Mr. Pepys, Mr. Treslove, and Mr. Pemberton, were for the appellants:

Mr. W. Brougham, for the Crown.

The judgment of The Lord Chancellor Iwas as follows:

It appears that Messrs. Bishopp and Brummell carried on the business of army agents in partnership till the death of Bishopp; and that it was afterwards carried on by Brummell alone, under the same firm, till the year 1794, when he died. A considerable sum of money, amounting in the whole to 22381., which was received by the house in the interval, between the years 1783 and 1794, on account of the subsistence and arrears of the officers, and other allowances, has remained in the hands of Messrs. Bishopp and Brummell, or of Mr. Brummell, without any demand having been made of any part of it, either by the officers, on account of whose pay and other claims it was received, or by any of their representatives. Under these circumstances, it is contended, by the plaintiffs, that the Crown is not entitled to claim the repayment of this money out of the estate of Mr. Brummell; but that the money is due to the individual officers on whose account it was received, or to their personal representatives, and that they alone can demand it.

It appears that the agents are appointed by the colonels of the respective regiments, by power of attorney ;-the substance of the instrument is set out in the Master's report when so appointed, the agent is adopted by the Crown; the public money is paid into his hands for defraying the expenses of the regiment, and he accounts for the sums so received to the government. It is impossible to read the evidence and the provisions of the act 23 Geo. 3. c. 50, and to resist the conclusion, that, whatever he may be in relation to the colonel, he acts in this business as the agent also of the Crown. In this character, Messrs. Bishopp and Brummell, or Mr. Brummell, received the money in question; it was advanced to defray certain expenses; it has not been so applied, and, after so long an interval, there is no prospect that it will ever be required for the objects for which it was originally issued; the purpose of the advance having thus

failed, there seems to be no reason nor justice in the claim set up, on the part of the plaintiffs, to retain this money.

Some argument was built upon the manner in which the accounts of Messrs. Bishopp and Brummell were kept; but it does not appear to me, that the accounts made any change in their situation with respect to these sums; the money advanced by the Crown was carried in the accounts to the credit of the respective officers, and they were debited with the payments which they received, it does not appear that there was any private arrangement between the parties; when the money was received by the agent, it was received for the purpose of being paid to the officers in discharge of their claims, and the entry in the books amounts only to an admission of that which, without such entry, would not have been open to dispute. While the money remained in the hands of the agent, he would be liable to the claims of the officers, or their representatives; but such liability will, I think, under the circumstances of the case, terminate when the money is repaid to the Crown. It appears to me, therefore, that there is no ground for sustaining this appeal; and the petition must therefore be

The judgment of the Lord Chancellor was as follows:

This was an appeal from three orders pronounced by the late Vice Chancellor. The principal point insisted upon, on the part of the defendants, related to the deed executed by Wilkinson, containing the declaration of trust, and which, being executed after he had committed an act of bankruptcy, was contended to be inoperative and void. The case upon this point was fully argued before the Vice Chancellor, and I see no reason to differ from the opinion expressed upon it by that learned Judge. Assuming the bankrupt to have been a trustee for Mr. Rowe, there was nothing, I think, to prevent him from making a valid declaration of trust, notwithstanding his bankruptcy.

It is true, that the property of a trader cannot be assigned by him after his bankruptcy: the property is no longer his; it is vested in his assignees. But property held in trust, is not the property of the bankrupt; it does not pass to his assignees. The only question therefore, as it appears to me, in this case is, whether the declaration contained in the deed, was founded upon a previous trust, or was altogether fraudulent.

That question, however, has been decided in substance by the jury upon the trial of the issue; for they have found that the name of Wilkinson was used in the original deed, as a trustee for Rowe.

It was further contended, that the order directing the issue ought not to have been made; and from that order the defendants have also appealed. The issue was directed in March 1822, for a trial at the summer assizes. The trial was delayed until the following spring; and, upon the verdict being found for the plaintiff Rowe, an application was made for a new trial; and it was not till after that application had failed, and a subsequent delay of two years, that the defendants appealed against the order directing the issue. They take the chance of a verdict in their favour, try the effect of a motion for a new trial, and, failing in both, they then, for the first time, object to the original order. I think, however, under the circumstances of this case, there is no ground of objection to the order directing the issue; and with respect to the motion for the new trial,

In a marriage settlement, reciting that the father of the wife had agreed to make a further provision for his daughter equal to his younger child or children, he covenanted to give or secure to the trusts of the settlement, as large a share of his property as he should give to any of his other younger children, to take effect on the death of the survivor of himself and his then wife; and that, if he died intestate, or omitted to make the provision before covenanted for, there should be paid to the trustees of the settlement as great a share of his property, as any younger child should in that event become entitled to :-Held, that the decree of the Vice Chancellor, declaring that those interested under the settlement were entitled to a further provision, equal only to that which any younger child took upon the death of the covenantor, and without reference to advancements made by the covenantor during his life, was erroneous; and

That the parties interested under the settlement were entitled, on the settlor's death, to a share of his property equal to what any of his younger children either received during his life, after the date of the settlement, by way of advancement, or took upon his death.

