MESSEENA v. CARR. Jan. 20. THE MASTER OF THE ROLLS held that Horner, Hattersly, and |M. R. Caudwell were liable to refund the sums received by them Will-Power to lay out a Sum in Purchase of Annuity at Discretion respectively; but that the bill must be dismissed, without costs of Trustees-Gift of Part of Sum to Annuitant by Trustee. as against the five directors of the Exchange Bank, and with Testatrix gave her residuary estate to her two trustees, costs as against the representatives of the deceased director. Carr and Robinson, upon trust, as to one-fifth thereof, for John Solicitors: Lawrance, Plews, Boyer, & Baker; W. Lane; Chapelhow for life, and after his death for Grace Messeena and her children, with a proviso that it should be lawful for her said trustees or trustee, if they or her thought it desirable so to do, with such one-fifth share to purchase, for the benefit of the said John Chapelhow, an irredeemable annuity of such amount as Jan. 18. could be thereby obtained. Edmands. M. R. FINLASON v. TATLOCK. John Hardcastle, the testator in the cause, by his will gave his residuary personal estate to trustees, and the will then proceeded thus: the interest to be paid to my dear wife, Esther Hardcastle, during her natural life, and at her decease the principal and interest to be equally divided amongst my children or their heirs." A child of the testator assigned his share, and afterwards died in the lifetime of Esther Hardcastle. The question arose on the death of Esther Hardcastle whether the assignee was entitled to the share of this child, or whether it passed to the "heirs" of the child, and, if so, who such "heirs" were. Jessel, Q.C. (C. Browne with him), for the plaintiff. Bristowe, Q.C., for the assignee of the child. THE MASTER OF THE ROLLS held that the "heirs" were entitled, such heirs being the next of kin of the child according to the Statute. pro This was a suit by the official liquidator of the Birmingham Banking Company to enforce a charge on certain leasehold perty known as the Alhambra Palace, in Leicester Square, under the following circumstances:-Sir W. Foster, who was mortgagee of the property, with a power of sale, had contracted with A. Pooley for the sale to him of the property for 22,5007., payable by instalments. Pooley, after paying part of the purchasemoney, amounting to 12,500., made an equitable assignment of the benefit of his contract to the Banking Company to secure a large amount in which he was indebted to them, and a notice of the company's charge was sent by their solicitor to Foster. After the receipt of the notice, Foster completed the sale to Pooley without communicating with the Banking Company, and received 10,000l., the balance of the purchase-money. Pooley immediately afterwards sold the property to a purchaser for value, without notice of the company's interest. The object of the present suit, to which Foster and Pooley were defendants, was to make Foster liable, as trustee for the company, for the loss occasioned to them by the assignment to Pooley after receiving notice of their charge. Southgate, Q.C., Archibald Smith, and Chitty, for the plaintiff. Sir R. Palmer, Q.C., and W. F. Robinson, for the defendant Sir W. Foster. Jessel, Q.C., and Hull, for the defendant Pooley. THE MASTER OF THE ROLLS held that the defendant Foster, having neglected the notice, was liable to make good the loss sustained by the company. Solicitors for the plaintiff: Dale & Stretton, agents for Ingleby, Wragge, & Evans, Birmingham. Solicitors for the defendants: Field & Co.; F. W. Mount. No The one-fifth share of the residue amounted to 3647. annuity was purchased, but payments were made to Chapelhow from time to time out of the capital of his share, amounting to 2717., by Robinson, the sole acting trustee, who afterwards died. A suit was instituted for the administration of the estate of the testatrix, and the question arose, on further consideration, whether the power for the purchase of the annuity had been properly exercised, or whether Grace Messeena and her children were now entitled to the whole share. Southgate, Q.C., and W. Barber, for the persons entitled in remainder, contended that it was a gift for life, with a superadded power which could not properly be exercised by payments by instalments, nor by one only of the two trustees. Archibald Smith, for Carr, the surviving trustee, contended that, where there was a power to lay out a sum in the purchase of an annuity for a person, there was a power to give him that sum, and, à fortiori, to give him a less sum. Grenside, for the representatives of