COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5504, 16 November 1878, Page 1 (Supplement)

COURT OF APPEAL.

"WJJDNE3DAT, N'OVKMBER 13.

hi- Honor-the ' 'hief Jo-tice, Mr Jus' r« John-ton, Mr. Justice Gillies am Mr. Justice Williams ) Tile '\nxr r , sat at II i-.oi 2I3IGIIAH V. MORTON AND AWTHER.

This waa an appeil brought be plaintiff against a jndirraent of Mr. Justice Gillie* on a demurrer to defendant""' plena.

Mr. Hesketh for appellant, Mr. Travera for respondent. The declaration set forth—l. That on 30th Aoril, 1876, one Agnes Anna Brissenden, being seized in fee simple for her sole aud -epirate me of certain lands known as Mrs. Bria•enden'a Rangiriri Farm, by deed of that date, duly registered in Auckland, did convey and assure the said lands to the New Zealand Fire and Marine Insurance Company by way of mortgage, to secure the repayment by hereto the company of £2500 and interest. 2. That on the 4th September, 1876, she was seized in fee of certain other land* known as Mrs. Brissendeu's Epsom Trust property, subject however, to a mortgage to one John Edward El'am, to Becure the sum of £ISOO and interest thereon ; and tint plaintiff, at the request of Mrs. Brissen den, on that date by doed did convey and assure the Epsom Trust property to the said insurance company by way of mortgage to secure the repayment to the company of £SOO. (3.) That for the purpose of further securing tho payment to the insurance company of the £SOO secured by the last-meutioned mortgage she, on the 19th September, 1876. conveyed and assured the Kaogiriri Farm (subject to tho previous mortgage) to the company, by way of mortgage for the purpose of collaterally se curijg the payment of the £SOO. (1.) That the moneyß received by the plaintiff as the proceeds of the said last- mentioned mortgage were paid by the plaiutiff to the said Agnes Anna Bris enden for her sole anil separate use, and she, on 4th Septenher, 1876, agreed with the plaintiff to grant him a mo tgage over the ■ lfcnds known as Mr-. B i-sendeu's Rmgiriri Farm, as more particularly appear* by an agreement in writing in the won Is an I figures following:—"To Dexter Brighim, Esq. In consideration of your having mortgage the Epsom Trust property for the sum of £ISOO, and you hiving this d iy raised the further stun of £SOO on the said property, I hereby agreo ■ when called upon by you to execute yon a mortgage over my Rangiriri property for the sum of £'2ooo, suhjec, hoivev• r, t > the pres-nt encumbrance of £3OnU. I hereby, admitting that the said sum of £SOO is to he expended in improving the said property at R ms;iriri, and the said sum of £ISOO hiving been applied by you, at my request, to purposes othor than those specified in the trust doed of the Ep<om property.—A. A. BBI33ESDES. Auckland, 4th September. 1873." '5.) That- by deed b-aring date the Btli May, 1877, the New Zealand Insurance Cmnpanv assigned "ut<> defendants the mortgage de'.ts of £250) aud £SOO, and al o by the siid d ed did convey an 1 aspire unto the defendants the lands comprised in tho two mortgage deeds and the collateral mortgage deed, subject, however, to the equities of redemption affecting the same respectively. (6.) That the defendants, under the power of sale contained in the said mortgage deeds, have sold and disposed of the lands comprised in the deeds, and have realised therefrom a sum greatly in excess of the moneys secured-by the deeds of mortgage ; and although the plaintiff has requested the defendau f ß to account to him for all moneys realised by them under the mortgage deeds, and to pay to hiin whatever moneys may be found to be due by the defendants to the plaintiff, and although all notices have been given, &c , the has not been complied with,—wherefore the plaintiff claims from defend ints a full account, that the securities mentioned iu the declaration may be marshalled for plaintiff's benefit ; that the defendants be ordered to pay over to plaintiff all excess moneys ; that the defendant pay the costs of the cause, and for such other relief as the Court may think fit. To this declaration defendants pleaded For a second plea they set out a deed made on 22nd December, 1876, hptween Edward Torrens Brissenden and A. A. Brssenden, his wife, of the one part, and defendants of the oth-r part. This deed set out that whereas A. A. Brissenden had for some time past been carrying on the business of a storekeeper and fanner at the Waikato, and had contracted certain debts to persons (whose names were set out in a schedule attached to the deed), and whereas some of the creditors had been pressing her, in consequence of which a meeting of creditors was held, at which it was resolved that the Brissendens should execute "these presents, as well as in addition to.other deeds, for the purpose of conveying and assuring to the said trustees (the defendant-) the real and personal estate belonging to the said Agnes Anna and the said Edwin Torrens Brissenden in right of his said wife, in trust for the sale and disposal of such real and personal e'tate and Ithe equal distribution of the proceeds thereof amongst the several persons creditors of the naid Agnes Anna Brissenden," &c. "Now this deed witnes3eth that in consideration of the premises and of the sum of ten shillings in hand paid by the said trustees to the said E. T. and,A. A. Brissenden 'the receipt whereof is hereby acknowledged) the said A. A Bris<end»n doth hereby, with and by the conHent and approbation of the said E. T. Brissenden, testified by his being a party to and exe- , cuting these presents, convey and assure," &c„ certain properties, including those mortgaged to the New Zealand In-urance Company, which mortgages had been assigned to plaintiff The property having been described, the deed ; proceeds—"to hold the same with the said , tru-tees, their heir-, and as-igns, Buhject i nevertheless to certain deeds of mortgage hold | by the New Zealand Insurance Compitiv, securing the repayment of £15)0 and £SOO . respectively, with interest thereon," " uj-oo | tru-t that the said trustees, or the survivor of , them, shall, if tiiev or he shall s-e fit, at such time or times, and in such m inner as thev or | he shall think fit, pay, and discharge the said , principal moneys and interest, and sell the said , premises, either together or in lots," &o. | " And it is hereby agreed and declared that , the said trustees .... shall stand pos- ,

