WIGRAM, V.C. said, that there certainly was a difficulty upon the terms of the will of the testatrix, whether the settled estates did or not go to the uses of her husband's will. But it could not be decided that they did without overruling the decision in Youde v. Jones. There was nothing in the devise giving it to the representatives of the devisees. The Court must therefore declare that the estates and hereditaments respectively comprised in the indentures of the 15th and 16th of April 1790, and 2nd and 3rd of August 1797, and of which under the uses of those settlements, Mary Woodhouse, the testatrix, having survived her husband, died seised, were not well devised by her to the uses of her husband's will, but that the same formed part of her residuary estate devised by her will.

Practice-Bill, Dismissal of for Want of Prosecution-Bankrupt Defendant-Costs.

After bill filed and appearance entered, the defendant became bankrupt, and the plaintiff shortly afterwards obtained the common injunction for want of an answer. No proceedings were taken in the suit for two years, when the defendant having been declared entitled to his certificate, but not having taken it up, put in his answer, and then moved to dismiss for want of prosecution :--Held, that notwithstanding his bankruptcy and the other circumstances, the defendant was entitled to an order dismissing the bill, with costs.

In 1846 the defendant Smith commenced an action at law against the plaintiff,

(1) Ante, p. 46.

whereupon the plaintiff filed his bill against Smith for a discovery, and an injunction and other relief. On the 10th of June an appearance was entered to the bill, and on the 16th of June a fiat in bankruptcy was issued against Smith. The plaintiff afterwards obtained the common injunction for want of answer to restrain the action. No further proceedings were had in the suit until April 1848, when the bankrupt put in his answer, having then passed his final examination, and having been declared entitled to his certificate, but not having taken it out for want of funds. In July following, Smith moved before Knight Bruce, V.C. to dismiss the bill for want of prosecution; when an order was pronounced that the plaintiff should file a supplemental bill against the assignees within a month; and in default that the bill should be dismissed with or without costs as the practice might be. The registrar having drawn up the order dismissing the bill with costs, the plaintiff brought the matter under the consideration of the Vice Chancellor again, when he ordered (the time for filing the supplemental bill having expired) that the bill should be dismissed "without costs." The defendant now brought the question before the Lord Chancellor.

Mr. Elderton, for the defendant, referred to the case of Monteith v. Taylor (1) as an authority for the proposition that in such. a case the bill ought to be dismissed with costs. The defendant was still bound to answer and was not relieved from that obligation because of his bankruptcyMackworth v. Marshall (2).

Mr. Bagshawe, for the plaintiff, contended, that costs could not be ordered to be paid to an uncertificated bankrupt.

[The LORD CHANCELLOR.-May he not acquire them for the benefit of his assignees?]

That as no steps had been taken by either party for nearly two years, it was unreasonable for the bankrupt to have put in his answer without requisition; especially as the suit was a defensive proceeding, and the whole purpose of the suit had been answered by the common injunetion; and on that ground the Vice Chan(1) 9 Ves. 615. (2) 3 Sim. 368.

cellor had refused to dismiss the bill with costs.

Randall v. Mumford, 18 Ves. 424.
Findlay v. Lawrence, 16 Law J. Rep.
(N.S.) Chanc. 333.

Blandshard v. Drew, 10 Sim. 240.
Knox v. Brown, 2 Bro. C.C. 186.

The LORD CHANCELLOR.-If a party is exposed to costs in a suit which the other side does not choose to proceed with, the undoubted practice is, and the justice of the case requires, that the suit should be dismissed with costs; and it appears to me, from the case cited, that was Lord Eldon's opinion. The bankruptcy of the defendant cannot affect the right to the costs; though a question may arise as between the bankrupt and his assignees on that point. The costs cannot be ordered to be paid to the assignees, as they are no parties to the suit; but that is no reason why they should be lost, because they must pass through the hands of the bankrupt. The bill ought to be dismissed, with costs.

This was an information and bill filed on behalf of a lunatic, George Burder Squire, at the relation of his brother, George Squire, and an injunction was granted to restrain the defendant Marsh from proceeding to sell certain farming stock belonging to the lunatic until the said defendant should fully answer the said information and bill, or the Court should make further order to the contrary. A demurrer was put in to the bill on the ground that the lunatic was not a party to the bill, and an order to amend was obtained, and the lunatic was made a plaintiff. The defendant then advertised the property for sale, and a motion was now made to commit the defendant for breach of the injunction.