Robinson. THE MASTER OF THE ROLLS held that the power had been properly exercised to the extent of the payments made to Chapelhow, amounting to 2717., and that the remainder only of the one-fifth share must be accounted for. Solicitors: T. Southgate, agent for T. Buckley, Rochdale; Stone, Billinghurst, & Wood; F. C. Clarke, agent for W. Wylson, Appleby. M. R. Jan. 22. In re HATTATT'S TRUSTS. New Trustee-Husband of Cestui que Trust. This was a petition under the Trustee Acts for the appointment of two persons to be the trustees of a will. One of the persons proposed was the husband of a lady who was entitled to the income of a share of the trust fund during her life. Speed, for the petition. THE MASTER OF THE ROLLS made the order, upon an undertaking being given by the husband of the cestui que trust that, if he became sole trustee, he would immediately take all proper and necessary steps for the appointment of some person to be a Solicitors: Taylor, Hoare, & Taylor. co-trustee. M. R. In re JONES' WILL. Jan. 25. Will-Construction-Restraint on Alienation-Conditional Gift. Henry Jones, by his will, gave his residuary, real, and personal estate to trustees, upon trust for his wife during her life, and after her death "in trust to be divided into as many shares as I have had nephews or nieces, children of my brothers and sisters, the children of any deceased nephew or niece standing in loco parentis; and I give and bequeath one of such shares to each surviving nephew or niece, or to the children of any deceased nephew or niece, the children of a deceased nephew or niece to take only their parent's share in equal shares, if more than one;" and after devising trust and mortgage estates, and appointing executors, the testator proceeded: "As to the share of my nephew William Jones under the above bequest, I direct my trustees to hold the same during his life, and to pay the interest and proceeds thereof to him as the same shall accrue due, and not in anticipation; and I direct and declare that, if the said share | be used in common by the proprietors of land in the parish of of the said William Jones shall become liable to be seized by any Long Ashton for the repairs of the roads in the parish, but had of his creditors, or if he shall become bankrupt, or if he shall been left uninclosed and had never been quarried. The plaintiff's alien or mortgage the same, or attempt to mortgage or alien the house, which was separated from the piece of land by a public same, then immediately on either event happening his interest road, was built in 1833 on land allotted to the Corporation of in such share shall cease, and the same shall go to and between Bristol under the above-mentioned award, and was held by the his sisters absolutely in equal shares." plaintiff under a lease from the corporation. William Jones assigned his share, which on the death of the tenant for life was paid into Court under the Trustee Relief Act. A petition was presented by the assignee for payment of the fund to him. Wickens and Begg, for the assignee, contended that the gift to William Jones was an absolute one, followed by a restraint on alienation, which was void. Marten, for the trustees and the three sisters of William Jones, contended that the gift was in the nature of a conditional limitation to him until alienation. THE MASTER OF THE ROLLS held that the gift was absolute, that the restraint on alienation was void, and that the petitioner was consequently entitled. Solicitors: Stretton; Foster. V.-C. S. CHAPMAN v. CHAPMAN. Jan. 20. Solicitor and Client-Mortgage Transactions-Land for Building Purposes-Negligence-Bill dismissed. The defendants acted as the solicitors of the plaintiff in certain mortgage transactions having reference to a lease of land for building purposes, and the plaintiff sought, on the ground of neglect of duty as to the securities on which he advanced his money, to obtain from the defendants by a decree the sum of 70007. and interest at 6 per cent. The plaintiff sought, in the alternative, to make the defendants liable for 52007. in aid of any deficiency resulting from the abandonment, through the advice of the defendants, of certain property included in the mortgage, and he asked to be indemnified generally in respect of the securities, and the costs of suits to which he might be made a party through the negligent and improper way in which the defendants had transacted his business. No actual loss had been incurred by the plaintiff excepting the non-payment of interest for some time, and the uncertainty when it would be paid, and it was impossible to say