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of a business involves a power of carrying on the business until sale. Thus, in Re Chancellor (ubi sup.), Cotton, L.J. says: Without impugning any of the authorities that have been referred to, there is in this will an implied authority to the trustees to carry on the business, and the testator has said how the profits of the business, pending a sale, are to be paid and applied." So here, as long as the trustees carry on the business under this implied power, the language of the will is unmistakable. The income, or yearly profit, derived from the businesses is annual income for all the purposes of the will, and passes, under the words of the will, to the tenant for life. To hold otherwise would be to invent a trap to catch unwary trustees. There is nothing in any of the authorities that have been cited which compels me to come to such a conclusion; and some of the observations, indeed, in Re Chancellor (ubi sup.) are quite opposed to the plaintiff's contention, though in that case it was only necessary to consider whether the postponement of the sale for some two years was justified. The Court of Appeal held that it was. In my opinion, therefore, the plaintiff's contention fails.

Solicitors Elliott and Ash, agents for W. H. Steward, Birstal; Flower, Nuseey, and Fellowes, agents for Carr and Cadman, Gomersal.

Wednesday, May 15. (Before CHITTY, J.) TURNER v. GREEN. (a)

Specific performance-Defence to-Agreement for compromise of action-Silence as to a material fact-No obligation to disclose.

An action having been brought by a plaintiff for an account of moneys received and expended by the defendant, terms of settlement were come to on the same day that a summons in the action was decided by the chief clerk adversely to the plaintiff, a fact then unknown to the defendant or his solicitors.

The defendant now resisted specific performance of the terms of settlement of the action on the ground of the suppression of a material fact. Held, that this was not sufficient to enable the defendant to resist specific performance. Ellard v. Lord Llandaff (1 Ball & B. 241; 12 Rev. Rep. 22) discussed.

SUMMONS by the plaintiff to stay proceedings in the action on terms agreed on by him and by the defendant on the 11th Jan. 1895.

The action was brought for an account of moneys received and expended by the defendant as manager for the plaintiff of an hotel at Southsea. After appearance entered to the writ, the plaintiff took out a summons for an account under the Rules of the Supreme Court, Order XV. This was opposed by the defendant on the ground that there was a preliminary question to be tried as to the construction of the agreement between the parties upon which the action was based.

After adjournments for evidence, this summons came before the chief clerk on the 11th Jan. 1895, who expressed a view thereon adverse to the (a) Reported by H. M. CHARTERS MACPHERSON, Esq.,

Barrister-at-Law.

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plaintiff, and, at his request, the summons was adjourned to the judge.

On the afternoon of the same day, a meeting took place by appointment at the office of the defendant's solicitors, at Portsmouth, between the parties and their solicitors, to discuss terms of settlement of the action. Mr. Fowler, the plaintiff's solicitor, on his arrival at the office, was handed a telegram addressed to him there, informing him of what had taken place before the chief clerk, but did not communicate the same to the defendant, or to his solicitor. The terms then agreed on were, that the plaintiff should sell the hotel to the defendant at a given price, and that each party should bear his costs of the action.

The defendant now claimed not to be bound by these terms, on the ground of suppression of a material fact by Mr. Fowler, and in deciding the case the court assumed that the fact so suppressed was material. All questions of jurisdiction were waived, it being agreed to treat the summons to stay, so far as necessary, as though it were an action for specific performance of the terms agreed upon, with a counter-claim for rescission.

J. G. Butcher for the defendant.-A compromise is not like a sale, and is vitiated by sharp practice, although not amounting to fraud. Suppression of a material fact is sufficient for this purpose:

Ellard v. Lord Llandaff, 1 B. & B. 241; 12 Rev.
Rep. 22;

Watson v. Short, 6 Hare, 366.

E. C. Macnaghten for the plaintiff.-Mere nondisclosure and silence as to facts of importance, unless amounting to fraud, will not be a bar to specific performance :

Walters v. Morgan, 4 L. T. Rep. 758; 3 De G.
F. & J. 718;

Brownlie v. Campbell, 5 App. Cas. 925;

Smith v. Hughes, 25 L. T. Rep. 329; L. Rep. 6 Q. B. 597.

The decision in Ellard v. Lord Llandaff cannot be supported.

Butcher replied.

