peal, the Lords Justices held that the railway company were not liable to pay these costs. This was an appeal, presented by the South-Western Railway Company, against an order of Vice Chancellor Wood, by which his Honour had directed a review of a taxation, which in effect decided that the company were liable to pay the costs of an application to the Court. In the month of July 1858, Mr. George Phillips and his since deceased brother were seised in fee simple as tenants in common of lands, part of which was subject to a mortgage for 7,000l. The present company served a notice upon them to take a portion of the land, almost the whole of which portion was unencumbered, but one small part was subject to the mortgage. For the parts required by the company the Messrs. Phillips demanded 25,000%. In April 1859 the brother died intestate, and George Phillips, as his heir-at-law, became seised of the whole of the estate. The negotiations, which had not been concluded between the Messrs. Phillips and the company, were then carried on, and ultimately an agreement was entered into for the sale of the land for 12,800l. No mention was made of the mortgage. An abstract of title was then furnished to the company, and from the answers to their requisitions it appeared that a small part of the lands bought was subject to the mortgage, and that this mortgage was then vested in the trustees of the will of the original mortgagee, whose estate was being administered by the Court of Chancery in the suit of Allen v. Embleton. The company required the concurrence of these trustees, and an application was made in the above suit to the Court for its sanction, which was given, and the costs were taxed by Master Parkes at 1577. 4s. 10d., and the same was paid by Mr. Phillips. The company did not appear upon the application, and were not parties to the suit. company entered into possession of the land, and Mr. Phillips's solicitors delivered the vendor's bill of costs (including the above sum of 1571. 48. 10d.) of deducing the title and for the conveyance. On the 3rd of May 1861 an order for taxation was made at the Rolls, and the bill was referred to Master Wainewright, and he disallowed The the whole of the 1577. 4s. 10d., relying on the authority of the case of In re the South Wales Railway Company (1), as to the costs not being payable by the company under the 82nd section of the Lands Clauses Consolidation Act, 1845. Mr. Phillips then presented a petition for the review of the taxation, and the Vice Chancellor ordered the same, expressing an opinion "that when the company ascertained by the answers of the vendor to the requisitions on the title that the land was under mortgage, they might have either given notice to the vendor to clear the title of the mortgage, or have proceeded under the mortgage clauses of the act. Besides, as a very small part of the land included in the purchase was subject to mortgage, the case came within the principle of the case of Picard v. Mitchell (2); and the vendor ought not only to be indemnified, but ought not to be put to any inconvenience." The company now appealed. Mr. Amphlett and Mr. Bagot, for the company. Mr. G. M. Giffard and Mr. Bury, for Mr. Phillips. During the argument the following cases were cited: Re the South Wales Railway Company, ubi suprà. Dinning v. Henderson, 2 De Gex & Sm. In re Hore's Estate, 5 Rail. Cas. 592. Re Taylor, 1 M. & G. 211; s. c. 1 Hall LORD JUSTICE TURNER.-I should hesitate to give an opinion on this case if I thought I should be thereby establishing a general rule; but it depends upon very (1) 14 Beav. 418; s. c. 20 Law J. Rep. (N.s.) Chanc. 534. (2) 12 Beav. 486. peculiar circumstances. The Court has to deal with a case of contract between a company on the one side, and the owner of land on the other. According to that contract, it was not competent for the company, after it was made, to deal with a mortgagee. The question is, what is the effect of that contract? and to me it appears that its effect is, that as Mr. Phillips has agreed to sell land to the company, it has become his duty to make a conveyance of it, and it is incumbent upon him to procure all necessary parties to join in such conveyance. What the act relied upon says is, that the company is to pay the costs of the conveyance of and the title to the land. This, however, is not a question of conveyance or title. It seems to me that this case is not covered by any of the authorities, and I think the view of the Taxing Master is proper. LORD JUSTICE KNIGHT BRUCE.