slates to the roof was killed in the course of his employment. | had never paid any interest on the mortgage. The same soliThe county court judge made an award for compensation to citor acted for his executors. They, in November, 1887, conthe deceased man's widow against the appellants as the under- veyed the remainder of the mortgaged estate to J. C. Bradshaw takers under the Workmen's Compensation Act, 1897, and also as free from incumbrances. In 1899 the solicitor died, and the made an order under sect. 4 of the Act that the respondent fraud was discovered. The Cust trustees thereupon gave no'ice should indemnify the appellants to the extent of the sum to J. C. Bradshaw to pay off the mortgage. He then brought awarded, holding that the slating was not merely incidental this action against the Cust trustees, claiming a declaration that to but was a substantial part of the construction of the the title of the defendants as mortgagees under the mortgage of building, and that the respondent by his sub-contract under- 1879 was extinguished, and that the charge thereby created was took the construction of that part of the building within the to be deemed satisfied. The Cust trustees delivered a countermeaning of sect. 7, and that he was a person who would have claim, to which J. C. Bradshaw and W. Bradshaw, who was ben liable under the Act to pay compensation for the injury the surviving executor of J. E. Bradshaw, were the defendants, independently of sect. 4. There was no appeal against the claiming, as against W. Bradshaw, payment of the mortgage award for compensation. The respondent appealed against the debt with interest, and, as against J. C. Bradshaw, that the order for indemnity, and the Court of Appeal (A. L. Smith, mortgage of 1879 might be enforced by foreclosure or sale. Collins, and Romer L.JJ.), following Cass v. Butler, [1900] 1Q. B. 777, set aside the order for indemnity.

A. Llewelyn Davies and Tinsley Lindley, for appellants.
Ruegg, K.C., and Clavell Salter, for respondent.

THE HOUSE (Earl of Halsbury L.C., and Lords Shand and Davey), Lords Brampton and Robertson dissenting, after consideration, reversed the decision of the Court of Appeal, and restored the order of the county court judge.

Slicitors: Mason, Edwards & Masons, for R. H. Beaumont, Nottingham; Mackrell, Maton, Godlee & Quincey.

J. M. M.

Statute of Limitations - Mortgage -Acknowledgment -Payment of interest-Person "bound to pay"-Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 8.

Appeal from the decision of Buckley J., [1901] W. N. 148. In 1879, J. E. Bradshaw mortgaged an estate, of which he was the owner in fee, to the Cust trustees, to secure 5171l. 14s. 6d., with interest thereon at 4 per cent. This sum was really borrowed for the benefit of the mortgagor's son W. Bradshaw, and was handed over to him, and he at the same time executed a bond for 10,000. in favour of his father, conditionel to be void on payment by him to his father of 5171. 14s. 6., with interest at 4 per cent. The same solicitor actel in the transaction for all the parties, and he, on behalf of W. Bradshaw, regularly paid the interest on the mortgage debt to the Cust trustees. This continued until 1892, when W. Bradshaw paid 51717. 14s. 6d. to the solicitor for the purpose of discharging the mortgage debt. The solicitor misappropriated the money, but he continued to pay the interest to the Cust trustees until 1898.

Buckley J. dismissed the action, and gave judgment for the
Cust trustees on the counter-claim. He held that, as W. Brad-
shaw was bound to indemnify his father against the mortgage
debt and interest, the payment of interest made by him through
his solicitor was a payment by a person
"bound to pay" on
behalf of the mortgagor, within the decision in Harlock v.
Ashberry, (1882) 19 Ch. D. 539, and was, therefore, a p1yment.
by the person liable to pay or his agent within sect. 8 of the
Real Property Limitation Act, 1874, which amounted to an
admission of the existence of the mortgage, and had the effect
of keeping it alive.

The plaintiff in the action and W. Bradshaw appealed.
H. Terrell, K.C., and George Henderson, for the appellants.
Astbury, K. C., and B. Farrer, for the Cust trustees.

THE COURT (Collins M.R., and Stirling and Cozens-Hardy
L.JJ.) dismissed the appeal.