CHITTY, J., after stating the facts, continued: -The question is, ought the court to decline to enforce this agreement on the ground that Mr. Fowler was aware of these circumstances, and did not disclose them to the other party to the action. It is not a question of fraud, but whether the court will, in its discretion-that is, its judicial discretion, to be exercised according to the authorities-make a decree for specific performance. I will take the law as stated in Fry on Specific Performance (3rd edit. s. 705, at p. 325), that" mere silence as regards a material fact which the one party is not under an obligation to disclose to the other, cannot be a ground for rescission or a defence to specific performance." It is not contended that either Mr. Fowler or the plaintiff was under any duty to disclose these facts; but the defendant's counsel had recourse to the proposition that it was a shabby trick to withhold the information, and not consistent with the practice of high-minded solicitors; and that on this ground specific performance should be refused. I am unable to act judicially on this ground. Had there been any over-reaching in the discussion, or any conversation as to what was taking

place in London at the time, the case might be different; and there might have arisen an obligation in law or in equity on the part of Mr. Fowler to make a full disclosure. But there is no evidence of this. The distinction between suppression, when there is a duty to disclose, and mere silence is a very old one, and is to be found in Fry on Specific Performance (3rd edit. s. 713, at p. 329), where there is a quotation from Cicero:

Aliud est celare, aliud tacere; neque enim id est celare quidquid reticeas." The obligation to speak is at the root of the proposition. Lord Campbell, in Walters v. Morgan (ubi sup.) says that, there being no fiduciary relation between vendor and purchaser in the negotiation, the purchaser is not bound to disclose any fact exclusively within his knowledge, which might reasonably be expected to influence the price of the subject to be sold. Simple reticence does not amount to legal fraud, however it may be viewed by moralists. But a single word, or a nod, or a wink, or a shake of the head, or a smile from the purchaser, intended to induce the vendor to believe the existence of a non-existent fact, which might influence the price of the subject to be sold, would be a sufficient ground for a court of equity to refuse a decree for the specific performance of the agreement." This is a true statement of the law, and it is not confined to the case of buying and selling goods, but is of universal application, though it does not extend to contracts uberrimæ fidei, where a duty to disclose is involved. Consequently the defendant has not made out his case. But the case of Ellard v. Lord

Llandaff (ubi sup.) is relied on by the defendant. There specific performance was prayed of an agreement to grant a lease on the surrender of an old lease which depended on a single life, and this life was, as the plaintiff knew, but the defendant did not know, on the point of expiring. And although the court's refusal to decree specific performance was based also on the fact that the contract for the lease was void under the lessor's power to lease, still Lord Manners in his judgment did make the non-disclosure of the life being in extremis equally a ground of his refusal. He says: "All the material facts must be known to both parties; and is it not against all principles of equity that one party, knowing a material ingredient in an agreement, shall be permitted to suppress it, and still call for a specific performance ?' This proposition is too broad. The term used is "suppress," and the Lord Chancellor, whose language I must consider to have been properly reported, must have had in his mind the existence of a duty to disclose, and on this have based his decision. The case itself was a trying one, and calculated to dispose the court to strain the law. Had the life there dropped at the moment of the contract, the case of Strickland v. Turner (7 Ex. Rep. 208) shows that there would have been no contract at all. I cannot discover that the case of Ellard v. Lord Llandaff (ubi sup.) has been either approved or disapproved in any other case; but it is questioned in Fry on Specific Performance (3rd edit. at p. 333), where the author says that, if the case is to be supported on the ground of the silence of the lessee as to the life being in extremis, it must be on the principle that the silence, though not fraud, constituted such unfairness in the contract as to stay the hand of the court. But, in my opinion, the facts of the

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I

present case fall far short of what is required in order to resist specific performance. For this purpose Mr. Fowler's silence is insufficient. must therefore order the action to be stayed on the terms of the agreement between the parties. Solicitors for the plaintiff, Mear and Fourler. Solicitors for the defendant, Emanuel, Round, and Nathan, agents for Irens and Phelps, Portsmouth.

May 15 and 16. (Before CHITTY, J.)

CLAYTON v. BARCLAY. (a) Bankruptcy-Mortgage of leaseholds by undis charged bankrupt-Sale by mortgagees-Title of trustee in bankruptcy-No disclaimer by trustée -Bankruptcy Act 1883 (46 & 47 Vict. c. 42), 88. 44, 54, 55, 168.

L., an undischarged bankrupt, transferred the mortgage of certain leasehold property, which had been demised to him and mortgaged by subdemise by him in 1891, to the plaintiffs in 1892. In 1894, L. being in default, the plaintiffs entered into possession and sold the property to the defendants. L.'s trustee in bankruptcy had not intervened when the mortgage was made, and no disclaimer of the property had ever been executed by him.

