lander married James Peddin Gilchrist, one of the defendants. She then lived in London, in apartments with two of her unmarried sisters; and to these apartments she returned with her husband on the 20th of August.

On the 27th of August, Gilchrist having been absent all day, said to his wife on his return, "Mary, I sleep out tonight; at what hour do you dine to-morrow?" Mrs. Gilchrist said he could not mean that; on which Mr. Gilchrist said, "I am quite serious, I sleep out; at what time do you dine to-morrow?" To which Mrs. Gilchrist replied, "Where you sleep you had better dine." He then left the house, taking his portmanteau with him, and never afterwards cohabited with Mrs. Gilchrist.

He came to the house on the two following days, and not being admitted to see Mrs. Gilchrist, conducted himself violently. On the third day after he left the house, Mrs. Gilchrist went into the country, to avoid meeting him; and he was unable to obtain her address till the 12th of September, when it was communicated to him by her solicitor. He then wrote to his wife, proposing a reconciliation; to which the wife, by letter, assented, and Mr. Gilchrist arranged to receive her in London.

On her coming to town, he met her at the coach-office, but had not provided a home or lodging for her.

From September, 1842, till March, 1843, they did not

meet.

It appeared that Mr. Gilchrist was an officer on half-pay, having about £75 a-year, and apparently no other property; that Mrs. Gilchrist had £150 invested on mortgage security, and the above annuity of £50 a-year, and no more.

On the 23rd of January, 1844, Mr. and Mrs. Gilchrist met by appointment at the office of Mrs. Gilchrist's solicitor, who paid the 55l. 9s. 8d. to her, as the full balance of the £150 then due, and she immediately handed the money over to her husband. This money was paid to him

upon a

1847.

GILCHRIST

v.

САТОВ.

1847.

previous promise by him to take his wife to France, that GILCHRIST they might live cheaply there.

v.

САТОВ.

When the money was paid to him, his wife pressed him to state whether he had taken any lodging for their residence. He replied that he had not, and did not intend to take any, and that she had better return from whence she came; and after making some angry observations, he said, that if she dared to question him as to his going out or coming in, he would horsewhip her as long as he could stand over her, and at the same time flourished a stick over his head in a threatening manner towards her, and expressed his resolution to be, never to live with her again. He then quitted the office.

On the 29th of May, 1844, Mrs. Gilchrist filed the present bill against the trustees and executors under Mr. Anderson's will and Mr. Gilchrist, praying for a declaration that she was entitled to receive the annuity for her sole and separate use, and that the trustees might be directed to pay it to her for the future, that a sufficient sum might be set apart to answer the growing payments, and for an injunction against payment to her husband.

Mr. Russell and Mr. Miller, for the plaintiff, contended, that, upon the whole will, it was apparent that the testator intended that the annuities of his nieces should be applied to their separate use; and that the declaration that the annuities were to be applied towards their maintenance, was a sufficient manifestation of this intention. They cited Darley v. Darley (a), Dixon v. Olmius (b), and Lee v. Prideaux (c).

The VICE-CHANCELLOR said, it was unnecessary to determine what construction those words might have received if there had not been a man among the annuitants, or if there were not in the will another gift to a niece, technically framed

(a) 3 Atk. 390.

(b) 2 Cox, 414.

(c) 3 B. C. C. 381.

so as to exclude the marital right. These two circumstances seemed to decide the question against the construction contended for.

Mr. Russell and Mr. Miller then contended, that the whole property ought to be settled on the wife, the husband having abandoned her and threatened her with personal violence. They referred to Oxenden v. Oxenden (a), Nichols v. Danvers (b), Williams v. Callow (c), Sleech v. Thornington(d), Bond v. Simmonds (e), Wright v. Morley (f), and Elliott v. Ardell (g).

Mr. Parker, for the husband, said, that no case of desertion or cruelty, on the part of the husband, had been made out, and that much stronger circumstances were requisite, to entitle a wife to a settlement of the whole of her property on herself.

Mr. Lewin appeared for the trustees.

The VICE-CHANCELLOR.-The husband's conduct is neither justifiable nor excusable. Considering the amount of the annuity, I think the wife entitled to the whole for her separate use. The costs of the plaintiff and the trustees, as between solicitor and client, must be paid out of the arrears, and the trustees must pay the annuity to the plaintiff's separate use till further order. The husband may hereafter entitle himself to apply to have the order varied.

