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that Court. A meeting of the separate creditors of Moore was from the garnishees to the judgment debtors, the garnishees also held on the 19th of September, when it was resolved to sought to retain the amount of a debt owing from the judgment accept & composition, and this was afterwards confirmed. No creditor to them. meeting was held of Rowbotham's separate creditors until the C. W. Wood, Q.C., for the garnishees. 29th of October, when it was resolved to accept a composition, McIntyre, Q.C., for the judgment creditor. and that a deed should be executed assigning all the separate THE COURT (Lush and Quain, JJ.) held that the garnishees estate to Lowry as trustee to secure the payment of the com- were not entitled to retain the debt owing to them from the judgposition. These resolutions were afterwards confirmed. Philps ment creditor. The garnishee under the Common Law Proce. as trustee of the joint estate opposed their registration, but the dure Act, 1854, ss. 61, 63, was entitled to retain any debt owing registrar held that, as he did not represent any separate creditor from the judgment debtor, but he was bound to pay under of Rowbotham, he had no locus standi, and directed the resolu pain of an order for execution, the balance due from the debtor, tions to be registered. Philps appealed.
without any reference to anything being due to the garnisbee De Gex, Q.C., and Bagley, for the trustee.
from the creditor. Robson, and Finlay Knight, for the debtor.
Attorney for garnishees: Crombie. THE CHIEF JUDGE held that on the appointment of the trustee
Attorneys for creditor: Purkis & Perry. of the joint estate the separate estate also vested in him, and that the resolutions passed by Rowbotham's separate creditors were invalid so far as they purported to appoint a trustee and assign the separate estate to him. The trustee of the joint estate had | O. B.
Dec. 10. therefore a right to be heard on the question of the registration of
CURTIS AND OTHERS v. WILLIAMSON AND OTHERS. the resolutions of the separate creditors. The order of the registrar must be discharged. The trustee appointed by the
Principal and Agent-Proof by Creditor upon Estate of Insolvent joint creditors would have to administer the separate estate, and Agent—Election to treat undisclosed Principal when discovered as then to carry over the surplus to the joint estate.
Debtor. Solicitors: Evans, Laing, & Eagles ; Blakeley & Beswick.
This was an action of goods sold and delivered
At the trial the following facts were proved: B. purchased
certain goods of the plaintiffs; he was the agent of the defenBANKRUPTOY. Ex parte BOTTING.
dants, his undisclosed principals; B. became insolvent and the Dec. 14.
plaintiffs then became aware that the defendants were principals In re BOSTEL.
With this knowledge the plaintiffs' clerk sent an affidavit of proof Composition Trustee-Disputed Debt-Inquiry as to Amount of the debt due to them against the estate of B. whose affairs Bankruptcy Rules, 1870, rr. 279, 311, 313.
were being liquidated by arrangement. The plaintiffs endeavoured This was an appeal from & decision of the judge of the to prevent the affidavit of proof from being filed but were unBrighton County Court.
successful. The creditors of Bostel who had filed a liquidation petition. The question was, whether upon theso facts the plaintiffs bad resolved to accept a composition, and appointed a trustee under | elected to treat the agent B. as their debtor. r. 279. The debtor in bis statement had mentioned that Botting! Nov. 11. C. Russell, Q.C., and Potter, for the plaintiffs. claimed 5001., but that he only admitted 2621., against which he C. Crompton, and Gorst, for the defendants. said that Botting held security to the amount of 2501. At the Dec. 10. THE COURT (Cockburn, C.J., Quain and Archisecond meeting Botting tendered a proof for 4881, which was bald, JJ.) held that the mere filing of the affidavit of proof objected to. After the resolutions had been confirmed and re- formed no obstacle to the plaintiffs suing the defendants for the gistered, the trustee gave Botting notice that he rejected his price of the goods sold to B. proof in toto, and that he would not pay him any composition. Attorney for plaintiffs : Wynne. The judge decided that the trustee had power to do this.
Attorney for defendants : W. Compton Smith.
THE CHIEF JUDGE said that the trustee had no right peremp-
FALVEY v. STANFORD.
