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Q.B. Div.]

Re THE ISLE OF WIGHT HIGHWAY COMMISSIONERS.

(c) A

contributory place, be raised as general expenses, they may further direct that such special expenses shall be raised in like manner as general expenses, and not by such separate rate for special expenses as is mentioned in sect. 230 of the Public Health Act 1875. district council shall have the same power of charging highway expenses under exceptional circumstances on a contributory place as a highway board has in respect of any area under sect. 7 of the Highways and Locomotives (Amendment) Act 1878. (d) Where highway expenses would, if this Act had not been passed, have been in whole or in part defrayed in any parish or other area out of any property or funds other than rates, the district council shall make such provision as will give to that parish or area the benefit of such property or funds by way of reduction of the rates on the parish

or area.

Sect. 75.-(1.) The definition of "parish" in sect. 100 of the Local Government Act 1888 shall not apply to this Act but save as aforesaid expressions used in this Act shall unless the context otherwise requires have the same meaning as in the said Act. (2.) In this Act unless the context otherwise requires the expression vestry" in relation to a parish means the inhabitants of the parish whether in vestry assembled or not and includes any select vestry either by statute or at common law.

The Local Government Act 1888, sect. 100, provides as follows:

The expression "highway authority means, as respects an urban sanitary district, the urban sanitary authority, and as respects a highway district, the highway board, or authority having the powers of a highway board, and as respects a highway parish, thesurveyor or surveyors of highways or other officers performing similar duties.

A similar definition is contained in the Highways and Locomotives Act 1878 (41 & 42 Vict. c. 77), s. 38.

The

Macmorran for the County Council. Isle of Wight Highway Commissioners are a highway authority within the meaning of sect. 25, and it is submitted that their powers and duties are transferred to the rural district council of the island, and they no longer exist. They are not a highway board, but their powers have been transferred to the rural district council. The words "powers, duties, and liabilities of any highway authority are perfectly general. The interpretation clause only says what a highway authority is to mean in the three cases there put. It does not say it shall mean only these bodies and no others. Under sub-sect. 2 of sect. 12 the expression "district council" means, it is submitted, the highway authority.

J. A. Foote for the Highway Commissioners.— The Isle of Wight Highway Commissioners are not a highway authority within sect. 25 of the Act of 1894. The expression "highway authority" is defined by sect. 100 of the Act of 1888. That definition is adopted by sect. 75 of the Act of 1894 as respects a highway district. Now this is not a highway district. A highway district is a district constituted under the Highway Acts of 1862 and 1864, from which the Isle of Wight was expressly excepted, so there never has been any highway district in the Isle of Wight. Sect. 100 of the Act of 1888 does not say that district councils are the same as "highway authorities," but it says that until district councils are made the highway authority shall be regarded as a district council. That is a different thing. The Act of

[Q.B. DIV.

1894 makes no change with regard to main roads in any part of England. Why should it be held to do so in the Isle of Wight? Very strong and clear language would be necessary to do it, and that language is not to be found in these Acts. All the roads in the Isle of Wight are main roads, and if this transfer takes place it will be the only case in England in which main roads are placed under the control of the district council. Everywhere else they are under the county authority. Macmorran in reply.

