CIR. C.] BURRELL v. FARMER.-DRISCOLL v. REORDAN. Court the amount claimed, less such difference, and relied on the definition of "landlord" given in the Land Law Act, 1881 (sec. 57), as including the successors in title to a landlord, and as entitling him to credit against the plaintiff for the amount overpaid to the executors. The order fixing a fair rent contained no reference to the amonnt of rent paid or due, and no account had been taken under the Act of 1887, section 5. James Campbell, for the plaintiff. M. C. Macinerney, for the defendant. FITZGIBBON, L.J.-I have carefully considered this case. [L. C. a decree for the full rent to which the plaintiff is entitled unless the second paragraph of the 5th section makes a difference. In my opinion it does not, and merely gives to a tenant applying immediately after the passing of the Act the same remedy which in other cases is given to tenants in general-namely, the right to demand an account in the Land Court, and to deduct the amount found due on such an account. It must be distinctly understood that I have not to Solicitor for the plaintiff: R. E. Bailey. The question is an important one, and, without binding Mr. Justice Andrews in any way, I wish to say that I have consulted him as to my decision. In this particular case there are funds to discharge the obligation on whomever it may properly fall, but this might not have been so, and the result, in cases where the Overpayment may prove irrecoverable, may be serious. The plaintiff is a remainderman, but although he claims under an appointment by Mrs. J. E. W. he does not "claim through her," and is the owner of an estate which is not derived from her. The question is whether the plaintiff, a remainderman, is now entitled to recover the full amount of the judicial rent accrued due since he became possessed of the property without any deduction under the 5th section of the Land Law Act, 1887, for the overplus of the old rent previously accrued and paid by the tenant to the executors of the previous limited owner while the proceedings to fix the rent were pending. This section provides a special remedy to enable the tenant, when the Land Commissioners or County Court fixes his rent, to obtain credit for what he has previously paid, but the mode is precisely and strictly defined, and more, it is mandatory upon Court." "When the Court on application fixes a judicial rent for a holding, the judicial rent shall be the rent payable by the tenant of the holding as from the gale day next after the making of the application, and the Court shall proceed to take an account between the parties of the difference between the rent which has been paid by the tenant since the said gale day fair rent-Coercion Agent of landlord acting as a witand the judicial rent, and any sum found on such account to be due from the landlord to the tenant shall be deducted by the tenant from the rent thereafter accruing due from him." It is argued that “landlord,” under the 57th section of the Act of 1881, includes successors of the landlord, and therefore that the deduction may be made from the present plaintiff. With the procedure in the Land Court I have nothing to do, and I do not know why the account directed by the statute was not taken, but it seems to me that the amount to be deducted can only be an amount found due on an account taken by the Land Court under the Act. "the If the Land Court did not take this account I must assume that the parties did not require it to be done. The section was, in my opinion, introduced to give an additional and simpler remedy to a tenant who, after serving his originating notice, had paid a higher rent than that subsequently fixed by the Court, and who, previously to the Act, could have recovered such difference from the person to whom he paid it as money had and received: see Twiss v. Casey, 18 I. L. T. R. 83. But against whom was this original remedy available? Only against the persons who received the money. Here it was received by persons other than the plaintiff. I have not got the representatives of Mrs. J. E. W before me, nor can I take any account between them and the tenant. I must therefore give LAND COMMISSION. Reported by JOHN BARTLEY, Barrister-at-Law. (Before LITTON, J., and Mr. Commissioner FITZGERALD). DRISCOLL V. Reordan. June, 1890.