Now, the remaining debt (which, for the purposes of the judgment, I suppose to have been contracted after the shares were transferred, and before the debt was paid off,) raises questions of considerable difficulty. In considering this part of the case, I will first suppose the mortgage to have been in the common form (that is to say, an absolute transfer, subject to redemption), and nothing to have passed by which the defendant would have been bound to take the shares again. In that case, it becomes material to consider whether the defendant was or would have been liable in a court of equity for all the engagements of the company, in exoneration of the plaintiff, in the same manner as he would have been had he continued the registered owner of the shares. In that simple case, I should strongly incline to think that the defendant would not be liable. The question is not whether the defendant could redeem the shares without indemnifying the plaintiff, but whether he is under a personal liability to indemnify, the company being insolvent, and the shares having become comparatively valueless. The plaintiff became a partner for his own benefit, and at law he acquired all the rights, and became subject to the liabilities of a partner. And (assuming that at law there is no implied contract for the indemnity which the plaintiff asks) his rights and liabilities, during the time he held the shares for his own benefit, must be the same in equity as at law, so far as regards the personal liability. The position of the parties is, without doubt, different in equity from what it is at law, inasmuch as at law the defendant has no interest in the shares, although in equity he has a right to redeem them, and if he elect to redeem them, he may possibly be bound to indemnify the plaintiff against all expenses and liabilities incurred in respect of the shares. although the defendant may have a right to redeem, he may also waive that right, and submit to be foreclosed, if he should choose so to do. I cannot think the plaintiff would have any personal demand against him for the expenses incurred in maintaining the mortgage property, which upon this supposition the defendant does not think fit to claim. This appears to be the position of the defendant, considering this simply as a common mortgage. Now, if that would be But the case of a mortgage with a common clause of redemption, I think the form of the security in this case would not make any difference. I have stated this view of the case, that the defendant may distinctly understand upon what ground I consider the plaintiff has a claim against him. But then this question remains. In the present case, in my opinion, the defendant has bound himself to accept a re-transfer of the shares. In effect, he has elected, and has bound himself by his election, to redeem the mortgage. This he did, or must be supposed to have done, with a full knowledge of the consequences. From the time when he became so bound, he became in equity owner of the shares. The question is, whether he can claim those shares without paying the plaintiff his expenses, properly incurred, in making them what they are, that is, the expenses properly incurred in the management of the concern: I think not. The profits, if any, would have been the defendant's, and he must also be the loser if a loss has been sustained: therefore, supposing the suit to be properly framed, my opinion is, that the defendant having, under the original contract, elected to claim a right to have a re-transfer of the shares, and having continued to treat with the plaintiff for such re-transfer, from the time when the money was paid off, down to September in the same year, when the action was brought against the officer of the company, and the delay having been occasioned by the acts of the directors, the defendant never having repudiated the shares, or called upon the plaintiff to act otherwise than he did, and having treated himself as the owner of them -that in a suit, properly framed, he might be entitled to an indemnity. But this difficulty then occurs in the frame of the suit: the directors of the company are not parties. The plaintiff, therefore, making this demand against the defendant, is not upon this record in a position at once to give him the shares; and the difficulty I have had is to see whether I should require the directors to be made parties, or whether, without doing so, I can, in the present form of suit, make such decree as I think the plaintiff is entitled to. I am, at present, in a very unsatisfactory state of information as to that deed of the company. It was admitted, on both sides, as I understand, that the deed did give the directors power to refuse the transfer of shares, obliging them, in that case, if required by the shareholder, who was desirous of selling, to take them at a price, to be ascertained in a manner prescribed by the provisions of the deed. And it appears to me, that, this being a case in which the plaintiff has no power to give the shares which form the subject of the suit, I may make a decree on this part of the case to this effect, viz., that the defendant, on his indemnifying the plaintiff, may have leave to take such proceedings in the plaintiff's name as he might think fit, for the purpose of compelling