assuming that the plaintiff had suppressed facts which, if known to the Commissioner, would have prevented him from making the order, the Court was bound to treat the order as valid; independently, therefore, of the defect in the pleadings, the objection to the plaintiff's right to sue could not prevail. The deed of March, 1860, was made for the benefit of the assignees, and was not intended to, and could not, prejudice or affect the plaintiff's claim against the defendant. in Chili, possessed of land there and personalty. In 1832, it was proposed that H, who was residing in Chili, and managing the property, but had not lost his English domicile, should purchase his brothers' shares. Several proposals and counter-proposals were made, and H sent some remittances to his brothers, and then retained possession of the property from 1835 to 1850, without any interruption from either of them. B died in 1849, and in 1850, T and B's representatives commenced a suit in Chili against II, to recover their shares. Two Chilian Courts in succession decided that there was a contract binding B but not T. H, who had actively defended the suits in Chili, now came to England, and Upon the whole, he was of opinion that public | filed a bill, to restrain T from disturbing him in the policy and private justice required that the sale should possession of G's estate. This Court having come to the be set aside, and that the defendants should pay to conclusion that, according to English law, T's delay for the plaintiff, a portion of his costs, or, if they pre-seventeen years, and until after B's death, barred his ferred it, the sum of 1007.; the decree, however, must right to an account :— be declared to be without prejudice to the question, whether the creditors of the plaintiff, or the assignees, were entitled to get the benefit of the setting aside of the sale. The allegation of acquiescence was sufficiently answered by the fact that the plaintiff could not have sued during his bankruptcy. TURNER, L.J., said, that the sale could not have been upheld against the assignees, and the only question was, whether the plaintiff was entitled to have it set aside; it was not open to the defendants upon the pleadings to object to the validity of the order annulling the bankruptcy; but if it had been, he agreed that the Court was bound to treat the order as valid. The words in the order, protecting sales made by the assignees, were intended to prevent such sales from being impeached on the sole ground of the bankruptcy having been annulled. The deed did not assist the defendants; they were not parties to it, and the assignees might, without their consent, have waived their rights under it; and the plaintiff might, if necessary, have sued in the names of the assignees, upon giving them the usual indemnity. Even if the right to have the sale set aside was incapable of assignment, which he did not admit, he was of opinion that the plaintiff, by virtue of the annulling order, became entitled to have it set aside on any other ground except that of the bankruptcy having been annulled. As to the form of the decree, and as to the costs, he concurred with the Lord Justice Knight Bruce. The defendants elected to pay the 1007. in lieu of costs. Master of the Rolls. 3, 4, 5 Nov., 3 DEC. 1863. Held, that the contract being between three domiciled Englishmen, was governed by English law, although the principal subject-matter was landed property in Chili, and that therefore the Chilian decisions were not binding upon this Court. This was the hearing of the suit upon motion for decree. The plaintiff, Henry Robert Linnett Cood, and the defendant, Thomas Cood, were two of four brothers. George Cood, the eldest of the four brothers, had established himself in business at Valparaiso, in the republic of Chili, and died at Arequipa in Peru in April, 1825, possessed of landed property at Valparaiso, and also of personal property, including a share in a partnership, and leaving his three brothers and his mother him surviving. The mother died in October, 1831, having left the residue of her property equally Thus, according to among her three surviving sons. both the English and the Chilian law, each of the three surviving brothers became entitled to one-third of George Cood's estate. Henry Cood, who was then established in business at Truxillo, in Peru, was, in 1826, appointed by his mother and brothers, jointly with one Barnard, who died in 1829, to act for them in relation to George Cood's estate, and he and Barnard were also appointed by the proper Chilian Court administrators of George Cood's estate. The settlement of George Cood's affairs proved very troublesome, and, in particular, claims were set up against his estate by his surviving partners and by a person claiming to be his illegitimate child, who, if such, would, by the Chilian law, be entitled to onesixth of his property. Henry Cood had remitted considerable sums to his Judgment of Foreign Court-Contract between mother and brothers on account of their shares in Englishmen, but relating to Land abroad. George Cood's estate, and he also sent them fall accounts of his payments and receipts and other pro Three brothers, H, T, and B, were each entitled to one-ceedings in relation to the estate. third of the estate