466

tlement of the pauper, but without any determination, it was held to be necessary to give a fresh notice of appeal for the following sessions, to entitle the appellants to be heard. Rex v. the Justices of Essex, 2 Chit. 385.

The respite of an appeal from one sessions to another, because the bench are divided in opinion on the merits, does not render a new notice of trial essential. Rex v. the Justices of Buckinghamshire, 6 D. & R. 142.

Semble-That the practice of entering an appeal against a rate, and adjourning it to the next sessions, as a matter of course, without notice to the other party, is not in strict conformity with the statute 17 Geo. 2, c. 38, s. 4.

But the Court of King's Bench will not disturb the practice; or, at least, will not allow a party to be precluded from having his appeal heard after he has acted in conformity with the practice. Rex v. the Justices of Wilts, 6 Law J. M.C. 97, s. c. 8 B. & C. 380, s. c. 2 M. & R. 401.

If the justices at the sessions, being equally divided in opinion, quash the proceedings instead of adjourning them, the Court of King's Bench will not grant a mandamus to compel them to re-hear the appeal, although their judgment might be erroneous. Rex v. the Justices of Monmouthshire, 4 B. & C. 844, s. c. 7 D. & R. 334.

The Court will not grant a mandamus to justices to re-hear an appeal, on the ground that their decision proceeded from a mistaken view of their jurisdiction. Rex v. the Justices of Farringdon, 4 D. & R. 735.

Where the practice of the sessions required an appellant to do that which he thought he bad no right to comply with,-the Court refused a mandamus to the sessions, directing them to re-hear the appeal, on the ground that they had no authority to interfere with the practice of the sessions. the Justices of Suffolk, 6 M. & S. 57.

Rex v.

A mandamus not grantable to dismiss an appeal. Rex v. the Justices of Wilts, 2 Chit. 257.

An appeal against a poor-rate was entered at the Midsummer sessions, and after being respited until the Michaelmas sessions, and then until the Epiphany sessions, the respondents gave notice that they would not oppose the appeal, which was accordingly allowed: Held, that the appellant was entitled to costs, under the 17 Geo. 2, c. 38, s. 4. Rex v. Cawston, 4 D. & R. 445.

If the sessions quash an appeal generally, the appellant, on the trial of another appeal, may shew the distinct ground upon which the former order was quashed. Rex v. the Inhabitants of Wheelock, 5 B. & C. 511.

Objections to the form or mode of rating cannot be made by a party proceeded against in an action of debt, if such party might have appealed. Cortis v. Kent Waterworks, 5 Law J. M.C. 106, s. c. 7 B. & C. 316.

On the hearing of an appeal against a poor rate, the sessions have no jurisdiction to quash the rate for a defect appearing on the face of the rate itself, unless that defect be specified in the notice as a cause of appeal. Rex v. Bromyard, 6 Law J. M.C. 100, s. c. 8 B. & C. 240, s. c. 2 M. & P. 230.

SET-OFF.

(A) WHERE ALLOWED, IN GENERAL. (B) PARTNERS.

(C) AGENTS, INSURANCE BROKERS, AND UNDERWRITERS.

(D) COSTS AND JUDGMENTS.
(E) PLEADINGS AND EVIDENCE.

(A) WHERE ALLOWED, IN GENERAL.

A banker, who has advanced money to the testator, by discounting his note for 1000l. renewable at the end of three months, and debiting the testator with the discount, cannot, in an action brought by the executor, set off such note before it is due, upon allowing a rebate of interest; but he may set off a bill accepted by testator, payable at his bankinghouse, and discounted by him, although the testator died before the bill became due, the banker not having received intelligence of the testator's death until the day the bill became due, and after he had so written it off. Rogerson v. Ladbroke, 1 Law J. C.P. 6, s. c. 1 Bing. 93, s. c. 7 B. Mo. 412.

