by which he was bound to pay this interest, or if no agreement, there was notice of the trust, and Francis being cognizant of the breach of trust, and having received the whole of the rents with such notice, is personally liable as for money had and received for Mary Morley's use. There was a positive personal liability, and the executor has a right to set off the debt against the legacy, upon the principle of Courtenay v. Williams, 3 Hare, 539; s. c. on appeal, 15 Law J. Rep. (N.S.) Chanc. 204. There can be no doubt that the charge affects the life interest as well as the remainder, and although it was open to the trustees to arrange with the tenant for life that he should be let into possession, it could only be upon the terms of his fulfilling the trust and doing what they ought to do Dixon v. Peacock, 3 Drew. 288. Mr. Cotton (in reply).—Our contention is, that there was no debt, nor could any arrangement between the trustees and Francis constitute him a debtor as against the testatrix; therefore, the right of set-off cannot arise. The remaindermen are not before the Court, so that their rights, if any, against Francis cannot now be considered. MALINS, V.C.-This is a claim by the representatives of Francis Morley against the estate of Mary Morley for a legacy of 1,000l. bequeathed to him by her will; the payment of the legacy is resisted on the ground that Francis having been allowed to remain for several years in actual possession, as tenant for life, of certain estates charged with the payment of interest upon a sum of 4,500l. due to the testatrix, failed to pay that interest, and so stands indebted to her estate. The chief clerk, by his certificate, finds that some payments in respect of this interest were made by Francis from time to time while he was in possession, but that there was due to Mary Morley at the time of her death a sum far exceeding 1,000l., which is the amount of the legacy claimed. Now, if this constituted a debt against Francis Morley, it follows that his estate NEW SERIES, 38.-CHANC. being actually indebted to the testatrix to an amount in excess of the legacy, there would be a right of set-off, and so the legacy would be annihilated. It is true that, Mary Morley not having received the full amount of interest upon her moiety of the charge, there is still subsisting an incumbrance upon the estate to the extent of that unpaid interest as well as the principal sum; but has she any personal claim against Francis, or can it be contended that he received this money to her use? He was let into possession as tenant for life: but a tenant for life merely because he fails to keep down the interest upon a charge not created by himself cannot be sued either at law or in equity for the arrears. He may be stopped from receiving any more rents, but he incurs no personal liability which the incumbrancer can enforce against him. The debt, in fact, is a debt created by the original testator, and not by Francis Morley, and he is in nowise personally liable, though undoubtedly as between him and the remaindermen there may be a question of apportionment. The case is quite distinguishable from Courtenay v. Williams, because in that case there was an actual debt, but here, as I have said, there was no debt, the obligation to keep down the interest being an imperfect obligation, and consequently there can be no retainer. As was suggested in the argument, the case is very like that of a mortgagee allowing his mortgagor to receive the rents of the mortgaged estate without paying the interest on the mortgage debt; in such a case the mortgagee cannot call upon the mortgagor to account for back rents, though he is entitled to have his principal and arrears of interest raised out of the estate. The result will be, that this legacy must be paid over to Francis Morley's representatives, and there will be a declaration accordingly. Solicitors-Mr. J. L. Tomlin, agent for Mr. J. R. Tomlin, Richmond, for representatives of F. Morley; Messrs. Norris, Allen & Carter, agents for Messrs. Simpson & North, Liverpool, for executors of Mary Morley. 