must be taken to amount to actual notice of that fact to the office.

Mr. Montagu, in reply, contended, as before, that express notice of the trust to the office was indispensible, and that no sufficient notice had been given.

Lord Commissioner SHADWELL.-We will take time to consider the case. The first question is one of very great importance.

1835.

Ex parte Burbridge and another.

Lord Commissioner SHADWELL now delivered the August 15. judgment of the Court as follows:

In this case it appears to us, that the judgment of the Court of Review is wrong; and that the two shares mentioned in the special case belong to the assignees, as having been in the order and disposition of John Kidder, and whereof he was the reputed owner at the time of his bankruptcy, by the consent and permission of the true owner, George Price Watkins. The special case shows, that, with the consent of Watkins, Kidder had in himself the full and absolute legal property in the shares. By the rules of the society, Watkins could not have had any legal title at all to the two shares; and not only had Kidder the evidence of title, which arose from his name alone appearing in the memorial inrolled under the act of parliament in the books of the society, and in the certificates,—but he also had the certificates themselves in his own possession, not occasionally, or for any temporary purpose, but at all times. He always received the dividends, was treated as owner by the Company, had notice of meetings served upon him, attended meetings of the shareholders, and voted as a shareholder. These things he might have done, without being allowed to hold the certificates in his possession.

1835,

Ex parte

and another.

Whether it was for the purpose of preventing any suspicion that Kidder was not the true owner, or from not BURBRIDGE thinking it necessary to take the precaution of keeping the certificates in his own hands, Watkins consented that Kidder should always have possession of the certificates. Consequently, he was enabled at all times, by the exhibition of the only portable indicia of property, to hold himself out to the public as the true owner of the shares, and to gain credit by the disposition of them. There was no open or "honest purpose," like the payment of debts, to be answered by this trusteeship, as in Copeman v. Gallant (a); nor was there any trust for the benefit of third persons, or created by third persons, as in Ex parte Martin (b), and Ex parte Horwood (c). But the trust was created by Watkins for his own sole benefit, and for no other purpose, than that of enabling him to hold more shares, than he was allowed by the regulations of the Company to hold in his own name. No convenience to society is promoted by such a trust, and great injury to the public may be occasioned by the delusive credit which it confers. It does not appear to us, that the private knowledge which Mr. Baugh Allen, one of the directors, and Mr. Naylor, the actuary, had of the transaction, could operate as notice of this secret trust to the company, who, in fact, treated Kidder as the owner. For any thing that For any thing that appears to the contrary, the dividends were received by Kidder, and the shares might have been sold by him, without the intervention of the directors, or the actuary. We are of opinion, that such a secret trust is not within the true intent and meaning of the 79th section of the Bankrupt Act, but is to be considered as a case of property left in the pos

(a) 1 P. Wms. 314.

(b) 2 Rose, 331; 19 Ves. 491. (c) 1 Mont. & M. 169.

session, order, and disposition of the bankrupt, with the consent of the true owner, thereby inducing a reputation of ownership, within the 72nd section of that act. The judgment of the Court below must therefore be reversed, but without costs.

1835.

Ex parte BURBRIDGE

and another.

Ex parte AUGUSTA KING, and three other Children of Frederick BenJAMIN KING, being Infants under the age of twenty-one years, by JOHN REMINGTON MILLS, their next friend. In the matter of BENJAMIN SEVERN, the said FREDERICK BENJAMIN KING, and Shadwell, and JOHN SEVERN.

THIS was a petition of appeal against two Orders the Vice-Chancellor, made respectively on the 16th cember 1830, and the 9th August 1831, under the lowing circumstances.

Coram Lords

Commissioners

Bosanquet.
July 29 and
Aug. 15, 1835.

of A testator, who
was possessed

De

of a large capi

tal in a house

fol

of trade, in

which he was a

partner, bequeathed the

residue of his

estate to trus

tees, of whom

Philip King, the grandfather of the petitioners, was at the time of his death a partner with the bankrupt, Benjamin Severn, in the business of a tea-dealer; and A. B. was one, by his will, dated the 28th July 1801, gave and be- permit A. B. to queathed the residue of his estate, subject to the charges

therein mentioned, to his executors therein named, upon

trust that they should permit and suffer his nephew, Frederick Benjamin King, the above-named bankrupt, and his assigns, to receive the dividends and annual produce thereof, during his life; and from and after his

upon trust to

receive the an

nual produce

for his life, and

after his death

to transfer the

principal to his children; di

recting, that if partner in the house of trade, the testator's whole capital

A. B. became a

should continue therein, A. B. and the other partners giving to his executors their joint bond for the amount, A. B. becomes a partner, the bond is given, and the firm become bankrupt; and the trustees proved the amount due against the joint estate: Held, that the dividends on the proof should be invested in stock, and that the interest should accumulate, until the loss occasioned by the bankruptcy was made good, and the whole of the principal sum then due was realized.

1835.

Ex parte KING and others.

decease, in trust to pay, assign, or transfer the principal monies, and the stocks, funds, or securities in or upon which the same should be invested, to the only child, if but one, or to all the children, if more than one, of the said Frederick Benjamin King, equally to be divided between them, if more than one, and to be paid to them when and as they should respectively attain the age of twenty-one years, and to be transmissible to the lawful issue of such children, if they should die before attaining such age as aforesaid; and the interest thereof, or so much and such part of the same as his said executors should think proper, to be applied in the meantime towards the maintenance and education of the children of the said Frederick Benjamin King. And the testator by his said will declared, that the capital, from whence certain annuities were directed by him to be paid, should remain in the trade in which he was concerned as a partner with the said Benjamin Severn, until the expiration or other sooner termination of such partnership; and then, if his nephew Frederick Benjamin King should become a partner in the house with the share which the testator then had therein, with the approbation of Edward Kemble, one of his executors thereinafter named, and his wife Elizabeth King, he directed that his whole capital in the partnership should continue therein, his nephew, and the partners who should continue the trade, giving to his executors their joint bond for the same; a power being reserved by the bond, or otherwise, for Edward Kemble to inspect the books of the house, after the partners should have taken their stock; and if Edward Kemble should think it not prudent to continue the capital

therein, then and in such case he thereby directed his executors to take the capital out of the partnership, and to purchase out of the same such quantity of stock as would be necessary to secure the payment of the several annuities given by his will. And the testator appointed his wife Elizabeth King, the said Edward Kemble and Frederick Benjamin King, and the Reverend William Booty, clerk, executrix and executors of his said will.

By a codicil to his will, bearing date the 10th January 1803, the testator appointed the said Benjamin Severn an additional executor of his will.

The testator died on the 1st March 1803, without altering or revoking his said will or codicil, which were duly proved by the executors.

Frederick Benjamin King was, between the date of the will and the death of the testator, admitted a partner in the business for a term of years, which expired on the 22d May 1816.

On the 16th January 1804 Benjamin Severn and Frederick Benjamin King executed a joint and several bond, in the penal sum of 74,9431. 17s. 2d., to Elizabeth King, Edward Kemble, and William Booty, three of the executors of the will, with a condition thereunder written; whereby, after reciting, amongst other things, that the said Elizabeth King, Edward Kemble, and William Booty, in order to put into effect the will of the said Philip King, and having reason to be satisfied with the security and eligibility of the said trade, had consented and agreed to permit and suffer the capital of and belonging to the said Philip King in the said trade to remain and continue therein, upon having the joint bond of the said Benjamin Severn and Frederick

- 1835.

Ex parte KING and others.