ses<ed of and interested in lb<» mon-ys to arise from the said heiel timenU and premises, utitil the same shall be converted into money as aforesaid, upon trust that the said trustees or trustee for the time being shall, with and oat of the same, in the first pli"?, v n -7i eatißfv, aud discharge the ousts an. I expunse* attending tli-j preparation and execution of thus-) presents ami the costs aud expenses incurred by the said trustee or trustees . . and shall divide the clear residue of the said moneys among the several persona mentioned, creditors of the said A. A. Brissenden . . and aim among any other creditor or creditors of the slid HI. T. Brisaend«n and A. A. Brissenden in their said busine a of storekeepers and farmers rateahly. ... in the event of there beiag insufficient money to ratify the wh«>l-> »f their just claims, nt'»-rwise to pay in full each, every, and all "f the debts due to such creditors;" the residue, if any, then to goto Jin. Brissenden. The pie i then proceeded to set forth that this deed was registered on January 2'J, 1877, and that at that time and previous thereto the deed made between Agnes Anna Brissenden and the plaintiff had not been registered. That at the time of the execution and registration of the deed of 22nd December, 1878, and of the sale and application of the proceed* of this land at Uangiriri, they had no actual personal knowledge of the alleged prior transaction, aud were' not served with notice thereof by the plaintiff. That the defendants have applied the moneys arising from the sale of the lands comprised in Mrs. Brissenden's Rangariri Farm in execution of the trusts of the said deed. And for a third plea, the defendant says "that the moneys arising from the sde of the lands known as .llrs. Brissenden's Epsom Trust property were applied by the defendants in payment of the money secured bv mortgage npon the property aud the interest due thereon at the time of sale, and the moneys so arising were insufficient to pay the whole of the sura BO due and owing under the mortgage. That certain accounts had been rendered, and no others ever asked for by plaintiff. That no demand have ever been made for surplus money*, and that defendant* had neither refused accounts nor refused in«n ys which might be found to be due to plaintiff. To these plea* plaintiff demurred. I. As to the second plea (1), that the deed of the 22nd December, 1876, did not • require any priority by registration, the said deed not being a deed for valuable consideration ; (2), that tho said deed being voluntary it does not appear that it was communicated or assented to by creditors before the defendants had notice of the agreement in the declaration set out; (3), that even if the said deed did gain priority by registration, and if the defendants did execute the trusts of the said deed before receiving notice of the agreement, yet tho plaintiff i entitled to have the accounts taken under thtdirection of this honorable Court. . (4 ) I'hat the raid pl y » d OCB „ ni , allege any facts rleb-irrintf . the plaintiff from tho relief in the decoration *sked for. 11. As to the third plea (1) that

