It was admitted, however, that the defendant's solicitor had informed the plaintiff that the deed of 1839 was a voluntary conveyance.

The time for the defendant to deduce a good title according to the said contract had elapsed before action.

The question for the Court was, whether the defendant had deduced a good title.

C. Bowen for the plaintiffs.-The question is not whether the title is good as soon as the purchaser chooses to take a conveyance from the defendant, but whether the title deduced is to be forced on the plaintiff, when its goodness depends on facts altogether beyond his knowledge. A purchaser is not bound to take a title the validity of which depends on a doubtful state of facts-Simmons v. Heseltine (1), and it follows that equity would not compel him to take such a title as this, depending on the invalidity of a voluntary

settlement

Dart's Vendors and Purchasers (last edition), 892, and the cases there cited. There may have been a consideration for the alleged voluntary conveyance, though it does not appear on the face of the deed, or the conveyance may have been made good by subsequent consideration-Prodgers v. Langham (2). Again, the defendant grantor cannot allege the invalidity of her own voluntary grant for the purpose of getting rid of it when it suits her purpose-Johnson v. Legard (3). In Peter v. Nicolls (4), which may be cited as in the defendant's favour, a title had been acquired under the Statute of Limitations.

Cave for the defendant.--Though equity will not interfere to assist a voluntary settlor in undoing his own settlement, as is laid down in Smith v. Garland (5), on the other hand it will not restrain him. Pulvertoft v. Pulvertoft (6) shews the

(1) 5 Com. B. Rep. N.S. 554; s. c. 28 Law J. Rep. (N.s.) C.P. 129.

(2) 1 Sid. 133.

(3) 6 M. & S. 60.

(4) Law Rep. 11 Eq. 391.

(5) 2 Mer. 123.

(6) 18 Ves. 84.

principle principle on which the Courts of Equity act in such cases. This was a good title if the plaintiff chose to take it, and according to Butterfield v. Heath (7), a purchaser from the plaintiff could be forced to take it. His own readiness and willingness to accept, are alone wanting to make it perfectly valid. If he is ready and willing to accept, the defendant is ready and willing to give a good title. He cannot recover his deposit without showing he is prepared to accept the title. In an abstract it is only necessary to set out deeds which have been executed affecting the title; here nothing is shewn outstanding, but what is on the face of it, an inoperative voluntary conveyance. Peter v. Nicolls (4) shews that the plaintiff could not in equity set up his contention successfully. The mere suggestion of a doubt will not deprive the vendor of his right to a completion-Stevens v. Austen (8). But the question for the Court here is not whether a doubtful title would be forced by equity on an unwilling purchaser, but whether the title here was good or bad. The other cases cited by Dart are distinguishable.

Bowen, in reply.

Cur. adv. vult.

The judgment of the Court was (on June 21) delivered as follows-

BRAMWELL, B. — In this case I have come to the conclusion that the deed of 1839 was a voluntary settlement; but, notwithstanding that, I think the plaintiff's preliminary point is a good one, and that our judgment must be for him. The abstract was perhaps properly drawn, and it shewed no title in the defendant. It is admitted, as the fact was, that the defendant's attorney had informed the plaintiff that the deed referred to was a voluntary conveyance, but still the plaintiff was entitled to require reasonable evidence of it. He made a requisition to that effect by the letter of the 2nd of May,

(7) 15 Beav. 408; s. c. 22 Law J. Rep. (N.s.) Chanc. 270.

(8) 3 E. & E. 685; s. c. 30 Law J. Rep. (N.s.) Q.B. 212.

and no notice was taken of the letter. Then, assuming that (as we now know) it was a voluntary settlement, and that the defendant might confer a title upon the purchaser for valuable consideration, what is there to shew the plaintiff had reasonale evidence of that? Nothing at all. Therefore on that ground alone I should think the plaintiff entitled to our judg

ment.