Mr. Rolt and Mr. Rogers, in support of

the motion, contended that a new order to amend did not dissolve an injunction. The amendment in this case was merely formal; there was in fact no difference whether the lunatic appeared as a plaintiff or whether he appeared by the Attorney General. The merits were not touched. The injunction was granted until answer or further order; and there had been neither, for the defendant had not answered, nor had there been any order to dissolve. The following cases were cited :Schneider v. Lizardi, 9 Beav. 461;

The VICE CHancellor.—Lord Eldon, in a case which came before him, expressed an opinion that if there was an injunction granted, and the bill was dismissed, it was necessary to make a separate order to dissolve, or rather to make an order to dissolve part of the order. Lord Eldon was there speaking of an order for an injunction which had been made absolute in the first instance, or upon the merits, and not of an injunction which, in its very form, is liable to be dissolved on a contingency. Now, this injunction is granted to restrain a party until he shall fully answer the suit, information and bill, or until the Court shall make further order to the contrary. The plaintiff has, by amending his bill, made it impossible for the defendant to answer. It is a new thing altogether; consequently, the mode in which the injunction was first granted, is a mode in which it no longer exists; and my opinion is, that inasmuch as the information and bill has been amended (putting the demurrer out of the question) the injunction is gone; but lest I should seem to be countenancing an improper act, I will give leave for a short notice of motion for another injunction.

Trustee, Liability of-Money left in a Bank.

A trustee of certain estates received the proceeds and paid them into a bank, where they were left for many years. A suit was instituted and a receiver appointed of the rents and interest. The bank having failed, it was held that the cestuis que trust, who were infants, must not be prejudiced by the neglect of the trustee to place the fund in safety, and that the trustee was liable to refund the money lost.

This suit was instituted for the purpose of ascertaining the rights of certain creditors of Thomas Cross, to be paid their claims out of property to a large amount in Lancashire and Cheshire. In the course of the suit this petition was presented by the representatives of William Turner, who had been appointed a trustee of the estate jointly with Thomas Mawdesley, in 1823, and it stated that the said trustees had from time to time received large sums of money from the estate, which had been placed in their names in the Macclesfield Bank to the separate account of the trust. That the balance in the bankers' hands in 1827 was 2,7197., which sum was in 1833 reduced to 9181.

That Mr. Mawdesley died in 1833. That the Macclesfield Bank failed in the year 1841, at which time the sum of 9187. was still remaining in the bank, and that the persons then entitled to the funds were infants. That the said William Turner died in 1842, and that an action had been brought against his representatives to recover the sum of 918/. so lost by the failure of the bank. That upon a reference to the Master to ascertain the state of the accounts relating to the estate, it was discovered that William Turner had not been properly appointed a trustee of the estate, although he had always acted as such.

The petition prayed that the estate of William Turner might not be charged with the loss of the said sum of 9187., on the ground that the trustees had acted properly and for the benefit of the estate in placing the money in the bank. That it had always been entered in a separate account, and that it was necessary owing to the nature of the NEW SERIES, XVIII.-CHANC.

trust that a large balance should always be kept in a banker's hands.

Mr. Stuart and Mr. C. Hall, in support of the petition, contended that the estate of William Turner ought not to be held responsible for the loss occasioned by the failure of the bank. The money had been left at the bankers for a great number of years, and no objection had been made by any of the parties interested, and no order had been made for payment of this sum: there had been a variety of debts and charges upon the estate which rendered it advisable for the trustees to keep a large balance at the bankers, and the trustees had exercised a proper discretion in acting as they had done.

It was also contended that the representatives of the surviving trustee had taken the only course open to them, that of presenting a petition to the Court, since the facts relating to the conduct of the trustees had not been sufficiently stated upon the Master's report. The case of Massey v. Banner (1) was cited in support of the petition.

Mr. Bethell and Mr. Renshaw, and Mr. J. Parker and Mr. E. J. Lloyd appeared for other parties.

The VICE CHANCELLOR.-This case appears to me to be as plain as possible. The petition is in the nature of a defence before the hearing, and there is a question whether such a mode of defence can be adopted by a party to the cause before the case comes on upon further directions. The course here taken is quite new. The matter stands in this way. It appears that Turner was appointed trustee in conjunction with Mawdesley of these estates, and it has been stated by the Master that he was not properly appointed a trustee. Whether that was so or not, it is clear that he has acted as trustee, and in that character he was made a party to the cause. It appears that Turner had placed a considerable sum of money in the Macclesfield Bank in his own name and that of his co-trustee. Then i appears a receiver was appointed of the rents and interest of the estate (2); but it was not his duty to get in money from a person

The

who had received it in his character of trustee. Then in the year 1827, it appears there was a balance of 2,7191. in the bank, and that balance was reduced to the sum of 9187. in 1833, when Mawdesley died. The bank failed in 1841, at which time the balance remained the same. In 1842, Turner died, and his personal representatives were brought before the Court. parties to whom Turner would have been ultimately responsible stand in this situation the one was born in 1820, and consequently he could not be bound until 1841, and his child is still an infant-the father is entitled to the life estate, and the son is entitled in remainder. Now, if it had been a case of a sole adult cestui que trust looking on upon what had taken place, and abstaining for twenty years from calling in the balance, then, perhaps, a case might have been made against him; but it does not appear that the right of the infant could be prejudiced by the circumstance that no order was made for the trustee to pay the money during that time. The money was all along in the hands of the trustee, and it was his duty to pay it into Court, unless he had reasons for not doing so; and no such reasons have been shewn. Under these circumstances it appears to me that the petition must be dismissed, with costs, and the cestui que trust must not be prejudiced by the loss incurred through the neglect of the trustee to place the fund in safety.

