THE COURT OF EXCHEQUER CHAMBER (Kelly, C.B., Martin, Channell, Pigott, and Cleasby, BB., Willes and Brett, JJ.) held that the doctrine of relation did not apply to the case of fraudulent preference, and that the transaction, though valid THE COURT declined to entertain the motion-Bovill, C.J., between the parties, was voidable by the assignees of the bankrupt; that they might avoid it by demanding the goods so long which the Court of Queen's Bench always refused to grant where saying that it was very much like an application for a mandamus, as the goods remained in possession of the transferee, and they a previous application for redress had not been made to the party might also avoid it by demanding the money whenever those complained of. goods were converted into money, and that an action for money had and received would lie; and they reversed the judgment of the Court below.

L. J. GIFFARD.

Feb. 14. in re PANAMA, NEW ZEALAND, AND AUSTRALIAN ROYAL MAIL COMPANY.

Debenture-holders-Charge on Property of Company. This was an appeal from an order of Vice-Chancellor Malins made in the winding-up of the above company (Weekly Notes, 1869, p. 269). The company having power to raise money by mortgages or debentures, issued debentures for the sum of 100%. each, which sum was charged " upon the undertaking and all sums of money arising therefrom, and all the estate, right, title, and interest of the company therein." The property of the company consisted principally of ships. Before the debentures became payable the company was ordered to be wound up, and a question arose between the debenture-holders and the general creditors; the latter, represented by the official liquidator, contending that the debenture-holders had a charge only upon the "undertaking," and the moneys arising therefrom, and not upon the produce of the sale of the ships. The Vice-Chancellor held that the debenture-holders had a prior charge upon the proceeds of the ships, and from this decision the official liquidator appealed. Cole, Q.C., and Lindley, for the appellant.

sequently projected a company for the purchase of this and some
adjoining property, and a prospectus was issued stating that the
object of the company was to purchase the property which was
described, and to carry on the business of a tavern. The
company was registered in October, 1865.*
projected company for the purchase of the reversion and the
An agreement was entered into by Nokes on behalf of the
adjoining property. The total amount of the purchase-money
which was estimated at 14,000, and which was to cover the
was fixed at 42,000, including the interest of Nokes & Co.,
preliminary expenses. This sum was paid to them accordingly.
of the company.
Nokes & Co. were stated in the prospectus to be the solicitors

In 1867 the company was ordered to be wound up, and the present bill was filed by the official liquidator. Jessel, Q.C., and Lindley, for the official liquidator. Sir R. Baggallay, Q.C., and Cottrell, for the defendants. THE MASTER OF THE ROLLS held that, as the purchase was made by Nokes & Co. before the company was formed or contemplated, and before they became the company's solicitors, they could not in the circumstances of the case, and in the absence of fraud or concealment, be made liable for the profit Pearson, Q.C., and Graham Hastings, for the debenture-holders.occasioned by their subsequent sale to the company, which was sanctioned by the directors. THE LORD JUSTICE GIFFARD said that the only question in the case was as to the rights of the debenture-holders when the company was wound up and the property realised. The word undertaking" in this case clearly meant all the property of the company both at the date of the debenture and subsequently acquired. So long as the undertaking went on, and the debenture was not due, the holder could not seize the property so as to stop the undertaking; but when the debenture became due, and the undertaking was wound up, he had a right to realise his security. The Vice-Chancellor was right, and the appeal must be dismissed with costs.

Solicitors: Ashurst, Morris, & Co.; W. & W. A. Waller.

L. J. GIFFARD.

In re BAGLAN HALL COLLIERIES COMPANY.

Solicitors: Mercer & Mercer; Nokes, Carlisle, & Francis.

SWIFT v. WENMAN.

M. R. Feb. 15. Husband and Wife-Divorce-Wife's Interest under Settlement. The plaintiff in this suit, who had obtained a decree for dissolution of marriage in the Divorce Court against the defendant on account of adultery and bigamy, filed her bill to obtain payment of a certain trust fund to which, under her settlement, she would have become absolutely entitled on her husband's death.

The plaintiff, who was entitled under her father's will to a share of his property on attaining 21, married the defendant Feb. 15. while still an infant, and by the settlement on her marriage it was agreed that her said share should be vested in the trustees therein

Company Contributory-Subscribers of Memorandum of Associa-named upon trust for herself for life, with remainder for her

tion-Paid-up Shares.

This case came before the Court on motions by some of the subscribers of the memorandum of association, by way of appeal from a decision of Vice-Chancellor Malins (ante, p. 15) fixing them on the list of contributories.

Cotton, Q.C., B. B. Rogers, and Everitt, for the appellants. Glasse, Q.C., and Caldecott, for the official liquidator, and Cottrell, for a subscriber of the memorandum, supported the order of the Vice-Chancellor.

husband for life, and in default of children, if her husband should die in her lifetime, for the plaintiff absolutely; but if her husband should survive, then as she should by will appoint, or, in default, to her next of kin.

