the tunnel all these, or any of these, auxiliary works. I cannot, however, put an interpretation upon this clause, which will be utterly at variance with the restrictions that are carefully thrown around the powers of the company in the rest of the act; and I must take it that this general clause was intended to be subjected to the same restrictions, because it begins, "subject to the provisions and restrictions in this and the special act;" and I construe these words, therefore, as meaning, "subject to the company having authority by the special act to take the lands and to construct certain works;" and then if they have power, and space, and room enough in the land that they are authorised to take, to afford them an area for these additional works, they may be empowered to make these collateral and auxiliary works. For that purpose I am referred again to the act, and I find authority to take the land for the purpose of constructing a tunnel, and that the power to interfere with the land, and to hold it permanently, saving for the purpose of construction, is limited entirely to a tunnel of such width, diameter, shape, and construction as the company may deem necessary; but with not a particle of authority to superadd to that any additional work either underground or upon the surface of the land to be taken. Upon the whole examination of the matter, I think the true interpretation of the act of Parliament is brought back to that which is certainly consistent with the general intent and the anxious purpose of the Legislature, and also with what natural justice would dictate, namely, that the company should not be permitted to commit a surprise upon the landowner, by telling him that he will be required to part with so much of his land only as is necessary for a particular and a definite and expressed purpose, and that he should afterwards be told, "Nay, but we shall now take the whole of your land, because we deem it right to superadd to what we have expressed something in addition-something in extension of our original plan, but which was not indicated upon the notice given to you, or upon the plans and sections which we were bound to deposit, and did deposit, in order that you might know how your property would be affected by our undertaking." Having arrived at that conclusion, both upon an examination of the general act of Parliament, and of the special act of Parliament, I have no difficulty in coming to the determination, that the plaintiffs here are clearly entitled to the relief they seek, and that, save for the temporary purposes of construction, which will be, of course, of a limited duration in point of time, the company are not entitled to take, and hold permanently, any other portion of the plaintiffs' land than so much as is necessary for the construction of, and will be contained within, such tunnel, in conformity with the plan deposited, as the company shall deem necessary for the purposes of their works authorised by the act of Parliament. I mean to express the declaration in such a form as to limit the extent of ownership by the company; but at the same time to let that ownership extend to the measure, in point of size, diameter, and shape of the tunnel, which the company shall deem necessary; but ultra that tunnel, I mean to define that nothing can be required to be yielded up by the landowner to the company, or retained and taken permanently by the company. His Lordship added, that the costs of the suit must be borne by the company. Notes for reference-10 & 11 Vict. c. 17, s. 12; Stockton v. Brown (9 H. L. C. 246). COURT OF APPEAL IN CHANCERY. WAKefield v. LlanELLY RAILWAY AND DOCK COPANY.-March 13 and May 11. Award-Specific performance. An award which leaves some of the questions undecided, or leaves in doubt whether some of the questions have been decided, cannot be enforced. แ The plaintiff in this suit, George Vickery Wakefield, was the lessee of two pieces of land, required to be taken by the Llanelly Railway and Dock Company for the purposes of their act, and of an hotel and outbuildings erected on these two pieces of land. On the 4th July, 1863, he was served with the usual notice to treat for the purchase of his lands and hereditaments, and as to the compensation to be made to him for the damage which he might sustain by reason of the execution of the works authorised by the company's act; and in pursuance of this notice he sent to the company the particulars of his claim. On the 29th July, 1863, an agreement was come to between the plaintiff and the company to the following effect :Now these presents witness, that, in consideration of the premises, the said company and G. V. Wakefield hereby mutually agree, that, for the purpose of ascer taining the value of all and singular the said piece or parcel of ground, messuage, or hotel, outhouses and premises, and the damages sustained, or to be sustained, by the said G. V. Wakefield by reason of the execution of the works of the said company, and the amount of compensation to be paid by the said company to the said G. V. Wakefield in respect of the same, the whole question shall be, and is hereby, referred to the award, order, and final determination of William Barnes, of &c., engineer, and Richard Richards, of &c., gentleman; or if they cannot agree, then of Francis Price, of &c., as sole umpire, so that the said William Barnes, Richard Richards, or the said Francis Price, shall make and publish their or his award and certificate in writing, under their or his hand, as to what sum of money shall be paid by the said company to the said G. V. Wakefield in respect of the premises, which said award or certificate shall be ready on &c." The arbitration was proceeded with, and the arbitrators differed, and the umpire, on the 26th August, 1863, made his award as follows:-"By virtue of the appointment of me as arbitrator (made the 29th July, 1863), authorising me to assess and award the value of Mr. Wakefield's interest in the leasehold property, part of the Burrows field, held of Messrs. Richards for the unexpired term of ninetyfive years, at 157. 3s. per annum, on which property the Trafalgar Hotel has been lately erected by Mr. Wakefield, and which hotel, and premises thereto belonging, are now required for the purposes of this railway, I award Mr. Wakefield 27007. as the compensation to be paid by the above company to him for all his interest of whatever nature in the said leasehold The minerals of every description in and under this property belong to his Grace the Duke of Beaufort as lord of the manor, and by act of Parliament." On the 7th November, 1863, the plaintiff delivered to the defendants an abstract of his title to the premises, but the defendants on the same day returned the abstract. The bill in this suit was filed on the 24th December, 1863, and asked for specific perform ance of the award. The defendants, by their answer to the bill, objected to the award made by the umpire on various grounds specified in their answer. The seventh paragraph of the answer was, "That prior to the making of such alleged award, no evidence was produced as to the plaintiff's title to the said Trafalgar Hotel, or the nature or extent of his interest 10 therein. We believe that the said Francis Price refused to admit such evidence, and assumed that the plaintiff was interested in the entirety of the said hotel, although the said William Barnes protested against any award being made until the title of the plaintiff to the said hotel, and the nature and extent of his interest therein, were duly shewn. We believe that certain witnesses were, however, produced at such meeting to give evidence as to the value of the said hotel, and that the said William Barnes suggested that such witnesses ought to be sworn previous to their being examined; and that the said Francis Price and Richard Richards, however, refused to swear such witnesses, and proceeded to take their evidence with out their being sworn; and that in fact none of the witnesses who were examined before the said alleged award was signed were sworn. Such alleged award was in fact based on the evidence of such witnesses, and upon the erroneous assumption that the plaintiff was entitled, for the term of ninety-five years, to the whole of the said Trafalgar Hotel." The tenth paragraph alleged, "That the said alleged award of the said Francis Price is absolutely bad, as the same does not in fact award, or purport to award, or to have assessed the damages sustained or to be sustained by the plaintiff, by reason of the execution of our works; and we insist that, by reason of such omission, such alleged award would not have been binding upon us, even if the proceedings under the said agreement had been in all respects binding and regular." There was evidence on both sides, but except that portion of one affidavit which is referred to in the judgment, the evidence is not material. The cause came on for hearing before the Master of the Rolls, who dismissed the bill, saying, "I think the plaintiff fails in this case. It is true when specific performance depends upon the result to be ascertained by an award, there are two modes by which the matter may be carried into execution either the award may be made a rule of the Court, or you may get an attachment to compel the execution of the award under the Common-law Procedure Act; in which case, if they do not take steps to set aside the award, the attachment follows as a matter of course, and it must be carried into execution. If, on the other hand, the plaintiff files a bill for the specific performance of an agreement to sell the property, of which the price was ascertained by an award, then I am of opinion that it is open to the defendant to point out from any defects which appear upon the award that it is defective upon the face of it. Now it is impossible that this can be a good award. Obviously an award must be final, and must not leave any matter to be determined hereafter. The reference is this-for the purpose of ascertaining the value of all and singular the piece or parcel of ground, messuage or hotel, outhouses, premises, &c.; the damages sustained by the plaintiff by reason of the execution of the works; and the amount of compensation to be paid by the company in respect thereof. There are two things that are clear; the arbitrator is to find by his award the value of the land; and he is to find the amount of compensation to be awarded in