instalments, with a proviso, that, if he should make default in payment of any instalment, the whole delt should be immediately recoverable: Held, that the proviso was not a penalty against which relief could be had in Equity, but an essential part of the security created by the deed. This was an appeal from the decision of ViceChancellor Stuart, reported ante, p. 12. The plaintiff, owing the defendant a sum of money payable by instalments under an award, on the 1st of January, 1862, made default in payment of an instalment, whereupon the defendant commenced proceedings in bankruptcy against him, but subsequently agreed by deed to forbear further proceedings in bankruptcy, and to give the plaintiff time for payment of the instalment then due, upon having the whole of the debt which remained unpaid, with interest, and a further sum of 1007. for costs, secured to him by the instalments and "in the manner thereinafter appearing." The plaintiff, accordingly, covenanted with the defendant in a deed of the 15th of February, 1862, to pay the debt and 1007., with interest, by instalments extending to a later date than the original instalments; and the deed contained a proviso and covenant by the plaintiff, that if he should make default in the payment of any instalment, the whole should be at once recoverable. The plaintiff having made default in payment of an instalment under the deed, the defendant commenced an action against him for the whole debt, whereupon the plaintiff filed a bill to restrain the action on two grounds, viz. : 1st. That the defendant had verbally agreed not to enforce the proviso. of equitable relief against penalties was inapplicable. As to the alleged collateral agreement, the preponderance of evidence was strong on the side of the appellant. TURNER, L.J., agreed that the respondent failed to prove the alleged collateral agreement; and, after referring to the recital in the deed, said that the proviso was an essential part of the security given to the appellant in consideration of his forbearance to sue for the instalment then due at the date of the } MOORE v. Moore. Lords Justices. A testator bequeathed his residuary personal estate to trustees upon trust to convert the same into money, and to pay thereout all his just debts, funeral and testamentary expenses, and, after full payment and satisfaction thereof, upon other trusts : Held, that he thereby signified an intention within the meaning of the 17 & 18 Vict. c. 113 to make his personal estate primarily liable to pay a mortgage debt affecting his real estate. This was an appeal from a decision of the Master of the Rolls (reported 10 W. R. 877) to the effect that a testator, who bequeathed his residuary personal estate to trustees upon trust to convert the same into money, and stand possessed thereof upon trust thereout, in the first place, to pay all his just debts, funeral The Vice-Chancellor granted the injunction on the and satisfaction thereof, upon other trusts, did not and testamentary expenses, and, after full payment second ground, and the defendant appealed. 2nd. That the proviso was in the nature of a penalty for non-punctual payment, against which a Court of Equity would give relief. Bacon, Q.C., and Langworthy, for the respondent, contended that, as the whole debt was not due at the date of the deed, the proviso gave the defendant a new right in the nature of a penalty, and was analogous to a proviso in a mortgage for raising the interest on failure of punctual payment; they also relied on the alleged verbal agreement. Malins, Q.C., and Caldecott, for the appellant, contended that the proviso was an essential part of the contract the appellant's evidence disproved the alleged verbal agreement. Langworthy, in reply. KNIGHT BRUCE, L.J., said, that the deed, which had been executed for valuable consideration and was binding on both parties, provided that the payment of a debt payable at a future time should in a particular event be accelerated. To such a proviso the doctrine thereby "signify a contrary or other intention" within the meaning of Locke King's Act, 17 & 18 Vict. c. 113, so as to make his personal estate primarily liable to the payment of a mortgage debt affecting his real estate. Baggallay, Q.C., and Archibald Smith, for the devisees. W. Pearson, for the persons interested in the personal estate, admitted that the case could not be distinguished from Eno v. Tatam, 1 N. R. 529. THE LORDS JUSTICES reversed the decision of the Master of the Rolls, and declared the personal estate to be primarily liable to the payment of the mortgage debt. Master of the Rolls. 11 JUNE, 1863. THE OFFICIAL MANAGER Practice Service Abroad· In a suit for the administration of a testator's personal estate, consisting in part of stocks or shares in England, the Court has jurisdiction to order service on a defendant abroad under Cons. Ord. X. r. 7. Observations on Cookney v. Anderson, 2 N. R. 140. 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 copies of the bill and the interrogatories. The bill alleged in substance, That Peter Carstairs was, at his death, indebted to the plaintiff in a sum of 1,6867. 