no other interest in his property: that a clause to bar legitim was one of the commonest clauses in Scotch settlements. System of Styles, by Dallas of St. Mar tin, p. 730, 733, 737. Bell's Forms of Deeds, edit. 1804, p. 319, 332, 334. Juridical Styles, 2nd edit., vol. 1, p. 164, 167, 180, 293, 294, 295; vol. 2, p. 204, 216. Russell on Conveyancing, 2nd edit. p. 326. That in cases where a clause had been omitted out of a settlement by mistake, the Court would reform the settlement and insert the clause. The Duke of Bedford v. the Marquis of That Lord Lauderdale, who acted for Lord Breadalbane, was a very able Scotch lawyer, and knew that children had, by the law of Scotland, a claim to legitim, and also, that a clause to bar legitim was generally inserted in settlements; and therefore assumed that such a clause would be introduced as a usual clause. Mr. Tinney, in reply, insisted that the precedents which had been brought forward, shewed that it was usual in Scotch settlements to insert a clause, that the children of the intended marriage should not have legitim, but not that the parties about to marry should give up their own claim; and that whether Lord Breadalbane did or did not intend that his daughter should release her claim, was immaterial, if none of the other parties had any such intention. July 22, 1837.-The LORD CHANCELLOR. -This was a motion to discharge an order of the Vice Chancellor, for an injunction to restrain Lord and Lady Chandos from taking advantage of a judgment of the Court of Session in Scotland. It was argued before me some considerable time back. The magnitude of the sum in question between the parties, and the order which had been pronounced by the Vice Chancellor, made me desirous to postpone my judgment till I should have time and opportunity of going through the whole of the papers, and considering the various points which had been argued at the bar. I have now had an opportunity of doing that, and I hope the parties have not experienced any material inconvenience from the delay which has taken place. The bill raises three propositions. It first prays the Court to declare that, by the construction of the settlement of 1819, the claim to legitim is barred. It then alleges, that if that should not be found to be so, it was a matter of contract and agreement between the parties at the time of the marriage settlenient of Lord and Lady Chandos, in the year 1819, that the legitim should be barred. It then alleges that there was a paper, which was lately discovered, being the proposals which preceded the settlement, and that those proposals furnish evidence of the intention of the parties, or at least contain words amounting to a contract, that the settlement should contain a provision barring Lady Chandos's title to legitim; and on these three grounds, the construction of the settlement of 1819, the alleged contract between the parties, and the effect of words found in the proposals, though not introduced into the settlement, it prays that the Court will grant an injunction to restrain Lord and Lady Chandos from taking advantage of the judgment of the Court of Session, by which Lady Chandos has been decreed entitled to her legitim. The sum in question is of great magnitude, for it is one third part of the whole personal estate of the late Lord Breadalbane, which personal estate is said to amount to 400,000l. Now, as to the first of the propositions raised by the bill, that is finally disposed of by the judgment of the House of Lords. The construction of the settlement of 1819 has been the subject of the judgment of the Court of Session, and that judgment of the Court of Session has been affirmed by the House of Lords, by which it has been decided that that settlement does not bar the title to legitim. The next proposition in the bill, namely, that it was a matter of contract between the parties that the legitim should be barred, that the settlement, therefore, did not carry into effect that which was agreed upon, is positively denied by the answer; and this being a motion on the answer, for the present purpose it must be assumed, and indeed I have not the slightest doubt, looking at all the transactions between the parties, that there was no such contract between them. The only point therefore remaining is that which has been put forward as the principal equity in support of the claim of the plaintiff to this injunction, namely, that the proposals, which were not in evidence before the Court of Session, and which, it is alleged, have been since discovered, contain within themselves that which amounted to a contract, whether the parties had it in contemplation or not, that the legitim should be barred. Now, the proposals were prepared in London by Mr. Vizard. It is stated, that they were approved of by the Duke of Buckingham, acting for his son Lord Chandos, and by Lord Breadalbane, acting for his daughter Lady Chandos. The proposals were-[His Lordship stated the substance of the proposals.]