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Decisions of the Superior Courts of New South Wales, 1788-1899

Hart v. Younger [1847] NSWSupC 28

trusts, account in equity

Supreme Court of New South Wales

Therry J., 31 August 1847

Source: Sydney Morning Herald, 6 September 1847, in Supreme Court Collection, Vol. 2, pp 8-10

SUPREME COURT. --- IN EQUITY.

HART v. YOUNGER AND OTHERS.

HIS HONOR Mr. Justice THERRY delivered the following judgment on the exceptions filed in this case, on Tuesday, the 31st ultimo.

In dealing with the exceptions taken to the Master's report in this case, of which seventeen are taken on behalf of the plaintiff, and four on behalf of the defendants, the most convenient course will be to consider first the defendants' exceptions. The convenience of this course is suggested, inasmuch as they may be very briefly disposed of, because they are for the most part brought forward in opposition to the exceptions of the plaintiff, in discussing which, the subject to which they refer is more fully noticed. Indeed, were it not for the plaintiff's exceptions, I apprehend they would not have been taken at all; and this is; perhaps, the reason why no sufficient or substantial argument has been urged on my attention for allowing any of them. The first exception of the defendants, however, I will advert to moiré fully, and in connexion with it I may consider the fourteenth exception of the plaintiff, relating to the same matter. On behalf of the defendants the Master's report then is excepted to, inasmuch as he did not allow £162 4s., for salary, as salary at the rate of £8 a week, to John Gunn Collins, for his management of the Woodstock Mills, from the 10th of August, 1842, to the 5th of January, 1843, for the payment of which these defendants submit that they are liable. On the other hand, on behalf of the plaintiff, the Report is excepted to because the Master has certified that a sum of £285 14s. 10d is payable to Collins, as if the sum was payable to him for his alleged services under a contract alleged to have been made on the 5th of January, 1842, between him and the defendants, whereby, in consideration of Collins undertaking the whole management of the Woodstock Mills, the defendants agreed to pay him weekly the sum of £8, provided they should have funds of the estate in their hands to pay the same, and there was no sufficient evidence that Collins had earned the sum so allowed, or that there were funds applicable to these weekly payments. Between these conflicting objections it appears to me that the Master has arrived at an equitable decision in dealing with a contract very loose and indefinite in its terms, and on which, on that account, it is impossible to put any other than a discretionary construction. The contract is comprised in the following hasty letter, addressed to Collins, and signed by the trustees.

"July 5, 1842.

"Sir, --- In consideration of your undertaking the whole management of the Woodstock Mills, we agree to pay you weekly the sum of £8, provided we shall have funds of the estate in our hands to pay the same."

To this letter the signature of the trustees is attached.

There is also a letter of the same date, directing him to proceed to Illawarra, and giving him instructions to perform particular duties. Still there is no clear definition of the duties imposed upon him by the management, with which he was thus entrusted; and still less is there any clear and distinct intimation of what are to be considered "funds in hands of the estate," out of which the salary was to be paid.

On the power of the trustees to make such an appointment under the trust deed, no question arises; but the objection to the salary is as to the value of the services and the fund out of which it is to be defrayed. Collins's own evidence certainly shows that during the year 1842, he performed many acts besides those directed in the letter of the 5th January to be performed by him, which may be fairly denominated management of the mills, and it may be that the condition of the property in the course of that year rendered his frequent attendance in Sydney useful and necessary (as he states) to prevent the property from being sold. He states, moreover, that though absent he exercised a general superintendence over the mills, and that when absent from the mills in Sydney, he was engaged about the business of the mills in sending down supplies, and that all orders went through him, and in this his statement receives some corroboration from Mr. Waugh, who states in his evidence, --- "we were frequently at a loss for supplies during that year (1842). It was, I suppose, Captain Collins's duty to send them down, it was to him I looked to for them." At the same time there were other occupations of Captain Collins during that year which it would require no small share of credibility to suppose to be connected with, or to be duties incident to, the management of the Woodstock Mills: as, for instance, when he alleges that he was "away three months, or thereabouts, at Parramatta, about bullocks." A much more probable reason is stated by him for being there for nearly three months, namely, that his family resided there during that period.

