TODD v. MOORHOUSE.

Calls-Lien for Advances.

Dec. 14.

THE LORD JUSTICE JAMES concurred.
Solicitors: Monckton, Long, & Co.; J. H. James.

L. C. & L. J. J.

Dec. 17.

MORRICE v. AYLMER. Will-Bequest of "Shares"-Railway Stock. This was an appeal from a decision of the Master of the Rolls (ante, p. 204).

The will of the testator contained a bequest of "all such stocks in the public funds and shares in any railway company of which I may die possessed."

The testator had 63007. stock in the London and North Western Railway Company, and sixty-three new shares in the same company. The Master of the Rolls, following the decision of Lord Justice Turner in Oakes v. Oakes (9 Hare, 666), held that the railway stock did not pass under the bequest of "shares," and from this decision the defendant, the personal representative of the legatee, appealed.

Miller, Q.C., and W. Barber, for the appellant.
Glasse, Q.C., and Nalder, for the plaintiff.

By an indenture dated the 10th of July, 1845, being a settlement made on the marriage of the plaintiff with his second wife, Mary Todd, a sum of 6000l. was directed to be invested in (amongst other investments) railway shares, and held upon trust for Mary Todd for life for her separate use, without power of anticipation, and after her death upon trust for the plaintiff for 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 60007. was invested in the purchase of certain railway shares, on which calls were subsequently made. To meet such calls Mrs. Todd, at the request of the trustees, advanced to them out of her separate estate sums amounting in the whole to 4637. Such advances were made prior to 1852.

Mary Todd died in 1867, having made a will; and administration of her estate with the will annexed were granted to the plaintiff.

This suit was instituted for the purpose of obtaining a declaration that the plaintiff was entitled to a lien on the railway shares for the sum of 4631. so advanced and interest, and for consequential relief.

Bagshawe, Q.C., and Graham Hastings, for the plaintiff.
Marten, Q.C., and E. Cutler, for the trustees.

of law there could be no lien, inasmuch as the trustees might Whitehorne, for the cestuis que trust, contended that in point have raised the amount of the calls by a sale or mortgage of part of the trust estate; and that on the facts the evidence shewed that Mrs. Todd had made a gift of the amount for the benefit of the cestuis que trust.

THE MASTER OF THE ROLLS held that the plaintiff was entitled to a lien. Solicitors: H. M. P. Sheppard; Torr, Janeway, & Co.; W. G. Brighten; Iliffe, Russell, and Iliffe.

LOWTHER v. BENTINOK.

Dec. 19.

THE LORD JUSTICE JAMES concurred.

Solicitors Collyer-Bristowe, Withers, & Russell; Rogers, Jull, & Rogers.

L. J. J.

Dec. 16.

In re MOORE. Composition-Amount-Mortgage on Goods not in Existence. Burr & Co. represented to Moore, a wharfinger, that they were going to store with him a quantity of metal, and Moore thereupon gave them the usual wharfinger's warrant. Burr & Co. deposited the warrant with a bank as security for 4187. Burr & Co. became bankrupt, and the metal never came into the possession of Moore, having been stopped in transitu. Moore also became bankrupt, and his creditors agreed to accept a composition of 10s. in the pound. The bank claimed to receive composition in respect of 14147, which they alleged to be the value of the metal, and the registrar, sitting for the Chief Judge, allowed the claim.

Moore appealed.

De Gex, Q.C., and E. Ford, for the appellant.
Latham, for the bank.

Finlay Knight, for other parties, was not heard. HIS LORDSHIP Said that the security of the bank was upon property not in existence, and could not prevail. The bank could only receive composition on 418., the sum due to them. Solicitors: Harcourt & Macarthur; Freshfields & Williams.

for Preferment, Advancement, or otherwise for Benefit of an Adult.

