he might have neglected or refused to get in and realise, and which were consequently lost or irrecoverable, on the footing of wilful default. By his statement of defence the defendant denied that the plaintiffs had repeatedly or ever, prior to the issue of the writ in this action, urged him to obtain the costs aforesaid from Edward St. John or his estate, or that the defendant had declined so to do. The defendant alleged that Philip Roberts (as the plaintiffs were aware) accepted the retainer in the action of Re Napper on the terms that Edward St. John and his deceased brother should not be personally liable to him for the costs, except in the event of his being unable to recover the same in the administration. The defendant denied that the Napper estates were insufficient to pay such costs, but alleged that although an order for the sale thereof had long since been made and an auction held, it had been found impossible to sell the bulk of such estates, and in the meantime there had been no funds in the administration for the payment of such costs, and that he had accordingly made no application for the taxation or payment thereof. The defendant stated that under the circumstances he had not at present taken any steps to recover the costs from the estate of Edward St. John, but that such estate was amply sufficient for the payment thereof in the event of the funds in the action of Re Napper proving insufficient. The defendant therefore submitted that no case was shown for the administration of the estate of Philip Roberts, either on the footing of wilful default or otherwise; and that this action was unnecessary and vexatious, and ought to be dismissed with costs. On the 19th Jan. 1897 the action came on for trial before Byrne, J., when the following judg ment was delivered: BYRNE, J.-In this case an action has been brought for the administration of the real and personal estate of one Philip Roberts, asking that, on taking the account, the defendant may be charged with all moneys he may have neglected or refused to get in and realise, and which are consequently lost or irrecoverable, on the footing of wilful default. Philip Roberts formerly carried on business as a solicitor, and at the time of his death he had been retained as solicitor in a certain administration action entitled Re Napper, deceased, for the Rev. Edward St. John. That was an action to administer the estate of John Napper. Philip Roberts had due to him as solicitor, in respect of work done, and for money paid by him, sums amounting to about 3000l. The amount has not yet been actually ascertained. Then, after the death of Philip Roberts, Edward Philip Roberts was retained by the Rev. Edward St. John as his solicitor, and he continued so to act until he died on the 20th Jan. 1890. After that the Rev. Edward St. John died. The defendant, who was the person who ought to have obtained payment of the costs due from the Rev. Edward St. John to the estate of Philip Roberts, did not do so. Now, the substantial defences to the case are two: First of all, it is said that there was a special retainer upon the footing that Philip Roberts was not to be paid personally by the Rev. Edward St. John, his client, except in the event of being unable to recover that sum in [CT. OF APP. the administration of Napper's estate. Now, it is familiar to all of us that solicitors are content to allow their bills to remain for a long time unpaid with the view and with the intention that the costs will come out of the estate in the ordinary course when taxation is directed. But I have heard the evidence in this case, and I come to the conclusion that there is no evidence of any such agreement as that which is pleaded. Therefore I must treat the retainer as having been an ordinary retainer. Then it has been suggested that there has been such acquiescence on the part of the plaintiffs in what has been done that they are not entitled to ask for relief. As a matter of fact, acquiescence does not seem to be pleaded; and, again, without going through the evidence in detail, which I think is unnecessary on this point, I come to the conclusion that the evidence is insufficient to establish acquiescence. That disposes of the two main points in the case. Those being out of the way, it appears to me that it cannot be said that there was not undue delay in getting in the money so due. The period which has elapsed is one which would enable the representatives of the Rev. Edward St. John, if now sued, to plead the Statute of Limitations. As a matter of fact, a lapse of about eight or nine years has taken place since the original death, and one at once sees that was not a reasonable time. I entirely agree that a reasonable time should be allowed, particularly having regard to the fact that there was an estate being administered, and that there might be a sale, and that it might not be necessary to seek to be paid direct by the client. I think that all these things are circumstances to be taken into consideration, and that a reasonable time ought to be allowed within which the Rev. Edward St. John should have been sued. Now, I think it is not an unreasonable course to take it as from the 20th Jan. 1890. That was the date of the death of Edward Philip Roberts. What has taken place in fact does amount to wilful default, but I am reluctant to direct an account on the footing of wilful default when it is a mere question of a breach of trust on one particular point; and Mr. Astbury, I understand, appearing for the plaintiffs, is content to take a judgment