On the whole, then, I am of opinion he has rendered some service which entitled him to some salary, though certainly not to the salary of a whole year. Besides, there is no pretence for supposing that his engagement was (as the defendant's first objection suggests) an annual engagement. Then, as to the funds out of which his salary was to be defrayed. "Funds in hand" by the trustees, cannot fairly bear the interpretation of the whole estate being pledged to the liquidation of his claim, and I think the fair and reasonable construction of the nature of the fund out of which it is to be defrayed, is adopted by the Master in deducting (as the mode of calculating the salary) all sums which were payable weekly, though not paid; and all sums which, in the course of business were paid during the week, though not payable weekly, before Collins's salary should become payable. The master has ascertained how long such a fund was available in the hands of the trustees, and has allowed the salary for that period. It may be said, and with some truth, that tested by the actual service rendered by Collins, this has been a very liberal allowance; but to any sum beyond it, it appears to me he has no well-founded claim whatsoever. I must, therefore, sustain the decision of the Master, and alike disallow the exception on one side that complains of too large an allowance; and that on the other which complains of too small a one being made to Collins.

The second and seventh exception of the defendants relates to the sum of £391 2s., paid to Montefiore, Breillat, and Co., which I disallow, for the reasons which will appear when I come to the exception relating to the same sum in the plaintiff's exceptions.

The third exception of the defendants is, in effect, a complaint that the Master has not certified on the fifth schedule that the sum of £69 18s. 11d was payable to the trustees, which claim they set up on the ground that the sums of money disbursed in respect of the trade and business of the Woodstock Mills, amount to £1577 1s. 4d, on which they state they are entitled to a commission of five per cent. But I do not find that there is any special provision in the indentures under which they were appointed which entitles them to this, or any commission. And I am not aware of any peculiar circumstances in their case or conduct which should exempt them from a liability to the general rule in respect of trustees --- that a trustee shall have no allowance for his trouble and loss of time --- in which respect there can be no hardship for the trustee: for it lies in his own option whether he will accept the trust or not. Considering, moreover, in this case, the very large and liberal expenses which these trustees have incurred under the authority vested in them of charging for the management of the estate, the claim for commission for themselves in addition to all their other claims for the services of other persons, is one entitled to little favour, though it were not opposed, as it is, to the general rule I have stated. This exception, therefore, as well as the others to which I have adverted, must be disallowed.

I now come to the exceptions of the plaintiff, among which the most prominent is that relating to the £391 2s. above mentioned, and which was paid under protest to Montefiore, Breillat, and Co. It is manifest from Mr. Hart's deposition, and from the circumstances of his having paid this sum under protest, that he is under a strong impression that this sum was paid on Collins's own account, and not on account of the partnership; yet Collins has sworn positively and distinctly, and in terms so clear and unmistakeable, that if he has sworn falsely he is liable to be indicted for perjury, that this sum, originally £379 11s. 8d., but with charges and interest amounting afterwards to £391 2s., was due from the partnership of Hart and Collins, and that it formed part of the sum of £876 mentioned in the schedule to the deed. Little weight, as gainsaying this statement, can be attached to the circumstances of the account being charged to Collins alone, for there is no denial in any part of the evidence of the fact alleged by Collins in his evidence, "that the style of the firm of hart and Collins, was Collins alone, as Mr. Hart did not wish his name to appear in the firm." The effect of my decision, however, respecting this particular sum will not be to conclude that Mr. Hart respecting it, his payment of it being irrespective of the trusts, for by its omission from both sides of the account --- from its neither being charged against the trustees, as money received by them under the trust deed, and from their not getting credit for it, on the other hand, as money paid on account of the estate, it is competent for Mr. Hart, if he should be so advised, to take proceedings for recovering it against Younger, or the person to whom he paid it.

The circumstances under which the sum of £391 was paid by Mr. Hart, were shortly these:- Montefiore, Breillat, and Co., pressed a payment of their debt. It was threatened that for the liquidation of this debt the Woodstock Mills would be put up to sale; Mr. Hart, into whose hands the property was about to come, liquidated the demand. The trust deed specified how the money applicable to the trusts was to arise, and this was certainly not from Mr. Hart.

The payment can in no respect be regarded as made under the trusts mentioned in the decree. It was a sum given by Mr. Hart for a specific purpose to which they applied it. If it had not been paid, the Woodstock property would have been put up for sale, and it was to prevent this it was paid over by Hart to the trustees, under protest against their applying to pay Montefiore and Co. If they have paid it improperly, it will be a question to arise between Hart and the trustees, not in the character of trustees, but simply of one person receiving money from another, and applying it to a purpose contrary to the direction of the person giving it. It is not doubted but that the present defendants applied the money to the purpose for which they demanded it, and if one the one hand they are to be charged with having received it, they are entitled to credit on the other for having paid it; but as it is not rightly chargeable on either side of the account under this decree, the item is, I think, with propriety, omitted to be charged on both sides --- which gives in effect the same result as if it had been entered as received in one column of the account and paid in another.

