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who were voters, and many of them not fit objects of charity, in such freight was to be paid one half in cash on signing of bills the following manner :-Persons went round with orders for of lading; less four months' interest at bauk rate, 5 per cent., for coals signed by the agent, and having on the back of them the insurance, &c. A cargo of 2178 tons of coal was loaded on compliments of the candidate, and distributed them, and in some board the ship, and 22861. 18s, paid on account of the half cases the persons so distributing had acted as canvassers. The freight to the plaintiff. The charterer insured the cargo of the candidate was returned, and was petitioned against. It was ship as increased in value by prepayment of freight valued at contended at the scrutiny on the trial of the petition before the 45001. judge by the petitioner, who claimed the seat, that under the The ship was lost eight miles from Bombay, and about half 25th section of the Ballot Act a vote must be struck off from the the cargo was lost, and the remainder was safely delivered. respondent's poll for every voter who had received coal, as being The plaintiff sued the defendants to recover for a total loss of a voter “so bribed ” within the section. It was contended on the half freight remaining unpaid. The defendants paid into the other hand that the section only applied to voters receiving Court half the amount claimed, their contention being that tho the bribe with a corrupt motive, and that there was no proof of half freight prepaid must be distributed over the whole cargo, such receiving.
and therefore that the plaintiff could recover a guinea a ton for Counsel appeared for some of the voters at the trial, but it the coal delivered from the charterer, and there was consequently was agreed that none of them should be called, and that the only a partial loss of the half freight insured. question whether there was any evidence of their receiving the Benjamin, Q.C. (C. Russell, Q.C., with him), for the defencoal corruptly should be left on the facts as they stood on the dants. petitioner's case as above mentioned.
Watkin Williams, Q.C. (McLeod with him), for the plaintiff. Giffard Q.C. (Thesiger, Q.C., and Cave, with him), for the THE COURT (Cockburn, C.J., Mellor, J., and Amphlett, B., petitioner.
dissentientibus Cleasby and Pollock, BB.), held that there was O'Malley (Chandos Leigh and Le Marchant with him), for the only a partial loss covered by the payment into Court, and voters.
the judgment of the Court below must be reversed, and there THE COURT (Coleridge, C.J., Brett, and Grove, JJ.) gave judg- must be judgment for the defendants. Judgment reversed ment in favour of the petitioner's claim to the seat on the ground Attorney for plaintiff: Nash. that there was a primâ facie case of corruption against the voters, Attorneys for defendants: Argles & Rawlins. and therefore the votes must be struck out under the 25th section of the Ballot Act (Brett, J. dubitante). Per Coleridge, C.J., and Brett, J.:-The votes can only be struck off under the section when the voter receives the bribe corruptly.
Ex. Ch. from C. P. SOWERBY v. SMITH.
Jane 24. Judgment for petitioner.
Inclosure Act- Allotments-Game-Reservation of Right of Attorneys for petitioner: Collyer-Bristow & Co.
Sporting to Lord of Manor. Attorneys for respondents: Paterson, Snow, & Burney,
Error from the judgment of the Court of Common Pleas
(reported Law Rep. 8 C. P. 514.) C. P.
Field, Q.C. (Barker with him), for the defendant.
J. W. Mellor (Jeune with him), for the plaintiff.
THE COURT (Cockburn, C.J., Mellor, J., and Amphlett, B., Master and Servant- Authority.,
dissentientibus Cleasby and Pollock, BB.) affirmed the decision Action of trespass. Plea not guilty.
of the Court below. Judgment affirmed. At the trial before Quain, J., at the Wilts assizes, the facts Attorneys for plaintiffs : Scott & Co. were as follows:-The local board having taken a sewage farm Attorneys for defendant : Pilgrim & Phillips. entrusted its management, with the fullest powers to do all that might be necessary for the most beneficial conduct of the farm, to a man named Buchan. There was a ditch between the farm
Ex. Ch. from Ex.