A person having obtained several very valuable articles without paying for them, the tradesmen, on hearing that he was reputed to be a swindler, went to his house, gained admission, and broke open an inner door, and took away part of the goods. He brought an action of trespass, the jury gave him a verdict, and the Court refused to reduce the damages, by allowing the tradesmen to set off against it the amount of the debt due to them. Hawkins v. Baynes, 1 Law J. K.B. 167.

A, an auctioneer, sued B for the price of goods sold by him as such: Held, that B might set off a debt due to him from the principal vendor. Jarvis v. Chapple, 2 Chit. 387.

Where the plaintiff obtained a verdict, and sued out execution against the goods of the defendant, the Court would not allow the sum levied to be impounded in the hands of the sheriff, although the defendant had commenced an action against the plaintiff as acceptor of a bill of exchange for a larger sum, and which bill was then in the defendant's possession, as the sum levied and bill could not be considered as mutual debts, so as to form the subject matter of a set-off. Williams v. Cooke, 3 Law J. C.P. 143, s. c. 10 B. Mo. 321.

If a boy who is about to be apprenticed, go to his master on trial, and stay several months without entering into any agreement, assisting his master in his business, such master, in an action by the boy's father for money lent, is not entitled to charge for board and lodging, which therefore is not the subject of a set-off. Wilkins v. Wells, 2 C. & P. 231. [Garrow] A joint creditor by simple contract may proceed against a clear residue of the assets of a deceased partner, the survivor being insolvent; and may set off against a debt to the deceased, from the survivor and himself as his surety, a debt to the survivor from the deceased, which was agreed to be applied in liquidation of the debt secured. Cheetham v. Crook, 1 M'Clel. & Y. 307.

A being indebted to B in a sum of 1000l. executed a bond to him for securing that amount and interest. B subsequently died, having made his will, and ap

pointed C and D his executors and residuary legatees: an apportionment of B's residuary estate being made, the bond is allotted to C as part of his share: C being the steward of A, and having a running account with him, enters the bond in that account. C dies intestate, leaving a widow, who takes out administration to his estate, and also administration de bonis non to B; and, as such last-mentioned administratrix, she files a bill as a specialty creditor against the representatives of A: Held, that, in this suit, the representatives of A could not make a setoff against the demand, in respect of sums which they alleged to have been omitted, or improperly charged in the account of C, but must file a cross bill.

There can be no set-off, either at law or in equity, where either of the debts is a debt in auter droit. Gale v. Luttrell, 1 Y. & J. 180.

A was employed as storekeeper by B and C, who were joint adventurers in a mine, and he was authorized to draw bills on B for money laid out on account of the mining company; the bills were discounted by a banker, and the payment of them was guaranteed to him by B and C. B having been arrested, A, in order to provide funds to procure B's discharge, drew on B a bill, purporting to be on account of the mining company, the banker discounted the bill, and paid the amount to B, C was afterwards compelled to take up the same in consequence of his guarantie. In an action brought by A against B and C for his salary, it was held, that C could not set-off the amount of the bill. Jones v. Fleming, 7 B. & C. 217.

(B) PARTNERS.

To constitute a set-off between partners, the balance must be finally struck. Therefore, where in an action for the use and occupation of stables, it appeared that the plaintiff and defendant had formerly been connected in a stage-coach concern, and that weekly accounts had been delivered by the plaintiff to the defendant, which disclosed that the plaintiff received the profits for the purpose of dividing them, and which stated the sum due to the defendant for the week, were holden not to be evidenco of a matter of set-off. Fromont v. Coupland, 1 C. & P. 275. [Best]

Money, the property of two partners, misapplied by a person at the instance of one of the partners, and with his concurrence, cannot be set off in an action against the two by that person. Jones v. Fleming, 6 Law J. K.B. 113, s. c. 7 B. & C. 217.

When a man is sued by or on behalf of two partners, he cannot set off an old debt due to him from those two, in conjunction with a third partner, who afterwards retired. M'Gillivray v. Simson, 5 Law J. K.B. 53, s. c. 9 D. & R. 35.