somewhat in the form which I have suggested in the course of the argument. Subject to the terms of it being agreed upon, my view is that the defendant is liable to make good the loss which has occurred by reason of the loss of interest as from the 20th Jan. 1890, and that he is further liable to make good any loss which may accrue to the estate by reason of the action not having previously been brought. Now, at the present time it is quite impossible to ascertain what that is, seeing that I cannot, as suggested, put in a particular sum. Nor would it be reasonable to ask that the case should stand over until after the taxation of the costs, in order that a sum might be so ascertained. Therefore, I can only direct a proper account or an inquiry to bring out the amount of the loss so sustained. Of course, it will be quite open to the parties at any time by agreement between themand I consider that it is one of those cases in which I should be glad to think that an agreement would be come to-to stay further proceedings on payment of a particular amount. If counsel will now put those declarations into the ordinary form, then I can direct administration as asked, but stay all proceedings under the administration except the particular inquiries that I have mentioned. Then the parties can take liberty to apply in chambers. The defendant must pay the costs of the action up to and including this judgment. From that decision the defendant now appealed. Eve, Q.C. and George Lawrence for the appellant.-Byrne, J. has made the defendant liable to make good the loss which occurred by reason of the loss of interest as from the 20th Jan. 1890, the date of the death of Edward Philip Roberts; and, further, any loss which may accrue to the testator's estate by reason of the action not having been brought to recover the costs. But the defendant ought not to have been made chargeable with interest, for the debt was not an interest-bearing debt: General Order VII. under the Solicitors' Remuneration Act 1881; Blair v. Cordner, 19 Q. B. Div. 516; Re Marsden's Estate; Willington v. Neumann, 60 Parker v. Blenkhorn, 59 L. T. Rep. 906; 14 App. Cordery on Solicitors, 2nd edit., p. 273; 23 & 24 Vict. c. 127, s. 27. Executors and trustees have power to accept a composition for any debt, or to compromise, abandon, or otherwise settle any debt: (Trustee Act 1893, s. 21). That statute re-enacted sect. 37 of the Conveyancing Act 1881. Even before the passing of the Act of 1881 executors had a fair discretion whether they would or would not immediately sue a debtor of the testator for the amount due to the estate, and their not doing so, although loss occurred by the delay, was not necessarily wilful neglect or default for which they were liable. But, according to the view taken by Sir George Jessel, M.R., the effect of sect. 37 of the Act of 1881 was that an executor was only liable for delay in suing for his testator's debt when he had not acted bona fide : Re Owens; Jones v. Owens, 47 L. T. Rep. 61. Order VII. of the General Order under the Solicitors' Remuneration Act 1881 does not apply to contentious business. An executor is not chargeable with interest except when he gets the money into his own hands, and when the debt itself bears interest: Lowson v. Copeland, 2 Bro. C. C. 156; Styles v. Guy, 16 Sim. 230; 1 M. & G. 423. At any rate we say that the defendant is not liable, having regard to the protection afforded by sect. 3 of the Judicial Trustees Act 1896. Astbury, Q.C. and Kenyon Parker for the respondents. When a solicitor dies it is the duty of his executors to get in any costs owing to him. In the case of Re Hall and Barker (9 Ch. Div. 538, at pp. 543, 544), Sir George Jessel, M.R. said that the rule as to complete retainer only existed on the common law side, and that there was no reason for assuming that a solicitor undertaking a business such as the administration of an estate should be held to do a single and entire thing, and not be entitled to be paid any remuneration until that single and entire thing was done. It is true that it has been held that a solicitor retained in an ordinary common law action cannot without good cause give his client notice deter [CT. OF APP. mining his retainer before the action is finished, and sue for his charges up to such notice of determination : Underwood v. Lewis, 70 L. T. Rep. 883; (1894) 2 Q. B. 306. But that authority would not apply to the present case, as the action of Re Napper was an administration action. It is the duty of trustees to press for the payment to them of the trust funds : Billing v. Brogden, 59 L. T. Rep. 650; 38 Ch. Div. 546. [LOPES, L.J. referred to Lewin on Trusts, 9th edit., p. 344, citing Tebbs v. Carpenter (ubi sup.) and Lowson v. Copeland (ubi sup.).] In Billing v. Brogden (ubi sup.) the court declared the trustees to be jointly and severally liable to make good the sums lost to the trust estate with interest. The question arising on Order VII. of the General Orders made in pursuance of the Solicitors' Remuneration Act 1881 was not dealt with in the court below. Indeed, it was not raised, for the plaintiffs relied on the point of wilful default. [LINDLEY, L.J.