hands, the Court had jurisdiction to direct its restitution by him; that in cases of fraud courts of equity have concurrent jurisdiction with courts of law; that the remedy at law having been lost by the concealment of the fraud was of itself a ground for the interference of this Court; that, in a case of this nature, the innocent party could not be separated from the guilty, the question in fact being, of two innocent parties, which was to be the sufferer by the fraud committed. [They cited Colt v. Woollaston, (2 P. W. 154); Booth v. Lord Warrington, (4 Bro. P. C. 163); Pulteney v. Warren, (6 Ves. 73); Evans v. Bicknell, (Id. 174); Burrows v. Locke, (10 Ves. 475); Short v. McCarthy, (3 B. & Ald. 626); East India Company v. Campion, (11 Bligh, 158); Grant v. Grant, (3 Russ. 598); Willet v. Chambers, (Cowp. 814); Marsh v. Keating, (8 Bligh, 65, and 2 CI. & Fin. 250); Lovell v. Hicks, (2 You. & C. (Exch.) 472); Brydges v. Branfill, (12 Sim. 369); Sadler v. Lee, (6 Beav. 324, and 7 Jur. 426); Pannell v. Hurley, (2 Col. 241).]

certainly he had ample means of knowing it; but it is unnecessary to rely on either of these considerations, for the duty of laying out the money was in the ordinary course of the business of the partnership which they had undertaken, and in that case I agree with what is laid down by the Master of the Rolls in Sadler v. Lee, (6 Beav. 330), that all the partners become liable for the several acts of each. In Sadler v. Lee, the act was abusing the power which the owners of the fund had conferred on the several members of the firm by the power of attorney: in this case the act is representing that the 45007. had been invested in certain securities. What was the effect of such representation? Precisely the same, according to Sir William Grant, as the actual existence of the fund upon the day on which the stock was sold out. Now, in the present case, the misrepresentation continued until the fraud was discovered. The case, therefore, according to Sir William Grant, is the same as if on that day the fund, having been previously invested, had been called Romilly, Bacon, and Craig, for the defendant, stated in and received by Messrs. Bromley, in which case there the question as being, to what extent an innocent party would have been no question as to the Statute of Lican be made liable for the fraud of one to whom he mitations. Those who have a duty to perform, represtands in the relation of partner; that, so far as the case senting to those who are interested in the performance rested in contract, one partner would be clearly liable of it, that it has been performed, make themselves refor the act of his co-partner, but this rule did not apply sponsible for all the consequences of non-performance. to cases of fraud; that, admitting the defendant's lia- Such was Brown v. Southouse, (3 Bro. C. C. 107), which bility in 1829, when the money was paid to the part was the case of an account. Such was Evans v. Bick nership, admitting that it existed at the time of the dis-nell, (6 Ves. 174), where Lord Eldon lays down the solution of the partnership in 1834, and admitting fur ther that this liability continued for six years after such last period, yet beyond this the defendant could not be charged; that there was never anything more than a simple contract debt, and that it was liable to all the attributes of such a debt; that in fact the plaintiff's remedy was at law; that to hold the defendant liable in the present case would be to visit him with the consequences of the fraud of his co-partner, and that this had been done in no previous instance; that the Statute of Limitations created a bar to this demand, and must receive the same construction in equity as at law; that the only cases in which it had been held not to be a bar were those in which it was sought to be made use of by the party committing the fraud; that the misrepresentations made could not be treated as made by the partnership unless it was impossible to separate the the act which created the debt from that which constituted the fraud, thus creating a disability as well as a contract. They also urged, that the principles on which the Court administered relief rested on high moral grounds, but that to bring a party under the consequences of a criminal act who was not an actor in it, would be a departure from such grounds. [They cited and commented upon the following cases in addition to those cited by the plaintiffs:-Hern v. Nicholls, (1 Salk. 289); South Sea Company v. Wymondsell, (3 P. W. 143); Beckford v. Wade, (17 Ves. 97); Hovenden v. Lord Annesley, (2 Sch. & Lef. 607); Bruce v. Holditch, (Doug. 654); Brown v. Howard, (2 B. & B. 73); Sandilands v. Marsh, (2 B. & Ald. 673); Battly v. Falkner, (3 B. & Ald. 288); Bond v. Gibson, (1 Camp. 185); Duncan v. Lowndes, (3 Camp. 478); Howell v. Young, (5 B. & C. 259); Hume v. Bolland, (1 C. & M. 130); Foley v. Hill, (1 Phil. 399).]

