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The only question then is, whether the power of leasing puts her to her election. For this purpose it is necessary to consider whether the difference of language between the present power and that in Hall v. Hill creates a distinction substantial enough to be acted on. The language of the power in Hall v. Hill is this:"I also give to my said trustee, Charles Newman, full power and authority to lease, demise, or set all or any part of my said estates and lands, for any term not exceed ing thirty-one years in possession, and not in reversion, and without fine." (5). The language here is, "I declare and hereby empower my said trustees to lease any lands which they may hold upon the trusts of this my will." There is a distinction reasonably arguable between the modes of expression. I am, however, of opinion, that the distinction is not sufficiently substantial. I consider that the decision in Hall v. Hill proceeded principally, if not solely, on the power of leasing, and that it would not have been made if the power had not been there. With reference to Hall v. Hill I am reported to have said, "In Roadley v. Dixon and Hall v. Hill, the decisions, in both of which I entirely agree, proceeded on the ground of distinction to which I have adverted. The decision in Roadley v. Dixon turned on the mode of managing a farm, that in Hall v. Hill on the power of leasing, both of which, though clearly within the contemplation of the testator, would be substantially disappointed by the claim of dower (6).

The manner in which I ought to have expressed myself, in order to demonstrate clearly what was then passing in my mind, is this: "I assume Hall v. Hill to be perfectly correct for the purpose of this decision, believing that this decision does not in the slightest degree contravene Hall v. Hill." My impression was then, as it is now, that the question in Hall v. Hill was one of considerable nicety and difficulty, and that that case involved a decision to which, independently of the high authority of Hall v. Hill, I might not perhaps have I think, however, that I am now

come.

(5) 1 Dr. & War. 97.

(6) Holdich v. Holdich, 2 You. & C. C.C. 22, 23.

placed in a position different from that in which I was placed in Holdich v. Holdich, as it appears to me that I cannot decide in favour of the widow here without substantially contravening Hall v. Hill. Hall v. Hill has been expressly recognized in a subsequent case (7) by the learned and eminent Judge who decided it, and I think that the weight of his authority ought to overbalance any doubt or difficulty of my own. Considering that this case is bound by the decision in Hall v. Hill, I shall follow that decision, and must decide in favour of the widow being put to her election.

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WOOD, widow.

Legacy-Incumbrances

- Notice-Priority-Act for better securing Trust Funds, 10 & 11 Vict. c. 96.-Costs.

A testatrix bequeathed a sum of 1,000l. to trustees, in trust to invest the same, and to pay the annual produce during the life of M. F. H. into her proper hands, or to her order for her separate use. The testatrix died in 1838, and, by deed, dated the 24th of October 1840, M. F. H. in consideration of 3001. granted an annuity of 30l. to J. H, payable half-yearly during M. F. H.'s lifetime, out of the dividends and interest to accrue on the legacy of 1,000l., or the securities for the same. This annuity was afterwards assigned to trustees for J. H. By another deed of like date, and made between C. H. and the several parties to the other deed, C. H. covenanted with J. H. to pay to her the annuity of 30l. as often as default should be made in payment thereof by M. F. H. until the legacy should be invested by the testatrix's executor, and it was by the same deed agreed that C. H. should stand in the place of J. H, as regarded the interest and dividends to accrue due to the extent of any sums that might be paid by him to J. H. previously to the investment of the legacy. C. H. paid divers sums to J. H. under his covenant, and

(7) O'Hara v. Chaine.

in November 1840 the executor received notice of J. H.'s security, and in 1846 he received notice of a subsequent mortgage executed by M. F. H. of her interest in the same dividends and interest to S, but no express notice was given to the executor of the deed to which C. H. was a party until May 1848. In July 1848 the legacy of 1,000l., less the duty, and the interest thereon amounting to 3391. 10s., were paid into court by the executor under the statute 10 & 11 Vict. c. 96, to an account entitled "The account of M. F. H. and her incumbrancers" :-Held, that C. H. was entitled to priority over S. to the extent of the payments made by him to J. H.

Held also, that the expenses attending the payment into court under the statute 10 & 11 Vict. c. 96, must be paid by the executor out of his testatrix's estate.