This was a demurrer to a bill containing allegations to the following effect:

The late Earl of Lonsdale, by his will, dated the 18th of February, 1871, bequeathed a sum of 100,000l. 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 should by will appoint, and in default of appointment for his children at twenty-one or on marriage, in equal shares: And the testator empowered the trustees at any time or times during the life of F. W. Lowther to apply any part of the said sum, not exceeding one half, in or towards the preferment or advancement of F. W. Lowther, or otherwise for his benefit, in such manner as the trustees should in their discretion think fit. By a codicil the testator bequeathed an additional sum of 25,000l. on the same trusts.

At the date of the will F. W. Lowther was thirty years of age, and was married. The only property to which he was entitled (besides that under the will) was a life interest under his marriage settlement of the annual value of 868/. 16s. He had incurred debts to the amount of 66,500l., which were secured by mortgages of his life interests under the will and settlement; and he had requested the trustees of the will to apply one half of the trust funds subject to the will towards payment of his debts; and the trustees being advised that they were empowered by the will so to do were about to comply with his request.

The bill (which was filed by the infant children of F. W. Lowther against him and the trustees of the will) prayed for a declaration that the application of any part of the trust funds in

Davey, for the bill.

THE MASTER OF THE ROLLS held that the proposed application of the trust fund was within the powers of the trustees; and, there being no allegation that the trustees were exercising their discretion improperly, allowed the demurrer. Solicitors: Ellis & Ellis.

M. R.

FINNEGAN v. JAMES.

Dec. 21. Practice-Patent Suit-Particulars of Breaches-Particulars of Objections-15 & 16 Vict. c. 83, s. 41. This was a suit to restrain the infringement of a patent. The bill stated that the defendants relied on the defence of prior user, and interrogatories were filed asking in substance for particulars of such prior user. The defendants declined to answer, on the ground that the matters inquired after related exclusively to their defence. Exceptions were filed and now came on to be heard.

Cookson, for the exceptions. Lawson, for the answer.

THE MASTER OF THE ROLLS said that in patent cases the practice ought, as far as possible, to follow that prescribed by 15 & 16 Vict. c. 83, s. 41, with respect to actions at law; that the plaintiff ought either in his bill or in a separate document delivered along with it (and the latter course would generally be the less expensive, and therefore preferable) to state the particulars of the breaches he complained of: while the defendant ought in his answer to state the particulars of prior user on which he relied. He therefore made an order allowing the exceptions, but directing that the plaintiff deliver particulars of breaches, and that the defendant should have fourteen days from the date of such delivery to put in a further answer to the interrogatories. The costs of the exceptions to be costs in the cause.

Solicitors: T. R. Kent; Western & Son.

M. R.

Dec. 21.

HOPKINSON v. FORSTER. Banker-Cheque-Equitable Assignment. This was an interpleader suit instituted by Messrs. Hopkinson, the bankers and army agents, to determine the rights of the claimants to a fund in their hands, representing the proceeds of sale of an officer's commission. The only question necessary to be noticed is a contention on the part of one of the defendants that a cheque drawn by the officer on Messrs. Hopkinson constituted an equitable assignment of part of the fund.

Chitty, Q.C., and Cracknall, for the plaintiffs. Roxburgh, Q.C., Graham Hastings, A. T. Watson, Davey, Kisch, and Everitt, for the defendants.

THE MASTER OF THE ROLLS held that a cheque was not an equitable assignment.

Solicitors: Frank Richardson & Sadler; Deane, Chubb, & Co.; Fladgate, Clarke, & Co.; Beyfus & Beyfus; W. M. Hacon; Pearpoint.

and the purchase-money, amounting to 2600., was paid into Court under the Lands Clauses Act, and, on an application made to the Vice-Chancellor M lins, was invested and the dividends ordered to be paid to the tenant for life under the settlement. Another portion of the same estate was taken by the Bristol and North Somerset Railway Company, and the purchase-money paid into Court, and on an application to the predecessor of the Vice-Chancellor Hall was invested in the purchase of 4251. consols, and the dividends ordered to be paid to the tenant for life.