The question arose whether the title had rested in the trustee under the Bankruptcy Act 1883, so that the plaintiffs could not make a good title to the property.

Held, that the decision in Cohen v. Mitchell (63 L. T. Rep. 206; 25 Q. B. Div. 262) covered the case of a chattel interest in land, and the trustee not having intervened when the mortgage was made, the plaintiff had acquired a good title to the property.

VENDOR and purchaser summons.

All the material facts are stated in the headnote and the judgment of Chitty, J.

F. Cooper Willis for the vendors.-The bankrupt's interest in this property did not pass to his trustee until he intervened:

Cohen v. Mitchell, 63 L. T. Rep. 206; 25 Q. B. Div. 262.

Carson for the purchasers.-The generality of the rule in Cohen v. Mitchell has been cut down by the decision in Re New Land Development Association and Gray (66 L. T. Rep. 694; (1892) 2 Ch. 138), which excepts real estate from it. Similarly the leasehold interest in land here is excepted from it, and, by virtue of sects. 44, 54, and 168 of the Bankruptcy Act 1883, the property vested eo instanti in the trustee without his intervention.

F. Cooper Willis in reply.—The case here is of a chattel interest in land, subject to onerous covenants, and is clearly distinguishable from that of freeholds, dealt with in Re New Land Development Association and Gray (ubi sup.). These interests cannot vest in the trustee until he has intervened, which he has never done and does not intend to do here; but, on the contrary, is willing to join to show his concurrence in the sale.

(a) Reported by H. M. CHARTERS MACPHERSON, Esq.,
Barrister-at-Law.

CHITTY, J.-At the time when the lease of this property, which was for a term of ninety-nine years, and contained onerous covenants, was granted to Lacey, he was an undischarged bankrupt. It is contended for the defendants, the purchasers, that by virtue of sect. 54 of the Bankruptcy Act 1883, taken in connection with sects. 44 and 168 of the same Act, the interest in the term so granted to Lacey passed eo instanti to his trustee in bankruptcy. On the other hand, it is argued for the plaintiffs, the vendors, that the decision of the Court of Appeal in Cohen v. Mitchell (ubi sup.) applies, and consequently that the property did not vest in the trustee in bankruptcy until he intervened, for the court there, after deliberation, laid down the law in respect of property acquired for valuable consideration after bankruptcy to be that until the trustee intervenes, all transactions by a bankrupt after his bankruptcy with any person dealing with him bona fide and for value, in respect of his afteracquired property, whether with or without knowledge of the bankruptcy. are valid against the trustee." I had in Re New Land Development Association and Gray (ubi sup.) to consider the point, whether it was intended by the Court of Appeal to apply the proposition thus laid down in Cohen v. Mitchell (ubi sup.) to real estate; and, for the reasons there given, I held that real estate was not within the view of the Court of Appeal in Cohen v. Mitchell (ubi sup.), and this seems to have met with the approval of the Court of Appeal when this case of Re New Land Develop ment Association and Gray (ubi sup.) was brought before it. The present case, however, is not one of real estate of freehold property being acquired by the bankrupt; but of a chattel interest in land -a term of years-subject to onerous covenants. If the purchasers' contention is right, the mortgage of the term made by Lacey to the vendors, even if made the day after he obtained the lease, conferred no title upon them; but if, on the other hand, the proposition enunciated in Cohen__v. Mitchell (ubi sup.) by the Court of Appeal applies to this case, then, it being clear that the trustee had not intervened at the time or since, and in fact has no desire now to do so, the question is, whether I ought to read in another exception, namely, of a chattel interest in land, into the decision in Cohen v. Mitchell (ubi sup.). Possibly some of the reasons which I gave in my decision in Re New Land Development Association and Gray (ubi sup.) for the exception of the case of real estate from the decision in Cohen v. Mitchell (ubi sup.) might apply, though with somewhat diminished force here, to the case of a chattel interest. But I have to consider whether there are any such reasons as would justify me in introducing this further limitation to the effect of the decision, and it appears to me that I ought not to attempt to do so. The language of the Court of Appeal is large enough to include all property. It is certainly large enough to cover the case of a chattel interest in land. I think that this case falls within that decision, by which I am bound. I do not propose to express any definite opinion on the various inconveniences which I see might arise if I were to make this further exception from the proposition. I will not go into them, but merely say that it is by no means clear that the disclaimer section-sect. 55-of the Bankruptcy Act 1883 would apply at all to the case of an after-acquired