Under the will, and two codicils thereto, of Mrs. Cawthorne deceased, who died on the 27th of October 1838, the sum of 1,000l. was bequeathed upon certain trusts for the investment and payment of the annual produce thereof during the lifetime of Maria Frances Harwood, into her proper hands or unto her order, to be signed by writing under her hand for her separate use, and after her decease upon certain trusts for the benefit of her children as therein mentioned; and the testatrix appointed F. T. Dawson her residuary legatee and sole executor, who proved her will.

By an indenture dated the 24th of October 1840, and made between M. F. Harwood of the first part, her husband, E. B. Harwood (since deceased) of the second part, John Jadis of the third part, T. T. Wright of the fourth part, and Jane Hare of the fifth part; in consideration of 300l. M. F. Harwood and her husband granted unto Jane Hare an annuity of 301., payable half-yearly, during the life of M. F. Harwood, out of the interest, dividends, and proceeds of the said sum of 1,000l., and of the security for the same; and by the same indenture, the interest, dividends, and annual proceeds, during the life of the same M. F. Harwood, were assigned to trustees upon certain trusts for securing payment of the annuity.

By another indenture of like date, and made between Charles Harwood of the

first part, E. B. Harwood and M. F. his wife, of the second part, and Jane Hare of the third part, in consideration of the payment of the said sum of 300l. to M. F. Harwood, C. Harwood, at the request of E. B. Harwood, and M. F. his wife, covenanted with Jane Hare, that in the mean time, and until, and as the case might be, during so much and such part of the life of M.F. Harwood as should elapse before the said legacy of 1,000l. should be paid to and received by the trustees of the will of Mrs. Cawthorne, he, C. Harwood, on fourteen days' notice of default in payment of the annuity, would, from time to time and as often as any such default should be made, pay to Jane Hare all and every sum and sums of money which should be then due and owing to her in respect of the annuity and all arrears thereof, free and clear of all deductions; and by the same indenture E. B. Harwood and his wife directed and appointed that C. Harwood should stand in the place of Jane Hare, in respect of such sums as he might so pay, and that he should be entitled out of the dividends and interest of the sum of 1,000l., to be repaid such sum or sums by the trustee or trustees for the time being of the sum of 1,000l.

The executor Dawson received notice of Jane Hare's security of the 24th of October 1840, in November 1840, and of an indenture of assignment of the mortgage security of Jane Hare to the trustees of Jane Hare, dated the 27th of November 1840, on the 2nd of December 1848; and in the year 1846 he received notice of a subsequent incumbrance of Mrs. M. F. Harwood's interest and dividends arising from the legacy of 1,000l. from a person named Simpson, and in May 1848 notice was given to Dawson of the deed of the 24th of October 1840, to which C. Harwood was a party.

In pursuance of his covenant C. Harwood had paid from time to time to Jane Hare, several sums amounting in the whole to the sum of 218l. 13s. 9d. in respect of the arrears of the annuity of 30%. up to the 10th of July 1848, which remained due to him.

On the 27th of July 1848 Dawson filed an affidavit in this court in these matters, and pursuant to the provisions of the act 10 & 11 Vict. c. 96. paid the sum of

1,3397. 10s. into the Bank in the name of the Accountant General of the Court, and the same was still standing in his name in the matter of the trusts of the will of F. T. Cawthorne deceased, and in the matter of M. F. Harwood, widow; that sum represented 970l. as the principal of the legacy of 1,000l. less the legacy duty, and 3391. 10s. for interest which had accrued due thereon prior to such payment into court.

On the 18th of December 1848, Jane Hare and her trustees presented their petition, praying that the sum of 970l., part of that sum of 1,3397. 10s. cash, might be laid out in the purchase of the 31. per cent. Bank annuities, and carried to an account entitled "The account of M. F. Harwood, widow, and her incumbrancers;" and that the interest and dividends thereof during the lifetime of M. F. Harwood, or until further order, might be paid to the petitioners, the trustees, towards satisfaction of the growing payments of the annuity of 30%.; and that out of the residue of the 1,3391. 10s., subject to any claim thereon of C. Harwood, in respect of the sum of 218l. 13s. 9d., so paid by him as aforesaid, a sum of 157., due in respect of subsequent arrears of the annuity, and a sum of 97l. 17s. 6d., stated to be due for principal, interest, and premiums, under the indenture of the 27th of November 1840, might be paid to the petitioners, the trustees, and that out of the same residue the petitioners' costs of and incidental to the petition might be taxed and paid.

C. Harwood also presented his petition entitled in the matters, praying payment of the amount due to him out of the sum of 3391. 10s. cash; and that out of the residue thereof his costs might be paid on the same being taxed.

