during the lifetime of my said wife and mother-in-law, and that the same shall be made up to such legatees after the decease of my said wife and mother-in-law." Meaning that after the decease of his wife and mother-in-law, the legacies should be paid in full. I apprehend that interest only runs from the time of payment. Declare that the legatees of the sum of 2,120l. are entitled to have the principal of their legacies made up in full upon the death of the testator's wife, with interest after that date. A life policy of assurance was settled, on the marriage of A. and B, on B. the wife, for life, with remainder to A. the husband, for life, with remainder to the children of the marriage, at twenty-one; with remainder, in default of children, as B. should appoint. B. appointed her interest to A, and died, leaving only one child. After B.'s death a bonus became payable on the policy. A petition was presented by the trustees and A, stating that A. was unable to support his child, and was going to emigrate, and praying that the sum receivable in respect of the bonus might be paid to the trustee, and applied for the maintenance of the child. The prayer of the petition was granted, on condition that A. gave up his life interest under the settlement. By the settlement made on the marriage of Mr. and Mrs. Hays one-fourth part of a life policy of assurance in the Equitable Assurance Office was assigned to trustees, upon trust, as and when the monies payable under the policy should become due to receive the same, and invest them in the usual manner, and to pay the income to Mrs. Hays, for life, with remainder to Mr. Hays for life, with remainder to the children of the marriage; the shares of sons to vest at twenty-one and the shares of daughters at twenty-one or marriage. There was a power for the trustees to apply the income of the presumptive shares for the maintenance of the children, and also a power for the trustees, after the NEW SERIES, XVIII.-CHANC. death of the survivor of the husband and wife, to apply any part of the shares for their advancement, not exceeding one-half for any one child; and it was declared that, if Mrs. Hays died in the lifetime of Mr. Hays, and there should be a default or failure of children, the trust funds should go to such persons as Mrs. Hays should by will appoint. Mrs. Hays died in 1844, having by her will bequeathed all her interest under the settlement to her husband. There was only one child of the marriage, namely, Elizabeth Mary Hays. By the rules of the Equitable Assurance Office, bonuses are declared periodically, and an option is given to the holders of the policies, either to have the bonuses added to the sums insured or to have money paid down to them in respect of such bonuses. This was the petition of Elizabeth Mary Hays and Mr. Hays her father. The petition stated the above circumstances, and stated also that the trustees had the option of receiving the sum of 4377. in respect of their interest in a bonus on the policy; that Mr. Hays was totally unable to support his child, and that he was going to emigrate to Australia, but that he was willing to give up for his child all his interest in the sum receivable in respect of the bonus; and that the infant could be maintained and educated at a good school for 501. a year. The petition prayed that the trustees might be at liberty to receive the 4371. and to expend it in sums of 50l. a year for the maintenance and education of the infant. Mr. Grenside, for the petition, cited Ex parte Chambers (1). Mr. R. T. Fisher, for the trustees. KNIGHT BRUCE, V.C. at first doubted his authority to accede to the prayer of the petition. He ultimately, however, made an order in accordance with the prayer, and without a reference, but required as a condition that the father should forego all his life interest under the settlement, as well in the one-fourth of the sum assured as in the addition, and an affidavit was to be produced to the Registrar verifying the statement of the father's being about to emigrate to Australia. (1) 1 Russ. & M. 577. 3 L Baron and Feme-Right to a Jointure -Priority of Incumbrances. By articles of separation, dated in June 1834, the defendant agreed that he would, on or before the 1st of February 1835, effectually, by a charge on freehold estates, or by investment of an adequate sum of money, or by the best means which might then be in his power, secure to the plaintiff, his wife, an annuity of 1,000l. In December 1834, a deed of arrangement was executed between the defendant and his son, by which certain family estates were conveyed to trustees to raise money for the payment of various incumbrances, afterwards to such uses as the defendant and his son should appoint, and in default of appointment to the defendant for life, and then to his son absolutely, with a power for the defendant to jointure