-Then the pro posals contain these words: "The settlement to contain the usual clause of indemnity to trustees, and all other usual and necessary clauses." It is contended, that inasmuch as it is usual in Scotland, when a father provides a portion for a child, that he should require the child to enter into a renunciation of the claim to legitim, these words in the proposals, whether the parties had it in contemplation or not, amount to a contract between the parties that the settlement should contain that which is alleged to be a usual provision in Scotch settlements. Now, the settlement itself was entirely of English manufacture: it was prepared by Mr. Vizard, and it, in fact, contains no such clause. But it recites that Lord Breadalbane was to pay and secure 30,000l. as the portion or fortune of Lady Chandos: that has been adjudicated not to amount to a renunciation of legitim, it being clearly proved that in the Scotch law legitim cannot be renounced by inference, but that it requires express contract and distinct renunciation for the purpose of depriving the child of legitim. Lord Breadalbane afterwards executed two bonds, one to secure the 10,000l., to be paid eighteen months after the mar riage, and the other to secure the 10,000l., to be paid after his own death. It appears that in 1831, the other daughter of Lord Breadalbane, now Lady Eliza. beth Pringle, married; and in her marriage settlement there is an express renunciation of her title to legitim. It appears, also, that in 1824 (Lord Chandos's marriage having taken place in 1819), Lord Breadalbane was desirous, under a power which an act of parliament (2) gave him, of charging the 10,000l. which he had contracted to pay, upon his estates; and in that bond he expresses it, that the 10,000 so charged was to be in bar of Lady Chandos's title to legitim. Now, that can be material only as it may evidence the impression upon Lord Breadalbane's mind: it cannot affect the rights of the parties, which are to be determined, not by anything which Lord Breadalbane did after the marriage, but by that which took place between the parties at the time of the marriage. It also appears that, anterior to the marriage, that is to say, in the years 1794, 1798, and 1812, Lord Breadalbane executed certain instruments, making provision for younger children; and in all those instruments it is declared, that the provision so secured, was to be in bar of the children's title to legitim. These of course are immaterial to the present purpose; they are important only as they may shew Lord Breadalbane's knowledge of what was necessary to bar a child's claim to legitim. The intention there expressed is not consistent with the marriage settlement, in which it appears that no such intention was expressed, and no such means taken to bar Lady Chandos's title to legitim. The Court of Session in Scotland is unquestionably a court of equity as well as a court of law; and, I apprehend, there can be no doubt that it was within the jurisdiction of the Court of Session to entertain the question which the plaintiff has thought proper to raise upon this record. The suit in Scotland was a suit of multiplepoinding: all parties having any claim. were called before the Court for the purpose of asserting their title to the personal property of Lord Breadalbane. The ques (2) 5 Geo. 4. c. 87. tion was raised in that suit as to whether the title of Lady Chandos to legitim was barred by the settlement; but no supposed title, arising from the terms of the proposals, was brought forward. It certainly is contrary to the practice of this Court to assume jurisdiction on equities arising from parties not having taken the opportunity of asserting their title in that court in which the matter has been the subject of adjudication, and in which they have either missed their opportunity or not thought proper to bring their title forward. But in the view I have taken of this case, it is not necessary to pursue that question further: I have adverted to it only that I may not be misunderstood;-that it may not be assumed that this Court would have jurisdiction to enforce an equity after adjudication by another court, where the matter of equity was cognizable, on the ground of the party not having thought proper, or, by accident, or any other reason, having taken no steps, to bring forward that claim before the Court. Such being the case made by the bill, the defendants' answer positively denies all contract or understanding on the subject. They say, that the whole negotiation was left to the Duke of Buckingham on the one side, and to Lord Breadalbane on the other. They admit that it is usual in Scotland to insert clauses barring legitim; but they state that which was established by the decision of the House of Lords in this very case, that though it is usual to insert a clause barring legitim, yet that legitim cannot be barred except by distinct contract. They also admit, that on Lady Elizabeth Pringle's marriage, her legitim was barred; but they allege it was barred by express contract introduced into and specified in the settlement. Now, from what is stated in the answer, and from that which was decided in the Court of Session, and confirmed in the House of Lords, two points were clearly established: first, that the mere giving a portion is no bar to legitim, but that in order to bar legitim, it is necessary there should be express renunciation; and secondly, that the settlement in this case did not operate as a bar to Lady Chandos's right to legitim. The sole question therefore is, whether the provision in the proposals for the insertion of the usual and necessary clauses, gives a title to correct the settlement by the insertion of such a clause. The first question is, was that the intention of the parties? First of all, was it the intention of Lord or Lady Chandos, the party from whom