May

LONDON FINANCIAL ASSOCIATION v. WREXHAM, MOLD, AND CONNACH QUAY RAILWAY COMPANY.

This resolution was duly registered.

The reversionary interest of the debtor under his father's will was his only available separate property, and it was alleged by two of the creditors who dissented from the resolution that it was worth much more than sufficient to pay one shilling in the pound. They therefore applied to the registrar for an order to take the resolution off the file as fraudulent and ultrà vires. The registrar refused the application, and the two creditors appealed.

De Gex, Q.C., and Cooper Willis, for the appellants.
Winslow, Q.C., and Bayley, for the debtor.
Finlay Knight, for Mrs. Marks.

Romer, for the trustee.

THE LORD JUSTICE said there was no ground for imputing fraud, but the 4th clause in the resolution was clearly ultrà vires. It would be very dangerous to permit the first meeting of creditors to give directions as to the disposal of the property without any notice that such a question would be considered. And, besides, this clause was in effect a resolution for a composition, which could only be passed in the manner directed by the Act and confirmed at a subsequent meeting. But the part of the resolution resolving on a liquidation and appointing a trustee and committee of inspection having been registered was valid. The liquidation must therefore proceed in the ordinary

course.

THE LORD JUSTICE MELLISH concurred. Solicitors: R. S. Mason; Spyer & Son.

Railway Company-Debenture Stock-Arrangement Act-Sus pense Period-Suit instituted without the Leave of the Court. themselves and all other holders of B., C., and D. debentar This was a bill filed by the plaintiff company on behalf stock in the defendant company, seeking for an account of th proceeds of the railway and for a receiver.

The defendant company being in difficulties in the year 186 obtained an Arrangement Act, which provided by s. 4, that action or suit against the company, except proceedings again them as carriers or in respect of liabilities contracted after t passing of the Act, should be continued or commenced duri a suspense period of ten years thereby created, except with les of the Court of Chancery, and subject to such terms as the Co should impose.

At the time of the passing of the Arrangement Act the plai tiffs were unpaid creditors of the company holding mortgag and debentures, and under the provisions of the Act debenta stock called A., B., C., and D. stock was issued partly in subs tution for the previous debentures and partly to purchase ro ing stock for the railway.

The interest on this debenture stock being in arrear, plaintiffs filed the present bill, and now moved for a receiver. Mackeson, Q.C., and Dryden, for the plaintiffs. Bristowe, Q.C., and T. A. Roberts, for the defendants, took preliminary objection that the plaintiffs ought to have obtain the leave of the Court before instituting their suit.

THE VICE-CHANCELLOR held that inasmuch as the debentu stock was issued to answer a liability incurred before the pas ing of the Act, it was within the protection intended to be give by the Act, and as the leave of the Court had not been obtaine the motion must be refused.

Solicitors: S. F. & H. Noyes; Helder & Roberts.

May 4. Right of Shooting over Estate-Sale for Building Purposes-Notice of Right-Injunction.

In 1871 the plaintiff became tenant under a Mr. Legh of a farm of 480 acres, known as Kilnwood Farm, at Fay Gate in the county of Sussex, together with the right of shooting over an estate known as Caryll's Estate," of about 188 acres in extent, and separated from Kilnwood Farm by a turnpike road.

66

Mr. Legh afterwards sold Caryl's Estate to the defendant, who now proposed to make a road through it, and to sell it in lots suitable for building purposes. The defendant had accordingly published particulars of an intended sale of the property in thirteen lots. These particulars stated that the tenant of the Kilnwood Farm was during his tenancy entitled to the shooting over the whole or the greater portion of the lots, and that all the lots affected by such right would be sold subject thereto.

The plaintiff filed the bill in this suit, alleging that the defendant's proceedings would render the plaintiff's shooting over Caryll's Estate impracticable, and praying for an injunction to restrain the defendant from offering the estate for sale for building purposes, and proceeding with the construction of the intended road, or otherwise dealing with the estate so as to interfere with or prejudice the due execise and enjoyment by the plaintiff of his right of shooting.