a re-transfer of his shares, or of compelling the company to re-purchase them according to the provisions of the deed. Now, with regard to the other part of the case, all I could do would be to declare that the defendant is bound to indemnify the plaintiff against all liabilities properly incurred by him as the holder of the shares from the time at which they were transferred to him. I cannot decide in the present stage of the cause that those sums have been properly incurred; but with regard to this part of the case, as well as with regard to the other, the defendant indemnifying the plaintiff in respect to the costs, he must be at liberty to take such proceedings as he may be advised in the name of the plaintiff in resisting those proceedings to which at present the plaintiff is liable at the suit of the party who has recovered the judgments. Mr. Romilly contended that in the case of a trustee and his cestui que trust, the former could not come into court until he had been actually damaged; and that then only he could ask to be indemnified. I do not accede to that proposition, because if it was a subsisting liability, the trustee is not bound to be out of the fund for a moment. In this case a judgment has been recovered against the public officer, and the shareholder is prima facie liable, and, therefore, has a right to come in at this stage of the proceedings to be indemnified in the way suggested. It will be for the defendant and his counsel to consider the expediency of an inquiry before the Master, for the purpose of ascertaining what liabilities have been properly incurred. For, adverting to what is stated in the answer, it appears to me that the defendant must have a right not only to use the name of the plaintiff in proceeding as against the directors to compel a transfer or purchase of the shares, but must also have a right in the name of the plaintiff to take any proceedings he may be advised, to shew that he, with the shareholders, is not liable to pay the debt. That is one of the points made by the answer; and any decree I may make must be also without prejudice to any proceedings the defendant may think proper to take against the plaintiff himself, for the purpose of shewing why any liability to which, primá facie, the plaintiff may appear to be liable, and in respect of which the decree would give him indemnity, should in any respect be reduced. All these points being taken in the answer, I cannot deprive the defendant of his right to impeach those several matters. At present, I am by no means prepared to say exactly in what form the decree should be taken. The indemnity, however, must be substantial. Appearance-29th Order of May 1845 -Leave to enter Appearance. Application by the plaintiff for leave to enter an appearance for the defendant under the 29th Order, the subpoena to appear and answer having been served in May 1845 ::Held, that the plaintiff must serve new subpoena or give notice of motion. The plaintiff in this case served a subpœna upon the defendant's solicitor in May 1845, to appear and answer the bill; no appearance having been entered,— Mr. Tillotson moved for leave to enter an appearance for the defendant under the 29th Order of May 1845 (1). The VICE CHANCELLOR said, in order to avoid any difficulty, it would be better to direct that either a new subpoena should be served, or that notice of motion should be given. (1) Ord. Can. 294; 14 Law J. Rep. (N.S.) Chanc. 287. Fine, Fraudulent Use of Solicitor Trustee-Misrepresentation as to TitlePleadings-Evidence. B. L. became entitled in fee as heir-atlaw to certain real estates by virtue of limitations contained in an indenture of marriage settlement; G. D. F, who was one of the releasees to uses named in the settlement, entered into possession of the estates (as alleged) under colour of an appointment executed in his favour by a party to the settlement; G. D. F. had the custody of the indenture of settlement, and afterwards and whilst B. L. was in this country on a visit from the Cape of Good Hope, through the instrumentality of P. who was his solicitor and son-in-law, and also stood in a fiduciary situation towards B. L. and acted as his solicitor, levied a fine with proclamations, and no adverse claim was made by B. L. to the estates until after the fine had taken full effect, when B. L. filed a bill against the parties claiming beneficially the estates under the will of G. D. F. and certain mortgagees thereof, seeking that the fine might be decreed to accrue for his benefit, on the ground that P, in a conversation which he had with T. L, the younger brother of B. L, and who acted as B. L.'s agent, fraudulently misrepresented to T. L. that B. L. had no claim to the estates. In support of the plaintiff's claim certain correspondence was produced, by which it appeared that previously to the levying the fine, P. had stated to T. L. (since deceased) that he was gratified to find that B. L. was convinced he had no just claim to the estates, and it was also proved by X, the solicitor of the plaintiff, that in a conversation which he had with P. after the plaintiff's claim had been effectually barred by the fine, P. admitted to the witness that he had formerly stated to T. L. that B. L. had no title to the estates. The bill, however, contained