Jan. 20. FITZGERALD V. FITZGERALD. Dissolution of Marriage-Decree Nisi-Variation-23 & 24 Vict. c. 144, s. 7-29 Vict. c. 32, s. 3. tons until compelled by legal proceedings to do so. Upon this | P. & M. THE COURT, upon the authority of Withers v. Reynolds (2 B. & Ad. 882) and Jonassohee v. Young (4 B. & S. 296; 32 L. J. (Q.B.) 385), held that the plaintiffs' refusal to pay for the first 125 tons was not such an absolute refusal to perform the contract on their part as to warrant the defendant in treating the contract as rescinded, and that the plaintiffs might maintain an action for the non-delivery of the second parcel. Attorneys for plaintiffs: Payne & Nelson. C. P. MAUDE AND OTHERS, PETS.; LOWLEY, RESP. Jan. 23. A rule nisi had been obtained to rescind or vary such order so far as it ordered particulars stating by whom, when, and where the bribery and treating, the employment of canvassers, and the payment of money for conveyance of voters to the poll had been effected. A. Charles shewed cause. Field, Q.C., and Lockwood, supported the rule. THE COURT allowed the order, subject to the addition of the words "so far as known" to the part of the order objected to. Rule absolute accordingly. Ex. Attorneys for petitioners: Paterson, Snow, & Burney. MARTIN v. SMITH. In the year 1861, Mrs. Fitzgerald petitioned the Court for Divorce for a dissolution of her marriage by reason of her husband's adultery and cruelty. In Michaelmas Term, 1863, a jury found a verdict in the husband's favour on both the issues of adultery and cruelty, and after an application for a new trial to the Judge Ordinary and also to the full Court had been rejected, the petition was dismissed. In 1867, she presented a second petition for dissolution of marriage by reason of her husband's adultery and desertion, and the respondent appeared to the citation, but filed no answer. The Judge Ordinary determined that the adultery was proved but not the desertion, and offered to decree a judicial separation, which was declined. A re-hearing was afterwards obtained, and the Court requested the Queen's Procter to intervene in the suit, which he did. The Judge Ordinary comfirmed his first decision. On the 19th of October, 1872, the petitioner presented a third petition praying for a dissolution by reason of her husband's adultery and desertion. He appeared, but did not file an answer, and notice of the suit having been given to the Queen's Proctor he again intervened. On the 13th of December, 1873, this petition was heard before the present Judge Ordinary, and he found that both the adultery and desertion were proved, and he made a decree nisi to dissolve the marriage, to be made absolute in the usual form at the expiration of six months. Dr. Swabey moved the Court to vary this order by altering the word six to three, so that Mrs. Fitzgerald might apply for a decree absolute at the end of three months. Ho referred to Watton v. Watton and Oastler (Law Rep. 1 P. & M. 227). Dr. Spinks, Q.C., appeared for the Queen's Proctor. THE JUDGE ORDINARY held that he had power to shorten the period within which to make the decree absolute, so that the time he fixed was not less that three months, and that he could also vary a decree already made. In the present case the whole matter had been so fully sifted under the care of the Queen's Proctor, that no harm would arise from reducing the time for the decree absolute to the expiration of three months, and he was prepared to vary his previous order to that extent. Attorneys for petitioner: Humphreys & Morgan. Jan. 27. | Will-Renunciation of Executor-Retractation-20 & 21 Vict. c. 77, s. 79. Landlord and Tenant-Tenancy under Void Demise. Declaration: That by an agreement of the 15th of February, 1866, the plaintiff agreed to let to the defendant, and the defendant agreed to take from the plaintiff, a house and premises for a term of seven years from Lady Day, 1866, on the terms (amongst others) that the defendant would in the last year of the term paint with two coats, and grain, and twice varnish the interior, and also whitewash and colour; that the defendant pursuant to the agreement entered upon the house and pre-estate. As the estate was insolvent, it was determined that mises, and occupied the same as tenant from year to year, subject to the aforesaid terms, or such of them as were applicable to the said tenancy, during the whole period of seven