aforesaid, were to be paid out of the charity estates. To this part of the scheme the Dean and Canons excepted, on the ground that the duty of superintending the school should be left to them, so that the expenses incident thereto should not in any one year exceed 10. Sir Thomas Plomer allowed the exception, observing, "As to the visitation, I think all these provisions about it should be laid aside; the proper way is to leave it to the trustees, without directing any particular mode of visiting. They must generally superintend the school and perform the duty bonâ fide; they will then be at liberty, like any other trustees, to charge the expenses fairly incurred in the execution of their trusts. There is no occasion for any limitation as to the amount of expense to be charged, nor for the visitations to be annual, much less for them to be made whenever a boy is appointed. The appointment of the boys, and the visitation of the school, must be left to the Dean and Canons generally." In the Attorney-General v. Smythies, already mentioned, the Master of the Rolls made an order declaring, that according to the true construction of the charter, the master of the college or hospital of King James ought to reside in such college or hospital, for the purpose of discharging the several duties of his office. Upon appeal to the Chancellor, his lordship said, "The only doubt I have had upon the order at the Rolls, is with respect to the declaration which prefaces this inquiry. This college is a corporation, with a visitor appointed by the charter, who is to inspect and visit the college, and the master, and poor, and the state, order, and government of the college. To call the master into residence, if improperly absent, to hear and judge of the excuse he may make for his non-residence, are properly the duties of the visitor. It is true that the declaration of the Master of the Rolls is only introductory to the inquiries respecting the house for the master, but I think it assumes more of the character of a declaration of a duty than is necessary for that purpose."-2 Mylne and Craig, 142.

M. R. Aug. 7, 1838.

the Master,

notwithstanding

of a Report

against the title,

there must be an order discharging the

WILLIAMS v. WACE.

In sales before AN order had been made for the sale of real estates; and lot five having been sold to Mr. Bradbury by auction, but the confirmation upon reference, the Master having found against the title, and his report having been confirmed, an agreement was made with Mr. Jones that he should take the lot with its defective title at the same price. A petition was now prethe Court will sented for performing this agreement; but the Master of the Rolls thought it premature, inasmuch as it did not appear that an order had been obtained discharging Bradbury from his purchase.

purchaser before

give effect to a re-sale.

Mr. Cooper in support of the petition.

V. C. April 28, 1837. L. C. June 22, 1837.

Vendor not

entitled to have purchase-money brought into Court; the

agreement ad

mitted by the answer differing from that stated by the bill.

BENSON and SMITH V. The GLASTONBURY NAVI-
GATION and CANAL COMPANY.

THIS was a suit by the plaintiffs as devisees and executors
of Robert How, and it sought the specific performance of
an agreement entered into by the defendants, in October,
1830, to purchase of How a piece of land, alleged by the
bill to contain five acres, one rood, thirty-six perches, at
the price of 80l. an acre. The agreement was by parol,
but immediate possession had been given without any
understanding respecting the period when the purchase-
money should be paid, and the company had cut a canal
through the land. The defence was, that the land con-
tained only three acres, one rood, ten perches.

Motions were made both before the Vice-Chancellor and the Lord Chancellor, that the purchase-money, either for the five acres, one rood, thirty-six perches, or for the three acres, one rood, ten perches, might be brought into Court. Both motions were refused with costs, the bill not

even offering to perform the contract in the event of the smaller quantity only being embraced by it.

Compare Mortimer v. Orchard, 2 Vesey, jun. 243; and Lindsay v. Lynch, 2 Schoales & Lefroy, 1, 9.

For the motions, Mr. Cooper. Against them, Mr. Jacob and Mr. Stinton. (a)

MAYHEW v. BRETTINGHAM.