of a fourth brother G, who had died In a letter dated the 2nd of February, 1832, the defendant, Thomas Cood, proposed to sell his share in George Cood's estate to Henry Cood for 1000l., but he made it a condition that the money should be placed in his hands before the following October. in my power to make good my contract with you and Ben, and have, with every British merchant here, to regret my not being able to do so. Of course, as I have not fulfilled my contract, it lies with you and Henry Cood being absent from Valparaiso did not Ben to be off the same should you wish. receive this letter until November, 1832. In a letter You only say, as regards my offer, that you have dated the 18th and 19th of January, 1832, he informed passed my letter to Ben, and whatever he determines Thomas that for this reason "his offer did not take on will meet, you say, your approval. He does agree effect." He then went into details as to the state of individually, but not jointly with yourself, and which the house property and the threatened litigation, and was, if you will refer to my letters of the 18th and expressed his willingness to purchase his two brothers' | 30th of January, 1833, my positive offer, as without shares, which would obviate the necessity of voluminous both your approvals and regular deeds of sale to me, accounts of his journeys and of the repairs, &c. of the I cannot make out deeds of sale to others." houses and land. Then, after referring to the risks of "revolution, fire, earthquakes, &c.," he proposed to make over to his two brothers, in exchange for their shares in the residue of George Cood's estate, his own share in his mother's property. In another letter, dated the 30th of January, 1833, also from Henry Cood to Thomas, Henry confirmed his previous offer. In a letter, dated the 29th of June, 1833, from Benson Cood, the other brother, to Henry Cood, Benson Cood, after stating that Thomas Cood had handed him the letter of the 18th and 19th of January, proposed to sell his own share in George Cood's estate for 1,100., to be paid on or before the 1st of July, 1834. A letter, dated the 13th of July, 1833, from Thomas Cood to Henry Cood, contained the following passages : "You have no idea of the task it is to me to write to the dearest friend or relation I have. I have now quite retired from business, and am about to take up my residence on the Continent. I handed your letters, as directed by you, to Ben, and he will act on them. Whatever he determines will meet my approval, so high is my opinion of him in all matters of business. In future address to him at No. 12, Upper Stamford Street, Blackfriars. If you have anything to communicate to me personally, address it to the care of the Ross's [the relations of Henry Cood's wife], and desire them to deliver it to me personally, and to no one else. Recollect in writing to me address to Ross's, and on matters of business to Ben as above." There was no direct evidence as to whether Henry's letters referred to in the preceding letter were those of the 18th and 19th of January, and the 30th of January, 1833. On the 31st of August, 1833, Benson Cood wrote again to Henry Cood; and, referring to his previous offer, expressed a hope that "this may greatly facilitate your settlement with G. C.'s late partners (through T. C. acquiescing with you in a similar way), by being the sole representative to arrange with.” On the 31st of May, 1834, Henry Cood wrote to Thomas Cood; and, after referring to the civil war in Peru, and to the money he intended to remit being buried, said ;—“I will not fail to do every endeavour On the same day, 31st May, 1834, Henry Cood wrote a letter, substantially to the same effect to Benson Cood. Henry Cood subsequently, in 1834 and 1835, wrote, and sent remittances, to Benson Cood, and the latter paid part of these remittances to Thomas Cood; but Thomas Cood (by his answer in this suit) denied that he had received them on the footing of any contract for the sale of his share in Thomas Cood's estate, or that he received as much as 1,100%. From 1836 till 1850, Thomas Cood, so far as ap peared, made no application to Henry Cood for any accounts of George Cood's estate, and never set up any claim to any share in the estate. Benson Cood died in 1849, and in 1850 Thomas Cood and the representatives of Benson Cood com menced proceedings against Henry Cood in the Court of First Instance at Valparaiso, and upon his declaring himself insolvent, they continued them against his estate, of which the other plaintiff, Nicholas Albano, was appointed assignee or syndic according to the Chilian law. In these proceedings they claimed to have certain landed property in Chili belonging George Cood, and also his share in the partnership, with their profits and interest, and with the exception of the third part belonging to Henry Cood, delivered to them. The Court of First Instance at Valparaiso decided that as regarded the share of Benson Cood the sale had been perfected without the necessity of any further formality, but with respect to the share of Thomas Cood the facts were not sufficient to constitute a complete contract on the part of Thomas Cood; ordered Thomas Cood's share to be delivered up to him after a partition had been made by arbitrators named by