respect of the damages sustained, or to be hereafter sustained; or if the compensation applies to both, it amounts to the same thing, because, with respect to the value, of course the compensation must be identical with the value, but he must find both the compensation for the value, and for the damages sustained. "Now, the award of the arbitrator is this: I award 27001. as the compensation to be paid by the company for all his interest of whatever nature in the above leasehold.' Then, supposing he has a large stock of wine and beer which must be removed, and which must necessarily be damaged by the removal from this place to some other premises, how can that be included in his interest, of whatever nature, in the leasehold?' His interest in the leasehold is the value of the piece or parcel of ground, messuage, or hotel, outhouse, and premises.' That is what has been found. But the damage already sustained, whatever it was, or to be sustained, and the amount of compensation to be paid in respect thereof, is wholly omitted from the award. Now, suppose that the railway company had paid 27001., and then took possession, and that, in the removal with all possible care that could be taken in the removal of the furniture and stock-in-trade, and the like from the hotel, a considerable damage had been sustained by the plaintiff, and he brought an action against the company for the amount of that damage, how could this clause be set up as an answer to it? It is impossible that it could be treated as having dealt with that, and yet it is expressly referred to to dispose of both, and he has not disposed of both. I am of opinion it does not bind, and that this award cannot be sustained as an award in answer to the submission. I understand that there is an affidavit which confirms the view I take of the case, and that the deponent considered the 27001. as only what was fair to be allowed for the value of the land and house alone, the leasehold premises, totally apart from any damage that may be sustained to the stock-in-trade, which must all be removed or sold on the premises, possibly at considerable loss; the whole of that is omitted. In that state of things, I am of opinion that the award is altogether bad, and consequently that you cannot enforce specific performance of it. Besides this, it is a serious objection, that the evidence was not taken upon oath. It was not at all necessary to take the evidence upon oath. There is no question about that, but the ordinary practice is to take it upon oath; and if you do not take it upon oath, both parties must waive its being taken upon oath. Here, nobody says that the defendant waived it being taken upon oath. All they say is, that they asked for it to be taken upon oath, and he said it was not usual, and he did not press it; that is not a waiver, of course. It is much less satisfactory to the parties when the evidence is not taken in that manner, which makes it more trustworthy, and as being that upon which the Court can proceed. "I am of opinion that the bill fails, and must be dismissed." The plaintiffs appealed, and the appeal now came on to be heard. Selwyn and G. Hastings, for the plaintiff.-This award must be taken to be good; at all events, the defendants should have had it set aside, and not taken the objection that it was bad for the first time by their answer. The word "compensation" includes all kind of value and damages. The Court should try to give finality to an award. (Wood v. Griffith, 1 Swanst. 43). There was no occasion to have the witnesses sworn. (Ridout v. Pye, 1 B. & P. 91). At all events, the bill should not be dismissed, for then all the proceedings must be gone through again. Baggallay and Methold, for the company.-Why did the plaintiff not make this award a rule of Court, when all the objections might be taken? The award is not good, as it only gives the value of the land; and even if the plaintiff abandons his right to relief on that ground, the award will still not be final, as it ought to be. [As to the award, Tribe v. Upperton (3 Ad. & El., O. S., 295); Martin v. Burge (4 Ad. & El. 973); and Re Rider (3 Bing. N. C. 874).] Selwyn, in reply. May 11.-Sir G. J. TURNER, L. J., stated the facts of the case, and read the allegations of the answer in defence, and said that the first objection taken might be left out of consideration, for that relied upon in the tenth paragraph of the answer seemed fatal to the plaintiff's case; and his Lordship then proceeded :It is the duty of arbitrators fully and finally to decide all the questions which by the agreement of reference are submitted to their determination; and an award which disposes of some of these questions, and leaves others of them undecided, or leaves it in doubt as to any of the questions, whether they were meant to be, and have been, decided or not, cannot be maintained. before the hearing of the cause, and also that the bill contained distinct allegations of misconduct on the part of the defendant. He agreed with the Master of the Rolls also in attributing more credit and weight to the evidence shewing misconduct on the part of the husband than to the evidence of misconduct on the part of the wife. His Lordship thought that, by credible