this distinction between cases of that class and the present case, that there the event with regard to which the question of the shares being vested arose had not been provided for; here the settlor had provided for the happening of every event. The principle of that case did not apply where there were special trusts expressly declared for the issue of children dying in the life of the tenant for life. This case was clearer than Mocatta v. Lindo and Mendham v. Williams. There the Vice Chancellor held that the words "due and payable" meant vested. This was а case of devesting. The gift to the issue of a child was not made to depend upon his attaining twenty-one. The gift over was to take effect "if any child should die without issue before his share became due and payable." Having regard to all the clauses of this settlement, the intention of the settlor was so clearly expressed that the Court in construing it was not bound by the cases which had been cited. Since J. W. Wilmott died in the lifetime of the tenant for life all his share passed under the accruer clause. be made a rule of any court of record; nor did it contain words purporting that the parties to it intended that it should not be made such. It was, however, unusual in its terms, and created certain trusts of the property directed to be sold by order of the arbitrators. Pending the reference under the submission one of the parties to it, by a deed-poll under his hand and seal, revoked the agreement for the submission. A motion by the other party to the agreement to make it, notwithstanding such revocation, an order of this court was refused with costs. By an agreement of reference, in writing but not under seal, which was dated the 31st of March, 1868, and entered into and signed between and by the Rev. George Drury of the one part and the Rev. Joseph Leycester Lyne of the other part, after reciting that George Drury was seised to him and his heirs for an estate of inheritance in fee simple in possession of and in certain freehold messuages, lands and hereditaments in the city of Norwich, known as the Elm Hill Monastery (formerly occupied as a monastery by Joseph Leycester Lyne and his companions), and other hereditaments adjoining, subject to certain incumbrances or charges thereon, and that questions and disputes had arisen and were then pending between George Drury and Joseph Leycester Lyne in reference to the said hereditaments and the incumbrances thereon, which questions and disputes the said parties were desirous of having adjusted and finally settled, it was agreed and declared 1. That the Rev. Pascoe Grenfell Hill and the Rev. Edward Stuart should be, and George Drury and Joseph Leycester Lyne did, and each of them did, constitute and appoint the said Pascoe Grenfell Hill and Edward Stuart arbitrators, to whom or to whose umpire, to be appointed as thereinafter mentioned, all questions and disputes between the said parties were to be referred. 2. That prior to the said arbitrators entering upon the said reference they should agree in appointing and should appoint some third person to decide as umpire between them, the said arbitrators, in case they should differ on any matter thereby referred to them. 3. That the said arbitrators or their umpire should take an account and ascertain all moneys due in respect of the said charges or incumbrances properly incurred. upon the said hereditaments or any part thereof. 4. That the said arbitrators or their umpire should cause the said hereditaments to be sold by public auction or private contract, and either together or in parcels, and either subject or not to such special conditions as to the title or evidence of title and commencement thereof or otherwise, and at such price or prices as the said arbitrators or their umpire should think fit, with full power to buy in or rescind any contract, and to re-sell without being responsible for any loss which might be occasioned thereby the said George Drury and Joseph Leycester Lyne, according to their respective estates and interests therein, thereby respectively binding themselves and their respective heirs and assigns to do and execute all such acts and assurances as should be necessary for effecting or completing any such sale or sales as the said arbitrators or their umpire should think necessary. : 5. That the said arbitrators or their umpire should stand possessed of the moneys arising from such sale or sales, upon trust thereout in the first place to pay and satisfy all such sum and sums of money as should be due and owing to the respective incumbrancers on the said hereditaments for any incumbrance properly incurred thereon; and in the next place to pay and discharge all costs of effectuating and completing such sale or sales, charges and expenses of and incidental thereto or consequent thereon; and, subject as aforesaid, that the said arbitrators or their umpire should stand possessed of the surplus of any moneys arising from such sale or sales upon trust