fails equally, whether tried by French law or by New York law, which, for the purpose of this suit, there being no evidence of what the New York law really is, I must take to be English law. I must, therefore, pronounce against the claim of the plaintiffs, and, of course, with costs.

CROWN CASES RESERVED.

COURT

OF CRIMINAL APPEAL.

MICHAELMAS TERM.

CHANNELL, B., and SHEE, J.]

REG. v. JAMES ROBERTSON.-Nov. 12.

Menaces, demanding money with-24 & 25 Vict. c. 96,

8. 45.

The prisoner was indicted and convicted, under the 24 & 25 Vict. c. 96, s. 45, for demanding money with menaces, with intent to steal the same. It was proved that the prosecutor, having spoken to a female in the street at night, the prisoner, a policeman, came up, and told him he had been talking to a prostitute, and that he must go with him to Bridewell, and that he, the prosecutor, was under a penalty of one pound, and costs, for talk ing to a prostitute in the streets; but that if he would give him five shillings, he might go about his business, The prosecutor thereupon gave him four shillings and sixpence:-Held, that the conviction was right. Case." At the court of quarter sessions of the peace holden in and for the borough of Liverpool, on the 18th July, 1864, the prisoner James Robertson was indicted under the 45th section of the 24 & 25 Vict. c. 96. The indictment charged, that the said James Robertson, with menaces, did feloniously demand of one Joseph Speck certain money, to wit, the sum of five shillings, of him, the said Joseph Speck, with intent the said money from the said Joseph Speck feloniously to steal. It was proved at the trial before me, that at the time of the committing of the offence the prisoner was a policeman in the police force of the borough of Liverpool, and was on duty in the said borough, and was wearing the uniform and armlet. The evidence of the prosecutor Joseph Speck was as follows:-'I am a groom in the service of Dr. Vose. I had been spending Saturday evening with a friend, and at a quarter to one o'clock on Sunday morning, 19th June, was going home along Hopestreet alone. A female came up to me, and asked me the way to Oxford-street. I directed her, and talked to her for two or three seconds. I took no liberty with her, and she left me, and passed on. The prisoner came round the corner, and shook hands with me before he spoke. I mistook him for another officer, whom I knew. I said it was getting very late, and I wanted to go, and turned to leave him;' when he said, You have been talking to a prostitute.' I said, 'I do not know who she is, or what she is.' He said, You must go with me to Hotham-street Bridewell.' I said, 'I had the care of three horses, and if he would go with me to my master's, and leave the keys, I would go anywhere with him.' He said, 'I was under a penalty of one pound and costs for talking to a prostitute in the streets, and that if I would give him five shillings I might go about my business. He pulled out a book to take my name. He asked my name, and said he would write it down. He did not write it down. He took the book out before he mentioned the five shillings. I pulled out a halfcrown and a two-shilling piece, and he placed it in his right-hand pocket. I then saw a man coming, and I went across the street and prisoner followed. The man was drunk. The prisoner asked him where was

perintendent. Sibbald and I found him at Steel-street Bridewell, and when there the prisoner was brought in. Sibbald told him that he was in charge for extorting four shillings and sixpence. He said, 'If I have the money it is about me. Sibbald said, 'You will have to be searched.' He put his hands in each trousers pocket and pulled out two half pennies, a two-shilling piece, and key. I gave him the money, because he put it as a charge. I expected he was going to take me to Bridewell. Upon cross-examination of the prisoner's counsel, the prosecutor said, 'I believed I could have been fined one pound for speaking to a woman, and was quite sober. I only answered the girl's questions; he did not charge me with more. I did not throw down the money, and tell him to take it. I did not say you must have it, and shall have it. I did not refuse to give my name and address.' It was further proved by the evidence of an inspector of the Liverpool borough police force, that a complaint was made to him of the conduct of the prisoner by the witness Joseph Speck, at the place where, and immediately after the time, the said offence was alleged to have been committed, and that a two-shilling piece and a half-crown were found upon the prisoner; and that at the time the half-crown was found upon him, and before it was so found, the prisoner denied having any such coin or money in his possession. It was submitted by the counsel for the prisoner, that the case proved was not within the statute and indictment, because the money was obtained, and the offence completed. That this was not a menace, within the meaning of the statute, because the money was obtained by a threat to accuse of a non-existing offence. I overruled these objections, and the jury convicted the prisoner. I postponed passing sentence, and remanded the prisoner back to the Liverpool borough gaol, and reserved the above points for the decision and opinion of the Court of Criminal Appeal.