1847.

GILCHRIST

v.

CATOR.

1847.

March 26th & 27th, and April 29th.

Shareholders in an incorporated navigation

company filed

a bill to restrain

of management

from entering

into or carrying

into effect an

agreement with

the trustees of

a projected rail

way company,

for amalgamat. ing the two un

dertakings. On

the motion for the injunction,

the defendants'

PARKER V. THE RIVER DUNN NAVIGATION COMPANY.

By

an act of Parliament passed in the 6 Geo. 2, (c. ix.), for amending two former acts, (12 Geo. 1, c. xxxviii., and 13 Geo. 1, c. cxx.), and for better perfecting and maintainthe committee ing the Navigation of the river Dunn, and uniting the proprietors thereof into one company, it was among other things enacted, that the undertaking of the navigaton of the river Dunn from Holmstill in Doncaster, up to the utmost extent of the township or lordship of Finsley westward, and all powers and authorities to scour and cleanse the said river, make locks, dams, cuts, sluices, bridges in, or near, or over the said river or cuts, make paths, build or make it appeared from wharfs or warehouses, powers to purchase lands or tenements for the purposes aforesaid, and all tolls, tonnage, lock dues, and duties, and powers to take tolls, tonnage, lock dues, or duties for boats, vessels, or merchandise borne upon the said river between Holmstill aforesaid and the most westerly part of the said township of Finsley, and all other powers, privileges, advantages, property, and interest in the said navigation above Holmstill, or the undertaking thereof, and all other things which were in or by the abovementioned act 12th Geo. 1, c. xxxviii., vested in or given to the master, wardens, searchers, assistants, and commonalty of the Company of Cutlers in Hallamshire, in the county of York, their successors and assigns, and also the undertaking of the navigation of the said river from Holmstill aforesaid down the said river to Wilsickhouse; and all the powers and authorities which in or by the said act

affidavits that the corporate seal of the navigation company had

been affixed to the agreement with the railway trustees:Held, that the

railway trustees

were necessary parties to the suit; and the

motion ordered to stand over, with leave to

amend the bill by making them parties.

On the motion being renewed, upon the amended record, the

Court refused the injunction;

the navigation company and the committee of management undertaking not to apply any further part of the funds of the navigation company, in any manner not authorised by the Navigation Acts, unless under the authority of Parliament, and all the defendants undertaking to consent to the plaintiffs being treated as persons entitled to oppose the railway bill in Parlia

ment.

Quære, whether a cestui que trust can have an injunction to restrain his trustees from assenting to a bill in Parliament.

1847.

PARKER

v.

The DUNN

Co.

13th Geo. 1, c. xx., were vested in the mayor, aldermen, and burgesses of the borough of Doncaster, and all the stock, dues, tonnage and other duties, interest and property of both the said corporations and each of them, in or to the NAVIGATION said navigations above and below Holmstill, except certain duties in the act mentioned, should be and the same were thereby divided into 150 equal parts or shares, which were thereby vested in the several corporations and the several persons thereinafter mentioned, and their several and respective successors, heirs, and assigns, in the manner and proportion therein mentioned.

And it was enacted, that the said proprietors of the said one hundred and fifty shares, their several and respective successors, heirs, and assigns, were, from the 24th June, 1733, united into one body, for the better carrying on, making, maintaining, and perfecting of the said navigation, as well above as below Holmstill, according to the rules and orders thereinafter expressed, and should for that purpose be one body politic and corporate, by the name of the Company of Proprietors of the Navigation of the River Dunn; and by the same name should have perpetual succession, and should have a common seal, and by that name should and might sue and be sued, and also should and might have power and authority to purchase lands to them and their successors and assigns, for the uses of the said navigation, and should govern themselves and all their proceedings according to the said rules and orders; and that the said company so united should have full power and authority, and they were thereby empowered and authorised, to do all such acts, in order to the making the said river navigable, and to maintain and support the navigation thereof, both above and below Holmstill, as the said two corporations, or either of them, their or either of their successors or assigns, might have done, or were empowered to do, by virtue of the said two former acts, or either of them; and also to purchase lands for the same purposes

VOL. I.

D. G. S.