this very valuable right was supposed to be taken by what took place in 1819? They, by their answer, positively deny, not only that there was any such intention, or that there was any such contract, but that the subject-matter was present to their minds at all. In short, they state that they knew nothing about legitim, and there is not any reason to suppose that the case is at all misrepresented by the answer. The next question is, was it the intention of the Duke of Buckingham to surrender the claim to legitim? It is equally clear that he thought nothing about it; it is probable he knew nothing about it; and there is an absence of all evidence that he had present to his mind the question of legitim, to which his son, in right of his wife, would become entitled, or that he intended to consent to the barring of any such right. Then it is said, though that may be true, yet Lord Breadalbane, living in Scotland, and being acquainted more or less with the Scotch law, and having the assistance of a very experienced Scotch lawyer, Lord Lauderdale, whom he appears to have consulted on all the arrangements with regard to the settlement, must have known the law of Scotland with reference to the child's title to legitim, and that it was usual to insert clauses barring legitim in settlements which a father makes on his children; and that he therefore must have understood the words "usual and necessary clauses," as intending to provide that the settlement should contain a clause barring Lady Chandos's title to legitim. Now, the first observation that arises upon that proposition is this, that Lord Breadalbane was afterwards a party to the settlement itself, which contains no such provision. It also appears that, subsequently, namely, in the year 1824, when he executed a deed of that date, he made an attempt, which was obviously not likely to have a very beneficial effect to himself; he charges the 10,000l., which was to be paid after his death, upon his Scotch estate, and he declares that it shall be in bar of legitim. Now, if he had supposed that legitim had been before barred by the settlement, it would have been a perfectly unnecessary provision in a deed which was to carry into effect the provisions of the settlement, to specify that it should be in bar of legitim. But supposing that he had any such intention-supposing that he, residing in Scotland, was more or less cognizant with the Scotch law, and that the right of his child to legitim, and the means by which that right would be barred, had been present in his mind, it is quite clear that he never communicated that to the other parties. The renunciation of legitim by his child, was that which enured to his own benefit; he was authorized to treat on behalf of his child, with respect to her rights, those which he had conferred upon her by the provision of 30,000l. He was authorized on the part of his daughter to treat with the father of the intended husband; but he had no authority, nor was it ever supposed that Lord Breadalbane was invested with any authority to treat, not as with the father of the husband, but as between himself and his daughter, on the subject of the claim to legitim in the daughter and her intended husband, they being entirely ignorant of any such question being raised, or of any such effect being given to the transactions then in progress. Now, if he put that construction upon these words, of which however there is not only no evidence, but I am perfectly satisfied that the subject-matter, strange as it may appear, was as absent from his mind, and from the mind of Lord Lauderdale, who was acting for him, as it was from the minds of Lord and Lady Chandos, or Mr. Vizard, who was acting for them, or the Duke of Buckingham, who was acting for Lord Chandos; but if that was present in his own mind, and not communicated to the other parties, or present in the minds of the other parties, it would be very difficult to contend, that the right of Lady Chandos to legitim, out of the personal estate, was to be barred. Now, if Lord Breadalbane had so understood the words in the proposals, it must have been because he was acquainted with the Scotch law, and knew that such coveNEW SERIES, VII.-CHANC. nants were usual to be inserted in Scotch settlements; but it is most extraordinary that with that knowledge, and with the supposed construction put by him upon the words in the proposals, he afterwards executed a settlement which contained no such provision, although the proposition is this, that he, knowing the Scotch law, knew that an express renunciation of legitim was necessary, in order to carry the intention into effect. Upon the whole, it is positively denied that the parties sought to be affected by this injunction knew anything about the right of legitim. The result of the whole leaves no doubt upon my mind, that it was not present to the minds of any of the parties. But still, though the parties had not the subject-matter present to their minds, they may have used words which may operate upon rights, of which they were not cognizant. If a party thinks proper to bar all rights that he has, it is not necessary to prove that he knew all his rights, or that he had ascertained what his rights were. That brings the case to the question-the only arguable question-what is the effect of these words in the proposals? Now, it is always to be kept in mind, that, by the law of Scotland, nothing but an express