June 26. and the plaintiff's land, and Buchan, for the purpose of improv
LIVER ALKALI COMPANY v. JOHNSON. ing the drainage from the farm, wrongfully went upon plaintiff's Carrier--Fixed Termini-Definite Route-Conveyance of Single land and pared away his side of the ditch, and cut away brush
Customer's Goods. wood and trees on plaintiff's side. The learned judge held that The defendant was a barge owner, and let out his vessels for there was no implied authority from the defendants to Buchan the conveyance of goods to any customers who applied to him. to do this so as to make defendants liable, and the verdict was
as Each voyage was made under a separate agreement, and a barge entered for the defendants with leave to move to enter it for was not let to more than one person for the same voyage. The plaintiff. A rule nisi having been obtained
defendant did not ply between any fixed termini, but the eusLopes, Q.C., and Mackey, shewed cause.
tomer fixed in each particular case the points of arrival and Cole, Q.C., and Pinder, supported the rule.
departure. In an action against him by the plaintiffs for not THE COURT (Keating and Grove, JJ.), discharged the rule.
safely and securely carrying certain goods : Attorneys for plaintiff: Clarke, Woodcock, & Ryland.
Held (affirming the judgment of the Court below (Law Rep. Attorney for defendants : Moon.
7 Ex. 267) that the defendant "bad the liability of a common carrier," and was liable, though the goods were lost without
negligence on his part. Ex. Ch. from C. P.
1 T. James, for the plaintiffs. ALLISON v. BRISTOL MARINE INSURANCE COMPANY.
Russell, 6.C. (Butt, Q.C., with him), for the defendant. Marine Insurance Policy on Freight—Prepayment of Freight-| Attorneys for plaintiffs : Wright & Venn, for J. & R. Qreint, Partial Loss.
Liverpool. Appeal from a decision of the Court of Common Pleas disa' Attorneys for defendant: Field & Roscoe, for Bateson d On. cbarging a rule to enter a verdict for the defendants.
Liverpool. The action was on a policy of insurance on freight effected by the shipowner. The plaintiff had chartered his ship to one
ERRATUM. De Mattos for a voyage from Greenock to Bombay with a cargo
Knowlman v. Bluett, ante, p. 152. of coals, freight to be paid on right delivery of cargo at the rate Transpose names of coupsel for plaintiff and defendant respecof 42s. por ton of 20 cwt. delivered. It was also provided that tively.
TABLE OF CASES.
Mrs. Kirkpatrick executed a second deed, " giving, granting, and assigning,” but not disponing, to trustees the property in question. This second deed made no reference to the first deed. But, inasmuch as the provisions of the second deed departed from
those of the first deed, shewing an intention to displace the first, House of Lords.
and to substitute the second, the Court of Session decided that
the first deed was in effect revoked and inoperative, thereby ALEXANDER V. KIRKPATRICK (Importance of the Word " Dispone"
neutralizing both instruments in so far as they affected heritage, - Ineffectual Revocation). . . . . . .
and opening the succession to the heir-the soleson - of the family.
(See the case fully reported in the 3rd Series, vol. ii. p. 551, and quity.
Scottish Jurist of the 3rd of March, 1873).