The question for the consideration of the Court was, whether C. Harwood had priority over Simpson in respect of his claim.

Mr. Greene, for C. Harwood, contended that C. Harwood was, under the deed of the 24th of October 1840, to which he was a party, entitled to stand in the place of Jane Hare, the grantee of the annuity of 301., to the extent of the sums paid by him to that lady; that he was in reality the assignee of so much of the annuity as had been satisfied by him from time to

time; that Simpson was affected by every portion of the deed securing the annuity of 30l. to Jane Hare; and that if Simpson had prosecuted any inquiry touching that deed, he would have discovered what arrears had become due in respect of the annuity; that there was a declaration of trust by Jane Hare, in favour of C. Harwood; and that Jane Hare's claim was subject to the claim of C. Harwood, in respect of arrears of the annuity accruing due previously to July 1848.

Mr. Turner and Mr. Thomas Parker, Jun., for the mortgagee Simpson, contended that by reason of his having given the executor notice of his incumbrance before any notice was given by C. Harwood, he was entitled to priority over the latter. [The MASTER OF THE ROLLS. - The subject-matter of the second deed of the 24th of October 1840, is the same that is dealt with by the first deed of that date, of which the trustees had notice.]

But all that the trustees in reality knew was, that M. F. Harwood had charged the interest in the trust fund with the annuity of 30l. to Jane Hare; that in the first deed of that date there was nothing evidencing that C. Harwood was a surety for such payment of the annuity of 301.; and that Jane Hare having received payment from C. Harwood of the annuity, he could make no claim in priority to Simpson in respect of those payments, the principle being the same as in the case of a bond debt, which having been satisfied by a surety, becomes, as regards the surety's remedy, a mere simple contract debtCopis v. Middleton (1).

The MASTER OF THE ROLLS observed that he had no recollection of any authority that went to the extent contended for on behalf of the incumbrancer Simpson, who had, no doubt, been grossly deceived; and that he must decide in favour of the petitioner Harwood. The trustees were ordered to be paid their costs out of the fund, but no other costs were given, and the costs incurred by the executor Dawson in and incidental to the payment of the legacy and interest into court were held to be payable out of the testatrix Cawthorne's estate.

(1) Tur. & R. 224.

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Practice-67th Order of April 1828— Warrant on preparing Report Further Evidence before the Master.

After warrant issued on preparing the Master's report the defendant W, who was in default, brought in his discharges, to the receipt of which the plaintiff consented, although in strictness he was entitled to exclude the same. During the prosecution of the proceedings relating to the defendants' discharges, the plaintiff discovered material evidence whereby to charge a co-defendant B. jointly with W. with monies received by W, and he carried in charges before the Master arising thereout, &c. and a state of facts. The Master on the objection of B. declined to receive any further evidence on the part of the plaintiff, with reference to the charges and state of facts :-Ordered, that notwithstanding the issuing of the warrant on preparing the report, the plaintiff be at liberty to continue the proceedings before the Master directed by the decree.

This was a petition by the plaintiff praying that the petitioner might be at liberty to produce before the Master, and that the Master might receive further evidence as to the real estate of Francis Brookes remaining unsold, and his personal estate remaining outstanding.

By the decree in the cause, dated the 20th of April 1842, it was amongst other things ordered, that the Master should take an account of the parts of the real estates of the testator, Francis Brookes, remaining unsold, and inquire and state what parts (if any) of his personal estate were outstanding or undisposed of. The defendants Wright and Bishop were the trustees and executors of the testator's will.

In prosecuting the inquiries directed by the decree, the defendant Wright made default in bringing in his discharge in respect of payments made by him, although required to do so by warrant. By the Master's directions the solicitor of the plaintiff caused a warrant to be taken out to shew cause why a warrant should not be issued, on preparing his report as required by the 67th Order of April