years, which expired before action, but did not paint, grain, varnish, colour, or whitewash as aforesaid. Demurrer and joinder. E. Harrison, for the defendant. THE COURT (Kelly, C.B., Pigott, and Cleasby, BB.) held that although the agreement was void as a lease, it was valid as an agreement; that by entering under it the defendant must be taken to have agreed that if he should continue in occupation during the whole period he would perform what was by the agreement to be performed in the last year, and that having so continued during the whole period he was liable for its non-performance. Judgment for plaintiff. Attorneys for plaintiff: Harper, Broad, & Battcock. Robert Morant, of New Bond Street, Middlesex, made a will, dated the 16th of April, 1868, in which he nominated his wife, Malcolm Stodart, and Frank Cox, executors, residuary legatees in trust, and also guardians of his children the residuary legatee substituted. He also appointed his wife residuary legatee for life and certain persons residuary legatees substituted, contingently upon none of his issue attaining a vested interest in his residuary Mr. Forster, a creditor, should take administration with the will annexed, and the executors renounced probate and also as residuary legatees in trust, and as guardians of the minor children, administration with the will annexed. Mrs. Morant also, renounced as residuary legatee for life. The papers to lead a grant to Mr. Foster, as also the renunciation, were taken into the registry, but on its being suggested that before a grant could issue to Mr. Forster, the renunciations of the residuary legatees substituted contingently must also be obtained, the papers were withdrawn, and Mrs. Morant applied for probate as one of the executors. This was refused, on the ground that as she had executed a renunciation she had forfeited her right to take probate. C. A. Middleton moved for probate to be granted to her. A renunciation is not effective until it has been entered and recorded in the proper office (Williams's Executors, 5th ed. p. 247). SIR J. HANNEN granted the motion. Proctors: Shephard & Skipwith. V.-C. H. 28 M. R. 27 CATOR. DREW (Settlement-Fund to be applied in purchasing PAGE C. P. 31 OULTON v. RADCLIFFE (Court of Pleas at Lancaster-Jurisdiction of the Court-Service of Writ out of the District). C. P. 32 PHILLIPS v. MILLER AND OTHERS (Vendor and Purchaser-Sale of Real Property-Incumbrances-Terms of existing Tenan cies, Notice of) RAEBURN . ANDREWS (Practice-Security for Costs-Plaintiff resident in Scotland-31 & 32 Vict. c. 54). Q. B. 29 REG. v. SUTTON COALFIELD (Quarter Sessions, Appeal from-Case reserved on a Preliminary Point) Q. B. 29 SEABLE. LAVERICK (Bailee for Hire-Livery-stable Keeper, Liability of, for Care of Carriage of Customer-Fall of Coachhouse) . Q. B. 29 SNEESBY V. LANCASHIRE AND YORKSHIRE RAILWAY COMPANY (Railway Company-Negligence-Consequential Damage) Q. B. 30 SWIFT v. WINTERKOTHAM (P.O.) and Goddard (False Representation-Signature of Party to be charged-9 Geo. 4, c. 14, s. 6 -Signature by Agent of Company formed under 7 Geo. 4, c. 46 -Principal and Agent-Action against Joint Tortfeasors) Ex. Ch. from Q. B. 30 WELLER v. LONDON, BRIGHTON, AND SOUTH COAST RAILWAY COMPANY (Railway Company-Negligence at Station-Contributory Negligence-Invitation to alight) . C. P. 30 During the sittings of the Courts THE WEEKLY NOTES will be published on Saturday, and will generally comprise Notes of the Decisions up to and including those of the previous Wednesday. All cases of permanent interest noted herein will be reported in full in THE LAW REPORTS. Q. B. 29 L. C. & L. JJ. BOON, APP.; HOWARD, RESP. (Vote for Parliament-Borough Voter . KELLOCK V. ENTHOVEN (Companies Act, 1862 (25 & 26 Vict. c. 89) Equity. OCCLESTON v. FULLALOVE. Jan. 26. Will-Gift to unborn illegitimate Children-Child en ventre sa mère -Marriage with Deceased Wife's Sister. This was an appeal from a decision of Vice-Chancellor Wickens (Weekly Notes, 1873, p. 137). James Occleston, who died in December, 1870, by will, made in July, 1868, after providing for the payment of his debts, gave his real estate and the residue of his personal estate to trustees upon trust to convert and invest and to pay the income to his sister-in-law, Margaret Lewis, for life, and after his decease to stand possessed of one half part of his real and personal estates and the income thereof upon trust