made by B. in 1838 should be the root of title; that no objection or requisition should be made with respect to earlier title, and that recitals in deeds twenty years old should be conclusive evidence of the instruments recited. That conveyance purported to recite the will, but stopped short of the final gift over, thus shewing a good title to the fee in B:-Held, that a purchaser under the Court was not precluded from shewing that B.'s title under the will was defective, and that he was entitled to be freed from his contract, and to get all his costs. ADJOURNED SUMMONS (Dec. 16, 1871). The question raised in this case was whether a purchaser at a sale under a decree was entitled to be discharged from his purchase under the following circumstances. The lands sold formerly belonged to one Hannah Crookes, and passed by her will, under which one William Richards claimed to be owner in fee. By the 8th and 9th conditions of sale settled by the Court, it was provided that the abstract of title was to commence with indentures of lease and release, dated the 23rd and 24th of July, 1838, being a conveyance on a sale in fee simple by the said William Richards, and that no objection or requisition should be made in respect of any prior title, or evidence of prior title, notwithstanding any recital or notice or other disclosure of any such prior title; and by the 15th, that all recitals in every abstracted deed, will, or other document, dated twenty years or more prior to the day of sale, should be accepted as sufficient and conclusive evidence of the instruments, facts, matters, and things recited or stated. The first recital in the release of the 24th of July, 1838, was to the effect that the said Hannah Crookes had by her will, dated the 16th of April, 1823, devised the lands in question to Thomas Richards and William Richards, their heirs and assigns for ever, as tenants in common, but should one of them happen to die before he arrived at the age of twenty-one years without issue, then the testatrix gave and devised the same hereditaments and premises to the survivor, his heirs and assigns for ever. This was followed by a recital that Thomas died under twentyone without issue, leaving William sur viving, and thereupon William sold as owner in fee. Something having aroused suspicion, the purchaser under the decree obtained a copy of the will of Hannah Crookes, wherein he found that she had devised the premises to two trustees, their heirs and assigns, upon trust to let and manage and apply the rents and profits to the maintenance of William Richards until he should attain twenty-one; and then as follows-"and when he shall have attained his said age of twenty-one years, then in trust to assign, and I do hereby give, devise, and bequeath . . . (the said premises) unto the said Thomas Richards and William Richards, their heirs and assigns for ever, equally to be divided between them, share and share alike, as tenants in common, and not as joint tenants, but should one of them happen to die before he arrives at the age of twenty-one years, leaving no child or children behind him lawfully begotten, then I give, devise, and bequeath the same unto the survivor of them, his heirs and assigns for ever, and if it should happen that both the said Thomas Richards and William Richards should die, leaving no lawful child or children behind them, then and in such case," the testatrix devised the premises to her five nephews. The purchaser upon this took the objection that if William Richards (who was advanced in years and had no child) should die leaving no child, the devise over would take effect, and therefore required the vendors to obtain the concurrence of the five nephews, and this proving impossible, he desired to be discharged from his contract. The vendors contended, first, that the devise over was only in case William had died under twentyone; and secondly, that the conditions of sale precluded the purchaser from taking the objection. The Solicitor General (Mr. Jessel) and Mr. Begg, for the vendors, on the first point, submitted that the effect of the will was to direct the trustees to convey" on the attainment of twenty-one, and referred to Kirkpatrick v. Kilpatrick, 13 Ves. 476; Wheable v. Withers, 18 Law J. Rep. Mr. Joshua Williams, for the purchaser. -The conditions of sale gave no notice of any defect in the title, and if this title be really bad the Court will not take advantage of its own conditions to force upon us a less estate than it purported to sell, or a title which it knows to be defective, unless it has given fair notice of the defect before the sale. Notwithstanding the Notwithstanding the eighth and ninth conditions, therefore, it will allow us to take an objection on the will of Hannah Crookes. In that will "assign" does not mean "convey," but put into "possession," and on the death of Thomas the estate in fee in the whole was vested in William Richards, subject to a chattel interest in the trustees till he attained twenty-one, and subject to being divested in case of his death at any time without leaving a child— Doe v. Ewart, 7 Ad. & E. 636; s. c. 7 Law J. Rep. (N.S.) Q.B. 177. This case comes within the second class of cases mentioned by your Lordship in Edwards v. Edwards, 21 Law J. Rep. (N.S.) Chanc. 324; s. c. 15 Beav.357. The question is whether or not the gift is vested before the particular period of age. Here it was vested, as to half, on the death of the testator, and as to the other half on the death of Thomas Cotton v. Cotton, 23 Law J. Rep. (N.S.) Chanc. 