4s. 5d. upon bills which he had accepted as one of the directors of the Times Assurance Company; That the defendants, Elizabeth Carstairs and G. E. Johnson, were the surviving executors appointed by a will of Peter Carstairs, dated the 10th of July, 1846, which will had been proved at Madras by Mrs. Carstairs, who was the testator's widow, on the 3rd of April, 1862; That Mrs. Carstairs had refused to prove this will in England, but had possessed herself of large portions of the testator's property in England ; That, on the 30th of April, 1863, the Court of Probate had issued a citation to Mrs. Carstairs and her children to take out probate or administration to Peter Carstairs. The bill was filed against Mrs. Carstairs and Johnson, as defendants, and sought the administration of the personal estate of Peter Carstairs, the appointment of a receiver, and an injunction to restrain the defendants from getting in such personal estate. On the 7th of May, 1863, the Master of the Rolls made an order ex parte, giving the plaintiff leave to serve Mrs. Carstairs, then residing at Boulogne, with copies of the bill and interrogatories, and fixing the time for appearance at fourteen days, and the time for answering, pleading, or demurring, not demurring alone, at six weeks, from the date of service. Mrs. Carstairs entered a conditional appearance for the purpose of making the present motion, which, when first made, stood over as reported p. 255, to enable the plaintiff to file affidavits. The affidavits filed by the plaintiff stated (inter alia) that Peter Carstairs's estate included twenty shares in the Aldershot Manure Company, and that Mrs. Carstairs had kept her address secret to avoid being served with legal proceedings in connection with Peter Carstairs's estate. Mrs. Carstairs had not filed any affidavit disputing these statements. Hobhouse, Q. C., and Prendergast, in support of the motion, contended that this was not a suit which came within the 4 & 5 Will. 4, c. 82, and, therefore, not a suit in which an order for service abroad could properly be made under Cons. Ord. X. r. 7, Cookney v. Anderson, 2 N. R. 140, L. C. Selwyn, Q.C., and Roxburgh, for the plaintiff, were not called upon. THE MASTER OF THE ROLLS considered it clear that the order for service was perfectly good. He thought the defendant's counsel were under some misconcep tion as to what the Lord Chancellor had intended to decide in Cookney v. Anderson. His own decision in that case had certainly never been intended to lead to the consequences here contended for. From such a contention, supposing it to be well founded, it would result that if a man died in England, leaving stocks, shares, and other property in England, his duly constituted executor (the proving of the will in England being for this purpose immaterial) might depart out of the jurisdiction, and thus prevent his testator's creditors from taking any proceedings to have the estate administered, because they had no charge or lien upon the stocks or shares. His Honour had decided Cookney v. Anderson independently of the question whether the order for service abroad had been properly made, upon the ground that, even if the defendants had appeared voluntarily, the Court would have had no jurisdiction. In that case the defendants and every thing connected with the suit were in a foreign country, and it was clearly not a case in which the Court could entertain a suit for winding up a foreign company. Since the defendant had not met the statements in the plaintiff's affidavit, as she might have done, he must assume that these statements were correct, and that Peter Carstairs's estate included the twenty shares as stated. On this assumption, he was of opinion that, although the plaintiff's bill might possibly be demurrable upon the ground that there was no personal representative of Peter Carstairs before the Court, yet, reserving that question, the bill was one to which the defendant could not have successfully demurred. How could it be said that this was not a bill relating to shares? He considered the greater or less value of the shares immaterial. It was also possible that it might appear from the defendant's answer that the testator was entitled to stock as well as shares. He thought the Lord Chancellor's decision had been misapprehended, and that he had not intended to confine the jurisdic * Erratum.-Ante, p. 255, col. i. line 4 from bottom, for Baggallay, Q.C., read Selwyn, Q.C. tion as to ordering service abroad to suits for enforcing a specific lien on stocks or shares, to the exclusion of other suits in which, if the plaintiff succeeded, property of that kind would be affected by the decree of the Court. might be transferred to Sarah Ann Hedgcock, or that the same might be settled upon Mrs. Furnivall for her separate use to the exclusion of her husband. Selwyn, Q.C. (Schomberg, with him), for the petitioners, cited, on the propriety of the transfer into Another statement in the plaintiff's affidavits brought Court by the executor, the defendant within the terms of the General Order as to absconding to avoid service, Cons. Ord. X. r. 6. Upon the question, whether the bill could be sustained in the absence of any personal representative of Peter Carstairs, he abstained from expressing any opinion favourable to the plaintiff: that question could not be raised upon the present motion. The motion must be refused with costs, and an unconditional appearance must now be entered, that being the understanding upon which