Against this decision the trustees appealed to the House of BARNETT'S CASE. In re Essex BREWERY COMPANY (Company
Lords, having for their counsel, Winding-up-Contributory-Contract to take Shares-Ullra
Mr. J. Pearson, Q.C., and Mr. Balfour (of the Scotch Bar). vires Contract-Rescission) . . . . M. R. 165
The respondents, on the other hand, being represented by Cook's CLAIM. In re Bonelli's ELECTRIC TELEGRAPH COMPANY (Practice-Petition- Order for Service on Respondent out of
The Attorney-General (Sir R. Baggallay), and Mr. John McLaren Jurisdiction) . . . . . . , V.-C. B. 167
(of the Scotch Bar). HOGHTON v. FIDDEY. In re Hoghton's Estate (Bill of Review
THE LAW PEERS expressed their concurrence with the Court -Petition for leare-Affidavit in support-Infant Petitioner)
below as to the necessity of the word dispone in the conveyance
V.-C.M. 166 of heritage ; but upon the second point, as to revocation, their HOOPER V. SMART. BAILEY v. PIPER (Vendor and Purchaser
Lordships disagreed with the Court below, the House holding Agreement to sell Entirety-Bad Title to a Moiety of Property
that the deed of 1867, being itself invalid, could not revoke the -Specific Performance-Vendors entitled to One half of Pur
deed of 1866, which was efficient in all respects. chase-Money) ; . . . . . . '1.-C. H. 168 Appellants'agents : Loch & Maclauren. LE MARCHANT v. LE MARCHANT (Will - Construction - Preca
Respondents' agents : Martin & Leslie. tory Trust-Gift in full Confidence). . V.-C. M. 166 NORWICH AND NORFOLK PROVIDENT PERMANENT BUILDING SO
CIETY, In re (Joint Retainer by three, change of Solicitor by two, Petitioners-Order at Rolls) .
. V.-C. H. PARKER 0. McKenna (Practice--Evidence- Ansier-Cross-exami
nation- Order of the 5th of February, 1861, rule 19) V.-C.B. 167 PENYSYFLOG IRON MINING COMPANY, In re (Company-Volun
tary Winding-up-Summons to examine Officer of Company -
In re TUNIS RAILWAYS COMPANY. July 11. SCOTT 0. CUMBERLAND (Costs - Administration Suit - Lapsed
Share of Real Estate-General. Personal Estate) .. M. 167 | Winding-up scheme of Reconstruction Rights OJ a majority SMITH v. DANIELL (Practice - Discovery - Privilege - Cases and
Sale by Trustees. Opinions of Counsel)
. . . . V.-C. B. 167 This was an appeal by the dissentient debenture-holders from TUNIS RAILWAYS COMPANY, In rei Winding-up-Scheme of Recon a decision of Vice-Chancellor Malins (ante, p. 121). struction-Rights of a Majority-Sale by Trustees) L. JJ. 165 It appeared that the railway was vested in trustees by way of
mortgage, upon trust for the debenture-holders, such trustees Common Law.
having a power of sale with the consent of meetings of the de
benture-holders. A suit had been instituted for the administraEUSTACE, IN THE GOODS OF SARAH SAYER (Married Woman's tion of the trusts of this deed, and the order of the Vice-Chan
Will-Made under a Power given to her by her Settlement-A cellor was made both in the matter of the winding-up and in subsequent Will referring to such Power and containing general the suit. revocatory Words—Revocation) . . . P. & M. 168 Southgate, Q.C., J. Pearson, Q.C., and Brooksbank, for the ap
Cotton, Q.C., and W. H. Deverell, for the trustees, stated that During the sittings of the Courts THE WEEKLY NOTES will be published
they considered a sale of the railway for 40,0001. very advantaon Saturday, and will generally comprise Notes of the Decisions up to and including those of the previous Wednesday. All cases of permanent
geous. interest noted herein will be reported in full in THE LAW REPORTS.
Glasse, Q.C. Waller, Q.C., and Latham, for the committee of debenture-holders, and
Higgins, Q.C., and Graham Hastings, for the liquidator, wero not called upon.
THEIR LORDSHIPS held that the arrangement was one which the Court had jurisdiction to sanction as an exercise of the power of sale, and dismissed the appeal with costs.
Solicitors : Heritage; Pulbrook.
In re Essex BREWERY COMPANY.
