male of the body of the deceased John Dingwall; whom failing, to the heirs of the body of Catherine Stewart; which entail was afterwards varied by excluding Arthur Dingwall, one of the heirs male of the body of W. Dingwall deceased, and the heirs male of his body.

John Dingwall, the author of the entail, by his will, dated the 13th of June 1808, devised estates in England to three trustees, to the use of John Dingwall, the institute of the Scotch entail for life, remainder to his first and other sons in tail male, remainder to the use of Arthur Dingwall Fordyce, the plaintiff's grandfather, for life, remainder to his first and other sons in tail male, with other limitations over.

The testator died in 1812, and J. Dingwall, the institute under the entail, and first tenant for life under the will, possessed both the Scotch and English estates up to his death in 1833, when his son John Duff Dingwall succeeded to both, being tenant in tail of the Scotch estates. He was under twenty-one; and under the entail, on his death without issue male, Arthur D. Fordyce, who had three grandchildren, of whom the plaintiff in the suit was one, would have stood next in the entail. The testator, by his will, gave the residue of his personal estate to his three trustees, their executors, administrators and assigns, upon trust, that they or the survivor or survivors of them, and the executors, administrators, and assigns of such survivor, should convert the same into money, and lay out the residue in the purchase of estates in England or Scotland, and subject as to such of the estates as should be situate in England to the same uses as the lands devised, and such of the said estates as should be in Scotland, in the same manner as the lands under the Scotch entail were settled; and until proper purchases were found, the money should be invested in the public funds, and the income paid to the person who would be entitled to the rents and profits of the English estates when purchased.

It appears that a large sum, part of the residue, was invested by the trustees in the purchase of lands in Scotland. In the year 1833, when J. D. Dingwall's title accrued, all the trustees were dead, and Alexander Dingwall, the executor of the survivor of them, declined to act in the trust, and there

being, beyond what had been so invested in the purchase of lands in Scotland, a large residue of the personal estate uninvested, a bill was filed in the name of the infant, J. D. Dingwall, for securing the personal estate, and for certain inquiries as to the propriety of the purchase of estates in Scotland, and for the investment of the residue in the purchase of estates in England, and for the appointment of new trustees, and a guardian for the plaintiff. The bill of 1833 made several persons parties who were interested in the Scotch estates, but not including the present plaintiff, and alleged that they were out of the jurisdiction; and the bill in the present suit alleges that A. D. Fordyce, the plaintiff's grandfather, and Patrick Dingwall alone of the parties interested in the Scotch estates were parties to that suit, and A. D. Fordyce appeared gratis, and that his answer was put in without oath or signature; but I do not find any proof that the parties alleged to be out of the jurisdiction were in fact amenable to the jurisdiction of the Court; the contrary must be assumed to be proved. The decree of the 3rd of August 1833 recited that all of the defendants were out of the jurisdiction.

These are the circumstances which raise the first question on this appeal, that is, how far the suit was binding upon the plaintiff, who has certainly a very important interest in the matter of the suit, but who was not a party to it, and who, claiming under the entail, does not derive a title through any who are parties to it: but A. D. Fordyce, the plaintiff's grandfather and first heir of entail after the plaintiff in the suit of 1833, and Arthur Dingwall were parties to it.

Two questions arise: first, how far and in what cases the heirs of a Scotch entail are necessary parties to a suit in this court respecting matters in which they are interested as such heirs of entail? And secondly, how far the suit can be available in their absence, upon proof of their being out of the jurisdiction?

As to the first, no suit could proceed if they were all necessary parties, not only on account of their number, but because future heirs of entail coming into esse, their claims not being through any persons parties to the suit, would not be bound by any proceeding in the suit; and this makes it useless to consider the second question, because, as

you cannot have in any shape before the Court all the heirs of entail whom you seek to bind, it would be idle to prove that some of them were out of the jurisdiction. When it shall become necessary to decide this point, some rule must be laid down, for which there is no precedent, but which is necessary to avoid a failure of justice in this court, from the peculiar nature of the interest under a Scotch entail. I do not find any allegation or proof that any fraud was intended or practised in the arrangement of the parties for the purpose of keeping from the view of the Court the real question between the parties interested in the Scotch entail and the English settled estates; but the decree under consideration declares that the plaintiff was not bound by the proceedings in the suit of 1833; and I do not think it possible to dispute that proposition, because, if the plaintiff be right in any part of the claim he makes, he had at the time of the decree of 1833 a direct interest in the subject of that suit in his own right, and not through any other person. I proceed, therefore, to consider the case as it appears on its merits, for if the plaintiff be not bound by the proceedings in the former suit, he cannot have a decree in this suit, unless he can shew he was injured by the former decree, or that his interests are inconsistent with it.

