ankrupt had complied with the only condition sed upon him by the Legislature as the condition s obtaining the order of discharge, and that it was ompetent for their Lordships to take into conation the various objections which had been against the bankrupt's application on the ground s conduct as a trader. He thought that the apmust therefore be allowed.

ord Justice TURNER said that he also dissented the view which the learned commissioner had 1, but he did so upon grounds different from those hich his learned brother had founded his judg

[ROLLS.

real consideration being what the party creating the trust has himself done in the matter.

A lady refused to make a will, but told T. D. that she wished to dispose of all her property in her lifetime in a certain manner, which she stated to him. She then gave him some money to carry out her instructions, and executed a power of attorney for the sale by him of some stock belonging to her. T. D. in her lifetime distributed a part of the money given to him; but the lady died intestate before the stock was sold. After her death other moneys came to the hands of T. D., and there was also money in the possession of P. belonging to the deceased. Upon a bill filed to obtain a declaration of the court whether a valid trust had been created of the whole, or any, and what part of the intestate's property, or in the alternative for the administration of her estate, it was, in accordance with the above principles,

Held, that there was a valid trust of so much of the property as she gave to T. D. in her lifetime; but not as to the rest:

Held, also, that the trustee must have his costs out of the general estate, and not out of that part of the property of which he was declared to be a trustee. The plts. in this suit were James Peckham and Hannah his wife, who was the sister of a person named Elizabeth Brooker, who died intestate, as hereinafter mentioned; and the defts. were, William Taylor, the administrator of the said Elizabeth Brooker, and James Davies, an alleged trustee of her property.

The bill was filed for the purpose of obtaining the opinion of the court, as to whether or not a valid trust of all or of any, and what part, of the personal property belonging to the said Elizabeth Brooker had been declared of it by her in her lifetime, and for the carrying out of the trust; or if there were no trust, then for the administration of her estate.

For his own part, upon considering the 110th on of the Act of last session, he was unable to upon it the same construction which had recomded itself to his learned brother, for it appeared to that that section gave the bankrupt only a right oply for the order of discharge after making a full overy of his estate, and this by no means implied he had a right to have that application granted. the contrary, indeed, it was his opinion that, r proceedings in bankruptcy had been suspended er the 110th section, it was competent for the t, upon the bankrupt making his application for an r of discharge, to exercise its discretion as to the ting or refusing of the order, even after the bankshould have made a full discovery of his estate. to the limits put upon that discretion, his Lordship st adhere to the opinion he had expressed in a recent e (Ex parte Glass, re Boswall, reported ante, 407), that regard was to be paid to the conduct of bankrupt both before and after adjudication, and simply to the question whether he had or had not n guilty of the specific offences mentioned in the 9th section of the Act. Such being his Lordship's nion upon the law of the case, it became necessary him to consider the various acts of misconduct ich had been alleged against the bankrupt bee he could properly determine whether the ler of discharge ought to be granted or not; d with this object the Lord Justice proceeded to comThe said Elizabeth Brooker was for some years ent upon those acts, which it is not necessary fur- previous to and at the time of her death, in the service er to go into, but which, as already is mentioned, of a Mrs. Praed, as her cook and housekeeper, and was Il be found in the previous report at page 247 of the possessed of 1137 Bank Three per Cent. Annuities, esent volume. He stated his conclusion that, al-standing in her own name in the books of the Bank ough the bankrupt's books had been most imper- of England, together with some unreceived dividends ctly kept, he was not satisfied upon the evidence that thereon, and of ready money amounting to about ey had been so kept wilfully, and with an intention 8271. 9s. 2d. concealing the true state of his affairs; and that as to e other acts of misconduct, he did not think that ey must be deemed to have been committed by the ankrupt with a fraudulent design. For these reasons, nd taking this view of the circumstances, his Lordhip's opinion was, that an order of discharge ought to e granted to the bankrupt; but, having regard to the nsatisfactory manner in which the books had been ept, he should only order the deposit upon the appeal › be returned to him, and he must not be allowed to ake anything for costs out of his estate. The costs f the opposing creditors and of the official assignee rould however be paid out of that estate.