-Application to set aside agreement fixing ness. Application, on behalf of the tenant (Reordan), who was illiterate and spoke only Irish, to have an agreement, made in 1884 and fixing the fair rent of a holding at £13 10s., set aside, on the ground that he thought the rent agreed on was £10 16s., that he was coerced to sign the agreement, and that contrary to rule 115 the witness to the agreement was in the service of the landlord. The tenant alleged that after 1884 he paid the rent irregularly and in portions, that a notice of ejectment, endorsed with the correct amount of rent, and sent to him in 1884, never reached him, and that he did not know the correct rent till he received a notice of ejectment in 1889. On behalf of the landlord it was contended that no coercion or undue influence was used at the execution of the agreement, that the meaning of the agreement was fully explained to the tenant, and that the witness, though he had on one occasion acted as agent for the landlord, was not in the landlord's employment at the time the agreement was made. Daniel Mahony for landlord. LITTON, J.-The evidence given by the tenant is inconsistent. He says he was coerced to sign the agree ment, and he also says that he thought the rent agreed on was £10 16s.-only a few shillings more than what he had expressed his willingness to pay. The landlord alleged that the correct rent was entered in the tenant's pass book, which, however, the tenant refused to produce. The application must, therefore, be dismissed. Order accordingly. LAND SUB-COMMISSION. Reported by A. EDGAR, Deputy Registrar. (Before J. H. EDGE, Barrister-at-Law). RYAN v. FINCH. LOOBY v. FINCH. August 19, 1890.—Leases by a tenant for life—Application to determine judicial rent—Land Law Act, 1881, ss. 21, 58—Land Law Act, 1887, ss. 1, 34—Estoppel. Where leases have been made by tenant for life for his own life and for the term of 35 years respectively : Held, that the respective lessees were entitled to have judicial rents determined. Applications to have judicial rents determined. The facts sufficiently appear in the judgment. Mr. Gleeson, solicitor, for Ryan. Mr. EDGE. In the case of John Ryan, tenant, John Finch, landlord, the statute acreage is 122a. 2r. 32p., the Government valuation is £99, and the rent is £159 8s. 3d. The premises are held under a lease of the 13th May, 1872, by the present landlord to the present tenant for the life of the landlord. The lease is made in consideration of a fine of £300. Although unnecessary, owing to the term of the lease, the reservations and covenants mention the heirs of the lessor, and there is nothing on the face of the lease disclosing that the lessor was not an absolute owner in fee. In the case of Timothy Looby, tenant, John Finch, landlord who is the same landlord as in the last case-the statute acreage is 187a. Or. 31p., the Government valuation is £128, and the rent is £201. The premises are held under a lease of the 26th March, 1875, from the present landlord to the present tenant for the term of 35 years. Prior to the lease an agreement of the 6th March, 1869, was entered into with the landlord, whereby it was agreed that, subject to a then existing lease of the 7th May, 1855, vested in one W. H. Carroll, a new lease for the life of the landlord should be granted to the said Timothy Looby and one Daniel Connell, the landlord receiving a fine of £150 on execution of that agreement, and a further sum of £100 secured by a promissory note. The lease of the 7th May, 1855, was surrendered by a deed of the 10th February, 1875, and the lease of the 26th March, 1875, was made by John Finch, similarly as in the last case, as if he was an absolute owner in fee, and this lease is treated by us as made independently of any leasing or statutory power, and is considered by us as the practical outcome of the agreement for which a fine was given. In both these cases, of John Ryan and Timothy Looby, Mr. Fry asked us to dismiss the notices on the grounds that John Finch was a tenant for life only, and that, as Ryan and Looby would not on his death become yearly tenants to the remainderman under the 21st section of the Land Act of 1881, they would not be entitled to the benefit of the first section of the Land Act of 1887. Mr. Fry relied on the case of Massy v. Norse [L. S.