the facts alleged in the a dil plea are no bar to this action, and even if accounts have been rendered as alleged the plaintiff is still entitled to have them taken under the direction of this C .lire. (2 ) T lat the ace wits alleged t .have been rendered appear to have been confined to tho Kp-otn property, and did not include the defend* its d alings with the Rangiriri Fnr.ii, and are not the aco 'U'lts iu the dt-clnr <tion oske I for. (3.) That the issues raised by the said plea would he imtuiterial and would not go to determine the rights of the particulars disputed in this action. (4.) That the plea is badly pleaded, being pleaded to a part of the declaration not relied upon as containing a separate cause of action. At the hearing in the Court below this demurrer was overruled, and the plaintiff now appealed against that decision. Mr. Hesketh read portions of tho judgment given in the Court below, and said no doubt the first and main question was whether the defendants' deed was a deed for valuable consideration, and that was the question to which he should first address himself. It was given by a married woman in relation to her own separate property, and was given to plaintiff iu consideration of his raising for her a certain sum of money. He agreed to raise for her £SOO in addition to the £ISOO she had already received, an t in consideration she signed a document agreeing to execute a mortgage over the Epsom property when called upon to do so. When this document was signed the position of matters was this—The Rangiriri property was mortgaged to the New Zealand Insurance Co. for £2500, and the Epsom property was mortgaged to Eluiti for £ISOO. The Kpsom property was to aU intents and purposes nijon this record the property of tho plaintiff. But Mrs. Brissenden requested hiin to rai-e a further sum of £SOO on the property and give it to her. He did that, and in consideration of his doing it she agreed to

i. xecute a mortgage to plaintiff of the R mgiriri property when called upon to d> so. Perhaps it was not ueces-a.-y for him to discuss the question as to whether a married woman had power to sign such a document, because since* the case of Pride v. Ribb no doubt had existed as to the power of a married woman to charge hor separate estate. The u?xt question was as to whether the documout was a registerable document. Mr. Justice Williams : Is it disputed ? Mr." Hesketh was not aware, but in support of his contention would refer the ' 'ourt to re Wright's Mortgage Trust, L It., 16 eq 41, and to t.vo other ca-e-, UK., 18 »-q. 3-itt, aud 10 Chancery Appeals 8. According to this latter cibh the document mu-t iil-n be tiea'ed as having the same tff t as if it had l>-eu a mortgage "f the laud itself, aud plaiutiff must be enn-idered as being in the same position as if the while of the property was'included in the mortgage. This point was dealt with more fnrcihly in the case of British Mutual Inve-t----meut Company v. Smtrt, 32 L P., N a., 851. Therefore the e could be no difficulty in ascertaining what were the plaintiff's rights in that respect. The Chief Justice : You contend then, on the authority of the cases quoted, that an agreement for a mortgage is a convey ince within the meaning of the Registration Act. Mr. Hesketh : Yes. It is a dncument which could have been registered, but which was not registered. The first section of the Registration Act which affected the question was the 50th section, and it was also touched by the 54th section. The first question which arose under these clauses was that as to whether it wa3 a deed for valuable consideration. It was held iu the Court, below to be such. The definition of Mr. Justice Lush and others of valuable consideration was quoted as follows : " A valuable consideration in the sense of tho law may c insist either iu some right, interest, profit, or ben'fit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken bv the other." The learned Judge in the Court below said: " Tested by this definition, there can be no doubt that the defendants' claim for valuable consideration under their deed, the responsibility undertaken by them as trustees thereunder being manifest y a valuable consideration." Ha respectfully submitted that that statement of the law was erroneous. It an assignment of property was made, and if acceptance of office aud the administration of that property, under a certain trust set forth in the deed, by the trustees, created a valuable consideration, then there never could be a voluntary deed. Or he might put it m >re correctly in this way : that a voluntary deed could be taken out of that category by the appointment of trustees. Mr. Justice Williams : Clearly that contentiou cannot be sustained. Mr. Hesketh referred to the provisions of the deed as to the disposal of the moneys realised from the sale of the trust property. First it was to co to cover the expense of the preoaration and execution of "these presents"; then to defray the expenses of the trustees, and the clear residue was to be divided amongst the persons named in the schedule. There was nothing to -how that these persona were creditors, nor did it contain any release to Mrs. Brissenden, although it purported to be for the b»nefit of her creditor.

Mr. .Tusti'e Williams : Apart altogether from the Registration Act, and assuming that the agreement for a mortgage had been subsequent to this deed, must you not show that the deed would have been bad under the statute of (SUzibeth a 3 against a subsequent agreement for a mortgage ? Mr. Hesketh : I have not considered that view, your Honor. Mr. Justice Williams: That seems to be the point. If it would have been bad as against a -übseqnent agreement for a mortgage under the statute of Elizabeth, then you have estab li-hed your posi'ion that the deed is not for a valuable consideration within the meaning of the registration law ; but if Joa cannot show that, I don't see how you cau make out your case.