The facts of the case, as they were established by the evidence, were shortly the following:

On the 3rd May 1861 the said E. Brooker was very ill, and she sent to a Mr. James Davies, who was an old friend of hers, and requested to see him. He accordingly on the same day went to see her, and had an interview with her. She then told him her wishes with respect to the disposition of her property, and asked him to take upon himself the distribution of it. He then suggested to her that she should make a will, but she declined to do so, and said that she would dispose of her property in her lifetime; and she asked him to obtain at once a power of attorney from her to himself to enable him to sell the said 1131. Bank Three per Cent. Annuities, and forthwith to sell the same, and out of the proceeds thereof to give 251. to each of the four eldest children of the plt. Hannah Peckham (who was her sister), but not to give it to them until the 1st July; and out of the surplus proceeds of the Consols and the rest of her property, which she said she intended to place in his hands, to give at once 107. to each of the said four eldest children, and 10%. to each

of the youngest children of her said sister, and to invest the residue as he thought best, so as to secure the greatest amount of income, and to apply the income and portions of the capital, if necessary, for the benefit of her said sister and her husband the plt James Peckham, and so as if possible to give them, and the survivors of them, 30s. a-week during the remainder of their lives; and if anything remained

of by her; that he was entitled thereto as sati aisnistrator as aforesaid, and that after par da debts and funeral expenses of the said E. Broker the expenses attending the administration of her se the clear residue belongs to the next of kin of the a E. Brooker living at the time of her death. ame The bill also contained other statements (to for the purpose of this report it is not material to seiz and then prayed as follows:

Mr. Davies saw the said E. Brooker again at Mrs. Prael's house on the 23rd May 1861, in her bedroom (which was on the ground floor), and she then repeated to him the wishes and directions as to the disposition of her property in the same manner and to the same effect as she had expressed them at the aforesaid interview on the 20th May 1861, and told him she would send or give him the money to carry out her instruc- That it might be declared that a valid trasa tions. Mr. Davies thereupon left her with the plt. personal estate of the said E. Brooker deceased v Hannah Peckham, and he went up stairs to the dining-created and declared in her lifetime, and that the room, where he saw a Mr. Emanuel Baker, the medical attendant of the said E. Brooker.

After Mr. Davies left the said E. Brooker, Jane Hammond (who was also a servant of Mrs. Praed) went into the said E. Brooker's room, and the said E. Brooker then, at the suggestion of the said Jane Hammond, gave to the plt. H. Peckham some money which she the said E. Brooker had near her at the head of the bed, and desired her to take it to Mr. Davies and to remind him of what she the said E. Brooker had said to him about it.

The plt. Hannah Peckham thereupon went, together with the said Jane Hammond, to the dining-room, and saw there the said J. Davies and the said E. Baker, and she told him what the said E. Brooker had said, and delivered to him the money which the said F. Brooker had given her for that purpose, and thereupon Mr. Davies handed it to the said Emanuel Baker, who counted it, and found it to be 3451.; and the said J. Davies then gave 60%, part of the sum of 345l., to the said E. Baker, and asked him to count it, which he did, and then handed over the amount to H. Peckham, in order that she might give the same to her said four eldest and two youngest children, and the said E. Baker thereupon wrote a receipt for the said sum of 607. for the plt. H. Peckham to sign, and she (being unable to write) put her mark to it, and afterwards paid the said sum of 60%. equally between her said six children. The said Emanuel Baker, also, at the same time, made a memorandum of the numbers and amounts of the notes for 2851. (the residue of the said sum of 345., after deducting the said sum of 604), and delivered the said receipt and memorandum

On the 24th May 1861 the said E. Brooker died intestate, without ever having been married; and on the 24th Dec. 1861 letters of administration to her estate were granted to the deft. W. Taylor. Mr. Davies did not act on the power of attorney in the lifetime of the said E. Brooker, and the said 1137. Three per Cent. Annuities are still standing in the name of the said E. Brooker in the books of the Bank of England. After the death of the said E. Brooker Mr. Davies received some further money belonging to her, amounting (together with the aforesaid sum of 2851.) to the sum of 5177. 98. 2d. in the whole. There was also in the hands of Mrs. Praed the sum of 2501. belonging to the said E. Brooker.