his then present or any future wife, to the extent of 1,000l. per annum :—Held, that the plaintiff was entitled to have her jointure raised out of the estates, as against the defendant and his son. This was a supplemental suit by Lady Mornington, suing as a pauper and without a next friend, against Lord Mornington and his son Lord Wellesley, and the incumbrancers on the estates and the trustees of such estates, for the purpose of having it declared that she was entitled to a present annuity of 1,000l. per annum, secured to her out of the estates. The facts of the case were as follows: By articles of separation, dated the 21st of June 1834, on the occasion of the separation of Lord and Lady Mornington, Lord Mornington covenanted with Thomas Paterson, his executors and administrators, that he would, on or before the 1st of February 1835, well and effectually, either by a charge on freehold estates in England and Wales, or by an investment of an adequate sum of money in some of the stocks or funds of Great Britain, or by the best means which might then be in his power, secure the payment to the said Thomas Paterson during the life of Lady Mornington of an annuity of 1,000l. to be paid to her for her separate use. set forth in the report of Wellesley v. Wellesley, 4 Myl. & Cr. 561; s. c. 9 Law J. Rep. (N.S.) Chanc. 21.) In December 1834, Lord Mornington and his son Lord Wellesley barred the entail of their estates; and by a deed dated the 15th of December 1834, conveyed the estates to trustees to raise the sum of 462,000l., for the purpose of paying off certain debts and charges affecting the estates, the residue of the 462,000l. to be disposed of by Lord Mornington as he might choose, and subject to the sum of 462,000l. to secure to Lord Wellesley an immediate annuity of 160l. and an annuity of 6,000l. during the joint lives of Lord Wellesley and his father, to commence after the decease of Lord Maryborough; and subject to such several charges, the estates were limited to the joint appointment of Lord Mornington and Lord Wellesley, in default of such appointment to Lord Mornington for life, and after his decease for Lord Wellesley absolutely, in case he should survive Lord Mornington; but in case Lord Wellesley should die in the lifetime of his father, then for the father in tail male, and in default of such issue for the father absolutely; and by the said indenture a power was reserved to Lord Mornington to jointure his then present or any future wife to an extent not exceeding 1,500l. per annum. (These articles are fully The original suit, to which this was supplemental, was instituted in May 1839, and a demurrer for want of parties and want of equity was filed thereto, by the trustees of the estates, and which is reported in 4 Myl. & Cr. 554, 561; s. c.9 Law J. Rep. (N.S.) Chanc. 21. The demurrer was overruled, on the ground of want of equity, but allowed for want of parties; time being given to the plaintiff to add the necessary parties by amendment or supplemental bill, as she should be advised; and under such order the present supplemental suit was instituted, bringing before the Court Lord Wellesley and various incumbrancers on the estates. Lord Wellesley had been made a party to the original bill, but was dismissed by the plaintiff. The bill expressly alleged that the deed of the 15th of December 1834 had been entered into to enable Lord Mornington to carry out the arrangement entered into between him and the plaintiff on the occasion of their separation, but this was not proved by the evidence; and it prayed the specific performance of the articles, and a declaration that the annuity of 1,000l., agreed by Lord Mornington to be raised for the benefit of the plaintiff, was a charge on all the estates comprised in the deed of December 1834. Mr. Rolt, Mr. Willcock, and Mr. Freeling, for the plaintiff, contended, first, that all Lord Mornington's interest in the estates was subject to the plaintiff's claim; secondly, that the plaintiff had, under the articles of June 1834 and the deed of the 15th of December of the same year, a right to have a present annuity of 1,000l. a year charged upon the estates; the power of jointuring, contained in the last-mentioned deed, conferring, by its terms, a power to grant a present annuity: that the trustdeed being executed so soon after the articles shewed it was intended to be and acted as a specific performance of the covenant in the previous deed; and, thirdly, that the plaintiff's claims were entitled to precedence to all incumbrancers whose claims were not to be satisfied out of the 462,000l. Cases cited in support of the argument- Lyster v. Burroughs, 1 Dru. & Wal. 149. Mr. Malins and Mr. Baggallay, for Lord Mornington, submitted to act as the Court might direct. Mr. Bethell, Mr. Lloyd, and Mr. Nalder, for Lord Wellesley, contended, first, that