arrangement afterwards made, that this sum should be given up to the general creditors. In re Cowen would have had no application. But, in fact, he has at the time of making the arrangement, and retains at the present moment, that which constitutes half his property. He retains in the form of half-pay that which, if it had been realized by selling the commission instead of retiring, would have enabled him to pay his creditors in full. He does not sacrifice all his property so as to pay in full. Instead of that, he adopts a course which the Court cannot sanction; and looking at the conduct of his assenting creditors, seeing that they have taken no pains to secure the unappropriated fund, there is nothing to shew that they considered whether the composition which they agreed to accept was reasonable or not. The necessary inference seems to be that they were influenced by other considerations than their own interest in being content to accept a composition not extending to the whole property.

I agree, therefore, with the Commissioner in this case, and the appeal must be dismissed, with costs.

LORD JUSTICE SELWYN concurred.

Proof of Debt-Breach of Trust.

By a will and seven codicils the three executors were made residuary legatees subject to a life interest, and although no valid trust had been created, they had always treated themselves as not being beneficially interested. By an eighth codicil the residuary gift was converted into a trust for certain other persons, subject to the life estate. The eighth codicil was not proved or discovered for many years after the testatrix's death. In the meanwhile, and during the lifetime of the tenant for life, the execu tors invested part of the funds upon a secu

rity which would be an improper one for investment by trustees, and which afterwards proved deficient. The security was appropriated to the purposes of the trusts of the eighth codicil. It did not appear whether the tenant for life consented to the investment, but she received the interest during her life, and did not in fact suffer from the insufficiency of the security-Held, that a proof against the estate of one of the trustees who had become bankrupt for the deficiency was good.

This was an appeal from an order of Mr. Commissioner Holroyd, refusing a proof for a debt of 1,819. 15s., claimed against the separate estate of A. W. Biddulph, as the balance of a sum of 3,000l. after realizing a security for the same.

The circumstances were as follows:

By her will and the first seven codicils thereto, made in the year 1824, the Countess de Front gave the residue of her estate to her executors, W. V. Fry, A. Wright Biddulph and J. Wright, upon trust for her sister S. Neve for life, and subject thereto for themselves absolutely.

It appeared that the testatrix was an ardent Roman Catholic, and that it was privately understood by the executors that they were to devote the residue bequeathed to them to Roman Catholic purposes. But no trust was ever formally constituted for that purpose.

By an eighth codicil to the will, dated the 20th of April, 1824, the testatrix declared that she had bequeathed the residue of her personal estate to her executors in trust only, and directed them, after payment thereout of certain sums therein referred to, to pay one moiety to the Catholic bishop for the time being of the London district, the vicar-general of the same district, the president of St. Edmund's College, and to John Gage, and the other moiety to the Catholic bishop of the midland district, the vicar-general of the same district, the president of St. Mary's College, Oscot, and John Gage.

The testatrix died on the 7th of January, 1830.

The will and the first seven codicils were proved by the executors in the following month. The existence of the eighth codicil was not communicated to the executors,

and was only brought to light in the year 1841, having been in the possession of Mr. Gage.

The two executors, Mr. Biddulph and Mr. Wright, were partners in a banking business, carried on by them with a Mr. Jerningham, under the firm of Wright, Biddulph & Co. With this firm the executors had a banking account, bearing their title as executors and trustees of the Countess de Front's will.

The banking firm, in the year 1834, made large advances to Sir G. Duckett, to the extent of 15,000l., upon the security of a third mortgage of a canal, dated the 8th of May, 1834, made in favour of Wright and Jerningham. Part of the money so advanced was considered to belong to the countess's estate; and by a deed-poll, dated the 31st of May, 1836, executed by Wright and Jerningham, after reciting that the moneys advanced upon the mortgage were not the moneys of Wright and Jerningham, but belonged to the persons and in the proportions therein mentioned, it was declared that they (Wright and Jerningham) held the said. mortgage in trust, as to 3,000l., part of the money thereby secured, upon trust for A. W. Biddulph, J. Wright and Dr. Fryer, as trustees of the will of the Countess de Front, and in priority over the residue of the 15,000l. as therein mentioned.

The firm of Wright, Biddulph & Co. became bankrupt on the 17th of December, 1840.

Dr. Fryer proved against the estate for the money standing to the trustees' account beyond the 3,000l., but did not then prove for that sum.