COLLINS M.R. Said it was admitted that the interest was paid as interest by the solicitor of the mortgagor and his executors, who were liable to pay it. The onus was no doubt upon the mortgagecs to shew that the mortgage had been kept alive. But the continued payment of interest by the person whose duty it was to pay it shifted the onus upon the mortgagor to shew that the payment was not made under such circumstances as to keep the mortgage alive. If the case rested there, and the solicitor's books were to be excluded, the appellants would have no answer to the case of the trustees, inasmuch as they did not call W. Bradshaw at the trial. The decision of Buckley J. could be supported without going into the solicitor's accounts. But, after what took place at the trial, his Lordship thought that the solicitor's books could not now be excluded. And when they were admitted they shewed clearly the nature of the transaction, and that the son was the person who, as between himself and his father, was bound to pay the mortgage debt and the interest on it, so that the payment of interest by him had the effect of keeping the mortgage alive.

STIRLING L.J. and COZENS-HARDY L.J. concurred.
Solicitors: Hunter & Haynes; Nicholls, Manisty & Co.

C. A.

In re WHITMORE.
WALTERS v. HARRISON.

W. L. C.

May 15

In 1884 J. E. Bradshaw, who had been in some way induced by the solicitor to believe that the mortgage had been paid off, conveyed part of it for value to J. C. Bradshaw, another son, Will-Construction--Gift of residue to members of a class living

the class on her and her children-Death before period of distribution.

THE COURT (Collins M.R., and Stirling and Cozens-Hardy L.JJ.) allowed the appeal.

STIRLING L.J., who read the judgment of the Court, said that In re Roberts was binding on this Court, and their Lordships saw no reason to doubt that the other two cases were well decided. But in all those three cases the wills which had to be construed differed substantially from the will in the present case. The only rule or principle which their Lordships could find to have been laid down in those cases was this-that the words "the share" were susceptible of more than one meaning, and that, in ascertaining the sense in which they were used, the whole will must be regarded. Looking at the whole will in the present case, their Lordships came to the conclusion that by "the share" of Charlotte the testatrix did not mean the share to which Charlotte would be entitled if she survived the period of distribution, but meant an aliquot share of the estate destined for Charlotte and her children. The other construction would involve this capricious and anomalous result-that, if Charlotte had died before the period of distribution, leaving four children, who all attained twenty-one and survived that period, none of them would have taken anything, though they were primary objects of the bounty of the testatrix. In their Lordships' opinion, such a result could not have been intended. The question was one of difficulty, and their Lordships regretted that they had to differ from so accurate and careful a judge. But, on the best construction they could give to the case, they thought the appeal should be allowed. Solicitors: Upton, Atkey & Co.; Hon. Charles Russell; Walters & Co. W. L. C.

Appeal from the decision of Byrne J., [1901] W. N. 146. Maria Whitmore, a spinster, who died in 1854, by her will, made in 1849, directed the income of her residuary estate to be paid to her sisters, Sophia and Catherine Whitmore, in equal shares during their joint lives, or until one of them should marry or die, and after the death or marriage of either, then to the other during her life or until she should marry, and after the death or marriage of such surviving or last marrying sister the testatrix declared trusts of a sum of 1000!. for her sister Elizabeth Saltmarshe and a niece, and, subject to these provisions, the testatrix directed that her residuary estate should be held in trust for all or such one or more of her brothers and sisters (except Elizabeth, but including Sophia and Catherine, if they or either of them should marry) who should be living at the death or marriage of such surviving or last marrying sister, in equal shares, if more than one, as tenants in common. Provided that if at the death or marriage of such her surviving or last marrying sister, her brothers, or any or either of them, should be dead, or either of her sisters Sophia and Catherine should be dead having previously married, and there should be living any child or children of any one or more of them so dying, who should then have attained or should afterwards attain the age of twenty-one, or who should then have married or should afterwards marry, such child or children should together and per stirpes be entitled to such part or share of the trust estate as his, her, or their parent or respective parents would have been entitled to if such parent or parents had been then living. And with respect to "the share" of her sister Charlotte Harrison, the testatrix directed that "the same share" should be held in trust to pay the income thereof to her during her life, for her separate use, and after her death the capital of "the same share" should be held in trust for her child or children, as she should by deed or will appoint, and, in default of appointment, in trust for and to vest in her child or all her children, if more than one, being sons at twenty-one, and being daughters at twenty-one or marriage, and if more than Kekewich J. one in equal shares.

bigh Court of Justice.