"LEOERIC TEMPLE, Assistant Barrister."

Littler, for the prisoner. The question is, was there a menace, within the meaning of the 24 & 25 Vict. c. 96, s. 45? The judgment in the case of Rex v. Wood (2 Leach's C. C. 721) is in point. Again: the menace must be such as would act on a reasonable mind. (Rex v. Southerton, 6 East, 126; Reg. v. Walton, 9 Jur., N. S., 259). Lastly, if anything, the offence was an actual stealing. [Channell, B.-Reg. v. Norton (8 Car. & P. 671) is a decision on that point.]

Peel, for the prosecution, was not called on.

POLLOCK, C. B.-We are all of opinion that the conviction is right. Two points have been takenFirst, that the case was not within the statute, because the offence was complete; that is not so, for only part of the money was obtained: this, however, is unimportant, after the case cited by my Brother Channell. condly, that this is not a menace within the act; there is no ground for such a contention; the policeman states he has authority, and professes to act under it; this is a menace: no doubt, an action would lie, but that is no redress.-Conviction affirmed.

Se

Daniel, Q. C., and Sargood appeared for the bankrupt, and contended that the order was bad. It was founded on the ex parte application of the petitioning creditors, without hearing the bankrupt, and without informing him of the nature of the charges made against him. The bankrupt, if an opportunity had been afforded him, might have cleared himself of the charges brought against him. The order was also defective in not stating which, of the offences set forth in the 221st section the bankrupt was charged with. Bacon, Q. C., and De Gex, contra, were not called

upon.

LORD CHANCELLOR.-I cannot interfere with the order of the commissioner. It is, no doubt, an important subject; but the whole proceeding must be dealt with in the spirit that distinguishes criminal justice. I am pressed to withhold the granting of any such order as this, unless the bankrupt has been previously submitted to examination. I should be extremely sorry to introduce any such principle.

The Bankrupt Act has defined these offences, or rather the cognisance of them by the commissioner, into two classes-first, those which appear upon the bankrupt's application for his order of discharge; and then, and then only, as Mr. Sargood has correctly observed, is the Court made capable of directing a prosecution. But the Bankrupt Act has also introduced the enactment contained in the 221st section, which defines the acts and conduct that shall be considered as misdemeanours triable in the ordinary courts of justice. There may be reason to believe they have been committed, and they may have been committed, either before or immediately after adjudication. It may be necessary to take proceedings before the appointment of the ordinary representative of the estate in bankruptcy, namely, the creditors' assignee. It may be very material for the Court to determine who is the proper person to have the charge of any such prosecution. If the Court has reason to believe that there is probable ground for holding or considering that the bankrupt has committed any of these misdemeanours, it becomes the immediate duty of the Court, under the 223rd section, to commit to some person the duty of prosecuting the bankrupt. Now, I am told, and very justly told, that in very many cases it is the fact, that if the bankrupt was offered the opportunity of examination, he might give such an explanation as might remove and take away those probable grounds of holding him guilty, upon which the commissioner might be disposed to direct a prosecution. That is perfectly true; but I must give the commissioner credit for dealing with the case that may be brought before him with an amount of discretion, and when he sees it is a case in which it may be reasonable to direct an inquiry, or to afford to the bankrupt an opportunity of explanation, I must give the judge that credit, and suppose that a duty so obvious would not fail to be discharged by him; but I cannot for one moment recognise, that it is the duty of the judge to submit the bankrupt to any previous examination. If so, the proceeding would be more similar to proceedings in criminal matters in a neighbouring country than any one of us would desire. It has been said, that the bankrupt will not have the same opportunity as he would have had before an ordinary police magistrate. I must assume that the commissioner would not always, as a positive rule, shut the door to any explanation the bankrupt might be willing to give. If the commissioner is called upon to exercise the power given to him by the 222nd section, in the manner in which a justice of the peace is authorised to act, he would, no doubt, exercise it in a similar way.