rule generally. And Lord Hardwicke further ap plied it to the case of a scrivener who had undertaken to lay out money. The principle is, indeed, deeply rooted in equitable jurisdiction, as may be seen in Middleton v. Middleton, (1 Jac. & W. 94), and Lut trell v. Olmins, referred to in Mestaer v. Gillespie, (11 Ves. 638). What, then, is the nature of the liability which thus arises from the misrepresentation? A guarantee that the parties whose interest might be affected by the misrepresentation shall be placed in the same situation as if the fact represented were true. The misrepresentation was fraudulently made for a fraudulent purpose; but the consequence is merely single liability; and as one partner may certainly bind another as to any matter within the limits of their joint business, so he may by an act, which, though not constituting a contract by itself, is in equity considered as followed by all the consequences of a contract. I am, therefore, of opinion that William Bromley's partner, if he had had no knowledge or means of knowledge of the misrepresentation, would have been affected by this equity arising from it, and that time did not begin to run against the plaintiff's right till the discovery of the fraud. What I have already stated, and the cases to which I have referred, make it unnecessary to say much on the objection that the plaintiff's remedy, if any, is at law. In all these cases the effect of the misrepre sentation raises an equity to restore the parties deceived to as nearly as possible the situation in which, but för the misrepresentation, they would have stood, and for which damages in an action might be a very inadequate remedy. It is no objection to this equity, that the facts may also support an action. It is more than 120 years since a similar objection was made in Colt v. Woollaston, (2 P. W. 154), and overruled. therefore, of opinion, that the decree of Vice-Chancellor Wigram must be affirmed,-and with costs. July 7-LORD CHANCELLOR.-The payment of the The Vice-Chancellor having given interest at 5%. per 4500%. into the hands of William Bromley and his part-cent., Mr. Romilly asked that it should be reduced to ner for the purpose of re-investment has been proved, and their liability in that respect is not disputed. Afterwards William Bromley, one of the partners, represented that he had invested the sum, and he paid the interest and made charges in his bill of costs for some of the expenses incident thereto. There is strong evidence that the defendant knew of the transaction, and

Bethell, in reply, cited Rapp v. Latham, (2 B. & Ald. 795).

I am,

47. 10s. per cent., on the ground, that the interest paid by William Bromley was only after that rate; but the Lord Chancellor refused to vary the decree in this respect, saying, "if the party who makes a misrepresentation is visited only with interest, it is always 51. per cent.”

SMITH V. BARNEBY.-July 7 and 9. Will-Construction-Personal Representative. Testator, after devising certain Freehold Estates in Trust for A., in strict Settlement, with Remainder to B., in strict Settlement, with Remainder to his own right Heirs, gave Leasehold and Copyhold Property (of the Nature of Personalty) upon similar Trusts, yet so that the same should not vest absolutely in any Child of a Tenant for Life, unless such Child should attain Twenty-one," and so that, in Default of any Person becoming entitled thereto under this my Will, the same shall be in Trust for my Personal, and not my Real, Representative." And the Testator gave the Residue of his Personal Estate to his Wife, and appointed her sole Executrix of his Will:-Held, that the Representative of the Widow was entitled to the Leasehold and Copyhold Property, to the Exclusion of the Next of Kin of the Testator.