4 B Companies Act, 1862-ContributoryInfant Transferee-Signature by Father of Infant's Name to Transfer. A father purchased shares in the above company, and had the transfer made to his son, who was then an infant, and at sea. From the father's evidence it appeared that he, or another of his sons, also an infant, had signed the transfer in the name of his son. The company had since been ordered to be wound up, and on an application by the liquidator to take the son's name off the list of contributories, and to put thereon in its stead either the name of the father or those of the vendors, the latter were ordered by the Master of the Rolls, and on appeal by the Lords Justices, to be put on the list. In the month of December, 1866, Messrs. John Hunter Richardson & Thomas Richardson instructed their brokers to sell fifty shares which the Messrs. Richardson then held in the above company. On the 29th of that month the brokers, in pursuance of the instructions, sold the shares to other brokers, who, in the ordinary course of business, returned the name of "Charles Maitland, of No. 92, St. Paul's Road, Camden Town," as the person to whom the shares were to be transferred. A transfer of the shares was accordingly executed to Charles Maitland, and was with the share certificates handed to the purchaser's brokers, who paid the purchasemoney. The company having been ordered to be wound up, the name of Charles Maitland was placed on the list of contributories. His father, John Dundas Maitland, then made an affidavit that at the date of the transfer of the shares Charles Maitland was an infant. From the depositions of the purchaser's brokers it appeared that John Dundas Maitland had given instructions for the purchase of the shares, that he had paid the purchase-money, and that it was by his order that the name of Charles Maitland had been given as that of the purchaser. John Dundas Maitland stated, on crossexamination, that at the date of the purchase of the shares Charles Maitland was at sea; that he, John Dundas Maitland, purchased the shares for Charles in accordance with instructions given to him by the latter before he went to sea, and that the shares were paid for out of money belonging to Charles; that he, John Dundas Maitland, believed that the signature Charles Maitland to the transfer of the shares was in the handwriting of Henry Maitland, another of his sons, and who at the date of the transfer, was about thirteen years of age; but John Dundas Maitland would not swear that he had not himself signed the name Charles Maitland to the transfer, and could not recollect whether or not he had signed his son's name to the transfer. From the evidence of the attesting witness to the transfer it appeared that John Dundas Maitland had produced to him the transfer already signed, and asked him to attest the execution of it, and that the witness had done so, thinking that he was attesting the execution thereof by John Dundas Maitland. The liquidator had taken out a summons to have the register of members rectified by striking out the name of Charles Maitland as the holder of fifty shares in the company, and entering thereon either the names of John Hunter Richardson and Thomas Richardson, or the name of John Dundas Maitland, as the holders or holder of the shares, and that the list of contributories of the company might be varied by the liquidator accordingly, and that the costs of the application and of Charles Maitland might be paid by the person or persons to be settled on the list. Mr. Southgate and Mr. Bagshawe, for the liquidator. Sir Richard Baggallay and Mr. Lawson, for Messrs. Richardson. --The name of John Dundas Maitland ought to be put on the register instead of that of Charles Maitland. The evidence shews that the father was the real purchaser, and that his object in putting the shares into the name of the son was to escape liability. The father must be taken to have signed the transfer, and having signed it, though using the name of his son instead of his own, he is as much bound as if he had signed it in his own name.-They referred to Smout v. Ilbery, 10 Mee. & W. 1; s. c. 12 Law J. Rep. (N.S) Exch. 357. The transaction really was a purchase of the shares by John Dundas Maitland, and a settlement of them by him upon Charles Maitland, and Messrs. Richardson ought not to be prejudiced by the transfer having been made to Charles Maitland direct. Mr. Jessel and Mr. Ince, for John Dundas Maitland, were not called on. The MASTER OF THE ROLLS said-It is quite clear that I cannot put Mr. John Dundas Maitland on the list. I think it is clear upon the evidence that he has acted very improperly. It is, no doubt, very hard upon the transferor if he is not made aware that the transferee is an infant at the time he makes the transfer; but I am of opinion that I cannot put Mr. John Dundas Maitland on the list as the owner of these shares. Of course, it is entirely without prejudice to any proceedings which the Messrs. Richardson may take at law or in equity to make Mr. John Dundas Maitland answerable to them. Upon that I say nothing. I shall not make the Messrs. Richardson pay the costs. The official liquidator will have his costs, but those are all the costs that I shall give. Messrs. Richardson appealed, and the appeal was heard, on the 22nd of May, before the Lords Justices. Sir R. Baggallay and Mr. Lawson, for the appellants, urged that the only person appearing in the transaction was the father, J. D. Maitland. He had given the order and he had furnished the money. It might be said, on the other side, that he had acted by the authority of his son Charles; but Charles was, at the time, a minor, and was therefore incompetent to give such authority. In Curtis's case, 37 Law J. Rep. (N.S.) Chanc. 