evidence, the husband was proved unfit to have the management of the children, while the evidence adduced as to the wife's conduct by no means satisfied him of the truth of the charges against her. However, to some extent, the deed upon which this suit was based, whatever might be the husband's demerits, contravened the policy of the law, inasmuch as it contained a covenant by the father which provided that the children should remain under the sole care and control of their mother. But his Lordship thought that the invalidity of this covenant did not affect the rest of the deed, which continued binding on the parties. But it appeared to him that the decree had gone too far in granting a perpetual injunc tion, and that it ought to be modified thus-by substituting for the perpetual injunction an injunction against the husband, restraining him, until further order, from removing the children, and from interfering with them. In his opinion there should be a reference to chambers to approve of a scheme for the maintenance and education of the children; but the children were not parties to the suit, and, as his learned brother thought, on that account, that at present there should be no such reference, he himself would forbear to press the point. The order as to costs would remain. It is to be considered, then, what in this case the arbitrators and umpire had to decide. It is clearly that what was to be ascertained was not the value of the plaintiff's interest in the land, hotel, and buildings only, but also the damages sustained, or to be sustained, by the plaintiff by the execution of the company's works. Now, upon looking at this award, without saying that it is clear that the umpire did not intend to take, and has not taken, the damages into account, although, upon looking at his affidavits, I am very much disposed to think that the fair conclusion to be drawn from them is, that he did not so intend, and has not so done. This, I think, is at all events clear, that it is impossible to say, with any reasonable degree of certainty, either upon the award or upon the evidence, that the damages are or were intended to be included in the award; and I am of opinion, therefore, that there is too much uncertainty in this award to justify this Court in acting upon it. The case of Biggs v. Hansell (16 C. B. 562) was very much relied upon by the plaintiff in support of this award; but that case is very distinguishable from the present. In that case it was clear-or, at all events, considered Sir G. J. TURNER, L. J., after stating some of the by the Court to be so-that the arbitrator, although facts of the case, said, that at the hearing of the cause he had not in terms said so, had, in fact, included in the Master of the Rolls was of opinion that the charge his award everything which was included in the re- of indecent conduct against the husband was estaference; but it cannot be said to be so in this case; blished by the evidence, but that the charges against which, therefore, is within the authorities cited on the wife of intemperance and adultery were not esta behalf of the defendants. It was argued for the plain-blished; and his Honor accordingly, by his decree, ditiff, that notwithstanding the failure of the award, the rected a perpetual injunction against the husband, rebill ought not to have been dismissed, but that the straining him from proceeding to take the children Court should have put the matter in train for inquiry; from the custody of the plaintiff, and from interbut if there was any agreement, independently of the fering with her in the sole care, management, and award, which I am not disposed to think there was, protection of them, and then he directed an account it was certainly no more than an agreement to sell at of what was due to her in respect of the annuity. an indeterminate price; and this Court could not fix the price; nor do I see how the case would, by any inquiry, be brought within the range of this suit. My opinion, therefore, agrees with that of the Master of the Rolls, and this appeal must, consequently, be dismissed; and I think it should be dismissed with costs. Sir J. L. KNIGHT BRUCE, L. J., concurred. Note for reference-Russ. on Arbitration, 549, 3rd ed. SWIFT v. SWIFT.-March 18 and May 11. Custody of infant-Public policy. Where, in a deed of separation between husband and wife, the husband, after having been guilty of improper conduct, has covenanted that his children should remain separate and apart from him, and under the control of his wife, the Court will not refuse to enforce that covenant on the ground of its being against public policy. This was an appeal from a decision of the Master of the Rolls (reported fully ante, p. 148). The defendant appealed, and the appeal was heard in private. Selwyn and Bromehead, for the defendant. Baggallay and W. Morris, for the plaintiff. May 11.