Dec. 10 on the debts which were due. The case must go back to the New Trial-Inadequacy of Damages- Compromise amongst Jure county court to ascertain the amount due to the appellant, and
Slander. the composition on the amount found due to him must be paid by the debtor. The costs would be reserved till the amount of This was an action of slander for publishing of the plain the debt was ascertained.
tiff the words "he has been convicted of perjury and fined Solicitors: Smith, Fawdon, & Low; Tilleard, Godden, & Holme. 1001."
At the trial the jury found that the words had been published and returned a verdict for a farthing damages.
A rule for a new trial was obtained on the ground of idade quacy of damages, and that the verdict was no verdict but a compromise.
Nov. 11. Lopes, Q.C., and Castle, shewed cause.
Dec. 10. THE COURT (Quain and Archibald, JJ.) held that a
new trial should be granted for inadequacy of dainages where the Q. B.
SAMPSON (JUDGMENT CREDITOR), Dec. 10. smallness of the amount shews that the jury had made a com SEATON AND BEER RAILWAY COMPANY (JUDGMENT DEBTORS), I promise and instead of deciding the issues submitted to them
LONDON AND SOUTH WESTERN RAILWAY Co. (GARNISHEES). had agreed to find for the plaintiff for nominal damages only, and
Attorney for plaintiff: Joel Emanuel.
TABLE OF CASES.
Todd v. MOORHOUSE (Trust-Investment in Shares-Calls-Ad
vances by Stranger to pay Calls-Lien for Advances) M. R. 226 Wood v. HARROGATE IMPROVEMENT COMMISSIONERS (Pollution of
Stream— Breach of Agreement) , . L. C. & L. J. J. 225
BATSIOXE 0. SALTER (Advancement - Transfer of Stock-Son-in
BAXENDALE AND OTHERS v. LONDON, CHATHAM, AND DOVER RAILLocal Board-Power to alier unauthorized Sewers-11 & 12
WAY(Damages - Costs of defending Action-- Proximate Cause) Vict. c. 63, 8. 47). . . . . . V.-C. B.
Ex. Ch. from Ex. 231
229 FINXEGAN 0. JAMES (Practice — Patent Suit - Particulars of
---= -=-= - = Breaches-Particulars of Objections-15 & 16 Vict, c. 83, s. 41)
During the sittings of the Courts THE WEEKLY NOTES will be published
M. R. 227 on Saturday, and will generally comprise Notes of the Decisions up to GORE LANGTON'S Estate, In re (Lands Clauses Act--Seltled
and including those of the previous Wednesday, Au cases of permanent
| interest noted herein will be reported in full in THE LAW REPORTS. Estates—Funds dealt with in different Branches of the Court - Trustees of Porlion Funds not necessary Parties-Costs)
V.-C. M. 227 HARPER 0. WATERHOUSE (Legacy of a Debt – Testamentary Re
lease of Debt) . . . . . . V.-C. M. 227 Heugh v. GARRETT (Practice-Production of Documents) V.-C. B. 229
L. C. & L. J. J.
Dec. 17. HILL v. Tate (Will and two Codicils-Gift of Residue by eich I Woud v. HARROGATE IMPROVEMENT COMMISSIONERS. Document) . . . . . . . V.-C. M. 228
Pollution of Stream-Breach of Agreement. TIILL'S Trusts, In re (Appointment of Aliens as Trustees) V.-C. M. 228. This was an appeal from a decision of Vice-Chancellor Bacon
(ante, p. 132). The Vice-Chancellor granted an injunction to HOPKINSON v. FORSTER (Banker — Cheque — Equitable Assign restrain the defendants from discharging sewage into a stream ment) . .
called the Oak Beck, so as to injure the plaintiff's bleaching . . . . . . M. R. 227
works, but postponed the operation of it till the 15th of January, LANCEFIELD 0. IGGULDEN (Administration - Specific Devise
1875. Residuary Devise- Marshalling) . . L. C. & L. J. J. 225
The defendants appealed from this decision.'
Fry, Q.C., and Chapman Barber (Jackson, Q.C. with them), for LAWRENCE v. Clements (Mortgage, Payment of — Fresh Mortgage
the appellants. -Priorities) . .