for his reputed children, Catherine Occleston, born in October, 1863, and Edith Occleston, born in January, 1866, and all other children which he might have or be reputed to have by Margaret Lewis, then born or thereafter to be born, to be equally divided amongst them as tenants in common, and if but one such child, then the whole for such child absolutely. The testator gave the other half of his property to the plaintiffs, who were his legitimate sons. The testator had gone through the form of marriage with Margaret Lewis, his deceased wife's sister, at Neufchâtel. At the date of his will Margaret Lewis was enceinte by the testator. She gave birth to a daughter on the 6th of January, 1869, and died soon afterwards, leaving three children, the said Catherine and Edith Occleston, and the infant who was named Margaret. The testator was present at the baptism of Margalet, and always acknowledged her as his child. The question was raised in a suit for administration of the testator's estate, whether Margaret was entitled to a share under his will. The Vice-Chancellor decided that she was not entitled, and she appealed from this decision. Karslake, Q.C., and W. W. Karslake, for the appellant. THE LORD CHANCELLOR said that he was unable to concur in a reversal of the decision of the Vice-Chancellor. If the testator had expressly referred to the child with which Margaret Lewis was then pregnant, the child might have taken; but as he had not done so the child must take, if at all, under the general gift to the children which he might have or be reputed to have by Margaret Lewis, then born or thereafter to be born. He did not think that an illegitimate child en ventre sa mère could be considered to be in esse so as to come within the expression "now born," nor did he think that she could be considered to have obtained the reputation of being a child of the testator at the date of the will. The question therefore was whether a general gift to the future reputed children of a testator was good, and his opinion was that on that question the present state of authority was adverse to the appellant. His Lordship then considered at some length the various authorities on the subject, particularly Pratt v. Mathew (22 Beav. 328); Medworth v. Pope (27 Beav. 71); Howarth v. Mills (Law Rep. 2 Eq. 389); Holt v. Sindry (Law Rep. 7 Eq. 170); and Hill v. Crook (Law Rep. 6 H. L. 265), and said that he must hold that in the present case the gift to the general class of after-born reputed children of the testator could not be supported. Therefore, holding as he did that the appellant had not at the date of the will acquired the necessary reputation, he was unable to concur in a reversal of the ViceChancellor's decree; but as both the Lords Justices were of a contrary opinion, the judgment of the Court below would be re versed. THE LORD JUSTICE JAMES said that if the child had been en vntre sa mère at the time of the death of the testator there would have been great difficulty in attributing reputation of paternity to the testator, but in this case there was no such difficulty; because the child had been born in the testator's lifetime and acknowledged by him. The child was, therefore, entitled to take under the clear grammatical construction of the will, unless there was some rule of law based upon morality or public policy against it. In his opinion there was no such rule. On the contrary it seemed to him a shocking and perverse thing to say that religion, morality, or public policy compelled the law to throw difficulties in the way of a man who was desirous of not committing posthumously a great crime, and who was desirous of making the best reparation he could to society and the unfortunate beings of whose existence he was the author. In the case of a covenant for a turpis causa the covenant was void. If there was an illicit condition to a gift, it was either void itself or rendered the gift void. If the gift required the continuation of wrongdoing, that was in substance a condition annexed to the gift, and fell within the rule as to conditions. But how could that apply to an instrument like a will with reference to gifts taking effect at the testator's death in favour of persons then in existence? It could be no inducement to himself or to the partner of his sin to continue a life of immorality. This view was, in his opinion, consistent with the authorities. His