THE decree in this cause had directed an account of the

66

L. C. April 28, 29, 1837.

Course where

very numerous exceptions to

Master's Re

port, which, re

answer, affida

documents laid

before him, but distinguishing

without further

the same, charged and disallowed various sums of

personal estate, and the rents of the real estate, of one John Woodcock the younger, received by Richard Brettingham, deceased, who was the agent of John Wood- ferring to the cock the younger's executor. The Master made his Re- vits, accountport, finding that by the answer of the defendant Bret- books, and other tingham, who was Richard Brettingham's administrator, and by several affidavits and account-books, and other documents, which had been laid before him by or on the behalf of the plaintiff," Richard Brettingham had received 31,3887. 15s. 2d., and had paid 21,5817. 18s. 5d. money. To this Report 240 exceptions were taken, nearly the whole of which applied to the items allowed in the charge, or disallowed in the discharge. The Master, it was alleged, had principally proceeded upon a misunderstanding of some books and accounts in Richard Brettingham's handwriting, containing entries relative to John Woodcock the younger's estate; but the particular evidence and grounds of allowance or disallowance were in no way

tain acts of

(a) These motions also raised the question, whether the seller Doubtful consecan require the purchase-money to be paid into Court, on the quence of cerground that the buyer has exercised acts of ownership destruc- ownership. tive of the property, possession having been obviously given with knowledge that such acts were intended. Upon this question no opinion was expressed.

apparent, except by the above general reference to the answer, affidavits, account-books, and documents.

The exceptions were heard at the Rolls, on the 9th November, 1836, when it was declared, that the estate of Richard Brettingham was not to be charged with any sum, merely because they appeared to have been realized on account of the personal estate and effects, and of the rents and profits and produce of the real estate, of John Woodcock the younger; and that the estate of Richard Brettingham was not to be charged with any items merely because they were to be found entered in books or accounts in his handwriting, unless it appeared by such entries or otherwise that such monies were received by him or by his order, or for his use, and that he was not to be charged with sums paid into the Bank; and it was referred back to the Master to review his Report, having regard to the above declarations.

From this order there was an appeal to the Lord Chancellor, who reversed so much of it as made the aforesaid declarations, and referred it back to the Master "to state on what evidence and grounds he allows or disallows any of the charges and discharges complained of by the exceptions taken to his Report."

Mr. Barber, Mr. Wigram, Mr. Cooper, Mr. Koe, Mr. Turner, and Mr. Bacon, for the different parties.

V. C. May 7, 1838.

In the Matter of ALLSOP, an Infant.

The fortune of THE infant was eighteen months old, and by the death of

an infant being

1000/. only, order made upon affidavit, without reference, appointing the mother

guardian, and directing payment to her of

the interest of such sum for maintenance.

his father had, under the will of his great aunt, become entitled to a sum of 10007.

An order was made by the Vice-Chancellor upon a petition, verified by the affidavit of the mother, appointing her guardian to the infant, and authorising the executors (who were her near relations and supported the application)

to pay her the interest of such sum, 427. a-year, for his maintenance. (a)

Mr. Metcalfe for the petitioner. Mr. Cooper for the

executors.

MILLBANK V. STEVENS.

V. C. June 2,

1838.

stances, to

into expediency

future.

By an indenture of lease dated the 27th August, 1829, Reference, unmade between John Cliff, Esq. and Thomas Bennett der the circumSturgeon, a farm of 464 acres was demised to the latter Master, upon petition of teat a yearly rent of 13201. for a term of 21 years, and nant, to inquire Sturgeon alleged that he had taken the demised pre- of abatement of mises at the above rent, upon Mr. Cliff's own represen- rent, both for the past and tations of the value, but that soon after he entered into possession he discovered that those representations were incorrect, and expostulated with Cliff upon the subject, who, in consequence, suffered the rent to remain in arrear the sum of 1000l. or thereabouts; and it was in arrear to that amount in the month of December, 1833, when Cliff died. Cliff's will created trusts for persons, some of whom were married women and infants. The trustees under the will had hitherto forborn to call upon Sturgeon to pay the arrears due at Cliff's death, but he had been compelled to pay the whole rent accrued due since that time; and a suit having been recently instituted, to execute the trusts of Cliff's will, Sturgeon now presented a petition for a reduction of rent for the time. past, and for the future, which was supported by his own affidavit, stating the before-mentioned circumstances, and

(a) See Exparte Wheeler, 16 Vesey, 266; Exparte Green, 1 Jacob & Walker, 253; Exparte Janion, ibid. 395; Exparte Mince, M. R. May, 1821, where the infant's property amounted to 281. a-year, but an order without a reference was refused. Re Jones, 1 Russell, 478; Payne v. Lowe, 1 Russell & Mylne, 223; and Exparte Jackson, 6 Simons, 212.