agreed to sell, and the purchasers to purchase at the price of 59,750l., the fee simple in possession of all that mansion called the Bury, and several messuages, farms, lands, allotments, tenements, and hereditaments, situate in the parish of Arsley, and also the shares in the common pastures of Arsley aforesaid, mentioned in the schedule thereto, and the premises known as the Oak Inn, and the station meadow, and a small slip of land then mentioned, together with all rights, easements, and appurtenances thereto belonging, all which hereditaments and premises, containing in the whole 775a. 1r. 36p., or thereabouts, were more particularly described and delineated in the schedule and map thereunto annexed. The vendor agreed within thirty-five days from the date of the agreement to deliver an abstract of his title in accordance with the stipulations of the contract; and before the completion of the purchase, at his own expense, to cause all the parts of the property purchased, which was then copyhold of the manor of the rectory manor of Shillington and Ramerick respectively, or either of them, or of any other manor (except such manors as were thereinafter mentioned of which the vendor or others, in trust for him, was or were seised in fee), to be duly enfranchised, and the vendor and all other necessary parties (if any) would, upon the completion of the purchase, assign unto the purchasers as freehold, discharged from all manorial rights whatsoever, all the parts of the property thereby agreed to be sold and purchased which were or were formerly, copyhold of the manors of Eatonsbury, in Arsley or Alricksay, otherwise Arlseybury with Lanktony, but the vendor was not to be required to set out or distinguish such last-mentioned copyhold parts from the freehold parts of the same property. The purchaser was to pay a deposit of 3000l. immediately on the execution of the agreement, and a further sum of 7000l. within four weeks of their acceptance of the title, when a proper assurance was to be executed of such part of the hereditaments thereby contracted to be purchased, as consisted of the mansion and outbuildings called the Bury, and other hereditaments therein described.

The deposit of 3000l. was duly paid, and the title was accepted by the plaintiffs, on or before the 1st May 1875. On the 1st May the further sum of 7000l. was paid, and a conveyance of the property agreed to be conveyed on payment of that sum, was, with a small exception, duly executed.

The said Samuel Bedford Edwards died on the 12th June 1875, having duly executed his will dated the 22nd July 1873, which, after the bequest to his wife, whom he made sole executrix of all his personal property, and to certain persons therein mentioned of pecuniary legacies, provided as follows: "I charge such part of my real estate as consists of my messuage, farm, and lands, at Arlsey aforesaid, called the Bury Farm, in exoneration of my personal estate, with the payment of my debts and of the pecuniary legacies aforesaid, and subject to the trust hereinafter contained for sale of the same hereditaments, and to the power of postponing such sale, I direct the said debts and legacies to be raised under the statutory

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power for that purpose. I devise to my cousin, Egerton Hubbard, of Addington Manor, in the county of Buckingham, and my friend, Mr. Wm. Muller, junior, of No. 4, St. Helen's-place, Bishopsgate-street, their heirs and assigns, all my real estate whatsoever and wheresover of freehold tenure," with a certain exception in the said will mentioned. "And I give and devise such part of my real estate as is of copyhold tenure, to the use of such person or persons, and in such manner as the said Egerton Hubbard and William Muller, junior, or the survivor of them, or the executors or administrators of such survivor, or others the trustees or trustee, for the time being of this my will, shall by any deed or deeds for the purpose of carrying into effect any sale which shall be made under the trust hereinafter declared appoint.” And the said testator gave to the said Egerton Hubbard and William Muller junior, their executors and administrators, all the net moneys to arise by sale of the said freehold and copyhold hereditaments respectively, upon the trusts thereinafter mentioned, and the said Egerton Hubbard and William Muller were to sell and convert into money the said real estate thereinbefore devised, and to hold the proceeds upon the trusts therein mentioned. And after giving his trustees power in certain circumstances to postpone the sale of his real estate, and directions as to the application of the rents thereof, whilst the same, or any part thereof, should be unsold, the testator provided: "And I devise to the said Egerton Hubbard, his heirs and assigns, all real estate which at my death may be vested in me as therein subject to the trusts affecting the same.'

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The will was duly proved by the defendant Emily Clara Charlotte Edwards on the 28th July 1875.

