THIS was a creditors' suit, in which the plaintiff had died.

Lewin now stated this to the court, and moved, on behalf of the executrix of the plaintiff, that the suit might be revived against the defendants.

Sir R. T. KINDERSLEY, V. C., made the order; but, after consulting with the registrar, said there was no occasion to mention these matters to the court; they might be obtained by handing the brief to the registrar, as usual in motions of course.

In this case a claim had been filed on the 15th July last for a foreclosure, and now came on for hearing.

Drewry, for the plaintiffs, asked for a sale, under the 48th section of the Chancery Practice Act, 15 & 16 Vict. c. 86.

Shebbeare, for some of the defendants.

The following order was made:-"Take an account of the principal and interest due, and tax the costs of all parties, except the mortgagor; and one month after the judge's clerk shall have made his certificate of the amount, if the principal, interest, and costs shall not be paid, let the estate be sold, and the proceeds of the sale paid into court; with usual directions."

1 16 Jur. 965.

2 16 Jur. 965.

Mildmay v. Methuen.

MILDMAY V. METHUEN.1

November 4 and 8, 1852.

New Practice-Scientific Evidence-Chambers.

THE circumstances of this case are fully stated in the judgment.

Malins and Jessel, for the petition.

Daniel and Beavan, opposed.

Prior also appeared.

Sir R. T. KINDERSLEY, V. C. This case of Mildmay v. Methuen is a petition presented by Mr. Holland, an architect, who claims to be a creditor of the late Lord Methuen, the suit having been instituted for the administration of the assets, and the usual decree having been made, directing, among other things, that the Master should take an account of debts, &c. Mr. Holland came in as a creditor in the usual way, claiming to be a creditor for 10,000l., stated by him to be what remained unpaid of a larger claim which he said he became entitled to in respect of building, and repairing, or altering some mansionhouse. Now, the claim being heard before the Master, the executors controverted the debt; and it became necessary, therefore, in the usual course of things, to prove the debt; and some evidence seems to have been brought in as to some of the items. The Master then, looking into the matter, came to the conclusion that it would be hopeless for him to attempt to decide the question upon all the dif ferent items. Being then of opinion that he could not satisfactorily come to a conclusion, for want of that knowledge which an architect. or builder must be supposed to possess, he came to the conclusion that the course was to allow it as a claim, but not as a debt; and accordingly he made a separate report, in which he allowed it as a claim. Upon this a motion was made for liberty to bring an action, as the only mode of trying the question, unless the Master would try it; and leave was accordingly given to the creditor to bring the action. That order is still standing; but since it was made, the recent acts of parliament have come into operation relating to the practice of the Court of Chancery; and now the claimant presents this petition, asking to discharge that order, and asking that the matter may be referred back to the Master, and that the Master may be armed with the power of calling in the assistance of a surveyor or builder. The first question is, whether it is competent to the court to make any such order. Upon that question, as it now arises for the first time, I believe, under this act of parliament, I thought it better be

1 16 Jur. 965.

Wilson v. Bennett.

fore coming to a decision, to consult with the other judges; for in all these cases it is reasonable that no separate orders should be made, but that they should all be with the concurrence of the other judges. I am now able to state what is their opinion upon the section in question, the 15 & 16 Vict. c. 80, s. 42. The question is, whether that section confines the power of calling in assistance to the judge himself, or authorizes him either to depute his powers of obtaining assistance to the Master, or himself to refer it to the Master, directing particular scientific persons to be called to the assistance of the Mas

ter.

We are of opinion that it was not intended by this act that the court should delegate such power to the Master, or arm the Master with such power. The purpose was to enable the judges to do that which they are now enabled to do, instead of the Master; and it was meant that the judges, in executing that function, should have the assistance of scientific persons; therefore, in the form in which the order is prayed for by this petition, I cannot grant it. But a question then remains between these two alternatives, either to leave the matter to go on under the existing law, or to take the matter in chambers under the new act myself, instead of the Master, calling in the assistance of a builder or architect. I have felt considerable doubt which, in the result, would be most convenient to the parties. I have no right to look at my own convenience; as far as that is concerned, I would rather it should go to an action, or have it referred to the Master; but I must consider what I think most likely to give facility to the determination of the question between the creditor and the representatives of the estate. Upon the whole, I think it will be best determined by discharging the order for an action, and taking the matter myself in chambers; that is to say, as to all the details of the bill, which require no discussion, it will be left to my clerks; as to the others, I will determine them myself, availing myself of the assistance of a builder or architect, or such person as I shall think fit. Of questions arising of a grave nature, requiring discussion, I shall consider it right to have them discussed in open court, by counsel. The order made will be to discharge the existing order, and in such form as is proper to be adopted, refer it to the judge in chambers. Let it come to me in chambers. I believe the form will be, to let the petition stand over, and the parties attend me in chambers.

WILSON V. BENNETT.1

April 27, 1852.

Delegation of Trust-Will-Construction.

A testator gave and devised the residue of his real and personal estate to A, B, and C, their heirs, executors, and administrators, upon certain trusts, and empowered his said trustees,

1 16 Jur. 966; 21 Law J. Rep. (N. s.) Chanc. 741.

Wilson v. Bennett.

and the survivors and survivor of them, his heirs, executors, or administrators, to sell The surviving trustee devised the trust estate, and his devisees contracted to sell it:Held, that there was so much doubt about their having the power to sell, that the court would not compel the purchaser to perform the contract.