But on the more substantial part of the case, I think the plaintiff ought also to succeed. I do not think the defendant is estopped from setting up that the deed is void, for I cannot think she is alleging any great amount of moral turpitude, when she says that this deed made in 1839 in favour of herself and the other parties to it who are all since deceased is void. But still she is asking the plaintiff to take a title doubtful upon the facts (which I doubt extremely whether she has any right to do), and beyond that, she is asking him to help her to make a title, and I cannot think she has a right to do that. Though it be true that this was a voluntary settlement without consideration, and that the plaintiff, if he had chosen, might have had a good title, how is he bound to make it good by his own act in accepting it? It ought to be good at the time of his being offered it. A purchaser under such circumstances might find himself heir or devisee of one of the persons benefited by the voluntary settlement. In that case the property would come to him for nothing. Would he be bound in such a case as that to pay for the estate which otherwise would come to him for nothing? If he is not bound in one case, he is not bound in any case.

It is hardly worth while going through the cases which have been cited from the Equity Courts. They shew that such a title as this could not be forced upon the plaintiff; but that may be not because a Court of Equity would regard it as not a good title, but because it would not assist a settlor to undo his own settlement. Why they should not assist him to do it if he has the right, I do not know. That is one of the mysteries of equity that we never hope to get to the bottom of. Treating it as a common

law question it appears to me the defendant has shewn no title, and she cannot force the plaintiff to make one for her. On the grounds I have mentioned, I think that the plaintiff is entitled to our judgment.

CLEASBY, B.-I am of the same opinion. It is important to bear in mind with reference to deeds of this description, that, as was said by Lord Eldon in Johnson v. Legard (3), "persons who make voluntary settlements, and those who are called volunteers, may come to such future bargains as to make that which was originally voluntary to be no longer so considered." That throws a difficulty about the title at once, for all that appears upon the abstract here is that the deed was without consideration, but this does not make it necessarily void. Its validity depends on facts not ascertained; and that is sufficient to justify the purchaser in refusing. Then as to the main question, we know very well that when it arises in the form of the vendor attempting to impose such a title upon the purchaser, he cannot do it. That has been decided and is settled. Equity will not restrain a voluntary settlor from selling, but on the other hand, it will not help him in any way to frustrate his own deed; and when the title depends on the invalidity of the previous voluntary settlement, it will not at the suit of the author of that instrument decree the specific performance by the subsequent purchaser. The purchaser may say, "it is for you to make a good title, and you do not." That seems to me to apply to the present case; and as the defendant has in this case not made out a good title upon the agreement, the plaintiff is not bound to take the title offered, and is entitled to recover back his deposit.

[IN THE EXCHEQUER CHAMBER.] (Appeal from the Court of Exchequer.)

1872. June 24, 25.

}

ANTONY v. THE BRECON
MARKETS COMPANY.

Towns Improvement Clauses Act (10 & 11 Vict. c. 34), ss. 125, 129-Slaughter House-Local Act-Consent of Corporation -License of Local Board.

Certain clauses of the Towns Improvement Act, 1847, incorporated in the Public Health Act, 1848, provide that no slaughterhouse shall be erected without the license of the Local Board of Health. Under the Local Government Act, 1858 (which is to be read as one with the Public Health Act, 1848), the corporation constituted the Local Board of Health for B. A local Act passed subsequently provided that a company formed thereby for the purpose of managing the property of the Corporation of B. might with the consent of the Corporation erect slaughter-houses in the borough of B.

The company erected slaughterhouses under the local Act with the consent of the Corporation testified by writing duly signed, but the Corporation afterwards when acting as the Local Board under the Act of 1858, refused to license the buildings as slaughter-houses :-Held (reversing the decision of the Court of Exchequer), that the consent given by the Corporation under the local Act included the license required by the Towns Improvement Act.

This was an appeal from a decision of the Court of Exchequer, making absolute a rule to set aside the verdict found for the defendant, and to enter it for the plaintiff (1).

The cause

was tried before Pigott, B., at the Breconshire summer assizes, 1866. The plaintiff was lessee of certain tolls and premises, and sought, among other alleged causes of complaint, to recover damages in respect of an alleged want of title in the defendants, his lessors, to let the tolls of the slaughter-houses in the borough of Brecon, and his consequent deprivation of the receipt and enjoyment thereof under the following circumstances. By a local Act (1 & 2 Vict. c. xii.)

(1) 36 Law J. Rep. (N.s.) Exch. 113. NEW SERIES, 41.-EXCHEQ.