The plts. submitted that, under the circumstances aforesaid, a trust was well and sufficiently declared by the said E. Brooker not only of the sum of 3451. so as aforesaid handed over to Mr. Davies, but also of the said 113. Bank Three per Cent. Annuities and all other the personal estate of the said E. Brooker. The deft. Wm. Taylor, however, alleged that no such trust was effectually declared or created; that the personal estate of the said E. Brooker was undisposed

J. Davies was trustee thereof, after payment of am
of 101.so as aforesaid paid to each of the four essa
two youngest children of the pits, for the pures
paying the sum of 25%, to each of the far els
children of the plts, and securing and paying to w
plts. during their joint lives and the survivor of the
during his or her life the weekly sum of 30
subject thereto, for the benefit of the pits.' s
youngest children; or, at any rate, that such trus
effectually declared with respect to the sum of H
which was placed in the hands of the deft. J. Isl
in the lifetime of the said E. Brooker as berei
mentioned; and that proper directions might be pa
for carrying the said trust into effect :

Or else that the personal estate of the sil Brooker might be administered under the decrea honourable court:

That, for the purposes aforesaid, all proper as might be taken and directions given; and that the might have such further or other relief as the nature a the case might require.

Dickenson appeared for the plts., and after star the facts of the case, as above set forth, and the pits. claimed either as cestuis que trust of the inte to be entitled to the whole of her property; or a of it, as some of her next of kin, if no valid trust been created, cited Bridge v. Bridge, 16 Bear Kiddill v. Farnell, 3 Sm. & G. 428. [The M.&. ferred to Ex parte Pye, 18 Ves. 140.]

Melcille, for the administrator, contended t valid trust had been created by Miss Brooker of 17 part of her property; at all events of none other the 3451. There was no memorandum prese Mr. Davies of the transaction in question, and 204 dence beyond his own assertions (corroborated, true, by other witnesses) of what had taken pla was in fact an attempt to induce the court t nuncupative will for the intestate. He also 57 that Mr. Davies ought not to have paid over the to the plt. out of the 345l. in his hands. E Hughes v. Stubbs, 1 Hare, 476.

H. R. Young, for the deft. Mr. Davies, t part in the argument, beyond submitting that, in event of the court being of opinion that there wa trust as to any part of the property, he was pr to contend that the payment of the 604 by Mr. Des to the plt. was properly made by him.

The MASTER of the ROLLS.-I am of opini there was a valid trust created by Miss Brooker is L. 5 much of the property as came to Mr. Davies's from her in her lifetime-that is to say, the 343 is immaterial, for the purpose of establishing s of personal property, whether it be declared cra in writing; the only question is as to the eve its existence. If the evidence is at all doubti court will receive it very cautiously, especialy trustee himself takes any beneficial interesti property. Here, however, that Mr. Davies takes no interest in it whatever. I opinion also that the fact of Mr. Davies having acted upon the faith of Miss Brooker's instructio him is immaterial as to the existence of the The real consideration is, what she herself matter? I also think that this is not the case of ↳

not the case,

V.C. S.]