the two parties. and Both sides appealed against this decision, but it was affirmed in 1858 by the Superior Court at Santiago. From the judgment of the Valparaiso Court it appeared that the syndic of Henry Cood's estate contended among other defences that the action was barred by lapse of time; and that by amicable arrangements Thomas and Benson had renounced their hereditary rights realisable in Chili in favour of Henry, in consideration of payments, grants, and remunerations of hereditary rights realisable in England made by him in their favour, and therefore they could only come in as creditors for any balance due to them under these arrangements; and that Henry's possession for twenty years was in itself evidence of these arrangements. He put in certain letters (apparently those set out above) as containing these arrangements, and relied upon the circumstance that Benson, the representative of the vendors, never afterwards claimed the property but only the balance of the accounts. The following extracts from the judgment of the Valparaiso Court will sufficiently show the view that Court took of the case. "7th. The proposal of sale of his rights on the part of Mr. Benson, contained in the memorandum at folio 37 [a memorandum accompanying the letter of the 29th of June, 1833], although conditional as regards the term limited of payment and other circumstances, became a simple contract when, as appears by acts sufficiently proved, Mr. Benson released the said conditions. "11th. That (Mr. Henry being in possession of the parts sold by Mr. Benson), from the time that the latter, as is before said, charged to him in account the agreed price, and by reason of the contract afterwards received sums of money, the sale stood completed without other formality, according to the provisions of L. 47, tit. 28, partida 3, and L. 8, tit. 5, partida 5. "12th. That in respect of Mr. Thomas Cood the same does not follow, for his proposal at folio 33 [apparently that of the 2nd of February, 1832] being equally a conditional one, it remained without effect when the conditions were not fulfilled by Mr. Henry, nor released by Mr. Thomas. "13th. That the release of the conditions made by Mr. Benson does not bind the same Mr. Thomas as the syndic pretends, inasmuch as the letter of Mr. Thomas, on which for this purpose the syndic relies [that of the 13th of July, 1833], does not express the matter or matters of business in which he submits himself to the decision of Mr. Benson, nor is it possible to ascertain it, not knowing the contents of the letters of Mr. Henry, to which that of Mr. Thomas relates. "14th. That neither do the other data which the records afford, in addition to the letters, suffice to prove in the requisite manner the completion of the contract on the part of the said Mr. Thomas. "15th. That the prescription alleged by the syndic has no place, since Mr. Henry has, in regard to Mr. Thomas, no title of ownership that justifies his possession." Henry Cood remained in Chili till 1859, when he came to England in the present suit. The plaintiffs in the present suit by their bill now alleged that on the faith of his contract with Thomas Cood, Henry Cood had, with the knowledge of Thomas Cood, made large disbursements and incurred heavy personal responsibilities in respect of George Cood's landed property at Valparaiso, and expended large sums in lasting improvements and upon the law suits, and that Thomas Cood had, for seventeen years, allowed him to do this without ever claiming to be interested in the property. They also alleged that it was not competent to them in the Chilian suits to ask for a declaration that Thomas Cood was a trustee for Henry Cood, or to seek specific performance of the agreement between Henry Cood and Thomas Cood as one only partly performed, or to insist upon the equitable grounds stated above, or to obtain discovery from Thomas Cood. And they prayed, 1st. That Thomas Cood might be restrained from continuing the aforesaid proceedings, or taking any other proceedings in the Chilian Courts, or otherwise, for disturbing the plaintiffs in the possession of Thomas Cood's share of George Cood's estate. 2nd. That Thomas Cood might be declared a trus tee for the plaintiffs of any legal estate, interest or property he might have in George Cood's estate, and that the said agreement might be specifically performed, and that Thomas Cood might be ordered to do all things necessary for carrying the same into effect, or for vesting his share in George Cood's estate in the plaintiffs. Thomas Cood, by his answer, asserted that it would have been competent to the plaintiff's to seek specific performance in the Chilian proceedings, and it appeared that they did examine Thomas Cood in France under a commission. There was no evidence as to the law of Chili, as the defendant had objected to a commission being sent out to Chili to ascertain what questions could have been determined in the Chilian proceedings; and, even as to the proceedings in the Chilian Courts, the evidence was very incomplete, and the Master of the Rolls only admitted it to be read de bene esse, to see whether there was any ground for instituting inquiries as to the Chilian proceedings. The defendant had originally put in a plea and answer, the plea