the suit was improperly framed, as Lord Wellesley, having been made a party to the original bill, and dismissed by the plaintiff therefrom, could not now be brought before the Court again by the present supplemental bill; secondly, that the articles of the 21st of June 1834 were a fraud upon Lord Wellesley, he having no notice thereof at the time he was induced to join in barring the entail and executing the deed of the 15th of December 1834, and that the allegation in the bill that such articles and deed formed one transaction, was not proved, and that the case was now before the Court to be decided secundum allegata et probata, and not secundum allegata alone, as it was when that demurrer was argued; and, thirdly, that the power of jointuring contained in the deed of the 15th of December 1834 was only a power of jointuring in its proper and technical sense, namely, a power to grant a rent-charge, to commence after the death of Lord Mornington. Cases cited for the defendant Lechmere v. the Earl of Carlisle, 3 P. Deacon v. Smith, 3 Atk. 323. Mr. Cooper, Mr. Chandless, Mr. Cooke, Mr. Sidebottom, Mr. Beavan and Mr. Schomberg, for the several incumbrancers, contended that their claims were prior to the claims of the plaintiff. The incumbrancers stood in a different position from Lord Mornington; and the bill ought to be dismissed, as against them, with costs. Tooke v. Hastings, 2 Vern. 97. Garrard v. Lord Lauderdale, 3 Sim. 1. Acton v. Woodgate, 2 Myl. & K. 492; s. c. 3 Law J. Rep. (N.s.) Chanc. 83. Browne v. Cavendish, 1 Jones & Lat. 606. The VICE CHANCELLOR.-It appears to me, in this case, that the decision made by me in Wellesley v. Wellesley (1), and afterwards affirmed by the Lord Chancellor, governs the whole case. With respect to the present Lord Wellesley, Mr. Bethell made an objection which I was bound to consent to, and he was originally dismissed from the cause, and then he was made a party by supplemental bill, and it was insisted that he ought not to be so. The case of Lautour v. Holcombe is different from the present case. In that case, which was affirmed by the Lord Chancellor, the party defendant moved to have the bill dismissed, for want of prosecution. It was dismissed accordingly; and when the case (1) 10 Sim. 256. came on for hearing, it was insisted that the party ought to be bound: here counsel wanted the case to stand over for the purpose of filing the supplemental bill: that I refused; and I think that a case where a party to an original bill has obtained a right to be dismissed from the suit is different from where the plaintiff himself voluntarily dismisses a party, because he may at any time amend his bill and make him a party. There is no objection on that ground to a decree against Lord Wellesley. The case then resolves itself into the general rule. I ought to say that it did occur to my mind as a thing to be considered, whether the power which is given to the present Lord Mornington to make a jointure, was given to him under such circumstances that it ought to bind the present Lord Wellesley, and that would depend on the question whether Lord Wellesley could be said to have had notice of the articles of 1834, on which the plaintiff's case mainly rests. On looking into the evidence, it appears to me that, though Lord Wellesley has, to a certain extent, denied notice, yet there was notice enough to enable the Court to act against him, for it was clear that Mr. Pyke acted throughout that year as solicitor for Lord Mornington, and his son. The very paper that was put into my hands suggesting the doubt was actually prepared by him. I think it must be taken, therefore, as an essential part of the transaction that he had sufficient notice of the articles of 1834, and, therefore, that there is no reason why the Court should not make a decree against Lord Wellesley as well as Lord Mornington. As to the other objections, they must be disposed of on general rules as regards the equity. As to the real estate, those who are first in time are first in right. It is true, that so far as any creditors may have got the execution of the joint power of appointment by Lord Mornington and Lord Wellesley, they may avail themselves of it as far as they can; but that will become a question, whether it is not necessarily subject to the single power of appointment. I think, on the best consideration of the case, after looking into the papers, that there must be such a decree as is asked, In the report of this case, ante, p. 72, it is stated that the order of the Vice Chancellor of England, which held the pauper defendant to be entitled to dives costs, the plaintiff having dismissed his own bill, was reversed by the Lord Chancellor. His Lordship at first stated that he could not grant the application until he had inquired. into the practice, and a little before the rising of the Court he stated that he had received a certificate from the Taxing Masters that they were unanimously of opinion that the practice in such cases was to allow the pauper defendant pauper costs only, and his Lordship did not express any disapprobation of that opinion. On the 8th of November 1849 the case was again, however, put in the paper, for judgment, when his Lordship expressed himself to the following effect: The LORD CHANCELLOR.