the defendant had been allowed to enter a conditional appearance. The time for putting in an answer would run from the time of the defendant's being served, the twelve days for demurring alone from the present day. A husband having deserted his wife two days after the marriage without reasonable excuse, and not having maintained or cohabited with her since, the Court ordered the entirety of a fund in Court belonging to the wife to be settled upon her. This was a petition of Elizabeth Furnivall, a married woman, by Sarah Ann Hedgcock, her sister and next friend, and of the said Sarah Ann Hedgcock, respecting a sum of stock which had been transferred into Court. By the will and codicil of one William Ford, Mrs. Furnivall was entitled to an annuity of 1007. for her life, to be increased on a certain event to 2507. The marriage of the petitioner took place on the 26th of February, 1846, and on the 28th of February in the same year Mr. Furnivall deserted his wife, and had never cohabited with or supported her since that time. In June, 1861, a decree for judicial separation, on the ground of desertion without reasonable excuse, was made in the Divorce Court at the suit of Mrs. Furnivall, and the respondent, her husband, was then condemned in costs. In the month of May, 1863, the surviving executor of William Ford transferred into Court, under the Trustee Relief Act, a sum of 1,3157. 12s. 10d. Consols, to answer the annuity bequeathed to Mrs. Furnivall. No settlement was made on the marriage, and there was no issue. Ever since Mr. Furnivall had left his wife, Mrs. Furnivall had been maintained exclusively by her sister, Sarah Ann Hedgcock, the next friend and co-petitioner. In this state of circumstances the petitioner asked that the fund in Court, or a competent part thereof, Wells v. Maldon, 10 W. R. 364; and in support of the first alternative of the prayer, asking a transfer to Sarah Ann Hedgcock, Guy v. Pearkes, 18 Ves. 196. Fischer, for the husband, contended: 1st. That Sarah Ann Hedgcock was improperly made a co-petitioner, as she had no lien on the fund, and had a creditor's remedy at law. 2nd. That the Court would not settle the entire fund on the wife, there being no imputation of blame on either side, Coster v. Coster, 9 Sim. 597; Carter v. Taggart, 1 De G. M. & G. 286; Re Erskine's Trusts, 1 K. & J. 302. [His Honour mentioned Barrow v. Barrow, 5 De G. M. & G. 782.] The case of Tidd v. Lister, 10 Hare, 140, was also referred to in the course of the argument. THE MASTER OF THE ROLLS, after deprecating any inquiry in that Court into the conduct and motives of the married parties, said, that when a husband deserted his wife only two days after marriage, he should assume that the fault was his rather than hers. The terms of the decree for judicial separation showed that the Divorce Court was also of this opinion. His Honour would therefore, as far as depended upon him, prevent the husband from getting any portion of the fund. As to the propriety of joining the wife's sister as a co-petitioner, and asking for a transfer of the fund to her, his Honour regarded that as an act of bounty on the part of the wife, and the frame of the petition was therefore free from objection. The husband would not have any costs of the petition. ment. The settlement, which was an ante-nuptial settlement of the lady's fortune in the usual form, and was executed by the plaintiff after she had attained her majority, contained the following covenant to settle after-acquired property :-" And it is hereby further agreed and declared, and they the said [intended wife] and [husband] do hereby for themselves respectively, and their respective heirs, executors, and administrators, covenant and declare, promise and agree with and to the said [trustees], their executors, administrators, and assigns, that in case any estate, real or personal, shall at any time or times after the solemnisation of the said intended marriage, descend, or come to, or devolve upon, or be given, devised, or bequeathed to or in trust for her, the said [intended wife], and not being already settled to her separate use, they, the said [intended wife and husband], respectively, or their respective heirs, executors, or administrators, shall and will do and exccute, or cause to be done and executed, all acts for assigning all such future, or additional future, or other real or personal estate of the [intended wife] unto and to the use of the said [trustees] upon the trusts herein before declared." By the will and codicil of Edmund Walle (who was a party to the ante-nuptial settlement), the plaintiff became entitled to a legacy of 10007. and a share of the residue "for her sole and separate use, independent of her husband," and her receipts alone were made a sufficient discharge for the same. The bill, to which the husband of the plaintiff and all the beneficiaries were made parties, prayed a declaration that neither of these legacies was subject to the above covenant to settle after-acquired property. and distinguished Milford v. Peile, 17 Beav. 602. Chapman Barber, for the children, contrà. covenant to settle property in respect of which the jus mariti was not excluded would be in all cases inoperative during the husband's lifetime, but it would bind her personal estate not reduced into possession by him, and