"for providing market places and for regulating the markets within the borough of Brecon," reciting that the markets for supplying the inhabitants of the borough and neighbourhood thereof with corn, grain and agricultural produce, fish, poultry and other provisions, and with live and dead stock and certain other commodities, had been long held in the principal streets and other public thoroughfares within the borough, whereby the same were obstructed and rendered dangerous and inconvenient to the inhabitants and the public at large, and that the market for buying and selling butcher's meat and also cheese, butter, seeds, hops and other things had been usually held in an enclosed space under the Guildhall, and that the Corporation of the said borough were willing and desirous to erect a proper market place and buildings for the sale of meat, fish, &c., with proper stalls, standings and other accommodation therein--the corporation were authorized to purchase certain lands, and to appropriate the same for the erection of market houses and market places, and to erect slaughter-houses; and forthe purpose of enabling the corporation to raise money to execute the purposes of the Act they were further authorized to borrow at interest on the credit of certain tolls, rents and stallages, specified in a schedule annexed to the Act, such sums as they should think necessary, and to assign such scheduled tolls, &c., by way of mortgage, and to raise other moneys for the same purpose by mortgage or sale of their other corporate property.

By a subsequent local Act (25 & 26 Vict. c. clxxxvi.), entitled The Brecon Markets Act, 1862,―reciting, amongst other things, that the Corporation under the powers of the first mentioned Act had provided a market house, but had not provided any slaughter-house, and it was expedient that a company should be authorised to provide a new market place in the borough for the cattle market and slaughter-honse, and to acquire lands for the purpose, &c., the defendant company was incorporated for the above purposes, and the first mentioned Act obtained by the Corporation was repealed. The Act also provided that the Companies Clauses

2 D

Consolidation Act, 1845, and the Lands Clauses Consolidation Act, 1845, and the Lands Clauses Consolidation Amendment Act, 1860, and the Markets and Fairs Clauses Act, 1847 (save as thereby expressly excepted or varied), should be respectively incorporated therewith.

The Act contains the following provisions

By section 64 the company may make, provide and maintain upon any lands by or under this Act from time to time vested in or acquired by them a proper and sufficient place for holding the cattle market and all such approaches, and proper and convenient works and conveniences connected there with and thereto as they think fit, and may appropriate for the purpose any of those lands.

By section 65 the company from time to time, if, and when they think fit, and with but not without the consent of the Corporation testified by writing under the hand of the mayor or town clerk, may provide and maintain slaughter-houses proper and sufficient for the slaughtering of cattle for the supply of the borough and its neighbourhood upon such sites as they think expedient, but if any slaughterhouses be provided, they should be provided as near as conveniently may be to the cattle market place provided under this Act, and the slaughter-houses so provided be deemed part of that market place.

By section 66 the company may provide and maintain upon any lands by or under this Act from time to time vested in or acquired by them a proper and sufficient place for holding the corn market and all such proper and sufficient works and conveniences connected therewith and approaches thereto as they think fit, and may appropriate for the purpose any of those lands.

By section 76 the company from time to time may demand and take from every person slaughtering in any slaughterhouse of the company such tolls as the company from time to time appoint, not exceeding the tolls in that behalf specified in the 3rd schedule to this Act annexed.

By section 81 the several tolls, rents and stallages by the Act authorized to be demanded and taken by the company, are

by this Act vested in the company as their own proper moneys.

By section 82 the company from time to time may let the markets and fairs and the market houses and market place, and places for fairs, and the shops, stalls, stages, standing places and other conveniences therein, and the slaughter-houses, weighing places, weighing machines, weights, scales and measures, and the tolls, rents and stallages, or any of them, or any part thereof respectively, to any person for any period not exceeding three years on such terms and conditions as are from time to time agreed between the company and the lessee.

By section 85 the inspector of provisions or other officer appointed by the company, with or without assistants, from time to time may enter into or inspect any building or place in the borough which he has reason to believe is used for slaughtering any cattle.

By the Local Government Act, 1858 (21 & 22 Vict. c. 98), which amended and formed part of the Public Health Act, 1848 (11 & 12 Vict. c. 63), the provisions of section 61 and such parts of section 62 of the 11 & 12 Vict. c. 63 as empower the Local Board to make bye-laws with respect to all slaughter-houses are repealed, and the provisions as to slaughter-houses contained in the Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34), are incorporated with the Local Government Act, 1858.