In the second volume of the Law Journal, Chanc. 181, will be found a statement of the facts of the case, and what passed on the ori ginal hearing and the rehearing of the cause before the Vice Chancellor.

The decree of the Vice Chancellor pronounced upon the rehearing, declared, that

the decree should be varied by omitting such part thereof as declared that the testator was bound by the covenant in the settlement bearing date the 1st day of June 1803, to make provision for his daughter Margaret, her husband, and the issue of the marriage, including the sum of 1400l. advanced at the time of the marriage, equal to the share of any younger child either in his real or personal estate, by provision or gift in his lifetime, or by his will, to take effect upon his death; and whereby it was ordered that it should be referred to the Master to inquire what provision or gifts were made by the testator in his lifetime, or by his will, in favour of his younger children out of his real and personal estate; and it was declared, that the said testator was only bound by such covenant to give or provide for his said daughter, her husband, and the issue of their marriage, as full and great a part and share of his estate, effects and property, as his other younger children would become entitled to, in the event of his death, whether to take effect in possession at his own death or at the death of his wife, in the said settlement named, if she should happen to survive him.

From this decree the plaintiff appealed.

Mr. Heald and Mr. Preston were for the plaintiffs:

Mr. Horne appeared in support of the decree.

The argument for the respondent was founded on the reasons stated in the judgment of the Vice Chancellor.

The argument for the appellants was adopted by the Lord Chancellor, and coincides with the views stated in his judgment.

The judgment of the Lord Chancellor was as follows:

The Lord Chancellor.-This case turns on a question relating to the construction of a covenant in a marriage settlement. It is not necessary to state the facts in detail. Upon the marriage of a person of the name of Formby with Miss Black, the daughter of Patrick Black, 1400l. was settled upon the husband and wife, and upon the issue of the marriage; and in that settlement was

contained a covenant upon which the present question arises. The covenant is in these words-" And, for the considerations aforesaid, the said Patrick Black doth hereby for himself, his heirs, executors, administrators and assigns, covenant, promise, and agree, to and with the said William Black and Richard Willis (who were the trustees), their executors and administrators, in manner following, that is to say, that he the said Patrick Black, by his last will and testament, or otherwise, shall and will give, devise, bequeath, or otherwise settle and secure, to or in favour of the said Richard Formby and the said Margaret his intended wife, and to and for the issue of the said intended marriage, upon the trusts, nevertheless, aforesaid, as full and great a part and share of his estates, effects and property, as he shall by his said will or otherwise, give or provide, to or for the use of any of his other younger child or children, to take effect on the death of the survivor of himself and his present wife; and also that in case the said Patrick Black shall happen to die intestate, or omit to make such provision or bequest to the use or in favour of the said Richard Formby and the said Margaret his intended wife, and to and for the issue of the said intended marriage, the heirs, executors or administrators of the said Patrick Black, shall and will pay or cause to be paid to the said William Black and Richard Willis, or the survivor of them, his executors or administrators, as full and great a part and share of the estates, effects and property of the said Patrick Black, as or to which his younger child or children shall in that event become entitled."

Now this covenant divides itself into two parts, and, in the course of the argument, it was so divided and so considered; and it was so divided and so considered by the Vice Chancellor, when he gave his judgment, I believe, on both occasions. The question first is, as to the meaning of the former part of the covenant. In substance it is this, that the father, for the considerations aforesaid, stipulates that he shall give to the parties to the marriage and to their issue, by his last will or otherwise, as large a proportion of his property as he shall by his last will or otherwise give to his younger children, to take effect on the death of the

survivor of himself and his present wife; and the first question is, as to the true construction of the words "to take effect after the death of himself and his present wife."

In reading this part of the covenant, I have come to the conclusion, that those words relate entirely to the first part of this covenant, and that, in point of fact, the true construction this; that I, the settlor, will give to the parties to the marriage and to their issue, so much of my property, (and that gift to take effect at the death of the survivor of myself and wife,) as I shall give any younger child by will or otherwise;that appears to be the true construction of the first part of the covenant. It was contended in the argument that those words "to take effect at the death of the survivor of himself and his present wife," applied to both parts of the covenant. In that case it would be read thus, "I will give to the parties to the marriage and to their issue, by will or otherwise, as great a part of my property-that gift to take effect on the death of the survivor of myself and my present wife,-as I shall by will, or otherwise, give to any of my younger children by will, or otherwise, to take effect upon the death of the survivor of myself and my present wife."

I think the latter interpretation, which was adopted by the Court below, is not a construction that is reconcileable with the obvious purposes of this deed and with the language itself of that covenant. I think, therefore, that those words relate in point of construction to the time when the gift is to take effect to the parties to the marriage and to their issue; and, it appears to me, that that part of the covenant is free from all reasonable doubt.