This was an appeal from the decision of Knight Bruce, V. C., upon a question relating to the construction of the will of Thomas Newnham, dated the 8th October, 1819. The testator, after referring to and confirming his marriage settlement, whereby he was entitled to certain real estates in fee after the decease of his dear and loving wife, Penelope Newnham, and failure of issue by her, devised all his freehold, leasehold, and copyhold estates, not comprised in the settlement, to trustees, upon trust, as to his lands at Broadwas, to raise money for a particular purpose; and, subject thereto, in trust for his dear and loving wife, Penelope, her heirs and assigns, for ever; and as to, for, and concerning all other the property so given to his trustees, upon trust to pay fines for renewals, chief rents, &c., and to permit the rents to be received by his said wife Penelope, and her assigns, for life, or during his term therein, with power to fell timber and sell the same for her benefit. After the decease and failure of issue of his wife, he gave all his lands to the same trustees, upon trust as to the leaseholds and copyholds to pay the rents and perform the covenants, &c.; and subject thereto, upon the trusts after mentioned, and as to such parts of his estates in Broad was and Doddenham as were freehold, n trust to permit his niece Charlotte Elizabeth Steward, and her assigns, during her life, to receive the same; and, after her decease, in trust for her first and other sons in tail, with remainder to her daughters as tenants in common in tail; remainder in trust for his niece, Mary Anne Steward, and her sons and daughters, in similar manner; with remainder in trust for his nephew Thomas Steward, and his sons and daughters, in similar manner; and, in default of such issue, upon trust for his (the testator's) own right heirs, for ever. The will then contained the following clause concerning all such parts of his estate in Broadwas and Doddenham as were leasehold and copyhold:-" Upon such trusts, and for such intents and purposes, as, allowing for the different nature and quality of the estates, will best and nearest correspond with the trusts, intents, and purposes hereinbefore by me declared of the freehold part of my said messuage and other hereditaments at Broadwas aforesaid, so that the said leasehold and copyhold estates may be enjoyed by the person or persons for the time being entitled, under this my will, to the said freehold part of the said messuage and other hereditaments, and may go along with the same, so far as the rules of law and equity will permit; yet so, nevertheless, that the said leasehold and copyhold estates shall not, as to the effect or purpose of transmission, vest absolutely in any child of any person hereby made tenant for life, unless such child shall live to attain the age of twenty-one years; and so that, in default of any person becoming entitled thereto under this my will, the same shall be in trust for my personal, and not my real, representative." The testator, after revoking the trust in favour

of Charlotte Elizabeth Steward, on an event which did not happen, and giving to the trustees a power of sale, with the consent of the wife, gave to his wife Penelope certain specific articles, and also all his money and securities for money, and all other his personal estate and effects whatsoever and wheresoever, (except what he had otherwise disposed of by that his will), upon trust to sell, and out of the proceeds to pay his debts, funeral and testamentary expenses, and to raise certain sums of 3000l. and 1000l.; and in case there should remain any surplus of the said trust monies, after payment of his debts and funeral expenses, and the expense of proving his will and the two legacies of 3000l. and 1000%, then he gave and bequeathed such surplus to his said wife Penelope, her executors, administrators, and assigns, for her and their own proper use and benefit. The will then provided for the raising of those two sums, in case the residue should be deficient. The 3000l. was a legacy to the wife, and the 1000l. to the trustees, to invest and pay the dividends to the wife for life, and, after her decease, to transfer the capital to Mary Ann Steward, her executors, administrators, and assigns. And the testator constituted and appointed his said wife Penelope sole executrix of his will. The testator died shortly after the date of his will, leaving his wife Penelope, his nephew Thomas Steward, who was his heir-at-law, and Charlotte Elizabeth and Mary Ann Steward (the nieces mentioned in the will), who, with their brother Thomas Steward, were the testator's next of kin, him surviving. The widow died in 1821. The nephew and nieces died after the widow without leaving issue, Charlotte Elizabeth being the survivor. The copyhold estate was admitted to be of the nature of personal estate. Under these circumstances, the trustees filed a bill to obtain the decision of the Court on the construction of the will, and on the consequent rights of the various parties claiming to be interested in the testator's estate. The principal question was, who were entitled under the trust" for my personal, and not my real, representative;" whether the widow, as the testator's residuary legatee, or the next of kin of the testator living at his death, or his next of kin living at the death of the surviving tenant for life. The cause came on before the Vice-Chancellor, in July, 1846, when his Honor held that the representative of the widow was entitled to the exclusion of both classes of next of kin, there being nothing in the will to deprive the words "personal representative" of their general meaning as executors or administrators. The case will be found reported 2 Col. 728; and 10 Jur. 748.