The provisions as to slaughter-houses so incorporated, are contained in the 125th and following sections of the Towns Improvement Clauses Act, 1847. The commissioners mentioned in those sections being by virtue of the 7th section of the Local Government Act, 1858, deemed and taken to be the Local Board of Health in all districts under the Public Health Act, 1848, and the limits of the special Act the limits of the district of such board.

The 125th section of the said Towns Improvement Clauses Act, 1847, enacts that the commissioners may license slaughterhouses as they from time to time think proper for slaughtering cattle within the limits of the special Act, and by the 126th section, it is further enacted that no place

shall be used or occupied as a slaughterhouse within the said limits, which was not in use at the time of the passing of the special Act, and has so continued ever since, unless and until a license for the erection thereof, or for the use and occupation thereof as a slaughter-house, have been obtained from the commissioners, and proceeds to impose a penalty on any person so using the same.

Before the passing of the Brecon Markets Act, 1862, by the Act 13 & 14 Vict. c. 32, confirming a provisional order of the General Board of Health, the Public Health Act, 1848, had been duly applied to the borough of Brecon, and the corporation of that borough became and were the Local Board of Health for the district comprised in the said borough.

It was proved at the trial that, under the provisions of the Brecon Markets Act, 1862, a new slaughter-house had been provided by the defendants upon a site as near as conveniently might be to the cattle market place provided under the last mentioned Act, convenient and sufficient for the slaughtering of cattle for the supply of the borough and its neighbourhood. On the 14th of May, 1863, the consent in writing of the corporation was applied for and obtained by the defendants, such application purporting to be under section 65 of the Brecon Markets Act, 1862. The document itself being lost, secondary evidence of the contents was given at the trial, from which it appeared that such consent was in the form of a resolution of the Town Council signed by the town clerk, giving permission to the defendants to provide and maintain slaughter-houses under the 65th section of the Brecon Markets Act, 1862. The consent did not specify any particular slaughter-houses, and at the time when this consent was given, the site had not been determined upon. On the 14th of December, 1864, the tolls of the slaughter-house so erected by the defendants, together with those of the markets, were let to the plaintiff for one year from January, 1865,-the defendants purporting to let them under the provisions of the 82nd section and 83rd section of the Act (having duly given the notices, &c., thereby required)-for the sum of 4851. The plaintiff thereupon en

tered into possession of the said premises, and received during the term certain sums of money, as and for tolls for the use of the said slaughter-house, such sums being the amounts authorised by the schedule to the last mentioned Act, and he continued in actual possession of the slaughter-house to the end of the term for which the same was demised to him.

It appeared, however, that during the period whilst he was lessee of the tolls, &c., from the defendants, and occupied the slaughter-house, the license of the Local Board of Health had not been obtained for its erection nor for its use and occupation as a slaughter-house, and the superintendent of the borough police, who was also inspector of nuisances, had received instructions so far back as 1864, from the Local Board of Health, to prevent slaughtering in this slaughter-house, and had prevented it as far as he could during the time of plaintiff's occupation of the slaughter-house, by threatening legal proceedings, and although some persons had slaughtered there during that time, yet others would not go there for fear of being summoned by the said superintendent. No proceedings were ever in fact taken by him in the matter against any person for so using the slaughterhouse, but it was found by the jury that the plaintiff had thus sustained a loss of about 171.

Pigott, B., directed a verdict to be entered for the defendants, with leave to the plaintiff to move to enter a verdict for 177. damages on the ground above stated.

A rule was obtained accordingly which was subsequently made absolute (2) by the Court of Exchequer, from whose decision the defendants had appealed.

Dowdeswell (G. B. Hughes with him) contended for the appellants that on the evidence, the finding of the jury and the proper construction of the statutes, they had a good and sufficient title to let the tolls to the plaintiff; that the consent of the corporation, signed by the town clerk, was a sufficient license; that the special provisions of the local Act override the general Act; and that at any rate the

(2) 36 Law J. Rep. (N.s.) Exch. 113.