—I agree with my learned Brother. There never has been any contract between the company and the mortgagee, nor has any notice ever been given to the mortgagee as between the mortgagee and the company. There is nothing but a contract between the owner of the equity of redemption and the company, which is wholly silent on the question of costs. After that contract the company could not have proceeded under the 112th section to pay the mortgage off. This is a special case, under very peculiar circumstances, and it ought not to be drawn into a precedent. Under these circumstances, I think that the costs cannot properly be paid by the company. and if so whether he died before or after the testator inthe cause. William Snowden was a legatee under the will of the testator, who died on the 12th of May 1851. The evidence proved that William Snowden was a carpenter; that he was last seen at Newcastle-on-Tyne on the 1st of January 1848, at which time he was unmarried, and that nothing had been heard of him since that period. The executors of the testator had made all the inquiries in their power respecting William Snowden, and had advertised for him in the London and local newspapers, and also in the New York Herald, but without effect. The Chief Clerk upon this evidence had reported that William Snowden must be presumed to have died unmarried, and that the presumption must have reference to the end of seven years from the last period at which he was seen alive, and consequently that he survived the testator. Mr. Glasse and Mr. Hislop Clarke appeared for the executors. Mr. Lawson, for the next-of-kin of William Snowden, contended that the presumption of death did not take place till the expiration of the seven years; which period having occurred after the death of the testator, the representatives of William Snowden were entitled to his legacy. Mr. F. Bacon appeared for the next-ofkin of the testator. KINDERSLEY, V.C.—I think that as no further evidence can be obtained, the chief clerk has arrived at a just conclusion, that William Snowden died unmarried after the death of the testator. The rule is well established, that if it can be proved that a person has not been heard of since a given day, and that seven years at least have elapsed since that time, you must presume that he is dead. Of course, he may reappear, and such cases have happened; but seven years is the period fixed for the presumption of death to arise. The next question is, whether there is evidence upon which it can be presumed that he died at any particular time during the seven years. It appears that some months after the testator's death his executors advertised in the papers for information about Snowden, but without effect; and there is nothing further known of him than that he was last seen at Newcastle-on-Tyne in January 1848. There is no sufficient evidence, therefore, to prove that he died at any particular time during the seven years, but he must be to taken to have died unmarried and to have outlived the testator. George Casson, in the year 1856, contracted by parol with John Lloyd, since deceased, for the purchase of certain freehold estates in the parish of Maentwrog, in the county of Merioneth, with the minerals under the same, for 14,6807. 11s. 5d. The estate was mortgaged to Ann and Thomas Whitfield, to secure the repayment of 7,000l. and interest. George Casson advanced to John Lloyd a sum of 430., in two payments, the one on the 3rd of May and the other on the 15th of July 1856, and he acknowledged the receipt of them as being in part payment of 6801. 118. 5d., the deposit which was to have been received in part payment of the purchase-money of the estates. John Lloyd died on the 4th of October 1856, having, by his will, appointed Phoebe Roberts his executrix. On the 8th of February 1860 the plaintiff George Casson, when applied to, said he did not consider himself called upon to NEW SERIES, 32.-CHANC. complete the purchase, and he had now no wish to do so. The estates were afterwards sold by the mortgagees in a suit of Whitfield v. Roberts. The plaintiffs now filed this bill, on behalf of themselves and others, against Phoebe Roberts, claiming, as creditors of John Lloyd, the repayment of the sum of 4301. with interest. Phoebe Roberts, by her answer, said that the testator was able and willing to complete the purchase, and that she had been willing so to do, but that it had been repudiated by G. Casson, and she insisted that the 4301. had been paid as a deposit, and that it had been forfeited to the vendor in consequence of the plaintiff's non-performance of the contract, and that as the estate had been sold in consequence of his nonperformance of the contract, she, as executrix, could not be called on to refund a deposit which by his omission he had forfeited. Mr. Selwyn and Mr. Faber, for the plaintiffs Messrs. G. & J. Casson, bankers at Portmadoc, in the county of Caernarvon, said that the deposit ought to be returned, as no contract had ever been concluded -Sugden's Vendors and Purchasers, 32, 13th ed. Mr. Hobhouse and Mr. G. O. Morgan, for P. Roberts, the executrix.