the assignee of a bankrupt was the purchaser, prays not a re-conveyance of the specific estate, but a re-sale of the property under the direction of the Court. The terms

of the re-sale have not always been uniform. In Whelpdale v. Cookson (a) Lord Hardwicke said, the majority of the creditors should elect whether the purchase should stand; so that should they have elected to re-sell, and the estate had been sold at a still lower price, the creditors would have suffered. The doctrine of Lord Thurlow appears to have been that the property should be put up at the price at which the trustee purchased, and if any advance was made, the sale should take effect, but if no bidding, the trustee should be held to his bargain (b). Lord Alvanley followed the authority of Lord Hardwicke, for in the case of infant cestuis que trust he directed an inquiry by the master, whether it was for the benefit of the infants that the premises should be re-sold, and, if for their benefit, the sale should be made (c). "To this principle," said Lord Eldon, "the objection is, that a great temptation to purchase is offered to trustees, the question whether the re-sale would be advantageous to the cestui que trust being of necessity determined at the hazard of a wrong determination (d)." Lord Eldon therefore conceived it best to adopt the rule of Lord Thurlow, and so he decreed in ex parte Hughes (e) and ex parte Lacey (f). Sir W. Grant in a subsequent case (g) said he was not aware that Lord Eldon had

(a) Cited Campbell v. Walker, 5 Ves. 682.

(b) See Lister v. Lister, 6 Ves. 633; ex parte James, 8 Ves. 351. (c) Campbell v. Walker, 5 Ves. 678, see 682.

CC

(d) S. C. 13 Ves. 603.
(e) 6 Ves. 617.

(ƒ) Id. 625; and see ex parte Reynolds, 5 Ves. 707.

(g) Lister v. Lister, 6 Ves. 633.

laid down any general rule as to the terms; but a few days after, having consulted the Lord Chancellor upon the subject and discovering his mistake, he framed his decree in conformity with the Lord Chancellor's decisions. The same principle has since been followed in numerous other cases (h), and the practice may be considered as settled.

Should the trustees have repaired or improved the estate, the expense of the repairs and improvements would be added to the purchase-money, and the estate be put up at the accumulated sum (i).

Where the trustee has purchased in one lot, the cestuis que trust cannot insist on a re-sale in different lots. If desirous of re-selling the property in that mode, they must pay the trustee his principal and interest, and then, as the absolute owners, they may sell as they please (k).

In the application of Lord Hardwicke's rule it was a question constantly occurring, whether the body of creditors at large could be bound by the resolution of the majority to insist upon a re-sale; but by the practice of Lord Eldon the difficulty on that head is avoided (1), for as the creditors cannot by possibility sustain an injury, it is competent to any individual creditor to try the experiment (m).

If before the cestui que trust files his bill for relief the trustee has passed the estate into the hands of a pur

(h) Ex parte James, 8 Ves. 337; ex parte Bennett, 10 Ves. 381; Robinson v. Ridley, 6 Mad. 2.

(i) Ex parte Bennett, 10 Ves. 400; ex parte Hughes, 6 Ves. 625; Robinson v. Ridley, 6 Mad. 2. (k) See ex parte James, 8 Ves.

351, 352.

(1) Ex parte Hughes, 6 Ves.

624.

(m) Ex parte James, 8 Ves. 353; and see ex parte Lacey, 6 Ves. 628.

chaser, and the purchaser had notice of the equity, the same remedies may be prosecuted against the purchaser as against the trustee (n); but if the sale was without notice, the cestui que trust may then compel the trustee to account for the difference of price (o), or for the difference between the sum the trustee paid and the real value of the estate at the time of the purchase (p), with interest at four per cent. (q).

The trustee of some shares in Scotch mines became the purchaser himself, and afterwards sold them to a stranger at a considerable advance of price. Lord Thurlow decreed the trustee to account for every advantage he had made, but said he could not go the length of ordering the specific shares to be replaced. He conceived the cestui que trust had no such election of choosing between the specific thing and the advantage made of it (r).

The costs of the suit will, as a general rule, follow the decree-that is, if the trustee be compelled to give up his purchase, he must pay the expenses occasioned by his own misbehaviour (s): and if the charge be unfounded, the costs must be paid by the plaintiff. But if there be great delay on the part of the cestui que trust, the costs will be refused him, though he succeed in the suit (†) ;

(n) Attorney-General v. Lord Dudley, Coop. 146; Dunbar v. Tredennick, 2 B. & B. 304.