to dispose of or apply the same to such cognate purposes as they, the said arbitrators or their umpire, should think fit. On the 9th of June, 1868, the arbitrators met, and appointed a Mr. Robert Brett as their umpire. That appointment was approved by Mr. Drury and Mr. Lyne; and after Mr. Lyne's attorney had opened his case the arbitrators adjourned till the 18th of June, 1868. On that day the par ties again met, the reference was proceeded with, and again adjourned to the following day. On that day the solicitor for Mr. Drury closed his case, and the attorney for Mr. Lyne concluded his; a great deal of evidence, oral and written, having been adduced on both sides. The arbitrators expressed a wish to have copies of the written evidence left with them for perusal, and accordingly they adjourned the reference till the 4th of November, 1868. On that day the arbitrators met. Mr. Drury attended the meeting, but Mr. Lyne (who had in the mean time changed his attorney) then appeared by counsel. When the proceedings were about to commence Mr. Lyne's counsel stated that if Mr. Drury would pay Mr. Lyne 6007. he would release to Mr. Drury all his interest in the hereditaments in question; but that unless Mr. Drury paid that money the counsel for Mr. Lyne was instructed to withdraw from the reference. No reason was assigned why Mr. Lyne so acted; and Mr. Drury's solicitor declined to accede to the proposal. Mr. Lyne's father (who was then attending the meeting in the place of his son) refused to take any further part in the proceedings, and left the arbitrators' room. Before that withdrawal, however, verbal notice had been expressly given, on behalf of Mr. Drury, to the counsel and attorney of Mr. Lyne, that in the event of their withdrawing Mr. Drury would request the arbitrators to proceed ex parte. That was accordingly done. The arbitrators then adjourned till the 30th of November, 1868, and issued a peremptory appointment to all parties to attend them on that day. Notice of that appointment was duly sent to Mr. Lyne's attorney, and personally served on Mr. Lyne himself. On the 30th of November, 1868, Mr. Drury attended the meeting before the arbitrators with his solicitor; but neither Mr. Lyne nor his counsel or attorney were then present. Mr. Drury was willing that the reference should be completed in pursuance of the agreement; and the arbitrators therefore requested his solicitor to have the agreement of the 31st of March, 1868, made an order of this court, By a deed-poll under the hand and seal of Mr. Lyne, and which was dated the 4th of January, 1869, he "revoked, countermanded, put an end to, annulled and made void" the therein and herein before stated agreement of the 31st of March, 1868, and the aforesaid appointment of the arbitrators, and all directions and authorities thereby given and delegated to them, and all powers and trusts thereby by him created and vested in them. Notice of that deed was duly served on the arbitrators. The matter now came on to be heard upon a motion on behalf of Mr. Drury, that the agreement of the 31st of March, 1868, might be made an order of this court pursuant to the enactments and provisions of the Common Law Procedure Act, 1854, section 17. Mr. Greene and Mr. Francis Webb, for Mr. Drury, supported the motion. The case was within the spirit, if not the letter, of the 3 & 4 Will. 4. c. 42. s. 39, as modified by the Common Law Procedure Act, 1854, section 17. By the former act and section, after reciting that "it is expedient to render references to arbitration more effectual," it was enacted, that "the power and authority of any arbitrator or umpire appointed. . . . by or in pursuance of any submission to reference containing an agreement that such submission shall be made a rule of any court of record, shall not be revocable by any party to such reference without the leave of the court. . . . which shall be mentioned in such submission, or by leave of a Judge; and the arbitrator or umpire shall and may, and is hereby required to proceed with the reference, notwithstanding any such revocation, and to make such award, although the person making such revocation shall not afterwards attend the reference.' submission in this case did not, in fact, contain such an agreement as was mentioned in that section; but by the Common Law Procedure Act, 1854, section 17, it was enacted that, "every agreement or submission to arbitration by consent, whether by deed or instrument in writing not under seal, may be made a rule of any one of the superior courts of law or equity at Westminster, on the application of any party The thereto, unless such agreement or submission contain words purporting that the parties intend that it should not be made a rule of court," &c. The submission contained no words purporting that it was not to be made a rule of court, and therefore Mr. Drury was now entitled to the order for which he moved. They also cited Pope v. Lord Duncannon, 9 Sim. 177. Mr. Dickinson and Mr. Herbert