-C. (20 L. R. Ir. 57, 464), which establishes the proposition that where a tenant for life makes a lease merely by force of his life estate and without any special or statutory power, and where consequently, under the ordinary law, the lease, and the tenancy under it, terminate with the death of the tenant for life, no tenancy from year to year arises under the 21st section as against the new landlord. Without taking into account the right of the landlord to resumption, it seems now clear that in order to give a person, at the expiration of a lease, the status of a yearly tenant under the 21st section, such person should be then entitled to the lessee's interest in an expiring lease of the prescribed date and term, and in bona fide occupation of the holding, the estate of the landlord should continue in accordance with Massy v. Norse, no reversionary lease should have been made of the holding prior to the Act of 1881, and the holding should not be excluded from that statute by its 58th section. It appears to me that, on the true construction of the Act of 1887, the conditions under which an existing leaseholder of the prescribed date and term can apply, pursuant to that statute, are as regards reversionary leases and the provisions of the 58th section, the same as those which regulate the creation of yearly tenancies under the 21st section, but that the other conditions, though similar and corresponding, are not identical, and that these conditions are that the lessee must be, at the time of the making of the application, in bona file occupation of his holding, and entitled to the lessee's interest under the lease, which lease must be valid and binding as against his then existing landlord. The 34th section of the Act of 1887 confines the operations of the portion of that Act, with which we are now dealing, to holdings which were agricultural or pastoral in their character, copying the language of the first sub-section of the 58th section of the Act of 1881; but there is nothing in the Act of 1887 expressly excluding demesne lands, or the other excepted classes contained in the second and following sub-sections of the 58th section, and there is no mention made of reversionary leases in the Act of 1887. I think that the peculiar wording of the clause of the first section of the Act of 1887 limiting the application to the "lessee of any holding who, at the expiration of his lease existing at the passing of the Land Law (Ireland) Act, 1881, would be deemed to be a tenant of a present ordinary tenancy from year to year within the meaning of the said Act," is meant to exclude reversionary leases, demesne lands, townparks, pasture holdings, and the other holdings expressly excluded from the Act of 1881, but only excluded by implication in this manner from the operation of the first section of the Act of 1887. I do not think that the section imposes the duty on the tenant, of showing that the lease is valid against a remainderman or that the lessor's estate does not terminate with his death, nor do I think that the application of the tenant ought to fail because the landlord showed that the lease was invalid as against the remainderman or did not bind the inheritance. It seems to me that such a construction would involve a too literal adherence to the language of one clause in the first section without sufficient regard to the other clauses of the same section or the manifest intention of the legislature, and such a construction, pushed to a strictly consistent conclusion, leads to the absurdity of its being requisite to assume that the applicant and the owner of the lease, at its expiration, are necessarily one and the same person; and of its being further requisite for the applicant to establish Co. CT.] KENNEDY v. BEAUMONT.-DONNAN v. M'DOWELL. that, not only at the time of the making of the application, he was in bona fide occupation of the holding as required under a further clause of the first section, but also that he was actually in bona fide occupation of the holding at a period not then arrived, namely, at the expiration of the lease, pursuant to the 21st section of the Act of 1881. The 1st section of the Act of 1887 was plainly intended to give immediate relief to existing leaseholders. This policy would certainly be frustrated if it were necessary to decide that a leaseholder's application must be refused whenever it was shown that, not even absolutely but possibly, at the expiration of the lease the then owner of the lessee's interest would not be entitled to claim under the 21st section owing to a break in the continuity of the landlord's title. The construction which I have put on the section cannot prejudice any third person, such as a remainderman, who does not derive through the present landlord, and who, on the determination of the present landlord's estate, may become entitled to the property, and at the same time it