Lordship then examined the cases referred to by the Lord Chancellor and said that he was of opinion on the whole case that the testator's intention was clear, and that there was no principle of public policy to prevent that intention being effected, and that there was no authority to prevent his giving a decision in accordance with what he felt to be the truth, the morality, and the justice of the case, in favour of the appellant's right to share with her sisters in the bequest in question. THE LORD JUSTICE MELLISH Concurred with Lord Justice There was a plain and manifest distinction between a settlement made by a man at the commencement of his illicit intercourse with a particular woman on his expected illegitimate children, and the case of a will by a testator to his own future reputed illegitimate children. In the present case, the will being the will of the putative father himself, it was impossible that it could encourage an immoral intercourse after his death. If the bequest was to be held to be contrary to public policy, it must be because it tended to promote an immoral intercourse in his lifetime. There was no evidence that Margaret Lewis knew that the will was made; or, if she did know it, she must have known that it could be revoked at any moment. Could it be said that the testator himself would be encouraged in immorality by having the power to make a will in favour of his future reputed children? His Lordship could not see that the testator would be so encouraged; at any rate, this was too uncertain to be made a ground of decision. The present will was so worded that future illegitimate children were undoubtedly included in it, and were sufficiently described without making it necessary to prove that they were begotten by any particular man; and, as the only children who could take were children who must have been born, or at any rate begotten, during the lifetime of the testator, he was of opinion that it did not infringe against any rule of public policy, and, therefore, that the appellant was entitled to succeed. Solicitors: J. Warburton; G. Brown; Chester, Urquhart, & Co. This was a special case. 1000%. was settled upon trust to invest the same as therein menBy a settlement, dated the 9th of January, 1852, a sum of tioned and to pay the income to the defendant Major Drew until an opportunity should occur of applying the trust moneys so invested for or towards the promotion of the defendant in the army, and then to sell, and pay, and apply the proceeds for or should happen to die before such promotion should take place, towards such promotion accordingly; but if the defendant leaving Charlotte Drew his wife him surviving, then upon trust for her absolutely, but if she should be then dead, then upon trust for John Cator (the father of Charlotte Drew) absolutely. The case stated that by reason of the abolition of purchase in the defendant, had become impossible; and the question was the army the application of the fund towards the promotion of whether the defendant was under the circumstances absolutely entitled to the fund. Fry, Q.C., and Davey, for the plaintiffs, the trustees of the settlement. Southgate, Q.C., and Marten, for the defendant. THE MASTER OF THE ROLLS held that upon the construction of the deed the defendant was to become entitled to the fund only in one particular event, viz., if an opportunity should occur of applying the proceeds towards his promotion in the army, and answered the question in the negative. Solicitors: Radcliffe, Davies, & Cator; Vallance & Vallance. M. R. Jan. 26. In re TAHITI COTTON COMPANY. Ex parte SARGent. Company-Blank Transfer-Transfer by Instrument in Writing -Registration-Companies Act, 1862, s. 35. This was an application by Mr. Sargent under s. 35 of the Companies Act, 1862, that his name might be placed on the register of shareholders of the above-named company in respect of seventy-five shares. The shares in question belonged to Mr. Fry, the chairman of the company. In 1870 Fry borrowed 4507. of one Cannon, and deposited with him (amongst other securi ties) the certificates of these shares and transfers thereof having Fry, Q.C., and Stock, for Sargent. Southgate, Q.C., and Cracknall, for the company. Sir R. Baggallay, Q.C., and Shebbeare, for Fry. THE MASTER OF THE ROLLS held that the transfers, though originally executed in blank, had been filled up with Fry's authority, and (although not valid as deeds) were valid "instruments in writing" within the meaning of the articles of association; that Sargent had a legal title to have the transfers registered; that Sargent's name must be placed on the register accordingly; and that the company, who had sided in the matter with Fry, must pay the costs of the application, there being no jurisdiction under the Companies Act to order Fry to pay them. Solicitors: W. Foster; Hancock, Sharp, & Hales; Byfield. M. R. Jan. 31. BROWN v. RYE. Dizon, for the plaintiff. Oswald, for defendant, submitted that the plaintiff was entitled only to such costs as he would have obtained in the county court. Badnall, for other defendants. THE MASTER OF THE ROLLS said that the Legislature had created a concurrent jurisdiction in the county courts, but had placed no restriction on the jurisdiction of this Court similar to that which it had placed on the jurisdiction of the courts of law, and held that the plaintiff was entitled to his ordinary costs. Solicitors: G. Brown; Crook & Smith. M. R. who was born on the 25th of March, 1860; and two other sons who died in infancy. It appeared that the birth of William Harry Perkins was registered by Richard Perkins on the 26th of April, 1860, and that in such registration the child was described as the son of Richard Perkins and Mary Perkins late Goodwin. Part of Mary Goodwin's estate having been paid into Court under the Trustee Relief Act, a petition was now presented by John Goodwin Perkins paying that the fund might be paid out on the joint receipt of himself and Richard Perkins. W. B. Heath, for the petitioner. W. W. Karslake, Langley, and W. Pearson, for respondents. THE MASTER OF THE ROLLS said that the principle of the recent decision in Occleston v. Fullalove (ante, p. 25), was that a gift by a testator or testatrix to one of his or her children by a particular person was good if the child had acquired the reputation of being such before the death of the testator or testatrix; and the petitioner was therefore only entitled to payment out of half the fund. Solicitors: Hawks, Willmott, & Stokes; Mander, agent for Miles, Gregory, & Co., Leicester. V.-C. B. PARKER V. TRIGG. Jan. 27. Partition Act (31 & 32 Vict. c. 40)-Sale-Inquiry as to permanent Improvements. Upon the marriage of each of two sisters, tenants in common in equal shares of a freehold estate, each moiety was similarly settled to the separate use of the wife, without anticipation, during coverture, remainder to the survivor of husband and wife for life, or until bankruptcy of the former, remainder to the children absolutely, subject to a power of joint appointment amongst the children; and if there should be no child who should attain 21, or who dying under 21 should leave issue, then as the wife should, notwithstanding coverture, by will appoint, and in default to the other sister absolutely. One of the ladies, Mrs. Trigg, had a family, the other, Mrs. Parker (now 56), had no child. The bill was filed by Mrs. Parker by her next friend against Mr. Trigg (since deceased), Mrs. Trigg, and their children, the trustees of the two settlements, and Mr. Parker, praying for a sale, and that after providing for the costs of the suit, and for the reimbursement, if any, to which the defendant Mr. Parker might be entitled under the circumstances stated in the bill, one moiety of the proceeds might be paid to the trustees of Mrs. Trigg's settlement, and the other to the trustees of Mrs. Parker's; or if the Court should not think fit to direct a sale, for a partition, and that a moiety of the estate might, subject to the right, "if any, of the defendant Parker, to be reimbursed as aforesaid, be conveyed to the trustees of Mrs. Trigg's settlement, and the other moiety to the trustees of Mrs. Parker's. Jan. 31. In re GOODWIN'S TRUSTS. Win-Construction-Gift to Illegitimate Children-Child born after Date of Will. In December, 1849, Richard Perkins went through the ceremony of marriage with Mary Goodwin, his deceased wife's sister. On the 15th of July, 1850, Mary Goodwin made her will, by which she bequeathed her residuary personal estate upon trust for Richard Perkins during his life, and after his decease upon trust to pay and divide the trust premises unto and equally between and amongst all and every her children and child by the said Richard Perkins, share and share alike, to be vested interests in sons