But in all these matters it must be left to the dis

cretion, the good sense, and the just and calm judg

ment of the commissioner, either to afford an opportunity of explanation, or to direct an inquiry, if the bankrupt is willing to submit to have inquiry, or to abstain from doing so, according as, under the circumstances of the case, he may think it most likely to contribute to the interests of justice. But it would be a very sad thing if the power of indicting a bankrupt for a misdemeanour, which may demand the immediate interposition of justice, were delayed by giving to the bankrupt the right to demand an investigation; or if, on the other hand, the bankrupt were placed in the painful predicament in which a man about to be brought before a court of criminal justice necessarily would be placed, if he were brought up and put under the necessity of answering questions which might criminate him, or disclose a state of circumstances in which he would lie under great prejudice if he refused to answer. With regard to the fact of the prosecution being, in this sense, and in this sense only, directed by the Court, that the Court commits to a particular individual the right and duty of prosecution; and with reference to the remark that the circumstances of a prosecution being directed must indubitably prejudice the minds of a jury, I again depend upon, what I most certainly may depend upon, the direction of the judge who may preside at the criminal trial, that it is the duty of the jury not to allow that circumstance to prejudice their minds. I think the state of the law which makes it the duty of the Court to commit to a responsible person the right and duty of acting as prosecutor, and which also forbids the Court to make a preliminary examination, is most consistent with the principles of English justice; and I think I should be acting inconsistently with those principles if I were to depart from that state of the law. I was at first struck with the language of the order, which states that there is reason for supposing the bankrupt to have been guilty of some one or more of the offences set forth in the 221st section of the act of 1861;" but, upon consideration, it is plain that is the best form of language that can be adopted; for if the offences were specified, then the form of the order might involve the bankrupt in considerable prejudice, and place him in a position in which he might not be able to protect himself. I must dismiss this application. The costs will come out of the deposit as far as it will go.

66

ROLFE v. GREGORY.-Dec. 6, 1864, and Jan. 18, 1865. Breach of trust-Liability of "third" person pary to— 3 & 4 Will. 4, c. 27, s. 40-Statute of Limitations

Laches.

In 1842, B. lent to the defendant G. 6001. upon a promissory note. By will made in the same year, B. bequeathed the sum of 6001., which he described as being in the hands of G., to his son-in-law R., upon trust to invest the same, and pay the dividends and interest to his daughter, the wife of R., for life, free from the debts and control of her husband; and after her death, upon trust for R. for life; and after the death of the survivor, un trust for their children. On the death of the stator R. became indebted to G., and in order discharge part of the debt, in the year 1842 delivered to G. the promissory note for GOD.-Held, that as G. had information of the manner of the bequest, he was a party to the fraudulent abstraction of the trust property, and liable to refund the amount. The relief in such a case is founded on fraud and not on constructive trust, and being so founded, it is governed by the principle that the right of the party defrauded is not affected by lapse of time.

This was an appeal from a decision of Sir R. T. Kindersley, V. C., in a suit instituted by the plaintiff

Sarah Rolfe, against the defendant Gregory and her husband Francis Rolfe, seeking to charge the former with a sum of 6007, the amount of a promissory note and interest given by him to the testator William Borer, and which had been specifically bequeathed by the testator to the defendant Francis Rolfe, upon certain trusts for the benefit of the plaintiff and her family. The promissory note had been handed by Rolfe in the year 1842, to Gregory, in part discharge of a private debt due from the former to the latter. There was evidence to shew that the defendant was aware of the specific bequest of the note. The ViceChancellor was of opinion that Gregory was constructively a trustee for the parties defrauded, but that the claim was barred by lapse of time. The plaintiff now appealed from the order of the Vice-Chancellor. The facts fully appear in the following judgment. Glas, Q. C., Welford, and Crouch appeared for the plaintiff, the appellant.

Bily, Q.C., and Jessel appeared for the respondents. Glaese, in reply.

Authorities referred to:-3 & 4 Will. 4, c. 27, s. 40; Lewin on Trusts, 571; and Phillipps v. Munnings (2 My.& C. 309).

LORD CHANCELLOR.-In the month of February, 1842, the testator, William Borer, lent to the defendant Gregory the sum of 6007, for which Gregory gave Borer a promissory note, dated the 23rd February, 1842, and payable with interest at 51. per cent.

By his will, dated in March, 1842, Borer made a specific bequest of this sum of 6001. (described as the sum of 6001. in the hands of Mr. Gregory, at interest) anto the testator's son-in-law, the defendant Francis Rolfe, and one William Baker, upon trust to invest and pay the dividends or interest unto the testator's daughter, the plaintiff Sarah Rolfe, during her life, but not to be subject to the debts or control of her husband, Francis, or any future husband; and after the death of Sarah, upon trust for Francis during his life: and after the death of the survivor, upon trust for all the children of his daughter who shall then be living, in equal shares.

The testator died shortly after the date of his will, and he appointed Francis Rolfe and William Baker executors, of whom Rolfe alone proved the will, and assented to the bequest.

!