The second and third exceptions may be classed together as being of the same kind, --- the objections raised by these exceptions being more as to the mode of taking the account by the Master than to any substantial wrong or error committed by him in doing so. All that is contended for in the second exception is, that the Master should have reported that only £41 8s. 10d is now due and payable, whereas the allowance of several items, amounting to £1334, in the fifth schedule of the Report, makes it appear to the Court that the said sum of £1334 is still due and payable under the trusts for and on account of the same several items. According to my apprehension of the objection suggested in this second exception, which, as well as the third is not expressed in such clear and plainly intelligible terms as to enable me to say that I am confident my construction of it is quite free from misapprehension, (in which event I would request that the object of these exceptions may be more fully and distinctly stated,) substantially the Report of the Master is, as it is suggested in this second exception, that it ought to be; for the Report distinctly states that "the several sums of money set out and specified in the seventh schedule, amounting to £1334, have been paid by the trustees; and that sums amounting to £1292 have been received, which being deducted from the larger sum, leaves a balance of £41 8s. 10d. due from the trust estate to the defendants." In order to arrive at this result, and to comply with the directions of the decree, it would not have sufficed for the Master to find merely what is now payable. He was required to report fully what was payable at the time of the execution of the indentures. The directions in the decree enjoin him to take an account of all debts and sums of money payable under and by virtue of the several indentures of the 17th and 18th of October, 1841, and the 3rd and 4th of January, 18742, including therein an account of all costs, charges, and expenses incurred by the trustees, or which they had been put into execution of the trusts by the said indentures in them reposed, or in any way relating thereto. Consistently with the observation of these directions I do not see how the Master could have reported otherwise than he has done; nor can the appearance complained of in the second exception of a larger sum being due and payable than really is so --- affect the result or mislead any person as to the state of the account as it now stands.

The third exception is, that the Master did not certify by his report in the eighth schedule, the several items contained in their charge of moneys received by thr trustees the sum of £1292 11s. 7d, but the moneys which make up that amount, are quite inadmissible into the eighth schedule, for the eighth schedule is expressly and specially appropriated to the insertion of such moneys as have been paid by the testator in his lifetime, or by his agent or agents since his death. It is quite manifest that payments made from other sources were properly excluded from that schedule, but find their appropriate place in the seventh schedule, in which they are to be found. It might be, no doubt, that all the sums, whether yielded by the estate or other sources, as well as payments by Mr. Hart and his agents, might be introduced into one schedule, but the subdivision that has been adopted renders the account more clear and convenient, and as it is no way suggested how a different result could be arrived at from a different mode of taking the account, I can see no sufficient grounds for allowing either of these exceptions.