CHANCERY DIVISION.

April 29; May 13.

NIGHTINGALE v. REYNOLDS.

raise two out of three portions charged on real estate.

At the date of the will the testatrix had living three brothers Mortgage-Portion-Priority-Mortgage by direction of Court to and four sisters, two of whom, Sophia and Catherine, were unmarried, and the other two, Elizabeth and Charlotte, were married. Sophia and Catherine never married. Catherine died in 1900, having survived all her brothers and sisters. Charlotte Harrison died in 1884. She had four children, all of whom attained twenty-one, but they all died before Catherine. Neither the brothers nor the other married sister of the

testatrix left issue.

Byrne J. held that, as Charlotte did not survive the period of distribution, she did not take any share in the fund, and that therefore her children and their representatives could take nothing. In so deciding his Lordship followed In re Roberts, (1885) 30 Ch. D. 234, and distinguished In re Pinhorne, [1894] 2 Ch. 276, and In re Powell, [1900] 2 Ch. 525.

The representatives of Charlotte's deceased children appealed.
Levett, K.C., and Leverson, for the appellants.
Younger, K.C., and Hon. Frank Russell, for the next of kin of

the testatrix.

P. M. Walters, for the trustees.

A testator, who died in 1851, by his will charged three sums 1880 two of the portions had become raisable, but the tenant of 50001. for children's portions on his real estate. In the year for life of the third portion was still alive. In that year an action of Muskett v. Muskett, properly constituted, was brought for the purpose of clearing the real estate from charges, and on the 17th of May, 1882, an order was made directing that the two portions then raisable should be raised by a mortgage of the real estate to a person who was willing to lend the money, such mortgage to be settled by the judge. The mortgage deel as so settled contained recitals of the title to the portions, and of the proceedings in the action, and was expressed to be made as to all the hereditaments comprised therein "without prejudice to any charge which may be subsisting therein under the said will," but was in other respects in the ordinary form of a mortgage in fee. The mortgagee duly paid the money into court, and it was afterwards distributed among the persons interested in the two portions.

The mortgagee now brought the present action for the realiza- | that the property found on the bankrupts at the date of their tion of his mortgage, and claiming priority over the persons arrest had vested in him as trustee in bankruptcy, and now interested in the remaining portion of 50007. asked that the commissioner of police should be ordered to hand it over to him.

P. O. Lawrence, K.C., and J. K. Young, for the plaintiff.
Warrington, K.C., and Tyssen, for the persons interested in

the remaining portion.

D. Jones and Peck, for other parties.

Cur, adv. vult.

May 13. KEKEWICH J. held that the plaintiff could only claim a charge on the real estate for the two sums of 5000l. pari

Muir Mackenzie, for Salaman.

Sutton, for the commissioner of police. The usual practice when a prisoner is extradited is for the police to hand over the property found on him to be used as evidence of the crime at the trial: Dillon v. O'Brien, (1887) 16 Cox, 245. Edwardes Jones, for the Belgian curator.

