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A HARD CASE. --

ELECTION EXPENSES. ---_-

A KNOTTY POINT:!

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A KNOTTY POINT:! In the Equity Court in London, last week, a curious point of law was raised in the suit of Charlton v. the Earl of Durham," which disclosed some remarkable circumstances, showing the responsibility and power of executors. Under the will of a testator, Thomas Glaholm, who died in January, 1849, his five children became entitled to his residuary estate in equal shares. By this will two executors were appointed, named Charlton and Wilson, and the will gave permission to the executors to continue any portion of the residuary estate on the then existing securities. Part of the estate consisted of a debt for £5.000 at 4 per cent. interest, secured by the bond of certain persons who were trustees for the Earl of Durham. On the 5th of September, 1849, Lord Durham attained twenty-one, and being desirous of relieving his trustees of their responsibility, he offered, in the course of the Rame year, to exchange for the existing bond a new bond, in which he himself would become bound to Charlton and Wilson. This offer was accepted and a new bond for £.),000 was executed by Lord Durham in exchange for the old. In this instrument (which was deposited at a bank of which Wilson was the cashier) Charlton and Wilson, the obligees, were described as executors of Glaholm. Interest was regularly paid to Wilson, who gave receipts for himself and his co-executor; and on the 26th of February, 1859, one moiety of the £5,000 was paid off. In 1862, Lord Durham, through his agent Morton, was induced to pay off the remain- ing £2,500 of the debt, on a receipt purporting to be the receipt of Charlton and W ilson both, but which, in fact, was a forgery by Wilson, so far as Charlton's name was concerned. Wilson had appropriated the money and is now undergoing penal servitude for the crime. Upon the occasion of this payment, the bond was cancelled. This bill was filed by Charlton and the beneficiaries under the will, to obtain payment of the £2,500 over again from Lord Durham. The plaintiffs' contention was that they were not to suffer through the fraud which, through negligence had been practised upon Lord Durham's :14ent; and, moreover, that Lord Durham, through his agent, was fixed with notice of the trusts of the monej inasmuch as the solicitor employed to draw up the new bond was the solicitor of the executors under the wilL They argued also that a receipt by one of two trustees, though a good discharj, i law, would not in equity release the party paying for a claim by the other trustee, he not having authorised the pavment The aefence was that these persons were not trustees, but executors, and that the receipt by one was sufficient to bind both; alA,) that, it being un,1jsputed that the bond was discharged at law, there was no circum- stance in the case upon which to fatmd an application for the interference of the Court of Chancery. The case had been argued three successive days, < and, in giving judgment, I The Vice-Chancellor observed that he scarcely knew J what to say to the argument that the Earl of Durham had not been discharged by this payment. The money had reached the hand of the party entitled to receive it, and legal discharge had been given, and the bond had been cancelled. But it was said that Lord Dur- ham was fixed with notice of the trusts of the will. His Honour was not disposed to hold for the first time that the obligor of a money bond, who goes to the solicitor of the obligees and pays that solicitor his charges for filling up the bond, was fixed with notice of the trusts of the mcney. But here it so hap- pened that the bond had been given before the will was proved and the money was not resid- uary estate at that time. Then it was further said that the substitution by the executors of this for the original bond was not a proper investment of the testator's estate, and was a breach of trust. It was certainly possible that if an executor took the bond of one in substitution for the bond of two, and a loss ensued, he might be liable for a devastavit, but it could scarcely be a breach of trust. This court had in many instances gone to the verge of justice, and the verge of its jurisdiction, in helping cestuis que trust against trustees who had honestly dealt with the trust funds, and his Honour certainly was not disposed to extend this doctrine one atom beyond what the Court of Appeal rendered binding and incumbent on him. His Honour thought that the earl had been fully dis- charged both in a court of law and in this court; and the bill must be dismissed and with costs; as no ground could be discovered for departing from the general rule.

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