It was admitted in argument that the principle on which the fifth exception rested, extended from the fifth to the fourteenth exception, varying only in this respect, that in some of the exceptions it is stated that there was no evidence, or no sufficient evidence, of any sum at all being payable to the respective claimants; and in others, that at most there was only evidence of a portion of the money so claimed being payable. These exceptions involve the consideration how far, as between the trustees and Hart, the former are bound by the recitals in the deed, and have a right to be relieved from liability and risk --- for admissions therein made, to which, at Collins's instance, (whom Hart now represents,) they became parties; and how far the receipts for a portion of the sums set opposite the names in the schedule annexed to the deed, operate as a satisfaction to the whole amount. As the principal discussion before the Master arose on the production of proof of debt respecting one R.B. Fry, it may be convenient to state that exception as disclosing the ground of the plaintiff's complaint to the Report. The exception is, "for that the said Master hath in and by his said Report, and in the said schedule thereunto annexed, certified that a sum of £739 2s. 6d., was payable to one R.B. Fry, under and by virtue of the several abovementioned indentures, whereas the said Master ought to have certified that the sum of £605 15s. 10d was so payable to the said R. B. Fry." Now the position in which this debt stands is just this:- In the schedule to the deed of composition of October, 1841, Fry is entered as a creditor for £739 2s. t6d. This is an admission under the hand and seal of Collins (now represented by Hart,) and of the trustees, that Fry was a creditor to that amount; that he was in the terms of the deed "one of those several persons to whom Collins, carrying on business jointly with one William Hart, had become indebte4d in the several sums of money set opposite their respective names in schedule A." in which Fry's name appears as a creditor for this amount. Here then was an admission under seal in a deed which might be given in evidence as an admission of such amount being due by the trustees in any proceeding that might be instituted by the creditor to recover the larger amount, and it was sought to show before the Master that this debt and others in a similar position were satisfied by the production of a receipt for a less sum, in full of all demands. The following is the note of the Master on the evidence, having reference to this point:- "Mr. Gurner tendered a receipt, expressing that Robert B. Fry had received from George King, Mr. Hart's agent, the sum of £605 15s. 10d, being in full of all demands, Want objected. The Master thought that if the receipt had been in full of all demands without mentioning any sum as paid, it might be evidence that Mr. Hart had paid the sum mentioned in the schedule to the deed, though differing from the £605 15s 10d.; but that as a sum was mentioned as paid in full of all demands, he must prima facie be taken to have paid only the sum mentioned." It appears to me that the Master was right in rejecting this receipt in conformity with the rule that the acceptance of a less sum is no satisfaction of a larger one. A receipt in any case, signed by a party, like any other statement made by him and produced afterwards to affect him, is evidence, and evidence only, and capable of being explained. In those instances in which the receipt produced corresponded with the amount in the schedule, the Master has admitted it as payment of the scheduled debt. To go beyond this, however, and to admit a receipt for a less sum as evidence of payment of a larger, admitted under seal to be due by the trustees, would be an infringement of the rule to which I have adverted. The creditors in Schedule A. are no parties to this suit, and any of them, notwithstanding any decree in this suit, might sue the trustees for the full amount which by the deed is admitted to be due to them. They have become parties to the deed, so as to bind the trustees by a recital in it, for the trustees have paid part of their recited claim under it, and they have accepted such payment., How can the trustees then, in the teeth of such a recital say, that less is due than the sums so recited? The receipt for a less sum is no answer so far as the residue of the sum is concerned. If this had been a suit to rectify the mistakes in the deed, the evidence tendered would have been receivable, but no issue has been raised as to mistake or fraud: the only question is, what is due on the supposition that everything is correct? An estoppel, like everything else, can be set aside for fraud; and in many cases for mistake, but it must be in a suit where such relief is prayed. It stands good in law, and in equity, till set aside by decree.

It is unnecessary now to consider what relief equity might afford against a verdict at law, if such a verdict were obtained, by restraining an inconscientious creditor at law from setting up a sealed admission after he had been paid the whole that was due to him. But to a liability to actions of this kind, and the inconvenient consequences that may follow from them, trustees should not be exposed: at least, not without indemnity against such future claims. It is not to be expected, nor, the mistake being established, can it be reasonably required that Mr. Hart should be called upon to pay into Court, or unto any person, a sum of money amounting to the difference between the sums for which he holds receipts, and the larger sums attached to the names in schedule A, but on the case coming on for further directions it is but reasonable to require him, as cestui que trust, to give a sufficient indemnity to the trustees against contingent liabilities, arising from mistakes in the trust deed. On parting with the trust-property, trustees have a right to this indemnity from the cestui que trust, whenever there is any reasonable possibility of any future questions arising in dispute or mitigation in respect of the trust-property. The question on which the Master's decision was pronounced was that a receipt, purporting to be in full of all demands, but specifying a less sum than by an admission under seal was stated to be due, was not receivable in evidence to establish the fact that the receipt for the smaller sum amounted to a discharge and liquidation of the larger. In the rejection of this evidence for this purpose I concur for the reason I have already stated. It is manifest to me, moreover, that no real hardship can result from the observance of this principle in this instance, for if it be shown in any proceedings, which any of these creditors may hereafter institute against the trustees, (but which under the circumstances can hardly be anticipated), that in fact the whole sum was paid, and that by mistake the larger sums were inserted in the deed, this Court, by injunction on a proper suit being instituted, would prevent the creditors proceeding.

