would, on the contrary, do everything to confirm the share of Harriet Davies in such portion so that she should receive as her share of the settled property 1,500l. at the least.

By his will, dated the 26th of April, 1852, John Davies appointed the settled property to his son John Stanley Davies in fee, charged with a sum of 3,0007. in favour of Elizabeth Ann Davies, and 1,000l. in favour of Harriet Huguenin.

The bill was filed by the widow and infant children of John Stanley Davies against Louis Huguenin and Harriet his wife, the trustees of a settlement made by them, and Elizabeth Ann Davies, for the purpose of having the trusts of the settlement of 1819 carried into execution.

The following questions arose :

1st. Whether the covenant of John Davies, contained in the marriage settlement of 1829, operated as a release pro tanto, of the testamentary power of appointment reserved to him by the settlement of 1819 ?

As to this, the following cases were cited,
Horner v. Swann, T. & R. 430;

Green v. Green, 2 Jo. & Lat. 529;

Re Chambers, 11 Ir. Eq. Rep. 518;
Hurst v. Hunt, 16 Beav. 372.

2nd. Who were the persons that, in the events which happened, would, but for the will of John Davies, have been entitled to share in the sum of 6,0007. raisable for portions of younger children under the settlement of 1819 ?

As to the latter point, it was argued that:

(a.) All the children living at or after the date of the settlement of 1819, other than William Hamblett Davies, would have been entitled to share: the meaning of the settlement being, that no portions were to be raised, unless some children survived the settlor, but, if any did survive him, then portions were to be raised for all,

Powis v. Burdett, 9 Ves. 428;
King v. Hake, 9 Ves. 438;

Howgrave v. Cartier, 3 V. & B. 79;
Perfect v. Curzon, 5 Madd. 442;

Torres v. Franco, 1 R. & M. 649.

(b.) None of the children would have been entitled, except those living at the death of the survivor of the tenant for life.

These were portions, and portions charged on land; they could not be raised, therefore, unless they were wanted. In general, portions were wanted on the marriage of the children, or on their attaining twentyone; but this settlement contained no power of advancement, and it must therefore be taken that, in contemplation of the settlors the marriage of a child was the only occasion on which a portion would be wanted. Thus William Hamblett, Thomas, and Lucy Margaret would be excluded,

Jennings v. Looks, 2 P. W. 277;
Hubert v. Parsons, 2 Ves. Sen. 261;
Warr v. Warr, Prec. Ch. 213;
Teynham v. Webb, 2 Ves. Sen. 209;
Lord Hinchinbroke v. Seymour, 1 Br. C. C. 395;
Edgworth v. Edgworth, Beatty, 329.

It was observed contrà, that though these cases showed that portions could not be raised, as against the inheritance, for children who did not want them, yet there was no rule of law that the portions of children who did want them should be increased by the death of others under twenty-one: the latter being excluded solely with reference to the inheritance,

Evans v. Scott, 1 H. of L. Ca. 43.

(c.) Even if those who attained twenty-one would have been entitled, Thomas, who died an infant, would not,

Remnant v. Hood, 2 De G. F. & J. 396.

(d.) John Stanley Davies would not have been entitled,

Teynham v. Webb, ubi supra;

Chadwick v. Doleman, 2 Vern. 527;

Richards v. Richards, Joh. 754.

(e.) William Hamblett Davies would have been entitled,

Ellison v. Thomas, 1 N. R. 37.

Giffard, Q.C., and Kay, for the plaintiffs.

W. M. James, Q.C., and North, for Elizabeth Ann Davies, and

C. T. Simpson (Rolt, Q.C., with him) for Mr. and Mrs. Huguenin.

WOOD, V.-C., said, that it was quite clear that the covenant by John Davies operated as a release of his power of appointment by will, so far as Mrs. Huguenin was concerned. No subsequent appointment by him could therefore affect her share of the property.

As to the interest of John Stanley Davies, the second son. Chadwick v. Doleman (ubi supra), settled that he having come into the property must be treated as the eldest son, and, therefore, would have taken no share in the 6,0007.

As to William Hamblett Davies, the eldest son. His case was undistinguishable from Ellison v. Thomas (ubi supra), and his representatives would therefore have been entitled to share in the fund.

one,

instrument, and, in so doing had frequently, as in Chadwick v. Doleman (ubi supra), disregarded the literal meaning. Again, it had been also very early decided that, in the absence of anything to the contrary, portions charged on land were not to be raised unless they were wanted; Pawlett v. Pawlett (1 Wils. 234). He then cited the observations of Lord Talbot in King v. Withers ca. temp. Talbot, 123), Bruen v. Brucn (Prec. Ch. 195), and the remarks of Turner, L.J., in Remnant v. Hood (2 De G. F. & J. 412), and said that, looking at the decisions in the earlier cases, and to the observations of the Lord Justice in the last case, he could not hold, that a child dying under twentyone took ai interest in a sum to be raised for portions.

