Here a testator had devised his estates to trustees upon certain trusts during the lives of his sons and daughters, and the longest liver of them, with remainder to their issue. The last of the testator's children died in 1861, and the property thereupon became vested in possession in the testator's grandchildren, who were numerous, and some of them infants. All parties being desirous of a sale of the entirety, applied by petition to the Vice-Chancellor of the Palatine Court of Lancaster for an order for sale under the Leases and Sales of Settled Estates' Act (19 & 20 Vict. c. 120).

The Vice-Chancellor refused to make the order required, on the ground that the property having come into possession, it was no longer "settled;" but having regard to the conflicting decisions of Stuart, V.-C., and Wood V.-C., on the point, gave leave to the petitioners to move the Lords Justices for their opinion.

Lake for the petitioners. He cited,

Re Goodwin's Settled Estates, 3 Giff. 620, 628, where Stuart, V.-C., held that the question, whether property is "settled" within the meaning of the Act must be determined with reference to the state of things which existed at the date of the instrument, and not by reference to the state of things which may exist when it comes into operation. It was true

that in

Re Thompson's Settled Estates, John. 418, 422, Wood, V.-C., had virtually decided to the contrary; but that latter decision did not affect the present case, as here application was made within the time within which the testator might have empowered the trustees to sell, and thus the case was brought within the purview of the 27th and 15th sections of the Act.

THEIR LORDSHIPS said, that at the time this petition was presented no succession, remainder, or reversion was existing. The words "stand limited " in the 1st section of the Act referred to the time of the application to the Court, and this construction was not affected by the 27th section, which was merely a limitation of time, restraining the Court from exercising their powers beyond the specified bounds. The present case, therefore, did not come within the Act, and their Lordships could not interpose.

Note. See, as to the mode by which the sale of an infant's interest in the entirety can be effected, Thackeray v. Parker, 1 N. R. 567; Davis v. Turvey, 2 N. R. 151.

Practice-Rehearing-Decree in Excess.

If the Court by its decree deals unnecessarily with hearing shall not be prejudiced by any lapse of time a question affecting future interests, the right to a reprevious to the accrual of such interests.

This was a petition for a rehearing, under the fol lowing circumstances:

The Master of the Rolls of the 11th day of Novem ber, 1854, made a decree in the above suit, by which he declared "that, according to the true construction of the will of the said Edward Foxhall, the surviving

children of the said testator were entitled to the whole of the rents and profits of the leasehold estates and premises; and the interest, 'dividends, and proceeds of the capital, stocks, and funds, and of all other the residuary estate and effects of the said testator since the death of the testator's daughter, Eleanora Foxhall, in equal shares, for their lives, with cross-remainders

between them."

The testator had left him surviving six children, interested as tenants for life in his residuary estate, and the purpose of the suit had been to ascertain the interests of the five children, tenants for life, in the share of Leonora on her death, unmarried, and without issue.

Hobhouse, Q.C., and Nalder, for the children of a tenant for life since deceased, contended, that the case ought to be reheard, as the decree of the Master of the

Rolls had gone beyond what was required, and had dealt unnecessarily with future interests. That at the time of the decree, there was no one before the Court with an interest adverse to the tenants for life. The tenant December, 1862, and, consequently, the petitioner for life, the father of the petitioner, had only died in was now for the first time interested in the residuary estate of the testator, and had come before the Court at the earliest opportunity.

Baggallay, Q.C., and Bagshawe, for parties inte

KNIGHT BRUCE, L.J., said, that if the testatrix had used the words "the survivors or survivor," instead of the words "such as shall survive," there would have been ample authority, as well as reason, for construing the words to mean "others or other;" and there was, probably, no real distinction between the two expressions; but even if any such distinction could be suggested, he thought that the gift over on failure of issue of all the nephews, justified the construction contended for by the appellant.

TURNER, L.J., said, that he saw no difficulty in giving to the words "such as shall survive," the same construction as had been given to the words "survivors” and “surviving" in the cases which had been cited. There was, therefore, an express limitation of the share of any nephew dying without issue to the other nephews and their issue; and the question of implying cross-remainders did not arise. The appellant was entitled to the share claimed by him. The

costs would come out of the estate.

The bill in this suit was filed the 17th of February, 1858, against the defendant Haigh; subsequently the defendant Bell was made a defendant, and on the 9th of August, 1860, the latter filed a concise statement with interrogatories for the examination of the plaintiff. The main object of these interrogatories was to obtain discovery and production of certain invoices and other documents in the possession of the plaintiff, or in the custody of his clerks at New Orleans, in America. In April, 1862, the plaintiff put in his first answer to the defendant Bell's interrogatories, and a second answer upon the 17th of April, 1863. The effect of these answers as to discovery and production of documents amounted to this-that the plaintiff considered that it was necessary that he should go to New Orleans himself to search for and procure the documents required, and that if he did so the probability would be that, in the present disturbed condition of the country, on his arrival at New Orleans he would be arrested, assuming he were permitted to proceed thither from New York, which was not pro

bable, since he had reason to believe that he was on the list of proscribed; and that he was ignorant whether his clerks and office at New Orleans were still existing. He also denied that the documents required were material to the defendants' case, and asserted that, at all events, it would be sufficient if they were made the subject of an inquiry.