Kay, Q.C., and Freeling, for the plaintiff. . . . . V.-C. H. 230
THE COURT dismissed the appeal with costs, but gave the deLOWTHER v. BONTINCK (Will - Construction - Settled Fund
| fendants an extension of time till the 1st of April.
| Solicitors : Emmet & Son, for T. Simpson, Leeds; Torr & Co, Poreer to apply Part of Fund for Preferment, Advancement,
for Middleton & Sons, Leeds. or otherwise for Benefit of an Adult) . . . M. R. 226 LYLE v. ElLWOOD (Presumption of Marriage-Divided Repute)
V.-C. H. 230 L. C. & L. J.J. LANCEFIELD v. IgGULDEN. Dec. 17. MERCHANT BANKING COMPANY OF LONDON t. Hough (Advances
Administration-Specific Devise — Residuary Devise- Marshalling. to Shipowner - Policy Moneys received by Banking Company
This was an appeal from a decision of Vice-Chancellor Bacon
(ante, p. 61). The Vice-Chancellor decided, on the authority of Action by Underwriter against Company-Action by Shipowner
Tombs v. Roch (2 Coll. 490), that in the administration of the tesagainst Company to recover Balance-Notice to Company of
tator's estate the specifically devised estates were not liable to Demind under Companies Act, 1862—Bill by Company contribute to the payment of debts until the real estates comInjunction) . . . . . . V.-C. H. 230 prised in the residuary devise were exhausted. From this
decision the defendants appealed. MOORE, In re (Composition-Amount-Mortgage on Goods not in
Miller, Q.C. (Ince with him), for the appellants. Exis ce) . . . . . . . . L. J.J. 226 Kay, Q.C., and G, W. Collins, for the plaintiff.
THE LORD CHANCELLOR said that the only effect of the 24th MORRICE v. AYLMER (Will - Bequest of “Shares” — Railway section of the Wills Act was, that the legislature attributed to Stock) . .
the will a continuing operation, as if the devise were repeated
immediately before the testator's death; but there was nothing SHEFFIELD v. SHEFFIELD (Motion to dismiss for want of Prosecu in the Act to alter the effect of the residuary devise in any other tion-Long pending Suit) . . . . V.-C. M, 228 respect. With regard to the authorities, it appeared that Vice
Chancellors Stuart and Hall, and Lord Hatherley, when ViceSMITH 0. CHATTO (Copyright — Sketches and Caricatures - | Chancellor, had taken the same view of the Act as he had just
“ Thackerayana, &c."-Interlocutory Injunction) 7.-C. H. 231 expressed, and that Vice-Chancellor Kindersley and the late No. 36.-1874.
Master of the Rolls had come to a different conclusion. He felt, M. R.
TodD v. MOORHOUSE.
Dec. 14. however. bound to say that he looked upon the decision of Lord Trust - Investment in Shares-Calls-- Advances by Stranger to pay Chelmsford in Hensman v. Fryer (Law Rep. 3 Ch. 420), which was
Calls-Lien for Advances. a carefully considered judgment, as an authority binding upon
By an indenture dated the 10th of July, 1845, being a settlethis Court. Therefore both on principle and authority he was of opinion that the residuary devisee ought to contribute pari passument made on the marriage of the plaintiff with his second wife, with the specific devisees, and that the decision of the Vice
| Mary Todd, a sum of 60001. was directed to be invested in Chancellor must be reversed.
(amongst other investments) railway shares, and held upon trust
for Mary Todd for life for her separate use, without power of THE LORD JUSTICE JAMES concurred.
anticipation, and after her death upon trust for the plaintiff for Solicitors : Monckton, Long, & Co.; J. H. James,
life, and subject to such life interests upon trusts for the benefit of the plaintiff's five daughters by a former marriage.
Part of the 60001. was invested in the purchase of certain rail
way shares, on which calls were subsequently made. To meet L. C. & L. J. J. MORRICE v. AYLMER.
such calls Mrs. Todd, at the request of the trustees, advanced to Will-Bequest of “Shares”— Railway Stock.
them out of her separate estate sums amounting in the whole to This was an appeal from a decision of the Master of the
4631. Such advances were made prior to 1852.
Mary Todd died in 1867, having made a will; and administraRolls (ante, p. 204). The will of the testator contained a bequest of "all such stocks
|tion of her estate with the will annexed were granted to the in the public funds and shares in any railway company of
This suit was instituted for the purpose of obtaining a declawhich I may die possessed.” The testator had 63001. stock in the London and North
... ration that the plaintiff was entitled to a lien on the railway
shares for the sum of 4631, so advanced and interest, and for Western Railway Company, and sixty-three new shares in the same company. The Master of the Rolls, following the decision
consequential relief. of Lord Justice Turner in Oakes v. Oakes (9 Hare, 666), held
Bagshawe, Q.C., and Graham Hastings, for the plaintiff.