If the intention to exercise a power be clearly shewn, a court of equity will, in favour of a charity, give effect to an informal or defective execution of the power. Therefore where a power to dispose of personalty was directed to be exercised, amongst other modes, by the last will and testament, &c. of the donee, signed, sealed, published, and declared in the presence of two or more witnesses, and the donee in exercise of the power bequeathed part of the personalty to certain charities by an unattested will

(executed before the passing of the New Wills Act), signed and sealed by the donee, but not in the presence of witnesses, and not published or declared, it was held to be a valid execution.

Under the will of Thomas Innes, his widow was entitled to a life interest in certain government stocks and funds, with a general power to appoint the principal by deed duly executed, or by her last will and testament in writing, or any codicil or codicils thereto, signed, sealed, published and declared in the presence of two or more witnesses. The principal, in default of appointment, was given over to certain persons, amongst whom was the plaintiff.

The widow had also a power, under her marriage settlement, to appoint the sum of 1,000l. consols.

In January 1833 the widow made her will, whereby she bequeathed, inter alia, 1,000l. 31. per cent. consols to the treasurer for the time being of the "Sailor's Home, or Brunswick Maritime Establishment ;" the like sum to the treasurer for the time being of the "Benevolent or Stranger's Friend Society for relieving the sick and distressed poor at their own habitations in London and its vicinity;" 500l. 31. per cent. consols to the "British and Foreign Bible Society;" and the like sum to the "Church Missionary Society." The testatrix directed these legacies to be paid within six months after her death, and the receipt of the treasurer to be a sufficient discharge for the same. She died in the following June, and probate of her will and sundry codicils was subsequently granted to her executors. The will and codicils were signed by the testatrix, and the will was also sealed; but neither it nor any of the codicils was published or declared in the presence of witnesses as required by the will of Thomas Innes. The testatrix had stated in writing that her will had not been attested, as she intended if she was spared to write it out fair.

In a suit for the administration of the estate of the testatrix, the Vice Chancellor had held on exceptions to the Master's report, that the legacies above mentioned and others were not specific, and that the testatrix had by her said will and codicils intended to execute both the power of appointment reserved to her in the will of

One of the questions at the hearing on further directions was, whether the Court would in favour of the above charities assist the defective execution by the testatrix of the power reserved to her by her husband's will, and declare her will, however informal as an execution of such power, to be good as an appointment within the Statute of Charitable Uses (1).

the highest authority for the proposition), that the Court would supply the surrender of copyholds in favour of a charity; and that Lord Alvanley, in Chapman v. Gibson, had laid it down that the execution of a power and the surrender of copyholds went hand in hand precisely upon the same ground, and consequently the same relief was to be granted in cases of defective execution of a power and of the grant of a surrender of copyholds. So again, a deed of gift or

The Solicitor General and Mr. Pirie, Mr. Wood and Mr. Blunt, Mr. Headlam, Mr. Glasse and Mr. Baggallay, represented the defendants.

The following cases were cited :-
Piggot v. Penrice, Comyns, 250; Prec.
Chanc. 471, and see note, p. 473.
Chapman v. Gibson, 3 Bro. C.C. 229.
Rodgers v. Marshall, 17 Ves. 294.
Woodford Parish v. Parkhurst, Duke on
Charitable Uses, pp. 70 and 378.
Rivett's case, Ibid. pp. 74 and 366.
Attorney General v. Lady Downing,
2 Ambl. 571.

Attorney General v. Rye, 2 Vern. 453.
Attorney General v. Burdet, Ibid. 755.
Attorney General v. Sawtell, 2 Atk. 497.
Attorney General v. the Skinners Com-
pany, 2 Russ. 407.

Attorney General v. Sibthorp, 2 Russ.
& M. 107.

Incorporated Law Society v. Richards, 1 Dru. & War. 258. Reference was also made to Sugden on Powers, vol. i. p. 254, 7th edit.

WIGRAM, V.C.,-after some observations on other points, proceeded to consider the question, whether the Court would, in favour of the charities mentioned in the will of the testatrix, assist her defective execution of the power reserved to her.-There was one authority at least in the case of Piggot v. Penrice, and there were several dicta in other cases in favour of the charities; in fact, this appeared to have been the settled law on this point ever since the passing of the statute of 43 Eliz. c. 4. It was stated in argument

(1) 43 Eliz. c. 4.

or recovery had been supported in favour of a charity; indeed, in the latter case, the Court had gone further in favour of a charity than of a wife, child, or creditor of the donee of the power. Text writers of the highest authority and experience were also in favour of aiding charities, and their opinions were of great weight when supported by previous dicta and decisions. The principle upon which these dicta and decisions were founded gave rise to an additional argument on behalf of the charities. This principle was, that a court of equity would, in favour of a charity, assist the intention of a person who, having the power to dispose of property by a formal instrument in writing, and clearly shewing an intention to exercise such power, had informally expressed that intention. This appeared to have been the law previously to and independently of the Statute of Charitable Uses; and as it was supported by one reported decision, by dicta of Judges, by the opinions of text writers and by principle, it must, until altered by a higher authority, be considered to have been settled. Decree accordingly.