(C) AGENTS, INSURANCE BROKERS, AND
UNDERWRITERS.

In a case where a broker settles a loss with an underwriter, and his name is erased from the policy and adjustment, and the broker within a month is declared a bankrupt, the underwriter cannot set off against the assured a balance due to him from the broker at the time of such adjustment. Todd v. Reed, 3 Stark. 16. [Abbott]

Where a broker (though known to be such) sells

467

in his own name, with an implied authority from his principal to do so, it seems that the buyer may set off against the price, a demand which he has upon the broker. Wynen v. Brown, 4 Law J. K.B. 203.

Although an undertaking by a broker, in consideration of the brokerage, to sell goods and pay over the proceeds to his principal, without deducting therefrom the sums of money due to him, is not binding; yet, if he also agrees not to set off a debt due from a prior firm, which by a previous letter the principals had agreed to pay him, they having the funds of that firm, the letter and agreement may be set off against each other. M'Gillivray v. Simson, 2 C. & P. 320. [Abbott]

B, being indebted to A, gave him money to effect an insurance as a security, A took the insurance in his own name, and soon afterwards died. The executors received the money from the insurance-office, and sued B for the debt, who was not allowed to set off the amount obtained from the insurance-office. White v. Gompertz, 1 Law J. K.B. 52.

The defendant, an insurance-broker, being sued by the assignees of a bankrupt underwriter, for premiums due to the bankrupt for subscribing certain policies, claimed to set off against this demand a loss that had happened on goods on which the bankrupt had underwritten a policy effected in the name of the defendant: Held, that although the goods were not the property of the defendant, and the insurance was effected by him by order of his principals, yet, as the policy was in the defendant's own name, and he had a lien on it for money due to him from his principals to a greater amount than the set-off claimed, he was entitled to the set-off. Davies v. Wilkinson, 6 Law J. C.P, 12, s. c. 4 Bing. 573, s. c. 1 M. & P. 502.

(D) COSTS AND JUDGMENTS.

Where there have been two actions between the same parties, the Court of King's Bench will not set off the costs in the one against the costs in the other. Felton v. Eusthope, 1 Law J. K.B. 58.

Where an arbitrator awarded a verdict to be entered for the plaintiff in an action of trespass, brought by him against the defendants, with 40s. damages, and found that 100l. was owing from the plaintiff to the defendants, for goods sold and delivered, which he directed to be paid within two months after the date of the award, and the plaintiff's costs were taxed on the action brought by him at 102.-the Court would not allow the defendants to set off the sum awarded to them against such costs, the time allowed for the payment of that sum not having expired when the application was made. Young v. Gye, 3 Law J. C.P. 108, s. c. 10 B. Mo. 198.

In pursuance of a judge's order, the defendant was to go to trial on the terms of paying a certain sum, and the costs incurred up to the date of the order. The plaintiff having proceeded to trial before the costs were paid, and the defendant having recovered a verdict: It was holden, that the payment of the costs was a condition precedent, which ought to be performed before the defendant could have the benefit of the order, and that therefore he could not set off these costs against those afterwards carried against him on the postea. Aspinall v. Stamp, 4 D. & R. 716, s. c. 3 B. & C. 108.

A person filed a bill in equity which was dis

468

missed with costs. He then brought an action for the same cause and obtained a judgment. Subject to the lien of the attorney, the costs in equity may be set off against the judgment. Harrison v. Bainbridge, 2 Law J. K.B. 171, s. c. 2 B. & C. 800, s. c. 4 D. & R. 363.

Costs of a bill in equity may be set off against a verdict at law, notwithstanding the lien of the attorney for his costs. Webber v. Nicholls, 5 Law J. C.P. 19, s. c. 4 Bing. 17.

Where an estate was pledged with a solicitor, as security for his costs, and he filed a bill for foreclosure, and the client filed a cross bill, alleging that the costs demanded had been occasioned by negligence and want of skill; a demurrer to the bill was overruled, on the ground of equitable set-off. Piggott v. Williams, 6 Mad. 95.