%Marten, Q.C., and E. Cutler, for the trustees. that the railway stock did not pass under the bequest of "shares,"
Whitehorne, for the cestuis que trust, contended that in point and from this decision the defendant, the personal representative of the legatee, appealed.
of law there could be no lien, inasmuch as the trustees might
have raised the amount of the calls by a sale or mortgage of part Miller, Q.C., and W. Barber, for the appellant.
of the trust estate; and that on the facts the evidence shewed Glasse, Q.C., and Nalder, for the plaintiff.
that Mrs. Todd had made a gift of the amount for the benefit of THE LORD CHANCELLOR said that no one felt greater respect the cestuis que trust. for the late Lord Justice Turner than he did, but he could not
| THE MASTER OF THE Rolls held that the plaintiff was entitled help thinking that if that very learned judge had given more to alien consideration to the question he would have come to a different Solicitors: H. M. P. Sheppard: Torr, Janeway, d Co.: W. G. conclusion in the case. The word “stock" as applied to interests Bright
ests Brighten ; Iliffe, Russell, and Niffe. in railway companies was derived from the fact that they were joint stock companies, and joint stock was only another word for shares. A man who held such stock would very properly speak of himself as a shareholder in the company. As a member M. R.
LOWTHER v. BENTINOK.
Dec. 19. of the Court of Appeal he was unable to follow the decision in Will_Construction-Settled Fund-Power to apply Part of Fund Oakes v. Qakes. The decision of the Master of the Rolls must, for Preferment, Advancement, or otherwise for Benefit of an therefore, be reversed, and it must be declared that the railway Adult. stock passed under the bequest of "shares.”
This was a demurrer to a bill containing allegations to the THE LORD JUSTICE JAMES concurred.
following effect:Solicitors : Collyer-Bristowe, Withers, & Russell ; Rogers, Jull,
The late Earl of Lonsdale, by his will, dated the 18th of Feb& Rogers.
ruary, 1871, bequeathed a sum of 100,0001, to trustees upon trust to invest the same as therein mentioned, and to pay the
income to F. W. Lowther for life, and after his death as he L. J.J. In re MOORE.
Dec. 16. should by will appoint, and in default of appointment for his Composition - Amount-Mortgage on Goods not in Eristence. children at twenty-one or on marriage, in equal shares : And the
testator empowered the trustees at any time or times during the Burr & Co. represented to Moore, a wharfinger, that they were life of F. W. Lowther to apply any part of the said sum, not exgoing to store with him a quantity of metal, and Moore thereupon ceeding one half, in or towards the preferment or advancement gave them the usual wharfinger's warrant. Burr & Co. deposited of F. W. Lowther, or otherwise for his benefit, in such manner as the warrant with a bank as security for 4181. Burr & Co. the trustees should in their discretion think fit. By a codicil the became bankrupt, and the metal never came into the possession testator beaneathed an additional sum of 25,000i. on the same of Moore, having been stopped in transitu. Moore also became trusts. bankrupt, and his creditors agreed to accept a composition of At the date of the will F. W. Lowther was thirty years of age, 10s. in the pound. The bank claimed to receive composition and was married. The only property to which he was entitled in respect of 14141. which they alleged to be the value of the (besides that under the will) was à life interest under his marriage metal, and the registrar, sitting for the Chief Judge, allowed the settlement of the annual value of 8681. 16s. He had incurred claim.
debts to the amount of 66,5001., which were secured by mortgages Moore appealed.
of his life interests under the will and settlement; and he had De Gex, Q.C., and E. Ford, for the appellant.
requested the trustees of the will to apply one half of the trust Latham, for the bank.
funds subject to the will towards payment of his debts; and the Finlay Knight, for other parties, was not heard.