gives the tenant, as against the person who for the time being is admittedly bound to him as landlord, the immediate benefit of the section. Independently of the construction of the statutes, the question of estoppel may arise in both or either of these cases, and present them in a different aspect from that in which they would appear if the landlord's title had been truly set forth in the several leases. In the first case, of John Ryan, who holds only for the life of the landlord, apart from the Land Acts, there could be no advantage to the tenant in John Finch having a greater estate than for his own life, and it would appear that in such a case there would be no inconsistency in the landlord showing that his title terminated with the lease. In the other case, of Timothy Looby, it seems, in accordance with the doctrine of estoppel, that John Finch cannot now, for his own advantage, be allowed to show a title which would render his own lease worthless in case he died before the expiration of the term for which it was granted. In either case it seems that the tenant will be entitled to the full benefit of any further title in the property which John Finch may hereafter acquire, and which, if so acquired, may prevent either of the applicants being disturbed. If he does not acquire any such further title the remainderman will be entitled, at the death of John Finch, to the possession of the holdings in accordance with the decisions in Massy v. Norse and Sparrow v. Hepenstall, 24 Ir. L. T. R. 65. For these reasons we think that both the applicants are entitled to have judicial rents fixed. My colleagues have inspected the holdings, and we fix the judicial rent of John Ryan at £115, and the judicial rent of Timothy Looby at £130. [Co. CT. applicable to proceedings in the County Court. Method of the taxation of costs on a sale of lands in the County Court defined. The This was a suit to raise the arrears of two annuities, Under a which were charged on the inheritance. decree for sale the lands were sold for £120. Registrar taxed the plaintiff's costs upon the scale prescribed by the General Order of the 16th April, 1884, made in pursuance of the Solicitors Remuneration Act, 1881. From this taxation the plaintiff appealed to the Judge, on the ground that the costs should have been taxed according to the scale in use previously to the passing of the Act. Whittaker, for the plaintiff, moved to vary the taxation. Mr. A. Caruth, solicitor, for the defendant. pro The JUDGE. By the 2nd section of the Solicitors Remuneration Act, 1881, the persons therein named were empowered to make such General Order as to them seemed fit, for regulating the remuneration of solicitors in respect of business connected with sales, &c. The 2nd section provides that, in framing the order, regard may be had, among other considerations, to the amount of the capital money to which the business relates. By the General Order of the 16th of April, 1884, made in pursuance of the Act, it is vided by clause 2a that the remuneration in respect of sales shall be as prescribed in part 1 of schedule 1, which gives the vendor's solicitor 40s. per £100 for the first £1,000, and rule 8 provides that where the remuneration amounts to less than £5 the remuneration shall be £5, except on transactions under £100, in which case the remuneration is to be £3. It was decided in Stanford v. Roberts, 26 Ch. Div. 155, that the Act applies to sales in Court, but it has been contended on behalf of the plaintiff that the General Order does not apply to a proceeding in this Court, and that I ought to exercise the discretion vested in me by the 4th of the General Orders made under part 2 of the County Officers and Courts Act, 1877, by directing the costs to be taxed according to the scale in use previously to the passing of the Remuneration Act, on the ground that the purchase money upon sales in this Court is usually small. I cannot accede to this contention. The 10th of the General Orders of 1877 directs, in case of discretionary fees, the Taxing Officer shall take into consideration the amount or value of the subject of litigation and the general nature and circumstances of the particular case, which is quite in accordance with the principle of the Remuneration Act and the General Order made under it. If this had been a sale in the Superior Courts the solicitor's remuneration would have been £5, in addition to his costs of suit and outlay. I cannot see any reason for confining the General Örder to sales in the Superior Courts, but it is not necessary to consider this question, as I would not be justified in sanctioning under Order 4 any higher scale in this Court. No rule. DONNAN v. M'DOWELL. June 13, 1890.