that the plaintiff would ultimately sustain any loss, or anything more than inconvenience. The plaintiff was fully informed and consulted by the defendants upon all matters, including reports of surveyors. Dickinson, Q.C., and Caldecott, for the plaintiff. Wickens and W. Barber, for the defendants. THE VICE-CHANCELLOR said that, in a question between solicitor and client as to loss from negligence, there must be negligence of a gross and palpable kind to give a right to relief; but where, as in this case, the conduct complained of was more properly to be described as imprudent or indiscreet rather than negligent, and every transaction was referred to the judgment of the client himself, who concurred in it, there seemed to him to be no right to it; and, therefore, the bill must be dismissed with costs. Solicitors Walters, Young, Walters, & Deverell; Chapman, Clarke, & Turner. V.-C. M. The plaintiff alleged that he and his predecessors in title, the owners and occupiers of his house and the site of it, had used certain rights of way over the piece of land as of right and without interruption for more than fifty years, and that the land could not be quarried without blasting, which would create a dangerous nuisance to the occupiers of the plaintiff's house and to persons passing along the highway. Pearson, Q.C., and Horton Smith, for the plaintiff. Solicitors for the plaintiff: Bridges, Sawtell, & Co. In re BAGLAN HALL COLLIERIES COMPANY. Company-Contributory-Subscribers of Memorandum of Association-Paid-up Shares. This was an application to place nine subscribers of the memorandum of association of the above-named company, now being wound up under the supervision of the Court, on the list of contributories for the number of shares for which they had respectively subscribed. The company was registered on the 14th of May, 1867, with a nominal capital of 25,000l., in 500 shares of 50%. each, for the purpose of working a colliery, and was subscribed by the respondents for a number of shares amounting in the aggregate to 200, and by one Parker for 200 shares. The articles of association recited that the subscribers of the memorandum were possessed of the colliery in the respective proportions of the number of shares set opposite their names in the memorandum, subject to mortgages for 40007., and provided that the nominal capital should be divided into 300 A shares and 200 B shares, that the 200 B shares should be allotted as fully paid-up shares to Parker in respect of his interest in the colliery, and that the "whole of the 200 A shares subscribed for in the memorandum of association, and the whole of the 200 B shares, should be deemed to be fully paid up, and every subscriber for the said 400 shares should be credited in the books of the company with the full amount payable in respect of his shares." Before the registration of the company the respondents had paid Parker 10,000l. for a moiety of the colliery, and after the Jan. 14. registration of the company Parker executed a deed declaring himself a trustee of the colliery for the company. WATKINS v. LONG ASHTON DISTRICT HIGHWAY BOARD. Right of Way-Land awarded under Inclosure Act for Public Stone Quarry-Injunction-Trifling Injury. This was a suit to restrain a district highway board from inclosing or otherwise dealing with a piece of land so as to obstruct certain alleged rights of way, or to interfere with the safe enjoyment of the plaintiff's house. The piece of land in question was allotted under an award made under an Inclosure Act in 1813, for a public stone pit, to No shares in the company were allotted. Glasse, Q.C., and Caldecott, for the liquidator, contended that the respondents were bound to pay for, and had not paid for, the shares for which they had subscribed either in money or money's worth, and that the articles of association did not relieve them from this obligation. Cottrell, for Parker, supported the application. Cotton, Q.C., B. B. Rogers, Haynes, and Everitt, for the respondents, contended that under the memorandum and articles of association the shares subscribed for were fully paid-up shares, for which the company received the colliery as consideration. THE VICE-CHANCELLOR held that the Companies Act, 1862, required that the memorandum should be subscribed for at least seven shares, for which the subscribers should be liable to pay the whole amount in money or money's worth after the registration of the company; that, where by the memorandum the subscribers agreed to take shares simpliciter, persons dealing with the company were entitled to assume that such shares