trustees being advised that they were empowered by the will His LORDSHIP said that the security of the bank was upon so to do were about to comply with his request. property not in existence, and could not prevail. The bank The bill (which was filed by the infant children of F. W. could only receive composition on 4181., the sum due to them. Lowther against him and the trustees of the will) prayed for a
Solicitors: Harcourt Macarthur; Freshfields & Williams. declaration that the application of any part of the trust funds in
payment or discharge of the incombrances created by F. W., tion of Bath for the purpose of constructing certain waterworks, Lowther on his life interest was unauthorized and beyond the and the purchase-money, amounting to 26001., was paid into powers of the trustees; and for an injunction to restrain the Court under the Lands Clauses Act, and, on an application made trustees from so applying any part of the trust funds.
to the Vice-Chancellor M lins, was invested and the dividends The defendants all demurred.
ordered to be paid to the tenant for life under the settlement. Cookson, for the demurrer.
Another portion of the same estate was taken by the Bristol and Davey, for the bill.
North Somerset Railway Company, and the purchase-money THE MASTER OF THE ROLLS held that the proposed application paid into Court, and on an application to the predecessor of the of the trust fund was within the powers of the trustees; and, Vice-Chancellor Hall was invested in the purchase of 4251. there being no allegation that the trustees were exercising their consols, and the dividends ordered to be paid to the tenant for discretion improperly, allowed the demurrer. Solicitors: Ellis & Ellis.
It being now desired to lay out both these funds as part of the purchase-money of an estate intended to be settled to the uses of the 'settlement, a petition was presented to the Vice
Chancellor Malins for investment of the fund paid in by the M. R. FINNEGAN v. JAMES.
Dec. 21. Corporation of Bath, and another similar petition was presented Practice-Patent Suit-Particulars of Breaches— Particulars of to the Vice-Chancellor Hall for investment of the fund before Objections—15 & 16 Vict. c. 83, s. 41.
him as portions of the purchase-money of the real estate, and on This was a suit to restrain the infringement of a patent. The
the petitions being put into the paper for hearing, an order was bill stated that the defendants relied on the defence of prior user,
made, on the petitioner's application, to transfer the petition and interrogatories were filed asking in substance for particulars
before Vice-Chancellor Hall to the Court of Vice-Chancellor of such prior user. The defendants declined to answer, on the
Malins. The petitions were by the tenant for life and a widow ground that the matters inquired after related exclusively to
who was a jointress on the estate. their defence. Exceptions were filed and now came on to be
| Certain trustees of portion funds had been made respondents
for the purpose of sanctioning the purchase. heard. Cookson, for the exceptions.
Glasse, Q.C., and Pauli, for the petitioners. Lawson, for the answer.
Dauney, Whitaker, and G. S. Law, for the trustees of the THE MASTER OF THE ROLLS said that in patent cases the several po practice ought, as far as possible, to follow that prescribed by
Ince, for the corporation of Bath, and 15 & 16 Vict. c. 83, s. 41, with respect to actions at law; that
Kekewich, for the railway company, objected to paying the the plaintiff ought either in his bill or in a separate document
ate doriment costs of two petitions and of the portion fund trustees, who, as delivered along with it (and the latter course would gene
the company contended, need not have been served. rally be the less expensive, and therefore preferable) to state
THE VICE-CHANCELLOR held that only one petition was necesthe particulars of the breaches he complained of: while sary, and that application should have been made to have the the defendant ought in his answer to state the particulars matter of the fund representing the land taken by the railway of prior user on which he relied. He therefore made an company heard before himself without presenting a second petiorder allowing the exceptions, but directing that the plaintiff tion, and that the trustees of the portion funds were either not deliver particulars of breaches, and that the defendant should necessary parties or might have been petitioners. He accordingly have fourteen days from the date of such delivery to put in a disallowed the costs of the second petition, and ordered that further answer to the interrogatories. The costs of the excep
the costs of the portion fund trustees should be paid by the tions to be costs in the cause.
petitioners. Solicitors: T. R. Kent; Western & Son.
Solicitors : A. F. & R. W. Tweedie; Whitakers & Woolbert; Frere & Co.; Clarke, Woodcock, & Ryland; Law, Hussey, & Hulbert.