M'CULLOCH v. M'CULLOCH-REG. v. THE TYNE IMPROVEMENT COMMISSIONERS.

cupative will. Mr. Davies suggested to the state that she should make a will; and, what was answer? Why, by the evidence (and I see no =on to doubt it) she distinctly refused to make one, said she wished to dispose of her property in her ime; and in pursuance of that resolution she exeed a power of attorney, authorising Mr. Davies to the stock, and actually gave or sent to hin 345., reminded him of what she had previously said to as to the disposition of her property. As to so ch of the property, therefore, I am clear that e was a gift of it by her to him, upon the sts declared of it by her. It was a gift, out the reservation of any power of revocation; I think if she had subsequently recovered, instead dying, as she so soon afterwards did, she could have claimed that part of the property again. sh to be understood as not, at present, expressing opinion as to the propriety of the payment of the out of the 3457. by Mr. Davies to the plt., for the ination of my mind is, that the six legacies of - should have been satisfied out of the proceeds of 113. Consols when sold, which has not been done. e determination of that point is, or will be, properly de in the administration of the estate. With pect, however, to that sum of stock, and the money ne to Mr. Davies' hands since Miss Brooker's death, well as the 250/. in Mrs. Praed's possession, I think trust has been declared as to that part of the -perty. I think all the property should be brought o court, to be administered here. Mr. Davies ist account for what he has received, and be owed whatever proper payments he has made; Mrs. Praed will also pay into court the 250l. ich she has. It must all be invested; and as e balance of the 345. is not applicable to the sts of this suit, Mr. Davies must have his costs, between solicitor and client, out of the other rt of the property, and all further proceedings gainst him in this suit must be stayed.

V. C. STUART'S COURT. Reported by JAMES B. DAVIDSON, Esq., of Lincoln's-inn, Barrister-at-Law.

May 3 and 5.

M'CULLOCH v. M'CULLOCH.
gacy-Construction- Whether absolute gift, or for
life only.

estator gave a legacy of 3000l. to a single woman,
"the interest thereof to be for her own sole and sepa-
rate use during her lifetime, and while she continued
unmarried; thereafter, should she marry, the prin-
cipal sum with the accruing interest thereon to pass
into the hands of his residuary legatee:"
feld, that this was a gift of 3000l. to the legatee ab-
solutely, with a gift over only in the event of her
marrying again.

[Q. B.

be his trustees on behalf of Agnes Bland; and after giving some pecuniary and specific legacies, appointed his mother Mrs. Jane M'Culloch his residuary legatee, "with the desire that his residuary estate chould be afterwards left by her in her own and his name to charitable purposes."

The testator died three days after the date of the will, and administration, with the will annexed, was, on the 21st March 1860, granted to the testator's brother, William M'Culloch, the present plt.

The sole question now for the decision of the court was, whether Agnes Bland was entitled to the legacy absolutely, subject only to its being devested in the event of her marriage; or whether she took it only for life or until her marriage.

Bacon, Q.C. and W. Forster, for the plt., submitted the question.

Malins and W. W. Cooper appeared for Agnes Bland, and contended that her interest in the legacy was absolute, subject to be devested only in the event of her marrying again.

Greene, Q.C. and Rumsey, for the residuary legatee, contended that the gift was for life only, or until her marriage. They cited Miles v. Clark, 1 Keen, 93; Vaughan v. The Marquis of Headfort, 10 Sim. 639; Ogle v. Corthorn, 14 L.J., N. S., 337, Ch.; Webb v. Grace, 2 Ph. 701; Potter v. Richards, 24 L. J. 488, Ch.

Craig, Q.C. appeared for the next of kin, who would be entitled in case it should be held that the gift to Agues Bland was for life only, and that the gift of the residue to charity (after Mrs M'Culloch's death) was void for uncertainty.

66

Wickens for the Attorney-General.

The VICE-CHANCELLOR.-The question merely turns upon the meaning of the word "thereafter; and it seems to me impossible to construe the word thereafter as referable to the two events of dying and marrying, because the words which immediately follow exclude that notion. I think I am bound to hold that the word "thereafter" relates to the event of marrying only. The testator has plainly given the principal sum to the lady in question; and then, for a very sensible and very clear purpose, he has directed how the interest shall be applied during her lifetime, and he has added words of gift over to the residuary legatee in one event only, and that the event of her marrying again. That being so, it is impossible to say that she takes a life-interest only, when he has given her a sum of 3000l. She has an absolute interest in the principal, with a direction that the interest only shall be applied for her use during her life, because in the event of marriage there is a gift over of the principal sum. Until that event happens, or if it never happens, nobody but this lady herself can be entitled to this sum.