An interim order was obtained, and a motion for an interlocutory injunction was made, which was turned into a motion for decree, and now came on to be heard.

Fry, Q.C., and Cookson, for the plaintiff.
Southgate, Q.C., and North, for the defendant.

THE MASTER OF THE ROLLS dismissed the bill with costs, and directed an inquiry as to the damages caused to the defendant by the interim order.

Solicitors: Nickinson, Prall, & Nickinson ; Ashurst, Morris, & Co.

Bush was the purchaser for value of twenty fully paid shares in the above company from Tucker, a promoter, who bought the Lifford Mills India Rubber Factory for 13,000, sold it again to the company for 30,000l.

On the 25th of January, 1869, at a board meeting, it resolved that the shares agreed to be paid to Messrs. Wilso Mayall, the original vendors, in part purchase of the factory at once allotted." On the 24th of March, 1869, the sec agreement for sale was registered, and the issue of Tack shares, of which Bush's formed part, was dated on the 140 April, 1869. Tucker had been warned by the solicitor n have any shares issued until after registration. Bush's appeared on the register simply as the holder of twenty she nothing being said as to their being fully paid-up. The off liquidator sought to make Bush liable under the 25th sectio the Companies Act, 1867. Bush contended that the liabilit payment up in full had been "otherwise determined by a tract duly made in writing and filed with the registrar the issue" of the shares; but the official liquidator argued the contract was not "duly made," but was in fact fraudu and void; and that the "issue" of the shares within the se must be held to have dated from the 25th of January. Swanston, Q.C., Graham Hastings, and Inc, for the of liquidator.

Kay, Q.C., and Romer, for Bush.
Swanston, in reply.

THE VICE-CHANCELLOR said that the Act of Parliament

been complied with not only in letter but in spirit, for the evidence shewed that the issue of the shares had been properly delayed till after the registration of the contract. Bush's title began in April and was perfectly good. There was no reason why Mr. Bush should suffer, and there was no reason why he should be put on the list of contributories. The summons must be refused, and Bush's costs together with those of the official liquidator would come out of the estate.

Solicitors: Harper, Broad, & Battcock; Linklater & Co.

V.-C. B.

NORTH EASTERN RAILWAY COMPANY v. JACKSON. Taxation-Costs of Three Counsel. Summons on behalf of defendant for review of the taxation of

he master, who had allowed the costs of two junior counsel at he hearing of the above suit.

The master had disallowed the costs of a second leader.
Loughborough, supported the summons.

Kay, Q.C., Jackson, Q.C., Hemming, and Onslow, for the plainifs opposed. They observed that there had been great diversity the practice of several of the Chancery judges, past and preent, on this point.

THE VICE-CHANCELLOR said he could not accede to the view hich had been presented to him on the part of the defendant. The master, who had all the circumstances before him, proably thought that the services of two juniors, if not absoIntely necessary, had been eminently useful. It was the duty of the junior to be ready at any moment to turn to any part of the evidence that might be required, and every one knew that the Court and the administration of justice were greatly assisted by the labours of junior counsel. If the taxing master, who had had all the facts and all the papers before him, and who therefore knew more accurately than the Court could do the amount of labour which had been gone through-who, moreover, had disallowed the costs of a second Queen's counsel-had allowed the costs of a second junior, His Honour did not feel liberty to disturb that decision. Notwithstanding what had een said, and very well said, His Honour felt he might be doing ischief, or even injustice, in allowing the application. Summons refused with costs.

Solicitors: WV. E. Duncan; Bell, Stewards, & Co.

