Co. Both these questions were raised by the defence. They were not only raised in the Master's office, but, as appears by the pleadings enrolled in the Court, were made matter of defence from the beginning. The finding of the Master was in favour of the then defendant's contention as to the extinguishment of the debt. This was reversed on an appeal by Blake, V. C., from whose judgment was the appeal to the Court of Appeal. The reports of the case shew, I think, that the evidence there material to these questions was substantially the same as the evidence here.

It was, however, argued for the defence, that there was a difference, because the witness Cameron said in this case, that "there was no agreement as to substitution," that is as to substituting notes, &c., coming in for those that were retired, and that there was no such evidence in the case Cameron v. Kerr. By the report of the case in the Practice Reports it appears the bank manager said: "The particular notes mentioned in the account filed on June 7th, (the account filed in the Master's office,) were not in existence at the time of the insolvency. None of the notes at that time were in existence at the time of the mortgage. These were substitutions. I cannot show any now. The books don't show." And further on he says: "The course of dealing was, by fresh discounts funds were provided, for the check of the firm used to relieve the notes falling due on any particular day." The statement on page 34 (of the report of the case in appeal) shews what were considered to be the facts on which the judgment proceeded. It is this: "From time to time notes were sent in by the Moffatts for discount. These were discounted without any regard to the amount of notes falling due. The proceeds of the discounts and the cash deposits they made were all carried to their credit in one open current account. Against this they drew checks as the exigencies of their business required. As the notes held by the bank on December 31st, 1873, matured, checks were drawn to retire them the checks were charged against the Moffatts in the

current account against the fund to their credit in the bank, made up from the proceeds of fresh discounts and from cash deposits, and the notes were delivered up to the Moffatts."

In the present case the manager said: "These notes had been paid or retired in some way before the insolvency in August, 1875. There may have been renewals in the meantime. There were no renewals of these notes or any of them in hand in August, 1875, at the insolvency. There were notes substituted in this way, other notes were brought in and discounted, by which some of these notes were taken up, and so on. There was nothing different from the ordinary way of doing business. There was not any previous agreement that certain notes should be taken in lieu of certain other notes falling due. The business was simply done in this way."

The evidence is too long to be repeated here; but after considering the matter as well as I can, I do not see that there is, in this respect, any substantial difference between the facts to be considered by me and those that were con. sidered by the Court of Appeal.

It was argued on behalf of the defendant that his liability being upon the agreement and not upon the mortgage, it was confined to the indebtedness, and that the indebtedness had long been extinguished. The agreement does provide that if the firm, Moffatt Bros. & Co., shall and will well and truly pay their indebtedness to the plaintiffs, &c., then the bond and agreement should become wholly void, but I think the former part of the agreement, that I have before referred to, stating the purposes for which it was entered into, must be looked at as well to ascertain what was really meant by the use of the word "indebtedness" here, and when this is done, and the matter looked at in the light afforded by the decision Cameron v. Kerr, I think the argument cannot succeed.

It is plainly stated by the Court in Cameron v. Kerr, that there was no ground for the argument that the taking of the security was in violation of the provisions of the Banking Acts.

On the whole case, I am of the opinion that the plaintiffs are entitled to succeed, and to judgment for the $10,000 and interest, and their costs of suit. At present I do not see any reason for computing the interest from a period earlier than the commencement of the suit, but should there be any difference as to this, I will hear what may be said by the parties.

A. H. F. L.

[CHANCERY DIVISION.]

CLARKE ET AL. V. DARRAUGH ET AL.

Will-Construction-Vesting-Void condition-Parent and child-Restraint on a devisee residing with his father-Infant.

A testator left all his estate to his executors "in trust for the benefit of G. H. till he arrives at the full age of twenty-one, at which time I direct my said executors to give to G. H. all the said property" subject to the condition that, "should the said G. H. at any time before coming of age go to live with his father W. H., he is to be disinherited of the whole or any portion of my estate. And the said estate so forfeited is to be then given to my son J. D., his heirs and assigns." The testater died in 1875. In 1876, while G. H. was still a minor, being only eleven years old, J. D. and W. H. entered into an agreement under seal, whereby it was agreed that J. D. should support the widow of the testator, who was his mother and the mother-in-law of W. H., during her life, and should convert into money the estate of the testator, to which he was or should be entitled under the will, and pay a moiety of the proceeds to W. H. in trust for the support of G. H., till he should attain twenty-one, the residue to be then paid by W. H. to G. H. Pursuant to this agreement G. H. forthwith resided with W. H. till he was seventeen years of age, when this action was brought by the executors for a declaration of the rights of G. H., J. D.. and W. H. under the will.