Upon the merits, the complaint against the decree of 1833 is, that the plaintiff in that suit, J. D. Dingwall, being in point of enjoyment only tenant for life of the Scotch estates and the tenant in tail of the English estates, procured that decree without due regard to the interest of the parties interested in the Scotch estates, for the purpose of obtaining an absolute interest in the uninvested residue of the testator's personal estate, and which was carried into effect by the order upon his petition after he had attained twenty-one, by payment to him of such residue as first tenant in tail of the fund. By the will a discretion was given to three trustees, their executors, administrators, and assigns, to lay out the funds in lands in Scotland to be settled as the entailed Scotch estates, or in land in England to be settled as the English estates under the will; but, until a proper purchase could be found, the income of the fund was to be paid to the per

son entitled to the rents of the English estates. In 1833 the three trustees were dead. Alexander Crombie was the executor of the survivor; he declined to act; and by the decree of the 3rd of August 1833, he was, at his own request, discharged from the trusts of the will, and a reference was made to the Master to appoint new trustees.

The important question is, whether at this time the discretionary power of selecting estates in England or Scotland for investing the residue of the personalty remained, and it certainly had determined, unless a new trustee had been appointed within the terms of the power for that purpose in the will. That power, in the event which has happened of the death of the trustees, and the refusal to act by the executor of the survivor, was given to the person entitled to the rents of the devised estates; and in case of the minority of such person, it was given to the guardian of such person; and it was declared that the person so appointed should have the same power and capacity as the trustees in whose room he should be substituted. At the time the bill of 1833 was filed, the plaintiff John Duff Dingwall had no guardian; but pending the suit, and before the decree, William Gordon, his father and next friend, was appointed guardian by the Court, in the usual form, and as such, and as his next friend, he was a party to the decree by which it was referred to the Master to appoint trustees in the room of the others, who had died. If, therefore, W. Gordon could be appointed as a guardian within the meaning of that term, as used in the clause of the will which created the power, and therefore could have appointed new trustees under it, the decree shews that he declined to exercise the power; and it cannot be supposed he would execute the power, because at that time the affairs were in a state most favourable to the infant who was entitled to the income of the fund until a proper purchase could be found, and whose permanent interest in the fund could only be defeated by the exercise of the discretionary power of purchasing lands in England or Scotland, which power, if not already absolutely gone, would only be revived by the appointment of new trustees by himself. The result, however, was that at that time there was not any person capable of exercising that discretion, and

the necessity of appointing trustees for the protection of the property pressing, the Court, therefore, as a matter of course, took upon itself the duty of appointing new trustees; and this brings the case to the important question, what effect had this state of circumstances on the title and interest of the parties especially entitled to the Scotch and English estates?

The Master of the Rolls, from the notes of his judgment, appears to have thought this. These are the words he uses:-"That in 1833 new trustees might be appointed, with the sanction of the Court, who would have the same discretionary power as those appointed by the will. The Court ought not itself to exercise the power, but only take care that the persons to whom the testator intended to give such discretion were duly appointed, and that such discretion was duly exercised." My great difficulty is to understand in what manner and by what means the Court could have appointed or procured the appointment of trustees, who would have been authorized to exercise the discretionary power given by the will. If William Gordon had the power to appoint such trustees, the Court had no means of compelling him to exercise it; and, by so doing, to prejudice the interest of his ward. Any trustee appointed must have been appointed by the Court; and that such trustee could not exercise the discretionary power is, I conceive, well settled by the cases of Doyley v. the Attorney General(1), Cole v. Wade (2), Walker v. Walker (3), and Penny v. Turner (4), lately decided by myself, and the cases there referred to. I observe the Master of the Rolls seems to have intended to adopt the same view in his decree in this cause; for in the notes of his judgment, he says, he proposed to declare that the trustees appointed in 1833 were not duly appointed, and to refer it to the Master to approve of new trustees to be appointed by the plaintiff as the person then entitled to the actual possession and actual receipt of the rents and profits of the estate at the time; but the decree as drawn up, after reciting that there was not any person entitled to nomi