It had been said that the decisions in these cases proceeded from the regard had to the heir; but this was not entirely so for they had also gone on the principle that a father (who, as sole next of kin, would take the share of a deceased infant) could not have been intended to be benefited by a provision made for his children. Besides, here a gross sum was to be raisel and divided among the children, a case distinguishable from one in which a specified sum was to be raised for each child.

Minute.—Decare that the defendant Harriet Huguenin, by virtue of the covenant on the part of her father John Daves, contained in her marriage-settlement of 12 September, 1829, is entitled to such share in the sum of 60007. by the settlement of 9 November, 1819, to be nised for the benefit of the children of John Davies and Mary his wife other than an eldest or only son, as she would have been entitled to, if no appointment had been made by John Davies of the trust property comprised in the last-mentioned settlement.

original contract, and referring other differences to arbitrators, one of whom was chosen by the two continuing partners, in lieu of the three original partners, as provided in the original contract.

Held, that the retiring partner remained bound by the contract, and the continuing partners became his agents in respect thereto, and that he was consequently bound by their acts properly done:

Held, also, that the subsequent agreement was not a variation of the original contract.

By an agreement of 8th August, 1857, it was agreed that Croskey & Co. (a firm of shipbrokers, then consisting of the plaintiff and the defendants Croskey and Wolff) should have the management of the vessels belonging to the defendants, the European and American Steam Shipping Company. It was also provided by Article 1, that the sums expended on the ships to make them fit for the company's undertaking, including the first cost of the vessels, the cost of their first repair and equipment, and the cost of taking them to the port of first outward destination, should be considered capital account; by Article 12, that if the earnings of the vessels, after making certain specified deductions, were insufficient to pay a dividend of six per cent. to the shareholders of the company, Croskey & Co. were to receive nothing; but, if the earnings were sufficient, they were to receive one moiety of the excess after payment of a six per cent. dividend; by Article 14, for the continuance of the agreement for three years; and by the last Article, that if any dispute should arise touching the matters therein contained, the dispute should be referred to three indifferent persons, one to be named by the company, one by Croskey & Co., and the third by the two others.

On 11th July, 1858, the plaintiff retired from the partnership, and by deed of the same date he ceded all his interest in the agreement to Croskey and Wolff, who released him, and covenanted to indemnify him against all liabilities in respect thereof.

Wood, V.-C. 2 MAY, 1863.

OAFFORD V. EUROPEAN AND

AMERICAN STEAM SHIPPING
COMPANY (Limited).

tiff's retirement.

Disputes having arisen with respect to Croskey & Co.'s accounts up to 1st June, 1858, a memorandum, dated 7th September, 1858, was signed by Croskey and Wolff of the one part, and the chairman of the com

Surety-Variation of Contract.

Three partners entered into a contract with a company for three years. One partner retired during the term, and received a covenant of indemnity from the other two, and the company had notice of it. Subsequently the two continuing partners entered into an agreement with the company, admitting the contention of the company on a disputed point as to the construction of the

tion of two persons chosen by Croskey and Wolff and the company respectively. This memorandum contained the following clauses :

"1st. That Messrs. Croskey & Co. shall consent to the bonus being added to the capital on which the six per cent. preferential dividend is to be ascertained."

8th. The agreement between the company and Messrs. Croskey & Co. to be reconsidered, with a view to prevent the recurrence of differences."

A more formal agreement, and to which the plaintiff was not a party, was afterwards executed, embodying the memorandum, and appointing two arbitrators. The submission was made a rule of the Common Pleas. The arbitrators purported to appoint an umpire; but in consequence of an irregularity in his appointment, leave was given, by an order of the Common Pleas, to Croskey and Wolff to revoke their submission, which they did.

In February, 1860, the company brought an action against the plaintiff and Croskey and Wolff to recover 615,2567. 15s. 4d. for money had and received for the use of the company between 8th April, 1857, and 17th December, 1859.

The present bill was filed to restrain that action, on the grounds that the plaintiff, on his retirement from the partnership, with the company's knowledge, and being indemnified by the continuing partners, ceased to be primarily liable under the agreement of August, 1857, and became a surety only; and as such surety, he was released by the variation in the original agreement made by the memorandum of September, 1858, particularly the appointment of arbitrators by Croskey and Wolff alone, and the concession contained in the

1st clause.

From the evidence it appeared that the 1st clause of the memorandum referred to a dispute as to the construction of Article 1 of the agreement. The ships had been purchased by the present company from a defunct company at a price to pay the old shareholders 67. 12s. 6d. per share; but it was provided that any of the old shareholders might exchange their shares for fully paid-up 97, shares in the new company; and the question had been, whether the difference between 6l. 12s. 6d. and 97. was properly carried to capital account under Article 1 of the agreement, so as to increase the six per cent. dividend payable under

Article 14.

E. F. Smith, for Croskey and Wolff. Sir H. Cairns, in reply.

WOOD, V.-C., said, that to hold that this case was governed by Oakeley v. Pasheller, would be to carry the doctrine of that case to an unprecedented extent. Here was a contract for three years, by which the plaintiff was bound jointly with his former copartners. The plaintiff had retired, and got a covenant of indemnity, but he, nevertheless, continued bound for the remainder of the term, and the partnership for that purpose must be considered as continuing. The continuing partners became the plaintiff's agents in all matters under the agreement, and le was bound by the acts of his agents properly done.

