IN RE ENGLAND, App. land naturally entered into possession of the estate devised to him in fee; and inasmuch as he was beneficially entitled to the interest of the 4,000l. charged on that estate, no payment would be made by him to the trustee of the settlement of the interest on that 4,000l. ; and of course, if he had paid it, it would have come back to him in the shape of a return to him by the trustee of the first cheque he received. He is entitled to the interest on that sum, and it is important to bear in mind that by no procedure could he be made to pay that interest. He was entitled to receive it himself, and neither he nor his executors could ever be compelled to pay one farthing. He was not liable to pay it. If anybody else had a beneficial interest in it of course he would be liable, but there was not anybody else beneficially entitled to any part of the interest, and he was not liable to pay it. As regards the capital, he being only tenant for life of the sum charged the estate of course was liable, and he was liable under the statutes to the value of the estate.

Well, now, for a great many more than twelve years nothing has been done, and now a summons has been taken out, and it has been ascertained, or at all events it is apprehended, that the estate on which this 4,000l. is charged is not, or may not be, sufficient to raise that sum; and the question therefore arises whether the personal estate of the testator and the settlor and the covenantor is or is not liable to pay that 4,000l. Mr. Justice Kekewich has held that it is not; hence this appeal.

In the first place, one must consider what the position of affairs is as regards these Statutes of Limitations. What is the statute, if any, applicable to the case? We must try that in this way: Suppose the action were brought by the trustee against the legal personal representatives of the covenantor, they would plead the statute. Now what is the governing statute? There are two possible statutes. The possible statutes are the unrepealed statute of 3 & 4 Will. 4. c. 42, and the statute of 1874 (37 & 38 Vict. c. 57), which amended the 3 & 4 Will. 4. c. 27. The point as to which statute is applicable appears to me to be decided by

the case of Sutton v. Sutton (5). Sutton v. Sutton (5) determines, whatever else it determines, that section 8 of the Act of 1874 applies. The case of Sutton v. Sutton (5) determines this-that when any action, suit, or other proceeding is brought not only to recover any sum of money out of land, but is brought against the legal personal representative of the covenantor, whether the covenant is contained in the mortgage deed itself or, as in the case before Lord Justice Fry, in collateral documents, the statute which governs it is now the 37 & 38 Vict. c. 57, s. 8, and to that and that alone we must have re

course.

66

Now let us read section 8. That section says: "No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or equity"-I will leave out or any legacy," because that is not material. "But within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or a release of the same." But here there was a person existing who was capable of giving a discharge or release for this 4,000l., that person being the surviving trustee of that charge; and unless the words which I am about to read apply, his action against the legal personal representatives would be barred by the lapse of twelve years. The section continues as follows:

"Unless in the meantime some part of the principal money, or some interest thereon, shall have been paid or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent." Has that been done? That is a question of fact, and it admits of but one answer, and that answer is, "No, there has been no payment in fact and no acknowledgment in fact." As regards the principal sum, it is not contended that there has been; but it is said that, although there has been no payment in fact, there has been that which is equivalent to a payment. It is said that Captain England,

IN RE ENGLAND, App. having been devisee of the estate and also tenant for life of the charge upon it, must be deemed to have paid himself that is to say, to have paid the trustee and got the money back again. One must be careful before one substitutes what I would call a fiction for a fact. The answer at law would be this: The statute would be relied upon as a defence, and there having been no payment in fact, no acknowledgment in writing, that would be a complete answer. Mr. Ingpen has argued this with very great skill and ability, but it seems to me the difficulty cannot be got over, and for this reason. We are dealing with interest, and no one supposes that there has been any payment or anything equivalent to payment. Captain England was never liable to pay one farthing of this interest. That is the cardinal point to keep one's mind on. He was entitled to interest, but was not liable himself. If the right to the interest had been in some one else it would be a different matter. He never was liable, and therefore it is impossible to set up a constructive or fictitious payment of interest to himself, as there was not any payment of interest by any person liable. The whole is a fiction.