J. J. Howard died in March, 1871, and his estate was vested in trustees, who were defendants.

prayed for a declaration, in case it should be found that any of The bill, after praying for administration and certain inquiries, the trust funds had been invested on any insufficient securities, that the defendants might be ordered to make good any loss that should accrue. whether part of the trust funds had remained uninvested; for There was also a prayer for an inquiry accounts; a receiver; and for consequential relief.

Dickinson, Q.C., and Herbert Smith, for the plaintiffs.
Mrs. Camphausen and her husband.
Lindley, Q.C., and Yate Lee, for the defendants Turner and

Howard and other defendants.
Chitty, Q.C., and Watson, for the representatives of J. J.

the result of it was that the valuations were based upon very THE VICE-CHANCELLOR after referring to the evidence, said insufficient data; that the trustees, especially the defendant Turner, had not made sufficient inquiries in reference to the value of property at Hertford; and that as the trustees had not discharged the duty which was cast upon them of making a proper investigation before they accepted the security, they Honour directed certain accounts and inquiries, and adjourned must be held responsible for any loss that might accrue. His further consideration, with liberty to apply.

Solicitors: Rickards & Walker, agents for Henry Page, Southampton; Shum, Crossman, & Crossman, agents for Green & Moberly, Southampton.

he s

of t

ustes and Cestu's que Trust-Investments on Freehold Property -Insufficient Security-Trustees male responsible for any Loss that might accrue.

J. P. Howard, who died on the 30th of March, 1865, by will, August, 1861, devised unto the defendants Charles Turner, Anne Camphausen (a daughter of the testator and out of Jurisdiction), and J. J. Howard (a son), their heirs, &c., a hold house in trust for his daughter, the plaintiff, Mrs. Bell, life, and (in the event which had happened, viz, the death her husband) after her death for her children. The testator athed unto the same trustees a sum of 25007, and also oneof his residuary estate upon trust to invest as in the will hioned, and to pay the income to Mrs. Bell for life, and after town and her husband's death to hold the principal in trust her children as she should appoint, and in default of appointfor the children equally. By a codicil in August, 1863, the tor bequeathed an additional sum of 6500l. to his executors old upon the trusts mentioned above. The executors posed themselves of the testator's estate; effected an equitable on of it and transferred into the names of the three trustees of 10,011. 4s. 9d. Consols and certain shares in companies, they paid into a bank to the account of the trustees for intment several sums of money. In October, 1869, the trustees Fanced to a mortgagor a sum of 70007., part of the trust funds,

Q. B.

Common Law.

May 8. OLIVER V. NORTH EASTERN RAILWAY COMPANY. Railway Company, Liability of, as to State of Level Crossing. In an action against a railway company for negligence in keeping a level crossing in an improper state, it appeared that the plaintiff was passing in a four-wheeled dog-cart over the defendants' railway, which crossed the highway on a level, and owing to the rails being, as he alleged, too high above the level of the road, the hinder wheels skidded along the rails, and the carriage parted into two.

The defendants' counsel contended that there was no duty cast on the defendants; but called evidence to prove that the rails at the crossing were in a proper state.

The judge left it to the jury to say whether the road and rails were or were not in a proper state; telling them that though the defendants had the sanction of an Act of Parliament to put such rails across the highway as were necessary for the purposes of their line, still the rails must be laid and kept so as to cause as little injury or danger as possible. The jury having found a verdict for the plaintiff,

C. Russell, Q.C., and J. Edye, for the plaintiff.

* May 7.

LONDON FINANCIAL ASSOCIATION v. WREXHAM, MOLD, AND CONNACH QUAY RAILWAY COMPANY.

This resolution was duly registered.

The reversionary interest of the debtor under his father's will was his only available separate property, and it was alleged by two of the creditors who dissented from the resolution that it was worth much more than sufficient to pay one shilling in the pound. They therefore applied to the registrar for an order to take the resolution off the file as fraudulent and ultrà vires. The registrar refused the application, and the two creditors appealed.

De Gex, Q.C., and Cooper Willis, for the appellants.
Winslow, Q.C., and Bayley, for the debtor.
Finlay Knight, for Mrs. Marks.