-Sir J. L. KNIGHT BRUCE, L. J., said, that in this case he agreed with the Master of the Rolls, that the execution of the trust deed by the trustee was proved by specific evidence to have taken place The defendant appealed against this decree, and when the appeal was before their Lordships, it was left in their hands upon a written statement, setting forth the points upon which he relied, which were-first, that the conclusion at which the Master of the Rolls had arrived as to the result of the evidence was erroneous; secondly, that the father's covenant that the children should remain under the sole care of the mother was void, as being opposed to public policy: thirdly, that the charge of indecent conduct against the defendant was not sufficiently alleged by the bill: and, lastly, that the deed of separation had not been executed by the trustees until after the bill was filed. His Lordship was of opinion that these objections did not furnish sufficient ground for impeaching the substance of the decree. On the first point, he agreed in the view of the evidence which had been taken by his learned brother, as well as by the Master of the Rolls: and he was further of opinion, that the covenant in question was not void on the ground of public policy. The powers of this Court to control the rights of a father over his children, in a case where the father had been guilty of gross misconduct, could not be doubted; and where a father, who had thus misconducted himself, had entered into a covenant not to exercise his paternal rights, he could see no ground upon which this Court could refuse to recognise the covenant. The father in such a case had done by his covenant nothing more than the Court would have done in the absence of such a covenant. The cases referred to on behalf of the appellant went to this extent only, that the Court will not permit the right to the custody of the children to be made a mere matter of bargain between the husband and wife upon a separation between them; they fell far short of deciding, that where the husband had misconducted himself towards the children, he could not by a separation deed, or by any other deed, covenant not to set up his paternal rights. The provisions in the Divorce Court Acts go far to shew that there is no principle of public policy to prevent him from doing so. As to the alleged insufficiency of the allegations which were contained in the bill, it was enough to say, that the defendant had taken issue upon it, and therefore it could not be thought that he had been in any way deceived by them; and as to the deed of separation not having been executed by the trustees before the filing of the bill, the Court must dispose of the case as it came bfore it on the hearing previously to which they had executed the deed, when the deed became good ab initio. solicitor. The questions raised upon this summons Baggallay, Q. C., and Law, for Mr. Underwood, as the executor of Joseph Godber. Southgate, Q. C., and Marten, for the plaintiff. April 22.-Sir J. ROMILLY, M. R.-The question on this summons arises upon an application to prove two claims against the estate of Thomas Gregory Morley, the testator, which is being administered in this suit. One of the claims is made by Mr. Thomas Underwood, as the surviving executor of Joseph Godber's estate; and the other claim is made by Mr. Thomas Underwood and Mr. James Whittle Godber, as the executors of the estate of Robert Godber. The general outline of the facts relating to the first claim are as follows:- Mr. Underwood and the testator Morley were the executors of the will of Joseph The decree appeared to be right in substance; the Godber. Morley, who was a solicitor, had in his poscovenant, as it stood, was, that the children should be session 20007., part of the estate of Joseph Godber, at all times hereafter under the control, management, which, according to his statement, had been lent by and superintendence of the wife; but this state of him upon the security of a deposit of title deeds. On things was liable to be modified by her future conduct, being informed of this, Underwood required that the or by other circumstances, and therefore the Court, in deeds so deposited should be put into the box which the exercise of its discretion, should not have tied the contained all the deeds and papers relating to the husband's hands by going so far as to grant a perpetual estate of Joseph Godber, and which box belonged injunction. It appeared to him that the injunction jointly to Underwood and Morley; and Morley obshould have been until further order only. This, how-jected to this, but proposed, instead thereof, to put ever, was not such a material variation of the decree into the box deeds of his own, as a security for the as to affect the question of costs, and the order would 20007. so advanced. This was accordingly done. stand in all respects, except only that the injunction would be one until further order, instead of being perpetual. The cost of the appeal must be paid by the husband. Unfortunately, Mr. Underwood did not examine the deeds, nor can he now say of what they consisted. This occurred after many visits had been paid by Mr. Underwood to Morley, and took place early in FebNotes for reference S. C., ante, p. 148; Set. Dec. 496; which is given by Mr. Underwood, in his affidavit:ruary, 1864. This is the account of the transaction Story's Eq. 1341, 1349. ROLLS COURT. MASON V. MORLEY.