His Honour ultimately made a declaration that Agnes Bland was entitled to the sum of 3000l. and interest, with a gift over in the event of her marrying; the sum to be placed to her separate account till marriage or further order, with a direction to pay the dividends to her for life, until marriage, or further order; with liberty to apply on her marriage or death.

George M'Culloch, a staff surgeon in the army, on alf-pay, by his will dated the 29th Oct. 1859, after ayment of all his just debts and funeral and testahentary expenses, bequeathed to Agnes Bland (someimes called M'Culloch) the sum of 3000l. sterling, he interest thereof to be for her own sole and separate ise during her lifetime and while she continued unnarried; thereafter, should she marry, the principal um with the accruing interest thereon to pass into the hands of his residuary legatee." The testator gave also o Jane Elizabeth Bland (otherwise M'Culloch), daugh- Reported by JonN THOMPSON, T. W. SAUNDERS, and C. J. B.

ter of the above-named Agnes Bland, or M'Culloch, the sum of 3000/. sterling, for her own sole and separate 1se for ever; the interest of the said capital sum of 3000l. to be then applied for her maintenance and education, and thereafter as she might think proper, both as regarded principal and interest. Testator appointed his brother William M'Culloch and Alfred Peskett to

Common Law Courts.

COURT OF QUEEN'S BENCH.

HERTSLET, Esqrs., Barristers-et-Law.

Q. B.1

REG. v. THE TYNE IMPROVEMENT COMMISSIONERS.

their services; and, in the deductions to be made in the assessment of the dock to the poor-rate, they claimed, under the head of "disbursements," a sum of 500l. as "allowance for direction;" and another sum of 150l. for watching, which was done by a police-boat, provided and paid for out of other than dock funds. They also claimed, under the head of "moveable plant," a deduction of 1200l., for a steamboat used for towing barges, when filled with mud, out to sea and back; and, under the head of "capital for carrying on the dock," 500l. for "cash balance," and 500l. for “stores on hand," and also a deduction of 4s. in the pound for rates and taxes on the gross rateable value of the dock: Held, that the deductions for direction and watching and for cash balance ought not to be allowed: Held, also that the deduction for the steamboat was not allowable while it was used only for the work of constructing the dock; but, if it became necessary for permanent use in removing silt, it would be a deduction in future rates:

Held, that the deduction in respect of stores on hand ought to be allowed:

Held, that the allowance in respect of rates and taxes should be upon the net rateable value of the property, after the rates and taxes themselves have been deducted.

Case stated for the opinion of this Court by an arbitrator, after appeal against an assessment to the poor's rate.

SPECIAL CASE.

executed and carried out divers works in connection and necessary for the formation and use of san dock. The dock being formed by inclosing patt ancient land on the shore of the river Tyne, and y chased for that purpose by the commissioners trea Duke of Northumberland, and part of the rive extending beyond low-water mark and including p of a sandbank dry at low water, lying bev the low-water mark and the main chancel & the | river. Between this sandbank and low-water

was part of the bed of the river always covered a water. The inclosure had been formed by a b row of piles, driven to a considerable depth, bem which the mud and sand have been scooped esta the space packed with clay. An embankment of d has then been placed against the piles, reaching tops and sloping outwards on each side, the whole bax covered with stone varying from 1 foot to 2 feet t thickness. The area thus inclosed has been exeatUK by means of a floating dredging-machine, in order a obtain the requisite depth of water for ships using the dock. In a portion of the dock this depth a yet been reached. After the works are completed a will always be necessary to continue the dredging. certain extent, in order to remove the silt from time deposited in the dock and at the entrance.