-If a party contracts for the purchase of land and pays a deposit as an earnest for the due completion of the contract, he forfeits it, if by his own act he omits to perform what he, by paying the deposit, contracted to do. The estate had certainly been sold by the mortgagees, and the contract could not now be specifically performed. This had put the estate to expense and damage; it had been caused by the omission and default of the plaintiff he therefore could not complain, or claim a return of the deposit. Spratt v. Jeffery, 10 B. & C. 249; s. c. 5 Man. & Ry. 188; 8 Law J. Rep. K.B. 114. Palmer v. Temple, 9 Ad. & E. 508; s. c. 1 P. & D. 379; 8 Law J. Rep. (N.S.) Q.B. 179. Gosbell v. Archer, 2 Ad. & E. 500; s. c. 4 Nev. & M. 485; 4 Law J. Rep. (N.S.) K.B. 78. Lethbridge v. Kirkman, 25 Law J. Rep. (N.S.) Q.B. 89. P Clark v. Upton, 3 Man. & Ry. 89. Dart's Vendors and Purchasers, 620, 3rd edit. The MASTER OF THE ROLLS.-Where it is necessary to ascertain who is to blame for the non-performance of an agreement when the Court is asked to determine whether a deposit paid ought to be returned, it must necessarily do so in a manner most unsatisfactory. When a deposit is paid by a purchaser to a vendor the presumption is, that it is paid on behalf of the purchaser, and that he was to obtain the benefit of it on the completion of his purchase: in fact, that it was made in part discharge of the purchase-money. An agreement certainly might be made that the deposit should be forfeited in case the purchase should not be completed, but this must either be expressed or clearly implied from the contract itself. It had in many cases, from the terms of the contract, and even from its silence, been held that such a forfeiture must be inferred. There is, however, no authority which holds that the deposit must be considered as forfeited in the absence of any agreement whatever, or one which could neither be enforced at law nor in equity. In Gosbell v. Archer, where the contract went off because the vendor was unable to make a title, the Judges considered that the purchaser was entitled to a return of the deposit, though without either interest or the expenses which he had incurred in consequence of the contract. If in that case the contract had been valid, and if it had then gone off in consequence of the defaults of the defendant, the purchaser would, undoubtedly, have been entitled to interest on his deposit and also to his expenses: in that case damages would then have been sustained in consequence of the breach of the contract, which of itself would give a right of action; but in the absence of any contract whatever, the purchaser could not bring any action for the breach of it, neither could he recover the interest or expenses. He was merely entitled to the return of his deposit: it was his money; it had not been applied, and it could not be applied for the purpose for which it was deposited. Palmer v. Temple, and the comments of text writers, tended rather to the conclusion that the question depended upon the fact of the existence of a contract; but this rested upon a slender basis. If there were no contract, or if there were a contract that could not be enforced, still the purchaser was in equity entitled to a return of the deposit from the vendor, but whether he was entitled to interest upon the deposit was another question. In the present case, however, there must be the usual creditor's decree for the administration of the real and personal estate, and in chambers the plaintiffs will be entitled to prove for the sums paid on account of the deposit. The question of interest will then be left open. Practice-Motion to vary Chief Clerk's Certificate Affidavit filed after filing of Certificate. Upon a motion to vary the chief clerk's certificate, an affidavit filed after such certificate is filed cannot be read. Mr. Greene and Mr. Osborne Morgan appeared in support of a motion to vary the chief clerk's certificate, and they proposed to read an affidavit which had been filed since the certificate was filed. They referred to— Whitworth v. Whyddon, 2 Mac. & G. 52; and Fairburn v. Pearson, cited 2 Ibid. 56 (note). Mr. Malins and