There were dealings and transactions of a private nature between the trustee Rolfe and the defendant Gregory, on which the former became indebted to the latter; and it appears, that on the 18th April, 1842, the trustee, Francis Rolfe, in order to discharge part of this debt, delivered over to the defendant Gregory a promissary note for 6007., and an account was stated, in which Gregory gave Rolfe credit for the principal and interest due on the note, and he now insists that the debt thereby became extinguished.

terested, and that his liability in this court was to be considered as resulting merely from constructive trust that is, from a trust raised by operation or construction of law. It was, therefore, insisted that the remedy of the adult plaintiff Mrs. Rolfe was lost by lapse of time, inasmuch as the suit was not instituted until more than twenty years had elapsed since the transaction complained of. This view of the case appears to have been adopted by the Vice-Chancellor, and accounts for the form of his decree. But it involves a misapprehension of the true principles on which the action of this Court is founded. The relief is founded on fraud, and not on constructive trust. When it is said that the person who fraudulently receives or possesses himself of trust property is converted by this Court into a trustee, the expression is used for the purpose of describing the nature and extent of the remedy against him; and it denotes that the parties entitled beneficially have the same rights and remedies against him as they would be entitled to against an express trustee who had fraudulently committed a breach of trust.

As the remedy is given on the ground of fraud, it is governed by this important principle, that the right of the party defrauded is not affected by lapse of time, or, generally speaking, by anything done, or omitted to be done, so long as he remains, without any fault of his own, in ignorance of the fraud that has been committed. In the present case the transaction between the defendants Rolfe and Gregory did not become known to the plaintiffs until some time in the year 1858.

There is no pretence, therefore, for treating the case of the plaintiffs as a stale demand. On the ground, then, of the fraud committed by the trustee Rolfe, to which Gregory was a party, and by virtue of which he received and now holds the trust property, I decree that he restore that property to the parties beneficially entitled, by payment of the sum due on the promissory note, viz. 6001; but inasmuch as the plaintiff Mrs. Rolfe, who is entitled to the interest on the note, has been maintained by her husband, who was the debtor of Gregory, and as her counsel did not press for interest froin an earlier period, I shall only direct payment of interest from the time of the institution of

the suit. The decree of the Vice-Chancellor must be

reversed.

Note for reference-Lewin on Trusts, 729, 3rd ed.

COURT OF APPEAL IN CHANCERY.

SHAW v. BUNNY.-Nov. 7, 1864. and Jan. 19, 1865. Purchase by second mortgagee—Redemption.

dence in the cause, I am satisfied that Gregory had information of the manner in which this debt had beer bequeathed by the testator. The transaction, | therefore, between these two defendants was a frauduent

fraudulent

gory

receipt and appropriation of it by Grefor his own personal benefit. This wrongful receipt and conversion of trust property place the receiver in the same situation as the trusice from whom he received it; and by the principles of this Court he became subject, in a court of

equity, to the same

rights and remedies as may be enforced by the partics beneficially entitled against

the fraudulent trustee himself.

their power of sale under their mortgage deed, sold the property to Messrs. E. Bunny & Slocock, the second mortgagees, for 11007., there being then 13507. due on the security, and conveyed the property to Edward Bunny on the 28th December, 1855. Shaw, some time afterwards, filed his bill, as the owner of the equity of redemption, against E. Bunny & Slocock, claiming the benefit of the purchase, and offering to redeem them. Many other matters and questions were involved in the suit, but as the only question left to be decided on appeal was as to Shaw's right to redeem Messrs. E. Bunny & Slocock, the other matters and questions are not referred to.

The Master of the Rolls, in delivering judgment on this point, said "I am of opinion, that when the defendant bought of Mr. Hallett he got the absolute interest in the four houses, and the plaintiff, if he redeems, will not be entitled to redeem them. I cannot say that he is entitled to the benefit of the 11007., which the defendant paid for them. I was a little startled by the proposition, as Mr. Baggallay put it, and I wished to look at the case of Baldwyn v. Banister; but, in my opinion, it does not bear out any such proposition at all. There is no sort of reason why the second mortgagee is to be treated in a different way to a total stranger, and why he should not be at liberty to buy from the first mortgagee as a third mortgagee might have done, I am at a loss to understand. I am of opinion, therefore, that with respect to the four houses, and all that was included in the sale from Mr. Hallett, the defendant has got an indefeasible title, so far as the plaintiff is concerned, and therefore the ordinary decree for redemption does not extend to the houses which the defendant bought. In order to make the thing quite clear, so that there may be no question about it, the defendants may take a declaration, that they are entitled as absolute owners." The decree gave the plaintiff a right to redeem other property mortgaged to the defendants. The plaintiff appealed.