Mr. Hesketh had not considered that point, but thought his argument would it The deed did ii"t contain any release or any covenant th t the creditors would not sue her at a future time. Although Mrs. Brisesden parted with her property she got in reality no return for it. Had it contained a covenant that in consideration of the as-igument no proceedings would be taken agaiust her in connection with her debts, or had it even contained a release from those debts, no doubt it would then have been a deed for a valuable consideration ; but it contained nothing "f the kind. Tt was simplv an assignment of property, for which she got nothing—no return whatever. Mr. Justice Johnston : Could the creditors sue agaiu f Mr. Hesketh replied perhaps not. What he contended was that the creditors, having been paid 153. in the £, would still be liibla to.be sued for the other sa. She gave up her property and got nothing in return, so that really this was a voluntary deed, and must be treated as such. It did not appear that the persons in the scehrlnlo were all her creditors, so that on» dissentient creditor won'd have the right to make her a bankrupt. He called the attention of the Court to re Korster and Lyster's contract, 46, L. J. Chancery 480-81, and Teesdale v. Brown, 46 h. J. Chancery 397 (and on nppeal). 725. The Court would consider what was the position of the parties before the deed was executed and what was their position afer it was executed. Then he came to the question whether the acceptance of the position of trusfceo amounted to a valuable consideration.

Taking the definition of valuable consideration given in the judgment as correct, he submitted that the appl'catinn of it was wrong in the present instance, because there was no benefit accruing to Mrs. Brissenden. It must not be a one-sided arrangement,—one party was not to receive a great benefit without there being a corresponding benefit on the other aide. Mr. Justice Gillies : Mrs. Brissenden received value for what she parted with. She received a release from her debts to the extent of the proceeds of this property. ' Mr. Hesketh submitted fhe had received no release according to the deed, and he presumed the Court would not go beyond the deed. " Perry on Trusts," p. 264, s. 220, gave a definition of valuable consideration which ho thought applied to this case. Mrs. Brissenden had parted with her property, and was in no better position than before. The Chief Justice : la it necessary she Bhould be in a better position 1 She might be in a worse position. Mr. Heßketh: Well, in this case certainly she is in a worse position. The day after sho parted with her property the creditors might sue her for 20s in tho pound, anil if she set up this deed it would be no answer. That test was an excellent, criterion It showed at once there was no valuable consideration. Clearly so, for as Mrs. Brissenden was concerned it was a voluntary act, and she was in no better position. As to the trustees it was a voluntary act so far as they accepted the position, but it was argued that because they were to be paid for their trouble then they gave a valuable consideration.

Mr. Justice William": Snppo-nng the deed was between Mw. 'Binxenflen ami one creditor, aitd in conwiditr ttion of a d«bt owing she conveyed her property to this creditor and ha

sold, kept the amount of his debt, no handed over to her the balanc ". would not that dee.l have been for a valuable c msiderati >u ? Mr. H.-keth: Perhaps si, if th-re was on!;, one creditor. Mr. Justice Willi itns : Th-n is not this d-ed of the same cwncvrl Are not a

number "f creditor lie e doing ft* themselves what the one creditor would do for himself iu the cise I put ? Mr. He-ketk : I think there is a great difference, Mr. Justice Williams : Could not the deed be set up against the claim of any person who sued for his debt ?

Mr. Hesketh believed not. With regard to the question of valuable consideration he would refer the Court to Roshia v. Williams, 32 L.J. 387. Further, he contended that, assuming there was no valuable consideration at the time the deed was signed, nothing ex post facto could make the deed one for valuable consideration. Al-o, ho submitted that if the deed was a voluntary one' in the first instance, it must always remain so as against the holder of a prior mortgage. The revncability or irrevocaI bility had no relation back. Johns v. James, 37 L J., K 3, 778. There was nothing to show that there wa3 not a large amount of money still iu the hands of the trustees. They did not allege that the whole of t-te monies had been applied in the execution of tho trust. There might have been from Rangiriri a large surplus, and as the plaintiff's position was not affected by the deed he was entitled to the surplus. Taking up the voluntary position, and assuming there had been a surplus, to that surplus plaintiff was entitled. -He was placed in the position of third mortgagee, and had the fullest right as against the holders of the equity of redemption. Admitting that the defend mts were the prior mortgagees, plaintiff had still a r'giit to call upon iheui for accounts. A subsequent mortgagee had a perfect right to call to account the actions of prior mortgagees Plaintiff contended that the equity of redemption was not disposed of absolutely, but with a reservation. Eveu if tho money was parted with by the defendant, plaiutiff was entitled to an account.