Smith, for Mr. Lyne, were not called upon. STUART, V.C.In this case the submission contains no provision that the agreement shall be made a rule of any court of record. The case is therefore clearly not within the 3 & 4 Will. 4. c. 42. s. 39, by which statute it is provided that the submission shall not be revoked if it contains a provision that it shall be made a rule of court. What is to be inferred where there is no such provision? According to the old law this is a case in which the submission was clearly revocable. It is in evidence that this submission has been revoked by a deed-poll by one of the parties to it; and I do not doubt that at law that deed is good. The Common Law Procedure Act, 1854, section 17, seems to me to make no material alteration in the law as it then stood. It contains no provision which would justify this Court in entertaining this special application, and to direct that this submission-under hand only, and not under hand and seal, and which has been revoked by deed-should be made an order of this court. The submission is, moreover, one of a very unusual kind, and contains trusts for sale of the property in question and for the disposition of the proceeds of the sale. In the absence of any express authority upon the point, I must refuse this motion, with costs. Solicitors-Messrs. Smith & Gwilt, agents for Mr. B. L. Gross, Ipswich, for Mr. Drury; Mr. George Smith, for Mr. Lyne. Administration FARHALL V. FARHALL. Securities of Testator in Bankers' Hands-Advances to Executor -Misapplication-Notice. A testator died indebted to his bankers, who held as a security title-deeds of his estate. His executrix and widow was empowered by his will to charge his real estates in aid of his personal estate. She drew from the bank on account of the testator's executors, and deposited other title-deeds of the testator's estate as a further security. The sums thus drawn were misapplied by her. In a suit to administer the testator's estate,-Held, that, in the absence of notice of any breach of trust, the bank was entitled to hold the title-deeds as a security for the moneys advanced to the executrix. Adjourned summons, taken out in the above suit by the London and County Joint-Stock Banking Company. The suit was for the administration of the estate and effects of Richard Farhall. The testator by his will, dated the 4th of October, 1853, appointed his wife, the defendant Mary Farhall, and two other persons executrix and executors and trustees of his will, and he directed his debts to be paid; and devised to his wife a rent-charge of 1007. issuing out of the hereditaments thereby devised; and he directed and empowered his said trustees to execute all such deeds and instruments as should be requisite or advisable for carrying out, facilitating and giving legal effect to the trusts and purposes of his will; and he further directed and empowered his trustees from time to time in execution and furtherance of the trusts and purposes of his will during the lifetime, but always by the direction in writing of his said wife to get in, convert and sell his real and personal estate as therein mentioned, "or in aid of his personal estate to mortgage and grant powers of sale of the whole or any portion of the same" real estate; and subject to the foregoing trusts, powers and provisoes he devised and bequeathed his real and personal estate to his said trustees upon trust for his three sons and his daughter as therein mentioned. The testator died on the 11th of December, 1861, and his will was proved by his widow NEW SERIES, 38.-CHANC. alone on the 27th of May, 1863, the other executors therein named having duly renounced probate. In 1867 this suit was instituted by the testator's daughter against his widow as executrix and against his two surviving sons. The testator during his life had kept a banking account with the Petworth Branch of the London and County Bank. In November, 1861, the testator, having then overdrawn his account with the said bank, deposited with them the title-deeds of certain real estates, and signed a memorandum of deposit, by which he declared that the deposited deeds should be held by the bank as a security for 1,000l., in which he acknowledged himself to be then indebted to the bank, and for all moneys which should at any time become due to the bank on the general balance of his account, including interest, commission, &c. At the testator's death there was due from him to the said bank a sum of 7321. 