The objection raised by the fourth exception, respecting Collins's draft is, that the draft of the 4th June, 1842, alleged to be drawn by J. G. Collins, on William Hart, the testator, should be inserted in the eighth schedule annexed to the report as being a draft drawn by Collins and paid by Hart. The evidence, however, of Loxton shows that this draft was not drawn by Collins, on Mr. Hart of London, and he adds, "although it is entered as J. G. Collins's draft, it was in fact drawn by Waugh and negotiated by Collins." --- Hart's estate, however, gets the benefit of it, for although it was not inserted in the eighth schedule containing sums paid by Hart, it appears in its proper place in the sixth schedule, as a sum received by the defendants or by some other person for their use, under and by virtue of the trusts. It is thus made a sum with which they are charged, and of which they must discharge themselves by showing they appropriated it to the purposes of the trust. The fifteenth exception relates to Loxton's claim. In looking through the accounts, it is quite clear that he devoted much time and labour to them --- he states himself that they occupied about one hundred and fifty days of his time during the period of upwards of two years he had charge of them,. --- Now I am not prepared to decide that such an occupation of an accountant's time is, in the language of this exception, either extravagantly or unreasonably compensated by a sum of £100. Although the trustees be allowed nothing for their own trouble, yet, "it follows," says Lord Eldon, "from the nature of the office, whether expressed in the instrument or not, that the trust properly shall reimburse the trustee all the charges incurred in the execution of his trust." The proper test of allowing or disallowing such a claim is, whether it be reasonable or otherwise, and as it appears to me by no means an unreasonable one for the work done, I must disallow the exception.

The concluding paragraph of the 17th exception complains that the Master refused to receive any evidence tending to show that the said respective debts set opposite the names of the respective persons in the fifth schedule to the Report annexed, and in the schedule annexed to the deed of composition, were paid by any other persons than the trustees and the testator, William Hart, or by his agent or agents since Mr. Hart's decease. But the answer to this complaint is, that the Master was bound to follow the instructions of Mr. Justice a Beckett's decree. He was limited to the exercise of the authority to which that decree restricted him, and could not go into an account of the payments made by other persons than those of whose payments that decree specifically directed them to take an account. Nor do I see how this refusal can ultimately prejudice Mr. Hart, for he cannot be called upon a second time to pay a debt already paid by the estate, no matter by whom that debt has been discharged.

On the whole review of the documentary and oral evidence taken in this case, I have arrived at the conclusion that the Report of the Master contains as true and accurate a state of the accounts as from the imperfect materials with which he was supplied, and the negligent and loose manner in which they have been kept, can be arrived at. The exceptions on both sides, especially those on behalf of the defendants, are such as I do not feel justified in sustaining, as I can suggest no alteration in the Report that I could myself feel assured was an amendment as well as an alteration. In the course of the observations I have made, I have suggested how many of the apparent hardships adverted to in some of the plaintiff's exceptions may be guarded against in other stages of the suit, but as I am not satisfied that by the Report any substantial wrong or error has been committed, I must disallow the exceptions on both sides; the costs of the exceptions to be respectively paid by the failing party.

16 November 1847

Source: Sydney Morning Herald, 18 November 1847, in Supreme Court Collection, Vol. 2, p. 27

IN EQUITY.

BEFORE His Honor the Primary Judge.

HART v. YOUNGER AND OTHERS.

The only question, or at least the principal one to be disposed of by me now is, whether sufficient circumstances have been disclosed in the present suit to take it out of the general rule,---that in suits between trustees and cestuique trusts the trustees shall have their costs as a matter of course as between solicitor and agent, unless they have forfeited that right by any misconduct. The rule applies equally whether the trustee comes before the Court as defendant or as plaintiff. To this no doubt there are exceptions, such as when the act required by the cestuique trust and refused by the trustees to be done leads to no responsibility, or where the case is too clear to admit of doubt, or where a trustee from caprice or obstinacy occasions a suit, and his motive is obviously vexatious. Evidence is no doubt admissible to show that trustees have so acted, but the circumstances proved in this case, in my opinion, do not afford such evidence as to amount to any of the supposed cases. The result of the inquiry into the accounts has shown that the trustees rightfully resisted the application of the ultimate cestuique trust to reconvey the estate to the plaintiff. They were not bound to reconvey it to him until payment of the debts had been made by him, and the Master's Report, which has been confirmed, has shown that a considerable amount of debt, for which the trustees held this property as security, remains still unpaid. A question of this nature cannot be settled or decided by the opinion which one may be disposed to entertain of the conduct of Mr. Hart. Be it granted---and I do not think it was disputed or denied that his conduct, ad manifested by his correspondence, was fair and highly honourable; but that will not be sufficient. In order to deprive the trustees of their usual costs, he should have shown, as by his bill he had undertaken to show and prove, that the trust as to the other cestuique trust had determined, and that he was entitled to have the trust properly conveyed to him. The statement in the bill sets forth that there are not any creditors entitled to the benefit of the trusts---and the prayer (in conformity with the statement which assumes throughout a balance in favour of the plaintiff to be in the hands of the defendants) is that the trustees may be decreed to pay to the plaintiff what shall be due to him upon the taking of the accounts. Now it is clear from the case of Holroyd v. Phepps, 3, Beavan, 429, and the class of cases to which it belongs, that where the parties call on trustees to part with their estate on the ground that the trusts have terminated, they are bound clearly and satisfactorily to show that fact to the trustees. But the accounts have been gone into, and the result is not only a failure of such proof, but a proof of the reverse, that the trusts have not terminated;---that the debts have not been paid;---that there is not a balance in their hands, but large claims of creditors must be settled before the plaintiff is in a position to call on the trustees to convey the estate to him. Indeed, it was only by an assumption that the trusts as to creditors had been determined that a bill could be entertained, to which the creditors were not made parties. The present plaintiff is not the only cestuique trust. The creditors of the estate are also for certain purposes specified in the deeds of the appointment of the trustees' cestuique trusts, also for whose benefit and protection the trustees also had a duty to perform, and it should have been so clearly shown---as the contrary has now been proved; that this duty had been put an end to, to enable and justify the present plaintiff to file a bill as a sole cestuique trust, calling upon the defendants to convey the estate to him. Until the trusts can be performed it is impossible the estate can be conveyed, as it was truly observed and contended for by Mr. Fisher, that the bill would have been demurrable if the allegation that debts had been paid was not contained in it.