also all real estate of inheritance which came to her during the coverture. In this view every part of the covenant had a definite scope and meaning, and as the Court must endeavour to give effect to every word, his Honour would make a declaration in ac cordance with the plaintiff's contention. The costs of all parties to be taxed as between solicitor and client, and paid out of the fund. of This was a petition of a Mrs. Forster (the plaintiff in the cause), by her next friend to revise a taxation of the costs of the suit under the following circumstances. It appeared that after instructions had been laid before counsel to settle a bill for the purpose appointing new trustees of the plaintiff's marriage suggested itself to the legal advisers of the plaintiff settlement, and a draft bill prepared accordingly, it had that the limits of the suit ought to be extended, so as to comprise also a rectification of the plaintiff's marriage settlement. Before, however, signing the amended bill, the junior counsel required that Mr. Bacon, Q.C., whose advice had been already taken with reference to the disputes between the plaintiff and her husband, should be consulted upon the propriety, under the peculiar circumstances of the case, of filing an extended bill. This was accordingly done, and the result was, that Mr. Bacon advised that Jolliffe, for the trustees and husband, took no part the new matter should be struck out, and the suit in the argument. The excep THE MASTER OF THE ROLLS was of opinion that the legacies did not fall within the covenant. tions in the covenant could not point to a settlement, strictly so called, in which a life estate only was given to the wife, with remainder to her children; for property "settled" in this sense by a stranger could not of course be further settled by any act of the wife. The exception could only apply to property settled on the wife for her separate use in the sense of her having absolute control over it. It was true that the wife's confined within its original dimensions. The order on further direction gave the plaintiff and the defendants their costs of the suit, as between solicitor and client. The Taxing Master at the instance of the defendants disallowed to the plaintiff the costs incurred in consulting Mr. Bacon as to the proposed alteration of the frame of the bill, principally on the ground that the result of the consultation was, that the proposed extension was ultimately given up. The petition prayed that these items might be allowed to the petitioner as part of the costs of the suit. Selwyn, Q.C., and Bovill, for the petitioner; and Hardy for Mr. Forster, the husband, supported the prayer of the petition. Baggallay, Q.C. (Gardiner with him), for the trustees of the plaintiff's marriage settlement, contrà. The MASTER OF THE ROLLS said, the matter was one of considerable importance, and he should take time to consider, his present impression being that these costs ought to be allowed. 19 JUNE, 1863. HIS HONOUR remained of the same opinion. The result of the consultation with the Queen's counsel could not affect the case. It could not make any difference that the additional relief adopted by the junior counsel, was ultimately abandoned after consulting with the senior. The costs were costs which a client would have to pay his solicitor in an ordinary case, and must be allowed as falling within the terms of the costs awarded by the order. Stuart, V.-C. 11 JUNE, 1863. } CROSS v. CROSS. Practice Death of Defendant. Semble, the executors of a defendant, who has died before decree, may obtain an order that the plaintiff revive the suit within a limited time, or that the bill be dismissed as against them: Secus, the dismissal will be without costs. This suit, as originally constituted, was between James Cross, plaintiff, and Henry Cross and William Heaton, defendants. William Heaton had been dismissed, and afterwards, but before decree, Henry Cross died. sole plaintiff, considered that the dismissal could not be with costs. Minute.-Plaintiff consenting to dismiss the bill, order accordingly. Wood, V.-C. 11 JUNE, 1863. STORY V. THE OFFICIAL MANAGER OF THE NATIONAL INSURANCE Practice-Motion to Dismiss-Replication- A plaintiff in contempt may file a replication; and the replication so filed is an answer to a motion to dismiss his bill for want of prosecution. This was a suit instituted for the purpose of restraining an action at law to recover a sum alleged to be due from the plaintiff to the defendant. Wood, V.-C., granted an injunction till the hearing; but, at the same time, made an order requiring the plaintiff to pay the sum in question into Court. The plaintiff did not do so, and was, therefore, in contempt. No step having been taken in the suit for a considerable time, notice of motion was given by the defendant to dismiss the bill for want of prosecution; and to-day, Roxburgh moved accordingly. Joyce, for the plaintiff, stated that replication had been filed yesterday. Roxburgh urged that the plaintiff was in contempt, and could take no step in the suit till he had purged the contempt. WOOD, V.-C., said, that the replication was a complete answer to the motion to dismiss. The proper course for the defendant was to move to have the replication taken off the file. Minute.-Motion refused, the plaintiff paying the |