629; s. c. Law Rep. 6 Eq. 455, which was also the case of an infant, the infant had executed the transfers; but in the present case that was impossible, Charles Maitland being, at the time, away from England at sea. Mr. Southgate and Mr. Bagshawe referred to Curtis's case. They argued that, whether it were J. D. Maitland's intention to make a present of the shares to his son or to keep them himself, the effect of what he had done was, in any case, to make himself liable to be put on the list of contributories. Mr. Jessel and Mr. Ince, for J. D. Maitland, relied on the evidence both of him and of his brokers in proof that throughout the transaction Charles Maitland had been referred to as the real purchaser. They cited Ex parte Budd, 3 De Gex, F. & J. 297; s. c. 31 Law J. Rep. (N.S.) Chanc. 4. Sir R. Baggallay, in reply. LORD JUSTICE SELWYN agreed in the view taken by the Master of the Rolls. It appeared that there had been no mistake in the name inserted in the transferdeed. The evidence shewed that J. D. Maitland, the father, had told his brokers that he was buying for his son Charles, and by his authority; and it then became incumbent on the brokers to inquire into the circumstances of the transferee. It was admitted that, the transferee being an infant, the transfer could not bind him or take away the liability of the vendors, the Messrs. Richardson. Under these circumstances, his Lordship was of opinion that the appeal must be dismissed; and, according to the general rule, to which, indeed, he himself attached great importance, viz., that costs should follow the result, that it must be dismissed with costs, The Court has jurisdiction to set aside an agreement on the ground of mistake, but the mistake must be plain and palpable, and it must be possible to replace the parties in that which was substantially their original position. The word "warren" may pass an estate in the soil, provided the context of the instrument in which it is used shews that to be the intention, but its primary signification does not mean an estate in the soil. Co. Lit. 5 b (b) explained. A person having a right of free warren generally may grant a limited right by the grant of “a warren of conies." The Duchy of Cornwall in 1799 granted to a person under whom the plaintiff claimed, certain lands, "and all that warren of conies, with all and singular the rights, members and appurtenances whatsoever in B, and that lodge or house thereupon built, commonly called B. Lodge; and all that warren of conies in R, both which said warrens of conies are known by the name of B. Warren, and do extend themselves in and over the wastes or east moors of B, F, S. and A, in the county of Lincoln." The duchy was seised in fee of the soil of the wastes, and had also a right of free warren in gross in them :-Held (affirming the decision of the Master of the Rolls) that by the words “warren of conies," taken with the context, no estate in the soil passed, but only the right or franchise of a warren of conies" and whatever was fairly incident to or necessary for the exercise of the right of preserving and making profit out of the conies. 66 This was an appeal from the decision of the Master of the Rolls dismissing the plaintiff's bill. The bill sought to rectify or set aside an agreement for exchange on the ground of mistake. The principal question was, whether, under a grant from the Duchy of Cornwall, made in 1799, to one Thomas Pindar, under whom the plaintiff claimed, the soil in Bromby Common passed or only a right of "warren of conies" therein. The words of the grant, so far as they are material, were: "All that piece or parcel of woodland situate in Bromby, in the county of Lincoln, commonly called Prince's Woods, containing by admeasurement 23 a. 1r. 11p., or thereabouts. And all that close or parcel of pasture land situate at the east end of the said woods, and commonly called "wood and close," containing by admeasurement 4a. 3r. 24 p., or thereabouts, and all that warren of conies, with all and singular the rights, members and appurtenances whatsoever in Bromby aforesaid, and that lodge or house thereupon built, commonly called Bromby