Mr. Justice Williams : If you had told him you were a subsequent mortgagee prior to his dealing with the money 1

Mr. Hesketh : Even if we had not done so. Therefore-the pleas are bad iu that while pro-fe.-siug to answer the whole of the declaration iu reality they only answer part. The judgment of the Court belmv seems to allow th it the plaintiff was entitled to on account on the I'jpsom property, yet because he lias ask© i tor ail accouut on both properties he is not to have an account on the one which the Court Beems to concede he has a right to have an account of. Mr. Justice Johnston : You contend that the prayer ia distribntaljld 1 Mr. Hesketh : Yes. I also submit that plaintiff stood in the position of a surety so far as regards the Epsom property, and is therefore entitled to have the securities marshalled. Harwood v: Dubois, L.R., 13 eq. 115; Robertson v. Gae, 1 Vesey 252. Mr. Travers said tho facts of tho, case appeared to bs these : Separate mortgages of diffsreut properties by the plaintiff aud Mrs. Brissenden, the plaintiff's mortgage being a collateral security for money raised for Mrs. Brisenden's use ; a conveyance by Mrs. Brisseuden of the equity of redemption in the property mortgaged by her upon trust for sale and distribution of proceeds for benefit of cifidi tors ; a trausfer of both mortgages to the trustees of the latter deed ; Bale by the.n, said to have been under the powers of sale in the mortgages ; application of the moneys : first, in payment of principal and interest due on mortgages, second, according to trmts of t ust deeds, for bouefit of creditors. Mrs. Briaenden, however, had given the plaintiff an agreement to grant a second mortgage over her separate property, in order to secure bioi agaiust loss under the mortgage giveu by hiin, but this was never brought to the notice of th.defendauts until after i-fie complete distribution of the funds realised by the sale of the property. He admitted that the trust deed waa voluntary one at the time of execution. On thaf'poiut the cases were ad agaiust him, and would be found summarised in " Dart's Vendor and Purchater," 813; but as no steps were taken by the plaintiff to ait it aside, it became ex post facto a deed ho. valuable consideration in various ways May, 298. There was a relation back as against purchasers if not as against creditors George v. Milbauk, 9 Vesey, 95. A deed became good by any bona tide dealings under its provisions by relation back to the date of the deed. Registration hardly touched the question. For aught that appears it might not nave been registered until after it had been acted upon. But although he must admit the deed, was a voluntary deed when made, yet having become good by relation to .its very date it would also be good at the date of its registration, if it was registered on the same day. He admitted his friend would be entitled to have the assets marshalled, always supposing they remained in the coutroi of defendants ; but they had not so remained, having passed beyond his control before any notice was received from plaiutiff The whole of the fuuds had been distributed and there was nothing to marshal!. Before defendants were dragged into an equity suit for an account, facts should have been pleaded to prove that they had been guilty of improvident dealing with the mortgaged property. Hs admitted that aa regarded the Ep-iom property plaintiff had a right to an account; hut he had been informed that the property brought less than the amount of charges it had to bear, and the details showing this were given ; and what more account could be uiveu ? Mr. Justice Johnston : If a right to an account existed no account has been ren

dered. I don't sec why the suit should not succeed although it may be that the money realised is less than the charges. Mr.- Justice Williams referred to 47 L.J., Chancery 655. Mr. Travel's: Just so, in this action the pro priety of the sale waß not questioned; hence the plaintiff ought to have been satisfied with the accounts already rendered. He had nothing further to add. Plaintiff had brought his rights forward too late, and the demurrer must stand.

Mr. Hesketh submitted that no answer had been given to his argument as to plaintiff's rieht to an account. It was no answer to say that the price realiaed was less than the charges. A man's equities could not be taken'away in that manner How could he bring forward facts as to improvident dealings if accounts were refused. The Court reserved judgment. * Thursday,, No vhmbbr 14. (Before his Honor the Chief Jus'tice, Mr. Justice Williams, Mr. Justice Gillies, and Mr. Justice Johnston.) Tho Court reopened at 11 a.m. MORRIM AND ANOTHER V. KISSLING.

Mr. He*keth, for the appellant: This is an appeal from the judgment of the Supreme Court of the Northern District upon a demurrer by the appellant; defendant in the Court below, to the plaintiffs' declaration, on which occasion judgment was giveD, overruling the demurrer, with costs. The declaration which was demurred to is as follows :—" That on or about the fourth day of June, in the year one thousand eight hundred and Beventy-seven, the plaintiff* retained and employed the defendant for commission or reward to purchase for the plaintiff* a certain piece or parcel of land situate in the Piako district, in the colony of New Zealand, and known as the Mangateparu Block. Bounded on the north by the Maogakahika Block; on the east by the Piako River and the MangaUuraia Stream ; on the south by the'- said stream, and on the west by a Government block called Hangawera, as the Baid Mangatepara block is delineated by the plan drawn hereon, and bordered b'uo. That the said defendant accepted the said retainer and purchased the laud as agent for and on behalf of the plaintiffs. That the plaintiffs hAve always been and are still willing and have offered to pay the purchase money of the said land and a reasonable sum to the said defendaut for his commission for purchasing the same. That the said defendant, in breach of the said duty as the said plaintiff)' agent, has obtained a conveyance of the said laud in his own name, and claims the said land as his own property, and refuses to acknowledge the said plaintiffs' right to the same. Wherefore the plaintiffs claim a transfer of the land to them, and the plaintiffs pray such further or other relief as to tbii honorable Court may seem fit." The appeal is brought against that judgment. On the occasion of the learned Judge giving judgment, the authorities, which are very numerous on the question, were not fully gone into by the learned Judge, because it was known that the parties desired to take the opinion of Court with regard to the point that had been raised under the -tatute of Frauds : and therefore the Judge expressly stated in the judgment, that he did not go so fully into tliu authorities knowing that if he hid done so it would have involved delay, aud that the par-

