1861. STEVENS V. AUSTEN. not execute the trust, but that he could devise the trust estate without the power that was annexed to it. Lord St. Leonards, with his great knowledge of the law in such cases, has said that that was an extremely strict construction; and he seems to regret, as I do, that it ever should have been held that a mere legal estate should pass by devise to a man who must hold it in trust for somebody, and yet that the power annexed to the legal estate was one which he could not exercise." Stuart V. C. goes on to say that "A different view might have been taken by the Court if the matter had been fully considered upon the principle stated in the case of Whitfield v. How (a).” And, after stating the decision in that case, he say's "That seems to shew that where there is a legal estate with a power annexed to it, and the legal estate is devised, the power should pass with the legal estate to which it is annexed, unless there be something peculiar to evince an intention that the power was not to be transmissible with the legal estate. But it seems that a contrary doctrine has been established in this Court, on what Lord St. Leonards calls a stream of authority, much too strong for me to resist." I feel myself in the same position as the Vice Chancellor. Wilson v. Bennett (b), in which the original devise contained the same limitation as in the will before us, and the devisees of the surviving trustee were also appointed his executors, is also a decisive authority that the executors would not be the proper persons to execute the power of sale. The plaintiff's vendor, therefore, who was the vendee of the two devisees under the will of the survivor of the original trustees appointed by the will (a) 2 Show. 57. (b) 5 De G. & Sm. 475. of Samuel Swift, did not establish such a title as the plaintiff was bound to accept. I also think that, on the ground of the total inadequacy of the consideration paid for the estate by the vendor, with notice of which the plaintiff was affected, it would not be safe for the plaintiff to accept the title. (CROMPTON J. was absent.) HILL J. I am of the same opinion. I think that the vendor has not made out such a title as the vendee is bound to accept, and that the latter is therefore entitled to rescind the contract and demand back the purchase money. The vendor has failed in two respects. First: he traces his title through the trustees of Samuel Swift's will. Samuel Swift devised to two persons, their heirs, executors and administrators, in trust that they, or the survivor, or the heirs, executors, or administrators of the survivor, should sell; the word "assigns" being omitted. The surviving trustee devised this trust estate, and his devisees sold to the plaintiff's vendor. According to the authorities a trust cannot be exercised by a person not contemplated in the original creation of the trust; therefore, the word "assigns" not being in the original devise, the devisee of the surviving trustee has no power to convey the estate. Whether those authorities would be upheld in a Court of error I do not presume to say it is sufficient for us that the law has been so laid down in a Court of coordinate jurisdiction. A second objection to the title of the vendor is, that the devisees under the will of the surviving trustee sold to the vendor for a very inadequate price; and that a purchaser with notice of that fact takes the estate subject to 1861. STEVENS V. AUSTEN. 1861. STEVENS V. AUSTEN. ODL the trust for the persons beneficially interested. The law with regard to trustees is very strict. Lord St. Leonards says, in his book on Vendors and Purchasers, ch. 1, sect. 5, p. 50 (13th ed.), "Every trust deed for sale is upon the implied condition that the trustees will use all reasonable diligence to obtain the best price; and that in the execution of the trust they will pay equal and fair attention to the interest of all persons concerned." Either the trustees have not done that in the present case, or, if they have, they have allowed the contrary to appear. BLACKBURN J. I am of opinion that the rule should be discharged. But I wish to say that I am not prepared to agree with my learned Brothers in all respects as to the first ground. The first question appears to me to be whether we are not bound to decide absolutely that the vendor's title is either good or bad; or whether it is enough to say that the title is so doubtful that a Court of equity would not decree specific performance. I used to think that a Court of law was bound to decide absolutely that the title was good or bad; but in Jeakes v. White (a) and Simmons v. Heseltine (b), though the contrary was not decided, doubt was thrown upon that view. If, therefore, I had only come to the conclusion that the title in the present case was doubtful, I should wish for time to consider whether those two authorities are so strong as to bind us. So, again, if the only objection to the title was grounded on the decision of Shadwell V. C. in Cooke v. Crawford (c), I should also wish for time to consider whether we ought to be bound by that case; for although all the subsequent decisions referring to (a) 6 Exch. 873. (b) 5 C. B. N. S. 554. (c) 13 Sim. 91. that case say that it is not overruled, they do not altogether confirm it. I do not wish to be considered as expressing an opinion that that decision was wrong: I only desire to pause before acting on it. The other ground of objection to the title of the vendor is the inadequacy of the consideration given by him on his purchase from the devisees of the surviving trustee, of which the plaintiff had notice. On that ground the title of the vendor is as bad as it well could be. 1861. STEVENS V. AUSTEN. Rule discharged. IRISH PEAT COMPANY against PHILLIPS. [Reported, in the Queen's Bench and in the Exchequer Chamber on error from that Court, 1 B. & S. 598.] Wednesday, ASHWORTH against STANWIX and WALKER. 1860. Friday, June 15th. 1861. Saturday, February 23rd. DECLARATION: That defendants were possessed The principle that a servant sustaining an injury from the negligence of a fellow servant while engaged in the common employment cannot recover in an action against the common master, does not exempt from liability to action a master who himself takes part in the servant's work, and whilst so doing injures the servant through negligence. of a certain coal pit, wherein there was a shaft; and If the master is a member of a partnership by whom the servant is employed, and the work in which he so takes part is within the scope of the common undertaking of the partnership, his co-partners are jointly liable with him for the injury thus caused to the servant by his negligence. VOL. III. 2 z E. & E. 702 1861. ASHWORTH V. STANWIX. that plaintiff was lawfully employed in the said pit at the bottom of the said shaft; and in which said pit a certain corf was used by defendants for the purpose of raising coal from the said pit to the mouth of the said shaft; yet defendants so negligently guarded the mouth of the said shaft, and so carelessly used and managed the said corf, and took so little care of a certain plate or rail of defendants at the mouth of the said shaft, that, by reason of the carelessness, &c., of defendants the said plate or rail fell down the said shaft, and struck plaintiff on the head with great force and violence, and fractured his skull; whereby plaintiff became, was and is permanently injured, &c. Pleas. 1. Not guilty. 2. Not possessed. Issues thereon. At the trial, before Blackburn J., at the Durham Spring Assizes, 1860, it appeared that the two defendants were lessees of a coal pit, and were, in that respect, in partnership together. The plaintiff was a pitman employed in the pit by them. On the day when the accident happened he was so employed, and the defendant Walker was acting as banksman at the mouth of the shaft. For the purpose of emptying the corves as they came up full of coal from the pit, there was a short tramway made of the usual rails or plates. The banksman's duty was to receive the full corf as it came up, to place it on a tram which travelled upon the tramway, and to hook on the corf which was to go down empty. There was evidence that one of the tramplates was loose, and it appeared that while the defendant Walker was acting as banksman, and after he had been told of the insecure state of this tramplate, it fell down the pit and caused severe injury to the plaintiff, who was standing at the |