nate or appoint the trustees of the testator's will under the power therein contained, by reason of the real estate thereby devised having been disentailed, refers it to the Master, in the usual manner, to appoint three new trustees in the place of the three named in the will: yet it declares that the residue of the personal estate ought to be laid out in the purchase of lands in England and Scotland, according to the directions of the testator's will, by the trustees so to be appointed, which would give to the trustees, so to be appointed by the Court, the same discretionary power which was given to the trustees by the will, contrary, as I conceive, to the authorities before referred to an inconsistency not arising from anything the Master of the Rolls said or intended, as his decision was founded upon the supposition that the power to appoint new trustees, under the will, still subsisted; but from an alteration in the decree, where it was found that the power was gone, appointing new trustees by the Court, but leaving standing the declaration as to the exercise of the discretionary power, which, though consistent with the appointment of trustees, as declared by the Master of the Rolls, was totally inconsistent with the appointment of trustees by the Court, as directed by the decree drawn up. It is impossible this decree can stand.

It remains now to be considered what, under all the circumstances, are the rights of the parties, and what were their rights in 1833. It is admitted by this decree that the discretionary power, as it is called, was gone; and it was, I think, equally incapable of being exercised in 1833. At that period the Court found that the trustees had previously exercised it to the amount of 173,443., by investing that sum in the purchase of lands in Scotland, and 1,5291. only in the purchase of lands in England, and that the uninvested residue amounted to 103,749. stock and monies. Having regard to this investment in Scotland, it declared that the uninvested residue ought to be laid out in the purchase of lands in England. Assuming that this decree was not binding on the plaintiff in the present suit, what, independently of that decree, were his rights in this uninvested residue? The bill prays for repayment of the whole of the uninvested

residue, and an account of the dividends and interest from December 1843, when the plaintiff's title to the entailed estates in Scotland accrued, and the decree directs repayment of the whole, and it declares that no part of it ought to have been paid or transferred to J. D. Dingwall, and that the plaintiff in the suit is entitled to all the dividends and interest which have accrued since December 1843, and yet it declares that the capital ought to be invested in the purchase of lands in Scotland or England. J. D. Dingwall was tenant in tail of the English settled estates; he was therefore absolutely entitled to so much of the uninvested residue as ought to have been invested in the purchase of lands in England. By the deed of the 15th of November 1836, he assigned all such funds and interest, and afterwards obtained the order for payment. The extent of this decree may be attributable to the impression on the mind of the Master of the Rolls, that the plaintiff in the suit was entitled to the actual possession, and to the actual receipt of the rents of the estates devised by the will. The decree to this extent cannot stand with the alteration introduced into the decree as drawn up; but the question remains, whether the plaintiff has a title to have any part of this uninvested residue applied to the purchase of lands in Scotland.

Assuming, as I do, that the discretionary power had ceased to exist before the decree of 1833, what interest had the present plaintiff against the heirs of entail of the Scotch estates in this uninvested residue? Where there is a discretionary power of distribution which cannot be exercised, the Court does not assume the exercise of that discretion, but distributes the fund equally amongst all the objects of the power. I have so recently had occasion to refer to this rule, and particularly, in Penny v. Turner, on the 29th of January last, that I only refer to the result of the cases there quoted. It is true, in all those cases the discretion was in selecting the object to take, and in this case the discretion is in selecting the nature and character of the estate to be purchased, but the effect and result is the same in both different persons being interested in the different estates, the selecting of one estate in preference to the other is, in fact, the selecting of one class who are