Bell, on the other hand, contended that the discovery sought was material to his case at the hearing, and that justice could not be done if the invoices were made merely the subject of an inquiry. It was false that the plaintiff could not have obtained production of these documents, had he so chosen ; nor had he ventured to swear that it was not in his power to do so, and consequently the plea set up by the plaintiff of incapacity, owing to the civil

war in America, was a mere subterfuge.

In the course of the argument the Court took occa sion to observe that, as it appeared to them, a concise

statement does not amount to a cross bill for relief, but for discovery only.

Daniel, Q.C., and T. Stevens, for the plaintiff, argued that he had given the best answer he could under the circumstances. The production of the invoices was a mere question of account, and, therefore a fit subject for inquiry. There was no reason waiting for their production. why the hearing of the cause should be delayed by

Giffard, Q.C., and F. J. Wood, for the exceptions, contended, that discovery was material for the defendants' case at the hearing. It was not a mere question of account. The defendants were accused of wilful neglect and default in the sale of the cotton, and the invoices would show that their conduct had been justifiable. A party cannot apply for further time, and then turn round and say, the discovery sought is immaterial. Besides, the invoices can be obtained now, but it does not follow that they will be available after the hearing. The Court will, therefore, proceed on the same principle as it does when it requires an executor to file his accounts previous to the hearing.

Daniel, Q.C., in reply.

TURNER, L.J., said, it appeared to him that the order of the Vice-Chancellor was right, and that Bell had entirely made out his case. There were two questions before the Court: first, whether the discovery sought was material at the hearing; secondly, whether the plaintiff was really unable to obtain the necessary information. In regard to the first point: charges of gross fraud had been made by Bell against the plaintiff; the invoices would be essential to the establishment of those charges, and, supposing a case of fraud were made out, the Court might be influenced in its decision by that fact. The discovery sought was, therefore, material to Bell's case at the hearing; yet before that time arrived, the plaintiff

might have died, and thus the evidence become unavailable. Then came the next point-whether the plaintiff had given a sufficient answer as to his capability to obtain the documents in question. It was clear that they had been in his possession, and probably were now in the custody of his clerks at New Orleans, and he was bound to satisfy the Court, therefore, whether the documents were now existing or not, and whether he could or could not really obtain possession of them. There was no evidence that he had made any attempt either to get the documents themselves nor any proof of his incapacity to do so. The exceptions, therefore, must be allowed.

KNIGHT BRUCE, L.J., said, that, considering the disturbed condition of the United States, he respectfully took a different view from the Vice-Chancellor, and he was of opinion that the order appealed from should be discharged without prejudice; that the exceptions be reserved for the hearing; and that the costs should be, costs in the cause. But as the Lord Justice Turner agreed with his Honour, he need not give his reasons in detail for differing from them. Minute.-Order of the Vice-Chancellor affirmed. Costs allowed.

Cross-Examintion-Withdrawing Affidavit. Although the Court will not allow a party to a suit to withdraw an affidavit relating to the merits of the case in order to escape cross-examination, this rule does not extend to an affidavit filed unnecessarily, merely to prove some proceeding in the suit.

This was a motion on behalf of the defendant Mrs. Carstairs to discharge an order under which the plaintiff had served her in France with a copy of the bill.

Mrs. Carstairs had entered a conditional appearance to enable her to make this motion, and had filed an affidavit sworn by herself, merely proving the service in France.

Hobhouse, Q.C. (Prendergast, with him), in support of the motion, denied that the present case came within the General Order as to service abroad (Cons. Ord. X. Rule 7), according to the restricted construction placed upon that Order by the Lord Chancellor in

Cookney v. Anderson, 2 N. R. 140.

Roxburgh (Baggallay, Q. C., with him), for the plaintiff, claimed to cross-examine the defendant upon her affidavit. He believed that her evidence would enable him to establish that the present suit came

within the General Order. The Court would not allow a party who had filed an affidavit to escape crossexamination by withdrawing it,

Clarke v. Law, 2 K. & J. 28.

The only affidavit upon which there was no right to cross-examine was an affidavit as to documents,

Kay v. Smith, 20 Beav. 566; s. c. on appeal, 3 W. R. 622;

Manby v. Bewicke, 8 De G. M. & G. 470.

