to direct them to account for what they have received, or might have if it had not been for their own default. And see Anon. 2 Mad. Chan. 457. note. And what is said in Palmer v. Jones, 1 Vern. 144. But this is not the practice, unless upon a special case made for that purpose. See Shepherd v. Towgood, Turn. 388. Pybus v. Smith, 1 Ves. jun. 193.

For further as to wilful default. See Decrees for Account, No. I. note (6), ante. Decrees respecting Partners, No. I. note (1), ante. Decrees respecting Mortgages, No. IV. note (1), ante. Decrees for Specific Performance, No. II. note (3), ante.

(2) Rests.

In Tebbs v. Carpenter, 1 Mad. 301. 303. it seems to have been thought that Raphael v. Boehm, 11 Ves. 92. was the first case in which compound interest was given. But see Smith v. Wilkinson, supra. The decree in Raphael v. Boehm was on the 26th of July following. See 11 Ves. 94.

For further as to rests. See Decrees for Account, No. I. note (6), ante. Decrees respecting Mortgages, No. IV. note (4), ante. Decrees for Specific Performance, No. II. note (3), ante. And see Decrees

for setting aside Deeds, No. I. note (3), ante.

Further Directions.

Inquiries with a view to charge executors with interest are usually granted on further directions only. See Law v. Hunter, 1 Russ. 105. But they may be obtained at the original hearing upon a special case. Ibid. And see Hockley v. Bantock, 1 Russ. 142. Smith v. Wilkinson, supra.

They will not be granted upon petition, though brought on with the cause for further directions. Parnell v. Price, 14 Ves. 502. And see Bruere v. Pemberton, 12 Ves. 386. and Reservation of Interest, Usual Directions, No. XVI. ante.

That the payment of interest on balances retained by an executor will be enforced against his assets. See Tebbs v. Carpenter, 1 Mad. 290. Rocke v. Hart, 11 Ves. 58. Young v. Coombe, 4 Ves. 101. Foster v. Foster, 2 Bro. 616. Barwell v. Parker, 2 Ves. 365.

So against a bankrupt or insolvent estate. See Dornford v. Dornford, 12 Ves. 127. Pearse v. Green, 1 J. & W. 135. Moons v. De Bernales, 1 Russ. 301.

Costs.

For the cases in which executors or trustees are allowed costs. See Beames on

Costs, 88. 146.

For cases in which they are not. See Ib. 90. 149.

For cases in which they have been made to pay costs. See Ib. 91. 150.

That where trustees are allowed costs, it is usually as between solicitor and client. See Ib. 157.216.

That where a bill is dismissed against a trustee, it is with costs as between party and party. See Ib. 158. Edenborough v. Archbishop of Canterbury, 2 Russ. 112.

It seems that executors are not entitled to their charges and expenses without an express direction, as they are presumed to retain them. See Humphrys v. Moore, 2 Atk. 108.

But it seems that trustees are entitled to their charges and expenses without an express direction, under the head of suit allowances. See Fearns v. Young, 10 Ves. 184.

It is, however, usual to give express directions for allowing them.

No. IV.

DECREE FOR APPOINTMENT OF NEW TRUSTEES.

His Honour doth think fit and so order and decree that it be referred (1) to Mr. S. one &c. to approve (2) of two new trustees in the room of the said defendant. And it is ordered and decreed, that the said defendant do assign and transfer the trust estate vested in her by the said indentures, and also the South Sea annuities mentioned in her answer, to such new trustees to be approved of by the said Master, upon the same trusts, and subject to the trusts mentioned in the said indenture of release, dated the 9th of January, 1728; and such assignment is to be settled by the said Master, in case the parties differ about the same. And it is ordered and decreed, that the said defendant do deliver over to such new trustees all deeds and writings in her custody or power relating to the said trust estate. And it is ordered that the plaintiffs do pay unto the defendant her costs of this suit, to be taxed by the said Master. And any of the parties are to be at liberty to apply &c. [See Usual Directions, No. XIX. ante.] Luther v. Chamberlen, M. R. 1st July, 1748. Reg. Lib. B. 1747. fol. 356.

For orders for appointment of new trustees in charity cases. See Equity Draftsman, 661.

NOTES.

(1) Reference.

It seems that ordinarily the Court will not appoint a trustee without a reference to the Master whether the person proposed is a proper person. See O'Keefe v. Calthorpe, 1 Atk. 18.

In the case of a charity, a reference will not be dispensed with. Attorney General v. Earl of Arran, 1 J. & W. 229.

Where the surviving or continuing trustees have the power to appoint, if they will not exercise it without coming to the Court, there must be a reference. v. Roberts, 1 J. & W. 251. That the Court will control a trustee in the exercise of the power of appointing a new trustee, though given in large terms. v. Earl of Shaftesbury, 7 Ves. 480.