BARNETT'S CASE. but one son, executed on the 18th of June, 1866, a deed whereby they conveyed and “disponed” to themselves, as husband and
Company-Winding-up- Contributory-Contract to take Shareswife, and their survivor, all their property, heritable and move
Ultra vires Contract-Rescission. able. The deed contained provisions for the eight daughters, This was an application to settle Mr. Barnett on the list of but was absolutely silent as to the son, now an advocate in contributories in respect of 1000 shares in addition to 600 shares Edinburgh.
as to which his liability was not disputed. Nine months afterwards, on the 4th of March, 1867, Mr. and The company was formed in March, 1871, as a limited comNo. 25.–1874
House of Lords.
pany with a capital of 30,0001., divided into 6000 shares of 51. V-C M.
LE MARCHANT v. LE MARCHANT. July 7. cacb. Mr. Barnett was one of the directors. Part only of the capital had been subscribed for previously to September,
WillConstruction - Precatory Trust-Gift in full Con1872.
fidence. At a meeting of the board of directors held on the 19th of Demurrer. September, 1872, at which Mr. Barnett was present, it was re- Sir J.D. Le Marchant, by his will, dated the 5th of August, 1871, solved that each shareholder should have the option of taking made a gift to his wife in the following words:-"all property the remaining shares at ll. each pro ratâ to his holding, and in whatsoever that I may die possessed of for her sole use and case of any shareholder declining to take them, the shares then benefit, in the full confidence that she will so bestow it on her remaining to be offered to the other shareholders at the same decease to my children in a just and equitable spirit, and in price.
such manner and way as she feels would meet with my apMr. Barnett applied for 1000 shares (being the shares in ques- proval." tion) on these terms; and at a board meeting held on the 26th The bill was filed by an infant child of the testator against of September it was resolved that 1000 shares be allotted to him, the widow and other parties interested in the estate to have the and also that other shares which had been applied for should be trusts of the will declared and administered by the Court. allotted to the applicants. At a board meeting held on the 3rd of In order to raise the question whether there was an absolute October, it was resolved that half the amount due on the shares gift or a trust the widow demrured. allotted at the meeting of the 26th of September be paid up in J. Pearson, Q.C., and Kekewich, for the demurrer. seven days, and pirsuant to this resolution Mr. Barnett paid Cotton, Q.C., and V. Hawkins, for the plaintiff, were not to the company 5007. in respect of the 1000 shares.
called on. Subsequently, Mr. Barnett was advised that the resolution of THE VICE-CHANCELLOR held that a trust was created in which the 19th of September was altogether ultra vires, and at a meeting the children were interested, and that its exact nature and extent of the board held on the 29th of November, 1872, it was resolved must be determined at the hearing of the cause, and the dethat the resolutions of the 19th and 26th of September be re- murrer was consequently overruled. scinded, and all applications for shares on the terms of the reso- Solicitors : Freshfields & Williams; Farrer, Ouvry, & Farrer. lutions cancelled, and all sums received in respect thereof be returned as soon as the funds of the company permitted, and until payment be carried to the separate accounts of the persons having paid the same. Accordingly the 5001. paid by Barnett | V.-C. M.
In re Hoghton's ESTATE. July 10. was carried to his separate account. His name was never placed
HOGHTON v. FIDDEY. on the register of shareholders in respect of the 1000 shares. | Bill of Review-Petition for leave - Affidavit in support-Infant Southgate, Q.C., and W. F. Robinson, for the liquidator.
Petitioner. Byrne, and Graham Hastings, for creditors who supported the application.
This was a petition for leave to file a bill or supplemental bill Marten, Q.C., and Bardswell, for Barnett.
in the nature of a bill of review. THE MASTER OF THE ROLLS held that as the contract to take ! The petitioner was one of the infant children of Dame Harriet the shares was ultra vires, and had not been completed by regis- Sarah de Hoghton, and as such was under her will entitled to a tration of Barnett as the holder of the shares, the directors were share of her estate. entitled to rescind it; and consequently Barnett could not be
On the 21th of October, 1867, a bill was filed in the name of placed on the list of contributories in respect of them.