at 21, and in daughters at that age or on marriage. Mary Goodwin died on the 1st of May, 1860. She had issue four children, viz., John Goodwin Perkins, the petitioner, who was born on the 15th of June, 1850; William Harry Perkins, From the evidence it appeared that Mr. Trigg and Mr. Parker had each laid out money in building, the former a small cottage residence for himself, and the latter a dwelling-house, at the cost of some 20007. Nalder (Kay, Q.C., with him), for the plaintiff, asked for a sale, and for an inquiry as to the sums expended by Mr. Parker, in the terms directed in Swan v. Swan (8 Price, 518). Jackson, Q.C., and W. Pearson, for the defendants, the Triggs, said that they could not resist a partition, but were opposed to a compulsory sale. As to the inquiry, it was argued that Mr. Parker was not entitled to any compensation, having occupied the dwelling-house rent free for many years, and thus having got full value for his outlay. Owen, for the trustees of the settlements, and Mr. Parker. THE VICE-CHANCELLOR said he thought it highly unjust that a sale should take place, and the value of the improvements at the dwelling-house be thrown into the trust estate. He did not think that Mr. Parker's occupation mattered, as he had been in BECKETT v. BUCKLEY. Jan. 27 possession with the consent of Mr. and Mrs. Trigg. There | V.-C. H. would, therefore, be an inquiry (not as in Seton, at p. 584, but) Mortgage-Judgment registered-Elegit, registered, Non-execution how far the actual value of the estate had been increased by the of Bill by Judgment Creditor for Redemption and Foreclosure. permanent expenditure thereon made either by Mr. Parker or Mr. Trigg. As to the question of sale or partition His Honour could not doubt that Mrs. Parker, although if she did not appoint by will her share would go over to her sister, was the owner to the extent of one moiety of the estate, within the meaning of the 4th section of the Partition Act; and the Court having power, unless it should see "good reason to the contrary," to direct a sale, his Honour should decree & sale of the entirety. There would be an account of rents, not disturbing any settled accounts, and an account of timber cut; and either party would have liberty to bid at the sale. Solicitors: Collyer-Bristow, Withers, & Russell, for Jackson & Birks, Hall; Sharp & Ullithorne, for J. M. Jennings, Driffield. V.-C. B. DREW v. DREW. Jan. 30. Will-Construction-Meaning of the Words " then living." Mosely Gillman, who died in January, 1832, by his will dated the 22nd December, 1825, bequeathed to his niece Ann Gillman the interest of 1000/. for life, and if she should marry and have lawful issue he gave the said sum to such of her children as should be living "at the time of her decease;" but in default of issue (which happened) he gave the said sum of 1000l. to his niece Susannah Odell for her own use and benefit. He continued, "but if my said niece Susannah Odell should depart this life before the decease of my said niece Ann Gillman, then I give the said sum to such of her child or children as shall be then living (if more than one), share and share alike, for his, her, or their own uses." The defendant, William Bott, was entitled in fee to premises subject to mortgages and charges in favour of the three other defendants, the legal estate being vested in Thomas Buckley, the first of such defendants, who had the title deeds. In January, 1872, the plaintiff obtained judgment in an action against the defendant William Bott for the recovery of a sum due, and the same was subsequently registered in the Common Pleas. The plaintiff caused a writ of elegit to be issued out against the goods and hereditaments of the defendant William Bott, but in consequence of the existence of the mortgages, charges, and incumbrances above mentioned, and the title deeds being in the hands of the defendant, Thomas Buckley, the plaintiff was impeded in procuring the sheriff to proceed with the further execution of the writ of elegit, and could not procure the hereditaments to be delivered in execution to him. The writ of elegit had been registered under the 23 & 24 Vict. c. 38, and 27 & 28 Vict. c. 112. There was due to the plaintiff in respect of his judgment the sum of 64/. 