-The question of wilful default was argued very strenuously in Re Chapman ; Cocks v. Chapman (75 L. T. Rep. 196; (1896) 1 Ch. 323).] See the observations of Lord Hatherley in Sleight v. Lawson, 3 K. & J. 292, at p. 298. The cases of Lowson v. Copeland (ubi sup.) and Tebbs v. Carpenter (ubi sup.) are distinguishable from the present case. They were decided before the time when judgment debts carried interest by law. As to Styles v. Guy (ubi sup.) and Billing v. Brogden (ubi sup.), though interest was charged it was not on the ground that the debts were interestbearing debts. The question to be determined is always whether there was acquiescence in what the executors and trustees have done. If not, nothing short of the Statute of Limitations will relieve them from their liability. [LINDLEY, L.J. -What do you say about sect. 3 of the Judicial Trustees Act 1896? It struck me as rather important.] There has been a decision on that section: Re Turner; Barker v. Ivimey, 76 L. T. Rep. 116; (1897) 1 Ch. 536. [LINDLEY, L.J.-If the Act of 1896 is applicable I cannot see why we should not give the defendant the benefit of the provision in sect. 3. The observations in the judgment of Lord Romilly, M.R. in the case of Clack v. Holland (19 Beav. 262) may afford a considerable guide to the Act of 1896.] We submit that it is enough to say that there was a breach of trust, and that the defendant is not assisted by the Act of 1896, for he failed to do what he was expressly asked to do. [LINDLEY, L.J.-The question is whether he can be said to have been guilty of a breach of trust in not bringing an action against the estate of Edward St. John.] Eve, Q.C. in reply.-An agreement as to costs under 33 & 34 Vict. c. 28, s. 4, need not be in writing: Jennings v. Johnson, L. Rep. 8 C. P. 425, 429. As to wilful default, see Re Stevens; Cooke v. Stevens, 76 L. T. Rep. 18; (1897) 1 Ch. 422, at pp. 432, 433. LINDLEY, L.J.-This is an action against an executor and trustee to make him liable on the ground that he has been guilty of a breach of trust, and of wilful default in not getting in the assets of his testator. The case is a very peculiar one. The testator was a gentleman named Philip Roberts, who died some time ago, i.e., in 1887. He was a solicitor, and he had acted for the plaintiff, who was a relative, in the administration of an estate which is called Napper's estate. The assets in respect of which the defendant is said to have been guilty of a breach of trust are the costs due to the testator Philip Roberts in respect of that matter. The testator had two sons, and the defendant is one of them. The other son, Edward, is now dead; and the plaintiffs are Edward's legal personal representatives. The testator appointed his two sons residuary legatees. Each, therefore, was entitled to one half of the testator's residuary estate, and each was entitled to one half of whatever the testator could get in respect of the costs which are in question. One of his sons (Edward) was a solicitor. The other son (the defendant) is an estate agent and surveyor. When the testator died, his son Edward was retained as his successor to conduct the proceedings in the Napper administration action, and the defendant appears to have been appointed receiver of Napper's estate. The two brothers, while Edward was alive, naturally forbore to sue Edward St. John (the plaintiff in the Napper administration action) for recovery of any costs. It would have been a very useless thing to do, and they never thought of doing it. Why, is a matter I will refer to presently. Until 1890, when Edward died, nobody ever thought of suing the plaintiff in that Napper administration for the amount due to the testator's estate for the costs up to his death. When Edward died, some costs were due to his estate in respect of his services between 1887 and 1890. He, as I have just said, died in 1890, and the plaintiffs never attempted to get any costs due in that Napper administration out of the client, Edward St. John, personally. It is said that the costs were small, and that it was not worth while. I have not been informed what the amount was, but it is a fact and there can be no question-that the two brothers never thought of suing their father's client personally for the costs. Now, when Edward Roberts died, his professional business of a solicitor was transferred to another firm of solicitors, and, under Edward's will, we are told that the plaintiff, Mrs. Knight, is entitled for life to his estate, which includes one half of his father's residuary estate. Since that time, there has been been no doubt a desire on the part of Mrs. Knight to get in Philip Roberts' estate, and get it invested so that she might have the interest. The writ in the present action was issued in Jan. 1896, and the object of this action is to make the defendant liable for not having got in these costs to which I have referred. The matter stands in this way: Down to 1890, the death of Edward Roberts, the son, no complaint could possibly be made by Edward Roberts, or by anybody claiming under him, of any omission on the part of the defendant in not getting in these costs. That is too obvious to require comment, because Edward Roberts acquiesced in it, and it was to his interest, of course, that his client should not be personally sued. In 1890 his death naturally changed the aspect of affairs. What does the defendant say? Why did he not an [CT. OF APP. get in his father's costs from Edward St. John or his estate, St. John himself having died? The Napper estate is unsold. In the ordinary course of business, apart from anything like a special bargain, the solicitor in an administration action never thinks of having recourse to his client personally for payment of costs. The ordinary course of business is for the solicitor to get his costs out of the estate, and, only in the event of there being a difficulty about that, does he ever think