-March 11 and April 22. Title deeds-Deposit-Fraudulent abstraction-Lien. Early in the month of February, 1864, and on or about the 5th day of that month, as I believe, I again called on the said Thomas Gregory Morley, and repeated the same question; to which he made the same reply. I thereupon requested that the deeds on deposit, on which he had stated that the sum of 20007. was advanced, might be placed in the trust box, meanto the estate of Joseph Godber, and was kept in the said Thomas Gregory Morley's office to contain all the documents and papers relating to the estate. The said Thomas Gregory Morley replied, I had better not deposit the identical deeds upon which the money is lent, as I may require them before the others are complete; but we will not have any misunderstanding, and if you are not quite satisfied, I will deposit deeds of my own in the box;' and he thereupon took a parcel, wrapt up in paper, out of his private safe, saying to me, I will deposit these deeds of my own; they represent 40007.;' and he then placed the parcel in the mained satisfied with such deposit, believing the parcel said trust box in my presence; and I thereupon reto contain deeds of ample value as security for the said sum of 20007., as he had stated to me, and I did not examine the parcel to ascertain its contents." A. and B. were the executors of C. B., who was a soli-ing thereby a tin box, marked 'J. G.,' which belonged cilor, and acted as such in the trust, lent a portion of the trust funds upon the security of a deposit of title deeds. A. required the deeds so deposited to be placed in the box belonging to the trust, but, at the request of B., he allowed some deeds belonging to B. to be deposited in lieu of the original deeds. B. subsequently abstracted these deeds from the box, and A. could not identify them. Upon B.'s death, his widow, who afterards took out administration to his estate, allowed A. to select from among B.'s title deeds such deeds as he thought would be sufficient to cover the amount advanced:-Held, that A. had a specific lien upon the deeds so selected by him. B., who acted as solicitor for the executors of D., induced them to release an estate in mortgage to them, without payment of the mortgage money, and he afterwards, upon their request, deposited, by way of security, in the bor belonging to the trust, various title deeds belonging to himself, but which could not be identified by D.'s executors. B. afterwards abstracted these deeds from the box:-Held, that D.'s executors had a general lien upon all the title deeds belonging to B., subject to the lion of A. upon the deeds selected by him. Adjourned summons.-This was a creditor's suit, to administer the estate of Thomas Gregory Morley, a 6th May the box was opened, when it appeared that Mr. Morley died on the 30th April, 1864, and on the the deeds had been removed. The box was in the actual possession of Morley, being in his office, and he had access to it at all times, without the concurrence of Mr. Underwood; still the box was the property of the executors, and it contained the documents relative to the estate of Joseph Godber. On the 4th June following the death of Mr. Mor- Morley having withdrawn the deeds from the box, ley, the defendant Mrs. Morley, his widow, and who | which was in the joint custody of himself and his subsequently took out letters of administration, at co-executor, and, by reason of which withdrawal, the the instance of Mr. Underwood, delivered up some particular deeds deposited as a security were unable deeds to him, together with a memorandum of de- to be ascertained; and assuming that this took place posit. The account which he gives of this is as fol- in consequence of the act of Morley himself, still I lows:-"On the 4th June, 1864, I, in company with am of opinion that when Mr. Underwood accepted my solicitor Mr. Parsons, met the said Michael Mason, from Mrs. Morley the selection of such deeds as he John Nicholls Mason, and the said defendant Hannah thought fit, as a substitute for the deeds which were Beardsley Morley, senior, by previous appointment, at deposited by Morley, he entered into a contract with the office of the said Thomas Gregory Morley. The her by which, in consideration of her allowing him to said John Nicholls Mason then informed me that the take those particular deeds which were delivered to said Michael Mason had decided not to prove the will him, he abandoned his claim on the remainder; and of the said Thomas Gregory Morley, and that the said provided this transaction, by which one set of deeds defendant Hannah Beardsley Morley had decided to was substituted for a general lien on the whole, was prove the will of the said Thomas Gregory Morley as created, then I am of opinion that Mr. Underwood his widow and relict, and the person entitled to prove thereby waived his general lien, and accepted this parhis will, if the executors did not do so, and that the ticular lien in lieu thereof. papers for those purposes were then prepared. The said defendant Hannah Beardsley Morley, senior, then took a quantity of deeds and securities out of her late husband's said private safe, and told me to select such as I desired to have placed in my hands as security for the said sum of 2000. I accordingly examined them, and found them chiefly to consist of mortgages made to the said Thomas