A is nonsuited in an action against B, and B has the costs taxed: B, in the mean time, having filed a bill of discovery against A, has been ordered to pay the costs of it; A becomes insolvent. Under these circumstances, a court of equity will not enable B to set off the costs, which he has to receive at law, against the costs of the bill of discovery. Wright v. Mudie, 1 Law J. Chanc. 136, s. c. 1 S. & S. 266.

A debtor, who is entitled to costs on a suit for the administration of assets, will be compelled to set them off pro tanto, against the debt due from him. Harmer v. Harris, 1 Russ. 155.

A judgment debt due from B and others, in an action of trespass, in which B was chiefly concerned, and bound to indemnify his co-defendants, was set off against a judgment debt due to B from the plaintiff. Bourne v. Bennett, 4 Bing. 423.

(E) PLEADINGS AND EVIDENCE.

A set-off must be pleaded to an action of covenant; therefore, where non est factum had been pleaded, and a notice of set-off given: Held, that the defendant could not avail himself of it. Oldershaw v. Thompson, 2 Chit. 388.

A set-off must always be pleaded where there are other pleas besides the general issue: but if the general issue be the only plea, a notice of set-off will suffice. Webber v. Venn, 2 C. & P. 310, s. c. 1 R. & M. 413. [Abbott]

A defendant cannot avail himself of a cross demand, unless he has pleaded or given notice of setoff. Forthergill v. Jones, 1 C. & P.133. [Hullock]

A set-off is pleadable to an action on a bond for payment of an annuity. Collins v. Collins, 2 Ken. 530, s. c. 2 Burr. 820.

A plea of set-off to debt on bond conditioned for replacing stock, cannot be sustained: therefore, where the defendant obtained a verdict on such a plea, the Court ordered judgment to be entered up for the plaintiff. Gillingham v. Wasket, 13 Price, 434, s. c. M'Clel. 198.

To a declaration for goods sold and delivered, the defendant pleaded, that the goods were sold to him, with the knowledge of the plaintiff, by another person, who was the agent of the plaintiff; and that the plaintiff was not known to the defendant as the proprietor thereof, but that the defendant bought them as the goods of that other person, who was indebted to him, and thereupon he was entitled to set-off according to the form of the statute: The Court held the plea to be good on general demurrer; but they said

it would have been bad on special demurrer, for concluding with a set-off according to the form of the statute. Carr v. Hinchcliff, 4 Law J. K.B. 5, s. c. 4 B. & C. 547, s. c. 7 D. & R. 42.

To an action of indebitatus assumpsit, it is no good plea to say that the plaintiff is indebted to the defendant in more money than the defendant is indebted to the plaintiff. The plea should run in the usual form, that "the plaintiff is indebted to the defendant in so much; which sum exceeds the damages sustained by the plaintiff by reason of the non-performance of the said promises and undertakings." Clermont v. Tullidge, 6 Law J. K.B. 243. It is a settled rule, that a sum of money given under an agreement by way of penalty cannot be pleaded as a matter of set-off.

Therefore, in an agreement for the performance of several articles, wherein the parties bound themselves "in the penal sum of 500l. to be recoverable as and by way of liquidated damages," it was held, that a plea of set-off, in respect of this 5001. alleged to have accrued from a breach of the agreement, was bad, as it was in the nature of a penalty, and not of liquidated damages. Davis v. Penton, 5 Law J. K.B. 112, s. c. 6 B. & C. 216.

It seems that a man is not bound by an undertaking to waive the benefit of a set-off, if the form of action in which he is sued admits the right of setoff.

Therefore, where a man is sued in assumpsit, and he pleads a set-off, his plea is not answered by a replication, that he agreed to pay ready money; or, that he agreed not to set off a previous debt. M'Gillivray v. Simson, 5 Law J. K.B. 53, s. c. 9 D. & R. 35.