[CHAN. DIV.

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JESSEL, M.R.-This case is an illustration, if another illustration were wanting, of the great difficulties which arise from deciding cases for the purpose of convenience, instead of allowing the Legislature to intervene to correct any defects in the law. Had it not been for the case of Wall v. Bright (vide sup.), I should not have thought the present special case arguable. As it is, I confess that I decide it with something like hesitation, not because I doubt at all as to the way in which it ought to be decided, but because I cannot help thinking that it is impossible for me, at this distance of time, to say that Wall v. Bright, as decided, is not law; and that I must consider what the effect of that case is, not merely upon the facts of it, but also as regards the reasons given by the learned judge who pronounced it; and as to the effect that the case may have had upon subsequent titles, and the practice of conveyancers. But, notwithstanding all that, I must say that I cannot help considering this case, in the first instance, independently of that decision, and stating the conclusion I should have come to without that decision, and the reasons for it, and then take into consideration the effect, if any, which that case ought to have upon my ultimate decision. In this particular case the testator made his will on the 22nd July 1873, then being owner in fee of certain freehold estates, including the farm called Bury Farm, partly freehold, and of certain copyhold estates, which included the copyhold part of the same farm, and other copyholds. He charges "such part of my real estates as consist of the Bury Farm" (I am reading it shortly), "with my debts and pecuniary legacies, and, subject to the trusts hereinafter contained for sale of the said hereditaments, and to the power of postponing such sale, I direct the said debts and legacies to be raised under the statutory power for that purpose." Then he gives to two gentlemen of the names of Hubbard and Muller all his real estate whatsoever and wheresoever, of freehold tenure. There was a certain exception, which it is not material to mention; and he devised to the same gentlemen all his copyhold estates to the uses of such persons as they may appoint for the purpose of carrying into effect any sale which should be made under the trusts thereinafter declared; and then he gave them the net proceeds of the sale upon the trusts therein mentioned. There is, thereplain-fore, a gift of the freehold estate upon trust to sell, and of copyhold estate, to such use as they shall appoint in the ordinary and best way for the purpose of effecting a sale; and then there is a direction that there shall be an investment. That is the convey. ancer's form of the trust for sale for freehold and copyhold estates, the difference being made merely to avoid a double admission. So that the trustees are to convey the copyhold to the purchaser directly, in order to avoid the expense of two fines. It is a common devise upon trust to sell freehold and copyhold land; and then there is a power to postpone the sale, which is referred to, and then there is this devise: "And I devise to the said Egerton Hubbard, his heirs and assigns, all real estate which at my death may be vested in me as trustee,

The enfranchisement of the copyhold parts of the estate, which was provided for by the agreement, had not been completed at the death of the said S. B. Edwards, who was himself the tenant on the court rolls of the respective manors. There was at the date of the action no tenant on the court rolls.

The special case was stated for the opinion of the court by consent of the parties, pursuant to Order XXXIV., rule 1.

The questions for the opinion of the court were: first, whether the plaintiffs were entitled to have the said agreement of 23rd Dec. 1874 specifically performed; and, secondly, whether the concurrence of the heir-at-law or customary heir of the said S. B. Edwards was necessary to give a complete title to the estate contracted to be sold.

Cookson, Q.C. and Cozens Hardy for the

tiffs.

Chitty, Q.C. and Kekewich for the defendants. The following cases were referred to in the course of the argument:

Wall v. Bright, 1 Jac. & W. 494:

Shaw v. Foster, 27 L. T. Rep. N. S. 281; L. Rep. 5
H. of L. 321;

Re Cuming, 21 L. T. Rep. N. S. 739; L. Rep. 5
Ch. 72;

Purser v. Darley, 4 K. & J. 41;

Cresswell v. Haynes, 10 W. R. 121;

Yem v. Edwards, 1 De G. & J. 598; 30 L. T. Rep.
O. S. 110;

Whittaker v. Whittaker, 4 Bro. C. C. 31;
Goold v. Teague, 33 L. T. Rep. O. S. 251;
Laws v. Bennett, 1 Cox, 167;

Thistle v. Vaughan, 24 L. T. Rep. O. S. 5;

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