-Priority-1 acking--Further mortgages. A mortgagee with the legal estate, making a further advance upon a second mortgage, is entitled to be paid in priority to an intervening incumbrance of which he had not notice. Such notice must be clear and distinct. Co. CT.] DONNAN v. M'DOWELL. STERLING AND M'CARRON v. LECKY. Civil bill to recover money lent on mortgage. The facts appear sufficiently from the judgment. Whitaker for the plaintiff. Mr. Byrne, solicitor, for the defendant. The JUDGE. The equitable deposit being incapable of registration under the Registry Acts, it has no application, as was decided by the Court of Appeal in Re Burke's Estate (24 L. R. Ir.), and the rights of the owner of this security must be determined according to the general law as it exists in England and in this country. By a lease, dated the 18th of November, 1845, General M'Cleverty demised 10 acres 2 roods of the lands of Belton to Samuel M.Dowell for his life, which interest he, by deed of the 17th November, 1875, conveyed to Samuel Wylie M'Dowell, who, on the 30th of January, 1884, obtained from the plaintiff, William Donnan, a loan of £250, which he then secured by his bond, and in about a month afterwards William Donnan obtained as security the lease and conveyance which he handed to, and allowed to remain in the possession of, Mr. M'Ninch. By a mortgage, dated the 9th of January, 1884, said Samuel Wylie M'Dowell had assigned to Eliza Wilson and Matilda Rennie 25 acres, Irish, of the lands of Belton, thereby stated to be held under Lord Trevor as tenant from year to year, and two other farms containing about 60 acres of Belton, therein stated to be held under General M'Cleverty as tenant from year to year, to secure £450. If the 10 acres 2 roods, held under the lease, are comprised in the 60 acres, the mortgage vested the lessee's estate in the lease in the mortgagees. Eliza Wilson made further advances to Samuel Wylie M'Dowell, which were secured by mortgages, dated 17th March, 1885, and 10th August, 1887, affecting the premises mentioned in the mortgage of 1884. She says she made those further advances without notice of the equitable deposit, and contends she is entitled to be paid in priority. In my opinion this contention is correct, provided she had not notice. A precisely similar question arose in Tennyson v. Sweeny, 7 Ir. Jur. 511, in which it was held the doctrine of tacking did apply to Ireland, and that a mortgagee with the legal estate making a further advance upon a secured mortgage was entitled to be paid in priority to an intervening incumbrance, of which he had not notice. It is said Mr. M'Ninch had notice before he prepared the second and third mortgages, and that he had then possession of the lease and conveyance for the equitable mortgagee, but this was in a previous transaction, occurring 15 months before. If he recollected the deposit he may have supposed that the only lands affected by the mortgagees were the tenancies from year to year, and that the 10 acres 2 roods were not included. He has not been examined, and it has not been suggested that he deliberately concealed the matter from his client and thus exposed himself to an action by her. The notice must be clear and distinct and amount, in fact, to fraud: Nixon v. Hamilton, 1 Ir. Eq. 46; Chadwick v. Turner, L. R. 1 Ch. 310; Hume v. Dodd, 2 Atk. 275. In my opinion Eliza Wilson has not been affected by notice through her solicitor. I do not think the mortgagees were guilty of negligence in leaving the lease and its conveyance in the possession of Samuel Wylie M'Dowell. He represeuted to them, as appears from the mortgagees, that the entire of the premises were held from year to year, under Lord Trevor and General M'Cleverty, and there would be no meaning in their asking for deeds which could have no existence if the premises were [Co. Cr. held as represented to them. As laid down by Sir George Turner in the case of Hewitt v. Loosemore, to which I have referred by Mr. Whitaker, a legal mortgagee is not to be postponed to an equitable one, upon the ground of not having got in the title deeds, unless there be fraud or gross and wilful negligence. Radcliff v. Barnard, L. R. 6 Ch. 652, is to the same effect. Eliza Wilson not having been guilty of negligence, and not having had notice of the equitable mortgage when the second and third mortgages were executed, is entitled to be paid in priority. Decree, that out of £195 in Court, Solicitor for the plaintiff: R. J. Porter. Reported by CHARLES DUNNE, Barrister-at-Law. (Before the RECORDER OF LONDONDERRY.) STERLING AND M'Carron v. LECKY. June 6, 1890.