WRIGHT J. held that "the competent authority" in the first

passu with the third sum of like amount, and this notwith-instance was the police magistrate who made the extradition standing that this third sum was at present only charged in equity by virtue of the will, whereas the plaintiff had a legal mortgage sanctioned by the Court. With the aid of subsequently acquired knowledge it might be said that it would have been better to raise all the portions at one and the same time; but this was quite a different thing from saying that the Court, in fulfilling the testator's directions, which was its only duty, intended to place two of the portions in a better position than the third, or to give the mortgagee a charge for the two in priority to the third, which was from the first equally entitled to a like charge under the will. Solicitors: Pasco Daphne; J. M. Yetts; Grundy, Izod & Co.; Iliffe, Henley & Sweet. C. C. M. D.

matter. Application should be made to them, and some stipuorder, and that the Home Secretary had also authority in the lation should be made as part of the order surrendering the prisoners to the Belgian authorities for the return of the proties here for the trustee in bankruptcy. This would be without perty, after the trial in Belgium was concluded, to the authoriprejudice to the rights of the Belgian creditors to prove in the English bankruptcy.

Solicitors: Osborn & Osborn; Wontner & Sons; Crawley,
Arnold & Co.
H. L. F.

Farwell J.

In re CARROLL.
BRICE v. CARROLL.

May 9.

Wright J.

"

In re BOROVSKY & WEINBAUM.
Ex parte SALAMAN.

May 13.

Administration-Breach of trust—Trust money in hands of solicitor with notice-Solicitor not a party to the action-Order on solicitor to pay money into court-Jurisdiction-Practice. Bankruptcy-English bankruptcy--Offence committed in foreign This was an action commenced by originating summons to State-Extradition of bankrupt Property found on bankrupt administer the estate of Elizabeth Carroll, who died in 1894. at date of arrest—Retention by police-Title of trustee in bank- The plaintiffs were beneficiaries under the will of Elizabeth ruptcy-Evidence of crime-Order for delivery up of property-Carroll, and the defendant was the sole executor. From the Competent authority" to make order-Belgian Extradition Treaty, 1872, art. 12—Extradition Act, 1870 (33 & 34 Vict. received two sums of 225l. 12s. 6d., which he was ordered to accounts carried in by the defendant it appeared that he had c. 52), ss. 9, 10. pay into court. On motion for a writ of attachment against him for non-compliance with the order, it appeared that he was a clerk in the employment of a Mr. McIntosh, a solicitor, who was acting as his solicitor in the action; that he had lent the money in 1895 to Mr. McIntosh at 4 per cent. interest without security, who accepted the loan knowing it to be trust money; and that last August he had given Mr. McIntosh notice calling in the money, but it was not forthcoming. Thereupon the plaintiffs served Mr. McIntosh with a notice of motion for an order that he should bring the money into court. This notice of motion was headed in the action, and also "In the Matter of Francis Hugh de Mortimer McIntosh, one of the solicitors of the Supreme Court." Mr. McIntosh filed an affidavit in opposition to the motion, in which he stated he intended to repay the money in due course, and objected that the Court had no jurisdiction, in an action to which he was not a party, to order him to pay the money into court.

The debtor Borovsky was a Russian subject domiciled in England, and the debtor Weinbaum was a naturalized British subject. They traded in partnership as dealers in precious stones under the style of "Borovsky & Weinbaum" in London, and at Antwerp in Belgium. On the 10th of March, 1902, they were arrested in London on an extradition warrant granted at the instance of the Belgian Government for offences committed in Belgium, and at the date of their arrest property, consisting of bills of exchange, precious stones, and some cash, was found upon them and retained by the police. Article 12 of the Extradition Treaty with Belgium provides that all property belonging to the prisoner and found upon him upon his arrest, shall be returned to him should he be ordered to be extradited, unless otherwise ordered by "the competent authority."

On the 14th of March a receiving order was made against the debtors in England and adjudication followed, and Salaman became the trustee in bankruptcy. On the 19th of March the debtors were adjudicated bankrupt in Belgium and a curator of their estate was appointed. On the 19th of April the police magistrate at Bow Street made an order for the extradition of the bankrupts, but declined to give any direction as to property found on them, on the ground that he was not "the com

Sheldon, for the motion, cited In re Howard, (1871) 24 L. T. (N.S.) 860; Staniar v. Evans, (1886) 34 Ch. D. 470. Muir Mackenzie, for McIntosh.

FARWELL J. held that the cases cited sufficiently supported the application. In such a case as this the Court, in the exercise of its summary jurisdiction over its officers, had ample