18s. 2d. with interest and costs, and as the defendants, the mortgagees, threatened to sell the hereditaments, and to pay over the balance, if any, after paying the sums due on the mortgages to the defendant, William Bott, this bill was filed by the plaintiff for accounts of what was due to the mortgagees, and that he, upon paying what might be found due, might be let in to redeem, and have the hereditaments conveyed to him; for an account of what was due to himself by virtue of his judgment, and that in default of payment to him of the sum found due, and the sums paid to the mortgagees, the defendant William Bott might be foreclosed; and for an injunction and consequential relief. Lindley, Q.C., and Blackmore, for the plaintiff. Simmonds, for defendant William Bott. Ann Gillman and Susannah, the wife of William Odell, both survived the testator. At his death the Odells had two children, J. W. Chitty, and Sturges, for the defendants, the mortgagees. Caroline and Mary Ann, living. William Odell died, and Mrs. THE VICE-CHANCELLOR, after stating that it would be a stretch Odell married William Lockett, by whom she had three children, of the language of the statute 27 & 28 Vict. c. 112, s. 4, to hold two of whom died in infancy. Caroline Odell the daughter died, that such a bill could not be maintained, said that he was of then Mrs. Lockett (formerly Susannah Odell) died; Mary Ann opinion that the bill had been properly framed according to the Odell married Robert Drew, by whom she had children; Clara practice of the Court, and that it would be contrary to reason and Rosanna Lockett the third child of the Locketts, married Ben-justice to compel a suitor in such a case to file two bills: jamin Acres, and died, leaving him her sole next of kin; and viz., first to file a bill for redemption, and then to proceed by lastly Ann Bangs (formerly Gillman) died on the 1st of March, bill for foreclosure, made the ordinary decree for redemption 1873, without ever having had a child. and foreclosure. The bill was filed by Mrs. Drew, her children, and the trustee of her settlement, against Mr. Drew, Mr. Lockett, Mr. Acres, the trustee of the will, and some incumbrancers under Mrs. Drew's settlement, for a declaration that the sums representing the legacy of 1000l. became on the death of Mrs. Bangs payable to the trustees of Mrs. Drew's settlement, subject to the mortgage. Little, Q.C., and Ellis, for the plaintiffs:-The words "then living" mean living at the death of Ann Gillman; consequently Mr. Lockett and Mr. Acres, who claim, or one of whom claims, in right of Mrs. Lockett, who died in the lifetime of Ann Gillinan (afterwards Bangs), are excluded. Warmington, for the defendant Robert Drew. THE VICE-CHANCELLOR, without calling upon counsel for the defendants, said he had no doubt upon the construction that by the words "then living" was meant living at the death of Susannah Odell; hence that the child living at her death, namely Clara, afterwards Mrs. Acres, took a vested interest in a moiety of the estate, liable to be divested in the event of Ann Gillman leaving children, which did not happen, and which interest, consequently, was not defeated by her death in the lifetime of Ann Gillman. There would be a declaration accordingly. Solicitors: Charles Armstrong; Wedlake & Letts; Davies, Campb.ll, Reeves, & Hooper; G. T. Wingate. Solicitors: A. D. Bird, agent for H. C. Lisle, and for Bellyse & Son, Nantwich; R. Jones & Co., agents for T. L. Brough, Stafford. Suit by Infant Plaintiffs against Trustees for Breaches of TrustAffidavit sworn by Defendants Abroad, but not before Consul, allowed to be filed-15 & 16 Vict. c. 86, s. 22. This was a suit by a mother and her infant children, for the purpose of making trustees, one of whom was residing in this country, and the other, a married lady, residing with her husband for a long time past at Wiesbaden, responsible for alleged breaches of trust. The defendant, the husband, was suffering from serious illness. There was no British consul or consular agent nearer to Wiesbaden than Frankfort. The husband and wife had made a joint affidavit, not sworn before or witnessed by a British consul or consular agent, but sworn before the Burgermeister of Wiesbaden, and his seal was attached to the document. Yate Lee, for the defendants, asked, with the consent of the adult plaintiff, that the affidavit might, under the circumstances, be filed. He referred to Lyle v. Ellwood (Law Rep. 15 Eq. 67). THE VICE-CHANCELLOR acceded to the application. Solicitor: G. J. Brownlow. |