The eighth codicil was proved on the 1st of October, 1841. The exact period when it first became known to the executors did not appear, Mr. Biddulph in his affidavit only declaring that it had come to his knowledge since the will had been proved.

The tenant for life, S. Neve, died on the 22nd of September, 1842.

When the security was realized there was a deficiency of the sum now sought to be proved.

In the year 1858 a proof was tendered for this amount against the separate estate of Jerningham, but it was rejected on the ground that he was not a trustee and had not such knowledge of the trust as could

render him liable for a breach of trust, the investment having been made with the sanction of those who had legal control over the money, and were moreover, according to the then known state of the trust, absolute owners of the money, subject only to the life interest of S. Neve.

The claim was now made by the present legal personal representative of the countess against the separate estate of A. W. Biddulph; but the Commissioner, thinking it was governed by the former case against Jerningham's estate, refused the proof.

The case alluded to is reported sub nom. Ex parte Barnewell, in re Biddulph, 6 De Gex, M. & G. 801.

Mr. De Gex and Mr. Ramadge, for the appellants.-This case is in no way governed by Jerningham's case, for Jerningham was not a trustee, and never committed any breach of trust. Here Mr. Biddulph was clearly a trustee. There is no evidence that the tenant for life consented to the investment. It is true that the trustees seemed to be absolute owners (subject to the life interest), but it is certain that they did not consider that in honour they could appropriate the money, and, in fact, they were mere trustees. They had never done anything to appropriate the fund or divide it. It is admitted that the investment was such that it constituted a breach of trust if the executors were to be considered as trustees. It cannot be disputed that when distribution has taken place under a mistake, you may follow the assets into the hands of those who have received them and require them to refund. This alone, in every event, would enable us to support this proof as to one-thirdAnon., 1 P. Wms. 495.

Edwards v. Freeman, 2 Ibid. 435. A distinction is taken: when the distribution is made under decree of Court the claim against individual beneficiaries for refunding is only pro rata; but when it is made out of court you may require any legatee to refund the whole of his legacy; but the right to refund is clear

Todd v. Studholme, 3 Kay & J. 324;

s.c. 26 Law J. Rep. (N.S.) Chanc. 271. We had a perfect right to appropriate the security, realize it, and then prove for the difference; and since this was a breach

of trust, although made under peculiar circumstances, in consequence of the executors' ignorance of the nature of their trust, we are entitled to take this course

Mant v. Leith, 5 Beav. 524; s. c. 21

Law J. Rep. (N.S.) Chanc. 719. Whichever way, therefore, you look at the case, whether the proof be grounded on breach of trust, or upon the right of requiring legatees to refund, it is well founded.

Mr. Amphlett and Mr. Elderton, for the assignees. We say there was no breach of trust, for at the date of the investment the executors were absolute owners, according to all appearances. The question as to the consent of the tenant for life is immaterial, because she was not damnified; she received the interest and made no complaint. There is no evidence that she did not consent. The security was taken, and that is all that the claimant could properly ask for. As, in fact, the executors derived no benefit from the property, why should their estates be liable? They considered they had a perfect right to lend the money as they did, and although it may be that in honour they considered themselves bound to apply the interest for Catholic purposes, that is quite beside any question which this Court will consider. Next, we say this is an improper way of proceeding; there ought to have been a bill filed against the representatives of all three executors. Dr. Fryer is dead, but he died solvent, and his representatives ought to be made parties, so as to contribute.

The COURT did not require a reply.

LORD JUSTICE SELWYN, after stating the nature of the question and facts, observed, that it was admitted that the investment was not authorized by the trusts of the particular will, or by the general rules of this Court, and under ordinary circumstances would constitute a breach of trust. He proceeded as follows: The first question, therefore, that appears to be material is in what manner, in point of fact, the executors dealt with this trust fund. doubt, if it could be shewn that they, with the consent of all the persons interested, had in fact divided the trust fund under some mistaken notion of their rights, if it had been separated and dealt with otherwise

