It was admitted that the principal was to be raised in Irish currency, according to Saunders v. Drake 1, where Lord Hardwicke says, that if a bond be given at Dublin, or a note at Jamaica, it must be paid in current money.

With regard to the interest, it was argued for the highest rate, that interest is regulated by the law of the country in which the contract or security is made. That the settlement directed interest to be raised at 5l. per cent. for the maintenance of the children before their portions became due, and that it is usual to allow something less for maintenance than is payable for interest. On the other side it was urged, that where a foreign contract is sought to be enforced in an English court, it must be enforced according to the course of that Court, and that the lex loci contractus did not apply to such a case. This latter view was concurred in by the Vice-Chancellor of England, who held that, there being nothing in the way of contract in the case to shew after which rate the interest was to be paid, he could only give it according to the usual course of the Court, that is, at 47. per cent.

ELLISON V. ELWIN. 13 Sim. 309.

Assignment by Husband of Wife's Chose in action when not reversionary. One of the best known, and perhaps not one of the least important, of the principles resulting from the modern decisions of Equity jurisprudence is that established by Sir Thomas Plumer, after repeated discussions, in the case of Purdew v. Jackson 2, and followed by Lord Chancellor Lyndhurst in Honner v. Morton.3 It is almost superfluous, after the mention of these cases, to say that we refer to the principle" that all assignments made by the husband of the wife's outstanding personal chattel which is not or cannot be then reduced into possession, whether the assignment be in bankruptcy or under the Insolvent Act, or to a purchaser for valuable consideration, pass only the interest which the husband has, subject to the wife's legal right by survivorship,"

Of the circumstances of the present cases, which were of a rather special and complicated nature, it does not appear necessary to enter into any statement in this place, farther than to say that the case attempted to be made in arguments upon a portion of them, was, that Sir Thomas Plumer did not decide, and did not intend to decide, any thing except as to a reversionary interest, and that a

hended that 4 per cent. being the rate of English interest recognised by the Court, the suggestion of 5 per cent. (if, indeed, such a suggestion was made by any of the parties, which appears rather doubtful), could only have been grounded upon this mention of it in the settlement.

1 2 Atk. 465.

21 Russ. 1.

3 3 Russ. 65.

passage in Lord Lyndhurst's judgment shewed that he did not mean to extend the doctrine to cases where the chose in action either was capable of being reduced into possession at the time of the assignment or became so during the coverture; and that a fact which was taken for granted in the argument of Purdew v. Jackson, that no case had occurred in which the husband having assigned the wife's present chose in action, and having died before the assignee obtained possession of it, the assignee prevailed over the surviving wife, was not strictly correct.

The Vice-Chancellor of England, however, pronounces it " useless to be always travelling over the same ground. I consider the principle laid down by Sir Thomas Plumer, and twice affirmed by the Lord Chancellor, to be decisive of the present question. Whether the husband dies in the lifetime of the tenant for life, whereby the chose in action cannot, as against the wife, be reduced into possession, or whether he survives and dies before it is reduced into possession, the same result must in my opinion follow." This decision was adopted by the Vice-Chancellor Knight Bruce in the case of

ASHBY V. ASHBY. 1 Coll. 553.

This second case was as follows: - The wife being entitled to a legacy of 801. after the death of her mother, by an indenture made between the husband and wife of the one part, and S. C. of the other part, the former assigned the legacy of 80l. to S. C. by way of mortgage for securing the sum of 307. and interest. S. C. afterwards, in consideration of natural love and affection, absolutely assigned the legacy or sum of 807. and interest and the benefit of the mortgage to R. C., his grandson. The husband survived his wife's mother more than twelve months, but took no steps to reduce the property into possession. R. C. claimed the benefit of the assignment. It was not attempted to distinguish this case from the preceding, but it was submitted that that case was not in accordance with the doctrines of the Court. The Vice-Chancellor, however, pronounced that it warranted him in acting upon his own opinion, which agreed with that decision, in the present instance, and that finding that case before him, without considering it necessary to enter upon a discussion of decisions and dicta in other cases, he should follow it.

This case, though of rather a special nature, may be briefly

As reported in 12 Law J. 440. and 7 Jur. 337., under the name of Elwen ▼. Williams.

referred to in connection with the two preceding. By a marriage settlement, stock in the funds was settled upon the intended husband and wife for their joint lives and the life of the survivor, and then upon the children of the marriage, with a power to trustees, with the consent of the wife, to advance part of the fund for the benefit of the children in her lifetime. The husband died. The wife married again. The second husband assigned the wife's life interest for valuable consideration, the wife joining. After the assignment, the wife, by a deed poll in pursuance and execution of the power, "consented, directed, appointed, and requested” that the trustees should forthwith raise out of the stock a sum named in the deed poll, or such other less sum as they should think proper, and should apply the sum so to be raised for the advancement and benefit of the children. The trustees declining, under the circumstances, to act without the direction of the Court, a petition was presented praying a declaration that notwithstanding the second marriage and the assignment by the second husband, the power given to the wife by her former marriage settlement was a valid and subsisting power and well executed by the deed poll. The Vice-Chancellor in substance acceded to the prayer; holding that the wife's life interest, being derived under a particular instrument, must be liable to all the provisions affecting it contained in that instrument'; that if the assignment had not been made, she could certainly have executed the power, as it was a power with which marriage did not interfere, and that a purchaser from the husband could in reference to this stand in no better situation than the husband himself. Also, that the wife's concurrence in the sale could make no difference, being done neither in respect of estate settled to her separate use nor in the exercise of a power given to her, and therefore being in fact simply nugatory.