the infant children of Lady de Hoghton seeking to charge Solicitors : Hollams, Son, & Coward; Morley & Shirreff ; Reep,
Charles Fiddey, one of her executors, with having misapproLane, & Co.
priated some parts of her estate, but in December, 1867, an order was made to stay proceedings in the suit as not being for
the benefit of the infants, it appearing amongst other things that M. R. In re PENYSYFLOG IRON MINING COMPANY. July 11.
a summons had then been instituted for the administration of
the estate, and the usual decretal order made on the 18th of Company, Voluntary Winding-up-Summons to examine Officer
December, 1867. This decree was never prosecuted. of Company - Application by contributories- Companies Act,
butories --Companies Act, Charles Fiddey died on the 23rd of October, 1872, and the 1862 (25 & 26 Vict. c. 89), ss. 115, 138.
petition stated in effect that it was then for the first time disThis company was being wound up voluntarily. The majority covered that his co-executor had allowed him to get possession of the shares were said to be held by the late manager of the of the estate of Lady de Hoghton, and that he had misapprocompany and his nominees. Some of the shares held by the priated it and died insolvent. manager were registered as fully paid up, and certain of the The object of reviving the suit was to charge the co-execontributories were desirous of ascertaining how they came to cutor with the loss occasioned by Fiddey's default. be so registered, and also under what circumstances the com- Glasse, Q.C., and Ingle Joyce, for the petitioner. pany acquired certain property which had been sold to it. The Cotton, Q.C., and 1. Field, for the surviving executor of manager would give no information, and the contributories applied Lady de Hoghton, contended that if leave was required to file to the liquidator to take out a summons to examine the late such a bill, the petition ought to be accompanied by an affidavit manager, but he paid no attention to the application. The con- of some one concerned in the suit to the effect that the facts tributories therenpon took out a summons for that purpose; relied on were not known at the time the original bill was and this summons was adjourned into Court, and now came on filed. to be heard.
Torriano, for the executors of Fiddey. Cozens-Hardy, in support of the application, referred to the Glasse, in reply:- It is doubtful whether the petition is necesCompanies Act, 1862, ss. 115, 138.
sary. But the petitioner being an infant cannot be prejudiced THE MASTER OF THE ROLLS said that the applicants were by any previous neglect, and such an affidavit as suggested is cntitled to an order to examine the manager as to the shares quite unnecessary. held by him, and as to the sale to the company ; but it would | THE VICE-CHANCELLOR held that the rule as to requiring an not be right to make a general order for his examination, as the affidavit such as suggested did not apply where the petitioner applicants occupied «no official position, and consequently were I was an infant, and leave was given accordingly. not under the control of the Court.
Solicitors: Gregory, Rowcliffes, & Rawle; Field, Roscoe, & Co.; Solicitors: Sharp & Turner.
Pitman & Lane.
July 11. I produce the documents. The costs would be costs in the
Solicitors for the plaintiff: Ashurst, Morris, & Co.
Solicitors for the defendants: Wilkins, Blyth, & Marsland. On this suit, which was an ordinary administration suit, coining on for further consideration a question arose on the minutes as to how the costs were to be borne.
" V.-C. B.
July 9. In the events which had happened certain shares of the tes
In re BONELLI'S ELECTRIC TELEGRAPH COMPANY. tator's estate consisting of realty and personalty had lapsed, and
Cook's CLAIM. the realty, which had descended to the heir-at-law, had been Practice-Petition- Order for Service on Respondent out of Jurissold, and was now represented by a fund in Court.
diction. It was admitted that the undisposed of personalty was the Petition in the matter of the Trustee Relief Act, 10 & 11 Vict. primary fund for payment of costs, but it was insufficient, and c. 96, and of the claim of Henry Cook in the winding-up of the the question was, whether the lapsed shares of real estate should above company for advances to the company. be resorted to in priority to the general personal estate.