There were no children of the marriage. The plaintiff after attaining 21 was deserted by her husband, who married another person, whereupon the plaintiff took proceedings in the Divorce Court, and obtained a decree for dissolution.

The bill was filed against the trustees of the settlement and the former husband, and prayed that the plaintiff might be THE LORD JUSTICE GIFFARD held that the case was in sub-declared entitled to the trust fund, and that the same might stance the same as Pell's Case (Law Rep. 5 Ch. 11); and reversed be paid to her. the Vice-Chancellor's order.

Company-Solicitor and Client-Sale to Company by their Solicitors
-Liability to Account for Profit.

This suit was instituted for the purpose of making W. F. Nokes and his two partners, who were solicitors, answerable for the profit made by them arising from the sale to the Masons Hall Company of certain property, on the ground of the relation of solicitor and client which subsisted between them and the company, and of alleged concealment on their part in relation to the transaction.

In 1865 Nokes & Co. purchased the leasehold interest in the property in question for 75007. They, with some others, sub

Roxburgh, Q.C., and T. A. Roberts, for the plaintiff.
C. Howard, for the defendant.

THE MASTER OF THE ROLLS made a decree in the plaintiff's favour.

Solicitor for the plaintiff: R. W. Roberts, agent for R. Woof, Worcester.

Solicitor for the defendant: J. T. Fry.

lawful issue, and, on failure of such trusts, he gave the same to the executors, administrators, and assigns of Mary Cobley." The testator further gave the residue of his estate upon trust "to pay or divide the same among the child or children of his said niece, Mary Cobley, who should attain the age of 26 years, or die under that age, leaving lawful issue and being females, for their separate and inalienable use, and upon further trust in the meantime to pay the income or annual produce of such residue or investment to and amongst all such children equally, or during minority, at the discretion of the trustees, to the father, mother, or guardian of each such child, without obligation to see to the application thereof, with liberty to the trustees to apply such income, at their discretion, for the maintenance, education, or advantage of each such minor, notwithstanding the principal money might not have become vested.

The testator died on the 17th of June, 1862. The testator's niece, Mary Cobley, was still living, and had four children, the youngest of whom was 14 years old, and the eldest 23.

Doubts as to the true construction of the testator's will having arisen, a special case was stated, under the 13 & 14 Vict.

that the chief clerk had certified that the plaintiffs, who were
creditors for 300l., had obtained judgment against the executors
before the decree.
Bury, for the plaintiffs, contended, first, that the defendants,
having exercised their right of retainer as to the personal estate,
could not participate in the 450l. ; and, secondly, that the plaintiffs
were entitled to priority.
Locock Webb, contrà.

THE VICE-CHANCELLOR :-The defendants' right of retainer
only applies to the 7807., and they cannot participate in the other
assets if they exercise that right.
Solicitor for all parties: W. H. Lammin.

V.-C. M.
Ejectment Bill-One Hundred Years adverse Possession - Statute
of Limitations (3 & 4 Wm. 4, c. 27, s. 26)—Concealed Fraud.
This was a bill filed by James Chetham, suing in formâ pau-
of money, which had been in the possession of the defendants and
their ancestors for 149 years.

c. 35, in which the opinion of the Court was asked, inter alia, asperis, to recover possession of estates, worth about half a million follows:

3. Whether the bequest of 5000l. to such of the children of Mary Cobley as live to attain 26 or leave lawful issue is valid, or whether the gift fails wholly or partially for remoteness, and, in the latter event, whether the gift of the said sum to the executors, administrators, or assigns of the said Mary Cobley is valid or fails

also.

4. Whether the gift of the testator's residue to the child or children of Mary Cobley who attain 26, or die under that age and leave lawful issue, is valid, or whether the said gift fails wholly or partially for remoteness.

D. Jones, for the trustees, submitted the questions to the judgment of the Court.

Hadley, for some of the defendants, on the third point, contended that the gift to the children of Mary Cobley who should attain 26 was clearly void, and, if so, the gift over on failure of such trusts to the executors and administrators of Mary was also void. On the fourth point, he contended that the gift of the residue to the children of Mary Cobley who should attain the age of 26, with a gift of the income, was also void.

Locock Webb, for the next of kin, also contended that both these gifts were void, and the money given was undisposed of. Morgan, Q.C., for Mary Cobley and her children.

THE VICE-CHANCELLOR said that the answer to question 3 must be, that the gift of 5000l. to the children of Mary Cobley who should attain 26 was void, but that the gift over was good. As to question 4, that the answer was, that the gift of the residue to the children of Mary Cobley who should attain 26, and in the meantime the gift to them of the income for their maintenance, was good.