Lodge, and all that warren of conies, with all and singular the rights, members and appurtenances whatsoever in Redbourne, in the said county of Lincoln, both of which said warrens of conies are now commonly called or known by the name of Bromby Warren, and do extend themselves in and over the wastes or east moors of Bromby, Frodingham, Scunthorpe and Ashby, in the said county of Lincoln, which said several premises are parcel of the lordship and soke of Kirtonin-Lindsey, in the said county of Lincoln, and parcel of the possessions of the duchy of Cornwall, and were last demised, together with the fishery of the river Trent, by his present Majesty King George the Third, by letters patent under his Exchequer seal, bearing date the 15th day of August, in the year 1777, unto Robert Pindar, of Bromby Hall, in the said county of Lincoln, clerk, since deceased, for a reversionary term of nineteen years, to commence from the 13th of July, 1788, under the several yearly rents of 20s. for the said woodlands, and 31. 78. 4d. for the said coney warren; and also all houses, edifices, structures, timber-trees and other trees, mines, quarries, waters, watercourses, roads, ways, easements, profits, commodities, privileges, advantages, emoluments and hereditaments whatsoever in or upon the said woods and lands and the said warren or warrens of conies growing or arising or to the same in anywise belonging or appertaining, at or for the price or sum of 8001. of lawful money of Great Britain, to be paid by the said Thomas Pindar within forty days from the date of this certificate of contract into the Bank of England and carried to the account of the Duchy of Cornwall, and from and immediately after the payment of the said sum in manner aforesaid, and the enrolment of this certificate, and the receipt for the said purchase-money in the office of the auditor of the duchy of Cornwall, and thenceforth for ever, the said Thomas Pindar and his heirs, successors or assigns, shall be adjudged, deemed and taken to be in the actual seisin and possession of the said woodland and pasture ground, warrens and premises so by him purchased, and shall hold and enjoy the same peaceably and quietly, in as full and ample manner to all intents and purposes as his said Royal Highness the Prince of Wales, his heirs or successors, Dukes of Cornwall, might or could have held and enjoyed the same, by force and virtue of an act of parliament passed in the 38th year of the reign of his Majesty King George the Third intituled an Act for making perpetual, subject to redemption and purchase in the manner therein stated, the several sums of money now charged in Great Britain as a land tax for one year from the 25th day of March, 1798." Mr. Jessel and Mr. F. Walford, for the appellant. The duchy was seised of the soil, and had also a right of free warren according to the charter set out in The Prince's case, Co. Rep. vol. 4. pt. 8. 14 a. The words "warren of conies" denote a place, and must pass the soil. This is plain if you take the context, "all that lodge built thereupon": a house cannot be built on a franchise. Besides, this is the usual meaning of the word warren. Co. Lit. 5 b (b). Sheppard's Touchstone, pp. 89, 96. They also referred to Legh v. Heald, 1 B. & Ad. 622; s. c. 9 Law J. Rep. (N.S.) K.B. 98. Marshall v. Ulleswater Steam Navigation Company, 3 Best & S. 732; s. c. 32 Law J. Rep. (N.S.) Q.B. 139. Cooper v. Phibbs, Law Rep. 2 H.L. 149. Sir R. Palmer, Mr. Mellish, Mr. Speed and Mr. Jeune, for the respondent.-This grant is to be construed as if it were a grant from the Crown The Attorney General to the Prince of Wales v. St. Aubyn, Wightw. 167; and in every grant from the Crown, every intendment is to be taken against the grantee and in favour of the Crown Feather v. the Queen, 6 Best & S. 257, 283; s. c. 35 Law J. Rep. (N.S.) Q.B. 200. The case of Alton Woods, Co. Rep. vol. 1. pt. 1. 27 a. "Warren" never means both soil and franchise at once, and a man may build a lodge on his warren for preservation of the game when the warren is only a franchise- Co. Rep. vol. 6. pt. 12 (22). Bingham v. Bingham, 1 Ves. sen. 127. Mr. Walford, in reply. LORD JUSTICE GIFFARD (May 29).The judgment I am about to deliver is the judgment of the Court. Earl Beauchamp, the present appellant and sixth earl, claims. through Henry, the fifth earl. He has appealed from a decree of the Master of the Rolls dismissing, first, the original bill in this suit, which was filed by the fifth earl, and, secondly, the supplemental bill which he himself filed. Both bills were dismissed with costs. The questions in the suit arise in this way. In October, 1864, Henry, the fifth earl, |