CAVE, J.-This case is one of some complication, and we are very much indebted for the able arguments which have been addressed to us on the subject; but, looking at the matter as a whole, it seems to me to be impossible to conceal from ourselves the intention on the part of the Legislature that the general administration should be simplified, and that these commissioners as the highway authority should cease to exist. Sect. 25 of the Local Government Act of 1894 is very plain. It says: "As from the appointed day there shall be transferred to the district council of every rural district all the powers, duties, and liabilities of any highway authority in the district and highway boards shall cease to exist and rural district councils shall be the successors of the highway authority." I think it cannot be denied that in this particular district the commissioners were the highway authority. They appeared to exist, as far as one can guess, for that purpose, and for no other purpose, and consequently it was intended that they should cease to exist, and that for all purposes the district council should take their place. Now undoubtedly in an ordinary case in the counties of England the district council would succeed the highway board, and, succeeding the highway board, they would succeed to the management of those roads only which were not main roads unless an agreement was made between them and the county council under sub-sect. 4 of sect. 11 of the Act of 1888. In the view which we take of the enactment of 1894, the district council in this case will become the actual authority having powers of repair and maintenance of the main roads, which they otherwise would not become. But there seems no reason in that why we should read the section in any different way than we otherwise should do. The Legislature does not regard that as a result which ought not to be brought about. In point of fact the sub-section which I have just referred to, actually gives power to the county council, and to the district council in other parts of England, to bring about this very state of things which it seems to me, whether intentionally or unintentionally, they have by their legislation brought about in the Isle of Wight. The contention by Mr. Foote is that the commissioners are preserved, and preserved for the purpose of exercising the duties and liabilities and powers of a highway authority in this corner of England. This argument will not give to the county councils the repair and management of the main roads; they would still remain under the management of the commissioners, although the county council would have to pay the costs. In the view which we adopt that the Legislature has not intended to preserve these commissioners the result will be that their powers will in the same way pass over to the district council, and the district council will have to do that which the com

CT. OF APP.]

STEPHENS v. GREEN; GREEN v. KNIGHT.

[CT. OF APP.

of the hearing in the court below, but in addition

Supreme Court of Judicature. thereto the following is material:

COURT OF APPEAL.

April 25 and 26.

(Before LINDLEY, LOPES, and KAY, L.JJ.) STEPHENS v. GREEN.

GREEN v. KNIGHT. (a)

APPEAL FROM THE CHANCERY DIVISION.

Assignment Equitable interest in personaltyFund in court-Stop-order-Notice to trusteeIncumbrancers - Priority - Ward of court— Marriage without consent-Post-nuptial settlement-Consideration.

A stop-order on a fund in court obtained in an action for the administration of an estate has no greater effect for the purpose of deciding the priority of incumbrancers than notice to the trustees of the estate would have had if there had been no administration action. Where there is a derivative settlement by a beneficiary of his interest under an original settlement, and an assignment is made of the interest of a beneficiary under the derivative settlement, the assignee should give notice to the trustees of the derivative settlement, whose duty it is to pay over the fund to the assignor, and not to the trustees of the original settlement, though they may have the actual control of the fund.

Bridge v. Beadon (L. Rep. 3 Eq. 664) distinguished. Dictum of Lord Romilly, M.R. in that case (at p. 667) dissented from. Holt v. Dewell (4 Hare, 446) followed.

Re Booth's Settlement (21 L. T. Rep. 0. S. 239) overruled.

A post-nuptial settlement was executed by a ward of court, who had married without the consent of the court, containing (inter alia) a covenant by her to settle after-acquired property, and an assignment by her husband of a policy of

assurance.

Held, that the settlement was not voluntary, but was founded upon valuable consideration, and was enforceable.

Decision of Stirling, J. (ante, p. 83) affirmed. APPEAL by the Mutual Life Assurance Society from a decision of Stirling, J. (ante, p. 83).

A petition was presented by the trustees of a settlement, dated the 22nd June 1878, for payment out of court of a fund standing to the credit of an account in the suit of Stephens v. Green, and involved a question of priority between such settlement and an incumbrance of the Mutual Life Assurance Society.

The suit of Stephens v. Green was instituted for the administration of the estate of the Rev. Henry Green.

The suit of Green v. Knight was for administration of the estate of the Rev. Henry Armel Green, a beneficiary under the will of the Rev. Henry Green.

The petition dealt only with the interest of Henry Armel Green under the will of Henry Green.

The facts of the case are set forth in the report

(a) Reported by W. C. Biss, Esq., Barrister-at-Law.

