the Taxing Master to whom the cause or matter stands referred, as the case may be; and where the words "the Clerk of Records and Writs" shall be used, such expression shall mean the Clerk of Records and Writs in whose division the cause or matter wherein such order is made, is.

19. Where any cause shall have been standing for one year in the Cause Book, marked as "abated," or standing over generally, such cause shall, at the expiration of the year, be struck out of the Cause Book.

(Signed) CAMPBELL, C.

JOHN ROMILLY, M.R.

J. L. KNIGHT BRUCE, L.J.

G. J. TURNER, L.J.

RICHD. T. KINDERSLEY, V.C.

JOHN STUART, V.C.

WILLIAM PAGE WOOD, V.C.

Practice-Enrolment of Decree Extension of Time.

Although the Court is disposed to take a lenient view of circumstances, which may have prevented an appeal from being prosecuted within five years, yet after that time it is desirable that the Orders as to enrolment, &c. should be strictly adhered to.

A decree was made in 1849, and an order on further directions in March 1853. In 1854 the plaintiff enrolled the former order. In 1858 a decree was made in another suit, which was considered favourable to a defendant in this suit; and he applied to enrol the order of March 1853, as the five years had so recently expired, and he had been for some years resident out of the kingdom; but the Court refused the application.

This was a motion, on behalf of the defendant Beavan, that an order on further directions, made on the 14th of March 1853, and a subsequent order, dated the 17th of July 1855, might be enrolled, notwithstanding the time limited by the General Order had expired. The application. was made under the 6th General Order of the 7th of August 1852, relating to enrolment of decrees, &c., and which is as NEW SERIES, XXVIII.-CHANC.

follows: "That the Lord Chancellor, either sitting alone, or with the Lords Justices, or either of them, shall be at liberty, when it shall appear to him under the peculiar circumstances of the case to be just and expedient, to enlarge the periods herein before appointed for a rehearing or an appeal, or for an enrolment."

By a decree, made in July 1849, the plaintiff (the present Countess of Mornington) was declared to be entitled to an annuity of 1,000l., secured on her husband's lands in priority to certain incumbrancers, one of whom was Mr. Beavan (1).

By the order on further directions before mentioned the defendant Beavan was to be at liberty to add his costs to his security. In January 1854 the plaintiff obtained leave to enrol the order of 1849 and that of 1853, although the limited time had expired as to the former; but she enrolled the decree of 1849 only. The order of the 17th of July 1855 directed the carrying on of the proceedings under the order of 1853.

A decree was subsequently, in November 1857, made in the suit of Wellesley v. Mornington, and another in the suit of The Countess of Mornington v. Keane (2), which were considered to be favourable to

(1) Wellesley v. Wellesley, 10 Sim. 256; s. c. 9 Law J. Rep. (N.S.) Chanc. 21.

(2) 27 Law J. Rep. (N.s.) Chanc. 791.

B

the incumbrancers; and accordingly Mr. Beavan applied, under the order of January 1854, to the Clerk of Enrolments, to enrol the order of 1853, but without success, the five years having expired in March 1858.

The present application was made on the ground of the shortness of the time which had elapsed since the five years had expired, the decree in The Countess of Mornington v. Keane having been made after the expiration of the five years, and of Mr. Beavan having been resident out of the United Kingdom for some years past.

Mr. Selwyn and Mr. Cole appeared in support of the motion.

Mr. Rolt and Mr. Freeling opposed.

The following cases were cited :—

Horne v. Barton, 26 Law J. Rep. (N.S.)
Chanc. 225.

Kay v. Smith, 7 De Gex, M. & G.
383; s. c. 26 Law J. Rep. (N.S.)
Chanc. 136.

Brandon v. Brandon, Ibid. 365; s. c. 25 Law J. Rep. (N.s.) Chanc. 896.

The LORD CHANCELLOR said, that the defendant moving must satisfy him that it was "just and expedient, under the peculiar circumstances of the case," that after the lapse of so long a period he should be allowed to enrol this decree. The object of the General Order was to prevent parties from being kept in ignorance for an unreasonable length of time whether a decree was to be appealed from or not. Although the Court was disposed to take a lenient view of circumstances which might have prevented an appeal from being prosecuted within five years, yet after that time it was desirable that the Order should be strictly adhered to. In the present case there was a decree affecting Mr. Beavan's interests in July 1849. That decree declared the priority of the Countess of Mornington's claim over those of Mr. Beavan and other incumbrancers. Mr. Beavan might then have appealed; but an order was obtained by the Countess for enrolling the decree of 1849, and also the order on further directions in 1853, but the former only was enrolled. Mr. Beavan, although abroad at the time, was aware of

these proceedings. It was competent to him to enrol the order of 1853, when the Countess omitted to do so; but he allowed the five years to elapse without doing anything as to this order. In consequence of the decision in The Countess of Mornington v. Keane, he now thought that the decree of 1849 might be reversed on appeal to the House of Lords. Such an appeal would not, on account of the lapse of time, be received by the Appeal Committee of the House of Lords; but if Mr. Beavan could induce this Court to allow the decree of 1853, on further directions, to be enrolled, it might draw down leave to appeal from the former decree. But would it be "just or expedient" to do so? The order on further directions only carried into effect the decree of 1849; and the Countess having during this long period had that decree in her favour might have fairly assumed that there were no reasonable grounds of appeal, and therefore none to justify the present application. The motion must be refused, with costs.