(0) Fox v. Mackreth, 2 B. C. C. 400; S. C. 2 Cox, 320; Hall v. Hallet, 1 Cox, 134; Whichcote v. Lawrence, 3 Ves. 740; ex parte Reynolds, 5 Ves. 707; Randall v. Errington, 10 Ves. 423.

(p) See Lord Hardwicke v. Vernon, 4 Ves. 411.

(q) Hall v. Hallet, 1 Cox, 134,

see 139.

(r) S. C.

(s) Whichcote v. Lawrence, 3 Ves. 752; Hall v. Hallet, 1 Cox, 141; Sanderson v. Walker, 13 Ves. 601, 604; Crowe v. Ballard, 2 Cox, 253; S. C. 3 B. C. C. 117; Dunbar v. Tredennick, 2 B. & B. 304.

(t) Attorney-General v. Lord Dudley, Coop. 146.

and, on the other hand, if the bill be dismissed not because the transaction was not originally impeachable but merely on account of the great interval of time, the court may refuse to order the costs of the defendant (u).

3. If the cestui que trust desire to set aside the purchase, he must make his application to the Court in reasonable time, or he will not be entitled to relief (x). A long acquiescence under a sale to a trustee is treated as evidence that the relation between the trustee and cestui que trust had been previously abandoned, and that in all other respects the purchase was fairly conducted (y).

A sale cannot be set aside after a lapse of twenty years (); but in these cases the Court does not confine itself to that period by analogy to the statute of limitations, for relief has been refused after an acquiescence of eighteen years (a); and it is presumed even a shorter period would be a bar to the remedy, where the cestui que trust could offer no excuse for his laches (b). However, the sale has been opened after an interval of ten years (c).

Persons not sui juris, as feme coverts and infants, cannot be precluded from relief on the ground of

(u) Gregory v. Gregory, Coop. 226, per Lord Eldon; and see Morse v. Royal, 12 Ves. 374,

201.

(x) Campbell v. Walker, 5 Ves. 680, 682, per Lord Alvanley ; Chalmer v. Bradley, 1 J. & W. 59, per Sir T. Plumer; ex parte James, 8 Ves. 351, per Lord Eldon; Webb v. Rorke, 2 Sch. & Lef. 672, per Lord Redesdale; Randall v. Errington, 10 Ves. 427, per Sir W. Grant.

(y) Parkes v. White, 11 Ves.

378.

(z) Price v. Byrn, cited Campbell v. Walker, 5 Ves. 681. (a) Gregory v. Gregory, Coop.

201.

(b) See Oliver v. Court, 8 Price, 167, 168.

(c) Hall v. Noyes, cited Whichcote v. Lawrence, 3 Ves. 748.

acquiescence during the continuance of the disability (d).

And a class of persons, as creditors, cannot be expected in the prosecution of their common interest to exert the same vigour and activity, as individuals would do in the pursuit of their exclusive rights (e). Accordingly creditors have succeeded in their suit after a laches of twelve years (f); and a sect of dissenters was once allowed to impeach a sale after a lapse of more than twenty years (g); but even creditors will be barred of their remedy if they be chargeable with very gross laches, as with acquiescence in the sale for a period of thirty-three years (h).

For laches to operate as a bar, it must be shewn that the cestui que trust knew the trustée, was the purchaser; for while the cestui que trust continues ignorant of that fact, he cannot be blamed for not having quarrelled with the sale (i).

The length of time may also be satisfactorily accounted for, without the imputation of negligence, by the distress of the cestui que trust (k).

Of course the cestui que trust may ratify the sale to

(d) Campbell v. Walker, 5 Ves. 678; S. C. 13 Ves. 601; Roche v. O'Brien, 1 B. & B. 330, see 339.

(e) Whichcote v. Lawrence, 3 Ves. 740, see 752; Hardwick v. Mynd, 1 Anst. 109; and see Kidney v. Coussmaker, 12 Ves. 158; York Buildings' Company v. Mackenzie, 8 B. P. C. 42.

(f) Anon. case in the Exchequer, cited Lister v. Lister, 6 Ves. 632.

(g) Attorney-General v. Lord Dudley, Coop. 146.

(h) See Hercy v. Dinwoody, 2 Ves. jun. 87.

(i) Randall v. Errington, 10 Ves. 423, see 427; Chalmer v. Bradley, 1 J. & W. 51.

(k) Oliver v. Court, 8 Price, 127, see 167, 168; and see Gregory v. Gregory, Coop. 201; Roche v. O'Brien, 1 B. & B. 342.