interested in the estates selected in preference to the class interested in the estates rejected. In both the discretion was intended to be exercised by the trustees themselves; in neither of which, on the failure of the exercise of that power, will the Court assume the discretion, but in both it will divide the property equally amongst the parties who are the objects of the power. The decree of 1833 does not follow that rule, but gives the whole fund to the parties interested in the English estates, because a larger part of the residue had before been invested by the trustees for the benefit of the parties interested in the Scotch entail. I regret I cannot find any principle of the Court to support this distribution of the fund, as it would be an approximation to an equality between the parties, but the equality adopted by the Court is confined to the unappointed fund: it is acting on the general intent as to such fund, to benefit the different classes, the particular object or selection amongst them being defeated by the non-execution of the power. This is precisely what occurred in Maddison v. Andrew (5), where there had been a valid, but an unequal appointment of a part of the fund, and as to another part there was an invalid appointment to another party. Lord Hardwicke said, the unappointed fund should be equally divided amongst the objects of the appointment, without regard to the share they had received from the valid appointment. Many cases establishing the same rule are referred to by Sir Edward Sugden, in his second volume on Powers, 238. Directing the distribution of the unappointed fund by what had previously taken place would be an assumption by the Court of the exercise of a discretionary power which had ceased in this case. It appears

to me, therefore, that well-established principles compel me to hold that the discretionary power had ceased to exist in 1833; that the Court had no right to exercise it; and that the objects of the power being those interested in the Scotch entail, and those interested in the English devised estates, on failure of the power to select among them, the unappointed fund was equally distributable between these two classes, half the fund being subject to be invested in lands in Scotland for the benefit of the Scotch (5) 1 Ves. sen. 57.

entail, and half being payable to those who became entitled to the English estates.

The will directs that the whole income of the fund should be paid to the parties entitled to the rents of the devised English estates till a proper purchase should be found. The Master of the Rolls' decree declares that the plaintiff is entitled to the whole of such income from 1843. As to one-half of the income, I think he has no title to it; and if the words of the will were to be acted on, he would have no title to the other half: but I think that the plaintiff has a right to say, upon the separation of the two estates by the death of J. D. Dingwall in 1840, the discretionary power not then existing, the interim direction for payment of the income to the person entitled to the rents of the English estates ceased, and that the division of the fund ought then to have taken place; and the plaintiff is, therefore, entitled to half of such interest from the time the title accrued in possession, that is, from the 30th of December 1843.

An objection was made that the bequest of the fund to be invested in a regular Scotch entail was void for perpetuity. The rules acted upon by the Courts of this country, with regard to testamentary dispositions tending to perpetuity, relate to this country only; what the law of Scotland may be on such a subject the Courts of this country have no judicial knowledge, nor will they, I apprehend, inquire. The fund being to be administered in a foreign country is payable there, though the purposes to which it is to be applied would have been illegal if the administration of the fund had been to take place in this country. This is explained by the well-established rules of bequests. According to the Statute of Mortmain, a charity legacy in this country under the Statute of Mortmain is good, if payable here to a charity in Scotland. It is true, Scotland is in terms excluded from the operation of the statute, but that exclusion would be useless and inoperative if the legacy would be void, though it be administered in Scotland, which would have been void if administered in England, and it would still be so, not by the effect of the statute, but by the rule of law; and I think the objection raised on the ground of perpetuity cannot be maintained.

I have made such alterations in the decree

at the Rolls as appear to me necessary to carry the above directions into effect, and if any difficulty arises upon the minutes, I should be glad to have the matter discussed at the earliest opportunity. The view I take of this case is one of perfect novelty; no such case has been referred to, nor do I believe that any such case has occurred before; therefore, when the parties have had the opportunity of considering what I have said, if they wish to address me again upon the subject, upon the decree as drawn up, I think it a very proper case to have the assistance of their remarks.

The promoters of an intended railway issued a prospectus, stating the particulars of the scheme, and that the landowners had been applied to, and were generally in favour of the line, and mentioning the number of the shares, and the amount of the capital. Three persons applied separately for shares, but agreed among themselves that they should be jointly interested in any shares which might be allotted to them. The promoters allotted certain shares to each of these three persons, and stated that all the shares were subscribed for, and the allottees signed the usual contracts required by the standing orders of Parliament. An act was afterwards applied for, but was opposed by landowners who were proprietors of nearly half the land required, and it was ultimately rejected. It appeared that all the shares were not subscribed for, and the promoters offered to return to the shareholders all the money which remained, after paying the expenses. The three persons filed a bill against the promoters to recover the whole of their subscriptions. A demurrer, upon the ground of misjoinder of plaintiffs, and also for want of equity, was overruled.

The bill was filed by three plaintiffs against eleven defendants, who had acted as the directors of the Bridgwater and Minehead Junction Railway.