As to the matters referred to as a variation of the original agreement, it appeared on the evidence that the company had always claimed the construction of the agreement admitted by Croskey and Wolff in the 1st clause of the memorandum of September, 1858. In his Honour's opinion, the company were right, and no concession whatever in that respect was made by Croskey and Wolff; and the circumstances of the case, therefore, bore no resemblance to those in Oakeley v. Pasheller. But even if that were not so evident, the doctrine of Oakeley v. Pasheller could not be carried to the extent of preventing the continuing partners from entering into a proper agreement to avoid litigation. As to the arbitration, the original agreement made it right for the two continuing partners to refer the matters in difference, and they were only discharging their duty in so doing. The two were necessarily left to manage matters, and were the plaintiff's agents for that purpose, and they had done that which it was their duty to do. There was, therefore, no ground for contending that the plaintiff was discharged from his liability under the original agreement; and the bill must be dismissed with costs.

marily liable for payment, or had given so much of the fund as was thereby charged, and not merely a sum of money equivalent to the charge. On this point His Honour cited the remarks of Lord Cottenham in Creed v. Creed (11 Cl. & Fin. 508).

In the present case the will indicated a clear intention to give the annuities at all hazards; and the rents and profits of the real estate were only pointed out as primarily liable. His Honour then read the clauses of the will set out above; and remarked that it could not be supposed to have been the testator's wish that the gift should totally fail if the fund which was firstly liable proved wholly insufficient. This view was supported by the language of the codicil, which contained a marked gift of annuities, followed by a direction to raise them out of a particular fund.

He held, therefore, that the deficiency of the yearly rents of the real estate was to be made good out of the capital of the personal estate.

It was unnecessary to give any answer to the second question.

GURNEY v. GURNEY.

Wood, V.-C. 27, 28 APRIL, 1863. 5 MAY, 1863. Jurisdiction-Settlement made to obtain Declaration of Illegitimacy of a Child.

A husband having reason to doubt the legitimacy of a child born previously to his being divorced from his wife, settled a sum of stock on the children of the marriage. The Court, on bill filed by the legitimate children of the marriage, carried the trusts into execu tion, though the real object was to obtain a decision as to the legitimacy of the child.

Semble, the Court will not so act in the case of a stranger making such a settlement for a purpose which it disapproves.

of

This was a suit ostensibly instituted to carry into effect the trusts of a certain voluntary settlement, but in reality to obtain a declaration as to the legitimacy of the defendant, William Anselm Gurney.

Mrs. Gurney, the wife of Mr. John Henry Gurney, eloped from her husband's house in December, 1859.

On the 31st of that month a suit for divorce was

instituted against her by her husband; on the 13th of February, 1861, a decree nisi, for the dissolution of the marriage, was pronounced; and this decree was made absolute on the 22nd of May, 1861.

On the 4th of May, 1861, the defendant William Anselm Gurney was born.

It was also thereby provided, that it should be incumbent on the trustees to apply the whole of the income of the share of each child towards the maintenance of such child.

The plaintiffs were the infant children of Mrs. Gurney, born previously to her elopement: they sued by their father and next friend. The defendants were the trustees of the settlement of the 13th of January, 1862, and William Anselm Gurney.

The bill prayed that the trusts of the settlement might be carried into execution; and that it might be declared that the plaintiffs, as the only children of the marriage, were absolutely entitled to the funds comprised therein.

The Solicitor-General, Sir H. Cairns, Q.C., Aspland, and S. Hutton, were for the plaintiffs.

Walford was for the trustees.

and

Sir Fitzroy Kelly, Q.C., Ballantine, Serjt., G. N. Colt (Rolt, Q.C., with them), for the defendant, William Anselm Gurney, objected, that the real object of the suit was to bastardise an infant who was incapable of protecting his own interests. The Court would not carry into effect a settlement made entirely for that purpose. Courts of Common Law had always discountenanced fictitious cases,

Hoskins v. Lord Berkeley, 4 T. R. 402;
Re Elsam, 3 B. & C. 597.

No Court in this country was intrusted with the power to declare the illegitimacy of an individual. The Legislature had abstained from conferring such a

power on the Divorce Court, when the Declaration of Legitimacy Act was passed. They alleged that this was an attempt to prejudge questions which would arise as to the interests of the child under the will of Mrs. Gurney's father, and offered that such a sum should be brought into Court as would indemnify the trustees in case they should apply the whole settled fund for the benefit of the plaintiffs.

The Solicitor-General, in reply, distinguished the cases cited for the defence. There a series of fictions had been placed on the record, whereas here, the settlement was entirely bona fide. Settlements were constantly made in order to call out the jurisdiction of the Court as to the education and guardianship of children. He referred to

Shelley v. Westbrooke, Jac. 266;
Hope v. Hope, 22 Bear. 351;
Re Alicia Race (Unreported).