Mr. Cracknall opposed the motion. STUART, V.C. refused to allow the affidavit to be read. Sometimes fresh affidavits might be read on the hearing before the Court of Appeal of a motion to vary or discharge an order of the Master of the Rolls, or of one of the Vice Chancellors; but in that case the motion was treated as a new motion, and not as an appeal motion. Upon a motion to vary the chief clerk's certificate, the case came before the Court upon the same evidence as was before the chief clerk in chambers. A valuable consideration and a knowledge of the facts connected with a trust are essential to the validity of a release which will discharge trustees from liability. Where, therefore, a cestui que trust executed a release at the instance of a trustee, his father, who by a breach of trust had obtained possession of a trust fund, such release did not discharge from liability a co-trustee, whom it purported to release, and to whom the father sent it, when such cotrustee had assisted the father in the committal of the breach of trust. A lapse of ten years from the time when the cestui que trust attained twenty-one, held, under the circumstances, not to bar the cestui que trust from obtaining relief in equity against the breach of trust. This bill was filed by Henry Arundel Martyn Farrant, against Anne Blanchford, Joseph Green Bidwell, William Jenney Pengelley, and Myra Mary, his wife, to obtain an account of what was due to the plaintiff for principal and interest in respect of a moiety of a trust fund originally amounting to 970., and asking that it might be raised by the sale of six houses (the title-deeds of which had been deposited as a security for payment), or such part of them as might be necessary, and that any deficiency which should remain might be made good by J. G. Bidwell, personally, and the estate of Frederick Granby Farrant, in such order between them as might be considered just. It also asked for a declaration that a release alleged to have been given by the plaintiff to J. G. Bidwell would not, even if it had been given, release him from the claim. It further asked for the administration of the real and personal estate of F. G. Farrant, if it should be necessary for the purposes of the suit. William Tucker died on the 25th of August 1819, having by his will, dated the 7th of June previous, bequeathed to Messrs. Arundel and John Radford a sum of 1,000l., upon trust to pay the interest to Harriet Radford for life, and after her death upon trust to divide the principal between all and every the children of Harriet Radford, equally between them, and power was given to appoint new trustees. On the 15th of November 1838, under the power contained in the will, Messrs. J. G. Bidwell and F. G. Farrant were substituted as trustees in the place of the Messrs. Radford; and received the sum of 9701. (being the amount of the legacy after deducting the duty), and it was afterwards invested in consols. In 1826 F. G. Farrant, who was a surgeon in the army, intermarried with Harriet Radford. She died on the 16th of August 1832, leaving the plaintiff and his sister, now Mrs. Pengelley, infants; but on the 5th of September 1848 her share of the trust fund was paid to her. F. G. Farrant, by his will, dated in 1835, after disposing of several personal chattels, gave all the rest of his estate and effects to John Daw and J. G. Bidwell, their executors and administrators, upon trust to sell the same, and pay 300l. to Anne Blanchford, his housekeeper, for arrears of salary, and his other just debts, and "to divide the residue between his children, Myra Mary Pengelley and the plaintiff, in equal proportions, share and share alike"; and he appointed Messrs. Daw and Bidwell his executors, but they renounced probate and disclaimed the trusts. F. G. Farrant was the acting trustee under the will of W. Tucker. In 1847 he asked Mr. Bidwell to enable him to obtain the trust funds; and he stated that by so doing it would be of the greatest advantage to his family. Mr. Bidwell told him he was satisfied that he intended to lay out the money in railway shares, and that he would lose it. As, however, Mr. Bidwell did not like to rest under the taunt that he was obstructing him in benefiting his family, and as security was offered upon certain houses in St. Sidwell's, Exeter, Mr. Bidwell joined in such acts as were necessary to enable him to obtain the fund, and he received from F. G. Farrant, in return, a sealed packet, which he never examined. The plaintiff attained the age of twentyone on the 15th of March 1851, and on the 31st of May following he called on Mr. |