-Civil bill decree-Execution-Lodgment of writ of fi. fa. with sheriff-Warrant to special bailiff—Mercantile Law Amendment Act, s. 1. Civil bill by Samuel Sterling, auctioneer, and Robert M'Carron, special bailiff, against Henry Lecky, High Sheriff of the County, to recover the sum of £35, for that the defendant, through his bailiff, wrongfully took out of the plaintiffs' custody three head of cattle, legally seized by the plaintiffs under two warrants, dated May 1st, granted on foot of two civil bill decrees dated 9th April, obtained at the suit of Samuel Sterling, the present plaintiff, against one Thomas Cochrane. The facts were as follows:-On April 12th, 1890, a f. fa. against Thomas Cochrane had been lodged with the sheriff. The present plaintiff (Sterling), on foot of a civil bill decree against Cochrane, obtained a sheriff's warrant on 2nd May authorising a special bailiff to seize Cochrane's goods. The seizure was made accordingly on foot of the decree, but the sheriff then interfered on foot of the fi. fia. in his hands and sold. The point of law raised was whether the lodgment of the fi. fa. with the sheriff had the effect of attaching the goods, or whether the fact of the sheriff having issued a special warrant on foot of the civil bill decree, and the goods having been seized under same, did not override the effect of the lodgment of the fi. fa. with the sheriff. Mr. J. E. Proctor, solicitor for the plaintiff, quoted section of the Mercantile Law Amendment Act. Mr. Miller, solicitor for the sheriff, relied on the 12th section of the Statute of Frauds, which enacts that writs of execution shall bind property in goods from the time of delivery of the writ to the sheriff. The RECORDER held that the 1st section of the Mercantile Law Amendment Act did not regulate the priorities of judgments, inter se, but was intended to preserve the rights of purchasers, bona fide, buying the goods without knowledge of the execution lodged. Civil bill dismissed.† Decision was reversed on appeal at last Assizes in Belfast by Judge Andrews. + Decision affirmed on appeal at Londonderry Assizes, July 1890, by MURPHY, J. Denis Henry for plaintiffs and appellants. Сн.] In re O'GORMAN'S TRUSTS.-COBAIN v. Moore. HIGH COURT OF JUSTICE. CHANCERY DIVISION. Reported by JAMES J. SHEEHAN, Barrister-at-Law. (Before PORTER, M.R.) In re O'GORMAN'S TRUSTS. Feb. 26, March 1, 1890.-New trustees, appointment of Trustee appointed out of Court-Vesting order— Trustee Act, 1850 (13 § 14 Vict. c. 60), s. 10. The Court will not, for the purpose of making a vesting order, reappoint new trustees validly appointed out of Court. Where a trustee within the jurisdiction is entitled to trust property, jointly with a trustee out of the jurisdiction, and a new trustee has been duly appointed, the Court will make an order vesting the property in the two trustees within the jurisdiction. M'Carthy's Trusts, 1 L. R. Ir. 16, not followed. Petition for appointment of new trustees of a settlement dated the 15th June, 1880.-By the settlement in question, made on the occasion of the marriage of Chamberlayne O'Gorman with Dora Macintosh, a sum of £500 and two policies of insurance were assigned to Dora A. Peare and Henry Vesey Colclough, as trustees upon the trusts therein set forth, with power to Dora Mackintosh, or after her death to the surviving or continuing trustee, to appoint a new trustee or trustees of the settlement, if the trustees thereby appointed, or either of them, or any succeeding trustees, should die or desire to be discharged, or refuse or decline to act. The trustees, in pursuance of power given them by the settlement, laid out certain of the trust monies on mortgages of leasehold property. By deed dated the 20th March, 1882, Dora A. Peare retired from the trusts of said indenture, and Dora Macintosh duly appointed Thomas O'Gorman a new trustee of the settlement in place of Dora A. Peare, and the trust property was thereby vested in the new and continuing trustee. In 1883 Henry Vesey Colclough went to America, and continued to reside there permanently up to the date of the petition. Dora Macintosh died on the 12th November, 1886. By deed, dated the 6th May, 1889, Thomas O'Gorman appointed