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 ViceChancellor Malins for investment of the fund paid in by the Corporation of Bath, and another similar petition was presented to the Vice-Chancellor Hall for investment of the fund before him as portions of the purchase-money of the real estate, and on the petitions being put into the paper for hearing, an order was before Vice-Chancellor Hall to the Court of Vice-Chancellor made, on the petitioner's application, to transfer the petition Malins. The petitions were by the tenant for life and a widow who was a jointress on the estate.

Certain trustees of portion funds had been made respondents for the purpose of sanctioning the purchase.

Glasse, Q.C., and Pauli, for the petitioners.

Dauney, Whitaker, and G. S. Law, for the trustees of the several portion funds.

Ince, for the corporation of Bath, and

Kekewich, for the railway company, objected to paying the costs of two petitions and of the portion fund trustees, who, as the company contended, need not have been served.

THE VICE-CHANCELLOR held that only one petition was necessary, and that application should have been made to have the matter of the fund representing the land taken by the railway company heard before himself without presenting a second petition, and that the trustees of the portion funds were either not necessary parties or might have been petitioners. He accordingly disallowed the costs of the second petition, and ordered that the costs of the portion fund trustees should be paid by the petitioners.

Solicitors: A. F. & R. W. Tweedie; Whitakers & Woolbert; Frere & Co.; Clarke, Woodcock, & Ryland; Law, Hussey, & Ilulbert.

Legacy of a Debt-Testamentary Release of Debt. Sophia Brueton by her will, dated in March, 1871, devised certain real and personal estate to trustees to pay the proceeds to J. Harper for life or until bankruptcy, and subject thereto upon certain trusts for the benefit of the wife and children of J. Harper; and she gave the residue of her estate to various legatees named in the will, and directed that two separate sums due to her from two of the legateзs should be repaid to her executors or deducted from their legacies; she then directed that in case she should lend or advance money to any legatee, such money with interest should be repaid or deducted from the legacies, and continued, "But I declare that with the exception of the debts hereinbefore specially mentioned, all the debts heretofore owing to me by any legatee or devisee herein before 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 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 lent J. Harper for the purposes of his business various sums of money amounting to above 3000/., and had taken from Harper & Tildesley joint promissory notes as security for the amount. Harper & Tildesley became bankrupts, and the testatrix proved

for her debt, but told J. Harper that any dividend she might receive should be returned to him. There was, however, no evidence of this statement of the testatrix, except that of J. Harper himself. The testatrix died in October, 1871, and this suit was instituted to restrain the executor of the testatrix from bringing an action upon the above promissory notes.

A question was now raised, whether the clause in the will above set out operated as a specific legacy of the debt due from John Harper to the testatrix; and whether the same operated 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 J. Harper.

Cotton, Q.C., and Cozens-Hardy, for the plaintiffs.
Glasse, Q.C., and F. G. Bagshawe, for the defendants.

THE VICE-CHANCELLOR was of opinion that the clause in the testatrix's will operated as a legacy of the debt due from J. Harper, and as he was a joint debtor with Tildesley it was also a release of the money due upon the promissory notes. It was true that the statement of J. Harper that the testatrix said she would make him a present of any dividend recovered from the estate was not evidence; but being put into writing in the form of a testamentary document speaking from the death of the testatrix, and being consistent with the expressions of affection used by the testatrix in regard to J. Harper and his wife, he thought it was sufficient to justify him in deciding that the debt was altogether released.

Solicitors: Flux & Leadbitter; Clarke, Woodcock, & Ryland.

V.-C. M.

HILL v. TATE.

Dec. 16 Will and two Codicils-Gift of Residue by each Document. W. A. Rook, by his will, dated the 10th of April, 1873, gave a considerable number of pecuniary legacies, and the rest and residue of his property and effects of all kinds, real and personal, his money in the 37. per cents. in the Bank of England unappropriated, his balance in the Brentford branch of the London and County Bank, the produce of the sale or sales of his copy hold seven cottages and gardens and sheds at Hounslow, and all his property and effects of every kind, he thereby gave and bequeathed to his executors, hoping they or the survivor would expend the amount of any surplus for God's blessed purposes as they might think fit.