SETTLEMENT, MARRIAGE. (A) VALIDITY OF. (B) CONSTRUCTION.

(A) VALIDITY of.

By one set of marriage articles, the real estate of an infant, being the intended wife, is settled; by other articles of the same date, the busband settles his estate, creating a charge on it in favour of the wife though the wife should afterwards defeat her settlement, the estate of the husband remains bound by his settlement.

A settlement of the wife's chattel real, made during her infancy, is binding on her. Trollope v. Lenton, 2 Law J. Chanc. 3, s. c. 1 S. & S. 477.

Before marriage, a husband executes a boud to trustees, the condition of which binds him to settle the property of the wife on her and her issue, in such manner as the trustees, in their discretion, shall think proper. After the marriage, a settlement is made, by which part of the property is to be applied in payment of his debts, and for his furtherance in life, another part is settled on the wife for life, remainder to the issue of the marriage, and, in case there should not be any such issue, to the husband absolutely ;-and a third part of the property is given to the wife for life, and, after her decease, in case there was no issue of the marriage, as she should appoint: Held, that this settlement was not according to the condition of the bond, and

A voluntary settlement of personal property, made by persons who are not indebted at that time, is good against a subsequent bona fide vendee. Jones v. Croucher, 1 S. & S. 315.

A limitation by the settlor in a marriage settlement, in favour of the issue of a second marriage, was holden good against a subsequent purchaser for valuable consideration. Thomas v. Clayton, 6 M. & S. 67, n.

Where a marriage settlement contained a limitation to brothers, after other limitations to the use of the first and other sons of the settlor in tail male: It was holden not to be valid against a purchaser for valuable consideration. Johnson v, Legard, 6 M. & S. 60.

Where a deed of marriage settlement is drawn up as between the intended husband and wife and their respective fathers, and the father of the wife secures to the father of the husband a sum of money as the portion of the wife, according to a provision of the deed, but neither he nor his daughter execute the deed, and it is executed only by the intended husband and his father, it is binding upon and as between the parties who execute, and creates efficient rights for the objects of the settlement. M'Neill v. Cahill, 2 Bligh, 228.

(B) CONSTRUCtion.

[See White v. Kearney, 6 Law J. Chanc. 22,
s. c. 3 Russ. 208.]

In a marriage settlement, reciting that the father of the wife had agreed to make a further provision for his daughter, equal to his younger child or children, he covenanted to give or secure to the trusts of the settlement, as large a share of his property as he should give to any of his other younger children, to take effect on the death of the survivor of himself and his then wife; and that, if he died intestate, or omitted to make the provision before covenanted for, there should be paid to the trustees of the settlement as great a share of his property as any younger child should in that event become entitled to: Held, that those interested under the settlement were entitled to a further provision, equal only to that which any younger child took upon the death of the covenantor, and without reference to advancements made by the covenantor during his life. Willis v. Black, 2 Law J. Chanc. 131, s. c. 1 S. & S. 525.

By a marriage settlement, the husband assigned to trustees 4000l. upon trust, (among other things,) in case the wife died in his lifetime, to transfer and re-assign the money to him, his executors, and administrators, to and for the use of him and any child or children of the marriage: Held, that, upon the death of the wife in the lifetime of the husband, these words give him the fund for life, with remainder to the children of the marriage. Chambers v. Atkyns, 1 Law J. Chanc. 208, s. c. 1 S. & S. 382.