No

than as a trust fund, and divided amongst different individuals, then different considerations entirely would arise. But, in the present case, it appears that throughout the whole of these transactions down to the time of the bankruptcy there had always been joint possession of this fund, and it always had been dealt with as a trust fund, as in point of fact it was. Now, the money having been advanced, as I have stated, on that security on the 8th of May, 1834, it appears that a deed-poll was executed on the 31st of May, 1836, declaring the ownership of the different sums of money which were included in the mortgage made in 1834; and the recital in that deed-poll, as far as is material for the present purpose, states: "That whereas the said sum of 15,000l., which in and by the said recited indenture is stated to be due to the said John Wright and Edmund William Jerningham, was not, in fact, their own proper moneys, but the same was the proper moneys of and belonged to the following persons, in the proportions, and was advanced by them according to the priorities hereinafter mentioned, that is to say, the sum of 3,000l., part thereof, belonged to and was the proper money of Anthony George Wright Biddulph, the said John Wright and the Rev. Dr. Fryer, as trustees under the will of the late Countess de Front, deceased; the sum of 5,000l., other part of the said sum of 15,000l., was the proper money of and belonged to Peter Campbell," and so forth. Therefore, there is there an express declaration by way of recital that the sum of 3,000l. belonged to and was the proper money of these gentlemen as trustees under the will of the late Countess de Front, and in the operative part of the same instrument there is a declaration of trust exactly in accordance with the recital, in these words: "And as to, for and concerning the sum of 3,000l., part of the said sum of 15,000l., and the interest thereof, in trust for the said Anthony George Wright Biddulph, John Wright and the Rev. Dr. Fryer, as trustees under the said will of the said Countess de Front." It appears, therefore, that so late as the month of May, 1836, these persons were dealing with this fund as being a trust fund, declaring by this instrument which was executed by them that it was a trust fund, and held by them upon

the trusts of the said Countess de Front's will. I think therefore that as it appears nothing was done from that time down to the bankruptcy with the trust fund, it becomes immaterial to consider precisely whether they or any of them had or had not notice at that time of the eighth codicil, because, it being a trust fund, and it being admitted by them to be such, and it being dealt with by them as such, the burden is cast on them of shewing-when they committed what they are obliged now to admit was in substance and effect a breach of trust under ordinary circumstances-I say the burden is cast upon them of shewing that they had the consent of all persons whose consent was necessary to legalize that which without such consent would have been a breach of trust. It is their misfortune that they had not obtained that consent, because it now appears that the persons who were entitled to stand in the position of cestuis que trust, either primarily or ultimately in respect of that trust fund, were the persons interested in the remainder of the estate of the Countess de Front, after the termination of the life of the tenant for life. It appears that the tenant for life lived until 1842, that is, until after the bankruptcy, and therefore the trust was obviously subsisting down to that time. Under those circumstances, the present appellants come here asking for leave to prove in respect of this trust fund, saying that the investment was an improper one, but that under ordinary circumstances they are entitled to follow the trust money into the investments if they can trace it, and having received as much as can be realized from the proceeds of the sale of that improper investment to prove against the estate of the trustee for the difference. I think that is what they are entitled to at the present time. I think the respondents have failed to prove that which was necessary to establish their contention, namely, that that which would under ordinary circumstances have been a breach of trust was sanctioned and authorized by persons capable of giving such sanction and authority. It follows therefore that the proof ought to have been allowed. It is then said that even if a prima facie case had been established, considering the lapse of time and the great complication of circumstances, a bill ought to have been

ordered to have been filed, and that this proof ought not to have been allowed in the mean time; but inasmuch as these facts were within the cognizance of Mr. Biddulph, and inasmuch as there has been no difficulty in ascertaining or proving any part of the facts of this case, inasmuch as there has been a full opportunity given to the parties to bring forward any evidence they might think fit, I think it would be incurring unnecessary expense if we were now to say that this proof should be postponed until after a bill is filed. I think a case has been established for allowing the proof, and that consequently the order of the Commissioner must be reversed. The proof will be allowed, but there will be no costs of the appeal. The deposit will be returned.