Romer, for the trustee.

THE LORD JUSTICE said there was no ground for imputing fraud, but the 4th clause in the resolution was clearly ultrà vires. It would be very dangerous to permit the first meeting of creditors to give directions as to the disposal of the property without any notice that such a question would be considered. And, besides, this clause was in effect a resolution for a composition, which could only be passed in the manner directed by the Act and confirmed at a subsequent meeting. But the part of the resolution resolving on a liquidation and appointing a trustee and committee of inspection having been registered was valid. The liquidation must therefore proceed in the ordinary

course.

THE LORD JUSTICE MELLISH concurred. Solicitors: R. S. Mason; Spyer & Son.

Railway Company-Debenture Stock-Arrangement Act-Suspense Period-Suit instituted without the Leave of the Court. themselves and all other holders of B., C., and D. debenture This was a bill filed by the plaintiff company on behalf of stock in the defendant company, seeking for an account of the proceeds of the railway and for a receiver.

The defendant company being in difficulties in the year 1869, obtained an Arrangement Act, which provided by s. 4, that no action or suit against the company, except proceedings against them as carriers or in respect of liabilities contracted after the passing of the Act, should be continued or commenced during a suspense period of ten years thereby created, except with leave of the Court of Chancery, and subject to such terms as the Court should impose.

At the time of the passing of the Arrangement Act the plaintiffs were unpaid creditors of the company holding mortgages and debentures, and under the provisions of the Act debenture stock called A., B., C., and D. stock was issued partly in substitution for the previous debentures and partly to purchase rolling stock for the railway. The interest on this debenture stock being in arrear, the plaintiffs filed the present bill, and now moved for a receiver. Mackeson, Q.C., and Dryden, for the plaintiffs.

Bristowe, Q.C., and T. A. Roberts, for the defendants, took the preliminary objection that the plaintiffs ought to have obtained the leave of the Court before instituting their suit.

THE VICE-CHANCELLOR held that inasmuch as the debenture stock was issued to answer a liability incurred before the passing of the Act, it was within the protection intended to be given by the Act, and as the leave of the Court had not been obtained, the motion must be refused.

Solicitors: S. F. & H. Noyes; Helder & Roberts.

M. R.
PATTISSON V. GILFOLD.
May 4.
Right of Shooting over Estate-Sale for Building Purposes-Notice
of Right—Injunction.

In 1871 the plaintiff became tenant under a Mr. Legh of a farm of 480 acres, known as Kilnwood Farm, at Fay Gate in the county of Sussex, together with the right of shooting over an estate known as 66 Caryll's Estate," of about 188 acres in extent, and separated from Kilnwood Farm by a turnpike road. Mr. Legh afterwards sold Caryl's Estate to the defendant, who now proposed to make a road through it, and to sell it in lots suitable for building purposes. The defendant had accordingly published particulars of an intended sale of the property in thirteen lots. These particulars stated that the tenant of the Kilnwood Farm was during his tenancy entitled to the shooting over the whole or the greater portion of the lots, and that all the lots affected by such right would be sold subject thereto.

The plaintiff filed the bill in this suit, alleging that the defendant's proceedings would render the plaintiff's shooting over Caryll's Estate impracticable, and praying for an injunction to restrain the defendant from offering the estate for sale for building purposes, and proceeding with the construction of the intended road, or otherwise dealing with the estate so as to interfere with or prejudice the due execise and enjoyment by the plaintiff of his right of shooting.

An interim order was obtained, and a motion for an interlocutory injunction was made, which was turned into a motion for decree, and now came on to be heard.

Fry, Q.C., and Cookson, for the plaintiff.
Southgate, Q.C., and North, for the defendant.

THE MASTER OF THE ROLLS dismissed the bill with costs, and directed an inquiry as to the damages caused to the defendant by the interim order.