Where, by a marriage settlement, certain lands (subject to a charge of 1500l. secured by a term of one thousand years,) were limited to the use of the husband for life, sans waste, with limitation to two trustees and their heirs during his life, in trust to support contingent remainders; remainder to the use of the wife for life, sans waste, remainder to the children of the marriage; and, for default of such

469

issue, to the right heirs of the survivor of husband and wife in fee: and it was provided, that the husband and wife, during their joint lives, or the life of the survivor, might charge the estate to the extent of 20007., and that the trustees might sell the lands by the direction and with the approbation of the husband and wife, or survivor of them; and the husband died, and the wife afterwards married a second, and she, with his consent, created a term of one thousand years, and charged the estate with 20001. borrowed by way of annuity, and levied a fine to J G in fee, which, by a deed to lead the uses, was declared to be " upon trust to secure the regular payment of the annuity, and for corroborating and strengthening the said term on the trusts before mentioned:" Held, that this fine did not operate to extinguish the power of the wife to consent to a sale of the estates under the power contained in the original settlement, so as to prevent an exercise of such power of sale by the trustees appointed by that indenture. Tyrrell v. Marsh, 3 Law J. C.P. 138, s. c. 3 Bing. 31, s. c. 10 B. Mo. 305.

By the settlement on the marriage of A B with C D, portions were to be raised for the younger children of A B by C D, or any future wife, but not to be paid until after the decease of A B, C D, or such future wife, though no estate was given to such future wife; and power was given to AB to appoint the interest of the portions to be raised for the children's maintenance; and, on his default, the same power was given to the trustees, and the maintenance was directed to be paid on the first quarterday after the decease of the survivor of A B, C D, or such future wife. A B died, leaving his second wife surviving, and by his will, which was not duly attested, directed the maintenance to be raised from the time of his death, and gave other benefits to his eldest son: Held, that the trustees had no power to allow maintenance during the second wife's lifetime, but that the eldest son should be put to his election, as he had other benefits under the will, and was the only party who could be benefited by withholding the maintenance. Hume v. Rundell, 2 S. & S. 174.

A son, who, when he attained twenty-one, was a younger child, but, by the subsequent death of his elder brother in the lifetime of his parents, became an eldest son before the time fixed for the payment of the younger children's portions, is entitled to his share of portions which are directed to vest in younger sons at twenty-one, though not payable till after the death of the parents; there being enough in the settlements by which the portions were provided to shew that the character of younger children was to be ascertained by reference to the time when the portions vested, and not to the time when they became payable. Windham v. Graham, 1 Russ.

331.

Construction of an ambiguous marriage settlement, as to whether a child takes a vested interest in certain sums upon attaining twenty-one in the lifetime of the mother; or whether the interest is contingent upon the event of the child surviving the mother. Fitzgerald v. Field, 4 Law J. Chanc. 170, s. c. 1 Russ. 430.

Under a settlement, the husband was tenant for life, remainder to trustees, to preserve, &c., remainder to the wife for life, remainder to trustees, &c., remainder to the children of the mar

470

riage, remainder to the survivor of husband and wife in fee; afterwards, there being no issue, busband and wife by lease and release conveyed the lands in fee to a mortgagee, with a covenant to levy a fine come ceo, &c. to enure to the mortgagee during the lives of the mortgagors and the survivor, remainder to the uses, estates, &c. limited by the settlement in favour of the children, &c., to the end that all and every of such uses might be corroborated, &c.; the fine was accordingly levied, and, the mortgage having been paid off, the mortgagee reconveyed the premises to the trustees to hold to the uses of the original settlement: Held, first, that the fine and the deed to lead &c. were to be taken as one assurance, and that the legal effect of the former was limited by the lawful intention of the parties, apparent on the face of the deed, viz. to give merely a charge by way of security to the mortgagee on the parties' own interests, and that the interest of the mortgagee depended on the estoppel, which was extinguished by the reconveyance. Secondly, that if the fine had determined the life estate, the contingent remainders were supported by the remainders to trustees, without an actual entry. Thirdly, that, on the death of the wife without issue, the husband became entitled, in virtue of the original settlement, to the fee, and which he might dispose of by will. Davies v. Bush, 1 M'Clel. & Y. 58.