By a poor-rate made on the 9th Dec. 1859, commissioners were rated to the relief of the pair the township of Chirton in respect of the said Nort berland Dock, in a rate of 4d. in the pound on the s rateable value of 10,000l. By another rate, male 21 the 19th March 1860, they were rated at 6d in t pound on a like rateable value; and by another ræë

The Tyne Improvement Commissioners were incorporated and empowered, by the River Tyne Improve-made on the 25th June 1860, at 6d. in the po ment Act 1850, 13 & 14 Vict. c. 63, amended and extended by the Tyne Improvement Act 1852, 15 Vict. c. 110; the Tyne Improvement Act 1857, 20 & 21 Vict. c. 71; and the Tyne Improvement Act 1859, 22 & 23 Vict. c. 7, which several Acts, and with the several Acts therein respectively recited or referred to, or incorporated therewith, are to be taken as part of

this case.

By the River Tyne Improvement Act 1850, s. 3, it was enacted that the Act be put in force within the limits of the port of Newcastle-upon-Tyne, which extend from Hedwin Streams above the borough of Newcastle-upon-Tyne to Spar Hawke in the sea, and comprise all streams, havens, creeks, bays and inlets between Hedwin Streams and Spar Hawke, within the flow and reflow of the tide, and situate within er bounded by the several parishes, townships and places therein mentioned, and amongst others the township of Chirton, in the county of Northumberland. By sect. 27 of the same Act, the commissioners were constituted the conservators of the port of the river Tyne, and the conservancy of the said port and river respectively was vested in the commissioners, and all rights, powers, privileges and authorities whatsoever at the time of the commencement of the said Act vested, had, claimed, exercised, enjoyed, performed, imposed and obligatory, and which ought to be exercised, enjoyed and performed respectively in, by and on the municipal corporation of Newcastle-upon-Tyne, by, under and by virtue of the therein-recited Acts or any of them, and any grants and prescriptions, or otherwise howsoever with respect to the conservancy of the port and river, and the improvement, maintenance and repair of the said port and river, and the quays, banks and shores thereof, save so far as regarded rates, tolls and dues, were vested in the commissioners as fully and effectually and in like manner as the same had been vested in and imposed and obligatory upon the said corporation.

Under and by virtue of the powers contained in the Tyne Improvement Act 1852, the said commissioners made and established the Northumberland Dock, and [

and by another rate made on the 17th Dec. 186,
6d. in the pound on the like rateable value. Agos
these several rates respectively the Tyne Co
sioners duly appealed to the court of quarter seasts
for the county of Northumberland, which appeals ha
been from time to time respited and are still pl
The parties have agreed that the rateable value of
dock shall be ascertained and affixed by taking hi
annual receipts of the commissioners in respect of
dock, and deducting therefrom the disbursements and
all other proper allowances, and the following is
rect statement of the annual receipts and of the seeds
amounts in respect of which deduction is to be a
subject to the opinion of the Court of Q. B. en tan
questions hereafter submitted :—

REG. v. THE TYNE IMPROVEMENT COMMISSIONERS.

£7,409 13 21 dock-masters' pay-bills for wages, stores, and other
current expenses, but not tradesmen's accounts.
the end of the year 1859 the outstanding tradesmen's
accounts were between 1300l. and 14007., against
which there was upwards of 900l. owing to the dock
on book-debts. In case the dock account is overdrawn
at the banker's, interest is charged. The salary of the
engineer is paid out of the general fund of the commis-
250 0 0 sioners, a proportion being debited to the dock.

5. The resps. object to deduction for stores on hand. The item"dock stores 2561. 1s. 2d." is the amount of stores used at the dock in the course of the year. The apps. have, at Howden, on the river Tyne, some distance from the dock, a depôt containing chains, ropes, buoys, timber, and other stores and materials for use throughout their jurisdiction. The amount of 500l. under item 5 is to be taken as the proportion of these stores kept on hand for the dock.

6 and 7. The resps. object to these items of deduction. The disbursement of 500l. under the head of "repairing dock-gates and entrances," is for the ordinary repairs, besides which the apps. contend that a perocentage on the capital should be allowed for extensive repairs and renovation in the course of time.