of having recourse to his client personally. The reason why the defendant never thought of suing Edward St. John for costs or of sending in a bill to charge him personally was this, that the defendant says that he believed, and on grounds that justified that belief, that he had no right to bring any such action-he believed that there was arrangement between his father, Philip Roberts, and Edward St. John to the effect that Philip Roberts should look to the estate for his costs. The learned judge in the court below has found as a fact that there was no such arrangement. Let us look, however, to see how the evidence stands about that, because, to my mind. when we are considering the reason given by the defendant for not suing Edward St. John, it is all important to observe, not only what he says was the reason, but the reasonableness of what he says was the reason. [His Lordship reviewed the evidence and continued:] Now we have to consider what that evidence amounts to. It certainly does justify us in coming to the conclusion, and I do not hesitate to say that I do come to the conclusion, that the defendant Charles Roberts was bona fide and on reasonable grounds satisfied that he could not maintain an action against Edward St. John personally for these costs; and I think Mr. Eve is justified in asking us to consider what would have become of such an action if it had been brought. Charles Roberts must have been a witness called in the ordinary course of the proceedings, and if he had gone into the box and told the judge or jury what he tells us to-day, he would have had to say, "I brought this action as executor because it was my duty to do so; but I am bound to say that I believe that there was an arrangement to the effect that Edward St. John should not be called on personally to pay costs." If he had done that, how could such an action have been successful? I doubt very much whether the learned judge in the court below gave sufficient weight to this evidence; in other words, I doubt whether the action could have been maintained. But supposing it could, is it a case for holding the defendant liable for wilful default because, having that conviction honestly in his mind, and reasonably in his mind, he declined to sue Edward St. John for these costs? That is going a very long way. With reference to that, quite apart from the consideration of sect. 3 of the Judicial Trustees Act 1896, about which I will say something presently, I would refer to what Lord Romilly, M.R. said on this point in Clack v. Holland (19 Beav. 262). He is referring there to breach of trust and wilful default on the part of executors and trustees who do not take proceedings to get in money which they prima facie ought to get in. He says: "Where it is the duty of a trustee or executor to obtain payment of a sum of money, the trustee or executor is exonerated, and never required to make good the loss if he has done all he can to obtain payment, but his efforts have not proved successful." That, of course, is obvious enough. Then he goes on to say this: "Nay, more, if he has taken no steps at all to obtain payment, but it appears that if he had done so they would have been, or there is a reasonable ground for believing that they would have been, ineffectual, then he is exonerated from all liability." If that is right-and I am far from saying it is not-this defendant is not guilty of any wilful default, he would not be liable for wilful default, and does not require the protection of the Act of 1896. Of course it is not for a trustee to say "I believed so and so, and I honestly believed so and so, and I believed I could not succeed, and I honestly believed I could not succeed." The court must go further than that and consider whether that honest belief is a reasonable belief. It would not do, as I have already said in the course of the argument, for the trustee to say, "I thought it and honestly believed it." But when the reasons are reasonable and satisfactory for his belief and he honestly entertains that belief, then, if Lord Romilly is right, even apart from the Act, he is not liable for wilful default. I expect Lord Romilly was right on the point. If there was a reasonable belief the only shadow of doubt I have is whether that would be an answer to a common law action for devastavit. But I need not enter into that, because, supposing Lord Romilly did go a little too far in applying the equitable rule and forgot for a moment the legal liability in actions for devastavit at common law, certainly the passage I have just read ought to be a guide to any court which has to consider what ought to be done under the Act of 1896. The Act of 1896 comes in in a case like this, and ought to be applied to a case like this, where, even if there is, no doubt, on the evidence, a technical liability for a breach of trust, the court is dealing with a thoroughly honest trustee who has acted reasonably and honestly and to the best of his ability, and who has committed no breach of trust, unless it is a very technical breach of trust. The 3rd section of this Act is important because it is retrospective, and has come into operation_already, although the other sections have not. The 3rd section is this: "If it appears to the court that a trustee, whether appointed under this Act or not, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the passing of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust, and from omitting to obtain the directions of the court in the matter in which he committed such breach, then the