provide for them, yet nothing effectual was ever done. The Receiver being entitled to costs, charges, and expences, and the parties having delayed for ten years to provide for their taxation and payment, I think he was justified in presenting this petition. The order must be made, and I cannot charge him with the costs of the proceedings. The costs of all parties must be paid out of the fund in the hands of the Receiver.

1844.

IRELAND

v.

EADE.

IN

ROBERTS v. JONES.

N this case, the Defendant had filed a plea; the Plaintiff neglected to set it down for argument within the three weeks, according to the exigency of the 35th Order of the 26th of August 1841 (a), in consequence of which, it was "to be held good to the same extent, and for the same purposes as a plea allowed upon argument."

Jan. 21.

A Plaintiff neglected to set down a plea for arguDefendant moved, ex

ment. The

parte, for the costs of the plea and of suit. The Court declined to

Mr. Simons now moved, ex parte, that the Plaintiff make the might pay the costs of the plea and suit. He observed order. that this was like the case of a demurrer submitted to under similar circumstances; Cartwright v. Smith (b), Mackenzie v. Claridge (c); and he referred to the 31st Order of the 3d of April 1828 (d), which directs, that on the allowance of a plea to the whole suit, the Plaintiff shall pay the taxed costs of the plea and suit, unless the Plaintiff undertakes to reply, or the Court shall think fit to make other order.

(a) Ord. Can. 175.
(b) 6 Beav. 121.

(c) 6 Beav. 125.
(d) Ord. Can. 17.

The

1844.

ROBERTS

V.

JONES.

The MASTER of the ROLLS.

The Plaintiff ought to have notice of this motion, and have an opportunity of undertaking to reply. The case is not like that of a demurrer; for, notwithstanding the plea is to be held good, still the Plaintiff has a right to reply thereto, and to go into evidence to disprove the allegations it contains.

Jan. 21.

RICHARDSON v. HASTINGS.

Liberty given MR. HUBBACK moved ex parte for leave to amend

ex parte to

amend a clerical error in a demurrer, the twelve days for demurring not having expired.

a demurrer, by inserting the words "this Defendant" for "these Defendants."

The twelve days for demurring had not expired. (a)

The MASTER of the ROLLS gave liberty to make the amendment, the Defendant undertaking to amend the Plaintiffs' office copy.

(a) Ord. Can. 46.

1843.

UPJOHN v. UPJOHN.

Nov. 7.

Dec. 22.

HIS case appears fully stated in the judgment. It A testatrix,

THIS

was argued by

having the moiety of an

estate, directed her

Mr. Pemberton Leigh and Mr. Prescott White, for the executors to Plaintiff, and by

Mr. Sidebottom, Mr. Heathfield, Mr. Glasse, Mr. Purvis, Mr. Bagshawe, Mr. C. J. Hall, Mr. Blunt, Mr. Kindersley, and Mr. Turner, for the several Defendants.

Mr. Pemberton Leigh, in reply.

purchase the other moiety; and "if the

purchase completed

should be

within twelve months after her death," she gave the entirety on certain trusts; "but in case

The cases cited were on points not the subject of the her executors reported decision.

upon

The questions in this cause arise the construction of the will of Ann Tookie, dated the 18th of October 1796.

Some time before the date of the will, an undivided
moiety of the estate in question had become vested in

the testatrix, by descent from her cousin Ann Burgis.
Anthony Burlton Bennett was the owner of the other

should not be able," within that time, "to purchase it," she directed her moiety to be sold, and

the produce, together with 1100l. to be held on other trusts. The will contained residue of her a gift of the estate of

whatever

kind, &c. The purchase

66 was not

moiety, completed" within the

time, although the executors "were able," so that neither of the expressed events happened. Held, first, that the trusts both of the estate and 1100l. failed; and, secondly, that as between the devisees and heir-at-law, the latter was entitled to the testatrix's moiety of the estate.

As to the liability of the executors in this case, quære.

1843.

UPJOHN

บ.

UPJOHN.

moiety, and the testatrix, contemplating that her executors might be able to purchase Mr. Bennett's moiety, or might not be able to do so in twelve months, by her will, made dispositions adapted to either event. If Mr. Bennett were disposed to sell his moiety, she directed her executors to purchase it; and if the purchase should be completed within twelve months after her death, she gave her own moiety to trustees, in trust, during the life of her daughter Catherine Mary Page, to pay the rents to her; and after her death she gave the same moiety to her grandson William George Page and the heirs of his body; and in default of such issue, to her grandson James Clement Page and the heirs of his body; and in default of such issue, to her granddaughter Catherine Anne Page and the heirs of her body; and in default of such issue, to the heirs of the body of her daughter Catherine Mary Page; and in default of such issue to her nephew William Burlton in fee. And if the executors should purchase Mr. Bennett's moiety, she directed the same to be secured and settled, in the manner she had devised the moiety of which she was then possessed, so that the whole might go and descend together.

This was the disposition she made, in contemplation of her trustees and executors completing the purchase of Mr. Bennett's moiety within twelve months after her death. She then proceeded to provide for the other event, and expressed herself as follows: "But in case my said executors shall not be able, within twelve months after my decease, to purchase, on fair and equitable terms, the other moiety of the said estate, then my will and mind is, that they do sell the undivided moiety that I now possess, for the most money that they can procure for the same, and place the money arising from such sale on mortgage security, or vest it in the public

funds;

funds; and also that they raise 11007. out of my personal estate, and place it on the like security." And she then gave the interest of the sums to be thus invested, to her daughter for life, as she had given to her the rents of the whole estate, if Mr. Bennett's moiety. had been purchased; and after the death of her daughter, she gave the purchase-money and the 11007. to her grandson William George Page, if then living, and he should then have attained the age of twenty-one years; but if he died under that age, she gave the principal sum to his brother James Clement Page; and if he also should die under age to his sister Catherine Anne Page, on her attaining twenty-one years of age or day of marriage; and if she died under age and unmarried, then she gave the same sums to any other children her daughter might have, to be divided between them equally, or if her daughter died without children or none of those she left should attain twenty-one years, she gave the same principal sum to her nephew William Burlton. And she gave to her executors all the residue of her estate, of what kind or nature soever, in trust, nevertheless, that they should place the same on mortgage securities, or vest the same in government security, and pay the interest therefrom arising to her daughter Catherine Mary Page, for her separate use for life, with power for the executors, with her consent, to employ any part of the residue towards the support, education, and advancement in life of her grandson William George Page; and after the death of her daughter, she gave the residue to all the children of her daughter, to be equally divided between them, share and share alike, with survivorship, if any should die under twenty-one years of age; and if none should attain that age, she gave the residue to William Burlton.

By the decree made on the hearing of the cause, inquiries were directed, for the purpose of ascertaining, whether

1843.

UPJOHN

v.

UPJOHN.