ties could not probably take the opinion of the Court of Appeal at the pre-eut session. Tho naureofthe a-tion is one against the defendant as a supposed trustee, to have an express trust created or d-clareih I submit that ithe nature of theacion it-elf. No doubt i> the judgment itself which was given tho cr.se was treated as a case of a different char icter —as a case of a fraud by an agent -ui his piincipa l , not treated as a _na-<-in which an expressed trust was claimed to exist, but as a case altogether outside the Statute of Frauds. The position taken up by the appellants in this case is this: That tho Courtß of Law or Equity have never gone so far as to limit the degree to which the conscience itself shall be shocked. Taking the 4th section of the Statute of Frauds, how many cases exist where parties say—" I admit I agreed to buy land ; I a Imit that I agreed to give you a certain price, but there is no contract in writing." Then how often does a person part with his goods on the verbal representation of another, who says "I admit that I agreed to buy, but yon have not got my guarantee in writiug." The case is an important one for this reason : That if the Conrc'i should not be with me iu the position I propose taking up, the Court will, in fact, have to overrule some seven text writers. [Johnston, J. : It will never overrule text writers.] It will rule this, at all events—that the text writers have misinterpreted the law. A principal has no power to declare a trust ; he is not a person entitled to declare a trust. With regard to the* Statute of Frauds, it is the seventh Bection on which the demurrer ia alleged to he founded. I submit that in the case of Cave v. McKenzie, the judgment of the Master of the Rolls there admits that up to the time the contract remained executory there was no confidence iu the agent beeau-e he was agent. The present plaintiff is relying on his own decliration. I submit that the plaintiff, if he wishes this relief at all, must take his stand under the 7th and not under the Jth section of the Statute of Frauds. There ca» be no fraud, I submit. If tho Statute of Frauds allows it, no- Court will say it is a fraud, [f his case comes within the Statute of Frauds, it is not in the power of the Court to say that it ia a fraud, because the Court would thereby be repealing the statute, which of course it has no power to do, I submit that it is not a fraud. The turning point of the argument is as to whether pa'ol evidence can be given—as to whether the trust sh mid be manifested iy some writing. If the right or title of the plaintiff cannot be estahlidie 1 without proof of i contract with the defeudmt, pirol evidence of that contract cannot ba given. Parol evidence cannot be given, because if parol evidence is given of the contract, parol evidence is given of the agency, aud therefore of the trust: (Lewin on Trusts, ed. 2, page 148-U9.) The word ageut is in italics.' There ia no misconception >vith regard to the text. It is directed to a person who is an agent, and to a person who is a principal. It ia therefore directed to a person who ia employed, to a person who is contracted with, and although in equity he is a trustee, it is a trust arising ex contractu, and not arising by operation of law. The agent was employed to buy as an agent. He was engaged by a principal to buy, aud bought in his own name. Gillies, J. : Yes, for reward. If a plaintiff requests a defendant to buy a piece of land, and defendant agrees that he will buy, surely this Court will not allow a man to keep an estate where he did not receive remuneration, and compel him to give it up if he is to receive remuneration. [Gillies, J. : It is the duty of an agent engaged to buy for a principal to buy iu the name of his principal and not in his own.] I submit most confidently that if a person ia asked to buy an estate for another, •ml he says he willdo it, clearly he is an agen(j. 't arises necessarily from the relationship, and loes not require a stipulation that ho -hall pay lim for what he does. There is every implication of agency ; not only is the principal, out the principal and agent, created. [John ston, J.: You don't assume a quantum meruit when the circumstances disprove tile notion of i remuneration passing.] It does not want remuneration to create that relationship. As i general view, I would submit this to the ) mrt —that I have not been able to find any oase in which the Statute of Frauds has been <et up under the 7th section and not allowed. Certainly in the argument in the Court below uo case whatever of that description wa3 cited where the defendant claimed the benefit of the Statute of Frauds. [Gillies, J. : In several cases where defendants claimed the beuefit of '•he Statute of Fraud-, it was shown that the statute did not apply ] If your Honor refers to the case of Cave v. McKenzie, where secdon. 8 was set up, then I agree there have been cases of that kind; but not where section 7 was relied on. [Gillies, J.: In the case of Cave v. McKenzie the 7th section was expressly relied on] I submit, on the authority of Mr. Justice Storey (Equity Jurisprudence, vol. 2, section 1201 a) that in this case there is no resulting trust, and that no resulting trust can arise. If a resulting trust could have arisen out of the same facts, how could the Judges in the criminal cases decide that he evidence was immaterial ? If it could raise a resulting trust, the evidence was most material. There has been a conveyance in the present case of the legal estate t > his supposed trustee. By getting a con-* veyance of the legal estate, it can only be got out of him by his being declared a trustee ; it is sought in this action to get it out of him in spite of the Statute of Frauds. [f the equity is in the plaintiffs, they oan now declare the trust, an 1 ohirge that land with the trust they ohoose to declare. If they cinnot declare the trust, the equity is not in them. I submit that thet Court is really a-ked to give a judgment which, in effect, imonnts to a repeal of the Statute of Frauds; that the Court is asked to give a judgment which amounts to this : according to the mind of the Court these facts are so shocking that ve cannot allow you to take the benefit of the State of Frauds.