were ordinary shares, upon which the full amount was payable, and were not bound by any provisions to the contrary in the articles of association; that, in the present case, the articles did not distinctly provide that the shares subscribed for should be taken as fully paid up, and that any such provision would have been illegal and void; and that the respondents, not having, after the registration of the company, paid anything either in money or money's worth for the shares for which they had subscribed, must be made contributories in respect of those shares, and pay the costs of the adjournment of the application into Court. Solicitor for the official liquidator: Becke. Solicitors for Parker: Nokes, Carlisle, & Francis. A petition was now presented by Agnes Hall and the infant for the payment out to her of 1027. 1s. 8., and the investment of the balance of the fund in Consols, and the application of the dividends for the maintenance of the infant. Chitty, for the petitioners. Bovill, for the company, submitted that no part of the capital ought to be paid out to the dowress, but that the whole ought to be invested, and a third of the dividends paid to her for life. THE VICE-CHANCELLOR held that the dowress was entitled to the payment of the amount which had been ascertained to be the value of her dower; and made the order. Solicitor for the petitioners: Welborne. Solicitors for the company: Burchells. V.-C. M. In re WILLIAM SMITH'S ESTATE. Solicitors for the respondents: Bothamleys & Freeman; W. M. Clauses Act, by the Brighton District Local Board, for the purWilkinson; Valpy & Chaplin. Jan. 20. chase of land, part of a settled estate, and for the investment of the remaining 2197. in Consols. A. Lewis, for the petitioners. Bovill, for the Local Board, contended that an interim invest Practice-Amendment of Bill—Materiality of Amendment-Suitment on mortgage was contrary to the practice of the Court, and by Trustee-Contributory against Cestui que Trust prosecuted by Official Liquidator. This was a motion for leave to amend the bill, the time for amendment without special leave having expired. The plaintiff, having been made a contributory of a company in course of liquidation in respect of shares of which he was the registered holder, but of which he alleged that he was only a trustee for the defendant, instituted this suit to be indemnified by the defendant against the calls. By an arrangement between the plaintiff and the liquidator of the company, the suit was being prosecuted by the liquidator in the plaintiff's name. The object of the proposed amendment was not to state new facts, but to raise more distinctly the case of alleged trust. Cotton, Q.C., and Chitty, for the plaintiff. THE VICE-CHANCELLOR said that the bill, in his opinion, contained a sufficient allegation of the trust, and therefore that the proposed amendments were not material; and that, although the plaintiff might be entitled to indemnity from the defendant, the company must be content with the liability of the plaintiff, the registered shareholder, and the liquidator ought not to be allowed to prosecute the suit against the defendant, who was under no liability to the company; and on both these grounds he should, in the exercise of his discretion, refuse the motion with costs. Solicitors for the plaintiff: Linklaters, Ilackwood, & Addison. that it would be oppressive to the Local Board to pay the costs of a mortgage, and afterwards to pay the costs of an investment in the purchase of land. THE VICE-CHANCELLOR said that the interim investment in real security was expressly sanctioned by the Lands Clauses Act, s. 70, and that the order must be made if the security was It would be time enough to consider the question of the costs found to be sufficient, and the company must pay the costs of it. of a permanent investment in lands when the application was made. Solicitor for the petitioners: W. Clarke. Solicitors for the Local Board: Tilleard, Son, Godden, & Holme. V.