That really seems to me to get rid of the whole of these cases, because, although I conceive that if proceedings had been taken against Captain England to raise this 4,000l. out of the land, he could not set up the statute because he has been enjoying all the devise and all the charge; yet it does not at all follow that because he is open to that personal objection the same objection can be made available against other persons; and there is not a single case in the books which goes the length of saying that it can. There are cases which go to shew, or tend to shew, this -that if he had been liable to pay interest that interest might avail against the legal personal representative. In re Frisby (3) is most important in that respect; but in that case there was a person in fact liable to pay interest, and in this case there has been no payment in fact of a shilling of interest, and no person is liable to pay a shilling of interest. That is the peculiarity of this case. Now, bearing that in

mind, we may make a clean sweep of the cases that have been referred There is not one of them applicable to circumstances of this case. I think, the fore, that the appeal ought to be d missed.

LOPES, L.J.-I do not propose to foll the points that have been taken in t judgment of my brother Lindley. I a content to say that I found my decisi upon this that there has been no pa ment of interest in this case by any o liable to pay. Captain England was n liable to pay a penny. He was tenant life of this charge and devisee in fe simple of the land, and he was entitled put every halfpenny of this interest in his pocket. That to my mind is a co plete answer to the case, and I think t learned Judge was perfectly right in t Court below when he held that t statute was a bar against the person estate.

RIGBY, L.J.-I am of the same opinio and I will add nothing except as to th liability of Captain England to pay i terest. The Statute of Fraudulent D vises places devisees in the same positio as the heir-at-law, but under that statu it has been held that the heir-at-law ca not be made accountable for any intere that is received by him before the issu of the writ. If he takes it and puts into his pocket, it belongs to him abso lutely and entirely; and as devisees a placed on exactly the same footing as th heir-at-law, there is no power to recove from them. They would be chargeab only to the value of the lands, and for th interest which they had received befor the issue of the writ they would not b liable at all. It is plain, therefore, tha Captain England never was liable; an giving full effect to all the decisions, in cluding that in In re Frisby (3), there ha been no payment within the meaning o section 8 of the Act of 1874. It has been held by this Court that that is the section which applies in such a matter. I hav not the slightest doubt that that was absolutely in accordance with the plair provisions of the Act when they ar

IN RE ENGLAND, App. looked into. In any event, of course, we could not consider whether it was right or wrong. We accept it, and for my part I accept it with full conviction that it was absolutely right.

Solicitors-Rhodes & Son; S. W. Johnson & Son; Blount, Lynch & Petre.

KEKEWICH, J. 1895. July 18, 26.

[Reported by A. Cordery and H. B. Hemming, Esqs., Barristers-at-Law.

In re THE DUKE OF CLEVE-
LAND'S ESTATE; HAY v.
WOLMER.

Will-Administration-Tenant for Life and Remainderman-Property Recovered after Testator's Death-Apportionment between Capital and Income-Rate of Interest Allowed.

Part of a testator's residuary estate was not recovered until some years after the testator's death. The sum recovered consisted almost entirely of principal moneys:Held, that, as between the tenant for life of the residue and those in remainder, the sum recovered must be apportioned, the tenant for life being entitled to interest at the rate of three per cent. per annum as from the expiration of one year from the testator's death.

Turner v. Newport (2 Ph. 14) followed.

The Duke of Cleveland, who died on the 21st of August, 1891, by his will, after devising certain hereditaments in strict settlement, bequeathed to the persons becoming entitled to the receipt of the rents and profits thereof at the time of his death all arrears of the rents of such hereditaments which should be due at the testator's death, and all proportions to become due to his estate after his death of rents accruing due at but payable after his death, and directed that "all outgoings of the said hereditaments properly chargeable against such arrears and proportions"

and not discharged in the testator's lifetime, should be paid out of such arrears and proportions. A summons was taken out for determining what were "outgoings" properly chargeable against the arrears and proportions of rents bequeathed as aforesaid, and the case came before Kekewich, J., and the Court of Appealsee In re The Duke of Cleveland's Estate; Wolmer v. Forester (1).