Upon the supposition that this part of the covenant was ambiguous, the latter part of the covenant was called in for the purpose of putting a construction on it; and I direct my attention to the latter part of the covenant to see, whether, assuming the former part to be ambiguous, the construction which was put on the latter part of the covenant with a view of removing the ambiguity, is the correct construction. "And also," these are the words, "that in case he, the said Patrick Black, shall happen to die intestate, or omit to make such provision or bequest to the use or in favour of the said Richard Formby and the said Margaret his

intended wife, and to and for the issue of the said intended marriage, the heirs, executors or administrators of the said Patrick Black shall and will pay, or cause to be paid, to the said William Black and Richard Willis, or the survivor of them, his executors or administrators, as full and great a part and share of the estate, effects and property of the said Patrick Black, as or to which his younger child or children shall in that event become entitled."

Now, what is the meaning of the words "shall in that event become entitled"? The stipulation is this, that, in case Patrick Black shall die intestate or shall omit to make that disposition of his property which he has stipulated he should make, then the parties are to have a claim upon his representatives, for "as full and great a part and share of the estates, effects and property of the said Patrick Black, as or to which his younger child or children shall in that event become entitled."

Now, "in that event" has been supposed to mean upon his death; I apprehend that is not the true meaning. I apprehend the true meaning to be this-in the event of his dying intestate, or omitting to make that disposition of his property; "in that event" is not to be confined simply to the circumstance of his death, it is not meant to be equivalent to the words "on his death," but in the event of his dying intestate, or in the event of his not making a will in conformity to what he had stipulated-That event of his so dying, and that omission under such circumstances, were to give a claim upon his estate to the extent specified; and, in that view, it is perfectly reconcileable with the former part. The only difficulty is as to the words "to which he shall be entitled." Now, I apprehend, for the purpose of ascertaining what a younger child would be entitled to in case of intestacy, the law would have taken into consideration what the parties had previously received; and, I think, in the framing of the covenant, it was the intention to consider what the parties had previously received in addition to what they would under the will become entitled to.

Under these circumstances I concur, not with the second, but the first decree, of the Master of the Rolls: but the first decree ought in one point to be varied; for the

arrangement or the consideration of property is to be prospective from the period of the settlement, and is not to include any disposition of property anterior to that period. That this must be so, is quite clear from the language of the settlement itself, all of which is every where future.

The only remaining consideration is as to the 14001.--whether that sum is to be brought into the account. It was argued by Mr. Preston, that the 1400l. was not to be brought into the account; but Mr. Heald, who was on the same side, rejected that interpretation, and with great generosity gave up the 1400l. I must say that I agree with Mr. Heald, and that Mr. Preston has not sufficiently satisfied me that the 14007. ought not to be taken into the account. comes within the spirit of the covenant, and is not to be put out of the account.

It

I ought to mention, with respect to the words "to take effect on the death of the survivor of himself and his present wife," that there appears to have been so much difficulty in bending them to the interpretation put upon the covenant in the second decree, that those words in that decree have been entirely altered. The words substituted are," upon his death or the death of his wife," and not 66 upon the death of the survivor of himself and his present wife." It was found, that the words in the covenant must be altered, in order to support the decree that has been pronounced.

It is not the rule of equity that every person to whom the artificial name of trustee applies, is incapable of dealing with his cestui que trust, respecting the fund; but the rule is, that the trustee shall not deal with the cestui que trust, where the relation between them gives the former any possible advantage over the latter.

A deed of compromise with respect to doubtful rights will not be set aside, because the bargain was such as would have seemed disadvantageous to one of the parties, if she had been certain as to the full extent of her legal right.

Costs will be given against a party, who

endeavours unsuccessfully to impeach a compromise, after a contingeney has happened, which renders the compromise less for his benefit.

The grounds on which the Vice Chancellor dismissed this bill with costs, were reported in 2 Law Journ. Chanc. p. 132.

The plaintiff appealed from the decree of the Vice Chancellor.

The points raised on the argument of the appeal, were the same as those which were discussed on the original hearing.

The judgment of the Lord Chancellor was as follows:

Lord Lyndhurst.-The case of Naylor and Wynch was an appeal from the decree of his Honour the Vice Chancellor, the present Master of the Rolls. It arises out of the will of a person of the name of John Wynch, who made his will in the East Indies, as far back as the year 1796. By that will he gave and bequeathed to the plaintiff, the wife of Ridgway Mealey, an annuity of 600l. sterling to commence six months after his death, for her life, and the issue from her body lawfully begotten, in failure of which to revert to his heirs. The testator also requested that Nathaniel Kindersley and Thomas Cockburn would act as trustees for her, securing the said annuity for her sole use, and paying it to her quarterly or half yearly, as they might think proper. He gave the residue, subject to some other legacies, to his two brothers, George Wynch and James Wynch, whom he appointed his sole heirs and executors.

The testator died soon after the date of this will. In 1798, an agreement was entered into between the legatee, at that time Mrs. Mealey, and the executors; and, by that agreement, it was stipulated, that 20,000 star pagodas should be delivered to two gentlemen, of the name of De Fries; and that out of these 20,000 star pagodas, 600l. a year should be paid to the trustees of the annuity under this will. The trustees consented to accept the trusts only for the life of Mrs. Mealey. It was further stipulated, that, upon her death, the money should be repaid to the executors, that they might have the means, after her death, of