J. Parker and Faber, for the representatives of C. E. Steward, contended, on the result of the cases, that, under the words "personal representative," the next of kin of the testator living at his death were entitled. [They cited and commented upon Thomas v. Hole, (Ca. temp. Talb. 251); Pyot v. Pyot, (1 Ves. sen. 335 ); Worsley v. Johnson, (3 Atk. 758); Doe d. Garner v. Lawson, (3 East. 278); Jennings v. Gallimore, (3 Ves. 146); Long v. Blackall, (Id. 486); Holloway v. Holloway, (5 Ves. 399); Bridge v. Abbott, (3 Bro. C. C. 224); Sturt v. Platel, (5 Bing. N. C. 434); Baines v. Ottey, (1 My. & K. 465); Palin v. Hills, (Id. 470) Cotton v. Cotton, (2 Beav. 67); Withy v. Mangles, Beav. 358); Boydell v. Golightly, (9 Jur. 2); Minter v. Wraith, (13 Sim. 52); Nicholson v. Wilson, (14 Sim. 549); Williams' Executors, vol. 2, p. 820.]

Lee and Chapman Barber, for the next of kin living at the death of the surviving tenant for life, repeated, in substance, the same arguments which they addressed to the Vice-Chancellor, and a full outline of which is given in the report of the case, 10 Jur. 748,750. [They cited and commented upon the following authorities, in addition to those before mentioned:-The AttorneyGeneral v. Johnstone, (Amb. 577); Evans v. Charles, (1 Anst. 128); Doe v. Tofield, (11 East, 246); Marsh

v. Marsh, (1 Bro. C. C. 293); Jones v. Colbeck, (8 Ves. 38); Bird v. Wood, (2 S. & S. 400); Mounsey v. Blamire, (4 Russ. 384); Briden v. Hewlett, (2 My. & K. 90); Butler v. Bushnell, (3 My. & K. 232); Clapton v. Bulmer, (5 My. & C. 108); Daniel v. Dudley, (1 Phil. 1); Booth v. Vicars, (1 Col. 6); De Beauvoir v. De Beauvoir, (10 Jur. 466).]

surplus of the realty was to go to his real representative. The case seems to me to be free from all reasonable doubt, and that the decision of the Vice-Chancellor is right. The only part of the judgment with which I do not agree is, that there is any doubt as to whether this gift might not be void for uncertainty. The appeal must be dismissed, with costs.

ROLLS COURT.

FENWICK V. GREENWELL.-July 12.
Liability of Trustees.

It was recited in a Marriage-settlement, that it was
agreed that 5000l. Consols, Part of the Lady's Estate,
should be transferred to Trustees, and a Covenant was
entered into for the Transfer thereof accordingly, upon
Trusts for the Benefit of the intended Husband and
Wife, and the Children of the Marriage. At the Date
of the Settlement, a Sum of 49461. 2s. 8d. Consols only
was standing in the Name of the Lady. The Trustees
neglected to get in this Sum, or to enforce Perform-
ance of the Covenant; and the Fund was long after-
wards sold out by Husband and Wife, and the Pro-
ceeds appropriated by them:-Held, at the Suit of a
Child, that the Trustees were liable, to the Extent of the
49461. 28. 8d., to make good the Amount agreed to be
settled.