court may relieve the trustee either wholly or partly from personal liability for the same. Even if Lord Romilly's judgment goes a little too far-although, as I say, I am not prepared to hold that it does-if ever there was a case for exonerating a trustee or executor from the consequence of not having got in an estate, this appears to me to be that case. Here was a man who was the executor of his father, honestly believed from what his father told who وو and from what his brother, who was interested in half the residue, told him, that he could not compel Edward St. John to pay these costs personally. He acted honestly in that belief, looking to the estate to which his father of course looked, bargain or no bargain, and to which the brother [CT. OF APP. obviously looked, bargain or no bargain. And yet it is said that he has overstepped his duty, and not been vigilant enough since 1891 to sue his father's former client, Edward St. John. This does appear to me to be a harsh and oppressive attempt to make an honest man liable for a loss for which he ought not to be held liable unless the law compels us to do so. The Act of 1896 removes any conceivable difficulty which there may be in the way of this case. I think that the attention of the learned judge in the court below was not drawn to it, and he was not asked to exercise the jurisdiction contained in it. But it appears to me that we ought to do so, although I am disposed to go further and say that there is no wilful default made out at all. But, even if I am wrong as to that, the Judicial Trustees Act supplies any possible defect; and, so far as this action is founded on wilful default, I am of opinion that it ought to be dismissed, and with costs. The rest of the action does not appear to be wanted, and if that is so the whole action ought to be dismissed. There will be an order that the respondents do pay the costs of the action and of the appeal, and the order in the court below will be varied by striking out the declaration that the appellant is liable for wilful default. LOPES, L.J.-I am of the same opinion. Edward Roberts died in 1890. It is clear that up to that time no complaint was made, nor in point of fact could have been made, against the defendant. But what is complained of is the conduct of the defendant since that time. It is said that he has been guilty of wilful default in not getting in certain costs that were due to his father's estate. What is his answer to that? His answer shortly put is this: "I honestly and reasonably believed that I had no right to sue Edward St. John personally; that the understanding that had been arrived at was that he was not to be made liable personally; but that the Napper estate was to be looked to." That is the answer that the defendant makes to this charge of wilful default. Is there evidence to support that answer of his? In my opinion there is. That evidence has been stated by Lindley, L.J., and I do not propose to refer to it again. If that is so, I fail to see how there can be any wilful default. It is said that the defendant ought to have delivered his bill, and subsequently, if he had, he might have brought his action. But, how does that really stand? Suppose he had delivered his bill, and suppose he had brought his action, I take it that he, the defendant, would have been the principal witness; and if he had gone into the box I presume his statement would have been much the same as that which he now makes-in other words, he would have rested his case upon his honest and reasonable belief. Whether that case was tried by a judge, or by a judge and jury, it is impossible to imagine that, if his statement was believed, any judge or jury would have found a verdict for him against Edward St. John. I think, therefore. without the assistance afforded by the Judicial Trustees Act 1896, that the defendant cannot be held liable for wilful default in this case. The 3rd section of the Act of 1896 is also relied on, although I believe that that was not brought to the attention of the learned judge in the court below. An interpretation has been put on that section very recently in the case of Re Turner ; Barker v. Ivimey (76 L. T. Rep. 116; (1897) 1 Ch. 536, at p. 542), where Byrne, J. says: "I think that the section relied on is meant to be acted upon freely and fairly in the exercise of judicial discretion, but I think that the court ought to be satisfied, before exercising the very large powers conferred upon it, by sufficient evidence, that the trustee acted reasonably." I entirely agree with that view of the learned judge, and I have come to the conclusion here that there is sufficient evidence to justify us in saying that the defendant, the trustee and executor here, did act reasonably. On these grounds I think that the action ought to be dismissed, and the appeal allowed. RIGBY, L.J.