489, and will be divested if William Richards leave no child. In that case all we should get would be an estate for his life. THE MASTER OF THE ROLLS (on Jan. 15, 1872). This case raises a question of great importance as regards the conduct and practice of the Court of Chancery. It may be that its duties sometimes conflict, and this case seems at first sight to raise, a question of that description. But in reality no such conflict can ever arise, if the principle on which the Court proceeds be steadily borne in mind, namely, the principle of truth, and the avoidance of all deceit, or even the semblance of a trick. The case arises thus. It is the duty of the Court of Chancery, on certain occasions, to sell the real property of its suitors. It is of course the duty of any person or any Court which takes upon itself that duty, to sell the thing entrusted to it in the most advantageous manner. For this purpose, amongst others, conveyancers are attached to the Court of Chancery, whose duty it is, to prepare conditions of sale, subject to which the property is offered for sale, and to make them such as will effect its object and conduce to producing the highest price, but in doing so they must not insert anything which may mislead or deceive an innocent bona fide purchaser. That question arises in this case in the event of the Court being of opinion that a good title cannot be shewn to the purchaser. The consequence is that two questions are presented to the Court. The first question is whether the purchaser is bound by the eighth and ninth conditions of sale under which he bought, and the second question is whether, if he is not so bound, he has got a good title to the property sold to him. I think the first question presented to me is so intimately connected with the second, that it depends so much upon it, that it will be more convenient in the way I regard this case to consider, first, the validity of the objection to the title, on the assumption that no condition of sale affects the question, and then to consider whether the conditions of sale preclude the purchaser from taking the objection. The objection to the title depends upon the proper construction to be put on the will of a lady called Mrs. Crookes. [His Lordship here stated the provisions of the will, and then proceeded.] The facts are these. Thomas died under twenty-one, without issue. William Richards attained twenty-one, and is now living, but is of an advanced age, and has no children. He is the vendor and claims to be owner in fee simple of the property on the ground that the gift over on the contingency of his dying without leaving a child is limited to that event occurring during his infancy, and that on his attaining twenty-one he became entitled to an indefeasible estate in fee simple in the property. I regret to say that a full consideration of the words of the will, and of all the authorities which relate to the subject, compels me to come to the conclusion that the event of dying without leaving a child is not in this will confined to infancy, and that so to confine it would be to impart a meaning and to add words to the will, neither of which can be found there. I am of opinion that the contingency of dying leaving no child here spoken of, means at any time whenever that death should occur. I think it useless to go through the authorities on this point, which I have done on previous occasions, the more so as my decision on this case will bind no one, and could neither give to the vendor any title not now possessed by him, or take away from him any right now vested in him. But I am bound to say that having carefully reconsidered this question, which I have had before me on many previous occasions, I have come to the conclusion that the death of William Richards, without leaving a child, is not confined to that event occurring during his infancy. Having come to that conclusion, the next question arises, viz., whether it is open to the purchaser to take this objection. The conditions are these. [His Lordship read the eighth and ninth conditions.] The indenture of release of the 24th of July, 1838, recites the will of Mrs. Crookes, but the recital is inaccurate, for it stops short at the gift over. I am of opinion that these conditions of sale are not such as a Court of Equity can enforce on a purchaser. They amount to a condition, in fact, to the effect that if you find you have not got the property and cannot keep it, you shall not object. Practically this is a condition saying that although you imagine you have been sold the fee, still though you find that you have only bought an estate for the life of a man advanced in years, you must keep the property and pay the price, because you have been foolish enough to buy subject to such conditions of sale. The argument is that you have shut your eyes and have got the property at a reduced price, which is probably true, and you therefore have run the risk of being ultimately ejected against the reduction of price. I do not mean to express any opinion as to how the Court would look at this question if it arose between two strangers. A buyer no doubt knows that unusual conditions of sale are framed to meet peculiar difficulties, and these are quite fair, even when framed by the Court, if they will still, in the opinion of the Court, leave the purchaser in the complete possession of the thing he has bought, even though he does not get what is called a marketable title; but if not the Court has no right to enter into such contests and try to fence with and outwit purchasers, and sell on the chance of the purchaser being able to resist a suit for the recovery of the possession of the lands on a defect not disclosed to him. I am of opinion that such a condition would be bad, as a fraudulent misleading condition in any sale, for it professes or induces the buyer to believe that the recital accurately represents the will, which it does not. But in a sale under the authority of the Court of Chancery, which above all things ought to teach others and set them the example of straightforward dealing, telling the truth and the whole truth, such a condition under the circumstances of this case is in my opinion binding on no one. No good title being shewn, and the purchaser not being bound by the conditions of sale to accept a bad one, he must have his costs of the whole proceedings. Solicitors Mr. J. Eliott Fox, agent for Earle, Son & Co., Manchester, for plaintiffs; Messrs. Le Riche & Sons, for purchasers. This was an administration suit instituted in 1868, in which an ordinary decree had been made. On November 6th, 1871, the suit became defective by the birth of a child, and on the 30th of the same month the chief clerk's certificate was filed, the solicitors conducting the cause not being aware that the suit had become defective. With this exception, however, no step had been taken in the suit since it became defective. Mr. C. Browne now moved, with the consent of all parties, that the certificate might be taken off the file in order to make the child a party, and file a new certificate in its presence. It was ruled in Auster v. Haines, 38 Law J. Rep. (N.S.) Chanc. 