2s. 3d., secured by the said deposit and memorandum. Immediately after the testator's death his widow (as appeared from the affidavit of Mr. Osborn, the manager of the Petworth Branch of the bank) applied to the bank to be allowed to draw on her late husband's account, but Mr. Osborn dishonoured a cheque drawn by her in her personal character, and being referred by her to her late husband's solicitor, who was one of the executors named in his will, Mr. Osborn wrote to him to ask whether the testator's executors authorized Mrs. Farhall to open an executorship account. The solicitor replied, that Mrs. Farhall was sole executrix and could draw cheques on account of the testator's estate. Thereupon the bank opened an account entitled "Mr. Richard Farhall's Executors' Account," and honoured cheques upon it signed "Mary Farhall, for the executors of Richard Farhall, deceased," and no others. Mrs. Farhall overdrew such account by such cheques to a large amount. In January, 1863, the account being then overdrawn to the amount of 1,171. 11s. 6d., the bank required Mrs. Farhall to give them some further security for the current balance against her, whereupon she deposited with the bank the titledeeds of certain parts of the testator's real estate, and signed a memorandum declaring that the same deeds should be held as a security for the sum of 2,000l., and "for all 20 moneys which shall at any time be due from me to you on the general balance of my account with you, such balance to include all interest, charges for commission and other expenses which you may, in the course of your business as bankers, charge in respect of any advances or discounts made to me or on my account, or for keeping my said account with you;" and she thereby undertook when required to execute to the bank a valid legal mortgage of the hereditaments to which the titledeeds related. This memorandum was signed by Mrs. Farhall, "For the executors of the late Richard Farhall.” On the faith of this security the bank continued as before to honour Mrs. Farhall's cheques on the executorship account. In April, 1864, the balance due to the bank from the testator was, at Mrs. Farhall's request, transferred to the same executorship account; and in October, 1864, the bank, thinking they had reached the limit of their securities, ceased to make any payment on the executorship account, which then stood at 2,5787. 198. 11d. against the executors. In January, 1867, the claim of the bank in respect of principal, interest and commission amounted to 2,5937. 17s. 1d. Mr. Osborn stated in his affidavit that "All the payments made by the bank on the said account were made in reliance upon the authority of Mrs. Farhall to mortgage the testator's real estate in aid of his personalty, and were made by the bank bona fide, and with every reason to suppose that Mrs. Farhall was properly applying the money in payments due from the testator's estate. The bank never had any knowledge, suspicion or notice of any improper application of any of the money, even if any such improper application was made." Mr. Osborn was not cross-examined on this affidavit. It appeared that Mrs. Farhall had expended a very large amount of the money advanced to her by the bank for the general purposes of herself and her children and in her own private speculations, and had applied only a very small part of it in respect of the administration of the testator's estate. By an order in the suit dated the 6th of May, 1868, the lands to which the deposited title-deeds related were sold without prejudice to any question as between the bank and the testator's estate the 7321. 2s. 3d. (due from the testator) and interest were paid to the bank out of the proceeds of the sale, and the surplus proceeds paid into court to the credit of the cause, to await the result of an inquiry directed by the same order as to what was due thereout to the bank. The bank took out this summons to have the above inquiry proceeded with. Mr. Kay and Mr. Waller, for the bank, supported their claim to hold the deeds as a security for the sums advanced to the testator's widow. The only question was, whether a mortgage by trustees would be supported in the absence of an express power to mortgage. It would be allowed where the estate was devised subject to a particular charge Stroughill v. Anstey, 1 De Gex, M. & G. 635; s. c. 22 Law J. Rep. (N.S.) In order to fix a person advancing money to a trustee upon the security of an estate charged for payment of debts with liability for misapplication of the moneys advanced, he must have notice of the intended misapplication Watkins v. Cheek, 2 Sim. & S. 199. 22 Law J. Rep. (N.S.) Chanc. 1060. Forbes v. Peacock, 1 Phil. 717; s. c. 15 Law J. Rep. (N.S.) Chanc. 371. Greetham v. Colton, 34 Beav. 615. M'Leod v. Drummond, 17 Ves. 152, 168. Mr. Druce and Mr. Haddan, for the plaintiff, the testator's daughter, opposed the application, on the grounds that the testator's widow had no power to make such a deposit, and the bank had notice that the moneys were not required by her as executrix, as was shewn by the manner in which the money was drawn out in driblets and the time which had elapsed since the testator's death. They referred to Cutbush v. Cutbush, 1 Beav. 184; s. c. 8 Law J. Rep. (N.S.) Chanc. 175. Mr. J. N. Higgins, for Saffery, the assignee of the testator's eldest son, argued that the course of dealing raised a fair notice that all the sums advanced by the bank were not advanced on the executorship account. |