Practice.-1 Will. 4. c. 60—Lunatic.

Upon an application, under the 1 Will. 4. c. 60, for the transfer of a sum of stock standing in the name of a lunatic trustee, the Lord Chancellor refused to adopt the facts as found in a suit in the Exchequer, and directed the usual reference.

In a suit instituted in the Exchequer, it had been found that certain stock was standing in the name of a lunatic and another person as trustees, and a petition was presented here, under the 1 Will. 4. c. 60, to obtain a transfer. It was proposed that, in order to save expense, the Court should adopt and act upon the facts so found in the Exchequer suit; but

The LORD CHANCELLOR declined making such an order: as the Court of Exchequer had no jurisdiction in matters of lunacy,

Practice.-Notice of Motion.

It is irregular, except by special leave of the Court, to serve a defendant with notice of a motion before he has appeared.

The defendant was, on the same day, served with a subpoena to appear and answer the bill, and also with a notice of motion for an injunction. Two days after, namely, on the 17th of July, an appearance was entered, and the plaintiff afterwards obtained the injunction in the defendant's absence, which the Vice Chancellor dissolved for irregularity.

Mr. Stinton, by way of appeal, moved to discharge the order of the Vice Chancellor, contending, that no such rule existed as that stated in the placitum to this case; and cited Wyatt, Pr. Reg. 286, 1 Smith, Ch. Pr. 65.

Mr. Wright, contrà.

The LORD CHANCELLOR agreed in opinion with the Vice Chancellor, and said, that the reason why a notice of motion could not be given until after an appearance, was, that the defendant had not submitted to the jurisdiction, and therefore ought not to be prejudiced; that it re quired a special case to be made out to induce the Court to interfere before an appearance had been entered, when by special leave a notice of motion might be given before appearance.

Trust-Consideration-Appointment.

A bond debt being assigned to trustees on trust for such persons as A, a feme covert, should appoint, and in default for her separate use, she appointed it to a creditor of her husband, to secure an existing debt. No other consideration appeared on the face of the deed:-Held, that this was an 66 executed trust" in favour of the creditor, which the Court would effectuate, notwithstanding the apparent want of consideration.

This was a supplemental bill. It appeared that Thomas Etheridge, the testator, mentioned in the original cause, was indebted to William Catling, on bond dated in 1801, and that by an indenture of the 9th of December 1833, William Catling, in pursuance of an agreement, dated in 1829, assigned this bond and all benefit thereof to trustees, upon trust," for such person or persons, and for such interest or interests, upon such trusts, and for such intents and purposes, and with, under, and subject to such conditions, powers, provisoes, limitations, charges, and declarations, and in such manner and form as his daughter ElizaNEW SERIES, VII.-CHANC.

beth Pownall, the wife of Edward Pownall, at any time or times, and from time to time, notwithstanding her present or any future coverture, and whether covert or sole, by any deed or deeds, instrument or instruments in writing, with or without power of revocation, under her hand and seal, or under her hand only, or by her last will and testament, or any codicil thereto, or any paper or writing in the nature of or purporting to be her will or a codicil thereto, should direct, limit, or appoint; and in default thereof, for the sole and separate use and benefit of said Elizabeth Pownall, the wife of the said Edward Pownall, her executors, administrators, and assigns, to be assigned and disposed of accordingly, and not to be subject to the debts, contracts, or engagements, or controul of the said Edward Pownall, or any future husband or husbands of her, the said Elizabeth Pownall."

Mr. Pownall, it appeared, had acted as the agent and solicitor of the plaintiff Mrs. Collinson and her two daughters, and had appropriated to his own use monies belonging to them, and being consequently indebted to them, by an indenture, dated the 7th of January 1834, and made between Elizabeth Pownall of

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the first part, Edward Pownall of the second part, the plaintiff, Maria Collinson, of the third part, and the other plaintiffs, Anna Maria Collinson and Caroline Palmer Collinson, of the fourth part, reciting, among other things, the bond of the 18th of November 1801, and the indenture of assignment, dated the 9th of December 1833, and reciting, that a partnership had then lately subsisted between Edward Pownall and William Pownall Hunt, as attornies and solicitors at Ipswich, but that the same had been recently dissolved, and that during the existence of such partnership, Edward Pownall borrowed and appropriated the sum of 1,000l., belonging to the plaintiff Anna Maria Collinson, and also the sum of 1,500l., belonging to the plaintiff Anna M. and Caroline P. Collinson, and reciting (falsely) an indenture of appointment of the 4th of January 1834, whereby Elizabeth Pownall was alleged to have appointed to trustees the trust monies assigned by the indenture of the 9th of December 1833, upon trust to raise thereout the sum of 3501., and reciting, that in order to save harmless, and indemnify the plaintiffs, Anna Maria Collinson and Caroline Palmer Collinson, in case they should not be able to recover from the joint or separate estate of Pownall and Hunt, the whole of the sums so borrowed and appropriated by Edward Pownall, the said Elizabeth Pownall had proposed and agreed to make and execute the appointment therein contained, it was witnessed, that in pursuance of and for effecting the said proposal and agreement, and in consideration of the premises, Elizabeth Pownall, in execution of the power given to her by the indenture of assignment, directed, limited, and appointed that all and every the sums of money to which she was entitled under the said assignment, and all her interest &c. therein and thereto, should vest in the plaintiff Maria Collinson, her executors, administrators, and assigns, as her and their own absolute properties upon trust (subject to the alleged appointment for raising 3501.), to indemnify the plaintiffs from all losses, costs, &c., they might bear by reason of Edward Pownall having borrowed and appropriated the said two sums of 1,000l. and 1,500l., and to pay the plaintiffs, Anna Maria Collinson and Caro