Cases oited :—Story's Equity, sec. 1201 a, )ih eri.; Perry on Trusts, Bees. 78-81, 83, 84, 85, 134, 133, 4 and 5 ; Lewin on Trusts, pp. 148 and- 9 ; Kant's Commentaries, vol. 4, p. 332 ; Sugden's vendor and pur., 14th ed., pp. 149 and 50 ; Dart's vendor and pur., 4th ed., p. 852 ; White and Tudor's Leading Cases, vol. 1, pp. 174 and 5 ; Russell on Crimes, vol. S, p. 19, sth ed.; Bnrdett v. Piokers.'ili, 1 Kden p. 516 ; Bartle v. Hutchinson, 2 Vtisey, 627, and cases cited iu Sngden ; Cive v. MeKenzie, 37 L.T., N.S., p. 219 j Heard v. Pilley, L. J., 4 Oh. App., p 548; Bex v. Boston, 4 East, p. 572 ; Rex v. Banerecke, Pedro's Add. Cases, p. 93 ; Rex v. Dunston, E. and M., N.P.R. 109 ; Burden v. Sheridan, 14 American Reports (Iowa), p. 505 ; Henderson v. McKanzie, N.Z. Jur., vol. 1, N.s. p. 47 ; Pollock's Principles of Contract, p. 235. The Court intimated £hat they would hear Mr. A. Whitaker, for the respondent, next day at 11 am. The Court then adjourned. Fbiday, November 15. (Before their Honors the Chief Justice, Mr. Justice Gillies, Mr. Justice Johston, and Mr. Justice Williams). MORRIN AND ANOTHER V. KISSLINO. The hearing of this case was resumed. Mr. A. Whitaker, for the respondent: T do not think it necessary to read tho pleadings again. There are two grounds on whichlsubmit that the respondent must succeed. The fi at and more important is that this is an action not to enforce a trust of lauds, alleged to be created or declared by the parol agreement of the parties, but is an action for relief by a principal against his agent in respect of a fraud by the latter, committed in his fiduciary character of agent, in which case the Statute of Frauds does not apply; or, as has been Haid this Court " will not allow the Statute of Frauds to be made an instrument of fraud." Tho second ground on which I rely is that demurrer is not the proper way in which this question can be decided. As to first ground, I would refer the Court to the following authorities :—Taylor on Evidence, vol. 11., p.p. 884, 930 (which lays the foundation of all these cases); Lees r. Nuttall, Tamlin's Reports, p. 282; also in R. and M. Reports, vol. 1., p. 54. The defendant in this case is a solicitor. [Per Curiam : That does not appear.] Then I would ask to amend the declaration and make it so appear. [The Chief Justice : That can only be done on payment of all costs in this Court and the Court below.] Mr. Hesketh : I will consent to the amendment on those terms. Mr. Whitaker did not press tho application. Tho ca*e of Bartlett v. Pickersgill, relied on by my learned friend, would hardly be considered law at the present day. Although that case has not been distinctly overruled, still it has been very much doubted by the Judges of the present day. I would also direct the Court's attention to the case Bank of London v. Tyrrell, 27. Be van, p. 273 ; and Haig v. Kay, 7 L.R., Oh. Appeals, p. 469. The latter is a very much stronger case. Here there was an absolute-conveyance tii the defendant Kay, and it appasrs to me to be a case which falls exactly within the 7th