By a codicil, dated the same day as his will, the testator gave various small bequests, and then proceeded as follows:"The rest and residue of all my property and effects not appropriated in my will dated the 10th of April, 1873, and by this my codicil thereto, I give and bequeath to my dear executors, 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 giving various legacies charitable and otherwise, there occurred this passage: "All the rest and value of all my little property and effects I hereby give and bequeath to my kind and dear executors, and their distribution, to be given by them according to written directions given in a letter left by me."

The testator died in May, 1874, possessed of real and personal property.

The question now raised in an administration suit was, whether the residue of the property passed by the will and the first codicil, or by the second codicil, because if by the second codicil the gift failed by reason of the letter referred to not being a testamentary document, and the property would then go to the next of kin.

Glasse, Q.C., and Calman Jones, for the plaintiff one of the legatees under the will.

Higgins, Q.C., and Bowen May, J.Pearson, Q.C., and Graham Hastings, for the defendants.

THE VICE-CHANCELLOR said that although the will and two codicils were executed on the same day, it must be presumed

that the second codicil was executed after the will and first codicil, and therefore that the second codicil was the last will of the testator. That codicil gave "all the rest and value of all his little property and effects." He could draw no distinction between little property and large property; whatever the testator left as residue was, therefore, comprised in the second codicil, and as the gift of the residue by that codicil had failed, it would consequently go to the next of kin. Solicitors: T. Alley Jones; Bowen May.

SHEFFIELD v. SHEFFIELD.

Dec. 17.

V.-C. M.
Motion to dismiss for want of Prosecution-Long pending Suit.
This was a motion that the bill might stand dismissed sum-
marily for want of prosecution.

The suit was instituted in July, 1872, and the defendants, after numerous applications for time, put in their answer in December, 1873. Many orders had been made in chambers, including one for the appointment of a receiver, and another to make allowances to two persons entitled to benefits under the will. On the 13th of November last the defendants served notice of motion to dismiss for want of prosecution, and an undertaking was given by the managing clerk of the plaintiff's solicitors that replication should be filed within fourteen days.

Before the expiration of that time an application was made in chambers by the plaintiffs for leave to amend, and the plaintiffs' undertaking not having been complied with, the present motion was made, and it was submitted that by reason of the non-fulfilment of the undertaking the bill must stand absolutely dismissed, just as if an order of the Court had been made to that effect. J. Pearson, Q.C., Higgins, Q.C., and Whitehorne, in support of the motion.

Glasse, Q.C., and Kekewich, for the plaintiffs.

THE VICE-CHANCELLOR said that such an application as this was without precedent after a suit had been going on for two years, and after many orders had been made in the cause. The failure in the performance of the undertaking appeared to have arisen from a mere slip on the part of the solicitor's clerk, and if he were to dismiss the bill now it would be a great hardship upon the plaintiffs. He should therefore make the usual order, that the bill stand dismissed unless the plaintiffs undertook to proceed within fourteen days, and the costs of this application must be paid by the plaintiff's solicitors, which would be a sufficient penalty to inflict upon them. The application for leave to amend must stand over for further argument. Solicitors for the plaintiffs: Dawes & Sons. Solicitor for the defendants: F. Sheffield.,

This was a petition for the appointment of two Frenchmen to be trustees of certain freehold and leasehold property situate in England.

Mary Hill, a widow, by her will dated in May, 1849, gave certain property, consisting of freehold and leasehold houses, to two trustees upon trust to pay the rents and proceeds to her daughter for life, and afterwards for the benefit of her grandchildren and their husbands in manner therein mentioned. The testatrix died in July, 1853, while residing in France. The trustees of the will, who were Englishmen, had executed disclaimers, and the rents of the property, which amounted to about 901. per annum, had been for some years received by an agent in England and sent over to France, where all the parties lived, and some of the female cestuis que trust had married Frenchmen, and were settled in France.

The parties were now desirous of appointing new trustees of the will for the purpose of carrying out the still existing trusts, but they were unable to find any English persons willing to