[CHAN. DIV.

leasehold. It is clear that some of its provisions do not apply, such, for instance, as the limitation in sub-sect. 1 of a period of three months after the trustee's first appointment; and it would be a strange thing that if, as the purchasers argued, after-acquired leasehold property vested eo instanti in the trustee without his intervention, he should have no power given him under sect. 55 to disclaim such property. The result, therefore, is that, as the trustee in bankruptcy had not intervened when the mortgage was made to the plaintiffs, they acquired a good title; and the trustee is now entitled to join in such a way in the conveyance as to show that he concurs in the assignment to the purchasers. The purchasers have suggested that the title was too doubtful a one to be forced upon them. But the question is not one of the construction of a private document, or even of a doubtful Act of Parliament, because the question had already been before the Court of Appeal, and they have deliberately laid down the law on the matter in support of the title. Under these circumstances the court does not consider a title doubtful; and the result is that the purchasers have a good title without the disclaimer of the trustee.

Solicitors: Beaumont and Son; Irvine, Hodges, and Borrowman.

Feb. 1, 6, 7, 14, 15, 20, 21, 22, 1894, and April 10, 1895.

(Before NORTH, J.) MARA v. BROWNE. (a) Solicitor-Trustee de son tort-Breach of trust— Improper investment-Solicitor making himself responsible-Liability of partners-Limitation of actions-Trustee Acts 1888 (51 & 52 Vict. c. 59), s. 8, and 1893 (56 & 57 Vict. c. 53), 8. 45— Interest in possession.

By a settlement made in 1875 on the marriage of the plaintiff, E. J. M., with H. R., certain securities belonging to the wife were transferred to trustees upon trust to invest and pay the income to the wife during the joint lives of herself and her husband for her separate use, without power of anticipation, and after her death, if the husband should survive, to pay the income to him during his life, and after the death of the survivor, upon the usual trusts for the children of the marriage, with an ultimate trust in default of children for the wife absolutely if she should survive her husband. There was no express disposition of the income of the trust funds during the remainder of the wife's life after her husband's death.

In the year 1883 H. R. consulted H. B., a solicitor in partnership with his brother, M. B., as to the security of the trust funds then in the hands of W. and J., the original trustees. It was arranged that W. should retire, and A. R. be appointed in his place, and, as his solicitor, H. B. obtained, in June 1884, an examination of the securities alleged by J. to represent the trust funds. H. B. came to the conclusion that they were forgeries. Under judicious pressure J. was induced from time to time to pay all the trust funds by instalments into a bank in the joint names of himself and A. R., the proposed new (a) Reported by J. R. BROOKE, Esq., Barrister-at-Law.

trustee, and from time to time to draw moneys out of this account for the purpose of investment upon mortgages found by H. B. In the months of February and March 1884 sums amounting to 92001. were so drawn out and invested by H. B., as he alleged, at the instigation and with the approval of H. R., Mrs. R., and A. R., upon mortgages of houses in course of erection by speculative builders.

In May 1884 A. R. and M. R. were appointed trustees of the settlement in place of W. and J. In 1885 H. R. died, leaving two children, and before the commencement of this action E. J. M. married again. This action was commenced on the 7th Nov. 1890 by E. J. M. and her two infant children, A. R. and M. R., against H. B. and M. B., to make them liable for the losses which had resulted from the investments on builders' mortgages. The issue of the writ was more than six years after the date of the last mortgage complained of, but less than six years after the death of H. R.

Held, on the evidence, that H. B. had made himself responsible as trustee for the investments, and not merely acted as agent for the trustees; that he had acted for the firm throughout, and therefore M. B. was liable as his partner; that Mrs. M. had not requested or instigated the improper investments within the meaning of the Trustee Act 1893, s. 45, and her interest could not be impounded.

Held also, that, if the settlement had given Mrs. M. an interest for life, the Statute of Limitations would have barred her action, but that, as the settlement only gave her an interest during the joint lives of herself and her husband, and her present interest was the life estate by way of resulting trust which came into her possession only on her husband's death, the statute did not begin to run against her until his death, and her action was not barred.

