1824. Mayor v. Dry.

of the bill, that, assuming the deed of dissolution to be void and the partnership to have continued till Pyne's bankruptcy, there would be a balance of 5001. due to Dry's estate. Upon this the plaintiff obtained the common order to amend his bill, on payment of 20s. costs; and under that order he entirely varied the case made by his bill, and, after stating fully the deed of dissolution and treating it as valid, he prayed that it might be established and carried into effect.

The original bill consisted of 122 folios, 78 of which were omitted in the amended bill. The amended bill contained 126 folios.

The number of folios in the answer was 226, of which not more than 50 or 60 related to the contents of the amended bill.

The defendant now moved that the original bill might be dismissed with costs, and the amended bill be ordered to stand as the original bill; that the plaintiff might be ordered to pay to the defendant so much of the costs of the original bill and answer as had been incurred by her in consequence of the

claim, made by the plaintiff in his original bill, to have an account [*115] taken of the partnership dealings and transactions, and the *consequent

relief prayed respecting the same; and that such costs might be taxed; that till they were paid all further proceedings in the suit might be stayed, and that the plaintiff might be ordered to pay the costs of the motion. Upon notice of this motion being given, the plaintiff's attorney made an affidavit, in which he deposed that, from the answer, although it appeared obvious to him that the suit as originally instituted might be prosecuted with success, it also appeared that, by amending the bill and seeking to establish the deed of dissolution set up by the answer, the bankrupt's estate would be thereby benefited; inasmuch as it appeared to him, from the answer, that the consideration moneys therein mentioned to have been paid to the bankrupt had not been paid, but that a considerable portion thereof still remained owing, and that no matter was inserted either in the original or amended bill which was foreign or immaterial to the plaintiff's case, or for any other purpose save the legitimate objects of the suit.

Mr. Heald and Mr. Whitmarsh, in support of the notion, cited Smith v. Smith, (a) and said that in that case the defendant had miscarried by taking a step in the cause before he made the motion; but that that was not the case here and they also referred to Dent v. Wardel, (b) and Watts v. Manning.(c)

Mr. Horne and Mr. Bridgman for the plaintiff:-No such motion was ever made as that an amended bill should stand as an original one. If the court should dismiss the original bill, what would become of the answer to [*116] it? The original and the amended bill form *but one record, and your lordship cannot dismiss the former and retain the latter. In Smith v. Smith an order in the nature of a decretal order had been made. The

(a) Coop. 141.

(b) 1 Dick, 339.

(c) Ante, vol. I, 421.

1824.-Reynolds v. Blake.

merits of that case had been before the court, and the plaintiff by amending his bill attempted to make a new case, varying not only from that made by the original bill, but also from the issue directed by the court. In order to entitle the defendant to extra costs, a case of particular oppression must be shown: Earl of Masserene v. Lyndon.(d) No such case has been made out here. The plaintiff was a trustee for himself and the other creditors of the bankrupt, and finding, from the answer, that it would be more beneficial for himself and those with whose interests he was entrusted, that the deed should be established than that it should be set aside, he would not have done his duty. unless he had amended his bill with a view to the attainment of that object.

The MASTER OF THE ROLLS:-The rule that the plaintiff shall pay 20s. costs only on amending his bill, does not bind the court where there has been great oppression and vexation. This appears to me to be a case of that nature. The original bill sought to set aside the deed of dissolution. To that bill Mrs. Dry put in a long answer insisting on that deed. It is clear that the plaintiff saw that if he went on with the suit his bill would be dismissed. He then alters the whole form of the bill, and seeks relief on the foundation of the deed.[1] There may be cases in which, on the coming in of the answer, it may be necessary to make very material alterations in the bill, on account of disclosures made by the answer. But that was

not the case here. For it appears that the *plaintiff was aware of this [*117] deed of dissolution, and of the circumstances under which it was executed at the time of filing the original bill, for he notices it in that bill. I think that this case is within the principle of the decision in Bent v. Wardel; and I shall therefore give the defendant the costs of the original bill, and of so much of the answer as relates to the accounts of the partnership, and also the costs of this motion.[2]

REYNOLDS V. BLAKE.