-C. M. Jan. 24. Misrepresentation-Life Assurance-Suppression of Fact of This was a claim by J. O. Daintree to be admitted as a creditor of the above-named company, now being wound up under the supervision of the Court, for 50007., the amount of a policy issued by the company on the life of his wife. The claim was resisted by the liquidator on the ground that the policy was vitiated by the misrepresentation of the agent of the claimant in filling up the proposal for the policy. The proposal contained the following question: "Have you ever been proposed to or declined by any other office? If so, name it." To which the answer returned was, "Have been, and still am, corresponding with other offices, as the amount to be Jan. 21. insured is large." At the date of this answer several other offices had declined were informed that a brother and sister of the assured had died of consumption, and the insurance was effected at an increased rate. The policy contained a clause declaring it to be indisputable provided the conditions were complied with. Lands Clauses Act-Compulsory Purchase of Land-Dower-Pay-proposals by the claimant to insure his wife's life. The company ment of proportion of Purchase-money to Dowress. The Metropolitan Railway having taken, under their compulsory powers, land to which Humphrey Hall, an infant ward of Court, was the owner in fee, subject to the dower of his mother, Agnes Hall, and the valuer of the company and a valuer appointed by the Court on behalf of the infant having fixed the purchase-money at 500, of which 1027. 1s. 8d. was determined by them to be the value of the dower of Agnes Hall, the railway company had paid the 5007. into Court under the Lands Clauses Act. Glasse, Q.C., and Osler, for the claimant, contended that there had been no misrepresentation, but simply an omission to answer the question, which ought to have led the company to make further inquiry; and that, as they neglected to make such inquiry, they could not dispute the policy. Cotton, Q.C., and Higgins, for the liquidator, contended that the answer implied that there had been no refusal by other offices, and was a misrepresentation. THE VICE-CHANCELLOR held that the answer was a wilful concealment of a material fact, which was sufficient to vitiate the policy, and disallowed the claim. Solicitors for the claimant: Shaen & Roscoe. V.-C. J. The defendants had advertised the sale of 600 of these trees growing on the side of the road, and insisted upon their right as a highway board to remove all trees and other obstructions growing within the space of fifty feet, which was allotted by the Inclosure Commissioners in 1811 as the width of the road; and further that, in any case, the plaintiff, not being lord of the manor, could not maintain the present suit. The plaintiff insisted that the road as laid down and used was only twenty-five feet wide; that the land on either side beyond the twenty-five feet had been used by plaintiff and his predeJan. 17. cessors in title without interruption; and that any right to the whole fifty feet which might have existed in the defendants under the award of 1811 had been waived, and must be taken to have become extinguished. SYKES v. DYSON. Practice-Sequestration-32 & 33 Vict. c. 62. F. J. Wood applied to the Court under these circumstances: An order had been made in an administration suit for payment by one of the defendants, who was the personal representative, of a sum of money found by the chief clerk's certificate to be due from him. The defendant had not complied with the order, and on application by plaintiff for the usual order of attachment prior to issuing a writ of sequestration, the Clerks of Records and Writs had declined to do anything until the new practice under the Abolition of Imprisonment for Debt Act (32 & 33 Vict. c. 62) should have been settled by General Orders. THE VICE-CHANCELLOR, who was referred to 32 & 33 Vict. c. 62, s. 4, div. 3, and s. 8, directed the writ of sequestration to be issued as if the defendant had been actually arrested. Solicitors: Bell, Brodrick, & Gray. Morgan, Q.C., and Sandys, for the plaintiff. THE VICE-CHANCELLOR said that the right of the public, represented by the Highway Board, was to have the whole width of the road as originally awarded, and not merely that part which was used as the via trita preserved free from obstructions. The plaintiff had failed to shew that the right of the public to the whole fifty feet of road awarded in 1811 had become extinguished in 1868, when the bill was filed. The right of the public remained unaffected, and the bill must be dismissed with costs, without prejudice to any right of action which plaintiff might have in respect of the removal, for the purposes of sale, of the trees in question. Solicitors: Sandys & Knott; Vizard, Crowder, & Co. V.