The petitioner moved the Court for leave to serve a copy of J. Pearson, Q.C, and Angelo Lewis, for the heir-at-law, con- the petition upon the respondent, Louis Copin, at Paris or elsetended that there was a difference between realty which de- where in France. Copin was the syndic or assignee in bankscended to the heir because the testator had never attempted to ruptcy of Cook. dispose of it, and that which deseended to him by lapse. In the În an affidavit filed on behalf of the petitioner, a clerk of the former case it was liable for costs, and not in the latter.
petitioner's solicitors stated his belief that an order for substituted Cotton, Q.C., and Caldecott, for the plaintiff, and
service on a solicitor whom he named in the city of London Glasse, Q.C., and Langworthy, for other parties interested, con- would come to the knowledge of the respondent. tended that that there was no such distinction.
Macnaghten, supported the motion : The power of the Court THE VICE-CHANCELLOR held that there was no distinction to order service of copy of a bill out of the jurisdiction is regulated between an intestacy by lapse and one by non-disposal of real by Order X., rule 7; but the order does not in terms extend to estate, but if there were any distinction, it was in principle | petitions. Some difficulty exists in consequence of a remark rather in favour of charging the costs in the former than in the attributed to the Master of the Rolls in In re Muugham (22 W.R. latter case.
748). Solicitors : Shum, Crossman, & Crossman; Parkers; S. J. THE VICE-CHANCELLOR said that the petitioner might take an Debenham.
order for substituted service, and also for service upon the
Solicitors: Parkin & Pagden.
PARKER v. MCKENNA.
July 11. of an award or apportionment of a sum of 50,0007, which had Practice- Evidence- Answer-Cross-examination- Order of the been paid by the Secretary of State in Council to the directors
5th of February, 1861, rule 19. of the East India Irrigation and Canal Company for the purchase In the course of the hearing of this cause, of their undertaking. The award was purported to bave been Davey (Fry, Q.C., and Hawkins, Q.C., with him), for Harvey made by four persons, named Repton, Wood, Daniell, and Peters, Lewis, one of the defendants, proposed to read his answers as and amongst the questions were; 1, whether the award was evidence on his behalf. invalid by reason of one of the four members of the committee G. Hastings (Kay, Q.C., Sir II, James, Q.C., Lindley, Q.C., and not having concurred in it; and, 2, whether the plaintiff, Colonel Armstrong, with him), for the plaintiff, objected to the answers Smith, was properly speaking an officer of the company.
being read, on the ground that the plaintiff's solicitors had reThe plaintiff having been called upon to make an affidavit as
ceived notice that the defendant would not be tendered for crossto documents, omitted to state, and afterwards objected on the examination, and a medical certificate was read in Court to the ground of privilege to produce, 1, certain cases and opinions of effect that the defendant was unable to attend and be crosscounsel, which from letters written by the plaintiff to the defen- examined. He referred to rule 19 of the Order as to Evidence dant Peters appeared to have been prepared and taken by the of the 5th of February, 1861, Morgan, 4th Ed., p. 626, and to plaintiff, “on the subject of three members of the committee a decision of Vice-Chancellor Malins in Parker v. Lewis (Weekly forming a legal award," and "on various points connected with " Notes, 1873, p. 27), following Bingley v. Marshall (6 L. T. (N.S.) the plaintiff's case, and which were also referred to in a letter, 682).' from Peters to the plaintiff; and, 2, a case or statement referred Davey, in reply. to in a letter written by the plaintiff to Peters as having been Glasse, Q.C., Sir J. B. Karslake, Q.C., II. Fox Bristowe, Q.C., submitted to the late Lord Westbury, and Lord Westbury's Everitt, North, and Tahourdin, for other defendants. opinion thereon. It appeared that Lord Westbury was con- THE VICE-CHANCELLOR said that about reading the answer sulted in the matter as a friend.