A being, under the marriage settlement of her father and mother, tenant in tail in remainder of certain lands, expectant on the failure of male issue of her only brother, there is made on her marriage a settlement containing a covenant, by which, after reciting that it was possible that she might, under and by virtue of the limitations contained in the former settlement, eventually become entitled to a certain estate, or a part of certain lands, it is agreed, that, in case she shall in her lifetime become entitled to any such estate as aforesaid, the same shall be conveyed to the uses and for the trusts therein mentioned; the brother afterwards suffers a recovery, and dies intestate without issue, whereupon the feesimple of one-fourth part of the lands comprised and referred to in the settlement descends upon her as one of his co-heiresses: Held, that the covenant does not affect the fee-simple so coming to her by descent. Tayleur v. Dickenson, 1 Russ. 521.

By a marriage settlement, an estate is conveyed to trustees to the use of the husband for life; remainder to the wife for life; remainder to the use of all the children of the marriage in tail as tenants in common; remainder, if there should be a failure of issue of the body or bodies of any such child or children, then, as to the part or share, or parts or shares of such children whose issue should so fail, to the use of the remaining and other children of the marriage in tail as tenants in common; and, in case there should be a failure of issue of the bodies of all such children but one, or if there should be but one such child, then to the use of such only remaining or only child, and the heirs of his or her body lawfully issuing, and for default of such issue, remainder to the heirs of the settlor: Held, that cross-remainders were not limited between the children as to the accruing shares. Edwards v. Alliston, 6 Law J. Chanc. 30.

It is declared by a marriage settlement, that a trustee is to lay out a sum of money, which the

husband had agreed to settle, in the purchase of any public stocks or funds, or annuities for the life of the intended wife in his own name, in trust for her, and that he is, during her life, to pay to her the dividends, and other produce of the stock or annuity so to be purchased, to her separate use during her life: Held, that the wife is entitled absolutely to a sum of 3 per cent. stock purchased with the money, and not merely to a life-interest in it. Smith v. King, 1 Russ. 363.

By a marriage settlement, certain stocks, the property of the lady, are assigned to trustees, upon certain trusts, for the benefit of the intended wife and husband, during their joint lives; and if the wife should survive the husband, having children by him, upon trust for her during her life, and after the death both of her and her husband, upon trust for all her children by her then intended or any future husband, as she should appoint; and, in default of appointment, upon trust for the children of the then intended marriage; and it was provided, that, if the lady should survive her intended husband, and there should be no children of that marriage who should acquire a vested interest in the property, the stocks should be upon trust for her, and assigned to her: the lady having outlived her husband, and there being no child of that marriage who had acquired a vested interest-It was held, that the lady was entitled to the stocks absolutely, without regard to the possibility of there being children of a future marriage. Hanson v. Cook, 4 Law J. Chanc. 45.

Settlement in trust for the separate use of a married woman for life, but so as not to anticipate, with remainder as she should appoint by will; and in default of appointment, to A.

On the death of her husband, the restraint on anticipation ceases, and therefore she is entitled, with the concurrence of A, to a transfer of the fund. Barton v. Briscoe, 1 Jac. 603.

By a marriage settlement, stock, the property of the husband, is settled upon the wife for life to her separate use, and, after her death, on the husband, if he should survive her; but, if he should die in her lifetime, then upon trust for such persons as he should by deed or will appoint, and, in default of appointment, to his executors and administrators; the husband died in the wife's lifetime, without exercising his power: Held, that these words did not vest the stock in the executor of the husband, but that it formed, subject to the wife's life-interest therein, part of the husband's residuary estate. Collier v. Squire, 5 Law J. Chanc. 186.

When lands are given to A for life, remainder to his sons in tail male, &c., remainder to M for life, with other remainders over, and certain powers are annexed to all the life estates, and the uses thus created are subject to a power of revocation; then, if in the exercise of this power of revocation, the limitation to M, and all the limitations subsequent to it are revoked, and new uses to S for life &c. are substituted in their place, the prior limitations to A and his sons remaining undisturbed; and if, in this deed of revocation and new appointment, clauses are contained, giving nearly the same powers of jointuring, &c. to the tenants for life, as were given by the first settlement, and expressed in nearly the same words as the corresponding clauses in that