If the bill had been so framed that its statements were conformable to the facts that are now in proof, it would have appeared that the subsisting interests of creditors are not represented, and it would have been liable to be demurred to for want of parties; for it is a position, I apprehend, that will not be contested, that where there are several cestuique trusts of a fund, and one of them files a bill against trustees, he must make parties all the other cestuique trusts. If this bill then had been framed without the other cestuique trusts as parties, and had been demurred to, it must have been dismissed with costs---and I do not see how it can be dealt with any more favourably now that evidence has been gone into from which it appears that the bill has been framed on the erroneous assumption of interests being satisfied and debts being paid, which are not so, and that there has been a failure in proof of its main allegations, and a consequent failure of the principal objects sought and prayed for by it.

His Honor further added that on other grounds---subordinate ones however to that to which he had adverted---he did not see sufficient reason for depriving the trustees of their usual costs consistently with the principle pervading all decisions respecting trustees, that where fraud, neglect of duty, or vexatious conduct was not manifest, they were regarded with favour and indulgence, on account of the arduous and painful duty they were often called upon to perform, and the hazardous responsibilities to which they were exposed. It was true the claim for commission made by the trustees, and a portion of the claim on account of Collins's salary, had been disallowed,---but then very many claims made by them had been allowed as just and reasonable. If the trustees had made the non-payment of commission---or any other claim unduly made by them a sine qua non condition, without which being complied with they refused to surrender the estate, their refusal might be deemed vexatious; but as they had well-founded grounds for refusing to convey the estate, the circumstance of having advanced a few erroneous and disputable items in their accounts, which were not put forward as the sole ground of resisting the plaintiff's action, was not such a misconduct on their part as should disentitle them to their costs. The complaint of the plaintiff, that sufficient vouchers had not been furnished by the trustees, was in a great degree, if not wholly, satisfactorily explained and excused by the answer of the defendants, that the account was left with all such vouchers as the defendant Younger then had in his possession, and that he was not furnished until afterwards with the other accounts. The proposal for arbitration by the trustees was also, he thought, a favourable circumstance in their conduct. At this period no doubt mutual misapprehension and distrust arose between the trustees and the cestuique trust. On the one hand, the trustees were pressed by creditors to sell:- on the other Mr. Hart believed that all just claims had been liquidated. In such a position of affairs arbitration was proposed and rejected; and in the full confidence that all the debts had been satisfied, the plaintiff filed the present bill, and framed it accordingly. By the result however, it is shown that the assumption of all the debts being paid was an erroneous one.

Refer to tax costs of defendants as between solicitor and client---when taxed to be paid by plaintiff---to defendant's solicitors respectively within one month from the date of taxation.

Declare by consent the sum of £581 9s. 2d. to be due to the defendants, the same to be paid to them out of the sum now in Court, the residue thereof to be paid in part payment of costs rateably amongst defendants' solicitors.

By consent let the defendants convey to plaintiff the property vested in them, upon an indemnity in respect to the payment of the further sum of £517 5s. 9d., appearing by the Master's report to be due under the said trusts. The conveyance and indemnity to be settled, in case the parties differ, by the Master.

Published by the Division of Law, Macquarie University