Josephine O'Gorman a new trustee of the indenture of settlement. But the trust property was not vested in the new and continuing trustee. One of the mortgagors, offering to pay off his mortgage, required a reconveyance, but his legal advisers objected that the trustees, Thomas and Josephine O'Gorman, were incompetent to reconvey until an order had been first made appointing them new trustees and vesting the trust property in them. The present petition was accordingly presented by Chamberlayne O'Gorman on behalf of the children of the marriage between Chamberlayne O'Gorman and Dora Macintosh, seeking to have Thomas and Josephine O'Gorman appointed new trustees of the indenture of settlement and to have the trust property vested in them. M. J. Bourke for the petitioners. Although the trustees have been validly appointed out of Court the Court has power to reappoint them and vest the property in them. That was done by the Court of Appeal in England in In re Dagleish's Trusts, 4 Ch. D. p. 143, followed in Ireland in M'Carthy's Trusts, L. R. Ir. I. 16. [Porter, M.R.—Those cases have not been followed by the Court of Appeal in England in the case of [Q. B. Vicat's Trusts, 33 Ch. Div. 103, and Dewhirst's Trusts, ib., 416. I have no jurisdiction to reappoint new trustees who have been validly appointed out of Court.] Those cases seem conclusive against so much of the petition as seeks the reappointment of Thomas and Josephine O'Gorman. The portion which seeks a vesting order is maintainable under sections 10 and 22 of the Trustee Act of 1850. The fact that the trustees were appointed out of Court does not affect the jurisdietion: In re Marquis of Bute's Will, Johns 15. There, as in the present case, a trustee within the jurisdiction was entitled to trust property jointly with a person outside the jurisdiction, and a new trustee had been appointed within the jurisdiction by the donee of the power. The Court there made the order vesting the property in the two trustees within the jurisdiction. A similar order was made in Smith's Trusts, 3 Drew. 72. He also cited Lewin on Trusts, 8th ed., 1017; Seaton, Decrees, 4th ed., 504, 509. POKTER, M.R.-The difficulty I experienced in this case is not met by the cases of Smith's Trusts or the Marquis of Bute's Will because the lands are not vested in trustees, except as a security for the mortgage money, and the section which deals with mortgages, sec. 19, is inapplicable. In those cases there was no question as to mortgages at all. Lord Romilly, in Re Osborne's Mortgage Trusts, 12 Eq. 392, held that section 10 does not apply to the case of a mortgage, owing to the occurrence in the section of the word trustee. However, he puts as a case, in which the Court would probably make an order under the section where the advance has been made out of the trust funds and a new trustee has been appointed in consequence of one of the trustees being resident out of the jurisdiction; and in Barber's Trusts North, J., seems to have made an order (under sec. 9; Sole trustee out of jurisdiction), and the language of the two sections is similar. The definition of trust (sec. 2) excludes the duties incident to any estate conveyed by way of mortgage, but that may well mean only such incidental duties and trusts springing therefrom by implication, leaving the case of a mortgage held upon express trusts to the operation of the Act. On the whole, I think Lord Romilly was right in the passage I have quoted, and this is a case within section 10. I shall make the order accordingly. Section 22 clearly applies to the choses in action. ORDER: This Court doth order that the lands comprised in the mortgages of the 2nd day of August, 1881, 9th day of September, 1881, and 13th day of May, 1883, in the petition mentioned, whereof Thomas O'Gorman is seized or possessed jointly with Henry Vesey Colclough, subject to the provisions of the said mortgages and to the trusts of the indenture of settlement in the petition mentioned, do vest, and same are hereby vested in Thomas O'Gorman and Josephine O'Gorman as trustees of the said indenture of settlement, for the estates therein of the said Thomas O'Gorman and Henry Vesey Colclough. Solicitor for petitioners: P. J. McCarthy. QUEEN'S BENCH DIVISION. Reported by W. MOORE, Barrister-at-Law. (Before WARREN, J., sitting for Q.B. and Exch. Divisions.) COBAIN v. MOORE. June 8, 1890.-Practice-Remitting action in tort to inferior Court-Error in notice of motion-Power of Court to amend-C. L. P. A. Act, 1870, s. 6. |