1828 (1); on the return of that warrant the Master granted the defendant Wright a week's further time to bring in his discharge, but the defendant Wright still continuing in default, the usual warrant on preparing the draft report was issued on the 16th of November 1843; on the 20th of that month Wright brought in his discharges on account of the real and personal estates of the testator. The plaintiff's solicitor, at the request of the defendant Wright's solicitor, and with the consent of the defendant Bishop's solicitors, in 1844 consented to the defendant Wright prosecuting his discharge, although the plaintiff was entitled to exclude the same. In proceeding upon the accounts and discharges of the defendant Wright, the plaintiff's solicitor discovered evidence which he verily believed would be sufficient to enable the plaintiff to charge the defendant Bishop jointly with Wright with all or the greater portion of the monies which the plaintiff had established against the defendant Wright alone, and he thereupon carried charges into the Master's office for that purpose, but the Master, on the objection of the defendant Bishop, declined to receive any new evidence in support thereof, considering that the issuing of the warrant on the preparing the report precluded him from doing so. The plaintiff's solicitor had recently left in the Master's office states of facts as to the real estates of the testator remaining unsold, and as to his outstanding estates over and above the real estate and outstanding personal estate mentioned in a former state of facts; and the Master had, upon the objection taken by the defendant Bishop, declined to receive any new evidence in support thereof, on the ground that the same was not admissible against the defendant Bishop, in consequence of the issuing of the warrant on preparing the report. The Master also declined to entertain the question as to whether certain real estate of one W. Brookes, who predeceased the testator, did or not form part of the testator F. Brookes's estate, on the ground that there was a suit entitled Thornton v. Knight depending in this court, for the administration of the trusts of the will of that person, to which the defendant Wright

(1) Ord. Can. 26.

and Bishop were defendants, as the devisees of W. Brookes, and to which the plaintiff was also a defendant, as the heir-at-law of the testator F. Brookes, but which suit was, at the hearing, before the Master of the Rolls on the 26th of May 1845, dismissed against the plaintiff with costs. The Master also considered that the decree in that suit precluded him from receiving any new evidence.

In the will of William Brookes, an interlineation had been made over an erasure, but the words written previously to the erasure, viz. "his heirs and assigns," were legible; and the plaintiff was desirous of raising the question whether the interlineation ought to take effect. If such interlineation was not effectual, all the estates mentioned in the devise by William Brookes vested in the defendants Wright and Bishop, in trust for the plaintiff; but if the interlineation was effectual, then all those estates, subject to the life estates therein given by the will of William Brookes, vested in the testator Francis Brookes, as the heir-at-law of William Brookes, and were now vested in the defendants Wright and Bishop, in trust for the plaintiff; but the Master would not, by his report, be able to certify anything whatsoever in respect of such property, unless the plaintiff was allowed to proceed with his further state of facts.

Mr. Turner and Mr. Elderton, in support of the petition, referred to Cooper v. Bocket (1); and

Mr. Roupell appeared for the defendant Wright.

The MASTER OF THE ROLLS (after stating the facts). Under the consent given by the plaintiff, the Master received further evidence from the defendant Wright in support of his discharge, notwithstanding the 67th of the General Orders of the 3rd of April 1828, and the plaintiff, the petitioner, therefore, ought not to be precluded from meeting that evidence. If a party in such a case as the present admits evidence against himself, is he to be precluded from adducing evidence in opposition to it? In a case situate like the

(1) Notes of Cases in Ecclesiastical and Maritime Courts, vol. 4. p. 685, with reference to the effect of interlineations of a will.

present, having regard to the agreement entered into between the parties in the month of February 1844, the warrant issued must, I think, be considered as withdrawn. How long the proceedings have been going on in the Master's office, I do not know, but it is clear they ought not to be longer delayed. Under the circumstances, the order will be that notwithstanding the issuing of the warrant to prepare the report, the petitioner is to be allowed to continue the proceedings in the Master's office under the decree.

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Copyright Works of Art-Infringement. A bill filed by A. against C. stated that A. and B. had together made various etchings for their own amusement, and without any view to publication, and that C. had improperly and surreptitiously obtained impressions of those etchings, and had printed and advertised for sale a catalogue of the etchings. Upon affidavits in support of the bill, an injunction was granted to restrain C. from publishing the catalogue. C. put in an answer, in which he stated that he believed that the impressions had not been improperly obtained, but did not suggest any mode in which they could have been properly obtained. Upon a motion by C, after answer, for dissolving the injunction, it was ordered that the injunction should be continued.

The bill stated that Her Majesty the Queen and the plaintiff, respectively, had occasionally, for their amusement, made drawings and etchings, being principally of subjects of private and domestic interest to themselves; of which etchings they had made impressions for their own use, and not for publication; that for greater privacy such impressions had been for the most part made by means of a private press, kept for that purpose, and the plates themselves had been ordinarily kept by Her

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