Solicitors: Nickinson, Prall, & Nickinson; Ashurst, Morris, & Co.

Bush was the purchaser for value of twenty fully paid-up shares in the above company from Tucker, a promoter, who had bought the Lifford Mills India Rubber Factory for 13,0007., and sold it again to the company for 30,000l.

On the 25th of January, 1869, at a board meeting, it was resolved that the shares agreed to be paid to Messrs. Wilson & Mayall, the original vendors, in part purchase of the factory "be at once allotted." On the 24th of March, 1869, the second agreement for sale was registered, and the issue of Tucker's shares, of which Bush's formed part, was dated on the 14th of April, 1869. Tucker had been warned by the solicitor not to have any shares issued until after registration. Bush's name appeared on the register simply as the holder of twenty shares, nothing being said as to their being fully paid-up. The official liquidator sought to make Bush liable under the 25th section of the Companies Act, 1867. Bush contended that the liability to payment up in full had been "otherwise determined by a contract duly made in writing and filed with the registrar before the issue" of the shares; but the official liquidator argued that the contract was not "duly made," but was in fact fraudulent and void; and that the "issue" of the shares within the section must be held to have dated from the 25th of January.

Swanston, Q.C., Graham Histings, and Ince, for the official liquidator.

Kay, Q.C., and Romer, for Bush.
Swanston, in reply.

THE VICE-CHANCELLOR said that the Act of Parliament had

been complied with not only in letter but in spirit, for the evidence shewed that the issue of the shares had been properly delayed till after the registration of the contract. Bush's title began in April and was perfectly good. There was no reason why Mr. Bush should suffer, and there was no reason why he should be put on the list of contributories. The summons must be refused, and Bush's costs together with those of the official liquidator would come out of the estate.

Solicitors: Harper, Broad, & Battcock; Linklater & Co.

V.-C. B.

NORTH EASTERN RAILWAY COMPANY v. JACKSON. Taxation-Costs of Three Counsel.

Summons on behalf of defendant for review of the taxation of

J. J. Howard died in March, 1871, and his estate was vested in trustees, who were defendants.

The bill, after praying for administration and certain inquiries,

The master had disallowed the costs of a second leader.
Loughborough, supported the summons.

Kay, Q.C., Jackson, Q.C., Hemming, and Onslow, for the plaintiffs opposed. They observed that there had been great diversity in the practice of several of the Chancery judges, past and present, on this point.

THE VICE-CHANCELLOR said he could not accede to the view which had been presented to him on the part of the defendant. The master, who had all the circumstances before him, probably thought that the services of two juniors, if not absolutely necessary, had been eminently useful. It was the duty of the junior to be ready at any moment to turn to any part of the evidence that might be required, and every one knew that the Court and the administration of justice were greatly assisted by the labours of junior counsel. If the taxing master, who had had all the facts and all the papers before him, and who therefore knew more accurately than the Court could do the amount of labour which had been gone through-who, moreover, had disallowed the costs of a second Queen's counsel-had allowed the costs of a second junior, His Honour did not feel at liberty to disturb that decision. Notwithstanding what had been said, and very well said, His Honour felt he might be doing mischief, or even injustice, in allowing the application.

Summons refused with costs.

Solicitors: WV. E. Duncan; Bell, Stewards, & Co.

the trust funds had been invested on any insufficient securities, that the defendants might be ordered to make good any loss that should accrue. There was also a prayer for an inquiry whether part of the trust funds had remained uninvested; for accounts; a receiver; and for consequential relief.

Dickinson, Q.C., and Herbert Smith, for the plaintiffs. Lindley, Q.C., and Yate Lee, for the defendants Turner and Mrs. Camphausen and her husband.