-C. J. MERCHANT BANKING COMPANY v. MAUD. Jan. 17. Bills against Remittances-Construction of Agreement. The question in this suit was whether the plaintiffs, a bank, were entitled-as against a firm of William Rattray & Co., of London, which stopped payment on the 18th of June, 1866, and was adjudicated bankrupt on the 24th of September following-to have certain remittances which had, since the stoppage in 1866, been received by the firm from their Barbadoes correspondents, realised and applied in payment of certain bills of exchange, drawn by the firm and indorsed over to the bank, which had been dishonoured. The question turned mainly upon the construction of an agreement entered into between the bank and the firm on the 17th of May, 1865, and upon the nature of certain arrangements entered into in May and June, 1866, between the firm and a Mr. Megaw, the manager of the bank. Kay, Q.C., Eddis, Q.C., and Langley, for the plaintiffs. Amphlett, Q.C., and Pontifex, for the assignees in bankruptcy. Rudall, for White, the interim inspector of the firm after the stoppage. Robinson, for the assignee in insolvency of the Barbadoes firm. THE VICE-CHANCELLOR held that the plaintiffs' claim had wholly failed, and dismissed the bill with costs. Solicitors: Flux, Argles, & Rawlins; Charles Champion; James Robinson; Druce, Sons, & Jackson. Highway-Inclosure Act (48 Geo. 3, c. 109). Bill to restrain the Highway Board for the district of Ringwood from cutting any fir or other trees or furze on the plaintiff's land on each side of the public road through Leybrook Common. Plaintiff had purchased in 1866, from Lord Malmesbury, an estate which was intersected by the road in question. The land on each side of the road was uninclosed, and immediately adjoining the road were fir trees which had grown up from seedlings, and, as the bill alleged, had acquired the character of ornamental trees, and had been kept up for that purpose by plaintiff and his predecessors. V.-C. J. Fry, Q.C., and Rodwell, for the plaintiff, were stopped. Amphlett, Q.C., and C. Dale, for Collier. THE VICE-CHANCELLOR held that the words "in and for the consideration" had no technical meaning, as there was, in truth, no consideration, and must be read as equivalent to "for the purpose of;" and made a declaration in favour of the plaintiff, the tenant for life to be let into possession, she bringing the deeds into Court. Application for a receiver refused, and all the costs (there being no opposition) ordered out of the estate. Solicitors: Dale & Stretton, for Whitton, Towcester; Field & Co. church, and directed the order to be posted upon the door of ISAAC v. HUGHES. De'd to forego the Power-Rele ise. Jan. 21. Caroline, widow of C. Magnay, Clarissa, and Jemima, equally, as tenants in common, for their respective lives; and after the determination of the estate limited to his daughters, to the use of trustees and their heirs during the natural lives of his daughters, to support contingent remainders; and from and after the decease of each of his daughters, as to the fifth share of the daughter so dying, "to the use of all and every the child and children of V.-C. J. such daughter born or to be born, who, being a son or sons, have attained or shall attain " 21, or, being a daughter or daughters, "shall attain" that age, or marry with the consent of Settlement-Power of Appointment by Will-Covenant by voluntary their mothers, in equal shares, their heirs and assigns for ever. But if there should be no such child, then to the use of the others of his said daughters for their lives in equal shares, with remainders over as above. Testator bequeathed his leaseholds to the trustees, in trust for such person or persons as from time to time should be entitled to his said real estates. After certain specific bequests, testator bequeathed all the residue of his "estate and effects" to the trustees, "their heirs, executors, administrators, and assigns," upon trust to lay out and invest the same as therein mentioned, and pay the interest and dividends to his son James for life, or until alienation, and then "to hold his said residuary estate upon the same trusts as were therein before declared with respect to his real estate, and the rents and profits thereof, or as near thereto as the rules of law and equity would permit." Testator died on the 15th of September, 1834. His son James died on the 17th of May, 1850. Jemima, the youngest daughter, married the Rev. W. Holmes on the 11th of August, 1835, and died on the 8th of April, 1851, leaving one child, W. J. O. Holmes, who attained 21 on the 2nd of September, 1860. It was admitted that Mr. Holmes' interest in his mother's fifth share failed by reason of the failure of his mother's life estate before he attained 21; and the question was whether this fifth, so failing, did or did not pass under the residuary devise. Fry, Q.C., and William Barber, for the plaintiff, a son of Mrs. Perceval, contended that Mr. Holmes' interest was a