NEWMAN HYDE, being seized in fee of certain copyhold messuages and hereditaments of the manor of West Derby, subject, as to part thereof, to the payment of 2s. per annum to the commissioners of West Derby, by his last will, bearing date the 22d February, 1808, after certain specific devises and bequests, not affecting the said copyhold premises, gave and devised all the rest, residue and remainder of his estate and effects, real and personal, copyhold and leasehold, whatsoever and wheresoever, unto Samuel Hyde, John Wilson, and John Leigh, (severally since deceased), to hold to them, their heirs, executors and administrators forever, or for and during all his estate, term, and interest therein upon certain trusts therein mentioned, during the life of the testator's daugh ter, Mary Dennison, (since deceased); and after her decease, in case, as happened, there should be no child or children of the said Mary Dennison then living, upon certain trusts therein mentioned, as to the said copyhold premises, during the life of Thomas Dennison, (since deceased); and as to all the residue and remainder of his estate and effects, whatsoever and wheresoever, including the said copyhold estate in West Derby, after the decease of the said Thomas Dennison, upon trust to pay, apply, divide, and distribute the same unto and equally amongst such of the children of his the said testator's late nephew, William Martyn Hyde, and of his nieces, Mrs. Holmes, Mrs. Lamb, Mrs. Holt, Mrs. Greenup, and Mrs. Wilson, as should be living at his said daughter's decease, and issue of any of them who might then be dead, share and share alike, as tenants in common, absolutely and forever, such issue to take the part or share only which his, her, or their deceased parent or parents would have taken if living; and the said will then proceeded in the words following:-" And I autho rize and empower my said trustees, and the survivors and survivor of them, his heirs, executors, or administrators, to sell and absolutely dis pose of all or any part of my said property, at such time and times and in such manner as to them or him shall seem proper, and the pur chaser or purchasers thereof shall not be bound to see to the applica tion of the purchase-money, nor be answerable for the misapplication thereof." The said testator died in the month of February, 1808, leaving the three trustees named in his will, and the said Thomas Dennison and Mary his wife, him surviving. The said John Wilson survived his two co-trustees, Samuel Hyde and John Leigh, and died on the 23d February, 1844, having by his last will, bearing date the 21st April, 1841, appointed Samuel Wilson and Paul Wilson and one John Sparks sole executors thereof, and having also made a codicil to his said will, bearing date the 13th April, 1843, wherein was contained a devise in the words following: "I devise unto my trus tees, Samuel Wilson, Paul Wilson, and John Sparks, their heirs and assigns, all estates and property vested in me under any deed or will as trustee for any other person or persons, to hold the same to them, the said Samuel Wilson, Paul Wilson, and John Sparks, their heirs

Wilson v. Bennett.

and assigns, upon the same trusts, and for the same ends, intents, and purposes, as I now hold the same."

The said will and codicil of the said John Wilson were duly proved, on the 29th March, 1844, by the said Samuel Wilson and Paul Wilson alone; and by a deed-poll, bearing date the 3d April, 1850, under the seal of the said John Sparks, the said John Sparks renounced probate of the said will and codicil of the said John Wilson, and renounced and disclaimed the trusts, estates, and premises by the same will and codicil given to him. On the 23d August, 1850, the said Samuel Wilson and Paul Wilson entered into an agreement in writing with the defendant, Richard Bennett, whereby they agreed to sell, and the said Richard Bennett agreed to purchase, such parts of the said copyhold hereditaments at West Derby, so devised by the will of the said Newman Hyde, subject to the said annual payment of the said sum of 2s., as in the agreement are particularly mentioned for the price or sum of 1,9001. An abstract of the title of the said hereditaments was afterwards furnished to the said Richard Bennett, and he declined to accept the title of the said Samuel Wilson and Paul Wilson to the said copyhold hereditaments so agreed to be purchased by him, upon the grounds, that, under the circumstances hereinbefore stated, the said Samuel Wilson and Paul Wilson could not, nor could either of them, by themselves or himself, make a good title to the said hereditaments; and that the several persons beneficially interested therein under the will of the said Newman Hyde would be necessary parties to any effectual conveyance of the same hereditaments; and that, some of such persons being infants, no such effectual conveyance could then be made. The parties thereupon concurred in submitting these facts to the court in a special case, stating that the said Richard Bennett was willing to accept the title of the said Samuel Wilson and Paul Wilson to the said hereditaments, in case it should appear to the court that the said Samuel Wilson and Paul Wilson, without the concurrence of any other persons, could, under the circumstances aforesaid, make a good title thereto. The question submitted by the case for the opinion of the court was, whether, upon the true construction of the said will of the said Newman Hyde, deceased, and in the events which had happened, and were thereinbefore stated, the said Samuel Wilson and Paul Wilson could, without the concurrence of the several persons then beneficially interested in the said copyhold hereditaments under the trusts of the said will, make to the said defendant, Richard Bennett, a good title to so much of the same hereditaments as were hereinbefore mentioned to have been agreed to be sold by the said plaintiffs to the said defendant, Richard Bennett, subject to the said annual payment of 2s.

Malins and Humphrey, for the plaintiffs, submitted that a good title could be made by the vendors, notwithstanding Cooke v. Crawford, 13 Sim. 91, which was a case where the power was sought to be exercised by a person not contemplated on the creation of it.

[Sir J. PARKER, V. C., said that he thought it was impossible to con