denying any contract between himself and Henry Cood. That plea was overruled on the ground that the bill made out a case of acquiescence which would be sufficient to bind the defendant, even if there were no express contract. Selwyn, Q.C., and De Gex, for the plaintiffs, cited as to the jurisdiction of the Court over property abroad, Penn v. Lord Baltimore, 1 Ves. Sen. 444; 2 Tud. [THE MASTER OF THE ROLLS referred to Norris v. Chambres, 29 Beav. 246.] They also cited as to the enforcement of informal family arrangements, Neale v. Neale, 1 Keen, 672. Baggallay, Q. C., and Fooks, for the defendant, con. tended that the plaintiffs were bound by the deci sions of the Chilian Courts. Perhaps, if they had come to this Court in 1850, it might have interfered, but they had submitted themselves to the Chilian forum, and had had the opportunity of raising, and had in fact raised, the same questions; and the decision having been against them, they were now come here to ask this Court to act as a Court of Appeal from the Chilian Court. The Chilian Court was the proper forum for the decision of the present case, the principal subjectmatter of the litigation being landed property in Chili. Besides Henry Cood's residence in Chili, obliged Thomas Cood to institute his proceedings in the Courts there. Paragraph 15 of the judgment of the Valparaiso Courts showed that the lapse of time was taken into account by the Chilian Courts. His Honour then went through the facts of the case, remarking, as to Thomas's letter of the 13th of July, 1833, that, in his opinion, it meant that Thomas would confirm whatever Benson did as to the sale of his share, and that, at any rate, it must be construed most strongly against the writer, and in the sense in which Henry might have understood it, or, in fact, did understand it, unless there was some subsequent repudiation of that sense. He did not find any such repudiation, nor any claim whatever made by Thomas, until after Benson's death in 1849. In 1850, however, when Benson, the principal actor in the transaction with Henry, was dead, Thomas sends out one of his nephews to demand the estate of George Cood, who had then been dead 25 years. The time which had since elapsed was not to be taken into account, but if Thomas had, in 1850, filed a bill in this Court for an account of George Cood's, his Honour, considering it as a question of English equity, should have held that he was barred by lapse of time and acquiescence, and should have confined the account to the 11007., the price agreed [THE MASTER OF THE ROLLS said, that in 1833-6, there was a rebellion in Chili, and the property was of very little value. Could the defendant acquiesce in the sale for a time, and then come fourteen years afterwards, when the property had greatly increased in value, and ask for an account? Paragraph 15 dismissed the vital point of the case very shortly and not very satis-upon. factorily.] The lapse of time might have been a reason for refusing Thomas any relief in this court if he had come here as plaintiff to ask for an account, but it was not a reason for interfering against him. The Court would not have interfered on that ground, if the defendant had recovered in an English Court of Law on the strength of a legal estate. They also contended that the letters did not show any concluded agreement even between Henry and Benson. Every proposal or contract was conditional, and the conditions were never complied with, The second question related to the effect of the Chilian proceedings, and this formed the principal ground relied upon by the defendant. In those proceedings, Thomas claimed one-third, and the representatives of Benson another third, of George Cood's estate, and the Chilian Court held that the contract for the sale to Henry bound Benson but not Thomas. Now, if he were regarding the case simply as a question of English law, he should have had great difficulty in coming to that conclusion. How could one entire contract be binding upon Benson, and not binding upon Thomas. Henry's object in purchasing Governors of Kingston-upon-Hull v. Fitch, 24 L. was to avoid having to render voluminous accounts, J. (N. s.) Ex. 23. and this would not be accomplished unless he pur chased the shares of both his brothers. The corre Benson. Selwyn, Q.C. (in reply), contended that Henry hav-spondence did not disclose any separate contract with ing only proposed to make a joint contract with both his brothers, the Chilian decision that the contract was binding upon Benson and not upon Thomas must be wrong, and that the reference in paragraph 11 to the formalities required for a contract showed that the Court had proceeded upon some local law requiring a contract to be executed with certain formalities. 