there was no difficulty. The question was, as to reading it as This was a summons on behalf of the defendant Westwood, the evidence. The role which had been referred to was plain and dissecretary of the company (the members of which were defen- tinct in its terms, and the cases in which it had been dispensed dants), that notwithstanding such objection the plaintiff might with were cases of pecessity, such as the death or incapacity of a be ordered to produce these documents.
witness. No such necessity existed in this instance. The defenJackson, Q.O., and Millar, for the summons.
dant with the assistance of counsel had put in a long pleading, Eldis,Q.C., and Speed, contrà.
a small part of which consisted of statements of fact. Of that THE VICE-CHANCELLOR observed that tho plaintiff did not say part which consisted of pleading, argument, and explanation, that these documents were confidential communications, but the defendant would have the full benefit. But inasmuch as claimed to have them privileged from production, “on the he did not submit to cross-examination, that which he had around that they were written in anticipation of, and in re- stated as matter of fact would not be received in evidence. His ference to," the litigation. Their materiality to the subject. Honour considered himself guided, if not bound, by the decision matter of the suit could not therefore be doubted; and was in Parker v. Lewis, and as nothing short of absolute necessity justiotherwise sufficiently apparent. The plaintiff, therefore, must fied a relaxation of the rule-which necessity did not here exist,
the Court must refuse to receive as evidence the statements of liberty to change their solicitor by appointing Mr. Emerson in fact made in the answer.
place of Mr. Warner Wright, and that Messrs. Whites, Renard, & Solicitors: Tatham & Son ; Murray, Hutchins, & Co; Tatham, Co., be appointed agents for the petitioners in place of Mr. Curling, & Pym; C. & R. J. Tahourdin,
Dickinson, 2.C., and Cozens-Hardy, now moved to discharge
the order which had been obtained at the Rolls on the ground V.-C. H.
Tolos that where there was a joint retainer it was not competent HOOPER v. SMART, BAILEY v. PIPER. July 6.
for one or two of the plaintiffs or petitioners to change their Vendor and Purchaser— Agreement to sell Entirety, Bad Title
solicitor and so compel the persons associated with them to to a Moiety of Property-Specific Performance- Vendors entitled
forego the benefit of the litigation. to One-half of Purchase-money.
Langworthy submitted that the objection was premature ; it Motion for decree.
might be of some weight where the question was who was to By an agreement made in October, 1872, the defendants, R. F. have the carriage of the petition, but that case did not arise here. & C. A. Piper (in the suit Bailey v. Piper), agreed to sell the THE VICE-CHANCELLOR said when parties agreed to act towhole of the fee simple in possession free from incumbrances of gether they could not be allowed to bring matters to & dead the freehold property in the bill mentioned for the sum of 60001. lock by separating. The order must be discharged, with costs. to the plaintiff Bailey. The vendors were to make out a good Solicitors: G. Cheesman; Whites, Renard, & Co. marketable title. The plaintiff paid 4001., and the residue of the purchase-money (less a sum of 1051. as commission to the parties who negotiated the sale) was to be paid on completion of the purchase. The plaintiff Bailey entered into possession, and laid out the property for building purposes.
Questions arose in reference to the title, and in consequence of the great delay on the part of the defendants Piper in completing, the plaintiff Bailey filed his bill for specific performance. The defendants Piper having become bankrupt, there was a P. & M.
July 7. supplemental order making their trustees in bankruptcy defen
IN THE GOODS OF SARAH SAYER EUSTACE. dants.
| Married Woman's Will-Made under a Power given to her by her In January, 1874, a decree in Bailey v. Piper was made, declar Settlement-A subsequent Will referring to such Power and coning that the agreement ought to be specifically performed and taining general revocatory Words-Revocation. carried into execution in case a good title could be made to the By a marriage settlement the property of Mrs. Eustace, conpremises. Certain inquiries were directed in reference to the sisting of a freehold house, certain moneys, and household furtitle and the chief clerk certified that a good title could not be niture, was vested in trustees, in trust as to the two former for made to the entirety, and that the title to an undivided moiety of Mr. Eustace for life, and then in case Mrs. Eustace died in her the property was the subject matter of a suit, Hooper v. Smart.” husband's lifetime for such persons as she should by will appoint.