Baggallay and Morris, for the plaintiff, contended, that if a second mortgagee purchased from the first mortgagee, the mortgagor could always have the benefit of the purchase, and cited Baldwyn v. Banister (3 P. Wms. 251, note).

Selwyn and E. F. Smith, for the defendants, referred to Darcey v. Hall (1 Vern. 48); Morret v. Paske (2 Atk. 52); Dobson v. Land (8 Hare, 216; 14 Jur. 288); and Davis v. Barrett (14 Beav. 542). Baggallay, in reply, distinguished this case from

those cited.

THEIR LORDSHIPS reserved judgment. Sir J. L. KNIGHT BRUCE, L. J.-The only point in this case not settled by arrangement between the parties, as I understand, is the question of the correctness or incorrectness of the declaration which the decree at its outset contains. Is the declaration thus made well or ill founded? Its correctness or incorrectness turns, I apprehend, merely upon the point whether, when a landed estate has been twice mortgaged by the owner, so that there are several and distinct mortgages not connected with each other-the one first, and the other second-and the first mortgagee having a power of sale duly exercises it, the second mortgagee becoming the purchaser, such a state of things prevents him from acquiring, by means of that purchase, the same absolute and irredeemable title against the mortgagor which a stranger who became the petitioner would have acquired. The Master of the Rolls has held, that it does not, and that the second mortgagee has made his purchase, and, in the absence of special circumstances, has acquired the same absolute and irredeemable title as a stranger purchasing would have; and there being, I think, not any special cir

11

cumstances in the present instance to prejudice or affect the purchaser's right, his title against the mortgagor to the benefit of the purchase seems to me also as absolute as that of a mere stranger purchasing would have been.

I consider, I repeat, in accordance with the view of the Master of the Rolls, that there was nothing to preclude the second mortgagee from buying in the circumstances in which he bought, and retaining his purchase. If, indeed, he had availed himself of his position as a mortgagee to procure some facility or advantage relating to the purchase, or connected with it, that might have made a difference; but I see no such case. It appears to me immaterial, that the purchaser would not have been informed of the intended sale if he had not been a mortgagee. I cannot find any reason for disturbing the declaration made at the outset of the decree.

Sir G. J. TURNER, L. J., after stating the circumstances, said-The principal question in this case is, whether the defendant Edward Brice Bunny is entitled, by virtue of this purchase, to hold the four houses as the absolute owner thereof, freed and discharged from any right on the part of the plaintiff to redeem them. The Master of the Rolls has been of opinion, that the defendant Edward Brice Bunny is so entitled, and accordingly so declared by his decree, which, in all other respects, is the usual redemption decree. The plaintiff has appealed from the whole of the decree. As to the principal question, the case is by no means free from difficulty, and my opinion upon it has fluctuated much. In the ordinary case of a subsequent mortgagee buying in a prior mortgage for less than the amount which is due upon it, he is entitled, as against the mortgagor, to hold the prior mortgage for its full amount. This Court does not hold him to be a trustee for the mortgagor of the benefit of the purchase which he has made; but these cases involve no change of character in the mortgagee who has made the purchase. He still remains in the position of mortgagee only; and the sole question is, upon what terms the right of redemption, which does not exist at law, ought in equity to be given to the mortgagor? It is not so in the case of a subsequent mortgagee purchasing from a prior mortgagee under a power of sale, and claiming to hold the purchase as his own absolute property discharged from any right of redemption. In such a case, the claim involves an entire change of character in the person who has made the purchase. His claim is to be wholly discharged from his character of mortgagee, from the contract into which he must have entered to convey to the mortgagor, on payment of the money secured by the mortgage, and from the trust for such reconveyance which would attach upon him upon such payment being made. I cannot, therefore, but feel very anxious doubt, whether the case of a purchase from a prior mortgagee under a power of sale, and the simple case of a subsequent mortgagee buying in s prior mortgage for less than is due upon it, ought to be considered as standing upon the same footing and certainly, if authority could have been found t support the distinction between these cases, I should not have hesitated to follow it, for I much doub the right of a mortgagee to denude himself of tha character, and of the obligation which he has under taken, and of the trusts which would attach upon hir to reconvey, upon payment of the money secured him by his mortgage. The cause of Baldwyn v. Baniste above referred to, was cited in support of the disting tion between these two classes of cases; but on exa mining that case in the registrar's book, I do not thin that it bears out the distinction. The case of Baldwy v. Banister was this:-Two infants had become