line Palmer Collinson, so much of the sums appropriated by Edward Pownall, as they should not be able to recover from the joint and separate estates of Pownall and Hunt, and to stand possessed of the residue upon the trusts of the indenture of the 19th of December 1833.

The original bill was filed in March 1832, by Catling and Mr. and Mrs. Pownall, against the representatives of the obligor of the bond, who was dead, praying that the rights and interests of the plaintiffs, under the bond, and the will of the testator and obligor of the bond, might be ascertained, and for the establishment and execution of the trusts of the will. The usual decree for the accounts was made at the hearing on the 26th of February 1834.

The supplemental bill in this case was filed, in May 1835, by Mrs. and the two Miss Collinsons, which, after stating the above facts, stated, by way of supplement, the deed of January 1834; and that on the 10th of March 1834, a fiat of bankruptcy issued against Edward Pownall, who had been declared a bankrupt, and that thereby the original suit had become abated or defective, but that Pownall and his wife and Catling had declined to supply the defect therein, or to make the same complete or effective; and the bill prayed that they might have the benefit of the original suit and the proceedings therein, in respect of the bond, and for an account of what was due to plaintiffs on their said security, and for payment thereof out of the estate of Thomas Etheridge.

The defence set up by Mrs. Pownall was, that the deed was executed on a verbal agreement, (not stated in the deed,) that the Collinsons would continue to employ her husband as their solicitor, which they had not done, and that therefore, the consideration for the deed having failed, this Court ought not to enforce it; secondly, that this being an executory trust, which the Court was called on to enforce, a sufficient valuable consideration was necessary to induce the Court to carry it into effect against Mrs. Pownall; and thirdly, that the proceeding by supplemental bill was irregular, as the suit had not become defective by the bankruptcy of the husband, who had no interest in the wife's separate estate; and fourthly,

the deed of 1834 being made subject to an alleged deed of 1833, for securing 350l., which deed did not exist, whether the plaintiff was entitled to claim the amount due on the bond, discharged of that sum of 3501.

Mr. Kettle, one of the defendant's witnesses, deposed, that when he took the deed of 1834 over to the plaintiffs at Brussels, and handed it over, Mrs. Collinson, who acted as the agent of her daughters, assented to the retainer of the 350l. by Mrs. Pownall, "and gave him a positive assurance, that she would, upon receiving the said deed, not withdraw her business from the defendant Edward Pownall, but, on the contrary, would do him all the good in her power;" it was also proved, that Mary Collinson, from the date of the deed, "ceased altogether to employ Mr. Pownall, and never did after that time employ him on a single occasion."

On the other hand, it was contended on the part of the plaintiffs, that on the execution of the power of appointment by Mrs. Pownall, the trustees of the fund became trustees for the plaintiff. That all

had been done, which was feasible, to pass the interest in the bond to the plaintiffs, and that this was a case of an executed and not of an executory trust.

Mr. Tinney and Mr. James Russell, for the plaintiffs, cited

Fortescue v. Barnett, 3 Myl. & K. 36;

s. c. 2 Law J. Rep. (N.s.) Chanc. 98. Sloane v. Cadogan, 2 Sug. Vend. 370. Godsal v. Webb, post.

Mr. Pemberton and Mr. Teed, for Mrs. Pownall, cited

Colman v. Sarrell, 1 Ves. jun. 49. Pulvertoft v. Pulvertoft, 18 Ves. 84. Edwards v. Jones, 1 M. & Cr. 226; s. c. 4 Law J. Rep. (N.s.) Chanc. 163, and 5 ibid. 194.

Mr. Richards for Mr. Pownall. Mr. G. Turner, Mr. Geldart, and Mr. E. Montagu, for other parties. Mr. Tinney, in reply.