No settlement was executed prior to the marriage of Mr. and Mrs. O'Connor, but on the 22nd June 1878 an indenture of post-nuptial settlement, made between John O'Connor and Alice Beatrice Joan his wife of the one part and Uvedale Corbett and George Thomas Woodroffe of the other part, was executed, whereby, after a recital of an agreement for a settlement made before marriage, certain trust funds, consisting of the residue of certain principal moneys therein mentioned, and a cash balance and certain bank annuities were transferred to Uvedale Corbett and George Thomas Woodroffe upon certain trusts for the benefit of Mr. and Mrs. O'Connor and their issue, and John O'Connor and Alice Beatrice Joan his wife (the latter so as to bind her separate estate) covenanted with the trustees that all real and personal property not thereinbefore settled to which Mrs. O'Connor was at the time of her marriage entitled, or to which she or John O'Connor in her right at any time during the coverture should become entitled, should be settled upon similar trusts. The settlement also contained an assignment by John O'Connor of a policy of assurance on his life.

It was decided by Stirling, J. that, according to the authorities, the persons to whom notice ought to be given for the purpose of gaining priority were those who had the control and custody of the fund; that in the present case the court had that custody and control for all purposes of the first suit, but not for any other purposes: and that for the purpose of notice as regarded the interests of persons claiming under the second testator, the fund was not really under the control of the court in the first suit. His Lordship decided, therefore, that the stop-order obtained by the Mutual Life Assurance Society was insuficient to deprive the trustees of the priority to which they were entitled by virtue of the earlier date of the settlement.

Farwell, Q.C. and A. R. Kirby for the appel lants. Notice of an assignment must be given to the person who has the legal control of the fund at the time. If the legal personal repre sentative of Henry Armel Green had, subsequently to the stop-order obtained by the Mutual Life Assurance Society, applied for payment out of the fund, he would immediately have been affected with notice of the incumbrance of the society. The appellants are therefore entitled to priority. Where there is a derivative settlement by beneficiaries under an original settlement, notice of assignments by beneficiaries under the derivative settlement should be given to the trustees of the original settlement:

Re Booth's Settlement, 21 L. T. Rep. O. S. 239;
Bridge v. Beadon, L. Rep. 3 Eq. 664;

Addison v. Cox, 28 L. T. Rep. 45; L. Rep. 8 Ch.
App. 76.

This is in accordance with the well-established practice, and has always been understood and acted upon. See

Daniel's Chancery Practice, 5th edit. p. 185; Davidson's Conveyancing, 4th edit. sub-tit. "Mortgage," pp. 228-30; and

Lewin on Trusts, 9th edit. p. 800.

[LINDLEY, L.J.-The authorities are not uniform Re Booth (ubi sup.) differs from Holt v. Devel

CT. OF APP.]

STEPHENS v. GREEN; GREEN v. KNIGHT.

(4 Hare, 446).] Holt v. Dewell is not sustainable. Notice should be given to the persons having legal dominion over the fund. A stop-order, where the funds are in court, is equivalent to notice to the trustees where the funds are in the hands of the trustees:

The Mutual Life Assurance Society v. Langley, 54 L. T. Rep. 326; 32 Ch. Div. 460. [LOPES, L.J. referred to Pinnock v. Bailey_(48 L. T. Rep. 811; 23 Ch. Div. 497). KAY, L.J.The stop-order could not have prevented payment of the fund to the son's executor. LINDLEY, L.J. -It had this effect, that the son's executor could not have got the fund without notice of the stoporder.] The question of notice as affecting the priority of assignments of equitable interests was considered by Lord Macnaghten in

Ward v. Duncombe, 69 L. T. Rep. 121; (1893)
A. C. 369, at p. 384.

Then we say that the settlement of the 22nd June 1878 was voluntary, and the covenant therein contained to settle after-acquired property cannot be enforced :

Currie v. Misa, L. Rep. 10 Ex. 153;

Buckmaster v. Buckmaster, 56 L. T. Rep. 795; 35
Ch. Div. 21; on appeal, 58 L. T. Rep. 565; 13
App. Cas. 61.