1824, 15th August.-Vendor and purchaser.—Costs.

If the master reports against the title to an estate purchased under a decree, the purchaser will be paid the costs of the reference out of the funds in the cause..

ONE Chandler, having opened the biddings for lot 1 of the estates sold under the decree in this cause, and paid a deposit of 401., was declared the purchaser of it at the re-sale. The master, upon the title being referred to him, reported

(d) 2 Bro. C. C. 291.

[1] A plaintiff may vary his case by an amended bill. Peed v. Cussen and others, Sausse & Scully, 161. Magdalen College v. Sibthorp, 1 Russell, 154; Sadler v. Lovatt, 1 Molloy, 162. But he cannot avail himself of a title acquired subsequent to the filing of the original bill. Pilkington v. Wignall, 2 Madd. 240.

[2] A similar order was made in Strickland v. Strickland, 3 Beav. 242. A demurrer does not lie to an amended bill for referring throughout to the original bill, and repeating its entire contents and prayer. Peed v. Cussen and others, Sausse & Scully, 161.

1824.--Long v. Long.

against it. Chandler afterwards died. His executors now moved that the accountant general might be directed, out of a sum of cash standing in his name to the credit of the cause, to pay to them the deposit ; and that it might be referred to the master to tax their costs and the costs of the motion, and that the same when taxed might be directed to be paid to them by the plaintiff.

Mr. Turner, in support of the motion, cited Fielder v. Higginson, (a) and said that on reference to the register's book, it appeared that the purchase in that case was made under the decree.

Mr. Knight for the parties in the cause:-Each case must depend [*118] upon its own peculiar *circumstances. If this had been a bill for speci fic performance, it would not have been of course that if the vendor failed in making a good title the purchaser could get his costs. The title of part of the lot was under a mortgage for a long term of years, which had not been foreclosed; and the master was of opinion that the equity of redemption was not barred by length of time, and for that reason reported against the title. The Master of the Rolls ordered the deposit, and the costs of the reference of the title and of the motion, to be paid out of the cash standing in the accountant general's name to the credit of the cause.(b)

1823, 23d November, 1824, 11th May and 9th November.-Ward of court.—Settlement.--Jurisdiction.

A lady entitled to a fund in court, married the day after she came of age. After the marriage a settlement of her property was made on her and her husband for their lives, and on the children of the marriage absolutely; but the wife never consented in court to a transfer of the fund to the trustees. After the husband's death, and the birth of a child, the settlement was, at the suit of the wife, declared void, because it contained no provision for a second marriage, and because the rights acquired by the husband were, on account of the precipitation of the marriage, a surprise on the wife.

JANE LONG, being entitled to several sums of stock, partly in possession, partly in reversion, and partly contingent, which had been transferred into the accountant-general's name under the decree in a suit for the administration of her late father's assets and for carrying the trusts of his will into execution, married on the day after she came of age. No settlement was ever made by the husband but about three weeks after the marriage the whole of the wife's property (except 1,7431. 14s. 11d. stock, which was agreed to be transferred to the husband for his own use,) was assigned to trustees upon trust to pay 100l. a year to Mrs. Long for her life, for her separate use, and the remainder of the dividends to Mr. and Mrs. Long for their lives successively, and, after

(a) 3 V. & B. 142.

(b) See Lechmere v. Braiser, 2 J. & W. 287. [Smith v. Nelson, post, 557.]

1824-Long v. Long.

the decease of the survivor, to stand possessed of the capital for the children of the marriage; and, in default of such children, in trust for Mrs. Long, if she should survive her husband, but if not, then in trust for such person as she should by will appoint, and, in default of appointment, in trust for Mrs. Long absolutely.

A fortnight after the date of the settlement an order was made, upon a petition presented by Mr. and Mrs. Long and others in the suit before mentioned, that the *sums of stock to which Mrs. Long was entitled [*120] in possession should, after the transfer of the 1,7437. 14s. 11d. stock, be carried over, in trust in that suit, to the settlement account; and, it having been suggested to the court, at the hearing of this petition, that there was some question whether there had not been an agreement for a settlement prior to the marriage which bound the husband's interest in the wife's fortune, it was, by the same order, referred to the master to inquire whether there had or had not been any such agreement, and whether any settlement had been executed conformably thereto.