Settlement-Sufficiency of Consideration -Baron and Feme-Mortgage of Wife's Estate-Proviso for Redemption.

A. and his wife, joint tenants in fee, in 1818 mortgaged their estate to B, the proviso for redemption being, that on payment of the mortgage-money B. should re-convey to A. and his wife, their heirs or assigns, or unto such other person or persons, and for such intents and purposes, and in such manner and form as A. and his wife, or the survivor of them, or the heirs or assigns of such survivor, should appoint. In pursuance of a covenant in the mortgage-deed, a fine was levied by A. and his wife. In 1823 the mortgage-money was repaid, and in 1827, by a deed reciting these circumstances, B, by the direction of A. and wife, conveyed, and A. and wife appointed to a trustee the property to be held to the use of the wife for life, then of A. for life, and afterwards of S. (a daughter) and her children, &c. After the death of the wife, A. in 1854 conveyed the estate to his son for a valuable

consideration. The son after A.'s death instituted a suit to set aside the settlement of 1827 as voluntary and void against himself, a purchaser for value. One of the Vice Chancellors made a decree in the plaintiff's favour; but, upon appeal,-Held, that a power was created by the proviso in the deed of 1818, which enabled A. and his wife effectually to convey their interests, as they did by the settlement of 1827, without levying a fine; and that the wife's parting with her interest for the purpose of the settlement was sufficient to prevent the settlement being voluntary on A.'s part, and accordingly the plaintiff's bill was dismissed, with costs.

This was an appeal, by the defendants, from a decision of Kindersley, V.C., by which a decree had been made in favour of the plaintiff, under the following circum

stances:

John Atkinson and Barbara his wife were seised in fee as joint tenants of certain real estate in Cumberland, and, by an indenture, dated the 16th of May 1818, and made between them of the one part, and John Brown of the other part, they, in consideration of 170l. paid to them by J. Brown, conveyed the lands to him in fee, subject to a proviso, "that if the said J. Atkinson and Barbara his wife, or either of them, or either of their heirs, executors, administrators or assigns, should pay unto the said J. Brown, his executors, administrators or assigns, the sum of 1701. with interest, &c., then and in such case the said J. Brown, his heirs and assigns, should, at the request and expense of the said J. Atkinson and Barbara his wife, their heirs and assigns, or either or any of them, re-convey, &c., unto them the said J. Atkinson and Barbara his wife, their heirs or assigns, or unto such other person or persons, and for such intents and purposes, and in such manner and form as they the said J. Atkinson and Barbara his wife, or the survivor of them, or the heirs or assigns of such survivor, should nominate, direct or appoint in that behalf, free from incumbrances." In pursuance of a covenant contained in this deed, a fine was subsequently levied by J. Atkinson and Barbara his wife to enure to the uses of the deed. In 1823 the mortgage-money

was repaid to J. Brown, but no re-conveyance was then taken. By an indenture dated the 31st of December 1827, and made between J. Atkinson and Barbara his wife of the first part, J. Brown of the second part, and Joseph Atkinson (a trustee) of the third part, after reciting the mortgage-deed, and that the money had long since been repaid, and that J. Atkinson and his wife, being desirous to settle the property upon the uses after mentioned, had requested J. Brown to join with them in limiting such uses, which he had agreed to do; it was witnessed, that in consideration of the 1701., and for settling, conveying and assuring the premises on the uses and trusts after mentioned, and for the nominal consideration from Joseph Atkinson to Brown, he, J. Brown, at the request of J. Atkinson and Barbara his wife, bargained and sold, and J. Atkinson and Barbara his wife appointed unto Joseph Atkinson and his heirs, the premises, to hold to him and his heirs, to the use of Barbara Atkinson for life, without impeachment of waste, remainder to trustees to preserve remainder to the use of J. Atkinson for life, with divers remainders in favour of Agnes Smith (a daughter of J. Atkinson) and her children, with an ultimate remainder to Joseph Atkinson, the trustee, in fee. Barbara Atkinson died in February 1838, and J. Atkinson went in 1853 to reside with his son, Solomon Atkinson, the plaintiff. On the 10th of June 1854 J. Atkinson, by a deed of that date, for the valuable consideration therein expressed, conveyed the property to the plaintiff in fee. In January 1857 J. Atkinson died, and afterwards Agnes Smith, the tenant for life under the settlement of 1827, brought an action of ejectment, and the present suit was instituted by the plaintiff to restrain this action, and to have the indenture of the 31st of December 1827 delivered up as voluntary, and therefore, under 13 Eliz. c. 5, void as against himself, a purchaser for value. The cause coming on to be heard, before Kindersley, V.C., on the 3rd of July, his Honour made a decree in favour of the plaintiff (1), and the defendants now appealed.