In the cause of Hooper v. Smart which, by order of the Court, The household effects were settled upon her for her separate came on to be heard immediately before the cause of Bailey v. use. By a will dated the 24th of October, 1859, after referring Piper, the Vice-Chancellor decided that the plaintiff Martha to the power given to her by her settlement, she devised the Hooper was entitled to a moiety of the property.
whole of her property, real and personal, to her husband. By Bayshmw, Q.C., and Wiglesworth, for the plaintiff Hooper.
another will, dated the 22nd of June, 1863, she again referred to Chitty, Q.C., and Lemon, and Alfred Bailey, for the defendants the power given to her by ber marriage settlement, and then Brand and Slaters.
devised the freehold house to her cousin Richard Eales, and Macnaghten, and Northmore Lawrence, for the defendants- the gave the moneys in trust to certain persons for the payment of trustees in bankrupty of the Pipers.
legacies. The household furniture and effects were not disDickinson, Q.C., and Horton Smith, for the plaintiff Bailey. posed of by this will. Executors were appointed, and the will
THE VICE-CHANCELLOR, after referring to Barnes v. Wood concluded, “I revoke all former wills by me heretofore made." (Law Rep. 8 Eq. 421), and Castle v. Wilkinson (Law Rep. 5 Ch. Inderwick, Q.C., moved the Court to order probate to issue of 534) made a decree for specific performance by the trustees in both these documents as together containing the will of the bankruptcy of the defendants the Pipers, as to a moiety of the deceased. General revocatory words in a will will not revoke a estate, and held that the trustees of the Pipers were entitled to previous will made under a power unless the later one shews only one-half of the purchase-money; and said that no injustice clearly an intention to do so. In this case as the second will would be done to the vendors as they had got the full price of does not dispose of the whole property subject to the settlement, their interest in the property-probably more than they would the two instruments ought to be admitted to probate. He rehave got if they had sold an undivided moiety of it.
ferred to Hughes v. Turner (4 Hagg. Eccl. 30); In the Goods of Solicitors: Ridsdale, Craddock, & Ridsdale; Aldridge & Thorn ; | Meredith (29 L. J. (P. M. & A. 155); In the Goods of Merritt Ravenscroft & Hills; E. F. & B. Davis; F. W. Denny; J. T. N. |(1 Sw. & Tr. 112); In the Goods of Joys (30 L. J. (P. M. & A.). Burnand.
169); Jarman on Wills, 3rd Ed., 159.
SIR J. HANNEN held that as in the last will there was a direct V.-C. H.
July 11. reference to the power under the marriage settlement, the inferIn re NORWICH AND NORFOLK PROVIDENT PERMANENT BUILDING Sence to be drawn from it was that the testatrix intended the SOCIETY.
language of the whole instrument of 1863, including the revocaJoint Retainer by three, change of Solicilor by two, Petitioners- tary clause, to be applicable to the will of 1859 made under the Order at Rolls.
power recited. He decreed probate of the will of 1863 alone. Shortly before the 3rd of July, John Miller, T. W. Burrows, Proctors: Toller & Son. and Joseph Restieaux presented a petition to wind up the above company. The solicitor on the record acting for the three petitioners was Mr. Warner Wright of Norwich, whose agent
ERRATUM. was G. Cheesman of No. 1 Serjeants' Inn, Chancery Lane. On the 3rd of July, the Vice-Chancellor made the usual order to
DRINKWATER, PET.; DEAKIN, RESP., ante, p. 163. wind-up. On the 6th of July, 1864, Messrs. Miller and Restieaux Attorneys for respondents :-for Phelps & Goddard, read Percock presented their petition at the Rolls, on which they obtained