Chitty, Q.C., and Watson, for the representatives of J. J. Howard and other defendants.

the result of it was that the valuations were based upon very THE VICE-CHANCELLOR after referring to the evidence, said insufficient data; that the trustees, especially the defendant Turner, had not made sufficient inquiries in reference to the value of property at Hertford; and that as the trustees had not discharged the duty which was cast upon them of making a proper investigation before they accepted the security, they Honour directed certain accounts and inquiries, and adjourned must be held responsible for any loss that might accrue. His further consideration, with liberty to apply.

ampton; Shum, Crossman, & Crossman, agents for Green & Moberly, Solicitors: Rickards & Walker, agents for Henry Page, South

Southampton.

BELL v. TURNER.

May 4.

V.-C. H.
Trustees and Cestu's que Trut―Investments on Freehold Property
-Insufficient Security-Trustees male responsible for any Loss
that might accrue.

'J. P. Howard, who died on the 30th of March, 1865, by will, in August, 1861, devised unto the defendants Charles Turner, and Anne Camphausen (a daughter of the testator and out of the jurisdiction), and J. J. Howard (a son), their heirs, &c., a freehold house in trust for his daughter, the plaintiff, Mrs. Bell, for life, and (in the event which had happened, viz, the death of her husband) after her death for her children. The testator bequeathed unto the same trustees a sum of 25007. and also onethird of his residuary estate upon trust to invest as in the will mentioned, and to pay the income to Mrs. Bell for life, and after her own and her husband's death to hold the principal in trust for her children as she should appoint, and in default of appointment for the children equally. By a codicil in August, 1863, the testator bequeathed an additional sum of 6500l. to his executors to hold upon the trusts mentioned above. The executors possessed themselves of the testator's estate; effected an equitable division of it and transferred into the names of the three trustees a sum of 10,011l. 4s. 9d. Consols and certain shares in companies, and they paid into a bank to the account of the trustees for investment several sums of money. In October, 1869, the trustees advanced to a mortgagor a sum of 70007., part of the trust funds,

Q. B.

Common Law.

May 8. OLIVER V. NORTH EASTERN RAILWAY COMPANY. Railway Company, Liability of, as to State of Level Crossing. In an action against a railway company for negligence in keeping a level crossing in an improper state, it appeared that the plaintiff was passing in a four-wheeled dog-cart over the defendants' railway, which crossed the highway on a level, and owing to the rails being, as he alleged, too high above the level of the road, the hinder wheels skidded along the rails, and the carriage parted into two.

The defendants' counsel contended that there was no duty cast on the defendants; but called evidence to prove that the rails at the crossing were in a proper state.

The judge left it to the jury to say whether the road and rails were or were not in a proper state; telling them that though the defendants had the sanction of an Act of Parliament to put such rails across the highway as were necessary for the purposes of their line, still the rails must be laid and kept so as to cause as little injury or danger as possible. The jury having found a verdict for the plaintiff,

C. Russell, Q.C., and J. Edge, for the plaintiff.

Holker, S.G., and Waddy, Q.C., for the defendants. THE COURT (Cockburn, C.J., Blackburn, Lush, and Quain, JJ.) held that although there was no express obligation imposed by the Railways Clauses Consolidation Act, still the defendants were bound to keep the crossing in a proper state, on the principle of Rex v. Kerrison (3 M. & S. 526), and other cases; and upheld the judge's direction.

Attorney for plaintiff: J. Tucker.

Attorneys for defendants: Doyle & Edwards, agents for Nixon, Barnard Castle.

Ex. Ch. from Q. B.

May 9.

FISHER AND OTHERS v. LIVERFOOL MARINE INSURANCE

COMPANY. Slip” — Policy — 30 Vict. c. 23, ss. 7, 9.

Appeal from the Court of Queen's Bench. The defendants, a Liverpool insurance company, employed the firm of E. & Co. as their agents in London, to accept risks and receive premiums in London. The plaintiffs instructed P. & Co. to insure for them steel rails, and P. & Co. prepared a slip which was initialed by E. & Co. on behalf of the defendants. According to the course of business observed by the defendants' company P. & Co. sent a copy of the slip to E. & Co., who the same night sent it to the defendants at Liverpool. P. & Co. paid to E. & Co. the premium due on the policy, and the amount due for the stamp duty. The steel rails were afterwards totally lost by the perils intended to be insured against, and the dants then refused to execute any stamped policy.