LORD JUSTICE GIFFARD.-I am of opinion that the proof should be allowed against Mr. Biddulph's separate estate. The original transaction was simply a loan, and there was security taken for it which was worthless, or nearly worthless. Of course such a transaction as that by trustees would be in an ordinary case a breach of trust, and would in an ordinary case create a joint and several liability. I do not think it a less breach of trust because it has happened that the persons entitled under the trusts were not known. It may be that under certain circumstances the ignorance of those facts may excuse that which in itself is a breach of trust, as for instance, if there had been on the face of this seventh codicil some third party entitled and the money paid over to the third party in ignorance of the existence of the eighth codicil. But in this case these parties had done nothing of the sort; and not only that, but it cannot be said that they ever acted at any time in the belief that this money was their own or proceeded upon that footing. That being so, first of all there was a breach of trust, and secondly there was no excuse for it. Under these circumstances therefore I think there is a clear case for proof against the separate estate, and I see no reason why it should stand over for a bill to be filed.

Solicitors-Messrs. Norris & Sons, for appellants; Messrs. Few & Co., for assignees.

GIFFARD, L.J. July 2.

In re RICHARDS, ex parte
LLOYD'S BANKING COM-
PANY, AND ex parte

ASTBURY AND OTHERS.

Mortgage What passes to a Mortgagee as Fixtures-Duplicate Rollers-Weighing Machine-Straightening Plates-Equitable Mortgage by Deposit of Lease.

Where a rolling-machine (which itself was admittedly a fixture) was fitted with a number of different sets of loose rollers, one of which only could be actually attached to the machine and used at one time, but the duplicates were kept for the purpose of effecting different kinds of work,-Held, in a contest between mortgagees and the assignees in bankruptcy of the mortgagor, that all the rollers that had been fitted to the machine thereby became part of it, and passed to the mortgagees by virtue of an equitable mortgage by deposit of the lease of the mill.

Held, also, that other rollers which had been purchased with the view of using them in the machine, but had not been fitted to the machine, were not part of the machine, and did not pass to the mortgagees.

Weighing-machines which rest in brick cavities constructed in the ground for the purpose, but which are not attached to the brickwork, and can be lifted out of the cavity at pleasure, are not fixtures.

Straightening-plates, formed of flat plates of iron and let into the iron flooring of a room so as to be on a level with the surrounding floor and united to it, are fixtures.

Fixtures belonging to a lessee and removable by him at pleasure (as between himself and the lessor) form part of the security under an equitable mortgage by deposit of the lease.

These were appeals from an order of Mr. Registrar Tudor, acting for the Commissioner of the Birmingham Court of Bankruptcy, made on a special case.

In June, 1867, Messrs. J. Richards & Co. (of which firm the bankrupts were partners) made an equitable mortgage of their mills to Lloyd's Banking Company by deposit of their lease (accompanied by a memorandum in writing, for the purpose of securing any advances which the bank might make to them.

NEW SERIES, 38.-BANKR.

The memorandum was as follows:

"Memorandum.-We, the undersigned Job Richards, L. Jenkins, Richard Hill and Thomas Jenkins, trading together as ironmasters at Smethwick, in the county of Stafford, under the style and firm of Job Richards & Co., have this day deposited with Lloyd's Banking Company (Limited), the deed mentioned in the schedule hereunder written, to be retained by the company by way of a continuing security to them for payment on demand of all moneys and liabilities already paid or incurred, or which the company may at any time advance, pay, or incur to or for the said firm of Job Richards & Co., whether on current account or by the discount of, or otherwise in respect of bills of exchange, promissory notes, or other negotiable securities drawn, accepted, or indorsed by the said firm, together with interest, commission, banking charges, law and other costs, charges and expenses; and for a more effectual security we undertake, at our own expense, when required by the company, that we and all other necessary parties will execute to the said company, or as they shall direct, a mortgage of all our estate and interest in the said deed, which mortgage shall contain a power of sale and all usual clauses."

The bankrupts afterwards, in 1867, succeeded to all the assets and liabilities of the firm of J. Richards & Co., the Messrs. Jenkins then retiring.

In January, 1868, the bankrupts executed a legal mortgage of the mills to the bank; and in this mortgage was included a number of articles belonging to the mill and machinery described as rollers of various kinds, also four weighing-machines and four straightening-plates. These rollers, &c., were part of the plant necessary for the bankrupts' business.

At that time the account with the bank had been overdrawn to the extent of nearly 11,000l. On the 18th of January the bank took possession of the mortgaged premises, and soon afterwards the petition was presented upon which an adjudication in bankruptcy was made against Messrs. Richards. M. Astbury and two other gentlemen were appointed creditors' assignees.

It was admitted that the mortgage, having been made on the eve of bankruptcy, could not be supported as against the

C