Solicitors for the plaintiffs: Allen, Colley, & Edwards.
Solicitor for the next of kin: Horsley.

V.-C. S.

SMITH V. FRANKISH.

The plaintiff alleged that he was entitled as issue in tail under certain entails created in the early part of the last century, and that the ancestors of the plaintiff became so entitled in the year 1769; that by a fraudulent act committed by one Edward Chetham about a century ago in destroying a certificate of marriage, the plaintiff and his ancestors had been prevented from procuring evidence of an important link in his title; that in the year 1868 the plaintiff had by accident discovered the concealed fraud, and had then found that the marriage certificate had been torn out of the registry-book of the parish church, and the leaves of the index of certificates had been glued together for the purpose of preventing a discovery of the fraud.

There were two demurrers put in to the bill.

Glasse, Q.C., and Wickens, in support of the first demurrer, said this bill was founded on the 26th section of the Statute of Limitations (3 & 4 Wm. 4, c. 27), which enacted that, in every case of a concealed fraud, the right of any person to bring a suit in equity for the recovery of any land of which he, or any person through whom he claimed, might have been deprived by such fraud, should be deemed to have first accrued at and not before the time at which such fraud should or with reasonable diligence might have been first known or discovered. In this case, if there had been fraud, it might have been discovered long ago, and within twenty years after its commission, and proceedings for recovering the property should have been taken at law, and not in equity.

Cotton, Q.C., and Charles Hall, for a second demurrer.

Cole, Q.C., Morgan, Q.C., and Edmund S. Ford, in support of the bill, contended that the time allowed by the Statute did not run till the year 1868, when the plaintiff had first discovered the fraud, which had been so concealed that, although repeated attempts had been made, it was only then discovered by mere accident. THE VICE-CHANCELLOR, without hearing a reply, said this was Feb. 12. a bill to recover land after a lapse of more than a century from the right accruing. His opinion was that the plaintiff was right in coming to this Court under the 26th section of the Statute of Limitations. But it was necessary for the interests of society that this section should receive the strictest interpretation, and a person suing after the ordinary period allowed must bring his case strictly and literally within the words of the section. It was not enough that the fraud was not discovered: it must be shewn that

Creditors' Suit-Real Estate-Right of Retainer. Richard Spink, by his will dated the 3rd of September, 1853, devised all his real estate to J. Frankish and T. W. Chambers, on trust for sale. He also gave all his personal estate to the same persons upon the trusts of his will. The testator died in 1868, and his will was proved by his executors. The real estate was vested in mortgagees, who sold under their power, and, after satis-it could not have been sooner discovered by reasonable diligence. fying their claim, paid the surplus, viz. 450%., to the executors, who had got in the personal estate, which amounted to 7801. The executors and devisees were creditors of the testator in a sum of 10007., and they retained the 7801. in part satisfaction of their claim, and the question now was whether the executors and devisees were entitled to participate in the 4507. It appeared

The fraud here depended solely upon the destruction of the certificate of a marriage said to have taken place in 1724. If that marriage could be proved, then the property ought to have gone in 1769 to the person under whom the plaintiff claimed as issue in tail. It was alleged that the fraud was discovered, not by diligence, but by accident. The marriage might have been proved

by other means than by a certificate, and his opinion was that due diligence had not been used. The plaintiff had failed to bring the case within the 26th section, and he had no hesitation in allowing the demurrer.

Solicitors: Shaw & Tremellen; Byrne,

V.-C. M.

Feb. 10. CAMPBELL V. MAYOR AND CORPORATION OF LIVERPOOL. Liverpool Improvement Act-Ground dedicated to Burials-Rector of Parish-Reverter of fee simple.

This was a special case, in which the question was whether, under the will, the 500l. receivable under the policy was payable to the widow.

Crossley, for the widow, contended that the 500l. was excepted from the general bequest, and given by implication to the widow. W. Barber, for the executors and trustees, contended that the 5007. was undisposed of by the will.

THE VICE-CHANCELLOR held that the 5007, was given by implication to the widow. Solicitor: J. Tucker.

V.-C. M.

MICHAEL V. FRIPP.

Diligence-Leave to file Bill refused.

Feb. 12.

By a statute passed in 10 & 11 Wm. 3, it was enacted that it should be lawful for the inhabitants of Liverpool to erect a new church, and to provide and inclose a cemetery, churchyard, or Bill of Review-New Matter discovered since Decree-Want of due burial-ground about the same, which was to be the parish church and churchyard, and to be for ever separated and dedicated to the service of God, and be applied to the use and behoof of the inhabitants.

The church was built and the burial-ground inclosed, and under the sentence of consecration the Corporation of Liverpool renounced all right to the ground.