3 DEC. 1863. THE MASTER OF THE ROLLS said, that the questions which arose in the present case were two-1st, Whether Henry Cood bought the share of his brother Thomas; and, 2nd, Whether the preceding question had been disposed of in the decision of the Chilian Courts, and, if so, whether this Court, supposing it to come to a different conclusion, would be, nevertheless, bound by those decisions; and he thought it would be most convenient, in the first instance, to consider the rights of the parties as they would stand independently of the Chilian decision. The question, however, was, which law was to govern the case. The right to land situate in Chili would prima facie be regulated by the Chilian law; but the present question related to a contract between three Englishmen, of whom two were resident in England, and the third, though residing in Chili, had not acquired a domicile there; and it must there fore be determined by English law. He was of opinion that although Benson had not been constituted Thomas's agent to bind Thomas, Thomas had said that he would be bound by what Benson did, and-considering that Thomas had taken no step to question the contract until after the lapse of seventeen years and the death of Benson he was further of opinion, that although there was no contract which the Court could specifically enforce, it was not open to Thomas in 1850 to claim to have the accounts taken. He should not direct specific performance, but proposed to preface the decree with the following declaration :-"Declare, that having regard to the correspondence between the plaintiff Henry Cood the defendant Thomas Cood and Benson Cood from the beginning of 1833 to the end of 1835 set forth in the pleadings, and having regard to the lapse of time from the close of the correspondence to the commencement of the proceedings in the Chilian Courts, and that during that time Thomas Cood took no step to question the plaintiff's purchase, or to obtain any account, the Court was of opinion, that Thomas Cood was not now entitled to any account." The decree would then direct relief according to the prayer of the bill, but was to be without prejudice to any step which Thomas might take to enforce an account of what was due from Henry on the footing of their contract. The testator's wife died in 1856. The two trustees were then both dead, and the language of the trust for sale in the will did not, it was considered, enable the devisee of the surviving trustee to make a good title. Under these circumstances, Mr. Marshall, a solicitor whom the testator's children consulted, advised them to have new trustees appointed by the Court of Chancery: and ultimately a petition was presented, and the Court appointed John Boucher and Robert H. Wood as trustees. Boucher and Wood became trustees at Marshall's request; and he admitted in his answer that he undertook to indemnify them against any loss in consequence. The sales were all completed before July, 1858. On the 2nd of that month an account of the trustees' receipts and payments was submitted to the cestuis que trustent, who signed their approval thereof. On the 7th of that month the cestuis que trustent executed a release, and the amounts which according to the account appeared to be due to them were paid to them or their mortgagees. The appointment of the trustees was obtained by another firm of solicitors, who afterwards professed to act as solicitors to the trustees, Marshall continuing to represent the cestuis que trustent. Marshall, however, prepared the release, and it appeared that some small payments charged in the accounts had not been actually made, but the amounts had been retained by him. The original bill was filed against the personal representatives of Boucher and Wood, asking for an account. The defendants by their answers set up the settled account and release as a defence, and also objected that the suit was defective as to parties, Samuel Boucher having in December, 1858, taken the benefit of the Insolvent Debtors Acts. The bill was afterwards amended very extensively, and the circumstances stated above as to Marshall were introduced. The bill also stated that Marshall was the creditors' assignee, and one Harding the official assignee of Samuel Boucher, and both Marshall and Harding were made defendants. No specific relief was prayed against Marshall, but there was the usual prayer for such further or other relief as the nature of the case might require. Marshall was interrogated upon all the statements in the amended bill, and put in two answers, admitting thereby that he had 237. 1s. in his hands, part of a sum retained to answer some costs supposed to be due to the Solicitor-General. He also filed affidavits in answer to the plaintiffs' notice of motion for decree. It appeared that the settled account included certain items which could not be supported, e. g., agreed sums for costs of which no bill had been delivered, and ten guineas to the trustees for their trouble. Cole, Q.C., and T. H. Terrell, for the plaintiffs, stated the plaintiffs' case against the different defendants, and as regarded Marshall, contended that they were entitled to relief against him under the prayer for general relief, 1 Daniell, Ch. Pr. 265-269. THE MASTER OF THE ROLLS said, that subject to what might be said on the other side, he should treat the account of the 2nd of July as a settled account, but give the plaintiffs leave to surcharge and falsify, and he should also direct an inquiry whether any and what part of the trust funds came into the hands of the defendant Marshall, and if so, when and in what character, and in what way he disposed of the same. Baggallay, Q.C., and Surrage, for the executrix of Boucher. Selwyn, Q.C., and Ince, for the executrix of Wood. T. A. Roberts, for Marshall, besides arguing that on |