KAY. L.J.—Might not an action lie against the wife for breach of the covenant?] Possibly for damages, but that does not affect the argument that the covenant cannot be enforced. The recital in the settlement of an agreement to settle is not enough:

Warden v. Jones, 2 De G. & J. 76 ;

Trowell v. Shenton, 38 L. T. Rep. 27, 369; 8 Ch.
Div. 318;

Lord St. Leonards on Powers, 8th edit., p. 650. Even if there is in this case valuable consideration arising from the circumstances, such consideration cannot enure for the benefit of children of the marriage:

Green v. Paterson, 54 L. T. Rep. 738; 32 Ch. Div. 95.

Children are within the consideration of marriage, but are not within such consideration as is alleged here. [KAY, L.J.-Could not the trustees enforce the covenant?] Not in favour of children. [KAY, L.J. referred to Davenport v. Bishopp (2 Y. & C. C. C. 451; 1 Ph. 698). Green . Paterson (ubi sup.) is a decision of the Court of Appeal, and is later than Davenport v. Bishopp abi sup.)

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Grosvenor Woods, Q.C. and Cordery for the respondent. The appellants claim that by reason of a stop-order they have obtained priority. The object in requiring notice to be given by a mortgagee is that, but for such notice, his mortgagors who are the cestuis que trust would be recognised as the persons entitled to receive the fund. This is how it is put by Lord Herschell in the last case on the subject in the House of Lords:

Ward v. Duncombe, 69 L. T. Rep. 121, at p. 124; (1893) A. C. 369, at p. 380.

The stop-order obtained by the appellants is therefore insufficient to give them priority over the trustees of the settlement. They are prior in point of date, and if the stop-order obtained by the society is ineffective, then they must take first

[CT. OF APP.

in the distribution. The Mutual Life Assurance Society v. Langley (ubi sup.) is distinguishable from the present case. There the question was as between funds in the hands of trustees and funds in court. The person to whom notice of the assignment of a chose in action should be given is the person whose duty it is to pay the assignor. See the judgment of Lord Herschell, L.C., in Ward v. Duncombe (ubi sup.). If the appellants' contention is right, it will lead to monstrous consequences. A very onerous duty would be thrown upon trustees and numerous administrations might become necessary. It would also throw upon assignees the duty of finding out who are the actual custodians of the fund assigned. It cannot have been the intention of the judges in The Mutual Life Assurance Society v. Langley (ubi sup.) to lay down such a rule. Re Booth (ubi sup.) is wrongly decided. It is inconsistent with the dictum of Lord Romilly in Commissioner of Public Works v. Harley (or Harby) (29 L. T. Rep. O. S. 36; 3 Jur. N. S. 478; 5 W. R. 400), and is in direct conflict with Holt v. Dewell (ubi sup.), which is a clear authority in favour of the trustees. Re Booth's Settlement (ubi sup.) is never cited, and is not found in the text-books where it might be expected to appear. It is not referred to in the 5th edition of Lewin on Trusts, which is the last edition by Mr. Lewin himself. [LINDLEY, L.J.-It is referred to in Fisher on Mortgages and Coote on Mortgages.] The law is not settled; there is a conflict of authority, and we submit that the court should decide the question on principle. The funds divisible in the two suits are not identical. The beneficiaries under the second will had no right to sue the trustees of the first will unless their own executor refused to take proceedings. As regards the second point, we submit that there was ample consideration for the settlement, and the court of equity would certainly enforce specific performance of the covenant :

Watts v. Watts, 24 W. R. 489;

Montefiore v. Behrens, L. Rep. 1 Eq. 171; Mackintosh v. Pogose, 72 L. T. Rep. 251; (1895) 1 Ch. 505.

Farwell, Q.C. in reply.-Re Booth's Settlement (ubi sup.) is cited as an authority in Lewin on Trusts, and should be upheld unless flagrantly wrong. Many assurance societies must have lent money on that view of the law.