In 1854, by an Order in Council, the churchyard was closed against further interments. In 1864 the Liverpool Improvement Act was passed, which incorporated the Lands Clauses Act, and in pursuance of that Act the Corporation of Liverpool served a notice to treat for the purchase of a portion of the burial-ground upon the rector, the ordinary, and the patron of the parish. The question of compensation was referred to an arbitrator, who awarded 55001. as the value of the ground; but the corporation subsequently refused to pay the money on the ground that, in consequence of the Order in Council closing up the burial-ground, it could no longer be used for interments, and, being now of no use for the purpose for which it was granted, the fee simple of the land reverted to the corporation.

The bill was filed by the rector of the parish to compel the corporation to complete the purchase and pay the compensationmoney into Court.

This was a petition for leave to file a supplemental bill in the nature of a bill of review.

In November, 1865, Jacob Michael, the father and guardian appointed by the Court of Chancery of the plaintiff J. W. Michael, then an infant, mortgaged the ship Bloomer, of which the plaintiff was the registered owner, to Messrs. Fripp & Co. The mortgage purported to be made by Jacob Michael as guardian of the plaintiff. Fripp & Co. sub-mortgaged the ship to the Maritime Credit Company. The ship was insured by Fripp & Co., and was lost at sea. This suit was instituted by the plaintiff against Fripp & Co., the Maritime Company, and Jacob Michael, for the purpose of invalidating the mortgage made by Jacob Michael, and obtaining the amount for which the ship was insured, subject to the lien of the defendants for necessary repairs. The defendants, by their answers, admitted that the plaintiff was the beneficial owner of the ship, and the only question raised at the hearing of the cause was whether Jacob Michael as guardian had power to mortgage the ship. This was decided in favour of the plaintiff, and a decree was made declaring the mortgage to Fripp & Co. invalid, and directing accounts on that footing (Law Rep. 7 Eq. 95).

This petition was presented by the Maritime Credit Company, on the ground that since the decree they had discovered that at the date of the mortgage Jacob Michael, and not the plaintiff, was the beneficial owner of the ship.

Glasse, Q.C., and Daly, for the petitioners, contended that the evidence in support of the petition made out a primâ facie case, that Jacob Michael was the beneficial owner, and that there had been no want of diligence on the part of the petitioners in not discovering this fact before the hearing.

Cotton, Q.C., Wickens, and Charles Stewart, for the plaintiff. Sir R. Palmer, Q.C., and Freeling, for the defendants. THE VICE-CHANCELLOR said that, by the Act of Wm. 3, the land was dedicated for ever to the purpose of a churchyard, and the corporation had, by the sentence of consecration, renounced all right to it. He should have felt himself bound, if it had been necessary, to presume a conveyance of the fee; but this was not necessary, as the sentence of consecration operated as a release, and to prevent the corporation from claiming any right to it. By Cotton, Q.C., and Hunter, for the plaintiff, contended that the the Order in Council the burial-ground was closed against inter-petitioners might with reasonable diligence have obtained before ments, but the ground did not cease to be a burial-ground. The the hearing the evidence now adduced, and that this evidence bodies might have remained for ever in the churchyard, or cir- failed to disprove the plaintiff's ownership. cumstances might have required its being again used for the Jackson, for Fripp & Co. same purpose. Under these circumstances there was no reverter to the corporation, and the ground must be treated like any other land taken for the purpose of the Liverpool Improvement Act, and the sum awarded by the arbitrator must be paid into Court. Solicitors: Field, Roscoe, & Co.; Torr, Janeway, & Tagart.

THE VICE-CHANCELLOR held that the petitioners were bound to have inquired as to the beneficial ownership, and that with reasonable diligence they might have discovered all that they now knew before the hearing of the cause. He must, therefore, dismiss the petition, with costs as against the plaintiff, though he was inclined to think that complete justice would not be done by the decree which he had been obliged to make. Solicitors for the petitioners: Davies, Son, Campbell, & Reeves. Solicitor for the plaintiff: Wetherfield. Solicitor for Fripp & Co.: J. I. Solomon.

Robert Hall by his will gave all his personal estate, “save and except the sum of 500., payable at my death, under a policy of | V.-C. J. insurance, to my wife, Hannah Hall, and to which she is absolutely entitled under the said policy," to his executors, upon trusts for the benefit of his wife for life, and of his children after her death.

The testator had a policy of assurance for 5007. on the joint lives of himself and his wife, payablo to his representatives upon his death in his wife's lifetime, and the wife had no interest in the policy.

Feb. 8.

Ex parte BATEMAN (A PERSON OF UNSOUND MIND).
In re JENKINS AND ANOTHER v. MINISTER, INHABITANTS, AND
PARISHIONERS OF LLANTRISSANT.

Writ of Prohibition-Jurisdiction.
Cracknall moved, ex parte, for a writ of prohibition against the
judge of the Llandaff Consistory Court, to restrain him from
proceeding to try the issues raised in the above-named cause