Held, that G. H. took a vested interest in the property under the will; that the condition was a condition subsequent, and was void as being "against law;" and G. H, was entitled to all the estate given to him by the will, notwithstanding the agreement of 1876, which could not be regarded as a family comproinise, or for the benefit of the infant.

THIS was an action brought by William John Clark and Robert Thompson, the executors of the will of James Darraugh, for the construction thereof, and other relief, as mentioned in the judgment, in which the terms of the will and the circumstances of the case are set out. The defendants to the action were James Darraugh, William Hodgins, and George Hodgins, an infant.

The action was tried at the Chancery Sittings at London, on May 22nd and 23rd, 1882, before Ferguson, J.

W.P. R. Street, for the plaintiffs, submitted to do as the Court should direct, and asked that the plaintiff's might be permitted to pay the money into Court, the property being in money and mortgages chiefly, and for the executors' costs out of the estate.

W. R. Meredith, Q.C., for the infant defendant. The gift to the infant in the will was vested, and the condition. subsequent is void: Roberts v. Hall, 18 C. L. J. 177, (a); Mitchell v. Reynolds, 1 P. Wms. 181. A condition to omit the doing of something which is a duty is a void condition, and here the duty of the child was to live with the father; the father could take the child. See Wilkinson v. Wilkinson, L. R. 12 Eq. 604; Davis v. McCaffrey, 21 Gr. 554; Lyons v. Blankin, Jacob 245. Again, the condition is void, because so indefinite and uncertain: Fillinghan v. Bromley, 1 Turn. & R. 530. Again, there cannot be a forfeiture, since there has been no act of the will of the child: Doe dem. Shaw v. Steward, 1 A. & E. 300. At any rate James Darraugh cannot enforce it, for he was an actor in respect to the breach of the condition. If, however, the Court should be against us as regards the question of forfeiture, then the agreement of December 23rd, 1876, should be held good, because there was a good consideration for it, viz: the consent of William Hodgins to support the infant, and relieve the grandmother from so doing, and this although there was no legal obligation on him so to do. I refer, also, to Hamilton v. McKellar, 26 Gr. 110.

W. Cassels and F. P. Betts, for James Darraugh. As to the agreement of December 23rd, 1876, being void, the infant is bound by his pleading, in the same way as an adult would be. The father was asserting his right to take the child, and James Darraugh being a party to the agreement makes no difference. The gift to the infant is not a vested one. As to the condition, there is no public duty cast upon a child to live with his father, and the condition. is not void: Earls v. McAlpine, 6 A. R. 145; Blake v. Lee,

(a) Since reported 1 O. R. 388.

Ambler 306; Colston v. Morris, Jacob 257, n.; Hill v. Gomme, 1 Beav. 540. The testator had the right to impose the condition he has imposed, and the Court has nothing to do with it. Then, as the infant has distinctly repudiated the agreement, he must stand solely on the will; he can not rest his rights on an alternative between the will and the agreement, because as soon as he disaffirms the compromise, he removes the consideration to James Darraugh for the agreement. We also refer to Leith's Blackstone, 1st ed., p. 103; Potts v. Norton, 2 P. Wms. 109, n.

T. G. Meredith, for William Hodgins. My client is bound by the agreement of December 23rd, 1876, and is entitled to the benefit of it, so as to get the interest of half the estate to stand against the support of George.

W. R. Meredith, Q.C., in reply. The agreement of December 23rd, 1876, does not stand in the position of a compromise. The infant had done nothing to forfeit his rights under the will. It is competent to the Court to say on view of the whole case that the agreement is for the infant's benefit, and to have it carried out. The Court must look at the whole case. As to James Darraugh's rights under the agreement, he cannot take advantage of his own wrong. The agreement that William Hodgins should take the infant was the same as if James Darraugh had committed the breach of the condition himself. We refer also to In re Agar Ellis, Agar Ellis v. Lascelles, L. R. 10 Ch. D. 49.

June 23rd, 1883. FERGUSON, J.-THE action is brought by the executors asking for the construction of the last will of the late James Darraugh, in his lifetime of the township of Biddulph, in the county of Middlesex, who, on November 28th, 1874, made and published his will, and departed this life on or about December 12th, 1875.

The material parts of the will are as follows:

"

'I appoint William John Clarke and Robert Thompson to be the executors of this my last will and testament, directing my said executors after my decease to take into