LINDLEY, LJ.-This is an appeal against part of an order made by Stirling, J., which declares that the entire share and interest of Alice Beatrice Joan O'Connor, or John O'Connor in her right, of and in the funds in court in the schedule mentioned, whether derived under the will of the testator, Henry Armel Green, or under the intestacy of Henry Armel Green (the son), ought to be transferred to the petitioners Uvedale Corbett and George Thomas Woodroffe, as trustees of the settlement dated the 22nd June 1878. Now the facts of the case may be very shortly stated. I do not propose to go through details at all, but the question arises in this way: There was a Mr. Henry Green, whom I will call Green the father, who made a will in 1836, and under his will Henry Armel Green was entitled to a certain portion of his father's personal estate. There was a suit, which I will call Stephens v. Green, instituted for the administration of the father's estate, and the

CT. OF APP.]

STEPHENS v. GREEN; GREEN v. KNIGHT.

father's personal estate was brought into court in that suit. Then the son, before he had received his share of his father's property, made a will bequeathing his personal property, including his interest in his father's estate, in favour of his own children, one of whom was a daughter called Alice. Then the son died. Alice Green married a Mr. O'Connor. She was then an infant and a ward of court. She made a settlement on the 22nd June 1878, and after that she and her husband executed a mortgage to the Mutual Life Assurance Society for 400l. That was done in Oct. 1883. On the 5th Nov. 1883 the mortgagees obtained a stop-order upon the fund in court in the suit for the administration of the father's estate, and on the 14th Dec. in the same year the trustees of the settlement did the same thing. On the 16th Jan. 1884 the trustees gave notice of their settlement-that is to say, the daughter's, Mrs. O'Connor's, trustees gave notice of their settlement to the son's legal personal representative. The money is still in court. A petition was presented by the trustees of Mr. and Mrs. O'Connor's settlement asking for payment out of Mrs. O'Connor's share. That was opposed by the Mutual Life Assurance Society as the mortgagees of Mr. and Mrs. O'Connor, and the question is, who has priority? Stirling, J. has decided that the trustees of the settlement are entitled to priority over the mortgagees, partly because the settlement was prior in point of date to the mortgagee, but more especially because the trustees of the settlement gave notice of their settlement to the son's legal personal representative, whereas the mortgagees gave no notice at all, except by the stop-order. Now, the question is whether that decision is correct. The authorities upon the point are by no means altogether in harmony. Before I turn to the authorities I will consider the matter a little in reference to the principle which underlies all of them, as far as I understand. That principle is to be found by turning to the leading case of Loveridge v. Cooper (3 Russ. 1). That case settled, for the first time, what the principle was. There, as I understand, there was a dealing with the various interests, and in making payment the priori y was in the assignee who gave notice first to the trustee. That was a comparatively simple case. There was one estate, and it was the duty of the trustee to distribute the estate among the cestuis que trust, and the question in Loveridge v. Cooper was, whether by giving notice to the trustee the assignee converted the trustee into a trustee for him. That was the theory, and it was so held. Now, let us look and see whether that principle does not show that Stirling, J. was right here. Who was the trustee for Mrs. O'Connor? Who was the person whose business, whose duty it was to pay to her her share of her grandfather's estate-her father's estate first, and ultimately her grandfather's estate? I should say unquestionably the answer to the question who was her trustee is, that he was her father's legal personal representative. She had no interest in this estate except subject to the payment of the debts and funeral and testamentary expenses of her own father, and, unless there were some very extraordinary circumstances on the part of the trustees of her grandfather, she had no right at all. They were not her trustees in any proper sense of the expression,

[CT. OF APP.