renunciation will have the effect of barring the title to legitim; and it would be a strange conclusion, if the Court were to decide, that the effect of the words being introduced into the proposals, would be to deprive one of the parties contracting, of the title to property of the enormous amount of that in the present case, none of the parties to that arrangement having any intention that they should so operate, or that that should take place. Still, it is possible that the words may have that effect. Now, the proposals relate entirely to English subject-matters. They are between. parties resident in England; the only party not resident in England being Lord Breadalbane. It was the marriage settlement of the son of an English nobleman marrying the daughter of a Scotch nobleIt was prepared in England, the subject-matter is English, and all the parties English; and after providing for all the purposes usual in a settlement of that description, the provision for younger children, for the wife, and for the settle man. G ment of the estate, the words of the proposals are, "the settlement to contain the usual clauses of indemnity to trustees, and all other usual and necessary clauses." Now, I apprehend, that taking those proposals according to their ordinary meaning, after parties have stated what they profess to do, and the provisions that they intend to make, when they provide, "that all usual and necessary clauses" shall be inserted, they must be taken to mean, all usual and necessary clauses for the purpose of carrying into effect the provisions before expressed, of which the right of legitim forms no part. In Anstruther v. Adair (3), the question arose out of a settlement which was executed in Scotland, between parties domiciled in Scotland; and the question was with respect to the equity of the wife, according to the English law. It was most properly decided by Lord Brougham, that the settlement being executed in Scotland, between Seotch parties, it must be disposed of according to the law of Scotland, and that you cannot apply the equity of the English law between parties living in Scotland, and who never had in contemplation the equity of the English law. This is a settlement executed in England, between English parties, relating to English subject-matter, and providing for its objects by the usual clauses, with reference not to anything dehors the settlement; not to any right which might arise by the law of a foreign country, Scotland being for this purpose a foreign country, and different laws being administered there from those administered here. The obvious meaning of these words is, that there shall be such clauses as are usual and necessary for the purpose of carrying into effect the contract between the parties. There were cited, not I believe in the argument here, but in the argument in the House of Lords, a variety of cases, with respect to that part of the law which comes the nearest to the law of legitim in Scotland-namely, the rights of parties to a share of their parent's estate, under the custom of London and York; and several cases were cited, where the title of the child was barred by the provision given by the (3) 2 Myl. & K. 513. But in no case was father to the child. there any instance found of the orphanage part being barred, merely by the giving of the portion. There were cases where the father had advanced a portion to his child, and had stipulated that that should bar the orphanage part; but no case was produced where the title of the child was held to be barred by that which had taken place here-namely, by the father simply advancing the portion of the child, under terms such as those which are contained in this settlement. The ground upon which this motion is rested, is, that there is evidence which would justify the Court in correcting the settlement. The proposals being afterwards matured into a settlement, it is the settlement which binds the rights of the parties, unless there is something bringing the case within the authority of other cases, in which the Court has felt itself authorized to correct a settlement, upon the ground of mistake or misapprehension, and to introduce into the settlement something which appears to have been the intention of the parties, as evidenced by other means than the settlement itself. Now, in order to justify the Court in doing that, it is obvious that there must be a clear inten tion proved. It must be shewn, that the settlement did not carry the intention of the parties into effect. If there be merely evidence of doubtful or ambiguous words having been used, the settlement itself is the construction which the parties have put upon those doubtful or ambiguous words; they have themselves, therefore, removed any doubt which might have existed upon that which forms the foundation of the settlement. But, in this case, although it is unnecessary I should pursue that subject further, there is an absence of proof, that the settlement did carry out those proposals. It differs from the proposals in some most important parts. No doubt, those were the proposals originally suggested; but what passed between the time of the proposals and the execution of the settlement-what gave rise to any change of intention-or why it was the settlement was not in conformity with the proposals in other matters, does not at all appear. But there is evidence of a manifest departure in important points in the |