Gregory Morley, and I selected several, which appeared to me to be a sufficient security for the sum of 20007.; and the said defendant Hannah Beardsley Morley the elder, with the full concurrence, and in the presence of the said Michael Mason, the executor, then handed the deeds and securities I had selected, to me, and I placed them in the said trust box, which was still in the office of the said Thomas Gregory Morley, and then went out and bought a padlock, and locked the box up, and took the key away with me." At the same time Mrs. Morley signed and handed to Mr. Underwood, a memorandum, in the following terms:-" Memorandum, that the several title deeds specified in the schedule hereunder written, together with the muniments of title relating thereto, have this 4th day of June, 1846, been deposited by Hannah Beardsley Morley, of the town of Nottingham, widow, with Thomas Underwood, of Carrington, in the parish of Basford, in the county of Nottingham, as security for the sum of 20007., owing by Thomas Gregory Morley, the late husband of the said Hannah Beardsley Morley, to the said Thomas Underwood, with interest at the rate of 51. per cent. per annum, from the 30th day of March last past; and the said Hannah Beardsley Morley hereby further undertakes and agrees, that immediately upon her taking out administration with the will annexed, to the estate of her said late husband, she will concur with all necessary parties in conveying, assigning, and assuring the moneys, hereditaments, and premises to which the said title deeds relate, to the said Thomas Underwood, his heirs, executors, administrators, and assigns, in such manner as he or they, or his or their counsel, may require and advise, and at the expense in all things of the said Hannah Beardsley Morley, for securing the payment of the said principal sum of 20007. and interest." Annexed to the memorandum was a schedule of the title deeds handed over to Mr. Underwood. On the 11th July, 1864, administration with the will annexed of the estate of Morley was granted to Mrs. Morley. The question is what, if any, lien Mr. Underwood has, in this state of things, upon the deeds of Mr. Morley, as a security for this sum of 20007.? I am of opinion that the claim made by Mr. Underwood, for a general lien on all the deeds of the testator Morley, cannot be maintained. Assuming that he had a right to such a lien upon the death of Morley, by reason of The question is, however, whether this transaction binds the general creditors of Morley, and I am of opinion that it does. Not to put it any higher than this, that there was a reasonable doubt whether Mr. Underwood was not entitled to a general lien on all the deeds of the testator Morley to secure the 2000L, the satisfaction of this claim, and the determination of this debt by the executrix, by giving Underwood a lien on the specific deeds, was, in my opinion, a sufficient consideration to support the transaction, and that all the persons interested in the estate of Morley are concluded by this arrangement. With respect to the first claim, therefore, I am of opinion that Mr. Underwood has a lien for the 2000 on the deeds so selected by him, but not on any other deeds or papers belonging to the estate of Thomas Gregory Morley. The second claim is made jointly by Mr. Underwood and James Whittle Godber, as the trustees and executors of the will of Robert Godber. The facts relating to this claim are as follows:-Robert Godber died in January, 1857. In March, 1863, his executors lent 6007. to Mr. Hickling, upon the security of an es tate belonging to him, and situate at Sherwood. Mr. Morley, the testator, acted as solicitor for both parties in this transaction. Hickling sold the estate to Joseph Webster for 12501. Morley informed the executors of this circumstance in December, 1863, and pressed them to convey the estate to Webster free from the incumbrance, and to take Webster's guarantee for the payment of the 6007.; and Morley also suggested that they should take, as security for the repayment thereof, the deposit of a Lloyd's bond, in the Carmarthen and Cardigan Railway, for 10007., which was then in the possession of Webster. The executors declined to accept this guarantee and security, but they executed the deed of conveyance to Webster, on receiving from Mr. Morley a memorandum, in writing, signed by hir acknowledging that he had in hand the 6007, and interest. Soon after this, namely, on the 5th February, 1864, they pressed Morley to give them some security for this 6007.; he assented, and placed a parcel of deeds. relating to his own property, in the box belonging to the trustees of Robert Godber. This box was in his custody as their solicitor. After his death, upen examining the box, it appeared that the deeds which were so deposited had been withdrawn. Amongst th papers of the testator was a promissory note fro Hickling, the vendor, to Mr. Morley, for a sum of 6 being the 6007. which was advanced on the mortgag of his property, and also the Lloyd's bond for 10* in the Cardigan Railway. This promissory note sid Lloyd's bond had, in fact, been taken by Mr. Under wood in his character of executor of Joseph Godber. from among the securities handed to him by the |