Dec. 16. This was an interpleader suit instituted by Messrs. Hopkinson,
Legacy of a Debt-Testamentary Release of Debt, the bankers and army agents, to determine the rights of the Sophia Brueton by her will, dated in March, 1871, devised laimants to a fund in their hands, representing the proceeds of certain real and personal estate to trustees to pay the proceeds ale of an officer's commission. The only question necessary to to J. Harper for life or until bankruptcy, and subject thereto be noticed is a contention on the part of one of the defendants upon certain trusts for the benefit of the wife and children of That a cheque drawn by the officer on Messrs. Hopkinson consti- J. Harper; and she gave the residue of her estate to various luted an equitable assignment of part of the fund.
legatees named in the will, and directed that two separate sums Chitty, Q.C., and Cracknall, for the plaintiffs.
due to her from two of the legates should be repaid to her Roxburgh, Q.C., Graham Hastings, A. T. Watson, Davey, Kisch, executors or deducted from their legacies; she then directed that Ind Everitt, for the defendants.
in case she should lend or advance money to any legatee, such THE MASTER OF THE ROLLS held that a cheque was not an money with interest should be repaid or deducted from the quitable assignment.
| legacies, and continued, “But I declare that with the exception Solicitors: Frank Richardson & Sadler ; Deane, Chubb, & Co.; of the debts hereinbefore specially mentioned, all the debts hereadgate, Clarke, & Co.; Beyfus & Beyfus ; W. M. Hacon; Pear-tofore owing to me by any legatee or devisee hereinbefore named
| have been paid or otherwise satisfied."
Some time before the date of the will, J. Harper had married
a niece and adopted daughter of the testatrix, and lived in the In re GORE LANGTON'S ESTATE. Dec. 11.
house with the testatrix up to the time of her death. J. Harper
was in partnership in trade with M. Tildesley, and the testatrix had and Clauses Act---Settled Estates - Funds dealt with in different
lent J. Harper for the purposes of his business various sums of Branches of the Court-Trustees of Portion Funds not necessary mongramin Perties-Costs.
money amounting to above 30001., and had taken from Harper &
Tildesley joint promissory notes as security for the amount. portion of certain settled estates was taken by the Corpora- Harper & Tildesley became bankrupts, and the testatrix proved
for her debt, but told J. Harper that any dividend she might that the second codicil was executed after the will and first receive should be returned to him. There was, however, no codicil, and therefore that the second codicil was the last will of evidence of this statement of the testatrix, except that of J. Harper the testator. That codicil gave “all the rest and value of all his himself. The testatrix died in October, 1871, and this suit was little property and effects." He could draw no distinction instituted to restrain the executor of the testatrix from bringing between little property and large property; whatever the testator an action upon the above promissory notes.
left as residue was, therefore, comprised in the second codicil, and A question was now raised, whether the clause in the will as the gift of the residue by that codicil had failed, it would conabove set ont operated as a specific legacy of the debt due from sequently go to the next of kin. John Harper to the testatrix; and whether the same operated Solicitors : T. Alley Jones; Bowen May. in equity as a discharge or release to Harper & Tildesley from all liability in respect of the promissory notes which were given as collateral securities and in aid of the primary liability of vc
SHEFFIELD v. SHEFFIELD.
Dec. 17. J. Harper. Cotton, Q.C., and Cozens-Hardy, for the plaintiffs.
Motion to dismiss for want of Prosecution-Long pending Suit. Glasse, Q.C., and F. G. Bagshawe, for the defendants.
This was a motion that the bill might stand dismissed sumTHE VICE-CHANCELLOR was of opinion that the clause marily for want of prosecution. in the testatrix's will operated as a legacy of the debt due The suit was instituted in July, 1872, and the defendants, from J. Harper, and as he was a joint debtor with Tildesley it after numerous applications for time, put in their answer in was also a release of the money due upon the promissory notes. December, 1873. Many orders had been made in chambers, It was true that the statement of J. Harper that the testatrix including one for the appointment of a receiver, and another to said she would make him a present of any dividend recovered make allowances to two persons entitled to benefits under the will. from the estate was not evidence; but being put into writing in On the 13th of November last the defendants served notice of the form of a testamentary document speaking from the death of motion to dismiss for want of prosecution, and an undertaking the testatrix, and being consistent with the expressions of affec- was given by the managing clerk of the plaintiff's solicitors that tion used by the testatrix in regard to J. Harper and his wife, he replication should be filed within fourteen days. thought it was sufficient to justify him in deciding that the debt Before the expiration of that time an application was made in was altogether released.