and the father's legal personal representative was a trustee of the son's share for the son's legal personal representative. If that be so, in order that the person claiming under the son's will should convert anybody into a trustee for him by notice, he must be the son's legal personal representative whose duty it was to get in the assets first, and then to distribute them amongst the beneficiaries claiming under the son's will. Now I pass on to another point which bears upon the same thing. In practice, when ces

tuis que trust are going to sell an interest or to borrow money on their shares, in what quarter do business men make inquiries in order to ascertain whether these shares have been previously incumbered? They do not go back, nobody knows how far, to make inquiries of the trustees of the original settlement. They go to the trustee for the cestui que trust of that particu lar settlement; the person whose business it is to hand over the money to that cestui que trust. They make inquiries of that person, and I dare say these mortgagees went to the legal personal representative of the son and asked, Have you any notice of incumbrances? They want to borrow money of us; have you received any notice?" They would not go far away in order to make inquiries, in quarters in which business men do not usually make them. It appears to me then that the doctrine and principle laid down in Loveridge v. Cooper (ubi sup.) with regard to notice and priority would apply to the legal representative of the son. And, inasmuch as the trustees of the settlement gave notice to the son before the mortgagees gave notice, they would have priority according to the principle of that case. That is as I understand it. But then it is said there are authorities, such as the case of The Mutual Life Assurance Society v. Langley (ubi sup.) and Ward v. Duncombe (ubi sup.) in the House of Lords, to the effect that notice should be given to the holder of the fund. Well, so it ought if the holder of the fund is converted by the notice into a trustee for him. And when you look into the case of The Mutual Life Assurance Society v. Langley (ubi sup) for the explanation the explanation is obvious enough. There was a fund of which the person was trustee, and that fund had come into court. The question was whether the assignees ought to give notice to the trustee or ought to get a stop-order. The court said, " You ought to get a stop-order; you ought to give notice to the person whose duty it is to distribute the fund to you." That appears to me to be perfectly consistent with the observation which I am now making. As to the authorities of Holt v. Dewell (ubi sup.) and Bridge v. Beadon (ubi sup.), they are, I think. quite in accordance with the view I am expressing But, on the other hand, there is the decision of Re Booth (ubi sup.), which was decided in 1852 by Page Wood, V.C., and which is an authority in Mr. Farwell's favour. There there was a primary settlement and a secondary settlement, and the Vice-Chancellor held that there ought to have been notice given to the trustees of the original settlement. That was argued before him. But unfortunately it does not appear that the case of Holt v. Dewell (ubi sup.) was brought to his attention, and I confess that I do not myself see any difference in principle between Holt v. Dewell and Re Booth (ubi sup.). There is difference in details exactly as we have here.

CT. OF APP.]

STEPHENS v. GREEN; GREEN v. KNIGHT.

There was a trustee of the secondary interest whose duty it was to get in the estate for administration, but I do not think that it is of any real importance. Then, again, in Mr. Farwell's favour there is a dictum in the case of Bridge v. Beadon (ubi sup.) to which I will refer. I have not the slightest doubt, upon looking at the case, that the decision was perfectly correct. It was a case in which there was a settlement, and there were trustees of that settlement, and then there was a will made by a cestui que trust under that settlement appointing trustees for children, and the trust under the will ceased when those children attained twenty-one. Therefore, when they attained twenty-one, their trustees were really not their trustees at all; but they were trustees of the original settlement, and Lord Romilly points that out in the following passage. He says: "I am of opinion that the trusts reposed in Bridge and Yates were intended to be confined to the period of the infancy of the respective legatees, and that each legatee upon attaining twenty-one would be entitled to receive his legacy directly from the trustees of the settlement." Of course, if that is so, notice to the trustees of that settlement is quite right, and they would have priority. Then he goes on to use this language in a passage which I must say I think is unfortunate: "But, even if the testatrix had appointed the legacies of the trustees in trust for her nephews, I am of opinion that, so long as the trusts of the settlement had not been fully executed and the trust funds remained under the control of the trustee of the settlement, that trustee was the person to whom an assignee of the legacies was bound to give notice. If at the death of William Rowcliffe these legacies had been paid over to the trustees under the will, notice to the trustee of the settlement would from that time have ceased to be necessary, but until the funds left his hands he continued to be trustee for the purposes of the notice." Well, that has got into the text-books, and particularly into Mr. Lewin's book on Trusts, which is extremely valuable. It is at p. 709 of the Sth edition. He says: Where there are several settlements, one original and the other derivative, notice should be given to the trustees of the original settlement to hold the property." Well, when one comes to consider the principle of that, I must say I think that is not sound, and it would have for its consequence the imposition of duties upon trustees of an extremely onerous nature. Supposing I am a trustee of a settlement, am I to be presumed to have taken note of all the dealings of everybody who may have taken an interest in the fund of which I am trustee? It would make my position perfectly intolerable. It is quite enough to carry out, under the trusts of some other settlement, certain duties for cestui que trust under a settlement of my own. But to follow claims which are being made under some settlement, nobody knows how remote, would entail consequences which would be perfectly intolerable. It appears to me, therefore, that it is wrong in principle, and the true principle is that which I have suggested. Now, let us look and see what the effect of the stop-order is, because the mortgagees obtained the stop-order. I am not quite sure that that stop-order was not got a little inadvertently. However, there it is. and we know how easy it is to get a stop order. The effect of that stop-order was not