The LORD CHANCELLOR, (without calling on counsel in support of the decision of the Vice-Chancellor).—I have no doubt as to what I ought to do in this case. The argument used to shew that the widow is not entitled, and that the next of kin are entitled, has not succeeded in throwing any doubt upon the accuracy of the Vice-Chancellor's judgment. The widow claims under the residuary gift, the terms of which are peculiar; and the observation has been made, that they are not intended to include the property now in question. It has, however, been held not to be necessary that such intention should be expressed, for the intention is taken to be, that, whatever is not disposed of, is to go to the residuary legatee. The testator gives to his wife, Penelope, all his money and securities for money, and all other his personal estate and effects whatsoever and wheresoever, except what he had otherwise disposed of by his will. [His Lordship read from the will the clause disposing of the residue.] The personal estate consisted of leaseholds and general personal property, the former being directed to go upon the same trusts and purposes as the real estate; and contem- By the settlement made on the marriage of Elizabeth plating that these purposes might fail, the testator Cuthbertson with Barnabas Fenwick, dated the 4th added," and so that, in default of any person becoming October, 1806, and made between the said E. Cuthbertentitled thereto, the same shall be in trust for my per- son of the first part, Barnabas Fenwick of the second sonal and not my real representative." The testator, part, and William Cuthbertson and William Thomas in making a gift of the residue, gives " all, except what Greenwell of the third part, after reciting that a marhe had otherwise disposed of;" and this has been said riage was intended shortly to be had and solemnised beto exclude the property out of which he had given a tween the said Barnabas Fenwick and Elizabeth Cuthparticular interest. This construction, however, can-bertson; and that in consideration of the said intended not be maintained. [His Lordship here referred to the marriage, and for making some provision for the said different clauses in the will, and added:-] There is a Elizabeth Cuthbertson, in case the said marriage should complete residuary gift, and one which is incapable of take effect, and the said Elizabeth Cuthbertson should any limited construction. The testator having, by a happen to survive the said Barnabas Fenwick, and for prior disposition, given freehold estate on certain trusts, the issue of the said marriage, in case she should die in with an ultimate limitation, if those trusts should fail, his lifetime, it had been agreed between the said parties in favour of his right heirs, and having leasehold, and that the sum of 5000l. 31. per Cent. Consolidated Bank copyhold estate of the nature of leasehold, he directs Annuities, part of the estate and effects of the said these to go upon such trusts, and for such intents and Elizabeth Cuthbertson, should be settled upon the purposes, as, allowing for the different nature and qua- trusts, and subject to the provisoes and agreements, lity of the estates, will best and nearest correspond thereinafter mentioned concerning the same; and that, with the trusts, intents, and purposes before declared in order to carry the said agreement into execution, it of the freehold part of his estate, so that the said lease- was intended that the sum of 50007. Bank Annuities hold and copyhold estates may be enjoyed by the per- should be transferred to the said William Cuthbertson son or persons for the time being entitled to the said and William Greenwell, and that the same should be freehold, and may go along with the same, so far as the entered in their joint names in the proper books kept rules of law and equity will permit; "yet so, neverthe- for such purposes at the Bank of England, which less, that the said leasehold and copyhold estates shall transfer the said Barnabas Fenwick did thereby covenot, as to the effect or purpose of transmission, vest ab- nant and agree to join in, if the same should not be solutely in any child of any person hereby made tenant done before the said marriage should take effect. It for life, unless such child shall live to attain the age of was witnessed, that, in consideration of the said intwenty-one years, and so that, in default of any person tended marriage, and in pursuance of the said agreebecoming entitled thereto under this my will, the same ment, it was thereby covenanted, concluded, and agreed shall be in trust for my personal, and not my real, re- by and between the said parties thereto, that the presentative." The testator thus means to say, that the said 5000l. annuity stock so intended to be transleasehold part of his estate is to go with the freehold, ferred to, and stand in the names of, the said William so far as he has made it necessary that it should do so, Cuthbertson and William Greenwell, should be so but that, for any other purpose of transmission, it shall transferred to them; and that they the said William go to his personal, and not his real, representative. Cuthbertson and William Greenwell, their executors This was, no doubt, an unnecessary declaration, but he and administrators, and such other trustee or trustees on had adopted the same form of expression when dealing whom the trusts thereinafter declared of and concernwith his real estate. The only argument that can be ing the said trust annuities should or might for the used is, that, the personal representative being coupled time being devolve or be vested, by virtue of the prowith the real representative, and the real representative viso thereinafter in that behalf contained, his and their being a specific person, the personal representative must executors and administrators, should and would stand be one also. What, however, the testator clearly meant and be possessed thereof, and of the interest and prowas, that he gave all the surplus of the personalty to ceeds thereof, upon the trusts, and to and for the ends, his personal representative, in the same manner as the intents, and purposes thereinafter mentioned, expressed,