-I am of the same opinion, and, agreeing entirely with what has been said already, I will confine my judgment to a very few remarks. This action is brought by Mr. and Mrs. Knight, who are the legal personal representatives of a solicitor named Edward Roberts. Mrs. Knight was the widow of that Edward Roberts. She has since married, but that is immaterial. The fact remains that the original testator, Philip Roberts, was a solicitor. His son, who was residuary legatee along with his brother, the defendant, Charles Roberts, was a solicitor. Knight, who is one of the personal representatives, and one of the plaintiffs, is a solicitor also. Therefore, of the four parties concerned, the only layman was the defendant Charles Roberts. As to the wilful default charge, if no action could be brought against the Rev. Edward St. John, who was the client in the suit of Re Napper, of course there was no wilful default at all. Further than that if, on the knowledge which the defendant had, the reasonable conclusion to be drawn by him was that no action would lie, that any action if brought would be sure to fail, equally he is free from the charge of wilful default. It cannot be right to say that a man who, on information, which is all the information that can be acquired in the matter, has reasonable grounds for believing that no action lies, nevertheless is guilty of wilful default for not bringing the action. I say nothing more about what the other witnesses spoke to, but I will refer to what was done by Edward Roberts, and what was said by him in explanation of his conduct to his brother Charles. This was after the death of the father, apparently when the accounts were being made out for the probate of the will. The defendant, Charles Roberts, retained his brother Edward to act as his solicitor in making out those accounts. Edward was also retained by the Rev. Edward St. John to go on with the action of Re Napper. But what I am relying on now is that Edward was a solicitor acting in the interests of his client and responsible for what he told his client. What did he tell his client, and what did he do? He actually left out all mention of these costs in the account showing the assets of the testator. Whether that was strictly correct or not, the only reasonable ground for his omitting any mention of the costs was this, which apparently he explained to his brother, that he was not sure whether the costs would be paid or not, that he was not sure that there was any actual claim which could be maintained in respect of these costs. What he actually said in answer to his brother's question, "How about the costs in that action, they will come to 20001. or 30001., and it is an important matter"? was this: Those costs cannot be paid until the estates are sold, and your proper course is to wait until that [CT. OF APP. event takes place, and then to make a supplemental affidavit when the costs are paid and make it right in that manner." I do not care whether, in saying that, he was right or wrong. He owed a duty to his brother to advise him as to the correct course to be taken. In the face of that evidence, which is in no way discredited, and which in itself is almost proved by what was done-not merely by what was said, but by the omission of the important item of costs from the probate account-it is impossible for him, or any person claiming through him, to charge the brother with breach of trust and wilful default because he did exactly what his solicitor, the person whose representatives are now claiming, advised him to do. I do not mean to say that if there had been afterwards a re-investigation of the matter, and if it had turned out that Edward was wrong, the representatives of Edward might not have taken a new departure as was argued on the other side, and said, "Never mind what Edward told you, he was mistaken; you have a right of action against St. John." Čertainly they might have taken proceedings on that. But no such suggestion was made until six years after the right of action for these costs which accrued had gone by, and I see no reason to doubt that the Statute of Limitations applied, and that that suggestion, when it was made, even if you put out of view what Edward said, came altogether too late. I do not mean to go into the other circumstances of the case. It appears to me that on the evidence, which I entirely rely on, of the defendant, corroborated by what Edward, the solicitor, did, he was perfectly justified in not bringing an action against the Rev. Edward St. John; and that is the only ground of wilful default which I can see in the case. mention that the honesty of the defendant in the matter is obvious. Clearly it was to his interest, if he could have got this money, to get it. But I am perfectly certain that until the death of Edward any attempt by him to get the money would have been altogether repudiated by Edward, and I am inclined to think that during the life of the Rev. Edward St. John it would have been repudiated, and even vigorously, by the present plaintiffs. However, that is not the point on which I go. As regards the charge of wilful default, I think it is impossible to make it out, in the face of what was done and said by Edward, through whom the plaintiffs claim. I also entirely concur in what has been said, that if there was technically and strictly a case of wilful default here, which, in my judgment there is not, the case is one in which we ought to put in force the very salutary powers that are given by sect. 3 of the Judicial Trustees Act 1896 relied on by Mr. Eve. In the old days, when a trustee could get rid of his trust entirely by throwing the whole of the obligation on the Court of Chancery, it might have been reasonable to hold a trustee to the very strict performance of his trust which we know was in those days enforced. But now, when that cannot be done, and there is no longer the power of getting rid of the trust by throwing it on the Chancery Division, as we used to do on the old Chancery Court, I do not think that the law would be tolerated (I do not think it was tolerated before the passing of this Act) which would make it reasonable that trustees should be held to the strict liability to which they were held in former Ι I may |