chambers by the plaintiffs for leave to amend, and the plaintiffs' Solicitors : Flux & Leadbitter; Clarke, Woodcock, & Ryland. undertaking not having been complied with, the present motion
was made, and it was submitted that by reason of the non-fulfil
ment of the undertaking the bill must stand absolutely dismissed, V.-C. M. HILL v. TATE.
just as if an order of the Court had been made to that effect. Will and two Codicils-Gift of Residue by each Document. I J. Pearson, Q.C., Higgins, Q.C., and Whitehorne, in support of W. A. Rook, by his will, dated the 10th of April, 1873, gave a the motion. considerable number of pecuniary legacies, and the rest and Glasse, Q.C., and Kekewich, for the plaintiffs. residue of his property and effects of all kinds, real and personal, THE VICE-CHANCELLOR said that such an application as this his money in the 31. per cents. in the Bank of England unappro- was without precedent after a suit had been going on for two priated, his balance in the Brentford branch of the London and years, and after many orders, had been made in the cause. The County Bank, the produce of the sale or sales of his copyhold failure in the performance of the undertaking appeared to have seven cottages and gardens and sheds at Hounslow, and all his arisen from a mere slip on the part of the solicitor's clerk, and if property and effects of every kind, he thereby gave and be- he were to dismiss the bill now it would be a great hardship queathed to his executors, hoping they or the survivor would upon the plaintiffs. He should therefore make the usual order, expend the amount of any surplus for God's blessed purposes as that the bill stand dismissed unless the plaintiffs undertook to they might think fit.
proceed within fourteen days, and the costs of this application By a codicil, dated the same day as his will, the testator must be paid by the plaintiff's solicitors, which would be a suffigave various small bequests, and then proceeded as follows:-- cient penalty to inflict upon them. The application for leave “The rest and residue of all my property and effects not to amend must stand over for further argument. appropriated in my will dated the 10th of April, 1873, and by Solicitors for the plaintiffs: Dawes & Sons. this my codicil thereto, I give and bequeath to my dear execu Solicitor for the defendants: F. Sheffield., tors, to be given by them to the treasurer of the Moravian Brethren to be appropriated by him towards the maintenance of the widows of the excellent Moravian Missionaries. By a second codicil, dated the same day as the will, after
after V.-C. M.
Dec. 18. giving various legacies charitable and otherwise, there occurred
Appointment of Aliens as Trustees. this passage: “All the rest and value of all my little property This was a petition for the appointment of two Frenchmen to and effects I hereby give and bequeath to my kind and dear be trustees of certain freehold and leasehold property situate in executors, and their distribution, to be given by them according England. to written directions given in a letter left by me."
Mary Hill, a widow, by her will dated in May, 1849, gave The testator died in May, 1874, possessed of real and personal certain property, consisting of freehold and leasehold houses, to property.
two trustees upon trust to pay the rents and proceeds to her The question now raised in an administration suit was, daughter for life, and afterwards for the benefit of her grandwhether the residue of the property passed by the will and the children and their husbands in manner therein mentioned. The first codicil, or by the second codicil, because if by the second testatrix died in July, 1853, while residing in France. The codicil the gift failed by reason of the letter referred to not being trustees of the will, who were Englishmen, bad executed disa testamentary document, and the property would then go to the claimers, and the rents of the property, which amounted to next of kin.
about 901. per annum, had been for some years received by an Glasse, Q.C., and Caiman Jones, for the plaintiff one of the agent in England and sent over to France, where all the legatees under the will.
parties lived, and some of the female cestuis que trust had marHiggins, Q.C., and Bowen May, J.Pearson, Q.C., and Graham ried Frenchmen, and were settled in France. Hastings, for the defendants.
The parties were now desirous of appointing new trustees of THE VICE-CHANCELLOR said that although the will and two the will for the purpose of carrying out the still existing trusts, codicils were executed on the same day, it must be presumed but they were unable to find any English persons willing to