As a result of the decision in this case the tenants for life of the Somerset and Raby Castle estates, which were devised by the will, became liable to the extent of their receipts on account of the arrears and proportions of rents to recoup to the executors certain sums which had erroneously been paid by the latter for outgoings on these estates respectively.

In the case of the Somerset estate the outgoings so repayable to the executors were equal to the whole of the arrears and proportions of rents received by Captain Forester, the tenant for life, and amounted to 7,2631. 2s. 7d. In the case of the Raby Castle estate the difficulties of the accounts were such that all parties concurred in a compromise which was sanctioned by the Judge. Under this compromise the amount repayable by Lord Barnard, the tenant for life, was settled at 31,000l. These sums were repaid in 1894 and 1895, but without interest, which it was agreed could not be recovered.

The Duke of Cleveland by his will, after the devises in strict settlement and the bequest before referred to, had bequeathed his residuary estate to trustees upon trusts for sale and conversion and investment, and directed the trustees to hold the trust funds as to one moiety thereof in trust to pay the annual income thereof to Arthur William Henry Hay during his life, and after his death in trust for the benefit of his children and issue as therein mentioned. And as to the other moiety thereof upon similar trusts in favour of Powlett Charles John Milbank and his children and issue.

This was a summons taken out by Arthur William Henry Hay and Powlett Charles John Milbank against the trustees and

(1) 63 Law J. Rep. Chanc. 115; Law Rep. [1894] 1 Ch. 164.

IN RE DUKE OF CLEVELAND'S ESTATE. the persons entitled in reversion to the testator's residuary estate, to determine whether the plaintiffs, as tenants for life of the residuary estate of the said Duke of Cleveland, were entitled to have any and what apportionment as between capital and income made in respect of the sums repaid by Captain Forester and Lord Barnard to the trustees.

The plaintiffs claimed that as they had for several years since the death of the Duke of Cleveland been deprived of the income of a considerable portion of the Duke's estate which ought to have been invested, the sums recovered ought to be apportioned between capital and income on the basis of In re The Earl of Chesterfield's Trusts (2).

W. C. Renshaw, Q.C., and C. Ashworth James, for the plaintiffs.-These sums must be apportioned between tenant for life and remainderman as from the time when the estate became divisible-In re Moore; Moore v. Moore (3), In re Foster; Lloyd v. Carr (4), and Ackroyd v. Ackroyd (5).

E. Beaumont, for the trustees of the will.

B. Eyre, for the remaindermen.--These sums having been repaid entirely as principal, the plaintiffs are not entitled to any share of them-In re The Earl of Chesterfield's Trusts (2).

Cur, adv. vult.

KEKEWICH, J. (on July 26), delivered the following written judgment:

The only reason why I took time to consider this case was that Mr. Eyre insisted, with some truth as well as force, that the money now to be disposed of consisted of principal only and not at all of interest, and that therefore no part thereof ought to be paid to the tenant for life. That the money recovered in respect of the Somerset estate consists of principal only is absolutely true, the amount due having been exactly ascertained, and

(2) 52 Law J. Rep. Chanc. 958; Law Rep. 24 Ch. D. 643.

(3) 54 Law J. Rep. Chanc. 432.

(4) 60 Law J. Rep. Chanc. 175; Law Rep. 45 Ch. D. 629.