.■■fiction -<l the Statute of Frauds, because at ton time of. the convMvatii-e he iiuglit to hive require ? the decl uutiin or creation of a •rut or a confid-iicu in himse f for tho imriioja of showing h-,>w the defendant htdl -Ho property. The next cases to viiic'i T would direct the attention of the C >nrt are—Hobday v. Peters. 28 Revan, p. S4D ; Taylor v. Salmon, 4 \[. and C, |). 134: Ohil lers v. Chil lens, 1 D-s'iex and J, p. >B'2; Mno'ln v. Wrighr., 4 Defies and J. p. Iff ; Davies v. Otty, 35 B. p. 208 : T.loyd v. Kpiller, 2 A., p. 150 ; Wood v. Midgley, 5 DeGex and Mc N. and It., p. 45; Nicholson v. Mulligan, 3 Trinh Reports, eq:, p. 308 ; Heard v. Pilley, 4 L.R. Ch. Appeals, p. 548 ; Carter v. Palmer, 8 0. and F, p. 657; Baker v. Whiting and others (Amoricau case) ; Zinn's Leading 'Case* on Trust, p. 138; Blair v. Bromley, 5 H„ p. 542 ; Bree v. Holbeck, 2 D. p. 65.4 a ; Trevellyan v. Charter, 11 C. and F., p. 714. A large number of textbooks were quoted by my learned friend yesterday. I wish to m'ike a few extracts from two or three of them, which will throw quite a different light on the subject. The first to which T shall refer is Perry on Trust- 1 , section 206 ; Kerr on Frauds, pp. 123-24 ; Spence's Equity Jurisdiction, toI. 11., p. 203; Tasker v. Jarvis (Judge Richmond's decision at Nelson in banco) Cave v. McKenzie, L. J. 46, ch 564; and Henderson and another t. McKenzie, "N.Z. Jurist," N.s., vol. 1., p. 47. We contend that in this case the seventh section of the Statute of Frauds doe 3 not apply; there is no trustor confidence. [Johnston, J.: The nature of the fraud is this, that the plaintiff abstained from going to purchase the land, because he had an agent reidy to do it, aud the ageot found he could get a good bargain, and bought in his own name, and stuck to it.] Then, as to the second ground on which I nub alt the ap peal must be dismissed,—nam ly, that demurrer is not the proper way in which this question can be decided, —I contend that the proper course would have been for the defendint to have pleaded, aud if judgment was given in favor of the plaintiffs, it would have been open to him to move that judgment be set aside, because there was not sufficient evidence of fraud. The leading case on that point is Davies v. Octy, 33 8., p. 540, which is an authority on the point that the right way to raise the Statute of Frauds is not by demurrer. Youug v. Austen, 4 L.R., c.p ,p. 553 ; Wood v. Mingley, 5 Do Gex and Mc.V., p. 41. I submit that the proper way to determine this question is not by do'nurrer, aud that therefore upon that and the first ground to which I referred the appe:il must be lismissed.

Mr. Hesketh, in reply : Tho argument of my learned friend lias failed to ileal altogether with the prominent points and features of thi3 case. With regard to the' numerous cases quoted, I would submit that they are to be classified under three heads. First— Cases between principal and agent, under which I submit Taylor v. Salmon, Heard v. Pilloy, and Cave v, McKenzio come. In these ca.ses no question of trust whatever arises. The second class of cases are cases between solicitor and client, under which head falls the Bank of London and Tyrrell and Lees v. Nuttal. The third class of cases are cases between the grantor and the grantee direct, under which form Haig v. Kay, Booth v. Turle, Davies v. Ottey, and Lincoln v. Wright come. In none of those cases has the plaintiff to adduce evidence of such agency as the statute requires, to be in writing. This is a case where, if I may use the expression, statutory evidence, competent proof, is required. The proof of the relationship of principal and agent in a case of this kind is by statute required to be in writing. I don't mean by that that the relationship must he created by writing, but there must be a writing from which it can be shown, on the authority of all I stated yesterday. This is an action to have an express trust declared. The plaintiff is asking for an express trust to be declared and the Statute of Frauds says, " You are only entitled to it when you have a writing." The plaintiff cannot get this land unless the Court find that the defendant is a trustee. The other side say tint there i 3 a resulting trust; we say there is an express trust. The plaintiff cannot get what he is asking for without invoking his agreement with the defendant. He must call that agreement to his aid. No resulting trust can arise if the plaintiff must invoke the agreement with the defendant. The authorities lay down the principle that an agent canuot benefit himself at the expense of his clients. The case is essentially one of principal and agent, not of trust. There would be no question to discuss if the agent employed to buy in his principal's name had bought in the name of the principal : but it is wheu h" is employe 1 t-» buy in the name of his principal an t he buys in h's own, that the case can come into the books at all. The learned counsel then proceeded to comment at considerable length on the authorities cited by the respondent's counsel.

The Court reserved judgment, and adjourned until Tuesday next, at 11 a.m.