contingency, which failed and passed by the residuary gift. J. T. Prior, Heath, Street, and Coode, for several of the families in the same interest. Bovill, for an incumbrancer. Sir R. Palmer, Q.C., J. Williams, Q.C., Kay, Q.C., and Hitchcock, for Mr. Holmes, contended that he took a share of the residue. Willcock, Q.C., and Bevir, for the devisees of the heir of the testator, contended that the share was undisposed of and descended to the heir. Gaselee, for trustees of the heir's will. will. By a voluntary post-nuptial settlement in 1837, a settlor granted real estate to trustees upon trust, after the decease of the survivor of himself and his wife, for such persons and uses as he, the settlor, should by will appoint; and, in default of appointment, for all the children of the testator. A subsequent clause in the deed raised a doubt as to whether the "children" were not to be limited to those of the then marriage. The wife died in 1841, leaving four children of the marriage. On the 25th of November, 1848, the settlor made another voluntary settlement, to which the same trustees were parties, whereby he agreed to "forego" the power of appointment; conveyed his life estate to the trustees for the benefit of his four children, naming them; covenanted with the trustees not to make a will, whereby the trusts thereby declared could be defeated; and released the trustees. On the 28th of November, 1848, he married a second wife, by whom he had seven children. He died in 1866, having by will devised and bequeathed all his real and personal estate to his wife for life, and then to trustees, upon trust to sell and divide the proceeds between the seven children of the second marriage. The questions were whether the deed of 1837 was for the benefit of all the children, or only the four; whether the covenant in the deed of 1848, being voluntary only, was a good release in equity of the power; and, if a good release, whether a release of the whole power, or only as to four-elevenths of the fund. Charles Walker, for the trustees : The settlement of 1848, being voluntary, did not release the power, which was well executed by the will; and the trustees, as creditors under the covenant, take before the beneficiaries under the will. Kay, Q.C., and Vincent, for the children of the first marriage:The deed of 1837 was for the benefit of the children of the first marriage only, and the power was released. Amphlett, Q.C., and Lawrance, for the widow and executrix. Karslake, Q.C., and Cates, for the children of the second marriage. THE VICE-CHANCELLOR held that the covenant, having been made with the trustees of the first settlement, was a good release of the power, and that all the children of the settlor were included in the trusts of the settlement of 1837. Solicitors: Janson, Cobb, & Pearson, for W. P. Hughes, Wor THE VICE-CHANCELLOR held that the share passed under the residuary bequest of the residue of the testator's "estate and effects." Solicitors: Lethbridge & Son; Thomas Browning; Field & Co.;cester; W. Elgood. Nation; O. Lucas. V.-C. J. Jan. 20. Practice-Pro confesso-11 Geo. 4 and 1 Wm. 4, c. 36-Parish Graham Hastings moved ex parte, under 11 Geo. 4 and 1 Wm. 4, c. 36 (amended by 7 Wm. 4 and 1 Vict. c. 45), for an order for the appearance of an absconding defendant by a certain day, in order to take the bill pro confesso against him. The last place of residence of the defendant was in Barnard's Inn, which is extraparochial, and therefore the condition imposed by the Act of affixing the order to the door of the parish church of the parish where the defendant made his usual abode before absconding could not be complied with. THE VICE-CHANCELLOR thought that posting the order upon the parish church was conditional upon there being a parish CROXTON v. MAY. Jan. 24. Husband and Wife-Wife's Equity to a Settlement-Form of Settlement-Ultimate Limitation. The only point was as to the form in which the Court frames a settlement of wife's property. A testatrix by will bequeathed a legacy of 10007., to be paid within three months after her death to her niece, then a spinster, who married on the 30th of April, 1861. In the autumn of 1861 the husband and wife separated, and had since lived apart. Testatrix died on the 12th of July, 1863, and the executor paid the interest on the legacy to the wife until the 26th of December, 1867, when the husband claimed it. The bill was by the wife against the executor and the husband, praying a settlement. The question was whether, after the wife's death, and failure of children of the marriage, the fund was to go to the husband's |