By a settlement, dated the 30th Aug. 1875, made on the marriage of the plaintiff, Ellen Jane Mara, then E. J. Walker, spinster, with her first husband, Harold Reeves, certain securities were transferred to James Walker and Bernard Edwin James upon trust either to permit the same to remain unaltered, or with the consent in writing of the plaintiff, Ellen Jane Mara, during her life, and after her decease at their discretion, to sell the same and lay out the proceeds of such sale in the names or under the legal control of the said trustees in any of the public stocks or funds or Government securities of the United Kingdom, or upon freehold, copyhold, leasehold, or chattel real securities in England, Wales, or Ireland, or India, or any colony or dependency of the United Kingdom, with power, with such consent or at such discretion as aforesaid to vary the said investments from time to time for others of a like nature; and to pay the income of the said securities and the investments representing the same to the plaintiff, Ellen Jane Mara, during the joint lives of herself and the said Harold Reeves for her separate use without power of anticipation, and after her death for the said H. Reeves for life if he survived her, and after the death of the survivor to hold the said trust funds and the income thereof in trust for the children or remoter issue of the said marriage as the plaintiff, E. J. Mara, should by deed or will appoint, and in

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default of such appointment in trust for all the children of the said intended marriage who should attain the age of twenty-one years, or being daughters marry under it. There was an ultimate trust for such persons as the said E. J. Mara should by will appoint, and in default of such appointment, and if she should survive the said Harold Reeves, for her absolutely.

The settlement contained no express trust of the income during the remainder of the life of the said E. J. Mara after the death of the said H. Reeves if she should survive him. The securities settled were the property of E. J. Mara.

From the time of the marriage the management of the trust funds was left wholly to James, who was a solicitor. In the latter part of 1883 Harold Reeves consulted the defendant Hugh Browne (a solicitor practising in Nottingham in partnership with his brother the defendant, Arthur Browne), as a friend about his wife's fortune, and the position of James, about whom some suspicions had arisen. H. Browne suggested that Walker should retire and a new trustee should be appointed in his place on whose behalf H. Browne could look into the securities.

A. R. Reeves, the brother of Harold Reeves, was asked to be the new trustee, and he wrote to H. Browne accepting conditionally on being informed what his responsibilities were. H. Browne answered, in what the judge described as a very business-like letter, giving him full information. A deed by which Walker retired and A. R. Reeves was appointed trustee was prepared; but, owing to the circumstances hereinafter stated. was never executed.

On the 11th June 1884, after great difficulty and much evasion on James' part, H. Browne and H. Reeves obtained an interview with him at his office, at which he produced some of the securities which he alleged represented the trust funds, others were not forthcoming, and H. Browne and H. Reeves came to the conclusion that, besides other objections, some at least of the securities were palpable forgeries. James declared himself willing to take over the securities or pay cash instead. H. Browne and H. Reeves got some money from James that day, and paid it into a Liverpool bank in the joint names of James and A. R. Reeves.

On the same day H. Browne and H. Reeves had a long discussion as to what was to be done. H. Browne in his evidence alleged that A. R. Reeves was also present, but he denied this, and the judge came to the conclusion that H. Browne was mistaken.

H. Browne's account of this interview was that H. Reeves insisted that the trust moneys should be invested at 5 per cent., and that it was agreed that securities must be found at once in order to put pressure on James by showing him securities ready for the investment of the moneys he was asked to pay; that H. Browne said the only 5 per cent. investments which could be found promptly were builders' mortgages, and it was agreed that he should find such mortgages as soon as possible.

Pressure was then brought to bear by H. Browne upon James, and he was induced from time to time to pay money into the said account until he had repaid the whole of the trust funds. Of these 92001. was paid in before the completion of the appointment of new trustees here

inafter mentioned, and this sum was invested by H. Browne upon eight mortgages, viz. : (1) 20th Feb. 1884, to H. J. Osborne 16007.; (2) 20th Feb. 1884, to W. T. Cordon 12007.; (3) 27th Feb. 1884, to H. J. Osborne 16001.; (4) 10th March 1884, to W. T. Cordon 15007.; (5) 14th March 1884, to J. Price and H. J. Price 1000l.; (6) 14th March 1884, to J. Price and H. J. Price 7501.; (7) 14th March 1884, to J. Price and H. J. Price 7501.; (8) 9th March 1884, to H. J. Osborne 8001.

All these mortgages were at 5 per cent. interest, and all upon pieces of land and unfinished houses. The mortgagees were in each case small builders with no substantial means. The written consent of Mrs. Reeves was obtained to the first two mortgages, but not to the others. Harold Reeves appeared to have known of the nature of the security in each case, but A. R. Reeves was not fully informed. Valuations were sent to him in some cases, but not in all, and when they were sent they were not made by independent valuers, but by persons acting for the mortgagors. The money advanced was in every case in excess of the twothirds value of the land and houses when finished.