See Webb

On the appointment of new trustees, the Court refused to insert in the deed a provision for the appointment of future trustees, there being no such provision in the trust deed. Bayley v. Mansell, 4 Mad. 226.

But it seems that in a charity case such a provision will be permitted. Attorney General v. Hurst. Decrees respecting Real Assets, No. XV. ante.

In the case of a charity, the trustees being annual officers, new trustees were appointed for the receipt of the funds, which consisted of dividends of stock, but the objects of the charity were to be selected by the original trustees. Ex parte Blackburne, 1 J. & W. 297.

(2) Appointment.

The usual direction is that the Master shall approve. Luther v. Chamberlen, supra.

But sometimes the direction is that he shall appoint. Attorney General v. Earl of Arran, 1 J. & W. 229. Millard v. Eyre, L. C. 27th November, 1793. Reg. Lib. B. 1792. fol. 292. S. C. 2 Ves. jun. 94. And see Buchanan v. Hamilton, 5 Ves. 722.

See Decrees respecting Receivers, No. I. note (1), post. And see Order for Guardian, Decrees respecting Infants, No. VIII. post.

In Attorney General v. Earl of Arran, supra, it seems to have been thought, that but for the use of the latter direction, it would have been necessary to come back to the Court for further directions. But see Luther v. Chamberlen, supra.

No. V.

DECREE AGAINST TRUSTEES FOR ACCOUNT OF CHARITY ESTATES, AND INQUIRY AS TO LEASES.

His Honour doth order and decree, that it be referred to Mr. S. one &c. to inquire what were the estates subject to the charitable uses created by the deeds dated &c. in the pleadings stated. And it is ordered, that the said Master do take an account of the rents and profits of such estates, and of the fines taken for the renewals of the leases thereof, come to the hands of the defendants, or any person or persons by their order or for their use, and to state at what times such fines were received, and in what manner the same and the rents and profits have been applied. And it is ordered that the said Master do inquire whether the said estates have been properly let; and if he shall be of opinion that the same have not been properly let, he is to inquire whether it will be proper to take any, and if any, what steps to set aside the leases so improperly made; and he is to state his opinion thereon to the Court. And it is ordered, that the said Master do approve of a scheme &c. [See Decrees respecting Real Assets, No. XV. ante.] And it is ordered, that the said Master do appoint proper persons to be feoffees or trustees of the charity estates; and inquire in whom the legal estate therein is vested. And for the better taking the said account &c. [See Usual Directions, No. II. ante.] And it is ordered that the said Master do tax the relator his costs of this suit to the time, and make a separate report thereof; and it is ordered, that such costs when taxed be paid by the defendants out of the money in their hands on account of the charity estates. And his Honour doth reserve the consideration in what manner, the same shall ultimately be paid, and also the consideration of all further directions, and of the rest of the costs of this suit, until after the said Master shall have made his general report. (1) And any of the parties are to be at liberty to

apply &c. [See Usual Directions, No. XIX. ante.] AttorneyGeneral v. Corporation of Exeter, M. R. 22d March, 1813. Reg. Lib. A. 1812. fol. 698.

Affirmed on rehearing. S. C. M. R. 7th March, 1822. Reg. Lib. A. 1821. fol. 1132.

NOTE.

(1) See Usual Directions, No. XV. ante.

Further Directions.

On setting aside a lease by trustees of charity estates, the Court directs the lease to be cancelled in toto, and will not reserve to the lessee the benefit of the covenants of the lessors. Attorney-General v. Morgan, 2 Russ. 306.

No. VI.

ORDER UNDER STATUTE 6 GEO. 4. C. 74.

(LUNATIC TRUSTEE ACT.)

This Court doth order that it be referred to the Master of this Court in rotation, to inquire (1) and state to the Court whether Nathaniel Nicholls in the said petition named, is a trustee of the £- -, £3: 10s. per cent. reduced annuities, in the said petition stated to be standing in the names of Christopher Doyly, Nathaniel Nicholls, and Charles Bicknell, and for whom, within the intent and meaning of the Act of Parliament, passed in the sixth year of the reign of his present Majesty, entitled "An Act for consolidating and amending" &c. And in case the said Master shall find that the said Nathaniel Nicholls is such trustee as aforesaid, then it is ordered, that the said Master do inquire and state to the Court whether the said Nathaniel Nicholls is a person of unsound mind. And after the said Master shall have made his report, such further order shall be made as shall be just. In re Smith, V. C. 2d April, 1828. Reg. Lib. B. 1827. fol. 973.

For orders under stat. 7 Anne, c. 19. (the Infant Trustee Act, repealed by stat. 6 Geo. 4. supra). See 1 Turn. Pract. 405. 2 Fowl.