no statement or charge of any such conversation having taken place. The bill was dismissed with costs against all the defendants, no case of fraud having been made out on the part of the plaintiff against the defendant's testator. As the material facts of this case appear to be sufficiently set forth in the judgment, they are not repeated here. Mr. Tinney and Mr. Malins, for the plaintiff, after arguing in support of the plaintiff's title as heir-at-law, and citing several authorities in his favour, of which it is not necessary, under the circumstances, to give any particulars, contended that the plaintiff had placed confidence in the representations of Prideaux, who, it was admitted. was at the time of their being made, the solicitor of George Dike Fisher, the testator; that George Dike Fisher having possession of the marriage settlement, his solicitor, Prideaux, had full knowledge of the limitations therein contained, or, at all events, the means of satisfying himself at any moment as to the accuracy of the statement made by him to Thomas Langley, previously to the fine being levied; that the fine was levied through the advice of Prideaux, George Dike Fisher being well aware at the time, that Susan Langley, the only issue of the marriage of Robert and Mary Langley, had died at the age of about two years; that the letters that passed between Prideaux and Thomas Langley in the year 1821, before the fine was levied, proved that the former had been guilty of fraudulent representations to Thomas Langley, as to his brother's title; the expression in one of the letters of Thomas Langley to Prideaux being "My brother, Benjamin Langley, seems satisfied that he has no just claim to the property we were talking of," and the answer of Prideaux to T. Langley containing the expression "I am glad your brother takes so correct a view of the case;" that the conduct of Prideaux in sending to the plaintiff's solicitors an imperfect abstract of the limitations contained in the marriage settlement, was evidence of the intention of Prideaux as the solicitor of George Dike Fisher, to impose on the plaintiff and blind him, and George Dike Fisher could not be allowed to reap the benefit of an advantage gained through the fraud of his agent Prideaux; that as the settlor, Robert Langley, by the marriage settlement, covenanted with the grantees to uses (of whom G. D. Fisher was one) to do certain acts at a future time, those parties became entitled to the possession of the deeds of settlement, and trustees for the plaintiff, the party interested in the remainder in fee simple of the estates; L Mestaer v. Gillespie, 11 Ves. 621. Mr. Kindersley and Mr. Phillips, for the defendants, G. D. Fisher, and other children of G. D. Fisher, deceased, contended that if no fraud was proved to have been committed against the plaintiff, his remedy was clearly at law and not in equity, and that the bill must be dismissed; that there was no evidence before the Court of the employment of Prideaux by G. D. Fisher as his solicitor, from the year 1822, when the fine was levied, down to the year 1830, and it was admitted by that bill, that he did act as the plaintiff's solicitor; that nothing in any way conclusive against G. D. Fisher could be deduced from the correspondence referred to on the other side; that even if material admissions had been made at any time before the levying of the fine by Prideaux to Thomas Langley, the plaintiff's brother and agent, relative to the plaintiff's title in any conversations had between them, they were not charged by the bill, and therefore not admissible as evidence for the plaintiff; and that as regards the possession of the settlement and other title deeds, the tenant for life, and not G. D. Fisher, was entitled to the same. Mr. Turner and Mr. W. Cooper, for other defendants in the same interest, contended, that on the death of the tenant for life under the settlement in 1815 there was no actual trust existing in any one except to preserve contingent remainders-Kennedy v. Green (1), and if there was a constructive trust, it was barred; that the fraud alleged by the plaintiff, and which consisted in G. D. Fisher levying the fine, with a knowledge that false representations had been made by his solicitor to the plaintiff respecting his title, was in no way made out. Mr. C. P. Cooper and Mr. Lovat, for the defendants, Messrs. Tugwell & Co., the mortgagees, contended that, even if a case of fraud had been proved against G. D. Fisher, they were not affected by it, having no notice of it, and were not bound to make any inquiries on the deed of settlement being deposited with them (2). Mr. Prideaux, for the defendant, Prideaux, who disclaimed all interest in the estates, asked for his costs. Mr. Tinney, in reply. The MASTER OF THE ROLLS.