The money for these mortgages was paid by cheques drawn in favour of H. Browne or his firm into the account of the firm, and was paid out by H. Browne to the different builders by instalments as the building of the houses proceeded. The accounts of these advances were kept in the books of the firm.

All these mortgages turned out insufficient. H. J. Osborne failed to complete the buildings on his land, comprised in the mortgages 1, 3, and 8, and the houses were ultimately completed at the further expense of the trust funds.

Early in May matters were finally settled with James, and on the 9th May 1894 A. R. Reeves and Marion Reeves (the sister of H. Reeves) were appointed trustees in the place of Walker and James.

The deed of appointment of new trustees set forth the eight securities above mentioned as part of the existing investments of the trust funds, and the balance then standing to the joint account at the bank was, on the completion of the appointment, transferred to the new trustees.

Other advances had been made to persons named Evans and Woodcock, Carver, Williams, and Bottomore, but these were not complained of in the action. After the completion of the appointment, an agreed sum of 1007. was paid to the firm of M. Browne and Sons for costs of and incidental to the appointment.

On the 17th April 1885 H. Reeves died, leaving two children. In 1890 his widow married W. P. Mara.

The writ in this action was issued on the 7th Nov. 1890 by Mrs. Mara, the infant children of her first marriage, and the two trustees A. R. Reeves and M. Reeves.

The defendants were Hugh Browne and Arthur Browne, and their father, Michael Browne, alleged to have been their partner. The action claimed a declaration that the defendants were jointly and severally liable to make good the loss occasioned to the trust estate by the investments above mentioned, and certain other investments made after the appointment of the trustees A. R. Reeves and M. Reeves, and consequential relief.

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It was afterwards proved that Michael Browne had ceased to be a partner with his sons at the time of the transactions complained of.

Cozens-Hardy, Q.C., Byrne, Q.C., and C. E. E. Jenkins for the plaintiffs.-Our claim in this case is against Hugh and Arthur Browne as constructive trustees. It was believed when the action was commenced that Matthew Browne, the father, was also a member of the firm when these transactions took place. But though the name of the firm was still M. Browne and Sons it is alleged that he had ceased to be a partner, and we do not press the case against him. The whole course of the transaction shows clearly that Hugh Browne was acting as a constructive trustee and not merely as a solicitor. He found the investments himself, and the money was paid to him in lump sums and doled out in instalments to the mortgagors; that shows that he was acting as a constructive trustee. Moreover, at the time the investments were made there were no trustees. The money was paid into a bank in the names of persons who were not trustees, and so far as Hugh Browne was instructed at all he was instructed by persons who were not trustees. That is enough to show he was acting as trustee, and not as a mere agent of trustees:

Blyth v. Fladgate, 63 L. T. Rep. 546; (1891) 1 Ch. 337.

The

All that Hugh Browne did was done as a member of the firm, and within his authority as a partner. The transactions appear in the firm's books, the costs were paid to the firm, most of the important letters were written in their name or addressed to them, and the money was often, if not always, paid to the firm's account. Arthur Browne is therefore liable for his partners' acus. defences raised are knowledge and acquiescence and the Statute of Limitations. None of these defences would in any case avail against the infant plaintiffs. And it is plain that, though Mrs. Mara knew in a general way that the investments were made, she was never informed as to details, much less told that any breaches of trust were being committed, or that the investment, were breaches of trust. Her formal consent which the settlement required, was only obtained in two instances, and then she was given no sufficient information or advice. Of the trustees Miss Reeves was told nothing, and A. R. Reeves was never fully informed of the facts. The Statute of Limitations does not apply to Mrs. Mara, for the interest in respect of which she is suing only came into possession on her first husband's death.

Swinfen Eady, Q.C. and Boome for A. Browne. —The action combines different plaintiffs whose claims are entirely distinct. The only possible claim of the trustees is for negligence. They paid the money knowing that it was to be invested on building securities. There is no suggestion that the money was not invested as they intended, and their only ground of complaint is that Messrs. Browne ought to have advised them that the investments were improper. That is a claim for negligence, and it is barred by statute. The beneficiaries set up a claim against the defendants as constructive trustees; but there is a difference between the position of Mrs. Mara and her children. Mrs. Mara's interest was in possession, and the latest investment complained of