-This case as reported in 16 Sim. p. 312, with regard to the argument before me, is not correct. It seems to assume that the matter was then disposed of, which it never was. The report was made by mistake, because it states that I had seen the certificate of the Taxing Masters, and that I had acquiesced in the propriety of the report made by those officers, whereas I did nothing of the kind (1). The question was, whether the defendant, defending in formá pauperis, was entitled to dives costs against the plaintiff, who dismissed his own bill. The practice of allowing parties to plead in formá pauperis is adopted in favour of persons who are unable to meet the expense of litigation, and therefore it was intended that the benefit should be confined to those parties, and should not be extended to those who improperly compelled them to resort to litigation; and, consequently, when parties were ordered to pay costs, they ought to be the ordinary costs, although the defendant was defending as a pauper. The case of a pauper plaintiff at law and Wallop v. Warburton (2) were referred to. It seems the cases are not to be recon ciled, and some seem to repudiate any general rule, referring each case to its particular circumstances. It appears, however to me to be most consistent with principle and to be most reconcileable with the general authorities, that any party who asserts an unfounded claim by his bill, or who resists a well-founded claim by his answer, should not profit by the poverty of his opponent, but should pay the full costs. This being the rule there is certainly some difficulty in applying it to every case. I have a certificate of the taxing officers that a defendant defending in formâ pauperis is not, according to the ordinary practice in their office, entitled to dives costs; and therefore that this defendant would only get pauper costs, although the bill was dismissed by the plaintiff with costs. This would not be doing justice, whatever may be the general practice. The plaintiff, by dismissing his bill, admits that he was not justified in putting the (1) The note appended to Mr. Simons's report seems to have escaped the Lord Chancellor's attention. In the body of the report, Mr. Simons states the decision of the Vice Chancellor that the Taxing Master ought to have allowed dives costs-the application to the Lord Chancellor by way of appeal the certificate of the Taxing Masters that they were unanimously of opinion that the practice was to allow a pauper defendant pauper costs only— and Mr. Simons then adds, in a note, that he had received information from the counsel and the plaintiff's solicitor that the Lord Chancellor did not pronounce any order. (2) 2 Cox, 411. Deed-Immoral Consideration-Bill of Discovery in aid of a Plea to an ActionDemurrer. The plaintiff executed a deed, by which he covenanted to pay an annuity to trustees for the benefit of a lady. One of the trustees brought an action for the arrears of the annuity. The plaintiff pleaded to the action that the consideration for the deed was a prospective immoral cohabitation cohabitation subsequently had, and filed this bill for discovery in aid of this defence. Demurrer, for want of equity, allowed on the ground that the plaintiff having participated in the evil which the deed was intended to produce, this Court would not compel a discovery which might tend to shew that the plea at law was good. The bill stated that, in December 1847, the plaintiff, Mr. Benyon, indiscreetly executed a certain indenture, which was made between the plaintiff of the first part, Caroline Nettlefold of the second part, and two trustees of the third part; that the indenture recited that the plaintiff being desirous of making a provision for the said C. Nettlefold, he had agreed with the said trustees to grant an annuity of 2001. to be paid to the said C. Nettlefold, and it was witnessed, that in consideration of the sum of 10s. by the said trustees paid to the plaintiff, the plaintiff had granted unto them, their executors, administrators, and assigns, for the life of the said C. Nettlefold, an annuity of 2001., to hold the same for her life, to be paid to the said trustees, who were to pay the said annuity unto C. Nettlefold for her life, for her separate use, independently of any husband she might at any time marry; and the said indenture contained a covenant, on the part of the plaintiff, to pay the said annuity to the |