-The plaintiff, in this case, is the heir-at-law of a person of the name of Susan Fisher, and alleges himself to be entitled, in that character, to an estate, which was limited to her in fee by the settlement executed on the marriage of her father and mother. A portion of that estate was, by the mother of that Susan, appointed to George Dike Fisher, through whom the defendants here claim; and George Dyke Fisher, being in possession of the estate under colour of that appointment, levied a fine. Five years elapsed from the levying of that fine without an adverse claim; and the prayer of this bill is, in substance, that the fine may not be set aside, but may be declared to enure for the benefit of the plaintiff, as entitled under the limitations of the settlement; and the ground of the prayer is, that the fine was levied in the execution of a systematic fraud, practised by the person who took possession under colour of the appointment made by the mother of that Susan under whom the plaintiff claims; and if the fine should be so disposed of, it is alleged to be perfectly clear, that by the construction of the settlement (3), Susan, in whose right the plaintiff claims, was entitled to an estate in fee. It is quite obvious that the first question to be considered here is, whether I ought in any way to deal with the right of the parties under the fine. If the fine stands, enuring as it does to the benefit of other persons, the plaintiff can have no claim: the claim of the plaintiff can only be made effectual by first disposing of the fine; that, therefore, is the consideration which we are first to attend to in this case. It is necessary to state a little more in detail what was the devolution of right, and what were the transactions amongst these parties, for the purpose of seeing what were the circumstances under which the fine was levied as far as they appear. There are, in this case, three persons whose evidence cannot be had, two of them being dead, and the other not being examinable: there are three persons who could have furnished very material information on the questions that are raised, and their evidence cannot be had; a circumstance which, in this as in every case of a like kind, is very painful to the Judge, and very disadvantageous to the party who really has the right, whoever that may be. The settlement was made in the month of August 1784. The real estate, said to be the real estate of the wife, was conveyed to George Dike Fisher and Henry Fisher, to the use of the wife for life, remainder to the same trustees to preserve contingent remainders; then there was a limitation upon which the question in this case arises, and after that limitation, a limitation over, in default of issue of the marriage, as to a portion of the estate to the right heirs of the husband, and as to the remainder of the estate, being that proportion which is now in question, to such person as the wife should appoint, and, in default of appointment, to her right heirs, and the husband covenanted with those trustees that he would do certain things for the benefit of the wife. I have stated the limitation under which the claim is now made so far only as it is necessary for the purpose of shewing what was the position of the parties. In the year 1786, a daughter was born, and she died at the age of seventeen months: it is said there was no other child of the marriage. The allegation of after repeated applications had been made to him for that purpose. the plaintiff is, that under the limitation, which I have not read, but, under that limitation, that child acquired a vested fee in the estate, and, having done so, no effect was or could ever be given to the limitation over in default of issue, because there had been issue, though that issue was dead. We hear nothing further of the matter till we find that, in the year 1808, Robert Langley, the father, made his will, by which he devised certain estates mentioned in the indenture of settlement of August 1784, to his wife Mary Langley, George Dike Fisher, (who was one of the trustees in the marriage settlement,) and to Mr. Prideaux, whose name has been so much called into question on the present occasion. They were made trustees of those estates for the benefit of the children of the testator's brother Benjamin, whose eldest son the plaintiff is. Robert Langley having made this will in the year 1808, died in the month of August 1815, and thereupon (so far as is seen here) a certain fiduciary character was established in Prideaux. He was in a fiduciary character for the benefit of the children of Benjamin Langley, amongst whom was the plaintiff; by his will (as it appears) he devised an estate of the same name, with one of the estates limited by the settlement. Monckton Coomb is the name of the place, and it seemed to have been taken for granted, up to the last, that that was the Monckton Coomb estate which was settled. A doubt is thrown upon that in the reply; and I do not know whether it was so or not: but I incline to suspect it is not very material, because the conduct which is imputed to the plaintiff, in that respect, is really of no importance at all, because, being devised with several other estates, he might well enough abstain from impeaching that devise, knowing he could not do so without making his option to reject other parts of the gift made by the same will the only way it is material is, that it shews what was thought by Robert Langley of his power over that particular estate. That is the way in which it might be material. Robert having died in the month of August 1815, we find, immediately after his death, in the course of the very next month, viz., September, Mary Langley, the widow, making her will, and by that will taking upon herself to execute the |