April 28.

Benjamin, Q.C. (Asplund with him), for the plaintiffs.
R. G. Williams, Q.C. (Aspinall, Q.C., with him), for the defen-

dants.

Held by the COURT OF EXCHEQUER CHAMBER (Lord Coleridge, C.J., Bramwell, Cleasby, Pollock, and Amphlett, BB., Brett and Denman, JJ.) affirming the judgment of the Court below, that no action would lie; for that the initialing of the slip and forwarding the copy slip to the defendants were parts of one contract, and that no further contract could be implied to execute a stamped policy within a reasonable time after the copy slip was transmitted to the defendants; and as no stamped policy had been executed, 30 Vict. c. 23, ss. 7, 9, prevented the plaintiffs from maintaining an action. Attorney for plaintiffs: J. McDiarmid. Attorneys for defendants: Venn & Son,

Bankruptcy-Liquidation-Execution Creditor-Seizure-Money paid to avoid Sale-Bankruptcy Act, 1869, s. 87. This was a special case stated by direction of Bramwell, B., on an interpleader summons to determine whether the plaintiff, the judgment creditor, or the defendant, the judgment debtor's trustee under a liquidation by arrangement, was entitled to a sum of 1327. under the following circumstances:

Judgment in the action was signed on the 13th of November, 1873, and a writ of fi. fa. issued the same day. The sheriff seized the goods on the 14th; on the 20th the defendant paid 1007, to him, and on the 21st, 327. more to avoid a sale. The payments and forbearance from immediate sale were assented to by the judgment creditor. On the 24th of November the defendant filed a petition for liquidation in the Derbyshire County Court; a receiver was appointed, and next day the sheriff was served with a restraining order from the County Court. On the 20th of December a trustee was appointed, who claimed the 1327. as part of the defendant's estate. The sheriff thereupon applied for an interpleader order.

Arthur Charles argued for the judgment creditor, and
Francis Turner, for the trustee.

Searle, for the respondent, and

motion. Bayford, for the Queen's Proctor, did not object to the

there were no special circumstances to justify him in exerTHE JUDGE ORDINARY refused the application by reason that cising his discretion against the manifest intention of the legis

lature.

Attorneys for petitioner: B. W. & V. Powys. Attorney for respondent: R. Kingdon.

P. & M.

IN THE GOODS OF MADDOCKS. May 5. Will-Execution-Witness's Name partly written-Attest and subscribe.

The deceased executed her will by making her mark in the presence of Joseph Clare and Samuel Birtwhistle. Joseph Clare thereupon signed his name to the will, and Samuel Birtwhistle endeavoured to do so also, but having written Saml. he found he could not complete the signature legibly and desisted. Joseph Clare struck through with a pen the word Saml., and another witness having been introduced the deceased passed a pen and ink across her mark, and Joseph Clare a dry pen over his signature. The other witness signed his names to the will.

Bayford moved the Court to decree probate of the will to the executors thereof. The last execution was ineffectual because Joseph Clare did not subscribe the will after the deceased had renewed her mark, but the first was sufficient, because Birtwhistle wrote the word Saml. with an intention to attest, and it is immaterial whether a witness under those circumstances writes a portion of his own name or makes a mark, or even signs another person's name. He referred to Charlton v. Hindmarsh (1 Sw. & Tr. 433).

May 5. SIR J. HANNEN:-I have come to the conclusion that I must reject this application, being of opinion that the witness did not put the word Saml. on the paper with the intention at the time that it should be a perfect subscription to the will. Having done something he broke off without completing his intention, and that is insufficient.

Proctor: Ayrton.