Jan. 20.-The MASTER OF THE ROLLS.This must be admitted to be a hard case on either side. The plaintiffs have been defrauded of very considerable sums of money, and unless they obtain the benefit of the security on which they relied, they

will suffer from the effect of the fraud practised on them. On the other hand, Mrs. Pownall seems to have executed a deed, under the intention of saving her husband from great loss or ruin; and if she is bound by the deed, she will part with her property without having attained the object she must be presumed to have had in view when she executed it. In either case, it seems to me, that a considerable hardship will be inflicted on the party who does not succeed.-[His Lordship detailed the circumstances of the case, and particularly the deed, and proceeded :]-This deed having been executed, the persons who were entitled to the benefit of it, the two Miss Collinsons and Mrs. Collinson, filed their bill on the 12th of May 1835, to have the benefit of the former proceeding; and very many objections were raised to the relief which they here pray. First of all, it is said, this deed was, in fact, executed for a consideration, which is not stated in the deed, but which consideration was the real ground on which the deed was executed, and that the duty which was undertaken by Mrs. Collinson was never performed, in pursuance of the contract next, it is stated, that this was a deed executed without any consideration; that it was not what is called in this court,

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a trust executed," but that there was something else required to be done; and in consequence of there being something else necessary to be done, which was not done by the deed, it requires the intervention of this Court as against the person who created the trust, and there being an absence of consideration, it cannot be enforced in this court. Then, again, it is said, that this suit is not constituted in such a way as to be conformable to the ordinary rules of this court.

Now with respect to the first point, as to the consideration, which, it is said, was never paid, or the duty, which it is said was implied in that consideration, but was never performed, it does not appear to me, that in the present state of the record, and in the absence of any cross bill, I can enter into that question. I do not think the record is so framed as to enable me to adjudicate on that question, if there really be a question of the kind in this case. On the second point, after the best considera

tion I can give to it, I must say, it seems to me, that as between Mrs. Collinson and the Miss Collinsons, on the one hand, and Mrs. Pownall on the other, it is what the Court is in the habit of calling "a trust executed." It is a trust in which the relation between trustee and cestui que trust has been established, so far as depends on the person who created that trust. Now, certainly it has occurred to me, as a matter well worthy of consideration here, how far the peculiar situation of a married woman ought, in the consideration of this Court, to entitle her to that species of protection which at law, in cases of legal obligations on contracts for indemnity, is actually afforded to a person who enters into such a contract. If there be a legal obligation to afford an indemnity, I apprehend that, on an action to have the benefit of the legal obligation, a court of law would consider whether it had been entered into for a valid consideration or not; and it has occurred to me, whether something analogous to that might not be introduced by a court of equity into the consideration of a trust of this nature. A declaration of trust has, in a court of equity, the same effect as a transfer of the legal estate, or as the vesting of a legal interest has in a court of law. The transaction being complete, is not to be disturbed for want of consideration; and if this had rested on the agreement alone of Mrs. Pownall, if there had been an agreement not conferring a legal interest, as far as the term "legal interest" is applicable to cases of this nature, if it had been a contract to be executed by the adjudication of this Court, as in a case of specific performance, I am then of opinion that, in the absence of all consideration, there could not have been a specific performance; but if there has been that done in this deed, which in the case of a legal interest would confer the estate, then, I apprehend, the want of consideration does not prevent this Court giving it effect; and this, I think, on the consideration of this deed, to be really the effect of it. The question, whether something is to be done, that is, whether a trust is executed or executory, in cases of this nature, is to be considered between the person creating the trust, and the person claiming the benefit of the trust. It is not to be consi

dered between either of those persons and

a stranger, to whom the subject of the trust may afterwards have been given.

Thinking this deed does give such an interest to the plaintiffs that entitles them to the benefit of it, the only question that remains is, whether this is a proper mode of bringing forward that question. I confess it does appear to me to be perfectly clear, that this is the only mode in which they could bring it forward in a proper and satisfactory manner. The interest, which at the commencement of these proceedings, and during their progress till the decree, was vested in Mrs. Pownall, was transferred to the persons to whom she executed the power of appointment, and her interest passed to them. This was not mentioned at the hearing. If it had been, I think, that the hearing would have been postponed, because it would then have appeared there were persons interested not before the Court. But it does appear to me to be quite in conformity with ordinary principles, that in respect of that transfer of interest there should be a bill filed by the parties to have the benefit of the proceedings, if they are satisfied with the proceedings that have taken place. There are other circumstances that seem to me to make it necessary. The original bill was filed by the husband and wife and Mr. Catling. Mr. Catling was the person who was the obligee in the bond; the bond had not been assigned, but there was an agreement only to assign it, and he was therefore, previous to the institution of the suit, the obligee of the bond, subject to an agreement to assign it. He, together with Mr. and Mrs. Pownall, partly in respect of her separate interest, and partly in respect of an interest to which he was entitled in her right, commenced and prosecuted these proceedings, as her separate interest was an interest to be established as against the assets of the testator. The residuary legatees were all made parties, from the particular constitution of the suit; and in this state of circumstances Mr. Pownall, having become bankrupt, was no longer capable of prosecuting the suit for his own` advantage; the suit therefore, not having become abated, but (in other language, not adopted in this Court, although if it were adopted, I am persuaded, it would remove