(1) The following is the judgment of Kindersley, V.C.-His Honour said that the plaintiff was entitled to the relief which he asked. Where a pur

Mr. Solomon Atkinson, the plaintiff, appeared in person, and contended that the operation of the fine was exhausted in the mortgage to Brown, and that to pass Mrs. Atkinson's estate upon that mortgage being satisfied, another fine was necessary. The

chaser came to this Court to set aside a voluntary instrument, although perfectly cognisant that the object of the purchase was to defeat such instrument, still the law was that he was entitled to set it aside, being a purchaser for value, and the Court must not be influenced by any reluctance on other grounds in giving such relief. It was quite clear that, so far as related to the question, whether any consideration passed to the parties who made the settlement from those for whose benefit it was made, Agnes Smith and her children, no consideration whatever, pecuniarily speaking, passed. The question was, whether, on the face of the deed itself, having regard to the rights of the parties, Atkinson or the trustee, had any valuable, not necessarily pecuniary, consideration from Mrs. Atkinson? If at that time an estate in fee was vested in Mr. and Mrs. Atkinson as joint tenants, whether such estate was legal or equitable, Mrs. Atkinson, being a feme covert, could not part with her interest, except by means of a fine levied of the equity of redemption vested in her and her husband. If Mrs. Atkinson did not part with any interest by that deed, of course, John Atkinson received no consideration for parting with his, because the only contention to shew consideration was that Mr. and Mrs. Atkinson were joint tenants in equity, the effect of that being that there was a contingent remainder to the survivor in fee; that John Atkinson parted with his interest in favour of the settlement, in consideration of Mrs. Atkinson also parting with hers, each having an interest in having it so conveyed; and, therefore, if that was a parting with his and her interest, then there was a consideration to support the deed. If there was such a consideration, it must have been because Mrs. Atkinson, by the deed, parted with her interest. That she could not do, except, as was said before, by levying a fine; and that not having been done, the defendants argued that if the interest, as an estate or interest in land, could not be parted with, without a fine, yet Mrs. Atkinson was donee of a power of appointment which a married woman could exercise without a fine. It was likewise urged that the original fine supported both deeds; but that was not so, it operated only to convey the legal estate to the mortgagee. If, then, there was such a power, the defendants' case would be established, and the question really was, whether, under the proviso in the mortgage-deed any such power as above referred to was created? It was a rule well established, that where a wife's estate, or an estate in which she had a vested interest, was parted with to a mortgagee, in order that her husband might raise money, in whatever form the equity of redemption was reserved it would not affect, beyond the mere purpose of the mortgage, the interest of the wife, unless a clear intention could be found so to affect the interest ultra the mortgage. In the absence of an indication of in

tention, it was always presumed that the only reason for the wife joining was to enable the husband to make a valid mortgage and raise the money, and the mere reservation of the equity of redemption, unless in a form indicating most clearly an intention to alter the settlement of the estate ultra the mortgage, had no such effect. Whatever might be the effect of Anson v. Lee, it was not that the Judge meant to dispute this rule, although he might have erred in its application. Before the mortgage Mrs. Atkinson was joint tenant with her husband in fee; at all events, there was a joint estate for life, with a contingent remainder to the survivor. Her interest was of such a character that before the abolition of fines, she was protected by law from parting with it, except by a fine, or since that period by a deed acknowledged, and by examination apart from her husband, not only to ascertain that she knew what she was doing, but that she did it voluntarily. It was not like the case of an adult male, for there was the additional protection which the law threw around a married woman. Suppose the words of the proviso created a power, were they sufficient in the absence of indication of intention to alter the position of the wife to her detriment? For, if they were, she became enabled to act without that protection which she would otherwise have against the undue influence of her husband; so that she might execute a deed without fine or acknowledgment. On the principle of Jackson v. Innes, in the absence of a clear indication of intention to alter the wife's position (and here none such could be found on the face of the deed, either by recital or otherwise), no power would be created, and the obligation of Brown to re-convey was nothing more than leaving the estate in Mr. and Mrs. Atkinson, as it was before the mortgage, that was a joint-tenancy in fee. The simplest mode of creating a power, had that been intended, would have been to direct, when the money was paid off, that the mortgagee should re-convey to such uses as Mr. and Mrs. Atkinson should appoint, and in default to them in fee. Supposing Brown had called in the mortgage-money, and the mortgagors could not pay it, they would have obtained the money from another person, and transferred the security; but he might have objected to re-convey to a third party, as would have been his clear right, except for the words here inserted, which would operate to enable such a re-conveyance, without the intention to create a power. On the whole, therefore, it could not be considered that there had been an intention to create a power, and it would alter Mrs. Atkinson's estate to her detriment so to hold. There was, then, such an estate as Mrs. Atkinson could not part with without a fine, and the voluntary deed, so far as she was concerned, had no operation; she passed nothing, and had she survived her husband, would have been entitled to say, by virtue of the contingent remainder becom