THE MASTER OF THE ROLLS allowed the defendant

to withdraw her affidavit, being of opinion that no affidavit was necessary to enable her to make the present motion. He had repeatedly followed Clarke v. Law, but he thought that the affidavits, which he had not allowed to be withdrawn, had always related to the merits of the case. It would be most unreasonable to prevent the defendant from making this motion, until she came over to England to be cross-examined. As for the facts upon which the plaintiff relied to bring the case within the Order cited, he might put in an affidavit stating them; and this statement, if uncontradicted, he should assume to be true. The motion would stand over for this purpose.

Note. -Compare for another unsuccessful assertion of the right to cross-examine,

Catholic, &c., Company v. Wyman, 1 N. R. 468,
V.-C. W.

to arise from the sales of the real estate, together with the rents and profits thereof until sale, and also of the moneys to arise from his personal estate, in trust as to one half for herself, and as to the other half for the plaintiff.

By a codicil, dated the 7th of February, 1863, the testator appointed the defendant Palmer to be an executor and trustee of his will, in conjunction with the defendant Mary Marsh; but the Master of the Rolls considered that the words used did not give to him the same power over the real estate as they did to Mrs. Marsh: and, by the same codicil, the testator settled Mrs. Marsh's moiety on herself, her husband,

and children.

Neither the will, nor codicil contained any devise of the testator's real estate, which, subject to the powers given to Mrs. Marsh, descended upon the plaintiff, his heir-at-law.

The testator died on the 25th of March, 1863.

Mary Marsh was a married woman, and her husband, who was named as a co-defendant, was a person of unsound mind, not so found by inquisition.

The defendants Palmer and Mrs. Marsh had applied to the principal registry of the Court of Probate to have probate of the will and codicil granted to both of them. The plaintiff objected to probate being granted to Mrs. Marsh on the ground that her husband was of unsound mind; but the registrar wrote to him that he should not attend to his objection. Ultimately, on the 5th of May, 1863, after the bill was filed, probate was granted to Palmer, liberty being reserved to Mrs. Marsh to come in and prove.

The plaintiff claimed to be a creditor of the testator as well as a residuary legatee, and the suit was a

creditors' suit for the administration of the real as well as the personal estate.

Selwyn, Q. C. and Batten, for the plaintiff, said that Lord Hardwicke had restrained a married woman, whose husband was abroad, from acting as executrix, Taylor v. Allen, 2 Atk. 213.

A married woman, whose husband was abroad, or incapacitated, was practically irresponsible,

Pemberton v. McGill, 1 Dr. & Sm. 266.

If Mrs. Marsh proved, no stock or shares could be transferred without her husband's concurrence, i. e. without an application in lunacy to the Lords Justices.

M. A. Shee (Baggallay, Q.C., with him), for the defendants Palmer and Mrs. Marsh, said that Mrs. Marsh did not now intend to prove the will.

THE MASTER OF THE ROLLS said that he could not restrain Mrs. Marsh from taking out probate. He was satisfied that no case would be found in which this Court had made any such order. However, if she were to take out probate, he should be disposed, upon her so doing, to grant an injunction restraining her from intermeddling with or getting in the per

Letter-Right of writer to prevent publication Letter purporting to be written as AgentVindication of Character.

The solicitor of a company having written a letter purporting to be on behalf of the directors, but which was in fact written without their sanction:

Held, that he could not prevent the manager of the company from publishing it in vindication of his character.

This was a motion by the defendants to dissolve an injunction which had been obtained on the 5th of May last, restraining them from publishing two letters written by the plaintiff, dated the 12th of February, 1863, and the 27th of March, 1863.

In January, 1863, the defendant Gunn, and the plaintiff, were engaged with other persons in promoting a company, called the City of London and General Life and Fire Assurance Company (Limited).

The plaintiff acted as solicitor for the promoters o the company, and afterwards became solicitor for the company. He was also the holder of a considerable number of shares. The defendant Gunn was to be one of the two managers of the company, and though not formally appointed manager, he acted as manager and secretary, and had made an arrangement with

a Mr. Jamieson of Aberdeen, as to allotting a certain number of shares to persons applying through him, and had been in correspondence with him on the subject.

The letter of the 12th of February, 1863, was from the plaintiff to Mr. Jamieson, and began as follows:

"Being at the offices of the company to-day I saw your letters to Mr. Gunn, and, in reference to your inquiry as to how the company is going, I am happy to inform you that a large number of applications have been made, and that the directors have determined to allot only to those persons whom they can rely upɔn will hold the shares for the purposes of investment." It then went on to propose that Jamieson and his friends should sign a form of letter, which was enclosed addressed to the plaintiff, being an undertaking not to part with any shares for three months from the day of allotment, and proceeded thus-" Referring to the recent interview between yourself and Mr. Gunn, and proposal which you made at the time to place two