385; s. c. Law Rep. 4 Chanc. 445, and other modern cases, (See Capps v. Capps, Law Rep. 4 Chanc. 1; Scott v. Duncombe, 39 Law J. Rep. (N.S.) Chanc. 644; s. c. Law Rep. 9 Eq. 665), that if any proceedings had been taken in a suit after it had become defective, the defect could not be cured by an order under 15 & 16 Vict. c. 86. s. 52, but that a supplemental bill must be filed. But if the certificate were taken off the file the child could be brought before the Court in the usual way. THE MASTER OF THE ROLLS made an order as prayed. Solicitor-Mr. Henry Harris. upon an agreement to provide funds to meet the bills when due. Both companies were in liquidation when the bills matured, and no funds being provided they were dishonoured. The holders of the bills proved against both companies, and received dividends from both. The E. Company then sought to prove against the O. Company for the amount of the dividend paid by them as damages, in respect of the breach of the agreement to provide funds :-Held, overruling the decision of one of the Vice Chancellors, that the proof could not be allowed, as it would constitute a double proof against the estate for the same debt, as to which the rule in bankruptcy ought to be adopted in winding up cases. This was an appeal from a decision of Bacon, V.C., allowing a proof against the Oriental Commercial Bank, tendered by the European Bank for 4,4027. 08. 9d. The circumstances were as follows:In the year 1866 Pappa, the manager of the Oriental Bank, induced the European Bank to accept certain bills of exchange, for sums amounting to 8,8001., drawn by some foreign correspondents of the Oriental Bank, by engaging to supply the European Bank with funds to meet the bills at maturity. The bills were upon this guarantee accepted by the European Bank for the accommodation of the Oriental Bank, which bank, as holders, indorsed and discounted them with the Agra Bank. The three banks were at the date of the maturity of the bills all in liquidation, and the bills were dishonoured by the European Bank, no funds being provided by the Oriental Bank. The liquidators of the Agra Bank proved against both the European Bank and the Oriental Bank for 8,8041. 1s. 6d. in respect of the bills. They received dividends from each to an amount sufficient to pay the bills. The European Bank paid 4,4021. Os. 9d., and for this sum their liquidators now sought to prove against the Oriental Bank, under the guarantee His or agreement to provide funds. Honour having allowed the proof, the liquidator of the Oriental Bank appealed. Mr. De Gex, Mr. Kay, and Mr. Jackson, for the appellants. To allow this claim is 2 F Mr. Eddis and Mr. Graham Hastings, in support of the Vice Chancellor's order. -This is a claim, not upon the debt but upon the separate contract to provide funds. That contract was broken, and the damages we incurred through the breach constitute the amount of our present claim Reynolds v. Doyle, 2 Sc. N.R. 45. In a similar case, the Master of the Rolls allowed the claim Re The British and South American And see also Prehn v. Royal Bank of Liverpool, Barned's Banking Company, Stephens' LORD JUSTICE MELLISH gave an outline of the facts, and proceeded as followsIt is quite clear that if this proof be allowed, the Oriental Bank will pay a double dividend upon the same debt; for it appears to me that the two claims are substantially for the same debt, because, if all parties had been solvent, then whatever sums the Oriental Bank might have paid to the Agra Bank, although paid for the purpose of performing the contract entered into by them by the indorsement, still, in substance, would have gone in reduction of the amount which the Oriental Bank had promised to pay the European Bank. In that case, the Oriental Bank could never have been called upon to pay these bills twice over. It would have made no difference that they had entered into the contracts with different parties, viz., the European Bank, the acceptors, and the Agra Bank as holders, to pay the bills, they would have performed both contracts by once paying the bills. Having guaranteed the acceptors, the acceptance became, in fact, an acceptance for their use; and their payment to the Agra Bank would have been a payment on behalf of the acceptors. But the question is whether the parties being insolvent, the Oriental Bank can be liable to pay two dividends on the same debt. It has been the law for a great number of years in reference to proofs in bankruptcy, that if an acceptor accept bills for the accommodation of the drawer, and the drawer enters into a contract, either express or implied-and I think there is no difference between the twothat he will provide funds to meet the bills when due, and if afterwards the drawer becomes bankrupt, there cannot, in such a case, be a double proof against his estate, one by the holder of the bills upon the bills, and another by the acceptor in respect of his contract of indemnity. A further subsidiary question before us is this: Does it make any difference that the Oriental Bank were not drawers, but entered into the contract with the acceptors, and afterwards became liable upon the bills as endorsers? It appears to me that this ought to make no difference, although I do not know of any decision precisely in point. Upon the main question, the case of Rigby v. Macnamara (ubi supra) tends to shew that the rule in bankruptcy against double proof applies also in the Court of Chancery, and consequently applies in |