About six months after the marriage, and before the master made his report, the husband died, leaving his wife enseinte; and on the 30th of May 1822 she was delivered of a daughter.

The master made his report on the 6th of February 1823, and thereby certified that there was no agreement for a settlement prior to the marriage, which bound the husband's interest in his wife's fortune.

After this report a bill was filed by the trustees of the settlement against Mrs. Long and her infant daughter, stating that it was contended, on the part of Mrs. Long, that the settlement, having been executed merely as a post-nuptial settlement of property solely moving from her, and which was then actually under the protection of the court, whilst she was under coverture, and without any valuable consideration or property settled moving from or on the part of her late husband, and the more valuable parts of such settled property being interests of a reversionary nature, and, in one instance, of a contingent nature, the settlement was not, *or was not to be considered as [*121] binding upon her; and that, at all events, she was entitled to have the same reformed, or a new settlement executed under the directions of the court; and praying that it might be referred to the master to inquire and certify whether, under all the circumstances which existed, the settlement was a fit and proper settlement to have been executed as to the fortune and property of Mrs. Long so remaining in the court, due regard being had to the particular nature of each species of such property; or whether, in his opinion, the same ought to be reformed, varied or altered; or whether a new settlement ought to be made in lieu thereof, in respect of the fortune and property of Mrs. Long then under the control or directions of the court, and that the same might be effectuated accordingly under the decree of the court.

On this cause coming on to be heard, the Vice-Chancellor said that this bill was properly filed by the trustees, provided the settlement were established;

1824.--Long v. Long.

but, if the court should be of opinion that the settlement could not be sustained, it could only dismiss the bill; that, therefore, it would be better to file another bill to come on at the same time with the original cause, by which means the case would be put in such a shape that, upon the discussion of the merits between the mother and child, the court could make a decree settling their rights and that would be binding on them.

A cross-bill was accordingly filed by Mrs. Long against the trustees and her infant child, charging that, for the reasons stated in the original bill, the settlement ought to be declared void, and praying that it might be declared void accordingly.

[*122] *The original and cross causes now came on to be heard together.

Mr. Heart and Mr. Beames, for the plaintiff in the cross cause, said that the settlement was such as this court would not have approved for a ward, because it made no provision for a second marriage; and that the marriage, having taken place the day after the lady attained her age, the settlement was a fraud upon the jurisdiction of the court.

Mr. Bell for the trustees.

Mr. Sugden and Mr. Treslove for the infant :-The settlement recites an ante-nuptial agreement. Suppose there had been a previous agreement of which the settlement was, in fact, a violation; yet, as the lady was of age, it is to be considered that the control of the court was so far gone. If the husband had made exactly such a settlement as the court would have compelled him to make, the court would never treat it as binding on him and not on his wife. Besides it is very material to state that it appears, by the order for transferring the funds to the settlement account, that Mrs. Long was examined in court, and consented to the trusts of the settlement being carried into effect. She is therefore, bound by that consent, and is precluded now from objecting to the settlement.

The VICE-CHANCELLOR :-It is true that this is a settlement which the court would not have approved, for the reason stated; and the event which has happened here fully justifies the precaution of the court. In the case of Mr.

Basely, where the marriage was had during the infancy of the lady, [123] *and in contempt of the court, the Lord Chancellor refused to give up

any part of the lady's property after she came of age, until Mr. Basely had consented to execute such settlement as the master should approve. But here, the lady being of age, there was no contempt of the court in the marriage; and the jurisdiction of the court over her property had determined. The husband and wife were competent to dispose of her property in court; and the wife, having confirmed the settlement upon her personal examination, must be bound by it. Declare accordingly.

It being afterwards discovered that Mrs. Long had consented merely to the 1,7437. 14s. 11d. stock being transferred to her husband, and had not con