(5) Law Rep. 18 Eq. 313.

it having been conceded that interest wa irrecoverable; and it is true also, I think of the money recovered in respect of th Raby Castle estate, notwithstanding tha there the amount was arrived at, no by arithmetical calculation, but by com promise. Nevertheless I think that th tenant for life is entitled to a fair pro portion. There is no occasion now t consider how it came to pass tha

these sums were recoverable and were recovered on behalf of the residuary estate. Suffice it to say that they were sums originally belonging to the residuary estate, and as a matter of fact not re covered until some time after that re siduary estate became divisible—that is after the expiration of twelve months from the testator's death. On general and broad principles, sums so recovered must be divided between the tenant for life and the remainderman on a fair basis. Those principles are expounded by Lord Cottenham in Turner v. Newport (6), and are the foundation of the cases cited in argument, to which I need not further refer. Except that I shall substitute three for four per cent. as being more agreeable to the facts of present experience, I shall follow Turner v. Newport (6), and the amounts receivable by the tenants for life will be calculated accordingly.

Solicitors-Williams & James, for plaintiffs; Jennings & Finch, for trustees; Horn & Francis, for remaining defendants.

[Reported by A. J. Spencer, Esq., Barrister-at-Law.

(6) 2 Ph. 14.

Trust Deed-Scholarship-Refusal to Elect-Action by Candidate.

A trust deed provided a scholarship for a pupil leaving a school and going to University or New College, London, who should pass the best examination in subjects chosen by an examiner appointed by the trustees. An examination was held, at which only two candidates competed, and the plaintiff obtained the highest number of marks. The examiner, however, certified that in his opinion neither candidate was deserving of 80 valuable a scholarship. The trustees refused to award the scholarship, and the plaintiff brought an action for a declaration that he was entitled to the scholarship :-Held, that no candidate was entitled to the scholarship unless he passed to the satisfaction of the examiner, although he might have obtained the highest number of marks, and that the trustees had acted rightly.

The plaintiff claimed a declaration that he was entitled to the enjoyment of a scholarship, the defendants being the trustees of the fund from which it was derived.

By a trust deed of 1854 a fund of 1,000l. was vested in trustees as an endowment for the support of a scholarship to be given to a pupil, leaving Mill Hill School, Hendon, and going to University College or New College, London, who should pass the best examination in subjects to be chosen by the examiner, such examiner to be chosen by the trustees of the scholarship. The trusts of the deed are more fully set out in a report of the case on another point (64 Law J. Rep. Chanc. 301), and for the present purpose it is sufficient to state as follows: In accordance with the trust deed an examination for the scholarship was held in June, 1894, at which two candidates only, of whom the plaintiff was one, presented themselves. At this examination the plaintiff obtained a small majority of marks, but neither candidate obtained half the maximum num

ber, and the examiner certified that in his opinion neither candidate was deserving of so valuable a scholarship, and recommended that it should be divided between them. The trustees declined to award the scholarship, and the plaintiff, who had duly entered as a student at University College, London, and was now pursuing his studies there, brought an action by his next friend against the trustees, claiming a declaration that he was entitled to the scholarship, and an order directing the defendants to put him in possession thereof.

A. Hopkinson, Q.C., and E. R. Wurtzburg, for the plaintiff. The plaintiff has complied with the terms of the trust deed. On the fair construction of the deed, the pupil who passes the best examination and shews that he is capable of passing the London University Matriculation is entitled to the scholarship.

A. Birrell, Q.C., and N. Micklem, for the trustees, were not called upon.

ROMER, J.--In my opinion this action fails, and on this short ground-that, according to the true construction of this trust deed, no boy is entitled to the scholarship unless he shall have passed an examination for the scholarship in subjects to be determined upon by the examiner; and clearly the examiner is the person who is to say whether for this scholarship the boy has passed a satisfactory and proper examination. If a boy, though the best of those who competed, is not able to pass a satisfactory examination for this scholarship (and, considering what the scholarship is, one should have regard to its nature and the amount awarded, and so forth), then clearly the examiner ought to say that there is no boy who has passed the best examination so as to be entitled to the scholarship. Now here, as a matter of fact, the examiner has in effect said that no candidate has passed so as to deserve so valuable a scholarship as this-that is to say, this scholarship. In other words, he has in effect said that no boy has passed the examination required for this scholarship. That being so, the plaintiff is not entitled to the scholarship,