BARRY V. HARDING. 1 Jones and Latouche, 479.

Ademption.

One very important point in the doctrine of ademption of legacies by subsequent advancements has, as is well known, been placed in an entirely new light within a few years. It had been considered settled by the various cases in which the doctrine had been discussed, that where the portion subsequently advanced by a parent, or a person in loco parentis, was to be treated as an ademption of the legacy previously bequeathed by him, it was an ademption in toto, and that, to use the words of Lord Hardwicke ', "whether the portion given in the lifetime is less or not is no ways material.”

In Shudal v. Jekyll, 2 Atk. 516.

The subject, however, being very elaborately reviewed and discussed in the case of Pym v. Lockyer, Lord Chancellor Cottenham came to the conclusion that although the rule was "generally received in the profession, and laid down in all the text-books, and apparently founded upon the highest authority," all reasoning and analogy were against it, and that, on a thorough examination of the authorities, they were not such as to make it his duty to act upon it. Consequently it is now settled that the subsequent advancement by a parent, or a person in loco parentis, of a portion less than the testamentary portion operates only as an ademption pro tanto.2

We have thought it worth while to refer here to this important decision, but the question in the present case was of a different nature. A father bequeathed to one of his daughters 20007., and appointed her his residuary legatee. The daughter subsequently married, and by a settlement to which she and her father and her intended husband were parties, after reciting that the father had agreed to give his daughter 2000l. for a marriage portion, certain sums of money were vested in a trustee for the benefit of the intended husband and wife and the issue of the marriage. It was contended, that as under these the wife only took a reversionary interest in 10007. contingent on the event of her surviving her husband, while the 2000l. was given to her by the will absolutely, it was not a case of substitution; but the Lord Chancellor of Ireland says, "I do not see how the argument can be used in a case like the present, where a parent having made a will bequeathing a certain sum to his child takes upon himself to make a settlement of a like sum to her upon her marriage. When a testator has taken upon himself to make a settlement by his will of the portion he intends for his daughter, as was the case in Booker v. Allen 3, and then, upon her marriage, gives her a different sum, and settles it in a different manner, a question may arise whether the portion given on the marriage is an ademption of that given by the will. That is not the case here Unless, therefore, some authority to the contrary be produced, I shall hold that where a father

15 M. & C. 29.

2 The reasoning of Lord Cottenham's judgment seems only to apply to those cases where the testamentary gift is a portion properly so called, that is, where the testator is "“dividing his property among his children . . . . attributing to each the share of the whole which, with reference to the wants of all, each ought to possess." There are some cases where a person putting himself in loco parentis has bequeathed a legacy expressly for a particular purpose, such as outfit, &c., and in which the fulfilment of that particular purpose by a subse quent advancement of smaller amount would seem still to operate as a total ademption.

32 Russ. & Myl. 270.

makes an absolute gift by his will to his child, and afterwards, upon the marriage of that child, settles a like sum upon the husband and wife and their children, the provision by the settlement is an ademption of the legacy."

SHERIDAN V. JOYCE. 1 Jones and Latouche, 401.

Without going fully into the matter of this case, we may state in a few words enough to render intelligible some observations occurring in the judgment of the Lord Chancellor of Ireland, which appear of considerable general importance.

On the occasion of a marriage, a sum of money belonging to the proposed wife was vested in two trustees. One of them, Joyce, alone acted. There was no power to lend the money on personal security, but Joyce lent it to Fair, a person with whom he had dealings on his own account, and Fair had no notice at the time of its not being Joyce's own property. The first trust of the money being for the separate use of the wife, she, on finding it had been lent at interest to Fair, wrote to him requesting him not to pay Joyce the money that belonged to her, saying she would prefer that the interest should be paid to herself directly. In reply, Fair stated his willingness to accede to her desire, and adds that he will take care to hold the money for her. Afterwards, however, Joyce taking some steps to enforce against Fair securities which he held from the latter on account of the various transactions between them, Fair repaid the amount to Joyce.

The Lord Chancellor. "The moment Fair became aware that this was trust money, he became a trustee of it. He did not dispute the trust, or call for a particular statement of it, but he became aware that Joyce had committed a breach of trust in lending him the money as his own, whereas it was trust money, and he in fact acted in the trust with the concurrence of Joyce, for he paid interest on the money for three years directly to Mrs. S. herself, thereby admitting the trust, and that he had become a trustee by thus acquiring, through the improper conduct of Joyce, the trust money which ought not to have been lent to him . . . . Fair knew that this was trust money. He had promised that he would not part with it; was there any pressure or any dealing to justify him in paying it over? Am I to allow a person who had become a trustee to pay the money over to the legal hand, who had committed a breach of trust in respect of that money, and that by bills at three and six months? . . . . I think this transaction was a juggle between the parties to deceive this lady and help themselves to her property."