66

[CT. OF APP.

to convert the trustees of the father's will into trustees of the person getting the stop-order. It had no effect of the kind. But it had an effect, and a useful, good, and practical effect, in that it prevented the legal personal representative who was entitled to the fund from getting it withont giving notice to the person who got the stoporder. That is a very valuable protection because, after that, no one person is enabled to get the money out of court. It is necessary that those to whom he is accountable should know what he is about. It is true that when he went to obtain the money he would have notice of that stoporder, and if he had had no prior notice from the trustees of the settlement, the notice so acquired by that stop-order would be sufficient to protect Mr. Farwell's clients, the Mutual Life Assurance Society. However, unfortunately, the legal personal representative of the son had notice of this settlement. It appears to me, therefore, that the decision of Stirling, J. is correct, and that, when we have, as we must, to choose between the conflicting authorities, I am of opinion that the case of Holt v. Dewell (ubi sup.) is more sound, on the authorities, than Bridge v. Beadon (ubi sup.) or Re Booth (ubi sup.). Then the other point that was made by Mr. Farwell is this: He says that the settlement is void as against his clients because the trusts are such as the court would not enforce. I cannot agree with that. Here is a lady who was a ward of court, and who was married without the consent of the court. The son, who was afterwards her husband, made a settlement with her. That settlement contains covenants by both the husband and the wife, and it settles a policy of life assurance. It appears to me impossible to say that that is a settlement which the court would not treat as made for valuable consideration and enforce; and that the consideration required is to be found in the covenants contained in the settlement. In dealing with the contracts made without consideration what we have to consider is this: Under ordinary circumstances the court of equity of course will not decree specific performance of a contract which is not made for some consideration. That is common knowledge. But, at the same time, it would take a good deal to make me refrain from enforcing a contract entered into by a ward of court in order to keep her husband out of gaol. I do not doubt for a moment that the court would enforce a covenant of that kind in a settlement so executed. But the real answer, I think, to Mr. Farwell's contention is, that there is ample consideration here. I think, therefore, that the appeal should be dismissed with costs.

LOPES, LJ.-This question of priority of notice is a matter with which I am not familiar; but I have had the opportunity of considering the authorities and the arguments which have been addressed to the court, and I agree with the judg ment which Lindley, L.J. has delivered. I will only state shortly the ground for the conclusion at which I have arrived. It is this, that the only proper person to whom to give notice is the person who is the trustee for the assignor, and that the effect of such notice is to convers him into a trustee for the assignee. If that is so, in the present case we have the personal representative of the second testator--namely, the son, who was a trustee of the assignor. Therefore, accord

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